Tag: parole

by Kevin King

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Most of us are aware of the ongoing saga of the Waterkloof 4 (Tiedt, van Schalkwyk, Becker & Du Preez), four underage white boys convicted of having assaulted and killed a homeless black man. Apart from the Oscar Pistorius murder, the trial has elicited more publicity than any other in recent South African history and has led to endless denunciations of “white racism” and psycho-babble about “Afrikaner brutality”.

I have been lucky enough to read through the witness and accuseds’ testimonies, crime-scene photos and specialist statements and found all of the evidence to be extremely interesting.  Unlike the Oscar Pistorius case, where many details were disclosed in the media, journalists never gave much away when reporting on the Waterkloof 4 case.  Maybe it was because it appeared to be open and shut, especially judging by the public and the mainstream media who presumed them guilty before proven innocent.  Nevertheless, a guilty verdict was handed down to four of the boys.  I’ve decided to lay out the facts about this case by sharing my findings, which come directly from court evidence.

Background

• August 2003: three boys who had knowledge of the crime decided to come clean regarding the incidents which took place in December 2001.  These three identify the “Waterkloof 4”, aged 15 and 16 at the time of the crime, who are subsequently arrested.
• July 2004:  they plead not guilty
• June 2005:  they are found guilty
• January 2007:  they are sentenced to 12 years imprisonment each
• April 2008:  they appeal to the High Court
• May 2008:  their appeal is denied
• June 2008:  they take their case to the Supreme Court of Appeal
• August 2008:  their application to the Supreme Court of Appeal is turned down and they start their 12 year sentences
• December 2011:  two of the four have their sentences converted to correctional supervision after a successful parole hearing
• June 2013:  the two return to jail after their parole is appealed by Correctional Services
• February 2014:  the four are released on parole but two are rearrested days later after a video shows them violating prison regulations a day before their release.

The trial

In summary, the State’s case was based mostly on witness testimony that the Waterkloof 4 had assaulted an unknown black man in Constantia Park and later that night brutally assaulted and killed another unknown black man in Moreleta Park.  The Waterkloof 4 denied the first assault but admitted to the second assault, with exception that they killed the man or intended to kill him.  The only evidence other than witness testimony was the second victim’s body.

Constantia Park assault (alleged first assault according to witness testimony)

The accused vehemently denied this assault took place and thus the State had to prove this event occurred.  As mentioned, the only evidence was that of the State’s witnesses as there was no case of assault reported to police and the unknown man was never seen or heard from again.

The Defence accused the witnesses of fabricating the story and this accusation is given some credibility when the State’s witnesses left gaps in their testimony.  The judge dismissed these gaps and other anomalies due to “traumatic memory issues on behalf of the witnesses” and accepted their testimony as fact.  The defence also brought up the possibility of collusion which the judge dismissed, even though the State’s witnesses had more than a year to collude.

Nevertheless, the Defence had to counter the State’s witnesses’ testimony and did so by looking at phone calls which were used to identify a time line and locations of individuals, with the help of cellular phone towers.  Although the calls placed the accused in the vicinity of the second assault (Moreleta Park), they placed significant doubt on whether the Constantia Park assault was possible as it gave the accused (and witnesses which drove with the accused) a maximum of 14 minutes to drive in a fully loaded small Toyota Tazz from Hatfield, look for a shop to buy milk, assault the unknown man in Constantia, wait “5 minutes” for the other accused to meet up with them and then get to Moreleta Park.  To make the State’s case worse, the State’s witnesses testified that they were not speeding but the judge corrected this and stated that they were probably speeding, overriding State’s witness testimony and again raising doubts over the credibility of their testimony.  The Defence also questioned why the accused had driven through Constantia Park, as this was a longer route to where they were heading.

Although the accuseds’ testimony represented a more reasonable and logical explanation of events as it more reasonably fits the timing of the calls and the logical route to their destination, their testimony was dismissed as lies as it contradicted the testimony of the State’s witnesses.  In the end there was no reliable evidence to put the accused at this crime scene other than the State’s witnesses’ testimony which was accepted as reliable.

Near the end of the examination of the Constantia Park assault, the State prosecutor went on to say that the witnesses might have mistaken this event with something that happened on another day:

“Edelagbare, oor hulle getuienis daar op kan hulle verwar het met ‘n ander dag.  Dit is hoekom ek nie hard wil betoog oor hierdie klagte nie”

This was ignored by the judge.

Moreleta Park assault

The accused admitted to brutally assaulting an unknown man in Moreleta Park, who they claim was a burglar who had just robbed a residence.  This was backed up by the State’s main witness.  The Defence however questioned whether the man found in the park was actually the man they assaulted, an outrageous claim, but appears to be supported by the physical evidence (see below).  Again the State relied heavily on the State’s witness testimony that the man found in the park was the man the accused assaulted as the man was found in “exactly” the same place the next day after the assault.  It must be noted that the main State’s witness, who is not one of the Waterkloof 4, was also involved in the assault but was given immunity for turning State’s witness.

One of the State’s witnesses had disclosed to a teacher that the motive for the attack was purely racial while the accused say that they had gone after a man who had run across the road with a television.  They suspected the man of being involved in a burglary.  On the day of discovering the victim in the park, a car radio was found next to the victim and this was later found to be stolen as a case of robbery had been reported to the SAPS.  The victim was also found with a wallet (money inside), watch, and a ring and was well dressed with new shoes, smart cap and had four tattoos, which appears contrary to the claims that this man was homeless.  The State’s witness confession to the teacher prior to the arrests was that the accused never knew of the stolen goods during the attack and only used this as an excuse to do commit their foul deed.  Contradicting stories meant that it was up to the State to prove murder.

Besides the State’s witness testimony, the State had very little evidence:

• No physical evidence linking the accused to the victim (no DNA, no trace evidence)
• No murder weapon (no knives, no hammer)
• No time of death (due to “refrigeration”)

By all accounts the assault was described as brutal.  Besides the melee of punching and kicking, one of the accused had demonstrated his “Naas Botha” kicks on the victim.  A State’s witness testified that this accused had kicked the victim twice in the face with steel tipped shoes, one of which was later found to be dented in.  This was confirmed by the aforementioned accused.  The entire group had jumped with full weight on the victim like in a “loose rugby scrum”.  Another of the accused had hit the victim twice on the crane of the head with a hammer, the first blow bringing the victim to his knees while the second blow floored the victim completely.  All of this was admitted by the accused and agrees with State witness testimony.  The State’s witness also testified that the accused had made stabbing motions towards the victim (admitted by the accused) but cannot confirm whether the accused had stabbed the victim.

The post mortem indicated that the unknown man had died of severe blood loss cause by one deep cut in his thigh.  Besides this cut, the medical experts made the following findings:

• There were no bruises or fractures to the skull
• There was minor subdural hematoma but no swelling on the brain or any other change to structure of the brain.  The fact of whether the hematoma was caused by the assault could not be determined.
• Three small scars on the head, two of which had scabbed before the assault, the other one showed no signs of significant bleeding
• Face, nose, tongue, throat showed no bruising, discolouration, bleeding, lacerations or scarring
• There were no broken teeth
• There was no bruising or trauma to the neck
• There was no bruising or trauma to the chest and diaphragm
• There was no bruising or trauma to the abdomen
• Internal organs showed no trauma but some were bleak due to blood loss
• No bruises or fracturing on the back
• No noticeable bruising, fractures or trauma to the rest of the body

With regards to the cut in the thigh (cause of death), the medical experts made the following conclusions:

• The victim had lost between 4 – 5 litres of blood, which meant he would have bled to death over a 24 – 48 hour period as no major arteries were penetrated.
• With regards to the object that made the stab wound, the medical specialist found that: “Hierdie gat kon nie veroorsaak gewees het deur ‘n mes, of selfs ‘n dun yesterstaaf nie” or in English, this could not have been made by a knife or even a thin iron rod.  The object appeared similar to a spike on a palisade fence which backs up the Defence’s claims that the victim had cut himself on a palisade fence while fleeing from a residence he had burgled.

As you can see this posed serious questions against the State’s argument that the victim found in the park was the man that the accused claim they assaulted.  Some of these questions raised by the Defence were:

• Physical evidence on the victim shows no correlation to the assault as described by the accused and the witnesses.  There is no evidence that suggests a knife or hammer was used in the attack even though a State’s witness had testified that he had seen blood on the hammer after the attack.  There was also no evidence that the boys had jumped on the victim or kicked the victim in the face.  When the pathologist was asked by the Defence whether it was obvious that the body brought before her was not the body of the man as described in the assault, she answered: “Yes that is correct.”  A second pathologist replied with the same answer.
• The crime scene inspector found no evidence of blood on the ground near or beneath the victim, or anywhere else in the park for that matter.  Where did 4 – 5 litres of blood go?  The State contested that the light rain that night may have washed away any evidence of blood or that the victim’s clothing had absorbed all of the blood but this was disputed by the Defence.
• The flow of blood on the victim suggests the possibility the body was moved after death and moved to the spot where the body was eventually found.
• If the only injury the victim sustained was the cut to the thigh and the victim took between 24 and 48 hours to bleed to death, why did the man remain in the same spot for this lengthy period of time?  Why didn’t he seek medical treatment or at least crawl/limp away from the scene?
• The victim’s shoes were removed while there had been no mention of this by the accused or State’s witnesses.

In the end however the judge ruled, after quoting a previous case “the State vs. Bernardus 1965”, that the body is full of anomalies and that sometimes death can be caused by the slightest of assaults.  Although this judgement contradicts all witness accounts and the physical evidence, this ultimately leads to the guilty verdict for the Waterkloof 4.

Sentencing

The Waterkloof 4 were sentenced to 12 years imprisonment each, five years after the crime was committed (13 years ago).  Because of the extreme brutality of the assault, there was much public and media outcry for a harsh sentence.  However the law differentiates between adults and minors for sentencing purposes.  Taking into account that the perpetrators were juvenile (also first-time offenders), different sentencing laws had to be followed.

Quoting an article by Zita Hansungule, who works at UP’s Centre for Child Law:  “In 2009 the Centre for Child Law had challenged the constitutionality of the Criminal Law (Sentencing) Amendment Act which provided that minimum sentences should apply to 16 and 17 year-old offenders.

The High Court found that applying minimum sentences to these offenders was not in line with the Constitution which provides that children have the right not to be detained except as a measure of last resort, and then, if detention is unavoidable, only for the shortest appropriate period of time. The High Court held that in cases pertaining to minors, the courts must consider all available sentencing options, especially non-custodial sentences, before considering detention. 

The Constitutional Court was approached to confirm the decision of the High Court. It confirmed the decision and held that the Constitution envisages that detention of young offenders may be possible, but it mitigates the circumstances of detention. It confirmed that for minors, detention is not a first or intermediate resort but a last resort. The Court held that each individual case needs to be examined on an individualised basis so that an appropriate sentence can be found. It stated that ‘legislation cannot take away the right of 16 and 17–year olds to be detained only as a last resort, and for the shortest appropriate period of time, without reasons being provided that specifically relate to this group and explain the need to change the constitutional disposition applying to them’. 

These judgements confirmed that children should be treated differently to adults in sentencing, no matter how old they are. Both courts were of the view that children are less physically and psychologically mature than adults, more susceptible to pressure from others and more receptive to rehabilitation than adults.”

Taking this into account the Waterkloof 4 appeared to be sentenced fairly as this is about the maximum that a juvenile will face for a single murder charge.

Parole

As with the case of sentencing, parole is also a thorny issue.  In accordance with the law, the Waterkloof 4 were released on parole last week.  The law allows for this if the offenders have served 50% of their sentences and have completed internal correctional programmes and have been well-behaved.  According to parole documents the four were all but exemplary during their stay.  I’ve looked through parole documents and found that they interacted well with other inmates and also took part in social activities.  Study courses were also completed during this time.  It is thus reasonable to concede that their release on parole is in accordance with the law.  Subsequently however, two members of the Waterkloof 4 have been ordered to return to prison after a video showed them “living it up” in their cell a day before release.

Conclusion

It has been more than 10 years of trials, appeals, paroles and controversy, a kind of soap opera that will be remembered by most of us for many decades to come.  As I’ve described, there are many questions left unanswered regarding the crimes committed in 2001, those which surfaced during trial.  There are also questions we need to ask regarding our criminal justice system.  I’d like others’ thoughts on this matter…

Kevin King is a professional DJ and freelance columnist