…seeks expert to challenge Crown evidence
Moorosi Tsiane
THE trial has stalled after defence lawyers successfully applied to call an expert witness to challenge the Crown’s evidence.
Proceedings took a dramatic turn on Tuesday when Advocate Napo Mafaesa, representing Motsieloa, halted his cross-examination of Sgt Mahanetsa to announce the defence’s intention to introduce an expert report analysing the Crown’s evidence.
Adv Mafaesa requested an adjournment to prepare the application, which Justice Makhetha granted.
Arguing the application after the break, Adv Mafaesa said the move was genuine and aimed at assisting the court.
“My Lady, this application is not intended to derail proceedings but to assist the Honourable Court in arriving at a just decision,” he said.
He told the court the defence had, as early as 1 July 2025, written to High Court Registrar, Adv ‘Mathato Rasekoai, seeking support to engage crime scene reconstruction experts.
The request was declined in a letter dated 7 July 2025, on the basis that the pro deo (free legal services) arrangement did not cover expert witnesses.
Adv Mafaesa argued this interpretation was flawed, saying the Constitution guarantees accused persons adequate facilities to prepare their defence.
“The term ‘facilities’ is broad enough to include expert witnesses,” he said, adding that fairness requires both the prosecution and defence to have equal access to resources.
He also accused the Crown of failing to make full disclosure, alleging that some evidence presented in court had not been included in the docket.
“There was evidence from a police officer about photographs taken after the incident, but these were not disclosed to the defence,” he said.
Adv Mafaesa further claimed that a witness admitted withholding certain information until testifying, leaving the defence unprepared.
He maintained that an expert witness would assist the court by objectively analysing all available evidence.
“When an expert is called, they are not there to support either side but to assist the court in reaching a fair conclusion,” he said.
Advocate Lepeli Molapo, representing Ntsane, supported the application, saying the expert report was crucial to his client’s self-defence case.
However, Crown Counsel, Advocate Rethabile Setlojoane, opposed the application, describing it as procedurally irregular and strategically motivated.
“Cross-examination must follow immediately after examination-in-chief and be completed to ensure continuity and fairness,” he argued.
Adv Setlojoane said the defence should have brought the application earlier, particularly after last year’s loco inspection.
He also questioned the relevance of the proposed expert, noting that Sgt Mahanetsa is an eyewitness, not a crime scene expert.
“The defence is attempting to use an expert to fill gaps in its case,” he said, warning that allowing such a move could set a dangerous precedent.
He further accused the defence of delaying proceedings to hear the Crown’s full case before committing to its own.
Despite the objections, Justice Makhetha ruled in favour of the defence yesterday, saying the application was in the interests of justice.
“I find it to be in the interest of justice that the accused be given an opportunity to complete their cross-examination and present their defence, including the expert evidence,” she said.
She stressed that while the trial must proceed smoothly, it should not come at the expense of a fair hearing.
“The goal is to ensure a fair trial and a proper testing of all evidence before the court,” she said.
The court ordered that cross-examination of Sgt Mahanetsa be deferred to 26 May 2026, to allow time for the expert report to be prepared.
The report must be ready at the start of the next court sitting in May and shared with the Crown two weeks before the hearing.
In the interim, Sgt Shaabe Thamae will return to the witness stand for the continuation of his cross-examination.
Sgt Mahanetsa has been excused until he is recalled by the court.
