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Cape Town - Former Delicious Rugby Club player Benjamin Zimri, who was convicted of culpable homicide for assaulting Rawsonville flyhalf Riaan Loots during a 2006 match, will have to go to jail after a full Bench of the Western Cape High Court on Friday dismissed his appeal.
Loots died in hospital after suffering serious injuries during the match Rawsonville played against Delicious on their home ground.
In December 2008 the Worcester Regional Court convicted Zimri of culpable homicide and sentenced him to five years in prison.
However, since the sentence was imposed in terms of a particular section of the Criminal Procedure Act, Zimri only has to serve a portion in jail, and the remainder under correctional supervision.
During his full Bench appeal, his lawyers argued that the witnesses who testified on behalf of the State had contrived the same version to implicate Zimri, because they allegedly sought to blame someone for the incidents leading up to Loots’s death.
In a judgment handed down yesterday, Judge Rosheni Allie said all the State witnesses inferred that Zimri had hit Loots.
The witnesses observed the assault on Loots from different positions on the field at different stages, “in a fast-moving match that was approaching the finishing stage”, and could therefore not be criticised for immaterial contradictions.
Judge Allie added that, although there were discrepancies, the State’s evidence was consistent in material respects, including that:
* Zimri swung a stiff arm at Loots’s throat area, and Loots fell backwards on to the ground.
* Zimri then kicked Loots’s head while he lay on the ground.
* Loots did not recover from the attack, and was eventually taken to hospital.
Judge Allie said there was evidence from four witnesses that, at the stage that Zimri swung his arm at Loots, they were not engaged in a tackle for the ball because the game had already moved to a different part of the field.
Even if the court assumed that Zimri did not know that a team-mate had moved away with the ball, then, at best for Zimri, his blow to Loots’s throat could be considered part of the robust nature of the game.
“However, the kick to the head of the deceased while he lay on the ground cannot be explained with reference to the nature of the game, as the deceased presented no contest to the opposing team at the stage when he fell to the ground,” she added.
Medical evidence supported that Loots’s injuries were caused in the manner described by the State witnesses.
“Loots was a young man in the prime of his life who was brutally felled in the heat of a rugby match.
“Rules and referees’ penalties exist for rugby matches precisely to regulate the conduct of players so that a rugby match does not degenerate into anarchy. While rugby can fairly be described as a robust game, it is meant to build confidence and a sportsman-like team spirit, not hostility and aggression,” Judge Allie said.
She added that when a player overstepped the divide between “reasonably asserting his team’s rights and unjustifiable physical aggression towards an opponent, he may find himself in contravention of the law, as in this case”.
Dismissing the appeal against the conviction and sentence, the Judge said the sentence imposed fitted the offence.
Judges Willem Louw and Ashley Binns-Ward agreed.