Attorney Peter Daubermann, acting on behalf of Nenembe and Sibeko, brought his application before Judge Dayalin Chetty in the Eastern Cape High Court in Port Elizabeth under Section 174 of the Criminal Procedures Act.

He said his clients had hardly been mentioned in the State's case in connection with the abduction and murder of Jayde Panayiotou in April 2015, and that the majority of the time he had been left "twiddling my thumbs".

Daubermann quoted a precedent set in the State versus Dewani, which states: "An accused person is entitled to be discharged at the close of the case for the prosecution if there is no possibility of a conviction other than if he enters the witness box and incriminates himself."

Pure conjecture

Daubermann argued that there was no direct evidence connecting his clients to the crime and that the State was relying on circumstantial evidence.

He said State prosecutor Marius Stander had failed on a number of levels to link his clients to any conspiracy to have Jayde murdered, nor had he directly linked them to the murder itself.

He said while there was evidence to show that they had been in contact with each other in the time leading up to the murder, the State had never interrogated the nature of the relationship between his clients and Sizwezakhe Vumazonke.

"If that is the case then everyone who called Vumazonke on a certain day should have been arrested," he said. He pointed out that it was the State’s own case that Sibeko was not involved on the day of the murder.

Daubermann said the State would argue that the cell phone evidence, in conjunction with the GPS tracking data of the hired vehicle, painted a picture of what had happened on the day.

"But that is merely one theory, it is pure speculation." Daubermann said evidence before the court in relation to the location of cellphone towers, which was then used to highlight locations of his clients at certain times, had not been verified. He also pointed out discrepancies relating to the range of individual cellphone towers, with the State’s experts saying this could range between 500m and 3km in an urban area and up to 33km in rural areas.

He said one tower, in particular, a remote tower based out at Rocklands near to where Jayde’s body was found, could be considered a rural location, which meant, based on the State's own evidence, his client could have been anywhere within a 33km radius of the tower.

Expert was no expert

Daubermann also interrogated the testimony from Thereza Botha, questioning her status as an expert, other than being an expert at connecting the dots.

He said Botha had told the court that the cell phone data had indicated that Sibeko had been scouting around Jayde’s home in Kabega before her abduction.

Referring to the court record, he showed that under cross-examination Botha had conceded that, on the day in question, the 11th of April 2015, Sibeko had not been scouting, but had merely travelled past the area as he was heading down Cape Road.

Cell phone numbers are not people

Daubermann said that at no time did either Nenembe or Sibeko admit to the cell phone numbers as belonging to them and said the onus was on the State to prove that they did. He said it was important to make the distinction that cell phone numbers were not synonymous with people.

Daubermann conceded that evidence had been brought before court that showed Nenembe had given his number to the Nelson Mandela Metropolitan University as his contact number both shortly before and after the murder, but raised questions on the admissibility of this.

He pointed out that he had objected at the time and had been overruled, but argued that the correct procedure should have been for Judge Chetty to call for a trial within a trial.

Daubermann said in the case of Sibeko, there was no such evidence to link him to the cell number at the time of the murder.  He said the only evidence the State had was warrant officer Shane Bosch’s testimony that he had called the number pretending to be from a cellphone provider with a R500 lucky draw prize and that the person who had answered had told him he was Zolani Sibeko.

He also pointed out that Bosch himself had said criminals were known to get rid of their numbers and that pre-rica’ed sim cards were available for as little as R5.

He said, at best, the State could link Sibeko to the phone when they arrested him a year after the murder, and even that was touch and go, as they never recovered the phone on Sibeko himself, but rather on an elderly lady in the house.

Stander said he intended to oppose the application and requested time to prepare. Court was then adjourned until Friday at 09:30.

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