The State relied on speculation, hearsay and a “haphazard” police investigation when it applied to have alleged wife killer Rob Packham’s bail cancelled, the Western Cape High Court heard on Tuesday.
“The State did not prove that the respondent was in fact in breach of his bail conditions,” he told Judge Elizabeth Baartman.
The court should never have made an order that his client tried to contact a woman he had an affair with for three years, via a friend, using text and a “snail mail” letter, Mathewson said. Packham has denied that he was the author of the communications in question.
His denials could not be said to be so far-fetched or untenable that a court was justified in rejecting them, said Mathewson.
Susan Galloway, for the State, said the court correctly found that Packham was the author.
She said he breached his bail conditions by using an electronic device.
Mathewson pointed out that the State did not have proof of who authored the communications and relied on what was “essentially speculation by its witnesses”.
“I must ask the court to consider the haphazard way this specific incident was investigated by the police, who had never taken time to obtain devices, never taken time to obtain communications, correspondence et cetera, et cetera.
“All of that is purely hearsay on hearsay.”
Packham, who has been in custody at Pollsmoor prison since December, was not present in court.
He faces two charges: murder and defeating or obstructing the administration of justice.
His wife, Gill Packham, disappeared on February 22 last year and her body was later found in the boot of her burnt out car at Diep River train station in Cape Town.
His trial is expected to start next month.
The accused was initially granted R50 000 bail, with conditions, after his arrest.
His bail was increased to R75 000 with more stringent conditions after he was rearrested for contacting State witnesses, including a woman with whom he had been having an extramarital affair.
These stringent conditions included remaining under house arrest and giving up all his electronic devices.
In December, he was rearrested because the State alleged he was moving freely while under house arrest and had made contact with his ex-mistress and her friend.
They may not be named in terms of a court order.
The defence argued that cancelling his bail was too heavy-handed given the type of perceived breach and benevolent tone of the communication.
Galloway conceded that normally, a person’s failure to comply with this specific condition of bail may not appear to be serious.
She countered, however, that the decision to cancel bail should not be seen in isolation but within the context of events since his initial arrest.
The State was of the view that he had consistently, and after being warned not to do so, acted in intentional breach of his conditions.
“It is my submission that there is no sound, rational basis to support the conclusion that there are reasonable grounds of appeal,” she concluded.
Baartman said she understood the urgency of the application but needed to consider the issue.