Concourt frees student who fatally stabbed a policeman

A High Court judge who sentenced Unisa law student Liqhayiya Tuta to life imprisonment four years ago, made an error of law by overlooking his state of mind when he fatally stabbed a police officer.

The Constitutional Court made this finding and ordered Tuta’s release from prison. The court's majority judgment, penned by Acting Justice David Unterhalter and delivered yesterday, set aside Tuta’s conviction and sentence.

Assisted by Pretoria-based human rights attorney Mabu Marweshe, Tuta launched an appeal against the conviction and sentence judgments of Judge Bert Bam made at the North Gauteng High Court four years ago.

Judge Bam sentenced Tuta to life imprisonment for killing policeman Nkosinathi Sithole.

Constables Lawrence Makgafela and Sithole drove an unmarked red VW Polo vehicle and wore civilian clothes when they chased Tuta and his friend down the streets after 11pm on March 2, 2018.

The gun-wielding officers, who were part of the police’s Operation Fiela, apparently suspected that Tuta was hiding a laptop as he walked.

Tuta ran to a Shell petrol station, where the officers cornered him. It was at this point that he fatally stabbed Sithole.

He also stabbed Makgafela, who survived but spent weeks in hospital.

In his trial, Tuta maintained that he believed he was fighting off criminals attempting to kidnap and rob him, and therefore was acting in self-defence.

He denied that the constables identified themselves as policemen, but instead hurled insults at him and his friend.

Makgafela testified that the two men had identified themselves as police officers during the attempt to arrest Tuta.

He said he had been wearing a bulletproof vest with an SAPS logo, but had taken it off when he left the car to participate in a foot chase.

Judge Bam found Tuta guilty of both charges on the strength of Makgafela’s testimony.

The judge found it improbable that the “two experienced policemen on patrol duty on a specific mission and purpose, would, without rhyme or reason, attack an innocent pedestrian”.

Justice Unterhalter found that Judge Bam overlooked evidence of events that Tuta underwent following the incident.

This evidence corroborated Tuta’s defence that his state of mind during the incident was that he was fighting off robbers, found Justice Unterhalter.

This evidence was that, after the stabbing, Tuta told the security guards in the vicinity that he was being pursued and sought help. He then went to his residence and reported the matter to the security guards there.

He also telephoned his sister, who went with him to the police station to report the matter the next day. Police arrived at his flat that day to arrest him.

Said Justice Unterhalter: “This evidence of what occurred after the stabbing was not challenged by the prosecution.

“Yet the trial judge rejected it as inconsistent and improbable, and did so absent any explanation as to how the police came to learn of the applicant’s identity and place of residence, save for the report that the applicant had made to the police.

“The applicant’s account of what he did after the stabbing is consistent with his version that he thought he was being attacked by assailants, that his life was in danger, and that he had stabbed the deceased and Constable Makgafela in the belief that he needed to protect himself.”

He said the trial judge could not have simply rejected Tuta’s post-stabbing conduct as improbable had he assessed his state of mind.

“I find, therefore, that the trial judge made an error of law going to the heart of the applicant’s defence. The conviction and sentence of the applicant by the trial judge cannot survive this error,” Justice Unterhalter said.