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- Sixteen years Tragedy Moshoeu died on April 20, 2017 in Coligny, in the northwest.
- Pieter Doorewaard and Phillip Schutte were originally convicted of murdering Moshoeu by throwing him out of a moving bakkie.
- The Supreme Court of Appeals found Doorewaard and Schutte not guilty and overturned their convictions and sentences.
The Supreme Court of Appeals (SCA) acquitted the two men previously found guilty of murdering 16-year-old Matlhomola Moshoeu, and found that the state failed to prove the case beyond a reasonable doubt.
Despite a split in the outcome of the appeal, the 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 the police demonstrated incompetence in the way the matter was investigated.
Versions in a nutshell
The State’s case was based entirely on the evidence of a single witness, Sibongile Pakisi, who claimed to have observed that the deceased was assaulted and mistreated 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 repeatedly assaulted him and forced him to drink hard liquor, before being threatened at gunpoint.
Doorewaard and Schutte said that after the deceased was caught stealing sunflowers, they arrested him and told him to climb into the back of the bakkie.
While taking Moshoeu to the police station, they said he jumped from the back of the bakkie.
They turned the bakkie around and found that he was still alive, but wounded. They then decided to drive to the police station to call for help and to arrange for an ambulance.
Conviction and sentence
In 2018, Doorewaard and Schutte were found guilty of murdering the teenager.
Moshoeu was alleged to have been thrown from a moving bakkie and died as a result of injuries sustained in April 2017.
The Northwest Superior Court found Doorewaard and Schutte guilty of murder, kidnapping, intimidation, robbery, and pointing a firearm.
Judge Ronnie Hendricks, at the time, said the murder was neither planned nor premeditated. It found that the incident happened as a result of dolus eventualis, News24 previously reported.
Less than a year later, in 2019, Doorewaard was sentenced to 18 years in prison, while Schutte was sentenced to 23 years in prison.
Following an appeal heard at the SCA, the high court on Friday overturned the convictions and sentences that found Doorewaard and Schutte “not guilty and released.”
The three appellate judges were of the opinion that the case had not been proven beyond a reasonable doubt, that Pakisi’s eyewitness testimony was contradictory and even deliberately fabricated, and that the police investigation had been botched.
Here are the findings of the appellate judges:
- Acting Appellate 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 that Moshoeu was thrown from the bakkie three times, however, during the trial, he said that the deceased was thrown from the bakkie once.
Pakisi also testified that Moshoeu was bleeding profusely while in the back of the bakkie, but tests performed on the bakkie’s cargo container found no traces of blood.
“Assuming that the vehicle that was tested was actually the bakkie that was used to transport the child who, according to Mr. Pakisi, was bleeding profusely, the Hexicon Orbit test results cast serious doubts on the testimony and credibility of the Mr. Pakisi, who is a unique witness, “Ledwaba said.
“Curiously, the court of first instance found that this inexplicable discrepancy was not 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 stated by Dr. Moorad.’
“I disagree, mainly because, except for Mr Pakisi’s proof, there was no direct or satisfactory proof that the child was thrown from the bakkie.”
In my opinion, there are substantial discrepancies in Mr. Pakisi’s evidence. He is a single witness and there is no corroboration of his testimony.
Ledwaba added that the experts who testified regarding the schedules and calls of the accused, confirmed their defense and contradicted Pakisi’s version in relation to the areas traveled, the distance and the estimated time it would take for such trips.
Ledwaba, however, noted that Doorewaard and Schutte’s version of how the deceased apparently disappeared from the bakkie was unsatisfactory.
With the provision of evidence, the interim appellate judge said that the state had yet to prove its case beyond a reasonable doubt.
In conclusion, after a careful analysis of the entirety of the evidence, I consider that the State did not prove its case beyond a reasonable doubt and that, therefore, the appellants should be acquitted.
- Appeals Judge Mahube Molemela
According to Ledwaba, Judge Molemela also concluded that Pakisi’s account did not meet the established standard for single-witness evidence and that, as a result, her evidence did not pass.
He also pointed to the contradictions inherent in Pakisi’s testimony.
“In my opinion, the clumsiness of the criminal investigation had an impact on the soundness of the State’s case, in particular, on the reliability of Mr. Pakisi’s evidence,” Molemela said.
“I agree with the findings of the a quo tribunal in relation to aspects that 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 paramedics and police officers who attended the scene, as well as the results of the autopsy) “.
“Furthermore, although Mr. Pakisi had not met with the appellants before, his description of them was accurate.”
These aspects make it difficult to conclude that Mr. Pakisi’s full version constitutes an invention. However, it is trivial that evidence from a single witness can only support a conviction if they meet certain requirements. Honesty alone is not enough. The witness must also be reliable.
Molemela, however, did not agree with the exemption request, which is a remedy that is provided to a person who has been maliciously accused, with false accusations against him.
He believed that the facts of this case justified an inference of gross negligence and that he would have set aside the murder conviction and replaced it with wrongful death.
It came to this decision based on the fact that arresting Moshoeu meant that both Doorewaard and Schutte took on a duty of care to ensure his safe transportation to the police station.
The appeals judge said they did not take the necessary steps to prevent Moshoeu from jumping or being kicked out of the bakkie, given the circumstances in which he was in the bakkie.
Furthermore, he found that approaching a curve at 60 km / h on a gravel road on the way to the police station was unreasonable, especially under these circumstances.
- Appellate Judge Nathan Ponnan
Ponnan wrote a separate agreement, agreeing with Ledwaba that the appeal should be upheld.
“Had there been a careful enough evaluation of the evidence in the record, the public interest, and the law, there might have been some doubt 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 a crime and that the conviction was a reasonable prospect, “Ponnan said.
Ponnan further pointed out other discrepancies in Pakisi’s version, including that no evidence was found of quad bikes at the scene, a third defendant, shooting, and that Doorewaard and Schutte severely assaulted him.
In short, the prosecution’s case consisted of Mr. Pakisi’s approval and nothing else. Neither Kgorane nor Nkosi seem to have made any effort [investigating officers] to ensure the veracity and reliability of Mr. Pakisi’s account of the events.
“In my opinion, even the most cursory questioning of their version should have satisfied them of their mendacity. Not only is there no objective corroboration for Mr. Pakisi, but his version, as it is, is riddled with inconsistencies and contradictions.”
This was reinforced by the fact that Pakisi later denied having seen the deceased thrown out of the bakkie for the second and third times, a contradiction also referenced by the other appellate judges.
Citing the record, Ponnan said there is no room for honest error and that his evidence cannot be true.
“This must mean that on the aspects mentioned, which are by no means exhaustive, their evidence has been deliberately fabricated.”
The fact that Mr. Pakisi was guilty of deliberate misrepresentation required the High Court to consider whether he could be safely trusted.
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 on the wrongful death charge, stating that there was no negligence on the established facts.
He said it was suggested that the speed at which Doorewaard and Schutte were traveling was excessive, dangerous or reckless, putting into question whether the deceased was being thrown from behind, lost his balance or was catapulted from the bakkie.
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