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Panayiotou Trial: Defence's challenge on use of cellphone plotting thrown out

Panayiotou Trial: Defence's challenge on use of cellphone plotting thrown out

The murder trial of disgraced Port Elizabeth businessman, Christopher Panayiotou, and his alleged accomplices, Sinethemba Nenembe and Zolani Sibeko, resumed in the Port Elizabeth High Court on Monday.

The trio are accused of conspiring and subsequently murdering Panayiotou's wife, Jayde, in April 2015, and trying to make it look like a robbery gone bad.

Proceedings began with Judge Dalayin Chetty handing down his ruling on Defence lawyer, Peter Daubermann’s application, which challenged the manner in which the State gathered cellphone evidence which is being used in the trial.

According to cellphone data obtained by Port Elizabeth police - including cellphone plotting, Nenembe and Sibeko, where outside the Panayiotous' residence in Kabega Park with alleged hitman, Sizwezakhe Vumazonke, when Jayde was abducted.

Vumazonke died last year after falling ill while in police custody at St Albans Prison.

The Defence argued that under Section 15 (4) of the Electronics and Communications Act, it is unconstitutional for the State to have gathered its evidence by basically illegally obtaining Nenembe and Sibeko's cellphone data.

At the start of proceedings on Monday, State Prosecutor, Marius Stander, however told the court that he had taken time over the long weekend to do some more research on Daubermann’s claim on the unconstitutionality of the way the evidence was gathered. He argued that there was no evidence he could find that supported this claim.

After a short adjournment, Judge Chetty returned and dismissed Daubermann’s application to have the cellphone data be declared illegal.

Daubermann rose again though, with a new argument that the way in which the State had obtained the cellphone records was illegal and based his argument on Section 205 of the Criminal Procedures act.

He claimed that by obtaining evidence against his clients in such a way, it was a direct violation of their privacy. He further pointed out that the subsection does not authorise anyone to divulge information which is prohibited from law - even in court.

Daubermann then referred to the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), where he said states that no cellphone provider may provide their subscriber/s personal info, except only to the client.

“According to RICA, the cell phone records were illegally obtained as they have a legal right to privacy,” he argued.

Stander responded by pointing out that the Electronic Communications and Transactions Act (ECTA) allowed for the manner in which the evidence was gathered.

When all arguments were heard,  Judge Chetty asked for another adjournment whereafter he would give his judgement on the second application.

After the adjournment, the Judge ruled in favour of the State and dismissed Daubermann’s application once again.

The trial continues.