Port Elizabeth - Former police constable Walter Francis is not off the hook for a murder in which his official police firearm was used, after the Port Elizabeth High Court dismissed an application for his discharge on Tuesday.
Defence advocate Terry Price brought an application in terms of Section 174 of the Criminal Procedure Act which states that if, at the close of the prosecution’s case, the court believed there was no evidence that the accused committed the offence, it could return a verdict of not guilty.
However, Judge Jannie Eksteen said on Tuesday that it was Francis's conduct that enabled the shooting and if not for his role, a man may not have been killed.
The State alleges that on October 25, 2014, Francis, 29, Enzorich Kroates, 22, and Clement Kogana, 29, were at the home of Shane Potberg, 34, when a shooting incident occurred. Following the shooting incident, Francis gave his official police firearm and several rounds of ammunition to Potberg.
At the time of the alleged crime, Francis was stationed at Humewood police station. The State had alleged that the next day, Potberg, Kroates, Kogana and another person drove to Bethelsdorp to take out Denton Rademeyer.
Enzorich Kroates, 22, and Clement Kogana, 29, in jovial mood after they were found not guilty of murdering Denton Rademeyer in Bethelsdorp in October 2014. VIDEO: Raahil Sain/ANA
However, Eksteen found Kroates and Kogana entitled to a discharge. They were found not guilty on charges of murder and unlawful possession of firearm and ammunition, with Eksteen saying there was no evidence that placed them on the scene of the murder, no evidence showing that they participated in the murder, nor was there any evidence linking them to the possession of the gun and ammunition.
Francis, however, in his plea, had admitted to giving his service pistol and ammunition to Potberg but claimed that he had nothing to do with the killing. Francis said in his plea that he reported the loss of his firearm to his then station commander Brigadier Ronald Kohl, a day after Rademeyer was shot dead.
"He admits that he proceeded to his home upon receipt of the news of a shooting at the home of Potberg to fetch his service weapon and ammunition. No reason is set out for his decision to fetch his firearm, nor does he explain why such a significant amount of ammunition was required or what he intended to do with the weapon.
"He admits that he handed the firearm and ammunition to Potberg. It was this conduct that enabled the shooting of the deceased the following evening...I think that in the absence of an explanation, an agreement with Potberg to use the weapon to take revenge is a plausible inference which could be drawn," said Eksteen.
Former police constable Walter Francis, 29, Enzorich Kroates, 22 and Clement Kogana, 29. PHOTO: Raahil Sain/ANA
In February 2016, Potberg was shot and killed when gunmen fired into his Dolph Road house in Bethelsdorp. The gunman stood at a security gate while Potberg watched TV inside, police said at the time.
A section 204 witness, Alex Ferreira, who apparently drove the vehicle for Rademeyer's murder, was meant to testify in the case but was subsequently shot and killed last year. Ferreira's statement was subsequently ruled inadmissible at the trial.
Francis has also been charged with Ferreira's murder. During the trial it also emerged that a woman was fearful to come testify as a State witness after receiving a threatening phone call. Eksteen subsequently ruled that her testimony be held in camera and for her name to be withheld.
The trial continues on Wednesday.