THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable

Case No: 144/2018

In the matter between:

WILLEM JACOBUS ALBERTUS OOSTHUIZEN

FIRST APPLICANT
THEO MARTINS JACKSON

SECOND APPLICANT

and

THE STATE

RESPONDENT

Neutral Citation:
Oosthuizen & another v S (144/2018) [2018] ZASCA 92 (1 June
2018).
Coram:
Navsa and Willis JJA and Schippers AJA
Heard:

28 May 2018
Delivered:

1 June 2018
Summary:
Bail pending appeal – leave to appeal having been granted does not,
per se, entitle a person to be released on bail - there has to be a real prospect that a
non-custodial sentence will be imposed – provocation as a defence discussed.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria, (functioning as the
Mpumalanga Division, Middelburg) (Mphahlele J sitting as court of first instance):
The applicants’ application for leave to appeal the refusal by the court below 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.

___________________________________________________________________
JUDGMENT
___________________________________________________________________
Navsa JA (Willis JA and Schippers AJA concurring)

[1] This is an application for leave to appeal by two applicants, namely, Messrs
Willem Jacobus Albertus Oosthuizen (Oosthuizen) and Theo Martins Jackson
(Jackson),1 against the refusal of bail by the Gauteng Division of the High Court,
Pretoria, functioning as the Mpumalanga Division, Middelburg. The application was
referred by this court for oral argument in terms of s 17(2)(d) of the Superior Courts
Act 10 of 2013 (the Act). It concerns a case that has attracted national media and
public attention because it has stark and disturbing racial connotations. In national
public discourse the matter has been described as ‘the coffin case’. Race as an
historically destructive divisive factor, is something that no South African can be
unaware of. It is an aspect to which I will revert.

[2] In referring the matter for oral argument the parties were directed to be
prepared, if called upon to do so, to address us on the merits of the appeal against
the refusal of bail. Submissions were made by the parties, both in relation to the
application for leave to appeal and the merits. The background is set out hereafter.

1 Depending on the context, I will, throughout the judgment, refer to the applicants as ‘Oosthuizen’
and ‘Jackson’ or collectively as ‘the applicants’.

[3] During 2017 Oosthuizen and Jackson faced the following seven charges in
the court below:
‘Count 1: the unlawful possession of a firearm in contravention of section 3 read with section
3, 103, 120(1)(a) and 121 of Act 60 of 2000 and further read with the provisions of section 51
of Act 105 of 1997;
Count 2: assault with intent to cause grievous bodily harm;
Count 3: assault with intent to cause grievous bodily harm;
Count 4: kidnapping;
Count 5: attempted murder;
Count 6: intimidation; and
Count 7: defeating or obstructing the course of justice.’

[4] For a better appreciation of the sequence of events and the facts alleged by
the State, it is necessary to have regard, first, to the particulars in the charge sheet in
relation to the charge of kidnapping (count 4), which read as follows:
‘In that upon or about [17 August 2016] and/or near [Big House Squatter Camp in the district
of Blinkpan], the accused did unlawfully and intentionally deprive Victor Rethabile Mlotshwa
of his freedom of movement, forcing him into the back of a bakkie, tying his hands against
the roller bar in the bakkie and drove him to a place unknown to the victim.’

[5] Second, the particulars in relation to count 5 sets out what, according to the
State, occurred thereafter:
‘In that upon or about 17 August 2016 and at or near Hendrina Power Station, in the district
of Blinkpan, the accused did unlawfully and intentionally attempt to kill Victor Rethabile
Mlotshwa by threatening to shoot him, hitting and/or beating him continuously with a
knobkerrie to force him to climb into the coffin, threatening to put a snake inside the coffin
and forcefully attempting to close the coffin and also threatened to pour petrol onto him
whilst inside the coffin, and set him alight.’

[6] Following on the particulars in relation to count 4, set out above, the State’s
case in relation to the charge of intimidation (count 6) was that, one of the
complainants, Mr Victor Rethabile Mlotshwa (Mlotshwa), was kidnapped, in order to
prevent him from escaping and reporting the incident to the police and was
threatened by Oosthuizen and Jackson. According to the charge sheet they
threatened to shoot and kill him.

[7] In respect of count 2, it was alleged by the State that ‘upon or about 17
August 2016 and at or near the Big House Squatter Camp, in the district of Blinkpan,
the accused did unlawfully and intentionally assault Delton Sithole by hitting him with
open hands and kicking him with booted feet with the intention of causing him
grievous bodily harm’.

[8] Count 3 was also one of assault with intent to cause grievous bodily harm. It
was alleged that upon or about 17 August 2016 the accused did unlawfully and
intentionally assault the complainant by hitting him with open hands and kicking him
with booted feet and fastening his hands with a cable-tie against a roller bar of the
bakkie with the intention of causing him grievous bodily harm.

[9] With regard to count 1, namely the unlawful possession of a firearm, it was
alleged by the State that on the day on which the events referred to took place, and
at the location where the complainant was allegedly kidnapped, Oosthuizen was in
unlawful possession of a firearm in contravention of s 3 read with sections 103,
120(1)(a) and 121 of the Firearms Control Act 60 of 2000 and further read with the
provisions of s 51 of the Criminal Law Amendment Act 105 of 1997.

[10] The particulars supplied by the State regarding count 7, which related to the
defeating or obstructing the course of justice, are set out in the charge sheet as
follows:
‘[U]pon or during the months of October and/or November 2016, and at or near
Broodsnyersplaas in the district of Blinkpan, the accused did unlawfully and with intent to
defeat or obstruct the course of justice, burn to ashes a coffin that was used in the
commission of the offence to conceal evidence, which act defeated or obstructed the course
of justice.’

[11] The trial was conducted before Mphahlele J. Oosthuizen was acquitted on
count 1. On 25 August 2017, both Oosthuizen and Jackson were convicted on
counts 2 to 6. In addition, Jackson was convicted on count 7.

[12] The applicants were sentences on 27 October 2017. Oosthuizen was
sentenced as follows:
‘Count 2: (the assault with intent to do grievous bodily harm to Mr Delton Sithole, the first
complainant) – 3 years’ imprisonment.
Count 3: (the assault with intent to do grievous bodily harm to Mr Victor Rethabile Mlotshwa,
the second complainant) – 3 years’ imprisonment.
Count 4: (kidnapping) – 5 years’ imprisonment.
Count 5: (attempted murder) – 7 years’ imprisonment.
Count 6: (intimidation) – 6 years’ imprisonment.
The sentence imposed in respect of count 3 is ordered to run concurrently with the one
imposed in respect of count 6.
The sentence imposed in respect of count 4 is ordered to run concurrently with the one
imposed in respect of count 5.’
The cumulative sentence of 16 years’ imprisonment was ameliorated in that
Mphahlele J ordered five years thereof to be suspended for a period of eight years
on condition that Oosthuizen is not found guilty of any of the offences he was
convicted of during the period of suspension. The effective sentence was thus one of
11 years’ imprisonment.

[13] Jackson was sentenced as follows:
‘Count 2: (the assault with intent to cause grievous bodily harm to Mr Delton Sithole, the first
complainant) – 3 years’ imprisonment.
Count 3: (the assault with intent to cause grievous bodily harm to Mr Victor Rethabile
Mlotshwa, the second complainant) – 3 years’ imprisonment.
Count 4: (kidnapping) – 5 years’ imprisonment.
Count 5: (attempted murder) – 7 years’ imprisonment.
Count 6: (intimidation) – 6 years’ imprisonment.
Count 7; (defeating or obstructing the administration of justice) – 3 years’ imprisonment.
The sentence imposed in respect of count 3 is ordered to run concurrently with the one
imposed in respect of count 6
The sentence imposed in respect of count 4 is ordered to run concurrently with the one
imposed in respect of count 5.’
As with Oosthuizen, Jackson’s cumulative sentence of 19 years’ imprisonment was
ameliorated in that five years of his sentence was suspended for eight years on
condition that he is not found guilty of any of the offences he was convicted of during

the period of suspension. His effective sentence is thus one of 14 years’
imprisonment. Subsequently, the trial judge altered the period of suspension to 5
years. It is to be noted that in terms of s 297(1) of the Criminal Procedure Act 51 of
1977 (the CPA) a sentence of imprisonment cannot be suspended for a period
exceeding five years.

[14] On 27 October 2017, applications for leave to appeal by Oosthuizen and
Jackson in the court a quo, against their convictions and related sentences, proved
unsuccessful. Consequently, both filed an application for leave to appeal the
convictions and sentences in this court.

[15] On 7 December 2017, the applicants applied in the court a quo to be released
on bail pending the outcome of the application for leave to appeal to this court. That
application was refused. In refusing bail, Mphahlele J, inter alia, said the following:
‘I am still of the considered view that there are no reasonable prospects of success in
respect of the appeal. As I have already mentioned, the application is brought, pending the
outcome of the petition, whatever the outcome of the petition and the subsequent appeal,
should the leave to appeal the judgment and sentence be granted, taking into account the
evidence that was presented in this court and the nature and seriousness of the offences the
applicants were convicted of, it is likely that the sentences to be imposed on appeal would
be custodial. The granting of the appeal, would be like delaying the inevitable.
Under the circumstances, the application for bail is hereby refused.’

[16] On 2 February 2018 this court granted the applicants leave to appeal against
their convictions and the related sentences. This prompted the applicants to apply to
this court for leave to appeal the refusal of bail by the court below.

[17] In their application for leave to appeal, the applicants criticised the court
below, (Mphahlele J), for not considering whether the applicants, ‘in fact and in law
have a reasonable prospect of success’ in relation to the merits of an appeal against
their convictions and sentences and ignored what was described as systemic
difficulties ‘in expediting appeals in this court’. The court below was also criticised for
subsequently amending the period of suspension referred to above on the basis that

the substance thereof was not altered and that it was nothing more than a
typographical error.

[18] In respect of their prospects of success in relation to the merits of their appeal
against the convictions and sentences, the applicants contended that it is clear from
the record and especially from the objective evidence, such as a video recording
which they took of the incident, that Mlotshwa did not sustain severe physical
injuries. They submitted, further, that the State had failed to prove the requisite mens
rea in respect of several of the charges faced by them. They contended that the
evidence adduced in the court below favoured their version of events rather than the
State’s.

[19] In their applications for leave to appeal the applicants set out, in summary, the
State’s case and contrasted it with their version of events. The summary, in their
words, bears repeating and is set out hereafter:
‘17.2.1 According to the state:

We, on 17 August 2016, caught Sithole and Mlotshwa without any apparent reason;

Immediately commenced to viciously assault them;

Then released Sithole for no apparent reason;

Then took (abducted) Mlotshwa to a silage ditch close by where we attempted to
murder him and intimidated him by threatening to kill him, should he inform the
police; and

Mlotshwa sustained serious injuries.
17.2.2 On the other hand, our version is that:

We never met Sithole prior to his appearance in court;

His evidence as a whole was introduced by either the state or perhaps Mlotshwa to
support the state’s version;

We, on 7 September 2016, caught Mlotshwa as a result of his acting suspiciously;

Mlotshwa had suspected stolen copper cable in his possession;

We informed him that we were taking him to the police;

Mlotshwa then threatened to burn our crops every year and to murder our families
(who were alone at home during most of the day);

Mlotshwa’s threats provoked us and as a result, we took a decision to rather teach
him a lesson by scaring him in order to deter him from carrying out his threats and to
prevent him from stealing in future;


We then took him to a nearby silage ditch;

Jackson collected a coffin from his employer’s farm;

We instructed Mlotshwa to get into the coffin and then threatened to place a snake
inside the coffin with him and to burn the coffin with him inside;

We recorded the incident on our mobile phones to prove, if necessary, that he was
neither assaulted nor injured; and

Upon us noticing that he was crying and that he was really scared and we having
achieved our objective, we released him without so much as a scratch.’

[20] In addition to their complaints set out above, the applicants contended that
several of the offences, such as the assault on Mlotshwa, his kidnapping and
attempted murder, were committed with the same intention and that the evidence
required to prove one count also proved the others. In short, they complained that
there had been a splitting of charges and a duplication of convictions.

[21] Before considering whether the application for leave to appeal against the
refusal of bail should succeed, it is necessary to note the admissions made by the
applicants in the court below in relation to the charges faced by them, the
correctness of which was accepted before us. In relation to Oosthuizen, the following
admissions were made:
‘1. That he was present on 7 September 2016, along with the second accused and at or near
the R25 Middelburg-Bethal Road in the Blinkpan District;
2. That he and the second accused encountered Victor Rethabile Mlotshwa;
3. That he and the second accused requested Mlotshwa to get onto the back of the bakkie
driven by him;
4. That he took Mlotshwa to a silage ditch on the farm Blesbokvlakte;
5. That he and the second accused forced Mlotshwa to get into a coffin at the silage ditch;
6. That while Mlotshwa was in the coffin, he and second accused tried to close the lid of the
coffin;
7. That while Mlotshwa was in the coffin, he and second accused threatened that
7.1 they would burn him with the coffin; and
7.2 they would put a snake with him inside the coffin.

[22] Jackson made the following admissions:

‘1. He together with the first accused were present at or near the Middelburg-Bethal Road in
the district of Blinkpan on 7 September 2016;
2. He and the first accused there and then encountered Victor Rethabile Mlotshwa;
3. Mlotshwa was told to climb into a coffin whereafter they attempted to close the lid;
4. They threatened whilst Mlotshwa was in the coffin:
4.1 to burn him with the coffin; and
4.2 put a snake in the coffin with him.
5. He, during October 2016 and on the instructions of his employer and at the farm
Blesbokvlakte, destroyed the said coffin in which Mlotshwa was placed, by burning it.’

[23] We are in the difficult position of being precluded from pronouncing finally on
contested issues still to be adjudicated by fellow judges in this court in the appeal on
the merits of the convictions and sentences. We thus limit ourselves to a
consideration of that which is largely uncontested or common cause and on the
relatively limited record presented to us.

[24] It was put to counsel on behalf of Oosthuizen that, on the admissions
recorded in the court below and their contentions set out in paragraphs 21 and 22,
the applicants could, at the very least, be convicted of kidnapping, assault with intent
to do grievous bodily harm and that Jackson, in addition, could be convicted of
defeating or obstructing the course of justice. The response was that provocation in
the circumstances of the case could be relied upon to thwart a conviction. The
provocation, in this instance, it was submitted, was that Mlotshwa arrogantly
threatened to murder their families and annually burn their crops. Counsel on behalf
of Jackson contended likewise. We refrain from making a credibility finding on
whether, in the circumstances, where Mlotshwa was admittedly physically restrained
by the applicants, he could have behaved as alleged.

[25] It was contended on behalf of the applicants that they were entitled to confront
Mlotshwa and arrest him when they found him in possession of copper cables, the
origins of which could not be precisely determined. Their explanation as to why they
did not take him to the police was that he had begged them not to and was ready to
subject himself to whatever they might have had in mind. This is an aspect on which
I will comment later.

[26] Furthermore, it was put to counsel on behalf of both the applicants that in the
circumstances, provocation might, at best, in the event of their version of events
being accepted, perhaps be a mitigating factor rather than being exculpatory. The
response was that, even then, it might result in a non-custodial or significantly
reduced sentence and what had to be borne in mind, is that the applicants had
already spent a year in prison and release on bail should be favourably considered.

[27] Counsel on behalf of both the applicants rightly conceded that race was a
factor that impacted on the case. That concession has to be seen in the light of the
following uncontested summary of the relevant part of Oosthuizen’s testimony by the
court below:
‘He further testified that on one occasion he assisted De Beer, the first witness, to
apprehend persons who were stealing maize. De Beer informed him that he had scared
those individuals off with a coffin. Bearing this in mind, he asked the second accused
whether they still had the coffin or not. He thought it wise to threaten Mlotshwa with a coffin
so he could stop the threats and further deter him from stealing again. They then agreed that
the second accused would go and collect the coffin and they would meet later on at the
Hendrina-Pollens Hope gravel road.’
A little later, the judgment records the following additional part of his evidence:
‘He further confirmed that the coffin was used on black people suspected of theft and those
people never reported the incidents to the police.’

[28] For present purposes, I am willing to accept that there might be some merit to
the contentions on behalf of the applicants in relation to the duplication of
convictions, which will probably have some impact in relation to the severity of the
sentences imposed by the trial court. There is also some force to the submission that
alteration of the period of suspension is one of substance. These factors, no doubt,
played a part in this court granting leave to appeal. The latter submission might,
however, not have a direct impact on whatever sentence is ultimately deemed to be
appropriate by this court.

[29] In S v Masoanganye & another [2012] ZASCA 119; 2012 (1) SACR 292
(SCA), this court held that the granting of an application for leave to appeal does not,

per se, entitle a person to be released on bail. There has to be a real prospect in
relation to success on convictions and that a non-custodial sentence might be
imposed, such that any further period of detention before the appeal is heard would
be unjustified.2 Counsel on behalf of the applicants were constrained to accept that a
contrary conclusion on the facts of the present case militates against the application
being successful.

[30] As stated earlier, great score on behalf of the applicants was placed on
provocation, either as an exculpatory or a mitigating factor. I do not intend to embark
on an exhaustive excursus on provocation, but limit the discussion to what, for
present purposes, is required. Roman law and Roman-Dutch law did not regard
anger, jealousy or other emotions as an excuse for any criminal conduct, but only as
a factor which might mitigate sentence if the anger (emotion) was justified by
provocation.3 That used to be the position that pertained in most legal systems.4
More recently there have been developments elsewhere5 and there have also been
developments in our law in relation to provocation.6 There was a time when our law
repeatedly recognised extreme provocation as a complete defence under the term
‘non-pathological criminal incapacity’. Commentators have stated that since this
court’s decision in S v Eadie 2002 (3) SA 719 (SCA), provocation leading up to a
lack of criminal capacity as a defence has been limited, if not dealt the death knell.7

[31] In the present case there is no indication that provocation was ever relied
upon by the applicants in relation to a total lack of criminal capacity. There is also no
indication in the record that the applicants placed any reliance on s 78(7) of the CPA,
which provides:
‘If the court finds that the accused at the time of the commission of the act in question was
criminally responsible for the act but that his capacity to appreciate the wrongfulness of the
act or to act in accordance with an appreciation of the wrongfulness of the act was

2 See para 14. See also R v Mthembu 1961 (3) SA 468 (D) and S v Scott-Crossley 2007 (2) SACR
470 (SCA).
3 See J M Burchell et al South African Criminal Law and Procedure vol 1 (2011) 4 ed at 53.
4 See J M Burchell et al South African Criminal Law and Procedure vol 1 (1997) 3 ed at 202.
5 See Burchell fn 3 at 344-346 and 349-350.
6 See Burchell fn 3 at 53-54 and 338-345 and, also, C R Snyman Criminal Law (2008) 5 ed at 236-
242.
7 See Burchell fn 3 at 53-54 and C R Snyman Criminal Law (2014) 6 ed at 232-233.

diminished by reason of mental illness or mental defect, the court may take the fact of such
diminished responsibility into account when sentencing the accused.’
Having regard to the admissions made by the applicants referred to above and to
what was stated by them in their applications for leave to appeal, referred to in paras
19, 21 and 22 above, that position appears to have been adopted advisedly.

[32] C R Snyman Criminal Law (2014) 6 ed at 234, points out that provocation ought
to operate as a ground for mitigation of sentence only if there are reasonable
grounds for an accused’s anger. The following dictum in S v Mandela 1992 (1)
SACR 661 (A) at 665A-C is instructive:
‘Wesenskenmerk van provokasie as versagtende faktor is die onmiddelikheid van die
boosdoener se reaksie op die slagoffer se toornverwekkende handeling. Die boosdoener
moet onverwyld en in die hitte van die oomblik tot sy geweldsdaad oorgaan. ‘n Vertraagde
vergeldingshandeling met voorbedagte rade is heeltemal die teengestelde van daardie
momentele verlies aan of inkorting van selfbeheersing wat die waarmerk van provokasie dra.
Waar, soos hier, die boosdoener eers na verloop van aansienlike tyd na die uittartende
optrede, en nadat hy behoorlik geleentheid tot bedaring en besinning gehad het, sy slagoffer
in koelen bloede om die lewe gebring het, kan daar van provokasie as versagtende faktor
nouliks sprake wees.’8

[33] The following was said by Plasket J in S v Ndzima 2010 (2) SACR 501 (ECG),
para 30:
‘While it is a feature of provocation as a mitigatory factor that the criminal act that resulted
from it is usually committed immediately after the provocative act, the extent to which it is
mitigatory depends, essentially, on whether the accused’s loss of control as a result of his or
her anger would be regarded by an ordinary reasonable person – “’n gewone redelike mens”
– as an excusable human reaction in the circumstances. In this matter, a reasonable person
would baulk at the suggestion that the appellant’s acts of executing his incapacitated victims
were understandable in the circumstances, even though he was justifiably and
understandably angry at having been assaulted and, no doubt, fearful when he fired the first

8 ‘A material feature of provocation as a mitigating factor is the immediacy of the wrongdoer’s reaction
to the victim’s provocative act. The wrongdoer must have immediately and in the heat of the moment
resorted to violent conduct. A delayed act of premeditated retribution is the complete opposite of
momentary loss of or reduced self-control which carries the stamp of provocation. Where, as in this
case, the wrongdoer, kills his victim in cold blood a considerable time after the provocative act and
after having had time to calm down and come to his senses, provocation cannot be considered as a
mitigating factor.’ (My translation.)

shots. That he was provoked, and that the provocation was severe, is not in dispute. That
the anger evoked by the provocation led him to shoot the deceased who was running away
is also understandable. But then to execute both of the deceased, when he ought to have
been able to reflect on what he had done and to realise that he was no longer in any danger,
cannot be regarded as an excusable human reaction to the provocation.’

[34] In light of what is set out in the preceding two paragraphs, I now turn to what
is set out in the applicants’ heads of argument. The following are the written
submissions on behalf of the applicants in respect of the assault convictions:
‘16.2 In respect of a possible finding of assault, it is respectfully submitted that should it be
held that applicants’ version cannot be disregarded and therefore has to be accepted, that:
16.2.1 There was a sufficient provocation to warrant retaliatory action;
16.2.2 The retaliation occurred without premeditation and in the face of great and sudden
anger;
16.2.3 The retaliation followed immediately upon the provocation; and
16.2.4 The retaliation was moderate, reasonable, and commensurate in nature with the
provocation.
16.3 In the result it may be held that the accused’s actions were not unlawful.’

[35] What has to be borne in mind is that when Mlotshwa was first encountered,
on the applicants’ version, he was in possession of copper cables which they
suspected were stolen. Their explanation as to why he was not taken to the police, if
they genuinely suspected him of theft, is not particularly persuasive. The justification
proffered by them was that he begged them to do anything to him but deliver him to
the police. As stated earlier, on their own version of events and on the basis of the
admissions made, the applicants were, at the very least, guilty of kidnapping. They
had unlawfully and intentionally deprived him of his liberty.9 In their own words, they
forced Mlotshwa into a coffin and ‘then threatened to place a snake inside the coffin
with him and to burn the coffin with him inside’. Even if one were to accept, as they
alleged, that the State had not proved severe physical injuries, it is difficult to even
begin to imagine the psychological torment that Mlotshwa must have suffered.

[36] In dealing with ‘the intent to do grievous bodily harm’, J R L Milton South
African Criminal Law and Procedure vol 2 (1996) 3 ed at 432, said the following:

9 See J R L Milton South African Criminal Law and Procedure Vol 2 (1996) 3 ed at 544.

‘What is required is that X must have known, or at least foreseen the possibility, that his
conduct (whether this took the form of the application of force or threats) might cause Y
grievous bodily harm.’
In the Zimbabwean case, R v Edwards 1957 R & N 107, it was held that grievous
bodily harm is ‘harm which in itself is such as seriously to interfere with health’.10

[37] 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.

[38] The offences, which on the applicants’ own version of events they committed,
namely, that of kidnapping and the assault referred to above, are serious offences.
There was rightly an acceptance on behalf of the applicants, that race was, in the
circumstances of the present case, an aggravating factor. From the evidence
referred to in para 27 above, there appears to have been a practice on the part of
Jackson’s employer, Mr De Beer, to use a coffin in terrorem against black persons.
On Oosthuizen’s own evidence he was aware of this. By their actions, the applicants
associated themselves with the practice. The submissions advanced before us were
indicative of no remorse on the part of the applicants. If anything, there appears to
be a sense of justification and resistance. We were taken aback when counsel on
behalf of Oosthuizen suggested that Mlotshwa’s ‘terrorism’, which consisted of the
threats he apparently made, could rightly be met with the ‘counter-terrorism’ he was
subjected to. It was submitted on his behalf that it was regrettable that farm attacks
and murders (presumably with white farmers and their families as victims) were not
met with equal opprobrium. The court hearing the appeal on the merits will, no doubt,
consider whether the full record demonstrates any degree of real remorse. It cannot
be ignored that the video recording of Mlotshwa’s ordeal was made by the applicants

10 See also Milton at 433 and the authorities there cited.

and only they could have been the source of its publication which, in modern
language, went viral, adding to Mlotshwa’s further humiliation and the violation of his
dignity. The seriousness of the offences and the probable sentences militate against
releasing the applicants on bail.

[39] The applicants assert their right to liberty and to a fair trial and procedure
whilst ignoring how they infringed on Mlotshwa’s fundamental rights, including his
right to dignity and physical integrity.

[40] Having regard to what is set out in the preceding paragraphs, a probable
outcome of the appeal on the merits is that the offences admittedly committed by the
applicants will attract significant custodial sentences, extending beyond the one year
they have already spent in custody and beyond the time of the hearing of the appeal
on the merits. This is like to occur, even if their version that they were provoked in
the asserted manner is to be accepted. The applicants’ concern about systemic
failure in the administration of justice is not justified. Their counsel accepted that at
the very latest, a hearing of the appeal on the merits could be arranged for the last
court term of this year. They are also free to approach the President of this court for
an expedited date during the next court term.

[41] In refusing to grant bail pending the application for leave to appeal, Mphahlele
J stated that a custodial sentence was inevitable. We have come to the conclusion
that a significant custodial sentence is probable. It is not in the interests of justice
that the applicants be released, pending the hearing of their appeal on the merits.

[42] 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. Maya Angelou, the American author and
poet, said the following:

‘Prejudice is a burden that confuses the past, threatens the future and renders the present
inaccessible.’11
We cannot allow our futures and the future of our children and grandchildren to be
undone.

[43] Lastly, and with apologies to a great American and a former justice of their
Supreme Court, Thurgood Marshall, whose words I have adapted to apply to us as a
nation, I pause to reflect that we should, each of us, consider and apply them:
‘I wish I could say that racism and prejudice were only distant memories. . . . We must
dissent from the indifference. We must dissent from the apathy. We must dissent from the
fear, the hatred and the mistrust . . . We must dissent because [South Africa] can do better,
because [South Africa] has no choice but to do better.’12

[44] The following order is made:
The applicants’ applications for leave to appeal the refusal by the court below 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.

_________________
M S Navsa
Judge of Appeal

11 iZQuotes https://izquotes.com/quote/5536 (accessed 30 May 2018).
12 An extract from Thurgood Marshall's acceptance speech upon receiving the Prestigious Liberty Award on 4
July 1992.

Appearances:

On behalf of the first applicant:

W W Gibbs

Instructed by:

Marius Coertze Attorneys, Pretoria
Symington and de Kok Attorneys,
Bloemfontein

On behalf of the second applicant:
J G W Basson

Instructed by:

Marius Coertze Attorneys, Pretoria
Symington and de Kok Attorneys,
Bloemfontein

On behalf of the respondent:

R Molokoane

Instructed by:

Director of Public Prosecutions, Pretoria
Director of Public Prosecutions,
Bloemfontein