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Durban - Eight years after being arrested along with his parents for the murder of his uncle, a KwaDukuza man has been let off the hook in an important judgment which re-states the principles of convictions under common purpose.
The Supreme Court of Appeal (SCA) has set aside Beenesh Dewnath’s conviction for murder and 15-year prison sentence, the judges saying he may have been embroiled in the bitter rivalry between the two families and “while there may be a suspicion that he was in cahoots with his parents, he cannot be convicted on suspicion alone”.
Dewnath was 27 in June 2006 when he was arrested along with his parents, Dewnath and Nirmalah Ramkisson, for the murder of Dewnath senior’s brother and rival businessman Jairam Ramkisson and the attempted murder of his wife Shashika Ramkisson.
Jairam was shot and killed outside his takeaway. Shashika was shot in the neck, but survived.
Evidence in the sensational trial was that the two brothers hated each other and a key State witness, who pleaded guilty to committing the crime and was sentenced to life imprisonment, claimed to have been hired by Dewnath and his parents.
Judge Jan Combrink convicted all three, sentencing Dewnath Ramkisson to life imprisonment, his wife to 18 years and his son to 15 years in September 2009.
The three all appealed to the provincial division sitting in Pietermaritzburg, but were turned down. Dewnath then petitioned the SCA which granted him special leave to appeal.
In the judgment, penned by acting Judge Constance Mocumie (with four judges concurring), she said the main evidence in the trial had come from William Sithole who testified as an accomplice witness.
He told how he had been brought into contact with the family through co-accused Jabulani Mkhize who had been recruited by Dewnath Ramkisson to kill his brother.
Mkhize had taken him to the family business, a fish shop adjacent to the deceased’s business.
Sithole wanted R35 000 to carry out the killing, but Dewnath Ramkisson offered only R15 000.
At some point, Ramkisson brought his wife (Nirmalah) and son into the room to help mediate.
Sithole alleged Dewnath said: “But why are you asking for so much money? The person that we are asking you to kill is absolutely worthless.
“I would understand if he was a member of the taxi business. If I wasn’t involved in the police, with the police, I would kill him myself.”
He then left the room.
Negotiations failed that day and Sithole left without agreement having been reached.
The judge said there was no evidence regarding further discussions or negotiations or that Dewnath was privy to anything further.
A few days later, Sithole shot Jairam Ramkisson as he was locking up his shop.
The judge said the main attack on conviction was that it had been based on common purpose when there was insufficient evidence the words he had uttered proved he had actively associated himself with his parents’ plan.
She agreed that apart from the evidence he walked in from the front to the back of the shop and uttered the “vengeful words”, the State had not proved any form of active participation and “mere approval” of the plan did not suffice.
“As morally reprehensible as it is that he wished his uncle dead or even thought of killing him himself, what he said does not amount to active association.
“His participation was removed from the active execution of the plan and, it can at best, be regarded as evidence that he had some knowledge of it.”
Dewnath’s attorney, Anand Nepaul, who handled the appeal, described the judgment as an important reminder of the legal requirements for common purpose convictions.
“One of the appeal judges pointed out that this was introduced into our law at a time of political violence when identification of individual perpetrators was difficult in mob attacks.
“It is not appropriate to use it in these sorts of cases where the State, on the evidence, cannot prove co-perpetration or conspiracy,” he said.