EDITORIAL: The Rule of Law holds, by a thread, in SA

The SCA averted a gross miscarriage of justice in the case of the Coligny Two, but it was a close run thing


The Rule of Law still holds in South Africa, albeit by only a thread. This is the lesson of the Supreme Court of Appeal’s ruling upholding the appeal of Pieter Doorewaard and Philip Schutte against their convictions in the North West Division of the High Court on charges of murder, kidnapping, intimidation, theft, and the pointing of a firearm.

The case concerned a tragedy that had degenerated into a miscarriage of justice. The task before the appeal court judges in Bloemfontein was to decide between two “mutually destructive versions” of the events that had led to death of a 16 year old boy Mathlomola Jonas Mosweu in the small town of Coligny in the North West province in April 2017.

The version of the two accused was that at just after 9 am on the morning of Thursday 20 April 2017 they had travelled out of town to check on the peanut crop of their employer, Pieter Carsten. On the way back to their workshop in town they had seen two boys stealing sunflowers on another field owned by Carsten, near to the Scotland informal settlement. When the two boys realised they had been spotted they dropped the sunflowers and ran off in different directions.

Doorewaard and Schutte had apprehended one, Mosweu, and signalled to him to get into the back of their bakkie, which he had done. Their intention was to drive him to the police station in Coligny to report him, something they had done a number of times before in other cases of crop-theft, without incident or complaint.

At a bend in the road on the way back Mosweu had jumped from the back of the bakkie, presumably with the intention of escaping up the track nearby back to Scotland. When Doorewaard and Schutte realised this they doubled back in an effort to apprehend him again. Instead they found the boy lying seriously injured and immobile on the ground. They had then asked two passers-by to remain with the boy while they drove to the police station, a few minutes on, where they had reported the accident, at around 9:45 am, and asked the police officer on duty to call an ambulance. They had also left their names and contact numbers with the police.

On their version they were told that they did not need to attend to the scene and would be contacted on their cellphones if need be. The police then immediately went out to Mosweu and an ambulance was summoned from Lichtenburg just before 10 am.

Doorewaard and Schutte returned to their workshop. At 10:08 am they were phoned by the police and told an ambulance was on the way. It arrived at the scene of the accident shortly before 11 am. Mosweu was found on the ground bleeding profusely from the nose and mouth. He was transported to the local community clinic, but the doctor there was unable to save him, and he was declared dead at 11:29 am.

It was a few days later on the Sunday that a witness, Bendel Pakisi, suddenly emerged to claim this had been no accident, but deliberate murder. His incendiary account, as captured in a statement to the police made that same day, was used to stir up outrage within the black community in the town, and led to demands for the arrest of the two “white men” involved for “murder”. There were race riots and looting on the Monday, in response to the absence of arrests, and then again when Doorewaard and Schutte were granted bail in May.

Pakisi’s basic story was that he had been on his way to Scotland to drink beer with a policeman friend on the Thursday morning when he had heard shooting from the sunflower field. He had then witnessed Schutte hurl Mosweu from the back of the bakkie a number of times as it drove through the sunflower field. After this they had loaded an unconscious Mosweu into the back of the bakkie. They had then spotted Pakisi and Schutte had driven across to him on a quad bike.

He was told to get into the back of the bakkie and was then taken on a 47 km hell ride through the countryside around Coligny in which he was threatened with death, assaulted, forced to drink alcohol, made to run in front of the bakkie, and shot at, before finally been knocked out near a dam on the way back to town. The purpose of all this all was to terrify him into keeping silent as to what he had seen. All this time Mosweu had been lying unconscious, but alive and heavily bleeding, on the load bed of the vehicle.

It should have become evident to any investigator that this implausible story was an elaborate fabrication, albeit built around some knowledge both of the basic facts of the accident and the physical appearance of Doorewaard and Schutte.

The first red flag should have been the lack of any corroborating physical evidence. No spent cartridges were found at the sites Pakisi claimed there had been shooting. There were no bike or motor vehicle tracks found criss-crossing the sunflower field. The police failed to locate the guns allegedly used, Pakisi’s cellphone handset that had supposedly been taken from him, the quadbike that Schutte had apparently been riding about on, or the “third man” that Pakisi later alleged had also been involved. Pakisi presented with no injuries despite claiming to have been seriously assaulted at various points.

The second was that Pakisi repeatedly changed crucial details of his story – through his various statements to police and in his court testimony - such as when it occurred, where it occurred, how many assailants there were, what type of guns had been used, details of the assaults against him, and how many times he saw Mosweu being thrown from the back of the bakkie. A third red flag should have been the absence of any witnesses to back up Pakisi’s account of his protracted hours-long ordeal.

Finally, and mostly incurably, his story was directly contradicted by hard forensic evidence. The load bed of the bakkie was chemically tested by the police for traces of blood and there were none. The cellphone evidence presented by expert witnesses from Vodacom in court – but which the police would have had in their hands from very early on - backed up Doorewaard and Schutte’s account of their movements, and completely refuted Pakisi’s completely contradictory version.

Pakisi had claimed that Doorewaard and Schutte had taken his Nokia cellphone from him. But the same Vodacom records presented to court showed that the relevant sim card had not been used for over ten days before the incident and the last device that had been connected to it was a Vodafone Smart Mini 7.

The National Prosecuting Authority nonetheless pressed ahead with the prosecution of Doorewaard and Schutte. They were represented in the High Court trial by well-briefed and competent defence counsel who pointed out all the flaws in the state’s case, wholly reliant as it was on Pakisi’s sole-witness testimony, and also established the innocence of their clients, as far as this could be done given the limited investigative resources at their disposal.

In October 2018 Judge Ronnie Hendricks nonetheless pronounced the two men "guilty". In his written judgement he ruled that Pakisi was an “honest, truthful and reliable” witness whose evidence “must be accepted, especially because it is corroborated in material respects”. He proceeded to convict Doorewaard and Schutte of murder (for throwing Mosweu off the bakkie) and on the charges of intimidating and kidnapping Pakisi, and theft for taking his imaginary Nokia cellphone.

He discharged Doorewaard and Schutte of charges related to the illegal possession of firearms and ammunition at the end of the presentation of the state’s case but then, bizarrely, ultimately found them guilty on the charge of pointing a firearm. He revoked their bail on their conviction. Before Hendricks got around to sentencing the two men Pakisi had admitted the obvious to confidants, namely that his whole story was a lie. This was reported on in Rapport newspaper in January 2019.

In April 2019 Hendricks sentenced Doorewaard and Schutte to 18 and 23 years in prison respectively. He also denied them leave to appeal their sentences. During the thirteen month period in which Doorewaard and Schutte were in prison Hendricks was promoted to the position of Deputy Judge President in the North West by President Cyril Ramaphosa on the recommendation of the Judicial Services Commission.

The two were eventually released on bail after their petition to the Supreme Court of Appeal, for leave to appeal, succeeded. In their ruling on Friday the three judge panel that heard the case agreed that the charges based upon Pakisi’s testimony could not stand. The majority made up of Ledwaba AJA and Ponnan JA acquitted Doorewaard and Schutte of all charges.

In her dissenting judgment Molemela JA was far more sympathetic to Pakisi’s evidence than the other two, and clearly wanted Doorewaard and Schutte convicted of something. She eventually settled for “culpable homicide” as they had, on their own version, sought to transport Mosweu to the police station on the back of their bakkie, and he had been fatally injured after jumping off. This was despite the fact that as Ponnan noted, this “was simply not the case that the appellants had been called upon to answer”. She also denounced the two men for their “shocking” and “morally reprehensible behaviour” for going back to their workshop, this after asking bystanders to remain with the boy, reporting the accident to the police, and asking for an ambulance to be summoned.

In his judgement Ponnan JA set out in detail what a travesty this case had been from the beginning. He noted that Brigadier Clifford Kgorane, who was based in the provincial head office in Potchefstroom, had been directed by the SAPS provincial commissioner to go in and “investigate”. Having been met at the Coligny police station by an angry mob, and having listened to Pakisi’s story, he had decided that a charge of murder be preferred.

A decision was taken that same day to arrest and charge Doorewaard and Schutte, before any meaningful investigation had been conducted. As Judge Ponnan noted “even the most perfunctory interrogation” of Pakisi’s version by the police investigators “ought to have satisfied them of his mendacity. Not only is there no objective corroboration for Mr Pakisi, but his version, such as it is, is riddled with inconsistencies and contradictions.” Prosecutors too should have entertained serious doubts as to whether Doorewaard and Schutte were actually guilty of an offence.

Although “every facet” of Pakisi’s evidence did not survive scrutiny, Judge Ponnan noted, “Hendricks J was ‘satisfied that the evidence of Mr Pakisi is honest, truthful and reliable and must be accepted…’. Even a superficial perusal of Mr Pakisi’s evidence demonstrates that this finding cannot be supported.”

The question Ponnan’s judgment raises is why such an obviously flawed prosecution was able to make its way so far through the system?

The overwhelming sentiment driving the pursuit of Doorewaard and Schutte, from the start, was that these two “racist whites” were responsible for the death of a “black child” and they needed to be punished for it, regardless of any legal and factual technicalities that may stand in the way. This remains the sentiment informing criticism of the majority SCA ruling from renowned legal experts like Julius Malema, Panyaza Lesufi and Pierre de Vos.

These politically driven demands for racialized justice formed a confluence with a criminal justice system that had been progressively corrupted through the Zuma years - and so concocted allegations that should have been disposed of during the investigatory phase were pursued and upheld all the way up to the Supreme Court of Appeal and only knocked back there by a narrow majority.

Much of the press were culpable as well. Doorewaard and Schutte were routinely described in press headlines as the “Sunflower murderers” and “Sunflower killers”. This despite questions raised both by Rapport and this publication – from very early on – around the basis of the initial guilty finding against them. The coverage in the international press was particularly egregious, as usual. The sentencing of these “two white farmers” for the “racist murder” of “a black teen” for “stealing sunflowers” was reported on in publications around the world. Their exoneration on appeal, not at all.

In conclusion then an obvous miscarriage of justice was averted by this ruling by the Supreme Court of Appeal. This should be welcomed. What is so worrying is that this occurred so late in the process, and by so narrow a margin.