Anene accused fights for rights

ADVERSE findings on his decision not to testify in his own defence formed the centre of a new challenge that Johannes Kana, the man convicted of the rape and murder of Bredasdorp teenager Anene Booysen, took to court this week.

In fact, he is so determined to challenge the findings that he has instructed his lawyer, Pieter du Toit, to take the matter all the way to the Constitutional Court if necessary.

Du Toit told Western Cape High Court Judge Patricia Goliath yesterday that it is Kana’s case that, when he decided not to testify in his trial, he was exercising his right to remain silent.

The fact that the decision counted against him deprived him of that right, Du Toit said.

He was addressing the court in an application Kana lodged for leave to appeal against his rape and murder convictions.

State advocate Maria Marshall responded that the issue on an accused exercising his right to remain silent had already been dealt with by the courts. She submitted that there was no prospect of another court coming to a different conclusion.

In October, Kana was convicted of the murder and rape of the 17-year-old. He was later sentenced to two life terms in jail, to be served concurrently.

Booysen was raped, assaulted, disembowelled and left for dead during the early hours of February 2. While Kana admitted to raping and assaulting Booysen, he denied that he had disembowelled her, claiming there were no open wounds when he left. However, he did not testify during the trial, and Judge Goliath found that this failure weakened the defence’s attempts to prove his innocence.

“The accused is the only one that could have provided the court with information about what happened that night. While he exercised his right not to testify, it did not come without consequence,” she said at the time.

Now Kana wants to challenge her findings on appeal. However, he needs to obtain leave to take the case further.

Judge Goliath said there was no doubt that Kana had committed the rape and the murder. She refused the application.

Du Toit said he had instructions to petition the Supreme Court of Appeal for leave to appeal.