Bungled investigation, 1 eyewitness, fabricated testimony – why the Coligny accused were acquitted

The Supreme Court of Appeal (SCA) has acquitted the two men previously found guilty of murdering 16-year-old Matlhomola Moshoeu, finding that the State did not prove the case beyond a reasonable doubt.

Despite a split in the outcome of the appeal, all three appellate judges agreed that the standard of proof for a criminal trial was not met; that the only eyewitness in the case had contradicted himself and that police displayed incompetence in the way the matter was investigated.

The versions in a nutshell

The State’s case rested entirely on the evidence of a single eyewitness, Bonakele Pakisi, who claimed to have observed the deceased being assaulted and mishandled by Pieter Doorewaard and Phillip Schutte before being thrown out of a moving bakkie.

Pakisi also told the court that both Doorewaard and Schutte had approached him to find out what he had seen and then subsequently assaulted him repeatedly and forced to drink strong liquor, before being threatened at gunpoint.

Doorewaard and Schutte said that after they caught the deceased stealing sunflowers, they arrested him and told him to climb onto the back of the bakkie.

While taking Moshoeu to the police station, they stated that he jumped off from the back of the bakkie.

They turned the bakkie around and found that he was still alive, but injured. They then decided to drive to the police station for help and for arrangements to be made for an ambulance.

Conviction and sentencing

In 2018, Doorewaard and Schutte were found guilty of murdering the teenager.

It was alleged that Moshoeu was thrown from a moving bakkie and died as a result of the injuries incurred in April 2017.

The North West High Court found Doorewaard and Schutte guilty of murder, kidnapping, intimidation, theft, and pointing a firearm.

Judge Ronnie Hendricks, at the time, said the murder was not planned and not premeditated. He found the incident happened as a result of dolus eventualis, News24 previously reported.

Less than a year later in 2019, Doorewaard was sentenced to an effective 18 years imprisonment, while Schutte was sentenced to an effective 23 years in prison.

Following an appeal heard in the SCA, the apex court on Friday set aside the convictions and sentences finding Doorewaard and Schutte “not guilty and discharged”.

All three appellate judges were of the view that the case was not proven beyond a reasonable doubt, that the eyewitness testimony of Pakisi was contradictory and even deliberately fabricated and that the police investigation was bungled.

ALSO READ: SCA sets aside conviction, sentences of Coligny ‘sunflower’ duo

Here are the findings of the appellate judges:

Acting Appeal Judge Aubrey Ledwaba

Ledwaba found that Pakisi’s evidence was tainted by material discrepancies and that there was nothing to corroborate his testimony.

This included the fact that Pakisi, in his affidavit to the police, said Moshoeu was thrown from the bakkie on three occasions, however, during the trial, he said the deceased was thrown from the bakkie once.

Pakisi also testified that Moshoeu bleeding profusely while on the back of the bakkie, but tests done on the loading bin of bakkie found no traces of blood.

“Assuming that the vehicle that was tested was in fact the bakkie that was used to ferry the boy who Mr Pakisi says was bleeding profusely, the results of the Hexicon Orbit test cast serious doubt on the testimony and credibility of Mr Pakisi, who is a single witness,” Ledwaba said.

“Interestingly, the trial court found this unexplained discrepancy not to be material,” he added.

“In this regard, the court stated that ‘what is material is the fact that the deceased was thrown from the bakkie which is consistent with the evidence as testified by Dr Moorad’.”

“I disagree, particularly because, save for the evidence of Mr Pakisi, there was no direct or satisfactory evidence that the boy was thrown from the bakkie.”

In my view, there are material discrepancies in the evidence of Mr Pakisi. He is a single witness and there is no corroboration to his evidence.

Ledwaba added that experts who testified in respect of times and calls made by the accused confirmed their defence, and contradicted the version of Pakisi in connection with the areas travelled, the distance and the estimated time it would take for the said trips.

Ledwaba did, however, point out that Doorewaard and Schutte’s version regarding how the deceased apparently vanished from the bakkie was not satisfactory.

With the evidence layout, the acting appellate judge said the State still had to prove its case beyond a reasonable doubt.

In conclusion, after a careful analysis of the totality of the evidence, I take the view that the State did not prove its case beyond reasonable doubt and that the appellants should therefore be acquitted.

Appeal Judge Mahube Molemela

In agreement with Ledwaba, Judge Molemela also found that Pakisi’s account did not meet the standard set for the evidence of a single witness and that his evidence, as a result, did not pass muster.

She also pointed out the inherent contradictions in Pakisi’s testimony.

“In my view, the bungling of the criminal investigation impacted on the strength of the State’s case, in particular, on the reliability of Mr Pakisi’s evidence,” Molemela said.

“I agree with the court a quo’s findings in relation to aspects which tend to attest to Mr Pakisi’s honesty, such as the fact that he knew that the first appellant was the driver of the bakkie on the day in question, and also his description of the injuries sustained by the deceased (which were independently confirmed by the paramedics and the police officers who attended the scene as well as the post-mortem results).”

“Furthermore, even though Mr Pakisi had not met the appellants before, his description of them was accurate.”

These aspects make it difficult to conclude that Mr Pakisi’s entire version constituted a fabrication. It is nevertheless trite that the evidence of a single witness can only sustain a conviction if it meets certain requirements. Honesty alone is not sufficient. The witness must also be reliable.

Molemela, however, did not agree with the application for discharge, which is a remedy provided to a person who has been charged maliciously, with false allegations made against them.

She was of the opinion that facts of this case justified an inference of gross negligence and that she would have set aside the conviction for murder and replaced it with culpable homicide.

She came to this decision based on the fact that arresting Moshoeu meant that both Doorewaard and Schutte assumed the duty of care to ensure his safe conveyance to the police station.

The appellate judge said they did not take the necessary steps to prevent Moshoeu from either jumping or being ejected from the bakkie, given the light of the circumstances in which he found himself on the bakkie.

She further found that approaching a bend at 60km/h on a gravel road en route to the police station was unreasonable, especially under these circumstances.

Appeal Judge Nathan Ponnan

Ponnan wrote a separate concurrence, agreeing with Ledwaba that the appeal should be upheld.

“Had there been a sufficiently careful assessment of the evidence in the docket, the public interest and the law, perhaps some doubt would have been entertained as to whether there was, on the basis of sufficient and admissible evidence, reasonable and probable cause to believe that the appellants are guilty of an offence and that conviction was a reasonable prospect,” Ponnan said.

Ponnan further pointed out other discrepancies in Pakisi’s version including that no evidence was found that there were quad bikes at the scene, a third accused, gunshots had been fired and that he was severely assaulted by Doorewaard and Schutte.

In short, the prosecution’s case consisted of Mr Pakisi’s say-so and nothing more. No effort appears to have been made by either Kgorane or Nkosi [investigating officers] to satisfy themselves as to the truthfulness and reliability of Mr Pakisi’s account of events.

“In my view, even the most perfunctory interrogation of his version 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.”

This was further bolstered by the fact that Pakisi later reneged having seen the deceased thrown from the bakkie a second and third time, a contradiction which was also referenced by the other appellate judges.

Quoting from the record, Ponnan said there is no room for honest mistake and that his evidence cannot be true.

“This must mean that on the aspects mentioned, which are by no means exhaustive, his evidence has been deliberately fabricated.”

The fact that Mr Pakisi was guilty of deliberate falsehood required the High Court to consider whether he could be safely relied upon.

Ponnan also found that the State did not call another witness, who was said to have taken Pakisi’s initial statement, as that testimony would have exposed Pakisi as a liar.

Ponnan also disagreed with Molemela about the culpable homicide charge, stating that on the established facts there was no negligence.

He said there was a suggestion that the speed Doorewaard and Schutte were travelling at was excessive, dangerous or reckless, which placed doubt on whether the deceased was being thrown around the back, lost his balance or was catapulted from the bakkie.

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