The evidence produced by an 11-year-old boy, who testified in the trial against his mother, Noluthando Nomavayi, who is accused of burning his younger brother to death, may be set aside, said Judge Vincent Saldanha in the Cape High Court today.
Judge Saldanha said the boy "was never ready to testify" and when he eventually did so, he was traumatized and broke down twice in court, thus there was the possibility of his evidence being put aside because "he was emotional" and did not answer all questions put to him during cross-examination.
The child testified in open court while his mother, who is out on bail and to whom he returned after being placed in foster care, stood in the dock.
His 32-year-old mother, Nomavayi, stand accused of throwing paraffin on him and his deceased nine-year-old brother with the intention of setting them alight as punishment after being caught smoking cigarettes.
The elder boy managed to run away before she struck a match but his brother, Aphelele Nomavayi, died in hospital on July 18 after suffering 70% burns to his body on 31 May, 2011.
"He was asked to testify against his mother," said Saldanha, adding that although the boy was placed in a foster care by social workers, he ran away and returned to his mother.
"In all cases that come before the court they (witnesses) go through an extensive court preparation" said Saldanha, but this had not happened in Mnikeli's case.
"This witness was not psychologically ready to testify," he said.
But defense advocate Thabo Nogemane asked that 11-year-old Mnikeli Nomavayi's evidence "not be entirely rejected" because he was present when his deceased brother Aphelele ran out the house burning.
Nogemane has asked presiding Judge Saldanha to acquit his client as there was no evidence suggesting she was responsible for setting her child alight, as there was not a single witness that could testify to it.
"There is no evidence (suggesting) how the victim got burnt. Why would the accused kill her own children?" asked Nogemane, in which Saldanha replied: "She was angry and in that anger something happened."
"We know she beat the children. She was angry and Mnikeli ran outside and a few minutes later his brother came out in flames," said Saldanha, before adding that Nomavayi should have explained how her child caught alight.
During earlier proceedings Noluthando Dubase, a neighbour to the accused, testified that she was the first person to see Aphelele after he was burnt. Dubase had testified that she saw Aphelele being dragged down the road by the accused and she intervened, alerted neighbours and called the emergency services.
The trial continues today.