Tatane: So many questions remain

2013-03-31 10:00

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Seven police officers were acquitted this week in the murder case of Ficksburg activist Andries Tatane in an outcome described as ‘surprising’ by the SA Human Rights Commission.

The National Prosecuting Authority (NPA) says it’s now possible that two police witnesses could be charged with perjury for ‘deliberately’ changing their evidence, while the commission will soon pronounce on the outcome of Police Minister Nathi Mthethwa’s appeal against its findings that police used disproportionate force, writes Carien du Plessis

What the state needed to prove

» Identity

»  Intent

» Common purpose

Seven police officers were acquitted of murder and assault this week in the murder case of Ficksburg activist Andries Tatane.

The outcome of the case in the Ficksburg Regional Court was described as “surprising” by the SA Human Rights Commission because, it said, with TV footage showing the incident, it seemed like an open and shut case.

The NPA says although it wasn’t immediately considering appealing the outcome, it’s now possible that two police witnesses could be charged with perjury for “deliberately” changing their evidence.

The NPA is expected to react to the judgment on Wednesday.

The state needed to prove the identity of the police officers involved in the murder and assault, especially the identity of the officer who pulled the trigger and that it was the bullet from that gun that caused Tatane’s death.

In order to get a guilty conviction against all the accused, the state needed to show that all seven acted with common purpose to murder and kill Tatane.

The requirements to prove this include that the accused must have been present at the scene, aware of the attack, intended to associate with those attacking Tatane, manifest their sharing of the common purpose by some act and that they foresaw the reasonable possibility that someone may be killed.

Advocate Dumisa Ntsebeza, who is acting for the miner workers in the ongoing Marikana Commission of Inquiry, which is also dealing with police brutality, said the state was quick initially to raise this principle against the miners in the Marikana tragedy, yet when police act in concert, the state struggles to prove it.

The state also needs to prove that the policemen had the intent to kill Tatane and that it wasn’t an accident.

Why the state failed to prove its case

» It couldn’t prove common purpose

» The accused could not be identified accurately

» The SABC would not release its unedited footage of the incident

» Two key police witnesses contradicted their own evidence

The rubber bullet that killed Tatane could not be traced back to a gun.

Defence lawyer Johann Nell told the court on Thursday that the prosecution only proved one of the five requirements for common purpose – that the seven accused officers were present at the scene.

Identifying the accused police officers was also a problem.

Regional Magistrate Hein van Niekerk said the accused weren’t identifiable from the pictures because many of those involved in the crucial parts of the incident wore police helmets.

A legal expert with close knowledge of the case said courts were very careful not to make mistakes in identifying alleged perpetrators in cases where helmets were worn.

Adding to this, two key police witnesses contradicted evidence they gave to the Independent Police Investigations Directorate (Ipid), thus rendering their evidence unreliable.

They could be charged with perjury at a later stage.

The edited SABC footage of the incident, which could have helped to identify the guilty parties, was not admitted as evidence in court, alongside footage taken by police and community.

The NPA didn’t push the SABC for the unedited footage “because the media aren’t working for the NPA”, said NPA spokesperson Bulelwe Makeke.

She said the footage would not have made a difference to the state’s case, but at least two legal experts with close knowledge of the case disagreed.

Findings from Ipid said it wasn’t possible to trace which gun the rubber bullet that killed Tatane came from because rubber bullets were in plastic casings and did not leave the same trace as conventional bullets on a shotgun.

They said there was no record of which police officer had fired which bullets.

What next?

» The NPA currently seems unlikely to appeal, but it may announce on Wednesday that it will

» If it doesn’t, the SA Human Rights Commission will push and help it to appeal

» The commission is also likely to pronounce soon on Police Minister Nathi Mthethwa’s appeal to put aside its investigation into and recommendations over police brutality

» The NPA could find new evidence and start a new case, but this is unlikely

» The Tatane family could bring a civil case against the police

NPA spokesperson Bulelwa Makeke said: “We will not be appealing because the judgment was based on the law.

There is not enough evidence to prove our case beyond reasonable doubt and our witnesses were unreliable.

An appeal would be a waste of taxpayers’ money.”

The NPA might hold a press conference on Wednesday after studying the judgment.

SA Human Rights Commission commissioner Danny Titus said the judgment was “a blemish on our system”.

The commission would “study the judgment very carefully to see if there are areas that can warrant an appeal”.

He said they would encourage the NPA to appeal.

One legal expert said regional Magistrate Hein van Niekerk’s emphasis in his judgment on Tatane as aggressor and his underplaying of the apparent undue force used by police could be cited as evidence that another court could come to another conclusion.

The outcome of Police Minister Nathi Mthethwa’s appeal against the SA Human Rights Commission’s findings last year that police brutality caused Tatane’s death will be known soon.

Mthethwa wanted the report set aside because he said the police were already implementing corrective measures.

Titus said the commission looked at the violation of human rights, while the courts looked at culpability and identity parades.

In the event of new evidence, the NPA could start a new case, but this would be difficult to do.

Legal experts said the courts were reluctant to recharge people who had been acquitted so as not to set a precedent for shoddy prosecution and incomplete police work.

The Tatane family has indicated that they’ll be pursuing a civil case.

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