Convicted coffin assault pair Willem Oosthuizen and Theo Jackson have lost another court battle to be released on bail, pending their leave to appeal on their convictions and sentences.
“The applicants’ application for leave to appeal the refusal by the court below (High Court) to grant bail is dismissed on the grounds that there are no reasonable prospects of success and there is no other compelling reason why an appeal should be heard,” the Supreme Court of Appeal ruled on Friday.
Oosthuizen and Jackson approached the SCA for leave to appeal the refusal of their bail application after they were sentenced last year.
Not in interests of justice
However, the court said it was not in the interests of justice that the pair be released. The matter is likely to be heard later this year.
The SCA said counsel on behalf of both the applicants had conceded that race was a factor that impacted on the case.
“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 court said.
Race was a factor
On Monday, legal representatives for the two men were grilled by SCA judges, who asked if race was not the underlying factor when the two men forced Victor Mlotshwa into a coffin and threatened to pour petrol on him.
The matter was heard by Judges of Appeal Mahomed Navsa and Nigel Willis, as well as Acting Judge of Appeal Ashton Schippers.
The two were granted leave to appeal in February after the High Court, sitting in the Middelburg Magistrate‘s Court, dismissed their application for leave to appeal in October 2017.
Advocate Wayne Gibbs and Org Basson, for the men, both conceded at the time that race was an aggravating factor in the incident.
Arguing on behalf of his client, Gibbs told the court that Mlotshwa had threatened the accused after they found him in possession of suspected stolen copper cable.
He told the court that Mlotshwa had apparently told the men that they could do anything to him but not take him to the police.
But Navsa said, assuming Mlotshwa was found in possession of copper cable, as alleged, the men should have taken him to the police.
“The most normal reaction of any normal person is that they would have gone to the police,” he said.
Gibbs said the pair had wanted to “terrorise” Mlotshwa after he allegedly threatened their families and said he would burn their farms.
Against the spirit of the Constitution
Jackson and Oosthuizen were sentenced to 11 years and 14 years behind bars respectively.
As she handed down their sentences last year, Judge Segopotje Mphahlele said the men‘s conduct was “humiliating and disgusting”.
They had forced Mlotshwa into a coffin and threatened to pour petrol over him.
The incident was filmed and the video went viral on social media, sparking an outcry and demands for justice.
Mphahlele said their conduct had gone against the spirit of the Constitution.
The men were convicted of assault, attempted murder, kidnapping and intimidation.