This was one of the arguments before the Supreme Court of Appeal as the police minister appeals Fred Van der Vyver’s civil victory.
|||Bloemfontein - Fingerprint lifts were swopped to “fabricate” evidence against actuary Fred van der Vyver, his lawyers have argued.
But the legal team for the minister of police sketched a different scenario – that it could have been “a mistake”.
These were among the arguments before the Supreme Court of Appeal here on Thursday as the minister appealed Van der Vyver’s civil victory against his office.
In a finding in 2011, Western Cape High Court Judge Anton Veldhuizen held that the minister was liable for malicious prosecution.
Advocate Kosie Olivier, SC, arguing for the minister, acknowledged that Constable Elton John Swartz could have made a “mistake”.
This was on the basis of Judge Veldhuizen’s judgment, in which he found that Van der Vyver’s fingerprint, which Swartz collected, had come from a glass, not a DVD cover, and that Swartz had probably made a mistake.
Advocate Dup De Bruyn, SC, representing Van der Vyver, said this was the first time the minister’s lawyers were arguing there had been a “mistake”.
They had previously been “very clear” that there “couldn’t have been a mistake”.
De Bruyn submitted that there wasn’t a “single piece of evidence” that indicated that it had simply been a mistake.
“There is no way an innocent exchange could have taken place,” he told the court.
His argument was that fingerprint lifts had been swopped intentionally, and later added that he wasn’t saying Swartz alone was responsible.
Olivier, however, argued an intentional swop was “impossible” as Swartz did not have several pieces of information – such as how Van der Vyver’s fingerprint looked – at the time.
Olivier said that, at most, Swartz had identified that fingerprint lift incorrectly.
Van der Vyver was acquitted of the murder of his girlfriend, Stellenbosch University student Inge Lotz, in 2007. She was bludgeoned to death in her flat on March 16, 2005.
Van der Vyver is seeking R46 million in damages.
While he has won his civil case on merits – a decision now going through the appeal process – the amount the minister is liable for is subject to another court process.
Van der Vyver was not present during Thursday’s proceedings, but his family travelled to Bloemfontein.
Another major point of contention raised was that of a bloody smear found on Lotz’s bathroom floor.
Captain Bruce Bartholomew steadfastly maintained that it was Van der Vyver’s footprint.
Judge Veldhuizen found Bartholomew had made himself “guilty of inciting the prosecution” because he hadn’t informed the prosecutors of any doubt, despite a number of experts disagreeing with him.
Olivier argued that Bartholomew believed he was right and, according to previous testimony, the prosecutors would have gone ahead with their prosecution without his belief about the blood smear.
De Bruyn argued that, without Bartholomew’s evidence, the State wouldn’t have had a case against his client.
The panel of five judges said they would take time to decide.
leila.samodien@inl.co.za
Cape Times