Mthokozisi Ntumba killing: State applies for leave to appeal acquittal of four police officers

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Mthokozisi Ntumba. (Supplied)
Mthokozisi Ntumba. (Supplied)
  • In July, the Gauteng High Court in Johannesburg acquitted four police officers accused of killing Mthokozisi Ntumba during a student protest in March last year. 
  • The court found there was no credible evidence to convict them. 
  • The State has filed leave to appeal against the High Court decision, saying there were "material misdirections on the question of law". 

More than three months after the Gauteng High Court in Johannesburg freed four police officers accused of killing Mthokozisi Ntumba, the State has filed an application for leave to appeal against that decision.

Ntumba was killed in March last year in Braamfontein during student protests over historical debt. He had just left a doctor's consultation at a clinic when he was shot dead, allegedly by the officers.

However, in July, the police accused of killing him were acquitted.  

In an affidavit filed in the High Court last week, Gauteng Deputy Director of Public Prosecutions Jacobus Serepo said he believes the Supreme Court of Appeal "would find that there were material misdirections on the question of law" in the trial court's judgment.  

Tshepisho Kekana, 27; Cidraas Motseothatha, 43; Madimetja Legodi, 37; and Victor Mohammed, 51, had been tried on charges of murder and attempted murder. 

The accused in court
The four police officers accused of killing Mthokozisi Ntumba were freed.

According to the State, three students waiting outside the Johannesburg Institute of Engineering and Technology College were also shot and injured that day.

But the officers were acquitted after acting Judge Mawabo Malangeni granted their application in terms of Section 174 of the Criminal Procedure Act to be discharged.

READ | Court acquits cops accused of his murder, family institutes R56m civil suit

The State disagrees with his findings.

In his affidavit, advocate Serepo said the court misdirected itself in its application of the law relating to the discharge application by not considering all the facts in dispute in its judgment.

I am of the view that the questions of law raised in this matter are compelling reasons why the Supreme Court of Appeal must consider this application.

Serepo said the trial court disregarded the testimony of two witnesses who said they viewed the video footage at IPID offices and that they had identified the accused at the crime scene.

Another witness testified that she saw only one police vehicle at the crime scene.

The pocketbook of one of the accused was handed as an exhibit through the consent of his legal representative, wherein he admitted to shooting at a group of students with rubber bullets using a shotgun.

Mohammed admitted to someone dying at the scene where he shot at the students, Serepo said.

Colonel Busisiwe Moeketsi, from the public order policing unit, testified that the accused "were not supposed to have shot at anyone without the instructions of their senior member".

Serepo also said the State had led the evidence of 18 witnesses, but some of the witness testimony was not included in the judgment. 

"The honourable court stated that the applicant [State] was supposed to have charged other police officers who were under the command of the respondents, however, it is the evidence of the applicant that there were only four police officers at the crime scene and this aspect was never disputed by the legal representatives of the respondents.

"The circumstantial evidence that the applicant relied on to prove its case was a matter of common cause that was not challenged by the legal representatives of the respondents. However, the trial court made a negative adverse inference against the case of the applicant."

ALSO READ | 'Courts don't base decisions on public opinions,' says judge after acquitting cops

In July, Malangeni said that in the video footage, which was presented to the court, the identity of the officials was unknown as they were wearing masks and in police uniforms.

When the footage was played, he said, no one had identified the accused, adding that the court could also not see any of the officials firing the shots. 

"In these proceedings, there is no direct evidence in the form of eyewitness or witnesses... I mean to say that there is no person to say he or she saw the accused persons, or any of them, committing the offences in question," the judge said at the time.

"The State's case is premised on circumstantial evidence, being the video footage."

Malangeni said there had been 21 police officers on duty that day and that there was no evidence that the accused were given different ammunition and firearms. 

He said the firearms used that day were shotguns with rubber bullets, adding that ballistic analysis of the firearms should not have been confined to the accused but to all 21 officers. 

"On the evidence presented by the State in its entirety, there is no credible evidence upon which this court, acting carefully, may convict," he said.

"Fortunately, courts do not base their decisions on public opinions and/or media reports, but on what has been presented before them."

The accused were found not guilty and discharged on all counts. 

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