In 2016, farm foremen Willem Oosthuizen and Theo Jackson of Middelburg were arrested after a video they made of themselves forcing Victor Mlotshwa into a coffin, and threatening to set him alight or to put a snake into the coffin, went viral.
They were convicted of attempting to murder, and of kidnapping, assaulting and intimidating, Mlotshwa. They were also convicted of assaulting Delton Sithole in a separate incident on the same day in August 2016.
Jackson was also convicted of defeating the ends of justice by burning the coffin after the incident.
The pair claimed they only wanted to frighten Mlotshwa for stealing copper cables, but Mlotshwa said he was attacked for no reason while waiting to hitchhike to town.
The trial court judge, Judge Segopotje Mphahlele, described their crimes as “appalling, disgusting and dehumanising”.
Consequently the judge sentenced them to a total of 16 and 19 years respectively. Neither Oosthuizen nor Jackson had any prior record.
Judge Mphahlele found that any mitigating circumstances were far outweighed by the seriousness of their actions.
The judge also refused the men’s application for leave to appeal on the grounds that there were no reasonable prospects of success and there was no other compelling reason why an appeal should be heard.
From the outset, the case became the subject of a public and media frenzy, with the Economic Freedom Fighters (EFF) organising protests which carried on throughout the trial. The rhetoric was often anti-white without specific reference to the accused.
The IRR believed at the time that, although Oosthuizen and Jackson had committed crimes which warranted convictions, the finding of attempted murder was wrong, and that the length of the sentences was bizarre.
Subsequently, having granted the convicted men leave to appeal, the (SCA) excoriated the trial judge, finding that it was clear from the judgment that the judge had failed to apply the cautionary rule that applies to the evidence of single witnesses.
Given the many improbabilities and contradictions in Mlotshwa’s and Sithole’s accounts, she should not have accepted their evidence because it could not be said to have been satisfactory in all material respects.
The trial court’s approach to the evidence was found to be arbitrary. For example, the court accepted that there was insufficient evidence regarding an instrument which was referred to as ‘a firearm’, but accepted the evidence of Mlotshwa and Sithole despite its inadequacy.
Despite the judge setting out the evidence in great detail, the SCA said that there was nothing to suggest that it was properly evaluated. The judge had not had regard at all times for the onus on the state to prove the case beyond a reasonable doubt.
Mlotshwa and Sithole alleged that their respective incidents took place on 17 August 2016. The appellants’ evidence was that there was only one incident, that it involved Mlotshwa and occurred on 7 September 2016. While the trial court alluded to the dispute about the date, it didn’t make any finding on it. “This was significant as it has a bearing on probabilities,” according to the SCA.
The SCA held: “The court’s approach in assessing evidence in a criminal case is to weigh up all the elements that point towards the guilt of the accused against all those that are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt.”
The trial court had not considered the merits and demerits, discrepancies and contradictions in the respective versions of the complainants, especially as they were single witnesses.
Given Mlotshwas’s and Sithole’s many improbabilities, the contradictions in their own evidence and the objective facts, the trial court had erred in accepting the evidence of Sithole as proof that the appellants had assaulted him.
In addition, the trial court’s approach to finding the State’s witnesses credible was wrong in light of the contradictions and improbabilities, the SCA said. The court should have determined Sithole’s matter on the version of the appellants. The video recordings and photographs corroborated their version.
On their own evidence, the appellants unlawfully kidnapped Mlotshwa, committed assault with intent to do grievous bodily harm and defeated the ends of justice. These findings were confirmed. The convictions in respect of all the other offences were set aside.
In mitigation, the SCA considered that both appellants were first offenders. In
aggravation was the failure by the appellants to acknowledge that what they did to Mlotshwa was “very serious and humiliating”. Whether Mlotshwa committed an offence was irrelevant “as no one is entitled to take the law into his own hands”.
The SCA also stated: “The appellants grew up in the so-called ‘New South Africa’, post 1994, where people are supposed to live harmoniously together. They grew up in a South Africa where no one race should be dominant over another.”
Life in South Africa is much harsher than that: the racial tension emanating from those in power has had the effect of changing power relations, but not in a way that is conducive to racial harmony.
The belief, rightly or wrongly, that Mlotshwa had stolen copper wire also reflects a real and harsh reality of the new South Africa.
For the SCA, the most disturbing part – arguably a sign of arrogance and stupidity – was that the appellants videoed their “sadistic actions” and then (even more arrogantly and stupidly) shared it.
The SCA said: “The monstrous actions of the appellants need to be condemned in the strongest terms possible.” In this respect we would argue that the SCA’s view was somewhat excessive.
The rationale of sentencing, namely, deterrence, retribution and rehabilitation was also considered. The fact that the crimes committed also infringed the constitutional rights of the complainant compounded the seriousness of the offences.
The appellants never expressed remorse or publicly apologised to Mlotshwa. The appellants never accepted responsibility for their actions. This, the SCA held, impacts on their prospects of rehabilitation.
The SCA substituted the sentences to one year for kidnapping, five years for assault with intent to do grievous bodily harm, and one year for defeating the ends of justice. The sentences are to run concurrently. The result is an effective five years imprisonment for both men.
The scathing views by the SCA of the analysis of the evidence by Judge Mphahlele demonstrate either considerable incompetence on her part or her having been unduly swayed by what was happening outside the court. Either way, her performance was unprofessional.
It is suggested that the fact of the infringement of constitutional rights is arguably irrelevant, as most crimes, and certainly crimes against bodily integrity, exist and have existed aside from the constitution. The fact that one has the right not to be assaulted or murdered doesn’t need constitutional authority.
And should remorse or the lack thereof be relevant in sentencing? This is a debate for another time.
Sara Gon is the head of strategic engagement at the IRR. If you like what you have just read, become a Friend of the IRR if you aren’t already one by SMSing your name to 32823 or clicking here. Each SMS costs R1.’ Terms & Conditions Apply.