Bloemfontein - The case of the two men at the centre of the infamous "coffin case" who want to be released on bail pending appeal against both their convictions and sentences will be heard in the Supreme Court of Appeal (SCA) in Bloemfontein on Monday morning.
Willem Oosthuizen and Theo 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 their appeal.
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. The two were eventually found guilty of assault, attempted murder, kidnapping and intimidation.
Jackson faced a further charge of allegedly defeating 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.
Judge Segopotje Mphahlele described the crimes as appalling‚ disgusting and dehumanising when she sentenced the two men.
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 two men contend they are not a flight risk as they do not even have passports and are married with children.
They argue that leave to appeal was denied by the trial court on the narrow basis that there were no prospects for success, but now that the SCA had allowed the case to be heard, that reason for the denial should fall by wayside as it appears to be without foundation.
"It is respectfully submitted that there is no factual basis on which to conclude that it is not in the interest of justice that applicants be released on bail pending finalisation of their appeal," reads part of the papers submitted to the appeals courts.
They said their version of what transpired should be preferred above that of the State because it is corroborated by a variety of independently established facts and intrinsic evidence such as the content of the video, the photographs handed in at court as exhibits as well as the evidence of a number of state witnesses.
The applicants also want the court to consider the fact that they did not materially contradict each other in respect of their version and the complete absence of any outward physical injuries sustained by Mlotshwa.
“This aspect was confirmed by Mlotshwa's mother who testified that she saw him almost immediately after the incident. She did not make mention of or describe any of the purported heinous injuries Mlotshwa alleges (to have suffered). This aspect (of the total absence of any outward injuries) supports the applicants' testimony that they only intended to scare Mlotshwa and never assaulted him nor intended to kill him," they argued.
The applicants also stress that Mlotshwa contradicted himself on several occasions during trial and that he bluntly refused to show his alleged injuries to court.
They say this is made worse by the fact that Mlotshwa also failed to disclose or show his alleged injuries to the doctor who examined him after the incident.
They say the doctor did not observe the injuries Mlotshwa testified about.
The applicants are also arguing that there was an element of provocation after Mlotshwa threatened to burn their farms and harm their families if they took him to the police. They said this was after they found him acting suspiciously and upon searching him, found stripped copper cables in his bag.
"... when they insisted that they are taking him to the police, (Mlotshwa) threatened to burn the farms (a very real threat in the area) to harm their families (also a reality in the farming community and a very real and imminent threat to farmers)."
The applicants also argue that the trial court erred in finding the second applicant guilty of defeating the administration of justice by destroying the coffin, saying it had no effect on the administration of justice.
"It was admitted by the first State witness, the employer of the second applicant that he had instructed the second applicant to destroy the coffin. This happened long before the incident became known and the second applicant co-operated with the police and pointed out the place where the coffin was burned. Second applicant therefore burnt the coffin not with the intent to defeat the administration of justice, but on account of his employer's instructions."
The applicants also claim that they did not only admit forcing Mlotshwa into the coffin, but also presented the recordings to court.
But the State wants the appeal to fail as it has not been properly brought to court. The State says the issues on appeal, as stated by the applicants are not correct and that leave to appeal bail should have been referred to a full bench of the high court after it failed before a single judge.
The State further argues that the applicants were found of serious charges and were sentenced to a lengthy custodial sentence and a non-custodial sentence is inevitable even if the court of appeal comes to a different conclusion.
It dismissed the contention that Mlotshwa did not suffer any visible injuries saying he was referred to hospital for examination by the police.
"He sustained a visible open wound on his chest. His right hand was bruised from the shoulder to the elbow. His right eye was swollen and his nose was bleeding. His ribs were painful, mostly on the right side. His shoulders, as well as his back, were painful and swollen. The left leg sustained a round visible mark on the knee...
"The doctor saw the accused long after the incident took place and the wounds were completely healed at the time. She only saw that there was a visible scar on the chest... and recorded this on this on the J88 form," says the State.
The State further argues that releasing the two might give rise to public disorder as the offences committed were racially motivated and that their incarceration was justified.
"Public perception if released on bail pending their appeal would cause social disturbance," the State suggests.