The Johannesburg high court has dismissed the director of public prosecution's application for leave to appeal the acquittal of four cops accused of killing Mthokozisi Ntumba. 

The four public order policing officers – W/O Victor Mohammed, Const Tshepiso Kekana and Sgts Cidraas Motseothata and Madimetja Legodi – were freed in July 2022 after acting judge Mawabo Malangeni granted their application in terms of Section 174 of the Criminal Procedure Act to be discharged.

Ntumba, 35, was shot on March 10 2021 in Braamfontein during a student protest. 

In his ruling delivered on Monday, Malangeni said he correctly applied the relevant law dealing with circumstantial evidence.

"What has been raised by the state as points of law or questions of law is just facts. Furthermore, what has been raised by the state in its grounds of appeal will not change the colour of the proceedings or are not essential ingredients to the offences. Therefore, I do not see any prospects of success on appeal by the applicant," he said.

In the application for leave to appeal, Gauteng deputy director of public prosecutions Jacobus Serepo said he believed the Supreme Court of Appeal "would find that there were material misdirections on the question of law” in the trial court’s judgment.

He said the court had stated that the state was supposed to have charged other police officers, however, "it is the evidence of the applicant [the state] that there were only four police officers at the crime scene and this aspect was never disputed by the legal representatives of the respondents".

However, Malangeni said since the case was premised on circumstantial evidence, he looked at a number of pieces of evidence which includes video footage viewed in court.

He said the scene of the incident was contaminated and there was also evidence of ballistic experts and contradictions between evidence of state witnesses on the issue of whether a rubber bullet is lethal or not.

"In respect of the video footage, after having listened [to] the evidence of other state witnesses who viewed a certain video footage at the offices of Ipid [Independent Police Investigative Directorate], I indicated that the one I viewed was different from the one viewed from the offices of Ipid," he said.

Malangeni's decision does not, however, stop the state from petitioning the Supreme Court of Appeal in Bloemfontein for leave to appeal. 

In 2023, three of the four officers – Mohammed, Kekana and Motseothata – were given two months suspension without pay after they were found guilty of allegedly shooting Ntumba. Legodi was found not guilty of the same charge. 

At the time, Gauteng police spokesperson Capt Mavela Masondo said the officers were charged with misconduct and all four of them were given final written warnings.

chabalalaj@sowetan.co.za