Conviction and sentence
The six police officers of the local SAPS who were jailed and fined for allegedly assaulting a suspect in the holding cells were acquitted of all charges by two High Court judges in Pretoria.
LYDENBURG – The six police officers of the local SAPS who were jailed and fined for allegedly assaulting a suspect in the holding cells were acquitted of all charges by two High Court judges in Pretoria.
Acting judge, Mr Enver Swartz and judge Ms Mmonoa Teffo set aside the convictions of WOs Egypt Manzini, Thomas Motau, Heroldt Mashego, Vusimuzi Maphanga and Consts Given Mahloko and Vuma Mgwambe on a charge of assault with the intent to cause grievious bodily harm.
The six officers were sentenced in the Lydenburg Magistrate’s Court on
November 20, 2013. The regional magistrate sentenced Manzini and Mahloko to three years’ imprisonment. Motau and Mgwambe were sentenced to pay a fine of R20 000 or 12 months’ imprisonment, as well as a further two years’ imprisonment, suspended for five years on condition that they were not convicted of any offence involving violence. Manzini, Motau, Mahloko and Mgwambe were granted leave to appeal against their conviction and the sentence. Mashego and Maphanga, on application, were granted leave to appeal against their convictions only.
The suspect who claimed that he had been assaulted was arrested on April 25, 2009 and held in detention on a charge of armed robbery. During his arrest, he (the suspect) sustained some injuries and was treated by a certain Dr Kayemba. He had been arrested by Manzini on a previous occasion, also for armed robbery.
On April 29, Manzini received information that the suspect in the holding cells had a cellular phone in his possession. The officers in question investigated and when the suspect was approached to surrender the phone, he refused and denied the allegation.
“A phone was indeed found in the police holding cells where the suspect was held with other inmates. A struggle ensued when the police officers attempted to remove the suspect from the cell. In the process the officers as well as the suspect were injured. On April 30, 2009 the suspect received treatment, again administered by Kayembe. He complained of pain to his scrotum. During a subsequent operation, his right testis had to be removed,” the court order read.
The counsel who appeared for the officers set out in great detail the timeline from the date of the incident until the date when the officers eventually pleaded, resulting in a delay of 677 days.
The High Court ruled that it was impossible to follow the reasoning of the magistrate as his comments were contradictory. “Apart from that, his conclusions were not in line with the factual evidence he was presented with.”
The judgement said that the suspect’s evidence was that Manzini, Motau, Mahloko and Mgwambe assaulted him by slapping, punching, kicking, throttling and beating him with a plank. Mashego and Maphanga did not actively participate in the assault.
“The trial court found that, although there were minor contradictions between the complainant and his eyewitnesses, their evidence was credible and acceptable. He rejected the version adduced by the officers as false and unreliable.”
The court ruled it was trite that there was no obligation on the appellants to convince the court of their innocence.
“Their version is reasonable and possibly true and for this reason alone, they are entitled to their acquittal. Although Mashego and Maphanga did not lodge an appeal against their sentences, this court has the discretion to interfere with the sentence imposed by a lower court. This further necessitated by the interference with the conviction itself. Accordingly, I propose that the appeal against conviction and sentence by the officers succeeds and that the order of the trail court is set aside and replaced with the following order: The accused are found not guilty and discharged.”
