Pierre de Vos argues that ‘white lives matter for the police’ but not ‘black lives’. This he finds in regard to the Supreme Court of Appeal’s (SCA) exoneration of Pieter Doorewaard and Philip Schutte, who were ‘not guilty’, but served 13 months in prison as ‘Coligny Killers’. Here’s what De Vos did not tell you about the SCA’s judgment.
Under the headline, ‘Coligny ‘sunflower’ case tells us white lives matter more than black lives in small-town South Africa’, Pierre de Vos makes a flaming argument. To De Vos, the SCA judgment acquitting Doorewaard and Schutte actually ‘revealed’ a ‘racial hierarchy in Coligny’ that puts white people firmly above black people. ‘Coligny is still structured according to the logic of apartheid,’ he says.
De Vos explicitly pits his apartheid-still-lives interpretation against the argument that Doorewaard and Schutte were ‘victims of an injustice’ at the hands of the NPA, the police and the North West High Court. First off, take note that there might be some white supremacists in Coligny and those eventually found ‘not guilty’ might have been victims at the same time. That’s just logic.
Still, there is an awful tension. If De Vos is right, two white Afrikaners either killed a black child, or simply abandoned him to die in the dust, while ‘small-town’, or Afrikaans, South Africa is so racist that Rapport ordained its fiftieth anniversary special edition cover page with pictures of Doorewaard and Schutte over text that describes them as ‘victims’.
If De Vos is wrong, then the tragic death of Mathlomola Jonas Mosweu was taken advantage of by a mob of ‘self-help’ justice warriors thirsty for looted booze, aching to burn, and hungry for ‘white flesh‘. The mob was connected to politicians who showed naked prejudice and ‘guaranteed’ more violence should a ‘not guilty’ verdict ever be pronounced. The mob’s sentiment was echoed across newspapers, radio waves and television broadcasts that showed scant regard for the benefit of doubt, and, most distressingly, the mob’s wish came true by way of a prejudicial strike of the gavel.
Serious business
It is a serious business laying out evidence that a High Court Judge delivered a miscarriage of justice. What makes it all the more concerning is that, before this case, Judge Hendriks tried for promotion twice and failed. But – after convicting the accused in a judgment that incorrectly summarises the facts, includes an apparent ‘internal contradiction’ in the charges, as well as ‘material irregularity’ in conduct (quotes from SCA) –he was promoted. Thus, ‘Third time lucky‘: the Judicial Service Commission recommended he become Deputy Chief Justice of the North West, and President Cyril Ramaphosa made it so.
De Vos says that ‘it is not clear to me’ that the white farm workers were ‘necessarily victims of an injustice’, which is no surprise given his treatment of the SCA text. De Vos mentions the name ‘Seponkane’ zero times, while the SCA mentioned it 45 times.
I suppose the first thing De Vos would like to know about Warrant Officer Popo Seponkane is that he is black. He was the first cop on record to deal with part-time butcher Bonakele Bendel Pakisi, who accused Doorewaard and Schutte of murdering the young Mosweu and then beating him (Pakisi) in a vain attempt to shut him up. Was Seponkane a good cop, or a bad one?
According to Pakisi, Seponkane is a very bad cop indeed. On Pakisi’s version, as summated by Judge Hendriks, he first approached Seponkane on the Thursday Mosweu died, but was chased off, ‘insulted’, by being told he was ‘drunk’ and ‘crazy’.
Pakisi’s statement
On the Sunday, Seponkane would finally take Pakisi’s statement. But Pakisi said Seponkane lied and put words in his mouth by misrecording the statement.
Next, Pakisi says they went to the scene where Mosweu was ‘thrown’ and looked together at drops of blood, but that Seponkane failed to record them. In addition, Pakisi said he bore the marks of a person badly beaten, but that Seponkane failed to note that either, and that there had been three assailants. Seponkane would then be blamed for not calling forensic investigators. In sum, the charge is that Seponkane bungled the case, possibly to spite Pakisi.
But according to Seponkane’s version, a school principal called him in to hear Pakisi’s story for the first time on Sunday. No drops of blood were noted because there were none, no major injuries to Pakisi were noted because there were none, and ‘two’ assailants were recorded in his allegation because that is what he said. On Seponkane’s version, Pakisi is a liar or delusional.
There are two versions; both cannot be true. The trouble is, all the corroborating evidence is on Seponkane’s side.
On the Monday after Mosweu’s death, Pakisi returned to the scene of the alleged crime with Brigadier Kgorane, W.O. Modisane, and W.O. Mabote, an experienced police photographer. On this occasion, Pakisi again failed to mention the blood in the veldt, or draw the photographer’s attention to his own supposedly terrific injuries. In court, Brigadier Kgorane would back Seponkane’s version that Pakisi first said to Kgorane there were two assailants, not three.
According to Pakisi, Doorewaard and Schutte kidnapped him at gunpoint when they realised he had witnessed their assault on Mosweu. He said he was then taken on 47km hell-ride into the surrounding countryside, sharing the bakkie’s loadbed with the fatally injured and heavily bleeding Mosweu. In Pakisi’s account, he was eventually ordered to use his jersey to mop up some of the blood. If he had been able to produce the jersey, this would have doomed the accused. He would have also vindicated his own credibility, discrediting Seponkane, and proving beyond any doubt he was at the scene.
Mosweu’s blood
By contrast, if Mosweu’s blood was not present it would all be over for Pakisi’s version; Doorewaard, Schutte and Seponkane would be cleared.
So what did the blood test show? Nothing – because there was none. Why?
As SCA Judge Ledwaba notes, there ‘is simply no explanation whatsoever as to why the jersey in question was not handed to the police’.
So, on one point, De Vos is correct; ‘the police failed to gather any other evidence that may or may not have corroborated’ Pakisi’s version. How and why, are two of the trial’s great mysteries.
The police left much to be desired. However, whenever you are told the investigation was bungled because of ‘apartheid logic’ deference to the white farm workers, remember that detectives were dealing with a ‘witness’ who remembered new ‘evidence’ at every turn but ‘forgot’ to draw attention to it whenever a camera, or some other tool of corroboration, was at hand.
For a writer like De Vos the thing to understand is that a black cop was at odds with Pakisi and that if Seponkane got the chance he could have blown the case, and the race narrative, in one go.
A bad cop, as he saw it
Judge Hendriks took a different view. He believed Pakisi was ‘honest, truthful and reliable’, while calling for Seponkane to be investigated for gross misconduct, a bad cop, as he saw it, in clear need of disciplinary ‘action’.
How did Hendriks come to such a conclusion? SCA Judge Ledwaba draws attention to an apparent material irregularity in Judge Hendriks’ ‘summary of the substantial facts’, noting that Hendriks accepted as fact that an ‘intimidation docket was opened’ by unnamed Coligny police pertaining to Pakisi’s allegation against Doorewaard and Schutte. If such a docket existed, it was never seen again, nor was it acknowledged by Seponkane, and it was certainly not introduced to court.
Judge Hendriks’ ‘fact’, therefore, remained an untested allegation at Seponkane’s cost, just another part of the trend that muted Seponkane.
Seponkane was never called to testify at trial and so had no chance to defend himself against Pakisi’s allegations of misconduct. SCA Judge Ponnan argues that for the prosecutor to call Seponkane up would be like ‘play[ing] chess against him- or herself’.
Judge Ponnan’s analysis
To De Vos, all this is ‘not clear’, though a simple paragraph from SCA Judge Ponnan’s analysis should help:
It seems perfectly obvious that Seponkane was not called as a witness by the prosecutor because his evidence would have detracted in a direct and substantial manner from the evidence of Mr Pakisi. His evidence would have called the lie to Mr Pakisi’s evidence in many material respects. Plainly therefore, he was not called to protect Mr Pakisi from further adverse criticism.
The defence then approached Seponkane, who ‘intimated’ a willingness to testify. But what came after ‘intimation’ was intimidation.
A few days later, Seponkane refused to testify for the defence ‘as he feared for his safety and the safety of his family in the light of violent protests that accompanied this case in Coligny’.
Judge Hendriks could have inferred from the record that Seponkane’s testimony would go against the mob that backed Pakisi and the NPA’s case too. Hendirks had to know that either Seponkane was a good cop dealing with a bad ‘witness’, or the other way around, as his judgment attests.
In Ponnan’s view, Judge Hendriks therefore had both the duty and the power to force Seponkane to appear (while assuring his safety through a witness protection programme) before convicting anyone on the basis of Pakisi’s evidence.
Instead, Judge Hendriks admonished him in absentia,without corroboration, by calling Seponkane’s conduct ‘totally unacceptable and unprofessional’.
‘Opportunity to be heard’
As Judge Ponnan notes, he ‘reached this conclusion without affording [Seponkane] an opportunity to be heard’. Much like De Vos.
Judge Ponnan then summarises as follows.
‘It may well be that the failure by the high court to call Seponkane as a witness constituted a material irregularity amounting to a failure of justice, but it is not necessary to arrive at a firm finding in that regard because that aside, the appeal [‘not guilty’] must still succeed’.
Spare a thought for Seponkane, what he has had to endure for the last three years, and what Judge Ponnan’s analysis en passant might mean to him.
Remember how sure some people were of Doorewaard and Schutte’s guilt from the outset? The first magistrate recused himself in fear of the mob, the second released them on bail only for homes to be burnt again in another round of ‘self-help’ so-called ‘justice’, and then the first lead investigator would be too terrified to testify for the defence.
Now that the accused are found ‘not guilty’, what is left for those with a visceral need to see Doorewaard and Schutte suffer?
Small solace
SCA Judge Molemela may provide small solace, though not for the same motive. On Judge Molemela’s view, if you conduct a ‘citizen’s arrest’ then your duty of care could entail that, failing to restrain the person, if he or she jumps from your moving vehicle and dies you are to blame. This standard would apply regardless of race and without prejudice. On this basis, Doorewaard and Schutte may be guilty of culpable homicide.
Judge Ponnan disagrees on the law here, arguing that since the method by which they took Mosweu to the police was tried and tested by their own past experience to no ill effect, a ‘reasonable person’ would not foresee Mosweu’s dangerous jump coming and therefore no charge of negligence can be made.
Rather than get into the niceties of these conflicting legal opinions (which surely demand more thought), De Vos grabs the ‘culpable homicide’ line with both hands to raise ire against the ‘apartheid logic’ on which ‘white lives matter’ while ‘black lives’ don’t. He writes:
‘At the very least, the fact that the accused left the seriously injured boy on the side of the road, instead of taking him to the hospital, and did not attempt to provide any medical assistance to the victim, suggests a callous disregard for the life of a black youngster. What kind of person does that?’
On the face of it, this sounds convincing. In fact, it is just bigotry. If he’d bothered to read the court record properly before passing judgement, De Vos would have known that Doorewaard and Schutte were repeatedly asked some version of ‘what kind of person does that?’, and the answer was not: a ‘white racist’.
Rather, their understanding is that it would be dangerous to move a person with severe neck injuries, and two expert witnesses agreed.
Secondly, they didn’t just leave Mosweu lying there. They knew there was no ambulance in Coligny, and that one would have to be summoned from Lichtenburg, 45km away. Moreover, they knew from painful experience that calls to emergency numbers often went unanswered for hours.
A better plan
Schutte thought they had a better plan; they asked onlookers to watch over the boy and raced to the police station (two minutes away) in their bakkie while phoning a colleague for help tracking an ambulance number in the meantime. According to the court record, the call that hailed the ambulance came from the police station. Therefore, it came from Doorewaard and Schutte.
The police should have returned Doorewaard and Schutte to the scene thereafter and taken down a sworn statement. But why should the farm workers be blamed for the police’s failure to follow protocol?
It could also be argued that, morally, the farm workers should have returned to the scene, whatever the police said, but in that case their crime is bad manners, not murder or culpable homicide. And even that might be a stretch.
Given the racial inflammation that followed, it is easy to suspect that Doorewaard and Schutte feared that in returning to the scene onlookers from a nearby informal settlement would jump to conclusions and accuse them of the worst, regardless of fact, as De Vos effectively does.
In any event, Coligny police said Doorewaard and Schutte showed emotional concern, they hailed the ambulance, and on their own version the police phoned shortly after to say Mosweu had died. All of this has to go on mute too if you want to uphold De Vos’s ‘apartheid logic’.
Denied them leave to appeal
De Vos fails to address how profoundly challenging the SCA ruling is to the new Deputy Chief Justice of the North West. After convicting the accused, Judge Hendriks then denied them leave to appeal on the basis that no court would have come to a different conclusion. Overturning such a ruling is serious stuff.
Given the potential awkwardness of the situation, there are several good reasons for the SCA to emphasize the technical weaknesses of Hendriks’ judgment. As one judge put it to me in high school, ‘you cannot convict on a personal conviction’.
A judge might look into the accused’s eyes and just ‘know’ they are guilty but still have to acquit because demonstrable evidence does not pass the test. Judge Hendriks was obviously convinced Doorewaard and Schutte were guilty, but the SCA shows that even so he was obliged to find them not guilty.
To do this the SCA need only show the ‘sole State witness’s’ evidence was uncorroborated and unreliable, however honest or convincing Pakisi might be on an emotional level. Having shown that Hendriks’ judgment did not cross the final hurdle, members of the bench can then point out that it did not pass the first (recall Ledwaba’s note on the ‘summary of facts’) or hurdles in between, which task was taken up by Judge Ponnan.
Against this backdrop, it is odd that De Vos should use the SCA judgment to invite his readers into thinking Pakisi was a poor naif who made some slip-ups on the witness stand, thus allowing the accused to get off on a technicality. Nothing could be further from the truth.
Three details
In fact, the best that can be said for Pakisi is Judge Molemela’s observation that he got three details right: his description of Mosweu’s injuries, his description of the accused’s appearance, and his identification of Doorewaard as the man who drove the bakkie.
But Judge Ledwaba notes that Pakisi must have relied on hearsay to present other false evidence to police. Could this not apply to the three details above too?
In the ‘small-town’ context of Coligny and its surrounds, Doorewaard is an especially familiar figure, a nephew of the town’s most successful farmer. There was plenty of time between Thursday and Sunday for news to spread that he was the driver, via bystanders and police (with whom Pakisi claims to have personal connections). The same applies to the nature of Mosweu’s injuries.
With that ‘best’ in mind, turn to the worst, which takes the form of Judge Ponnan’s 12-page analysis of Pakisi’s evidence, showing that ‘even the most perfunctory interrogation’ of Pakisi ‘ought to have satisfied’ the court ‘of his mendacity’, and of evidence that was probably ‘deliberately fabricated’.
Pakisi initially swore there were only two handguns, then he swore there was a rifle too; he swore that at one place the ‘third man’ stayed inside the bakkie the whole time, then he swore all three beat him outside the bakkie at that location; he swore they went near Henwell Abattoir and then he swore they did not; he swore that he and Officer Kgorane used the same route and a different route in almost the same breath; toward the end of his testimony Pakisi admitted that he lied, under oath, repeatedly – which may be the most reliable thing he ever said.
‘Tip of the iceberg’
And this short list of ways in which Pakisi blows his own credibility is, Ponnan notes, ‘but the tip of the iceberg’.
After changing from thrice to once the number of times he saw Mosweu ‘thrown’ … ‘with my two eyes’, Pakisi introduced a near impossible detail. He said Mosweu flew with his hands outstretched as if to break the fall. If this were true, it followed that Mosweu’s palms and wrists would have been bruised or lacerated, but pathologists emphasized that there were, most unusually, no such injuries.
I might add that Judge Hendriks could not have overlooked the lack of such injuries; he emphasized them himself in his final ruling.
Likewise, all of the versions of Pakisi’s hell ride were contradicted by the cell tower data which showed that Doorewaard and Schutte were close to Coligny the whole time. The standard rebuttal, employed for example by Judge Hendriks in reference to one phone at one time, is that phones only show their location when they ping through an sms or phoncall. But, as detailed here, pings popped so regularly across their multiple phones on the morning in question that there can be no doubt the data blows whatever credibility Pakisi did not manage to destroy himself.
Incredible, yes, but Pakisi is also poetic and in his poetry may lie one last revealing truth. Why did he take over a year to come forward with allegations of multiple, near life-ending, beatings at the hands of a ‘big fat white bearded man’? He ‘was scared’ that he might anger the accused.
How to reconcile that with the fact that he already accused them of murdering Mosweu, of intimidating him himself and that he was staying in witness protection for this reason?
‘Any time is tea time’
Pakisi was asked about this in court and replied, ‘We knew that there was nothing that could happen to me because any time is tea time nobody knows’.
At some point you have to consider the possibility that Pakisi is insane. He said himself that ‘I have been disturbed on my health and my mind’. In court, after contradicting himself again, he was asked:
‘The problem is that when you now say that you testify and even now things are only coming to you for the first time and my predicament is that when I close the cross-examination you can remember tonight something else is that not true?’
Pakisi’s reply: ‘Yes that is correct because I have flashbacks, I can remember every time what occurred.’
Suffering flashbacks that contradict earlier flashbacks that contradict demonstrable facts suggests that Pakisi may be in desperate need of medical attention. Read his demonstrably impossible tale – of being repeatedly beaten, made to sprint past flying bullets, made to eat his own vomit, to watch a boy thrown in an impossible way, being drenched in Mosweu’s fluids but unable to produce one bloody jersey, determined to show the cops blood in the veldt and then failing to even mention it at the scene, being brave enough to point the finger for bloody murder but too ‘scared’ to mention a beating – and consider what lies past the tip of an iceberg and you might begin to wonder if Pakisi’s state of mind is best, poignantly, described by the phrase, ‘any time is tea time who knows’.
If Pakisi was sound of mind, then Judge Ponnan shows he must be charged with perjury for telling so many ‘deliberately fabricated’ lies under oath. Should the NPA pursue such charges, insanity may be his only defence. That might keep Pakisi out of prison, but the new North West Deputy Judge President still has not answered how he found Pakisi’s version to be ‘honest, truthful and reliable’.
Omitting this context leaves De Vos free to state that only Judge Ponnan alleged Pakisi’s evidence was ‘deliberately fabricated’ while Judges Ledwaba and Molemela ‘declined to endorse this view’. In truth, all three declined to call Pakisi ‘honest’, all showed him to be unreliable and the majority may well harbour doubts about his sanity. All three shared the labour of showing Judge Hendriks’ conviction failed to pass muster and the potential ‘material irregularities’ pointing to a miscarriage of justice are so terrifying I wonder how De Vos could have read them and failed to give it even a passing mention?
Final word
The final word must go to the dead boy, Mosweu. Put yourself in his broken little takkies and consider the last things that may have crossed his mind. I’m dying, why does the ambulance take so long? Why are they saying they lack equipment? Why did I take that chance? Can I have a second chance?
He cannot. But you can. You can think differently and do differently. You can stop yourself from making the same mistake twice. That is an awesome privilege.
*This article was offered to, but not used by, the Daily Maverick
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