"On the basis of many challenges, the NPA is of the view that with the same set of facts that were presented in court it is highly unlikely that another court would find differently," acting deputy director of public prosecutions Thoko Majokweni told journalists on Wednesday.
Majokweni did, however, announce perjury charges would be pursued against two policemen who testified in the trial. "As the NPA, we will open a docket for investigation of the witnesses who recanted on their statements during their testimony given under oath," Majokweni said.
During the trial, two officers testifying for the state retracted their original statements.
They claimed they were threatened into making statements to the Independent Police Investigative Directorate.
They could not identify who fired the fatal shots after being shown video footage.
NPA prosecutors were caught unawares by the claim.
A third police officer who testified could not explain to the court why he alleged the police had used excessive force when restraining Tatane, but claimed in an internal hearing that the opposite had happened.
"The three police witnesses could not withstand cross-examination and were found by the court to be evasive, not credible, and unreliable," Majokweni said.
Majokweni's announcement on the perjury investigation clashed with a draft version of a media statement handed to reporters shortly before she briefed them.
In the statement, the NPA said it did not believe there was "reasonable prospects of a successful prosecution on such charges".
It cited the fact that the court never made a ruling that the two officers lied under oath. "A charge of perjury is normally preferred against witnesses when it can be proven beyond a reasonable doubt that such witnesses made false statements …"
The NPA would not elaborate on why there was a change of heart.
Tatane was killed on April 13 2011, allegedly by police using rubber bullets, during a service delivery protest in Ficksburg. – Sapa