ConCourt justice 'strongly' believes judge got it wrong in convicting student of cop's death

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Liqhayiya Tuta.
Liqhayiya Tuta.
Vuyo Jabe
  • Liqhayiya Tuta was convicted of the 2018 murder of a police officer and the attempted murder of another. 
  • Tuta argued he acted in self defence, thinking the police officers were robbers because they were in an unmarked car and wearing civilian clothes.
  • On Tuesday, the Constitutional Court heard his application for leave to appeal his conviction and sentencing - judgment was reserved.  

Constitutional Court Justice Mbuyiseli Madlanga says he believes Liqhayiya Tuta, the Unisa LLB student convicted of the 2018 murder of a police officer, was wrongly convicted.  

Madlanga and eight other justices heard an application for leave to appeal Tuta's conviction and sentencing.

Tuta was sentenced to life imprisonment for the murder of Constable Nkosinathi Sithole.

He was also sentenced to another 15 years behind bars for the attempted murder of Constable Lawrence Magalefa.

In March 2018, Tuta, who was 21 at the time, was walking with his friend through Sunnyside in Pretoria when the two officers in civilian clothes approached them in an unmarked red VW Polo. 

He and his friend ran, and the officers gave chase.

Sithole caught up with Tuta, who fatally stabbed him after he pinned him down. Magalefa was also stabbed and injured.

The following day, Tuta went to the police station, left his contact details and address, and was later arrested. 

He approached the apex court seeking leave to appeal the conviction and sentencing after the Supreme Court of Appeal dismissed his application. 

During his trial, Tuta said he acted in self-defence, thinking the men were trying to rob and kidnap him.

He told the court the men spoke a language he did not understand and there was nothing that identified them as police officers. 

Arguing on behalf of Tuta, advocate Tembeka Ngcukaitobi said: 

The State had to establish that the applicant intended to act wrongly. That is a crucial test that he subjectively intended to act wrongfully. In other words, he subjectively knew that his conduct was wrong.

"In order to overcome this hurdle, the State had to prove that he knew that the two gentlemen who chased and accosted him were policemen and dispute the knowledge that he acted in the manner that he did."

In finding Tuta guilty, based on the strength of Magalefa's testimony, Judge Bert Bam said he found it improbable "two experienced policemen on patrol duty on a specific mission and purpose, would, without rhyme or reason, attack an innocent pedestrian".

Madlanga said this finding worked on the assumption that police officers never lied. 

"I believe, subject to what you [the State] will say, that Mr Tuta was wrongly convicted.

"The judge just proceeded from an assumption that police can never lie, police always act lawfully, and that is quite central to the probabilities that the judge then grappled with.

"As Mr Ngcukaitobi said, are we able to go there and only revisit the conviction if we can say here is a constitutional bias for doing so or here is a basis founded on our general jurisdiction to do so. 

"It is one of those cases in my view that are quite unfortunate and where I strongly feel, again subject to what you may say and to the extent that it may be relevant for you to say anything at all, but I strongly feel that the judge got it all wrong and all of it had everything to do with the attitude that he adopted," Madlanga added.   

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Ngcukaitobi argued during Tuta's cross-examination, the prosecutor did not put the State's case to him regarding his intention on the night of the incident.

"Given the fact that there was a total failure of cross-examination on this topic, the applicant was entitled to believe that his version, which was that he reported the matter to the police, would be accepted to be true and that it would not be used against him in the judgment that was handed down," he said. 

Prosecutor advocate Alicia Roos argued the "State was curtailed in some sort of way by the court during cross-examination, but I must submit that that didn't have an influence on how or whether the State asked this applicant about his state of mind because I now submit that it was already clear from the cross-examination of the State witnesses what the state of mind of the applicant was".

Roos told the justices the two officers had identified themselves to Tuta.  

"The applicant knew at that stage that these were two police officers and furthermore, there wasn't a language barrier like the applicant wants the court to believe as we know he is an LLB student, and furthermore, there was a conversation in English between one of the police officers and the applicant.

"It was never denied by the applicant that he had this conversation in English with one of the officers," she said. 

Judgment has been reserved. 

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