Henri van Breda will have to wait another day to hear if Judge Siraj Desai sees him as a victim of ill-treatment by police.
At the trial-within-a-trial which began in the High Court in Cape Town on Friday‚ defence counsel Piet Botha has described Van Breda as a young man shivering in just underpants‚ deprived of sleep‚ hungry and traumatised at just having seen his parents and brother axed to death in the Stellenbosch family home.
He wants the statement Van Breda gave to police on January 27‚ 2015‚ to be disallowed as evidence in court.
The state says he was perfectly calm‚ was treated as a victim and not a suspect‚ and happily signed an electronic version of the statement.
Botha argued that Van Breda was pinned as a suspect right from the beginning but was then denied his rights to silence or legal representation.
But Susan Galloway‚ for the state‚ told Desai on Wednesday: “When he gave his statement‚ he was perceived as the only surviving member of the Van Breda family who was able to give an account of what happened.”
At that stage‚ “there was no incriminating evidence” and Van Breda was “calm and was able to give an account of what happened”.
He was “not a suspect” when he made the statement and was “read an electronic version of it and was satisfied”.
She said the testimony of Sergeant Clinton Malan‚ who took the statement‚ was corroborated by Dr Lizette Albertse who had examined him and recorded him as a “slagoffer” and not a suspect.
Galloway said despite grammatical errors raised in court by the defence‚ the “content remains undisputed” and it was “immaterial” if he had a T-shirt on or not when he gave the statement.
Only “arrested‚ detained or accused persons” were made aware of the constitutional rights to which Botha referred.
The police had acted within the law‚ said Galloway‚ and nothing about the giving or taking of the statement was “detrimental to the administration of justice”.
According to Botha‚ Van Breda was treated in a way that made it clear he was a suspect‚ and that he was therefore entitled to those rights.
“He should have been informed he had rights. There is no onus on the accused to prove that his rights have been contravened. The onus is on the state to prove that they weren’t‚” he said.
The court has worked through a litany of evidence on slipslops‚ board shorts‚ bare chests‚ sleepwear‚ and various other contradictory imagery of Van Breda on that morning.
Galloway says it is irrelevant‚ Botha says his outfit shows he was treated without sympathy‚ and Desai says there was no evidence of police brutality or torture.
The judge added: “He was neither detained‚ arrested nor accused‚ and therefore why is there reason to make him aware of his constitutional rights?”
Botha clarified: “I am not suggesting even remotely that he was tortured or deprived of sleep and food. But there is a difference between taking a person in pants and a shirt to a doctor and a police station‚ and taking them in pants only.
“The way in which they treated him shows they saw him as a suspect rather than a victim. Under the horrible circumstances of the crime‚ if somebody would have had sympathy and seen him as a victim‚ it should have been the police. He was bloodied‚ injured‚ and dressed only in his underpants.”
Desai will deliver his ruling on Thursday.