Acting judge Stuart Wilson asked Makhubela if it was the defence’s contention that Malephane’s evidence “was so incredible that it has to be rejected in its entirety”.
“Was his evidence so incredible, so poor that no reasonable person could accept any of it?” Wilson asked.
Makhubela argued that while the state had wrapped up its case with its witnesses, it had mainly relied on Malephane's evidence, which could not be relied upon to convict Shoba.
“His credibility is such that the court cannot find any reliance in whatever he says other than issues that are common cause. In relation to the contested issues, it will be a very precarious exercise to engage in and make a finding and accept any utterances before court,” he said.
He said the cyber-related evidence regarding cellphone records was also not conclusive.
Makhubela argued that the court had throughout the trial been presented with a substandard case and was expected to make a verdict.
“We submit that suspicion cannot be elevated to evidence. It remains that and is subject to speculation more than facts. The court is called upon to deal with the facts before it rather than drawing inferences from what is circumstantially before it,” he said.
He said taking Shoba to the witness stand before the state made a credible case for him to answer would be an irregularity on the part of the court.
Shoba is facing charges of murder, conspiracy to commit murder and defeating the ends of justice.
Prosecutor Faghre Mohamed told the court Shoba had lied to police when he was not yet a suspect as he claimed not to know Malephane to distance himself from the crime, which he said was part of the charge for obstruction of justice.
Wilson refused the discharge application, paving the way for Shoba to take the stand.
The trial continues.
SowetanLIVE
Judge dismisses application to discharge Shoba in Tshegofatso Pule murder trial
Image: Antonio Muchave
The defence counsel for the alleged mastermind in the Tshegofatso Pule murder trial has failed in its discharge application in which it argued the state could not prove Ntuthuko Shoba had orchestrated the killing.
Shoba’s lawyer, advocate Norman Makhubela, had applied for his client’s discharge in terms of section 174 of the Criminal Procedure Act. According to the section, at the close of the prosecution’s case and if the court is of the opinion there is no evidence the accused committed the offence, the accused may be discharged.
Shoba is alleged to have hired Muzikayise Malephane for R70,000 in June 2020 to kill his then pregnant girlfriend.
Malephane, who previously falsified his first statement to police, is serving a 20-year sentence and has since turned state witness and testified against Shoba as the main witness.
Makhubela told the court there had been no evidence presented to court that conclusively showed Shoba committed the crime.
This as Shoba was expected to take the stand after the state wrapped up its case and line-up of witnesses.
Acting judge Stuart Wilson asked Makhubela if it was the defence’s contention that Malephane’s evidence “was so incredible that it has to be rejected in its entirety”.
“Was his evidence so incredible, so poor that no reasonable person could accept any of it?” Wilson asked.
Makhubela argued that while the state had wrapped up its case with its witnesses, it had mainly relied on Malephane's evidence, which could not be relied upon to convict Shoba.
“His credibility is such that the court cannot find any reliance in whatever he says other than issues that are common cause. In relation to the contested issues, it will be a very precarious exercise to engage in and make a finding and accept any utterances before court,” he said.
He said the cyber-related evidence regarding cellphone records was also not conclusive.
Makhubela argued that the court had throughout the trial been presented with a substandard case and was expected to make a verdict.
“We submit that suspicion cannot be elevated to evidence. It remains that and is subject to speculation more than facts. The court is called upon to deal with the facts before it rather than drawing inferences from what is circumstantially before it,” he said.
He said taking Shoba to the witness stand before the state made a credible case for him to answer would be an irregularity on the part of the court.
Shoba is facing charges of murder, conspiracy to commit murder and defeating the ends of justice.
Prosecutor Faghre Mohamed told the court Shoba had lied to police when he was not yet a suspect as he claimed not to know Malephane to distance himself from the crime, which he said was part of the charge for obstruction of justice.
Wilson refused the discharge application, paving the way for Shoba to take the stand.
The trial continues.
SowetanLIVE
READ MORE:
Shoba deleted communication with Tshegofatso Pule via SIM swap, court told
Shoba's defence to grill police expert over disputed cellphone records
Car thief and lockdown bootlegger? Friend of Tshegofatso Pule’s killer quizzed on his income
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