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Who's the killer?

Published Jun 22, 2009


The doctors who switched off a man's life support machine - not the four men who allegedly beat him into a coma - should be charged with his murder.

This is the extraordinary argument of a lawyer who is defending the four men.

The technicality has become the focus of legal wrangling in the trial of four Pakistani men who assaulted ex-provincial rugby player Andries Pieters at Carnival City earlier this month.

On Saturday, June 6, 39-year-old Pieters and his wife, Lizette, dropped their five-year-old son Keanu off with his grandparents and then met up with two friends at Carnival City, where they had planned to go to a concert.

A private investigator, who does not want to be identified, said the four did not attend the concert and instead enjoyed a sociable evening together and had dinner.

"The friends left and then, a few minutes later, Dries and Lizette followed.

"Nobody knows what caused the assault outside.

"There was verbal abuse both ways and that was when Dries got badly beaten up," the investigator said, explaining that the incident took place outside the entrance to the Prive, across from Carnival City hotel.

"We are completely at a loss as to why this happened. So far Lizette has been in such a state that she hasn't been able to tell us exactly what happened.

"We only know the group of men were 'chirping' the women, on which Andries started to argue with them, and then they assaulted him," Pieters's sister, Phia Miller, told Beeld newspaper.

Security officials stepped in and stopped the assault, but Pieters was already unconscious.

Carnival City spokesperson Yolanda Bester confirmed that a patron had been assaulted in an incident involving four other patrons.

Security staff had intervened and paramedics had treated Pieters.

Officials held the four men and called the police.

In the early hours of Sunday morning, Pieters - a manager at Imperial Bank - was taken to hospital in Alberton where he was admitted with massive brain damage.

He was examined and treated by more than one neurologist, and they concurred that Pieters was brain-dead.

His family was informed of this about 4am.

During the course of the day, Pieters suffered further organ failure.

Later that afternoon, yet another neurologist confirmed that Pieters was brain-dead and advised that the life support system be turned off.

The family clung onto hope, waiting through the night for a miracle, but then agreed to the switch-off.

That Monday morning, June 11, the former Eastern Transvaal rugby player was declared dead.

Gauteng police spokesperson Inspector Sefako Xaba said the four men - Mohammed Jabban, 21, Raadhil Omar, 19 and brothers Naheed, 21, and Nihal Khan, 18 - had in the meantime been arrested and charged with assault with the intent to cause grievous bodily harm.

Following Pieters's death, the charge was changed to murder.

Last Friday the four applied for bail in the Brakpan Magistrate's Court and the matter was postponed to today.

In a written statement read out in court by their advocate, the men claimed they had not consumed any alcohol on the night they assaulted Pieters.

However, the only witness they called, Zemeel Cassim, testified that they had all drunk red wine that night.

Cassim, describing the attack, said that when one of the accused hit Pieters, he fell on the ground, got up and was hit again.

He fell again, but this time with the accused. This was when the other three men started attacking him.

The investigating officer, Sergeant Morne du Plessis, who viewed footage of the incident captured on CCTV cameras, said the accused had not kicked Pieters so much as they had trampled on him. He described their actions as those of someone trying to crush a tin can.

The defence lawyers, arguing that their clients should not be charged with murder, said the doctors who switched off the life-support machine were responsible for the death.

A Sapa report quotes advocate Zehir Omar as telling the court: "The doctors and the family who decided a day later to switch off the machine are the people who caused the death and should be considered the murderers of Pieters. At most, my clients can be charged with assault with the intent to cause serious damage.

"The switching off of the life support system in the circumstances is an act of intervention and is the cause of the death, not the scuffle.

"Pieters was still well alive when he was taken to the hospital," Omar stated.

"The question should be asked what would have happened if the machine was not unplugged?" Omar challenged.

This week, the four accused were each granted bail and the case was postponed for three months.

When the trial eventually goes ahead, what caused the victim's death will become the central focus of legal questioning.

Professor Steve Tuson, a lecturer in criminal law and criminal procedure and a practising attorney, maintains that the defence will find the law unsympathetic to their argument - unless they are able to prove gross incompetence in the exercise of ordinary medical care and that the actions of the accused on their own were not sufficient to cause death. The defence therefore has to show that the wounds inflicted on the deceased were not fatal in themselves and that, but for the switching off of the machines, Pieters would have survived.

- In the UK two men are facing murder charges after their assault victim's life support machine was switched off.

On April 21, student Ben Neilson of Willesborough was attacked in an alleyway in Ashford. His parents agreed with doctors to switch off his life support machine six days later.

Two men who were originally charged with assault are now facing a murder charge.

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