Phoenix unrest trial: Disputed video footage puts State prosecutor’s role under scrutiny - IOL

July 2021 unrest trial: Tensions flared in the Durban High Court as a dispute over alleged assault video footage revealed discrepancies.

A DISPUTE over video footage allegedly showing victims of the July 2021 unrest being assaulted in Phoenix took centre stage in the Durban High Court after the investigating officer revealed that the footage being played in court was shorter than the version he had viewed during the investigation.

Sergeant Mkhaliphi Cele, a member of the task team investigating violence during the July unrest, told the court during re-examination that the video being used as an exhibit was not initially the same length as the footage he had viewed while investigating the case.

The revelation sparked courtroom drama, with senior State advocate Thabani Buthelezi telling the court that the discrepancy was discovered while Linda Khawula was testifying.

Khawula is an alleged victim in the case against Ravine Naidoo, Trevor Gopal, Tyreece Govender and Timothy Govender, who are accused of assaulting her during the unrest.

Khawula had travelled to Phoenix with friends Njabulo Dlamini, Sanele Merase, Nkosikhona Madlala, Mthobisi Ntuli and Sandile Sambo to buy drugs and alcohol at Gopal’s Tees Tavern when they were allegedly attacked.

During the investigation, police were unable to obtain the video footage from the tavern, which belongs to Gopal.

The police were told the tavern’s recording systems had changed and that the footage could therefore not be extracted, despite the alleged assaults having taken place outside the premises.

About seven months later, the State was invited to the chambers of Advocate Jimmy Howse SC, who represents Gopal, to view the footage police had initially sought.

The footage was subsequently agreed upon for use as evidence in the trial.

However, the dispute over the footage raised concerns for Judge Mluleki Chithi, particularly about whether Buthelezi’s involvement in questioning its authenticity could potentially make him a witness.

Chithi warned Buthelezi that he needed to consider whether he could continue representing the State and ordered him to consult senior management at the National Prosecuting Authority.

“We just wish to extend a warning to Buthelezi that he should reflect seriously on the question of whether he can still represent the State in these proceedings and in doing so he must consult the senior management of his office and convey to them the circumstances that have led to the extension of the advice,” the judge said.

Chithi also declined a suggestion that the video be sent for authentication, questioning when the prosecution had first become aware of the discrepancy.

The judge pointed out that the first witness had already testified about the footage while describing events surrounding July 12, 2021.

On Monday, however, the State placed on record that the video now admitted as an exhibit was indeed the same footage Cele had viewed during the investigation.

The State explained that the apparent difference in length was caused by the process of downloading and transferring the footage, during which some portions had been omitted.

Buthelezi subsequently told the court that he had consulted his superiors and that the question of whether he should recuse himself had been left in the hands of the court.

Chithi cautioned him against placing private discussions between counsel on the court record.

The judge warned that such conversations could potentially result in counsel being called to testify.

The matter then returned to Cele’s evidence.

He told the court that the process of securing the first witness’s participation in a witness protection programme had been delayed because the witness needed to undergo rehabilitation for drug addiction.

Because the witness was in witness protection, the media is prohibited from naming him. 

Cele said the process of getting the witness into rehabilitation was further delayed because funding had to be secured to pay for the rehab. 

Questioned about the witness’s sobriety at the time police interviewed him, Cele said he appeared to be in his right senses.

“According to what I observed, he was in his senses. At the time, he was not in Phoenix where he was able to get drugs,” Cele said.

Cele further testified that some people arrested in connection with violence during the unrest were subsequently convicted on the strength of the witness’s evidence.

The four accused face charges arising from the alleged attacks during the July 2021 unrest, which resulted in the killing of Dlamini.