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South Africa: North Gauteng High Court, Pretoria
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2020
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[2020] ZAGPPHC 229
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S v Lumka (CC52/2018) [2020] ZAGPPHC 229 (27 January 2020)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
CC52/2018
DATE:
2020 .01. 27
In
the matter between
STATE
Plaintiff
and
S
LUMKA
Defendant
JUDGMENT
BAM,
J:
The accused in this matter is
being arraigned on five charges including a charge of murder and one
of attempted murder. The allegation
in the indictment state that
these crimes were allegedly committed in 2008.
This matter was on the role on several
occasions and it was postponed for pre-trial purposes and
correspondence between the parties.
At this point in time the accused , represented
by three counsel, applied for a postponement on the following basis;
Firstly,
that he is entitled to investigate the issue of the CCTV recording of
the murder scene and the attempted murder.
These recordings were apparently recorded at
the time, if understood it correctly, the murder and the attempted
murder was committed.
My
concern is that the accused will not be confronted with evidence in
that regard. According to the state they are not going to
make use of
this CCTV recording. In other words, it is worthless to the state as
evidence.
On
the other hand, Mr Combrink submitted that they can prove, after
having investigated this, on the probabilities, that it was
not the
accused that was involved in the alleged murder and attempted murder.
Mr
Fourie submitted that the state will produce, if I understood him,
evidence proving that the accused was indeed involved. The
allegation
in the charge sheet, in the indictment , is that the accused
conspired with somebody else to commit the murder s.
The
second ground is that the state failed to investigate the alibi of
the accused. The accused by way of his legal representative
informed
the state that he was not present at the time these crimes were
committed, that he was somewhere else. The state did not
investigate
the alibi evidence.
Mr
Combrink submitted that this alibi evidence or the lack thereof , or
the failure or the lack of state to investigate it, still
have to
connect the accused, if I understood him correctly, with the CCTV
recordings of the murder scene that according to Mr Combrink
will
probably prove that the accused was not present.
Concerning the first ground - in view thereof
that the state is not going to rely on the CCTV evidence - I must
conclude that what
Mr Combrink has said pertaining to the possible
investigation thereof , is based on some sort of speculation.
It
may be that the state will be able to produce evidence in that regard
about the identification of the accused but surely the
deference will
have the opportunity to cross-examine the witnesses and then perhaps
rely on the fact that the state did not make
use of the CCTV evidence
to prove that it was indeed the accused.
Regarding
the alibi issue, I am not satisfied that it is of any substance. The
state is not obliged to assist the accused in his
defence. The
grounds relied on by the accused, in my vie w, do not justify it to
be in the interests of justice to postpone this
matter. am of the
opinion that the accused will not be prejudiced at all.
The
application for postponement is dismissed.
BAM,
J
JUDGE OF THE HIGH
COURT
DATE:
27/1/2020