Cape Town - A convicted murderer and kidnapper’s appeal against his 15-year prison sentence was dismissed by the Constitutional Court this week.
Makhi Kapa was one of seven people who stood trial in the Western Cape High Court for crimes forming part of vigilantism in Khayelitsha.
Kapa was charged with four counts of kidnapping, two counts of murder, two counts of assault with intent to do grievous bodily harm, and one count of attempted murder, but pleaded not guilty to all charges against him.
He was convicted on one count of murder for the killing of Makhuze Bungane. After being sentenced for the crime his appeals to the high court and Supreme Court of Appeal were also dismissed.
Kapa’s appeal case was built on whether the court should have accepted the testimony of Bomikazi Dasi – who died before the trial – in terms of the Law of Evidence Amendment Act.
Acting Justice Yvonne Mbatha, along with Justices Selby Baqwa and Owen Rogers, said the issues raised in this application were of public importance. “The events that led to the conviction of the applicant arose in a vigilante context.
“Vigilantism is alarmingly common in South Africa due to, among others, inadequate policing in low-in-come communities.
“This lack of state support leads to self-help by residents. This court has said, ‘(s)elf-help ... is inimical to a society in which the rule of law prevails ... Respect for the rule of law is crucial for a defensible and sustainable democracy’. Self-help cannot be condoned by our courts, but even in these circumstances, it remains important to ensure that fair trial rights are upheld,” said Justice Mbatha.
Bungane had been killed for allegedly stealing items – “such as a car radio and other things”.
He was fetched from his grandmother’s home by three of the convicted on the morning of August 21, 2016, and was assaulted.
He was taken back home after a few hours but was already dead.
In Dasi’s statement, which was given two days after the death of Bungane, she detailed how she had witnessed Bungane, her boyfriend, being assaulted in a Toyota Tazz, his hands and feet tied with rope. She had tried to stop the assault and had also sustained injury.
“The statement contained information about the criminal acts allegedly perpetrated by the accused; a single witness provided the statement; the statement described a crowded and traumatic scene in which the witness was herself allegedly being assaulted; and the investigating officer who took the statement already had suspects in mind.
The cautionary rule is applicable because the statement identified the accused and was made by a single witness.
“That Dasi’s statement was the only evidence which the State could tender on the identification of the perpetrators, was known at the time the High Court was called upon to decide upon its admissibility ... Dasi’s statement was the only available eyewitness account. One eyewitness inexplicably disappeared.
“The other recanted his statement while testifying. Dasi’s statement fulfils two main important functions.
“In the first instance, it serves to identify the parties that were involved. In the second, it serves to tell the court the role that each party played in the assault and murder of the victims. It thus plays a significant part in the matter,” said Justice Mbatha.
In evidence to court, medical doctor and forensic pathologist Bronwyn Inglis concluded that the cause of death was consistent with extensive blunt force injury.
Cape Times