Convicted coffin assault duo Willem Oosthuizen and Theo Jackson will have to wait until the end of the week to find out whether or not the Supreme Court of Appeal (SCA) will grant them bail, pending leave to appeal both their sentences and conviction.
On Monday morning, legal representatives for the duo 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.
“It has become a notorious fact in South Africa that racism is a divisive issue and it must be dealt with. The complainant here had his rights to dignity infringed,” an unimpressed Navsa told advocate Wayne Gibbs, who was representing Oosthuizen.
“He was restricted at the back of the bakkie and at the mercy of these people,” Navsa added.
He also said the pair had still not acknowledged that what they did was a “terrible thing”.
However, Gibbs and Org Basson, who represent Jackson, both conceded that race was an aggravating factor in the incident.
Oosthuizen and Jackson were applying for leave to appeal the refusal of their bail application.
The men 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.
The application for leave to appeal both their convictions and sentences, is likely to be heard later this year.
Arguing on behalf of his client, Gibbs told the court that Mlotshwa 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 by the men, they 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.
“You put someone in the coffin, you threaten to burn him and threaten to put a snake inside… Can that be in any way tolerable?” Navsa asked.
Gibbs said the pair wanted to “terrorise” Mlotshwa after he allegedly threatened their families and to burn their farms.
Schippers also asked Gibbs if he thought the men‘s offences were racially motivated.
“I say this because of their evidence and that it is not the first time they used the coffin. They were the only source of making the video and the only source of distributing the video. As far as they are concerned, they did nothing wrong?” Schippers asked.
Judgment was reserved until end of the week.
Jackson and Oosthuizen were sentenced to 11 years and 14 years behind bars respectively.
As she handed down the sentences, Judge Segopotje Mphahlele said the men‘s conduct was “humiliating and disgusting”.
They had forced Mlotshwa into a coffin and threatened to pour petrol on 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.