‘No eyewitness, no fingerprints’: Malema’s lawyer insists state’s case has ‘deficiencies’

The state has failed to provide solid evidence to substantiate the allegations that Economic Freedom Fighters (EFF) leader Julius Malema fired a gun in public, the defence has argued.

The East London Magistrate’s Court on Wednesday heard Malema and his bodyguard Adriaan Snyman’s section 174 application to have their charges dropped.

The pair, who have pleaded not guilty, have been charged under the Firearms Control Act in relation to a 2018 incident in which Malema was captured on camera firing what appeared to be an automatic rifle into the air during the EFF’s fifth birthday celebrations at the Sisa Dukashe Stadium in Mdantsane.

The National Prosecuting Authority (NPA) decided to charge the EFF leader and his bodyguard after lobby group AfriForum laid charges.

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‘Deficiencies’

Presenting his heads of argument during proceedings on Wednesday, Malema’s lawyer, Advocate Laurance Hodes said the defence believed there were “deficiencies” in the state’s case, specifically in regards to investigating officer Rodney Swartbooi’s testimony.

“To reach the end of the state’s case and not know whether [the gun] was a Norinco .223 or a Remington .223 or the firearm ammunition, make of it which is unknown to the state, speaks in itself volumes with respect,” he told the court.

Hodes pointed out how Swartbooi could not confirm whether the firearm seen in the video was real nor the original source of the footage was found, therefore, “manipulation could not be ruled out”.

“It also become apparent during cross-examination that the authenticity of the viral footage had not been established and the laptop on which the original footage had been captured had been stolen,” the advocate said.

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He argued that it was not possible for the bullet cartridge, which was discovered by a municipal worker on the field two days after the event, to have landed where it was found.

“The witness points out precisely where she found the spent cartridge which if one has regards to… the photograph of the stage, is impossible,” Hodes said.

“The place where the spent cartridge had been found would have been beneath structures that had been there at the time of the celebration which made it impossible for it to have been fired from the firearm unless they had been damaged and they had not.”

The defence lawyer said there were no positive DNA traces or fingerprints to link his client to the cartridge or the firearm.

It was previously heard in court that the cartridge retrieved came from one of the firearms seized from Snyman’s company.

Watch the proceedings below:

Furthermore, Hodes said no gunpowder residue tests was conducted on the firearm.

He also highlighted how no state witness – including stadium manager Mzukisi Ndlovu and Malema’s five VIP protectors – testified to have seen the incident.

“Your worship one can also have regard to the further cross-examination of the witnesses called by the state and the concessions that they made.

“At the end of the day, there is no person that has come before the court to say ‘I attended that event, I feared for my life, I’m an eye witness, there were shots fired and the following damage has been caused had the bullet struck me’. This is born out of all of the evidence before this court and will be basis of the argument in support of the discharge of accused number one,” he continued.

Hodes added the defence was of the view that no evidence has been presented for the court to convict his client.

“We submit that there ought to be an eyewitness or reconstruction to illustrate and to substantiate the allegations against the accused.”

‘That is not the offence’

Advocate Shane Matthews, representing Snyman, briefly addressed Magistrate Twanet Olivier on why his client should be discharged.

“It is important to note that the cases of accused number one and two are completely different in a sense that the counts applicable to accused number two relate in essence to the handing over of a firearm to accused number one under circumstances where accused number one has no authority to possess it.

“Following from that, it is argued by the state for some reason that accused number two then also places all the occupants of the stadium and the surrounding area in danger,” Matthews said.

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The defence lawyer stressed that no witnesses claimed to have seen Malema and Snyman exchange the firearm.

“There is no evidence that has been led to that accused number two ever handed over a firearm to Mr Malema at any stage during that day.

“The closest we have got in this case is Ms [Gopz] Govender [former Eastern Cape Hawks head] who made an assumption that because accused number two was on the stage close to the vicinity of Mr Malema after the shooting, she assumed that Mr Malema had handed over the firearm back to accused number two. But that is not the offence that the accused is charged with,” Matthews explained.