Pieces of carpet allegedly stained with Willem de Klerk’s semen and found in his mother Marike’s flat are the focus of a bitter legal battle in the Cape High Court.
The prosecution in the Marike murder trial has refused to give samples of the carpet to the DNA expert helping the defence team of Luyanda Mboniswa, the security guard accused of killing the former first lady.
Mboniswa’s lawyers have now filed an application with Judge-President John Hlophe to force the state to hand over these and other DNA-related exhibits.
The state has indicated it will oppose this application and will also ask the court to bar the media from being present when the application is heard.
On Wednesday, the leader of Mboniswa’s legal team, Pat Gamble SC, said he had been told the state had a "fundamental opposition in law" to the defence’s application.
The Directorate of Public Prosecutions is briefing private counsel to argue the matter on its behalf. An unofficial warning has also been issued to the Cape Argus.
On Wednesday a senior member of the prosecution told the paper to "be careful in publishing details of this application". She said Willem de Klerk was "sick and tired" of the rumours around his mother’s death.
Mboniswa, 22, a former security guard at the Dolphin Beach complex in Table View, Cape Town, where Marike de Klerk lived, is alleged to have broken into her flat on the night of Sunday, December 2, and raped and murdered her before taking her cellphone, cash and two pocket torches.
Earlier, the defence obtained an order for, among other things, a hair sample found in the flat and a toilet mat from the guest bathroom to be handed over to its own DNA expert. This has not yet happened.
In its application on Wednesday, the defence asked for this order to be enforced, and for another order forcing police forensic experts to hand over three pieces of semen-stained carpet from the flat.
In an affidavit supporting the application, Mboniswa says the semen stains "relate to Willem de Klerk".
In papers, the defence says its DNA expert, Munro Marx, was told the toilet mat "was not available for delivery" to him. When he wrote to the police forensics laboratory in Cape Town, he was told to collect the samples in Pretoria.
Mboniswa said in his affidavit that the state was contravening a court order and that the limited funds on which he had hired a DNA expert would not cover Marx’s travel expenses to Pretoria.
The state is refusing to hand over three samples of semen-stained carpet, saying they were not covered by the first court order.
Mboniswa said in papers: "The police have refused to hand over the samples without a court order and it is accordingly necessary to request this court to grant an order in that regard."
In another twist, the prosecution has refused to hand over the DNA found on two yellow gloves which the state alleges belong to Mboniswa.
It is also refusing to hand over copies of all fingerprints or palmprints found on the crime scene, in De Klerk’s Mercedes-Benz and on the yellow gloves, and Mboniswa’s lawyers are asking for the court to order this. The trial continues on Monday.