Ruling by Magistrate Sharon Marks in the case of State v Limpaphi and 11 Others ('Kennedy 12'), Durban, July 18 2011:
JUDGMENT ON APPLICATION
COURT: This is an application for a discharge in terms of section 174 of the Criminal Procedure Act. The only test to be decided at this stage is whether a reasonable Court might convict the accused to determine whether they should be placed on their defence or not.
Pre 1994 the Court was also entitled to take into account that the defence case might even supplement the State's case. Post 1994 that is not the decision. It is quite simple, whether a reasonable Court might convict the accused on the available evidence.
Moreover although none of the accused in their defence have testified as yet, the Court is fully aware of the defence of all the accused and that is that there must be identification. At the end of the day that is the only issue in this case because it is quite clear that the State has proved the elements of the offences that took place on this night in question.
The evidence is quite clear that there was trouble brewing in Kennedy Road informal settlement. Different groups of people were dissatisfied with other groups of people who were ruling the roost so to speak and after meetings were called it culminated in a rampage that took place on the night in question.
Different groups of people went on the rampage, there was public violence where people were injured extremely seriously. Properties were damaged. Offences such as murder and attempted murders took place. There is no doubt in the Court's mind that at the end of the day the point in issue would be identification of the perpetrators.
Now where the State has led the evidence of witnesses whose evidence relates to identification, in a trial the field of identification is always a field where error looms large and the Court has to approach the evidence of all those witnesses with extreme caution.
At the end of the day it is not even enough that the witnesses are honest but the reliability of the observation and identification must always be tested. As far as all the witnesses who have testified as far as identification is concerned, and I am not even going to name them and pinpoint which one in particular, because generally they can all be described as the same, none of them came across as satisfactory witnesses.
Their demeanour in the witness stand was shocking and belligerent. Be that as it may, because demeanour is a tricky horse to ride when evaluating the evidence of witnesses, they contradicted themselves in their prior police statements which was inconsistent with their evidence they gave in chief or whilst being cross-examined by the defence and seemed to contradict each other as well.
None of them came across as satisfactory witnesses. There are numerous contradictions and discrepancies riddled in the State's case. What also concerns me is the so called identification parades that were held. At this point in time after hearing all the evidence
I am still in doubt as to whether the people doing the identification were told to point out the perpetrators or to point out members of a dance group as some of the witnesses have told the Court that they pointed out the so called perpetrators who they think committed this offence, while others have quite categorically told the Court that they were told to point out members of the dance group, which they did.
What is extremely upsetting in this matter is that these were serious counts. People had lost their lives in a vicious attack upon their persons. It is unfortunate as well that because there is so much bad blood existing in the Kennedy Road informal settlement shacks, not only between different political affiliations, but different cultures as well, that there is so much animosity between all the groups, that at the end of the day the Court does not know where the truth lies.
Unfortunately as well, the evidence relating to identification is completely unreliable. Not only has a cautionary rule not been satisfied but the Court is also suspicious about the truthfulness of the identification as well.
In the premise no reasonable Court would convict the accused on the available evidence before me and I have no option but to grant the application in terms of section 174 of the Criminal Procedure Act.
ACCORDINGLY ALL THE ACCUSED ARE ACQUITTED AND DISCHARGED IN RESPECT OF ALL COUNTS.
For further material on the case see the Socio-Economic Rights Institute of South Africa (SERI)
Click here to sign up to receive our free daily headline email newsletter