“There has to be a real prospect that a non-custodial sentence will be imposed,” read part of the judgement.
Oosthuizen and Jackson were sentenced by the North Gauteng High Court sitting in Middelburg on October 27 last year to 11 and 14 years in prison, respectively.
They approached the SCA after losing their initial bid to be released on bail while preparing to launch appeals against both conviction and sentence. The high court dismissed the appeal saying it had no prospects for success but in their new attempt to be released pending appeal, the duo says their chances of winning the case are fair.
The appeal against the refusal for bail was heard on Monday.
The two men contended that they were not a flight risk as they do not even have passports and are married with children. Their counsel also argued that leave to appeal was denied by the trial court on the narrow basis that there were no prospects for success.
The pair landed in trouble after a video they filmed forcing Victor Mlotshwa into a coffin, accusing him of trespassing and stealing copper cables in the area, went viral on social media. They also threatened to burn him alive. The two were eventually found guilty of assault, attempted murder, kidnapping and intimidation.
Jackson faced a further charge of allegedly defeating or obstructing the ends of justice after he burnt the coffin‚ which was to be used as evidence in court.
Oosthuizen and Jackson denied any wrongdoing and insisted they beat up Mlotshwa for copper cable theft after they found him with some in his bag. The victim denied stealing anything. He told the court that he was attacked while trying to hitch-hike to town. He claimed he was beaten with a knobkerrie and the two also threatened to burn him alive.
The case drew wide international attention and was largely viewed as racially motivated.
The pair was also found guilty of assaulting Delton Sithole with the intent to cause grievous bodily harm when they found him walking along a footpath which separated two maize fields. The incident happened on the same day Mlotshwa was attacked by the two.
The court said while it had been argued that pair acted harshly towards Mlotshwa because they felt provoked after he threatened to burn the farms and harm their families because they said they were taking him to the police, it could not justify their actions as they were too extreme.
"Even if one were to accept that Mlotshwa threatened the applicants in the manner set out above, one would have expected them to have taken him to the police. They, however, followed their prior instinct, which was to resort to their own brand of justice. They kidnapped Mlotshwa, drove him to a particular location, fetched a coffin, forced him into it and made the most horrendous threats, including fetching a lighter to make it seem that they would carry out their threats. Whatever else, their retaliation, if indeed it was that, can hardly be described as moderate, reasonable and commensurate, as submitted by their counsel. On their own version of events, this was vigilantism at its worst," said the SCA in its findings.
The court said some of the offences committed by the applicants, namely, kidnapping and assault, are serious offences. It said there was also an acceptance on behalf of the applicants by their counsel, that race was an aggravating factor.
"It is sad, as this case and others in the public eye demonstrate, that we as a nation have reached this stage of racial polarisation and that we have not yet overcome the deep divisions that our history imposed on us. It is the very antithesis of our constitutional compact. We cannot ignore the fact that racial intolerance is something that can be exploited by those intent on undoing and subverting constitutional values. Racist behaviour is absolutely unacceptable and courts can rightly be expected to deal with it firmly," the judgement said.
The matter was heard by Justices Mahomed Navsa, Nigel Willis and Ashton Schippers while Advocates Wayne Gibbs and Org Basson represented applicants one and two, respectively.