Molemo “Jub Jub” Maarohanye, and his co-accused Themba Tshabalala, have been labelled murderers. This after an afternoon of drugs, alcohol and inflated egos led to the duo crashing into, and killing, four innocent teens and badly injuring another two.

However, many people are still questioning whether the murder conviction is truly accurate according to South African law, or if the court was influenced by public pressure.

Pops Templeton Mageza, a senior lawyer in a private practice and Acting High Court Judge explains that for a crime to be considered murder there has to be some use of a weapon. “Murder is usually carried out through the use of a weapon of some sort; such as a firearm or a knife etc. It is even universally accepted that a motor vehicle can be regarded to be a murder weapon. South Africa experiences far too many road accidents, last year the National Prosecuting Authority (NPA) took a new and more robust approach to the prosecution of road death cases. Some (not all) high profile motor vehicle related deaths are now prosecuted as murder rather than the perennial and dutiful culpable homicide charge.

“However, murder means that there was a specific intention, direct or indirect to achieve a desired unlawful result. Murder means that the person acted in their own accord, knowing what they were doing, understanding and appreciating the consequences and regardless, proceeding with the desired unlawful result.

“In the Maarohanye case, he was under the influence of narcotics and alcohol, which means that he was not in an alert mental state to know and understand what the consequences of his actions would be. Recklessness on its own is no secure affirmation of intention and the totality of all pertinent facts must be explored and assessed.

“Culpable homicide differs from murder in that an external (not subjective) standard/test is the basis of the enquiry, i.e., how a reasonable person in the position of the doer would have conducted themselves had they been placed in those circumstances at the time.

“In the court’s exercise of its duty to arrive at the truth, the Maarohanye decision appears, at face value, to inadvertently collapse known boundaries between intent and probable negligence. Whether this is as a result of pressure from public expectation or judicial forensic oversight is not particularly clear. The set of convictions evoke, again at face value, some consternation. The convictions are for four counts of ‘common purpose’ based murder; two of attempted murder; unlawful racing on a public road; and, operating motor vehicles on a public road while under the influence of narcotics. These could well (subject to what and how evidence was presented), be an explosive mix of possible contradiction.

“It is also one thing for one doer under the influence of drugs to be said to have nurtured an intent but, to sustain a conviction for murder whilst acting in common purpose with another requires the distilled minds of two doers both acting with a cognitive appreciation that their acts are intended to achieve the same objective, in this instance a conscious pact to commit murder. It is sometimes impossible to prove who delivered a fatal blow where more than one perpetrator is involved. In such circumstances the hand of the one is imputed, as a matter of law, to the other and becomes the hand of all of the wrongdoers. There must however be evidence that the participants went to do what they did having foreseen that a death or deaths might ensue. This inference appears less-likely where the primary urge resident in two relatively young men under the influence of drugs with stroked egos was more to show-off their cars.

“In determining the guilt or innocence of an accused all the evidence, (including being mentally impacted by the use of drugs) must be taken into account and evaluated in light of the inherent strengths, weaknesses, probabilities and improbabilities to exclude reasonable doubt about the guilt of an accused. Evidence incriminating and evidence exculpating cannot both be true. Evidence accepted by a court of the influence of drugs is inconsistent with the capacity for subjective foresight and must raise doubts about what the doers intended to achieve.

“Remember that once introduced into evidence (and accepted by a court that the doer took such substance/s), the position poses difficulties for the state and if it pursues a conviction on an offence with intent as an element, it is implicit that it must show that such narcotic had no real effect as to result in an altered mental state.

“The onus remains throughout on the state to show continued presence of a mind capable of anchoring intent. Once evidence of a mind altering narcotic is on record and stands alone, a court cannot assume such did not affect the doer’s mind. It is for that reason that culpable homicide is always the preferred charge once it is accepted a driver operated a vehicle on a public road whilst under the influence of liquor, to say nothing of the more potent effect of narcotics.”

Pops Templeton Mageza is a senior lawyer in private practice and holds a B.Iuris; LLB; LLM and Dip Competition Law. He is an author, publisher, and businessman and has acted as Judge of the High Court.

Via Sapa