The North West High Court ordered their release from custody with immediate effect.
Six men convicted of murder will have to be released after the North West High Court in Mahikeng set aside their convictions and sentences.
Simon Bohope, Kholekile Mafilika, Charles Nkosi, Mzikaise Mfishane, Thyekile Zitha, and William Mogorosi were among seven suspects accused of involvement in the 2017 killing of Mohele Motimi.
The Stilfontein Regional Court sentenced them to 15 years in prison in 2022.
However, only six of the convicted men pursued an appeal.
North West CPF member stabbed to death
During the trial, it was alleged that the seven accused formed part of a group that attacked Motimi in Jouberton, Klerksdorp, on the morning of 25 February 2017.
Motimi, a member of the local Community Policing Forum (CPF), was stabbed to death.
A post-mortem report recorded multiple chop wounds to his scalp, neck, and chest.
The state alleged that the group targeted Motimi because CPF patrols in Extensions 19 and 20 of Jouberton were interfering with their activities.
The accused, believed to be gang members, allegedly sought out CPF members on the morning of the killing.
They allegedly pelted patrollers with stones and chased them while armed with pangas and knives.
READ MORE: Court denies five men’s appeal in farm murder and robbery cases
According to the regional court’s ruling, Bohope was the first to catch up with Motimi, sparking a fight before two others joined in and stabbed him.
Motimi attempted to retreat into a nearby yard, but collapsed.
At that point, all of the accused reportedly joined in, stabbing him while he lay on the ground.
After the group dispersed, Mafilika allegedly returned, struck Motimi on the head with a baton, and stabbed him in the neck in the presence of Mfishane.
On 14 March 2022, the regional court sentenced all seven men to 15 years in prison.
Six of the accused, however, were granted leave to appeal the outcome months later in September.
Leave to appeal application
The appeal, heard on 18 June 2024, was not opposed by the state.
The defence argued that the trial court had failed to properly apply section 93ter(1) of the Magistrate’s Courts Act, which deals with the appointment of assessors.
The provision states that, in murder cases before a regional court, two assessors must sit with the magistrate unless the accused request to proceed without them.
Assessors are usually retired magistrates or advocates who assist with legal matters and sentencing.
ALSO READ: Two men jailed for teen’s ‘barbaric’ murder over stolen dagga
The defence claimed that assessors were appointed, thus, rendering the trial unfair.
Counsel argued that the magistrate never confirmed whether the accused understood section 93ter(1), nor whether they waived their right to have assessors present.
Court records from 19 September 2018 noted that “no assessors are needed”, but did not show whether this had been explained to the accused by the magistrate or their lawyers at the time.
The state conceded that “there was indeed an irregularity committed by the trial court and the irregularity vitiated the whole proceedings”.
North West High Court judgment
In delivering judgment, Acting High Court Judge Nicolaas Laubscher, with another acting judge concurring, found that the requirements of section 93ter(1) were not properly observed, especially considering that Bohope was absent during the 19 September court appearance.
“This fact clearly indicates that no explanation of the contents of the provision was proffered to, or inputs were solicited or received from the accused persons before the court – otherwise the process would have been halted there and then due to the glaring absence of the first accused in this process,” Laubscher said.
He also highlighted that records from 11 November 2019 did not reflect whether the matter had been addressed in court.
Laubscher, therefore, upheld the appeal and set aside the convictions and sentences of the six men.
“The appellants are to be released from custody with immediate effect, insofar as this matter is concerned, unless detained in respect of another matter,” the judgment concluded.
NOW READ: Taxi hitmen jailed for life plus 90 years over brutal murder and robbery
