Vigilantes lost out this time, but what about next time they bully a witness? asks Carmel Rickard.

If vigilantes, working with the tacit agreement of the police, beat up witnesses and pay them to give false evidence, what hope do courts have of establishing the truth?

This woeful state of affairs is not the nightmare child of a TV scriptwriter.

It falls off the page of a judgment given this week in the high court in Grahamstown, where three judges heard the appeal of a man convicted of murder and other crimes and sentenced to 20 years in jail.

After conviction, Masibulele Dyantyi claimed the evidence against him was rigged by a group of vigilantes and he appealed against his murder conviction.

Indeed there had been vigilante involvement in the evidence, as the appeal court heard.

And it had to consider whether Dyantyi’s conviction should be set aside because of these “brutal and unlawful attempts” to manipulate the trial by forcing witnesses to give false testimony.

The facts of the case were that Dyantyi, with his co-accused, went to the house of the person who was killed – Dyantyi’s uncle – after they had been drinking at a tavern.

Dyantyi said he waited outside and did not know what happened in the house.

Key witnesses for the State were two women who had been in the vicinity at the time of the killing: Dyantyi’s girlfriend, Andiswa Mbushe, and Sinakuna Busakwe.

During the trial it emerged that for some months after the murder nothing much happened by way of solving the crime.

About 20 months later, however, a group of vigilantes, calling themselves a street committee, took the two women to the police to make a statement.

Mbushe later said the vigilantes first took her to a house where she was assaulted and asked questions about what she had seen at the murder site.

Not satisfied with her recollections, the vigilantes instructed her to make a more incriminating statement.

Then they took them both to the police. Some of the group waited in the police station yard while the women made their statements and periodically they would look into the office where the statements were being taken. The vigilantes clearly knew what evidence the police had collected about the case.

On the basis of crime scene photographs, for example, they had even instructed the women to say they had seen the dead man’s legs sticking out of the bedroom.

When Mbushe told the vigilantes she had not seen this, they assaulted her and said she had to say she had seen the man’s legs. So at the police station, she did. She also lied about seeing the accused with particular weapons.

Some time later, however, Mbushe retracted her first statement and, in a second statement, explained what had happened.

The court heard evidence that suggested the vigilantes believed they could do what they liked. Not only did the police not try to stop them, the court found, but the vigilantes operated on occasion “with the active collaboration of the police”.

They even paid the witnesses to give false evidence: Busakwe received R200 upfront for her evidence and a further R900 nearer the time of the trial.

But the real question was not whether the vigilantes tried to fix the trial – that was obvious – but whether Dyantyi’s right to a fair trial had been compromised.

The appeal court said this had not happened: The trial judge carefully excluded all the tainted evidence and the vigilantes’ plans “came to nothing”.

Their conduct had “no impact” on the fairness of the trial, the appeal judges held, and the truthful evidence eventually heard was enough to convict Dyantyi.

But the court spoke about the “worrying evidence of vigilantism and efforts to subvert justice”, with the vigilantes committing a range of crimes including assault.

They appeared to have access to dockets and to operate “with impunity” and with the “tacit forbearance, at the very least, of the police”.

The “brazen, vicious and lawless conduct of these vigilantes” had to be dealt with and the court ordered the appeal judgment, with its details of the vigilante behaviour, be sent to the provincial police commissioner and the director of public prosecutions.

There may be readers who, fed up with police ineffectiveness or partiality, support the idea of vigilante action. What it means in reality, however, is clear from this judgment. Lies, bribery, assault and terrorising women never make a pretty picture.

* Carmel Rickard is a legal affairs specialist. [email protected],

** The views expressed here are not necessarily those of Independent Newspapers.

The Star