In the months leading up to the case of State vs Fred Barend van der Vyver (SS 190/06) (“Fred”), the State formally requested Senior Supt Roger Dixon (“Dixon”), a Control Forensic Analyst at the Scientific Analysis Unit of the Forensic Science Laboratory in Pretoria to examine a fingerprint lift (aka Folien 1) in order to determine whether it was lifted from a DVD cover or from a drinking glass.
Folien #1 was one of eleven fingerprint lifts taken by the police in the flat where Inge Lotz, Fred van der Vyver’s girlfriend, was murdered. According to the affidavits and court testimony of Constable Elton Swartz, the officer that did the fingerprint lifting, Folien #1 was lifted from a DVD cover that was found on a coffee table next to the couch on which the victim was killed. The DVD cover belonged to The Video Place – a video rental store close to the victim’s flat.
On 12 April 2005 a fingerprint on Folien #1 was matched to the left index fingerprint of Fred van der Vyver. That the police made a correct match in this instance has never been disputed by anyone, including internationally renowned fingerprint experts hired by the defence.
On 13 April 2005 the police found that the victim rented the DVD at 15:07 on 16 March 2005 – only a few hours before her murder. If Folien #1 was lifted from the DVD, as the police alleged, it means that Fred van der Vyver must have been with Inge, or at least in Stellenbosch, close to the time of her death. Fred van der Vyver vehemently denies that he has been in Stellenbosch or with the victim that afternoon, and claims that he was at his work at Old Mutual in Pinelands, Cape Town about 45 km away.
On the basis of this fingerprint evidence and some other circumstantial evidence the police arrested Fred van der Vyver and charged him with the murder of Inge Lotz.
In late 2005 the defence hired a retired police officer and fingerprint expert Daan Bekker to investigate Folien #1 – not to dispute the fingerprint linked to Fred van Der Vyver but rather the surface (substrate) from which Folien #1 was lifted. Daan Bekker was the first expert to raise the possibility that Folien #1 was not lifted from a DVD cover but rather from a drinking glass. As Fred has been in Inge’s flat several times his fingerprint on a drinking glass would not implicate him in the same way as a print from the DVD cover did.
In response to the Bekker report the State and Defence jointly decided to ask an independent police expert, with no knowledge of the case, to investigate Folien #1 in light of Daan Bekker’s findings. They selected Director Ruben Botha from the LCRC in King William’s Town to do this investigation. Botha’s report concluded that the Folien #1 was in all likelihood lifted from a DVD cover.
Then the Defence retained Pat Wertheim, an internationally renowned fingerprinting expert from the United States to investigate Folien #1 in light of the findings of Daan Bekker and Dir Ruben Botha. Wertheim also conducted several experiments with DVD’s and drinking glasses and came to the conclusion that Folien #1 was lifted from a drinking glass and not from a DVD cover. He went on to allege that the police purposefully mislabelled a lift from a drinking glass to be from a DVD cover – in order “to frame Fred van der Vyver for the murder of Inge Lotz”.
It was in response to the Wertheim report that the State (themselves) requested the help of Dixon to investigate Folien #1 to determine whether it came from a DVD cover or from a drinking glass.
Dixon started his investigation on 5 December 2006 at the offices of the LCRC in Paarl, Western Cape. With the assistance of Captain van der Westhuizen he conducted tests on various DVD covers and a total of 11 drinking glasses. The various DVD covers, which included the actual cover purportedly rented by Inge, and 11 drinking glasses, purportedly collected from the victim’s flat, were provided to Dixon by Van der Westhuizen.
The tests basically involved planting fingerprints and marks on the DVD covers and drinking glasses and then dusting them with aluminum powder, before using foliens to take a lift from each object. For some objects the test was repeated after they were cleaned with ethanol (DVD’s) or soap and water (drinking glasses).
Then through a process that ‘required skills in image analysis and comparison’ Dixon compared the different test lifts with Folien #1 and came to the ultimate conclusion that in his opinion Folien #1 was not lifted from a DVD but instead from one of four glasses found in Inge’s flat. Dixon’s final conclusion, verbatim:
In my opinion the back folien described in paragraph 188.8.131.52 was not “lifted from a DVD” but instead from one of the four glasses described in paragraph 6.4. The features observed on the folien match test lifts made from the glasses, and not those made from the DVD covers.
Dixon reported his results in a signed affidavit, dated 12 December 2006, in terms of Section 212 of the Criminal Procedure Act 1977 ( Act 51 of 1977).
This affidavit compelled the Adv Rodney De Kock, the Director of Public Prosecutions to, on 13 December 2006, send a letter to the Adv Dup de Bruyn, Fred’s defence lawyer, in which he stated:
I hereby confirm that the State no longer intends to proceed with evidence concerning your client’s alleged fingerprint on the DVD holder.
On the first day of the trial against Fred, 12 February 2007, his Plea Explanation, in terms of Article 115(2), was read out in court. Attachment 3 of the Plea Explanation was Dixon’s Section 212 Affidavit.
This affidavit was accepted as prima facie evidence in Court. Dixon was not called to testify. Therefore, in terms of Veldhuizen 1982 (3) SA 413 (A), the Court was therefore compelled to accept that prima facie proof has been presented that Folien #1 was lifted from a very specific drinking glass found in Inge’s flat and not from a DVD holder.