Victory For Fred Van Der Vyver

[Big Wullie]

http://www.iol.co.za/capeargus/van-der- ... -1.1117819

http://www.news24.com/SouthAfrica/News/ ... l-20101208

Van der Vyver wins civil claim
August 15 2011 at 01:25pm


FATIMA SCHROEDER

High Court Writer

MORE than four years after being acquitted of the murder of his girlfriend, actuarial assistant Fred van der Vyver has won the civil action he had instituted against the Minister of Police.

This morning the Western Cape High Court found that there was no evidence to indicate that Van der Vyver had killed Stellenbosch University student Inge Lotz in 2005.

In his judgment, Judge Anton Veldhuizen virtually tore apart every ground investigators had provided the prosecution.

The court decided only on the merits of the case and was not asked to decide the amount of damages the minister would have to pay Van der Vyver, who has claimed R46 million.

Unless a settlement is reached, the matter will have to return to court for a decision on the amount. The minister could also appeal the High Court’s decision on the merits.

Lotz was beaten to death with a hammer and stabbed in her Stellenbosch flat in March 2005.

Van der Vyver was tried for the murder and in 2007, Judge Deon van Zyl acquitted him, criticising the police investigation.

Van der Vyver later lodged the civil claim and in it he said the police had acted maliciously and deliberately deceived the prosecution by feeding it false information.

Much of the criminal trial focused on a fingerprint said to be found on a DVD cover in Lotz’s flat which police linked to Van der Vyver. Lotz had rented the DVD at about 3pm on the day she was killed.

The defence, however, claimed that the fingerprint had been fabricated, and consulted experts to prove that it had been lifted from a glass, and not a DVD cover.

During the civil action, Van der Vyver’s legal team called Dutch fingerprint expert Arrie Zeelenberg as a witness.

He took the court through the fingerprint to prove his firm belief that it had been lifted from a glass and not a DVD cover.

This morning Judge Veldhuizen said Zeelenberg’s opinion was founded and that the court chose his over that of the witnesses who testified on behalf of the minister.

“In my opinion, it is clear that the fingerprint on (the folien) was lifted from a drinking glass and not a DVD holder,” he said.

Regarding the evidence of Constable Elton Swartz, the officer who had lifted the fingerprint in the flat, he |said there was no doubt that Swart had been negligent and |reckless.

However, it would not be fair to say that he had lied or that he had acted with a desire to offend.

One of the crucial pieces of evidence the State had used against Van der Vyver was a bloodied shoe print found near the basin in the bathroom in Lotz’s flat.

Then-police superintendent Bruce Bartholomew linked it to a squash shoe police had confiscated from Van der Vyver on the basis of sand grains in the grooves of the heel of the shoe.

However, no one in the police agreed with his opinion.

Bartholomew then travelled to America to consult with top shoeprint identification expert William Bodziak.

Bodziak, however, also did not agree with him, saying that the grains of sand had been pushed too deep into the grooves of the shoe’s sole to make an impression if the person wearing the shoe had stepped in blood.

However, Bartholomew returned to South Africa and told his colleagues and the director of public prosecutions that Bodziak had supported his opinion.

This led to a statement being compiled.

fatima.schroeder@inl.co.za

[Big Wullie]

Prosecution Malicious Says Judge

http://www.capetimes.co.za/van-der-vyve ... -1.1118058

The prosecution of former Stellenbosch student Fred van der Vyver for the murder of fellow student Inge Lotz was malicious, the Western Cape High Court ruled on Monday.

Judge Anton Veldhuizen, who presided in the R46 million damages action, said the amount claimable still had to be determined in further high court proceedings next year.

Veldhuizen said Lotz's body was found on a bench in the lounge of her Stellenbosch apartment in March 2005. She had serious head injuries, inflicted with a blunt object, and stab wounds to her chest.

He said Van der Vyver, with whom she had had a serious romantic relationship, was arrested for the murder three months later, and released on R10,000 bail.

Numerous requests from Van der Vyver's defence team for the prosecution to be abandoned, were rejected.

Van der Vyver was found not guilty by Judge Deon van Zyl and two assessors after a trial that lasted nine months.

In order to succeed with a claim for malicious prosecution, Van der Vyver's legal team had to prove four elements.

These were that the police instigated the proceedings, that investigators acted without reasonable and probable cause, that they acted with malice, and that the prosecution failed.

Veldhuizen said malice meant those involved in the investigation must have foreseen the possibility of an acquittal, but continued with the investigation against Van der Vyver nevertheless. Malice meant more than mere negligence, or even gross negligence, he said.

Veldhuizen said the decision to prosecute Van der Vyver was based on the opinion of an expert involved in the investigation, and that this was “not worth the paper that it was written on”.

Without this opinion, the prosecuting authorities would have realised there was no valid case against Van der Vyver, and would not have proceeded with the case.

He was satisfied, on a balance of probablilties, that the prosecution should never have taken place, and that the police ministry was liable for the damage caused to Van der Vyver. - Sapa
______________________________________________________

Anyone who reads these forums could have told them this without the need for an expensive hearing.

[Lizette]

Congratulations to the Van Der Vyver Family. This has been a long time coming.

Perhaps now SAPS can start to focus on the necessary - finding the actual murderer.

[Pat]

First, I note that although the court has now vindicated Mr. Van der Vyver twice (once with a not guilty verdict and once with the finding of malicious prosecution), no amount of damages will even be considered until next year. His trial for murder was in 2007. Am I the only one who perceives an unacceptably long delay in trying to settle the injustices done to him and his family?

Second, I concur with Lizette that it should be a top priority to find Inge Lotz's murderer. However, that should have been obvious the day the not guilty verdict was pronounced in 2007. Here we are four years later and the file is still closed on the case. Do not be shocked if it is never reopened.

Third, unless a serious internal investigation is undertaken to get to the root cause of the police malfeasance and correct the flaws in the system that allowed this case to go so awry, it would be naive to think it will never happen again.

Settle with the Van der Vyver family. Conduct a serious investigation into Inge's murder for her sake and the sake of her parents. Clean house at SAPS. Too much to ask?

[Big Wullie]

Pat

Am I the only one who perceives an unacceptably long delay in trying to settle the injustices done to him and his family?

We see this happen with many miscarriages and I firmly believe it is done in the hope people will give up and others will forget.

We only need look to the McKie enquiry.

I also believe the investigastion should now focus on finding the real murderer who remains at large till his next victim.

There is no amount of money in the world that will ever be able to compensate for what both families have been through.

[Iain McKie]

Wonderful news and a massive victory for justice over government deceit.

For years Fred and Louis Van der Vyver and their family faced the might of the South African prosecution system with courage and forbearance and, despite the odds being heavily stacked against them, prevailed.

As with Shirley it was the experts themselves who stood up to be counted and made this victory possible. Yet again Pat Wertheim and Arie Zeelenberg stepped forward despite the serious threats and allegations thrown at them by a desperate and unprincipled prosecution.

As I stated in a previous posting:

‘As Arie and Pat, David Grieve, Allan Bayle, Gary Dempster and others have shown in my daughter’s case, where injustice is threatened there are always experts of integrity and principle who are prepared to challenge their colleagues.

It is very re-assuring to know that when experts get it wrong, either through genuine error, incompetence or a criminal act the profession itself, or at least individuals within it, are prepared to stand up to be counted. For me this is the surest sign that your science is in robust good health. Thankfully it is well able to withstand the current challenges and retain its place as an invaluable aid to crime detection and prevention.’

My sincere congratulations to everyone involved and I hope that the brutal murder of Inge Lotz will now be honestly investigated and justice achieved for her grieving family.

[Big Wullie]

So Much For The Victory.

Fred and Louis Van Der Vyver Will Be Lucky To Get Any Compensation.

http://dailymaverick.co.za/article/2011 ... e-ever-pay

Van der Vyver wins civil claim, but would the police ever pay?

Former murder-accused, Fred van der Vyver got the green light from the courts to bring a R46 million claim against the police for malicious prosecution, but he might just be wasting his time. With the police’s track record of damages payment, there’s every chance that he will never see the money.

CARIEN DU PLESSIS reports.

It was an emotional end to six years of court battles after Fred van der Vyver, now an actuarial assistant, was accused of murdering his girlfriend and fellow Stellenbosch student at the time, Inge Lotz.

Four years ago, he was acquitted of the murder, and on Monday, Cape High Court Judge Anton Veldhuizen found that there was no evidence to indicate that Van der Vyver had killed her. Veldhuizen ruled that Van der Vyver could continue with his civil claim against the police.

Another process will now have to start next year to determine how much of the R46 million he’s claiming he is entitled to.

But he might have to wait a while, as police ministry spokesman Zweli Mnisi said the police’s lawyers were studying the judgement and are likely to appeal – something which has become something of a reflex reaction for the police in civil cases, and the SA government as a whole.

Even if Van der Vyver holds out for another couple of years, pushes through, fights the appeal and gets an award (which would include his legal costs), the police has a very bad track record of actually paying up.

DA police spokeswoman Dianne Kohler-Barnard said the police’s legal services “have been dysfunctional for years”.

She had been waging a campaign against the former head of legal services, Lindiwe Mtimkulu, who was suspended last year after an R8 million investigation found gross mismanagement of the police litigation services under her watch.

Kohler-Barnard said the problems remained and the police was more likely to fight court cases than actually conceding when they were wrong and pay up.

“Your chances of being paid out by the police are very low,” she said.

Kohler-Barnard said the best way to go about claims against the police is to approach the Independent Complaints Directorate to sue the police on your behalf.

While this is not the usual procedure in a case like Van der Vyver’s, it is technically possible.

The police investigation itself was also a “shambles”, forensics expert David Klatzow told Daily Maverick.

He said police laboratories have been in steady decline, making it almost impossible for police to back up cases with evidence.

Klatzow said there were many cases like Van der Vyver’s coming before the courts now, because of this decline.

“The labs are on the edge of collapse, and now you are starting to see the effect of this in open court.”

Van der Vyver’s was a high profile case, but Klatzow said he was dealing with another case where the accused had been in prison for 12 years while the police was trying to prove a case on fractured evidence.

Klatzow said the problem was also that incompetent people were appointed in the police and labs. “Political interference in the appointment of police staff is a problem.”

He reckons Van der Vyver’s case against the police was good. “Police are planning to appeal an unappealable case. They should just bow out and pay the price for it”. DM

[Louis van der Vyver]

From the article above:

“Police are planning to appeal an unappealable case."

And that is indeed what happened!

After we won the merit-part of the civil claim, The Minister of Police applied for leave to appeal but that was turned down by Judge Veldhuizen during September expressing the opinion that he did not believe that any other court will come to a different decision.

The Minister of Police then petitioned the Appeal court for leave to appeal, a normal process in our system, and this application for leave to appeal was granted about a week ago.

This protracts the whole process by at least another year.

We thank all involved, once again. I would like to mention the names of all our overseas experts who assisted through professional services of the highest quality one could ever expect to find anywhere, in alphabetical order: William (Bill) Bodziak, Mike Grimm, Paul Ryder (UK), Pat Wertheim, Arie Zeelenberg (Netherlands). We thank and salute you as much for what you did for us as for what you did for your professions and for science.

And also a word of thanks for to all of you who supported us in any other way, even if just being interested in the case.

[Pat]

I am disgusted, but not surprised, at the continuing delays in settling Fred's case and reopening the investigation into Inge's murder. It is terribly reminiscent of the murder of Marion Ross in 1997 and the subsequent case of Shirley McKie. In that case, the fingerprint misattributed to Shirley McKie resulted in her arrest and trial for perjury in 1999, not to mention the arrest and trial of David Asbury in 1997 for the murder also based on a fingerprint misattribution. That case is still not settled, with a promised report of the Inquiry supposedly scheduled for release in another month -- almost fifteen years from the date of the original murder. Among the many travesties in that case is the sad fact that the murder investigation has never been reopened.

Inge Lotz was murdered in 2007, ten years after Marion Ross. The South African Police and politicians seem determined to apply the same delaying tactics as the Scottish Criminal Records Office and the Scottish politicians have been applying for fifteen years. I hope that does not portend another ten years for the Van der Vyver family to have to fight this battle, nor the permanent closing of Inge's murder investigation for the Lotz family to endure. But at this point, what other conclusion can be drawn?

My condolences go out to the Lotzes and the Van der Vyvers. Both families, and the South African public in general, deserve better than the fabrications and delaying tactics by police that have been the hallmark of this case almost from the very day Inge was murdered.
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CORRECTIONS: First edited after posting, per correction Louis makes below: Thank you, Louis, for correcting my slip on the date of Inge's murder. I should never post until after the coffee is brewed and I've had my first cup for the morning. That's my story and I'm sticking to it. Second editing after rereading the first editing and realizing I made a mistake on the date in Marion Ross's murder, too. Gotta have that first cup of coffee before posting or the snafus will eat you up. Third editing to correct spelling. Darn!

[Louis van der Vyver]

Hi Pat,

Your support, as mentioned has been nothing but the best, so too you professional inputs into this case. Thank You.

Inge was in fact murdered on March 16, 2005 - not 2007 - So even two more years ago. ( I accept that was just a slip of the finger!) The time frames of our system, as Dup explained to me, will get us in the Bloemfontein Appeal court during the last term of 2012 - at the very soonest. If we are successful there once again, we have to apply for yet another Cape High Court date for the quantum part of the case would probably at the soonest be first term 2013! That will be 8 years after the incident.

[Iain McKie]

Dear Louis,

I would associate myself 100% with Pat's comments.

The evil that was perpetrated by the authorities in prosecuting Fred is now to be cynically re-enforced by the police, prosecuting authorities and insurance companies whose default position is never admit to anything but delay to the bitter end. By then they hope that the enormous physical, emotional, psychological and financial pressures that organically arise from fighting injustice will have destroyed the victims and their families and forced them into despair and submission.

All I would say almost 15 years down the road from the brutal murder of Marion Ross and the institutional ‘rape’ of my daughter and David Asbury that we have fought the good fight with the support of good people like Pat and others too numerous to mention. While the findings of the Inquiry Report are important the experience of working with these wonderful people has been a meaningful experience in itself. It has kept my faith in humanity and the human spirit fresh and alive and safe from the ‘dead hand’ of a faceless justice system without conscience or humanity.

Good luck to Fred, you and the family. You are all in my thoughts and I hope that someone somewhere has the courage and integrity to bring this evil to an end.

Best wishes,

Iain