The state’s case against EFF leader Julius Malema is “absolutely impossible”, his defence team argued during an application to have the charges against Malema and his co-accused, Adriaan Snyman, discharged.
The application was made in the East London Regional Court on Wednesday where advocates Laurance Hodes SC and Shane Matthews SC made lengthy arguments.
Malema and Snyman have pleaded not guilty to various firearms charges.
Hodes, for Malema, argued that the authenticity of the viral footage which landed the pair in the dock had not been established.
The court had heard that a spent cartridge was found at the Sisa Dukashe Stadium in Mdantsane by a cleaner two days after Malema allegedly fired shots during the party’s fifth birthday celebrations in 2018.
“It would be impossible, or at the very least highly improbable, for the spent cartridge to have been found where it was found if it was fired at the celebration in the circumstances depicted in the video the court has seen,” Hodes said.
“Notably ... no eyewitness was called. No person who attended the celebration who feared for their life ... was called.”
He said five VIP protection police officers protecting Malema did not mention the discharge of a firearm in any of their statements.
Hodes said it was impossible to say when the “cartridge would have been placed there”.
“It was not possible for the spent cartridge to have been ejected from the firearm on the stage and land where it was found.
“At this stage it would appear the state’s case is not improbable, but absolutely impossible ... ”
Matthews, for Snyman, said no statement or evidence indicated Snyman had given Malema a firearm at any stage on the day.
“Mr Snyman is charged with handing a firearm to Mr Malema under circumstances where Mr Malema wasn’t legally entitled to possess that firearm.
“While I’m busy with that, what evidence is there before this court that he was not entitled? Nothing.”
Prosecutor Joel Cesar said the evidence was overwhelming and was “corroborated and substantiated by real evidence in the form of the video which depicts [Malema] firing several shots in the air”.
At this stage it would appear the state’s case is not improbable, but absolutely impossible
— Laurance Hodes
Cesar said Snyman was also visible in the video.
“Accused one and two are seen walking towards each other and [then] move away, and subsequently accused one is no longer in possession of the firearm.”
Cesar said where the spent cartridge was found was irrelevant.
“What is relevant is that it was found in the area where the shots were fired. Footage from Gear House [which took official videos on the day] confirms the incident did transpire as in the viral footage ... even the song is the same.”
Cesar said the court could exclude any suspicion there had been any tampering with or amendment of the video, adding the only issue the court had to decide on was the relevance of the footage.
“Accused one confirms this happened. He just says it was a toy gun and we say it was a real firearm.”
Magistrate Twanet Olivier will make a ruling on October 19.
DispatchLIVE
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.