A judge has cited dubious evidence collection by police for his decision to free a tavern owner jailed for shooting and killing a young man.
Acting Judge JJ Strijdom set aside both conviction and sentence that was handed down to Elvis Lubisi in 2014.
Lubisi, of Mbombela, Mpumalanga, was found guilty and handed a 10-year jail term by the Nelspruit Regional Court for shooting and killing the deceased at a bus stop seven years ago.
Following a lengthy trial, the magistrate concluded that the state had proven beyond reasonable doubt that Lubisi shot his victim from close range at the scene where his body was found.
However, Lubisi appealed the verdict on grounds that his trial had not been fair and that the state relied on unacceptable and unreliable evidence.
He challenged the version of two witnesses that he shot the victim at a close range from his car at the bus stop.
Lubisi’s version was that he fired shots from the roof of a shop towards a group of people who were attacking him on 16 December 2011 and that he never shot anyone at the bus stop.
He claimed that he heard other gunshots during the commotion other than those fired by him.
The regional court’s judgment read: “Now, according to the accused he did not shoot the deceased there at the bus stop. There is one thing that the accused missed and that is the cartridge on the scene.
“If the version of the witness is not correct, what is the cartridge doing at the scene at the bus stop? That means, according to the court’s view, the version of the accused is not reasonably possibly true.”
Ruling in favour of Lubisi’s appeal, Strijdom questioned how the magistrate reached his conclusion that the cartridge was found at the bus stop.
“The learned Magistrate misdirected himself in finding that the cartridge was found at the bus stop, whereas according to the plan (exhibit E) it was recovered a distance away opposite the street,” Strijdom said.
He added that exhibits submitted by police did not indicate “if a cartridge was found (at the bus stop), by whom it was found and what happened to it”.
The gun police presented to court was another of evidence that failed to pin the murder on Lubisi, Strijdom found.
“There is no evidence to whom the firearm mentioned by the ballistic expert (exhibit C) belongs and what its origin was and where and by whom the casing was recovered.
“Exhibit C does not indicate that the firearm belonged to the appellant (Lubisi) and the officer who confiscated the firearm did not mention what the serial number was.”
Strijdom added that it was not clear why the regional court accepted the evidence of the state and rejected the version of the appellant
“The trial court did not consider the contradictions and improbabilities in evaluating their evidence, thereby constituting a misdirection.
“I am not persuaded that the state proved its case beyond a reasonable doubt”
Strijdom dismissed the unfair trial claim, but ruled in Lubisi's favour on the argument about unacceptable and unreliable evidence.
“Both conviction and sentence handed down by the regional court are set aside,” he said.