On 31 August, in Mbizana District Court in Eastern Cape, the Magistrate decided that the five assailants in the December 2015 Christmas Shootings in Mdatya village, Amadiba, were not guilty.
The five were accused of “Attempted murder, Assault with intent to do grievous bodily harm, pointing and shooting of firearms and theft”. All charges were thrown out. It did not matter that some of the charges had been admitted by the accused in cross examination.
In one of the defence lawyer’s many attempts to postpone or throw out the case, he in 2019 approached Mthatha. He got the answer: “Having considered your representations in this matter and having read the docket herein, I am of the view that the State has a very strong case against the accused and I therefore direct that the case must proceed”, signed WV Genu, Chief Prosecutor: Mthatha Cluster.
We did not see much of that yesterday. But this is the only case of violent attacks in our community ever been brought this far.
The defence called a brother of one of the accused as final witness. He was one of nine family members out of 14 defence witnesses. In the evening of 30 December the accused attacked a homestead, fired shots and stole food and beer to be used in a family ceremony the following day. This witness claimed that the accused had been with him the whole night.
The Court made much of the fact that the Prosecutor would not use his right to speak and motivate for the guilt of the accused, but instead just referred to the witnesses’ evidence. “The state does not believe in its case”. He would not argue his case, and he did not even say it himself.
The defence lawyer then started by saying the other case had been thrown out by the prosecution because there simply had been a fight between two groups. His witness was a police officer, who gave that reason in Court. So this case should also have been thrown out.
This other case was about an ACC member allegedly stabbing one of the accused during the December 2015 incident. A case was opened by one of the accused on 24 July 2016, seven months later. It was immediately thrown out by the prosecutor. But it was reused here. An inyanga earlier testified for the defence that he had seen deep cuts in the arm, obviously not knowing that the accused earlier had said in Court that he had been stabbed in the back. And with this deep stab wound, the accused had allegedly been sitting in ten days of bail hearings and in arrest over two weekends in January 2016? The community saw him for six days in Court. He was not complaining.
During the previous hearings in August, the defence lawyer had presented a medical certificate about it missing for five years. The Magistrate had commented that anyone can buy such a certificate. Yesterday, the Magistrate instead criticised the plaintiffs. “Just because there is a fight, don’t think you can win because you open a case first!”.
Something had happened. The Magistrate had changed his views completely.
In previous hearings, the Magistrate had pointed out how defence witnesses were contradicting themselves. Were there “over two hundred” who walked around threatening mining supporters during the day, or “ten”? The Magistrate also believed that it had been completely dark on the night of 30 December 2015. It was what witnesses from the family of the accused had said. The plaintiff should be “ashamed of himself” to say that he had identified the accused. But in the moon calendar, the moon was 78% full that evening and the five accused are known in the village.
The defence also argued that a plaintiff had appeared “intoxicated” in Court, and had admitted that a “resolution” had been taken that mining supporters should be chased away. There was indeed a community meeting at the Headwoman’s house on 22 December 2015. Because there were shootings in the village the day before. Her home had been one of the homesteads attacked. But the witness, who got tired under cross examination after waiting the whole day without food, had in fact denied that any such resolution had been taken.
The Magistrate now instead accused the Headwoman for being a “liar”. Where did that come from? She was not a part of this case and never appeared in Court. He closed the case he has had since 2019 by saying that all defence witnesses had put forward the same story and that the accused has acted in self-defence. “This case should have been thrown out by the first Magistrate. It is an easy case. I will make a decision right now”.
He said that the Court had been “misused for a political agenda” directed against mining in Xolobeni.
One of the three victims had worked in Durban before breaking his leg badly during the attack, but now works part time in the ‘Cleaning up the Coast’ EPWP program, accepted on a disability quota. The Magistrate called him a liar who tried to get the sympathies of the Court by using a crutch or a walking stick in Court. He agreed with the defence witnesses that this crime victim was lying about his disability and has “permanent employment”. The Magistrate obviously did not believe the medical record.
When closing the Magistrate put great trust in a defence witness because he claimed to be “neutral” in the mining conflict. That man had testified he came to the site of the incident on 30 December 2015 and saw two groups fighting with sticks. Indeed he was a hero. He had intervened in between the groups and stopped the fighting.
In reality this person is the Chair of a pro-mining “development committee” in Mdatya started by the five accused and with them as members. He lied to the Court. He arrived at the site when the attack against four community members coming from a ceremony was already over. Because he has a car, he was then engaged by ACC members to take two of the injured victims to the Ntabeni clinic in KZN.
This had been a five-and-a-half-year long process. There have been 15 Court appearances. The defence lawyer managed to postpone the case again and again. It ended in a travesty of Justice.
“We went to the Court to get Justice. But if Justice is not being served, what is the point of going to the Court.”
ENDS
Amadiba Crisis Committee
Spokesperson: Nonhle Mbuthuma 0763592982