The NPA has taken note of the judgment and based on the challenges we experienced during the trial we accept it. The NPA would have hoped for an outcome that would not leave such deep disappointment and pain not only to the family, but to the entire nation who witnessed the brutal demise of Mr Andries Tatane during a service delivery protest in a democratic South Africa.
The role of prosecutors in a court system is to present evidence to the court. For that we need reliable and credible evidence that will stand the stringent test of proving a case beyond a reasonable doubt. This burden of proof is the highest standard of proof required in our courts, and prosecutors must satisfy it because in a criminal case the liberty of the individual is at stake.
This means that the evidence must attribute all the elements of the offence to an accused, in a manner that leaves no reasonable doubt in the mind of a reasonable person that the offence was indeed committed by the accused, in the manner which is being alleged. The role of the prosecutor is to argue the state’s case with a view to assist the court in arriving at the truth.
Being mindful of the stringent nature of the court’s requirements for admissible evidence, identifying the perpetrator(s) who caused Mr Tatane’s death, beyond a reasonable doubt, was always going to be key for a successful prosecution.
In the prosecution of this case, the following challenges presented themselves:
A total of 35 witness statements were obtained and filed in the police docket. These witnesses are made out of nine members of the community whose statements relate to the protest march; 19 members of the South African Police Service, the majority of whom are colleagues of the accused; 4 members of the investigating team from IPID and the rest are related to chain evidence.
From reading the witness statements, of the 19 police officials who made statements, only six positively identified the accused upon viewing footage from the two videos that were admitted as evidence. One video was from SAPS, and the other was taken by a private person.
CHALLENGES DURING TRIAL
As a result of the attitude of the police witnesses, the prosecution team decided to call the three witnesses who had not deviated completely from their original statements.
During the course of the trial, two of the three remaining witnesses denied the content of their original statements, especially in so far as it related to the identity of the accused. The third witness had difficulties in explaining the contradictions between his evidence in chief and the evidence he had given during the disciplinary hearing against the police officers.
The three police witnesses could not withstand cross examination and were found by the court to be evasive, not credible and unreliable.
Another witness mixed up the identities of the accused during his testimony, to the extent that the defense found it unnecessary to cross-examine him.
Video footage of the incident was obtained from various sources – from SAPS, a private person and from SABC. The footage was admitted and accepted by the court. However, it found that the SABC clip did not add much value and did not take the case anywhere. The challenge with all the video footage was that the faces of some of the police suspects were covered with helmets.
In the instances of those whose faces were not covered, the witnesses gave contradictory testimony as to their identity and role in the chaotic events, to such an extent that one of them was claiming that Mr Tatane was the one who was punching the police officials.
At this point, it became clear that the prospects of convincing the court of the identities of the accused would not meet the evidential weight that the court required.
Unfortunately it was not possible to present ballistic evidence regarding the bullets fired at the deceased, as he was struck with rubber bullets. It is impossible for ballistics to link rubber bullets to a specific firearm, unlike in a case where live rounds are used.
IS THE NPA CONSIDERING CHARGES OF PERJURY?
The NPA will open a docket for investigation of perjury against the witnesses who recanted on their statements during their testimony given under oath. After completion of the investigations, the Director of Public Prosecutions will take a decision whether or not to prosecute.
IS THE NPA CONSIDERING AN APPEAL AGAINST THE RULING?
Judgement in this case was based on facts, and not on a question of law. On the basis of the many challenges we have outlined, the NPA is of the view that with the same set of facts that were presented in court it is highly unlikely that another court would find differently.