Racial incitement at Coligny funeral played key part in violence – Malan

Rian Malan

CAPE TOWN — Well known journalist and acclaimed author, Rian Malan, has superbly boosted News 24’s in-depth coverage and analysis of the unique, potentially watershed civic upheaval in the conservative North West farming town of Coligny. It’s one of the best pieces of local contemporary reporting I’ve read in my 37 years in journalism. Malan was assigned to get beneath Coligny’s smouldering civic unrest after the death of an alleged young sunflower thief arrested by two white farmers. He was there when the sparks first ignited in a protest march on the town’s courthouse on Monday, after the previous day’s funeral. Then the two farmers were released on R5,000 bail each. He paints a vivid picture of narrowly averted racial bloodbath, xenophobic ransacking, a town turned upside down and looted with a house torched and people trapped. Miraculously nobody else died. The politically incited mob also vented their fury by torching one of the accused’s homes, ransacking his employer’s bottle store and vandalising the hotel he owned. Several other homes also went up in flames. Malan’s coverage of the previous day’s funeral speeches provides indisputable evidence of racial incitement of township residents by leading Zuma supporters in the province. That is hugely significant and a wake-up call to all South Africans. Few journalists have the experience or ability to marry first class accurate reportage with contextual analysis. Malan does and luckily for us, he was there. – Chris Bateman

Staff writer

The richly textured News 24 coverage reveals that the two accused “farmers” were employees of a leading local businessman and farmer, hired to protect his fast-diminishing sunflower fields. The boy who died was the latest child they’d arrested in their vain attempts to stem a stream of ongoing sunflower thefts by youngsters from the adjoining shanty town. Like all those before, they’d driven the 16-year-old to the local police station where such perpetrators were routinely released with a warning. On their version, as they slowed for a corner, the teenager leapt from the bakkie, breaking his neck in the fall. Purported township witnesses, who had yet to come forward, or be traced by the thinly-staffed local police at the time of writing, claimed otherwise. He’d been beaten to pulp by the ‘boere’. The long-awaited inquest results will prove pivotal. But in the vacuum created by the lack of speedy and efficient police-gathering of the facts, plus the racially-wounded history of the area, a credible and brutally racist township version of the events was easily constructed.

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Feeding on this political feast at Sunday’s funeral was North West Premier, Supra Mahumapelo, an important ally of Zuma’s. Mahumapelo spoke of White people continuing to own the land and the banks, urging the crowd to remind Whites that they were ‘visitors to this country’. SA Democratic Trade Union representative, Mxolisi Bomvana told mourners that the child was gone because ‘the racists of our time decided to kill a black person’. SADTU is the largest trade union still loyal to Jacob Zuma. South African National Civics Association provincial secretary, Packet Seakotso, outlined for the crowd the protest march plans for the next day, telling them they would be closing down roads to oppose the white men’s bail.

In the piece Malan tellingly questions why these three leaders didn’t use the funeral to calm racial tensions instead of inciting them. The speakers could have helped delay any protest action until the facts emerged at the court hearing. To Malan it looked like a ‘coldly, logical part of the Zuma administration’s survival strategy, which rests largely on scapegoating whites in the manner pioneered by Mugabe, endorsed in 2010 by Malema and recently adapted into Zuma’s plans for ‘radical economic transformation.

Once again, race provided a handy diversion from the gross lack of service delivery in the area. The ANC is facing violent protests across the troubled Distobotla District Municipality. In nearby Blydeville and Lichtenberg, corruption, incompetence, potholed roads, broken sewerage plants and intermittent water supplies are the norm, says Malan. The ANC run municipality is bankrupt, with debts of R232 million, four consecutive negative reports from the Auditor General and a manager who has faced serious fraud allegations. Malan reports that black people in Coligny had similar complaints and were in a mutinous mood long before the murder-trial related looting and burning started. The death provided the local ANC leaders with a golden opportunity to change the subject and shift the focus of rage to whites, demonstrating that ‘their balls are still as big, red and militant as the EFF’s’.

Coligny bail judgement

IN THE MAGISTRATES COURT FOR THE DISTRICT OF DITSOBOTLA HELD AT COLIGNY

CASE NUMBER 73/2017

In the matter between:

 

PIETER GOVERT DOOREWAARD            First Applicant / Accused 1

PHILLIPUS LODEWYK SCHUTTE        Second Applicant / Accused 2

and

 

THE STATE

 

_____________________________________________________________________

JUDGEMENT IN BAIL APPLICATION

____________________________________________________________

 

  1. Accused number 1 is Pieter Doorewaard, his age is given as 26 and his address as number 6 Park Street, Coligny. Appeared in this Court represented by Advocate Smith.
  2. Accused number 2 is Phillip Schutte, his age is given as 34 years and his address as number 8 First Avenue, Coligny. Appeared in this Court represented by Advocate Du Plessis. Both Counsel appear on the instructions of ……..
  3. The State is been represented by Mr. Mudau.
  4. The identity of the Deceased as……. 

 CIRCUMSTANCES

  1. This bail application is handled and dealt with under strenuous circumstances with strong public sentiment. Petitions have been handed in favour of the Granting of Bail and Against. Both forms part of the record as Exhibits “C” and “E” respectively. There is also a strong presence of the Public Order Police and people protesting and singing in the Street. The presence of the Journalists or Media inside and outside the Courts room cannot be overemphasised.

INTRODUCTION

  1. For purpose of these proceedings, The Court accepts that the accused are charged with the CRIME OF MURDER. It is common cause between the parties that the charge against the accused falls within the ambit of Schedule 5 of the Act.
  2. Therefore this bail application is governed by the provisions of Section 60(11) (b) of the Act read together with Section 60(4) (a) to (e) including subsection (9).  It provides the following:

 Notwithstanding any provision of this Act, where an accused is charged with an offence refer to:

(b) In Schedule 5, but not in Schedule 6, the Court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the Court that the interests of justice permit his or her release.”

  1. Copy of the motion proceedings in the High Court regarding this matter including the agreement that was made an Order by Court was handed in and marked Exhibit 1. It is important to note that the order directed that a bail application be proceeded with and no application in terms of Section 50(6) of the Act should be entertained.
  2. In prosecuting their bail applications, the two applicants adduced evidence by way of affidavit wherein their personal circumstances are stated together with their reasons for bail application. Affidavit in respect of accused number 1 was admitted as Exhibit (A) and number 2 as Exhibit (B). Exhibit (D) being accused number 2’s wife’s employment contract.
  3. They also led the evidence of Mr. Karsten who is an uncle to accused 1 and an employer of both accused. During his testimony, Exhibit (C) was introduced. He most testified about the reasons for the accused’s release on bail, their characters and employment. Both accused’s applications were closed.
  4. The State led viva-voce evidence of three witnesses. The first witness being Mr. Kgorane, a Brigadier in the SAPS Stationed at the Police Provincial Head Quarters at Potchesftroom. He testified about the merits of the case and the reasons for the State having an objection against bail. The second witness Mr. Modisane, a Warrant Officer in the SAPS, is stationed in Coligny. He testified about his encounter with the accused on the day of the incident and how he knows the two accused from his previous dealings as a local Police Officer. The last witness Mr. Serfontein, another Police Officer with the crime intelligence unit in Mahikeng. He as well requested Court not to grant bail and furthermore that should bail be granted, the public violence will intensify and continue. He as well introduced exhibit (E). All the witnesses were subjected to cross examination. Thereafter, Mr. Mudau closed the States’ application.
  5. The Defence then brought an application to re-open both the accused’s applications indicating that they were caught by surprise and did not deal with the merits of the case on the first affidavits. The State diligently did not oppose the application was duly granted.
  6. The Defence then submitted supplementary affidavits in respect of both accused, hence Exhibit (A1) and (A2) for accused 1 and (B1) and (B2) for accused 2.
  7. State was as well grated an opportunity to lead further evidence and Mr. Mudau indicated that State is satisfied with what it had on record.
  8. Both the Defence and State have addressed the Court. The Defence submitting that taking the evidence cumulatively, both accused have indeed discharge the onus placed on them by the relevant governing legislation and that bail be granted. The State has as well submitted that bail be refused and mostly drew the Courts attention to the fact that if bail is granted, there is likelihood that public order will be disturbed.

EVIDENCE ON MERITS OF THE CASE

  1. The defence presented its evidence in the form of affidavits and the State in the form of hearsay with exception of the evidence of Mr. Modisane.
  2. According to the accused’s version, on the day of the incident whilst performing their normal duties, they came across the deceased and one other stealing sunflower at one of their employer’s crop field. They managed to apprehend the deceased and the other one got away. The deceased was instructed to climb at the back of the van with the intent of taking him to the Police Station. Whilst on the way, the deceased jumped from the back of the van and injured himself. They immediately stopped, attended to the deceased and requested the passer byes to remain with the deceased whilst they rush to the Police Station to report the incident as well request for medical assistance.
  3. The version of the State is to the effect that after the deceased was apprehended, was made to climb in the back of the van and whilst the van was in motion, he was thrown off. Upon the accused noticing that they were seen by the witness, they loaded the deceased in the back of the van and went thereafter to fetch and load the witness. The witness was taken to the dam where he was interrogated as to whether he has seen the incident. The witness was slapped, made to drink liquor, after that to run in front of the van whilst the shots were fired on the ground around his feet. He vomited and was left there.
  4. The assumption is that the accused went away with the deceased and thrown him off the van the second time. The following day, both accused person rocked up at the witness’s place of abode and threatened to kill him should he ever tell anyone about the incident.
  5. The dispute on the merits is whether the incident did happen according to the Accuseds or State’s version. And at this stage, the Court is not going to commit itself on the credibility or reliability of any version as the Court has not have the benefit of listening to both the accused persons and the witness for the State on the merits as non has been cross examined. To even complicate matters, the identity parade has not been held, the witness as well has not yet linked or sufficiently described the deceased to be the person he is referring to in his statement and the cause of death is unknown.

LEGAL POSITION

  1. In S v Acheson 1991 (2) SA 805, Mohamed J remarked as follows:

“An accused person cannot be kept in detention pending his trial as a form of anticipatory punishment. The presumption of the law is that he is innocent until his guilt has been established in court. The court will therefore ordinarily grant bail to an accused person unless this is likely to prejudice the ends of justice”.

  1. The ends of justice and the interests of justice is the same.
  2. In terms of Section 60(4), the interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established: 

(a)  where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence; or

(b)  where there is the likelihood that the accused, if he or she  were released on bail, will attempt to evade his or her trial; or

(c)  where there is the likelihood that the accused, if he or she were release on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(d) where there is a likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system;

(e)  where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.”

  1. In S v Dlamini 1997 (1) SACR 54 (w), the court held that:

The presiding officer has a duty to investigate all aspects regarding the question of bail. If the parties do not on their own accord adduce evidence or otherwise produce information regarded by the court to be essential to the bail proceedings, a court in terms of Section 60(3) must order that such information or evidence be placed before it.

EVALUATION

  1. It must be born in mind that the basic enquiry remains to ascertain where the interest of justice lies and Court is not concerned with the question of guilt.
  2. The Court is wary of the fact that in evaluating the evidence during the bail application, the Court should lean in favour of the viva-voce evidence more than the affidavits because that was tested through the cross examination. This position though widely accepted, carries with it inherent disadvantage to the Court in that one is purely hearsay and the other an affidavit. Those who deal daily with matters in the Criminal Courts will agree with me that witnesses more often denies ever having made certain averments to the police and well deviates from their Statements.

      Therefore the Court is going to deal with the requirements as laid down in the Act.

Section 60(4)(a) read with Section 60(5)(a) to (h):- Where there is a likelihood that the accused, if released on bail, will endanger safety of the public or any particular person or will commit a Schedule 1 offence:

  1. In this regard, the Court is not in a position to can make any findings as to the nature and the extent of the injuries and the post-mortem report is not before Court. Both accused persons do not have any previous convictions or pending cases and there is no evidence that they have previously been charged with any offences that involve the use of force or violence and there is as well no evidence suggesting that they could be having resentment against any person.

Section 60(4)(b) read with Section 60(6)(a) to (j):- Where there is a likelihood that the accused, if released on bail, will attempt to evade his or her trial:

  1. Both accused persons were born and bred in Coligny and they have been residents for the rest of their lives except when accused 1 went to work in America for eight months. Both accused persons have realizable assets in accordance with their means.
  2. The accused persons have passports and they have offered to hand them to the State if the Court so orders. The R20 000.00 amount each tendered by the accused persons is more than reasonable under the circumstances and can serve as well as a clear indication that they intend standing trial. They have as well indicated their intent to plead not guilty to the charges and have as well put a version which may be sustained during the trial.
  3. There is no doubt in the Court’s mind that if bail granted, subject to reasonable conditions that the accused persons will abide by those conditions.
  4. The evidence as it stands before Court, clearly shows that the accused persons have no means (financial) to evade trial.

Section 60(4)(c) read with Section 60(7)(a) to (h):- Where there is a likelihood that the accused, if released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence:

  1. The eyewitness’s statement has been obtained and his version (evidence) is known. Both accused persons have disassociated themselves from his allegations.
  2. The investigations have not been completed and there is no evidence that if released on bail that the accused persons have potential to interfere with the outstanding investigations.

Section 60(4)(d) read with Section 60(8)(a) to (d):- Where there is a likelihood that the accused, if released on bail, will undermine or jeopardize the objectives or the proper functioning of the criminal justice system, including the bail system:

  1. As mentioned earlier, both accused persons have no previous convictions and pending cases, it is their first encounter with the law. Both have satisfied the Court that they will comply with any reasonable conditions that the Court may impose when granting bail.

Section 60(4)(e) read with Section 60(8A)(a) to (f):- Where in exceptional circumstances there is a likelihood that the release of the accused will disturb the public order or undermine public peace or security:

  1. It is indeed correct that the death of the deceased has in fact divided the community of Coligny along the racial line as evident from the two petitions that were submitted in this Court. There has been indeed protests that led to looting and destruction of property. The evidence as presented in Court could not clearly draw a clear line as to whether this public disorder could be attributed to the death of the deceased or service delivery, bearing in mind that there were similar incidents across the Ditsobotla Local Municipality which includes Itsoseng, Lichtenburg and Bakerville.

Though the viva-voce evidence of the witnesses that testified, seem to mainly align the public disorder to the death of the deceased.

  1. It is against this background that both of the accused persons in their applications provided the Court with alternative addresses of stay in order not to jeopardize their safety.
  2. There are as well indications that in case the Court grants bail, the public disorder will continue which will undermine and jeopardize the public confidence in the criminal justice system, however, the Court cannot be held at ransom. The fundamental function of the Court is to disperse justice.
  3. In S v Miselo 2002 (1) SACR 649 (C), the Court concluded that there was the likelihood that the release of the appellant on bail would disturb the public order or undermine the public peace or security. In this case, the Prosecution had also made out a strong prima facie case against the accused. Of course, this is not the position in this case.
  4. The State has itself conceded during the address to Court that if it was not for the witness’ statement, the matter would not have been enrolled. The Court is mindful of the fact that the identification parade has not been held and the witness has not sufficiently described the deceased or identified him as the person he saw being manhandled. Strictly speaking, there is no link between the said witness evidence and the accuseds at this stage and therefore no strong prima facie case.

Section 60(9) provides that when the question in this regard to all the above is considered, the court must decide the matter by weighing the interests of justice against the accused’s right to personal freedom and in particular he or she might suffer if detained in custody, taking into account:

  1. Both accused persons are healthy, gainfully employed. If kept in custody, pending the finalisation of this matter, chances are that they might lose their employment.
  2. The investigations have not been completed and it cannot be established as to how long it will take before the matter is ready for trial, therefore the continuing incarceration of both accused persons will result in them suffering irreparable harm. 

CONCLUSION

  1. 42. Bail is not to punish any accused person who is being suspected of committing a crime even when the charged laid against him is of a serious nature.
  2. The refusal to grant bail and the subsequent detention of an accused shall be in the interests of justice where one or more of the grounds listed in Section 60(4) of the CPA are established.  This is subject further to the provisions of Section 60(9) and the due consideration of an accused’s constitutional rights. 
  3. The common law inherent jurisdiction power to grant bail must be exercised consistently with the nature and purpose of Section 39(2) of the Constitution, which provides that a court “must promote” the spirit, purport and objects of the Bill of Rights and “enjoins courts to develop the common law in the interests of justice” when dealing with matters involving the fundamental constitutional issue of liberty. In this context, to “promote” means to further or advance the constitutional imperative of taking into proper account the fundamental rights encapsulated in Sections 12(1)(a) and 35(1)(F) of the Constitution.
  4. Section 12(1)(a) of the Constitution guarantees everyone’s right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause. The Constitution does not create an absolute right to personal freedom. Liberty is qualified and circumscribed by Section 35(1)(f) which reads: “Everyone who is arrested for allegedly committing an offence has the right….to be released from detention if the interests of justice permit, subject to reasonable conditions.”
  5. In S v Dlamini and Others; S v Joubert; S v Schietekat [1999] ZACC 8; 1999 (7) BCLR 771 (CC).

The purpose of bail is to strike a balance between the interests of society and the liberty of an accused person consequently, the basic objectives traditionally ascribed to the institution of bail, is to maximise personal liberty in accordance with the normative precepts of the Bill of Rights.

In terms of Section 35(3) of the Constitution every accused person has a right to a fair trial, which includes the right to be presumed innocent.

In a bail application the presumption of innocence operates in favour of the applicant even where is a strong prima facie case against him.

  1. In conclusion, The Court is satisfied that:
  • both applicants have no previous convictions;
  • both are gainfully employed and they provide for their families;
  • both are permanently residing in Coligny and they have assets which are situated within the jurisdiction of this Court;
  • they both intend to plead not guilty to the charge;
  • that they have a sustainable defence;
  • that they will stand trial;
  • that they will not interfere with the State witnesses;
  • that they will not interfere with the Police investigations; and
  • that they will not conceal or destroy evidence.
  1. All these factors cumulatively ways more in favour of the accused being granted bail.
  2. And it is in the interest of justice that they be admitted to bail. Both accused application to be released on bail is successful.