Johannesburg - In August, very few South Africans had ever heard of dolus eventualis. On Wednesday, the same legal term that helped Paralympian Oscar Pistorius dodge a murder conviction slashed the jail sentences of disgraced hip-hop star Molemo “Jub Jub” Maarohanye and fellow killer driver Themba Tshabalala.
By the end of next week, Pistorius will know what price he will pay for the culpable homicide of Reeva Steenkamp.
On Wednesday, Maarohanye and Tshabalala heard they could soon be out on parole after their 25-year jail sentences were cut to eight years each, less the two years they have already served.
Originally, the pair were given 20 years for the four counts of murder, four years for two attempted murder charges and a single year for three counts of driving under the influence of drugs after their drug-fuelled drag race in Soweto’s Protea North that killed four pupils in 2010 and left two others brain damaged.
Maarohanye’s first bid to have his sentence reduced on appeal failed miserably. At the time, his defence team argued the evidence had been tampered with and continued to deny he had taken drugs.
In June, his new counsel, Willie Vermeulen, made a wholly different argument, saying his client had been convicted of murder, dolus eventualis.
This meant the court found Maarohanye and Tshabalala had understood the damage they could cause by their behaviour but reconciled themselves to it, showing indirect intention to kill.
During the original trial, Maarohanye insisted he had not been high on drugs on the day of the street race. In June, however, he admitted he was under the euphoric influence of drugs.
Vermeulen insisted that because of his client’s use of drugs on the day of the race, the dolus eventualis argument no longer stood, as his client could not have easily foreseen the potential damage he could cause.
On Wednesday, Judge George Maluleke, reading out the appeal judgment written with two other judges, agreed with Vermeulen.
The full bench found that to prove dolus eventualis, Maarohanye and Tshabalala would not just have had to reconcile themselves to the death of possible victims, but also the possibility of their own deaths.
“There was no evidence to suggest this. He foresaw the possibility of the collision, but he thought it would not happen; he took a risk which he thought would not materialise,” the judgment stated.
Because of this, the bench set aside the murder and attempted murder convictions completely, replacing them with four counts of culpable homicide.
“We take into account that four young lives were lost and two other young lives were detrimentally altered forever due to the callous actions of the appellants. The two children who survived will never become self-supporting individuals,” said Judge Maluleke.
“We must, however, still deal with the appellants as humans who have the potential for rehabilitation and to lead responsible lives. We therefore must to an extent mitigate the sentence we impose with mercy.”
He sentenced the pair to 10 years’ in prison each, of which two were suspended. The judge insisted the sentence be backdated to when the pair were originally sentenced in October 2012.
He set aside the conviction on possession of narcotics.
National Prosecuting Authority spokeswoman Phindi Louw said the Director of Public Prosecutions would determine whether there was reason for the State to appeal.
The Star