Pieter Doorewaard and Philip Schutte's three-year-long struggle to obtain an acquittal after being accused of killing a boy who allegedly stole sunflowers was totally unnecessary.
Their problems are the result of a disturbing malfunction of the criminal justice system. Poor police work contributed to this, as well as the prosecution seemingly wanting to secure a conviction regardless.
The two most important ingredients in this legal disaster, however, were firstly an extremely unreliable and mendacious state witness, Sibongile Pakisi, and secondly Ronald Hendricks, the trial judge in the High Court in Mahikeng, where the accused initially stood trial.
If Hendricks had applied the law, as he was supposed to do, and assessed the evidence properly, he should have acquitted the accused. However, Hendricks seriously botched the case; even dedicated "junior" magistrates perform far better on a daily basis in similar and more difficult criminal trials than he did.
A brief summary of events is required to explain exactly why this is the case.
Doorewaard and Schutte – labelled as "the Coligny Two" by the media - made a citizen’s arrest of Mathlomola Jonas Mosweu, a fifteen-year-old boy, on April 20, 2017, after they saw him and another person (who fled the scene) allegedly stealing sunflowers on their employer’s land.
Contrary to what some legal experts are trying to suggest there is nothing unusual about civilians effecting such an arrest. They were fully entitled to do so under section 39 (read with section 42) of the Criminal Procedure Act.
This kind of theft is endemic in the area and causes thousands of Rands of damage. According to standing practice that (even according to one of the state's own witnesses, a local policeman) worked uneventfully in the past, the accused wanted to take the boy to the police station with a view to instituting criminal charges against him.
After the arrest the boy was instructed to climb on to the back of the pickup truck, which he did. On the way to the police station though he apparently jumped off and suffered injuries as a result of which he subsequently died.
These events soon led to fierce racial riots in Coligny. The situation was, among other things, exacerbated by the hate-filled rhetoric of the then Premier of the North West, Supra Mahumapelo.
Amid this turbulence, Doorewaard and Schutte voluntarily surrendered themselves to the police. The (black) magistrate, as befitting a competent judicial official, did not let himself be bullied by untoward public outbursts. He released the accused on bail based on his reading of the evidence. This was the correct decision in view of the fact that the two accused continuously gave their assistance during the course of the legal process and that ultimately there was absolutely no risk that they would not stand trial.
During the trial in the High Court, the case for the state was exclusively reliant on the testimony of a single witness, Pakisi, who was unknown (on their version) to the accused. It is indeed so, that a court is entitled to convict someone, on the mere evidence of a single witness. In fact, it happens daily. However, the credibility and reliability of such evidence must then be untainted. Any undergraduate student in the law of evidence knows this: The version of a single witness must always be carefully examined.
Notwithstanding overwhelming discrepancies and improbabilities in Pakisi's version Hendricks accepted his testimony with little reflection, convicted the accused, and sentenced them to 18 and 23 years' imprisonment, respectively. There was no trace of any knowledge and insight about the applicable law and in particular no reference to the cautionary rule applicable to the testimony of a single witness. Hendricks accepted the lying version with alacrity.
And we use the word "lying" with great caution.
In one of his several statements to the police Pakisi relates in detail exactly how the deceased was thrown off the pickup truck three times. In court, however, he testified of only one such an occasion. According to Hendricks this damning contradiction was of little importance.
Pakisi testified extensively exactly how the two accused persons allegedly brutally assaulted him for an extended period of time. He, however, never even bothered to file a complaint at the SAPS in this regard. Absolutely no injuries were detected anywhere on his person either.
Pakisi told the trial court how he was allegedly also given an instruction to clean-up the blood spatter of the deceased from the bakkie with his jersey. Once again, there is not a single trace to be found of this alleged bloodstained jersey. The police apparently also neglected to investigate and/or search for and find this very important piece of real evidence. Furthermore, there was no trace of blood to be found on the bakkie.
From a strictly legal perspective this surely was, at least for the prosecution, a forensic investigative disaster and nightmare to be ashamed of.
Pakisi also testified that the two accused repeatedly fired shots in his direction with firearms. The police investigation, however, could not find any fired cartridges or firearms. To add salt to wound, so to speak, evidence regarding the cell phone records of the accused persons corroborated the fact that Pakisi’s story of the events regarding the places and time of driving around with the bakkie was a blatant lie.
These above mentioned contradictions, improbabilities and different versions of Pakisi were definitely not the only ones to be extracted in the course of the trial. In his in depth analysis of the evidence of Pakisi, judge of the Supreme Court of Appeal (SCA), Visvanathan Ponnan, declared that not one single aspect of Pakisi’s evidence survived the test of a proper scrutiny. Disturbingly though Hendricks was nonetheless satisfied that: “'... the evidence of Mr Pakisi is honest, truthful and reliable and must be accepted...'."
Ponnan ruled that this finding of Hendricks on Pakisi's testimony was clearly unfounded. Ponnan continues: "I have quoted in extenso from the record to show that Mr Pakisi simply cannot be taken at his word. I have also dwelt in far greater detail than is absolutely necessary on his evidence to demonstrate that, on many of the aspects to which I have alluded, there is no room for honest mistake and that his evidence cannot be true."
Ponnan consequently found that Pakisi calculatedly fabricated his evidence and that his evidence subsequently consists of a number of calculated falsities.
Hendricks was supposed to properly scrutinise Pakisi's testimony, but he didn't. Alas, Hendricks was way too receptive to the prosecution's case. If Hendricks considered Pakisi's evidence with the required degree of caution, Ponnan says, he was actually obliged to reject the evidence.
The implication of Ponnan's words is clear: A (more) capable judge would have rejected the lying testimony of Pakisi in a jiffy.
Thanks to Ponnan and his fellow judges in the Supreme Court of Appeal, the case reached a favourable conclusion. (The two SCA judges in this matter, namely judges Mahube Molemela and Aubrey Ledwaba essentially agreed with Ponnan).
Unfortunately, however, this does not mean that the administration of justice in the country is sound and in a good shape.
An evaluation of this case, in the first instance, clearly shows that the High Court can no longer be trusted as the guarantor of a competent and just legal system. In fact, any person may fall victim to such a scenario and be struck with an unfounded conviction and severe sentence. This is one of the main reasons why thousands of civil litigation proceedings are no longer adjudicated by courts of law, but rather by private arbitrators or mediators. Unfortunately, the option of private arbitration is not available in criminal cases.
The reality is that an individual is always at risk in a court. The risks have nowadays increased excessively, especially in the current political climate. The High Court's total fiasco with the Coligny case provides a lamentable example of this.
Moreover, after the judgment Hendricks apparently still did not grasp the seriousness of his error. He was so convinced of the correctness of his judgment, that he even refused to grant leave to appeal to the two accused persons because, according to him, there was no prospect that a Court of Appeal would rule otherwise.
In light of this, another check and balance - far removed from the intervention of the state — becomes indispensable. This is what AfriForum accomplished in this matter by ensuring that the accused received competent legal assistance.
Very few people, however, can afford a senior advocate such as Barry Roux (a man with almost 40 years' experience at the Bar) in order to prevent themselves from falling victim to similar legal blunders.
Secondly, what is also clearly demonstrated in this case, is that the administration of justice should not be the instrument of angry populist reactions. Judges and magistrates, as well as the police and the prosecuting authority, must fulfil their role in the administration of the criminal justice system, exclusively on the principles of the relevant issue of law. In the case of the Coligny Two the investigation and prosecution was clearly driven by political considerations, including mob pressure. As is evident by Ponnan's judgment, this blind populism was a factor throughout this case.
A dark future awaits our justice system if an urgent investigation is not conducted into the quality of our criminal justice system in general and, more pertinently, with regard to the expertise of our presiding officers.
A justice system is only as good as the office bearers who implement it. When incompetent judicial officers preside on the Bench and where populist politics dictates the administration of justice, there ultimately remains almost nothing of the Rule of Law and the commitment to justice.
Prof. Koos Malan and Dr. Llewelyn Curlewis are both affiliated to the Faculty of Law at the University of Pretoria.
This article first appeared in Rapport newspaper.