Man jailed for 15 years for murder did not have fair trial, SCA rules

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The Supreme Court of Appeal.
The Supreme Court of Appeal.
Ben Bezuidenhout, GroundUp, Wikimedia, file
  • A man who was sentenced to 15 years behind bars has successfully overturned his conviction.  
  • The Supreme Court of Appeal says the man did not have a fair trial. 
  • The court says his trial should start from the beginning with a different presiding officer. 

A man who is serving 15 years behind bars for murder, will have to go back to court and argue his case from scratch, after the Supreme Court of Appeal (SCA) found that he did not have a fair trial. 

Alfred Jan Bezuidenhout was charged and convicted of the murder of Bisani Tshukela. He shot Tshukela with an unlicensed 38 special calibre Rossi revolver in November 2016. 

But on Friday, the SCA set aside his conviction and sentence.

Appeal Court Judge Caroline Nicholls said: 

The trial is to start de novo [from the beginning] in the regional court, Vosloorus before a different presiding officer.

The incident happened in a farming area near Dawn Park, within the Boksburg Municipality.

At the time, Bezuidenhout pleaded not guilty to the charge of murder, but guilty to the charge of the illegal possession of a 38 special calibre revolver.

He was convicted in June 2018 on both counts. According to the SCA ruling, it was not disputed that Bezuidenhout shot Tshukela with an unlicensed revolver. 

READ |  Man's murder conviction, sentencing overturned, SCA believes his constitutional rights were violated

It was also not disputed that Tshukela was unarmed at the time, carrying only a two-litre container of milk.

Bezuidenhout, who owns a small holding on which he grows vegetables, claimed that he did not intend to kill him.

He said he was only defending his property, wife, and his grandchildren.

He alleged that the shooting occurred while Tshukela was trying to wrestle the firearm from him.

But the only eyewitness in the case, Muzivukile Dumezweni, who was employed as a herdsman by Tshukela, claimed that the deceased was intentionally shot and killed for, "... no good reason".

He, however, did not see the actual shooting.

'Vehemently denied' 

Bezuidenhout said there had been ongoing arguments for several years over the fact that Dumezweni herded cattle on to his property, destroying his vegetables and trampling his garden.

He said despite his protestations this occurrence took place several times a week.

On that particular day, Tshukela and Dumezweni were herding 110 head of cattle.

Bezuidenhout said the cattle were on his property, just as they had been three or four times the previous week.

But Dumezweni vehemently denied this.

He said he and the deceased were herding the cattle along the tarred road, towards grazing land further away. 

He further denied that the fatal shot went off during the altercation as they fell. According to Dumezweni, the men were standing when the deceased was shot.

He rejected suggestions that the incident took place on Bezuidenhout’s property. After being convicted and sentenced for the murder, Bezuidenhout was refused leave to appeal by the trial court. 

ALSO READ | ConCourt overturns Witbank gynaecologist's culpable homicide conviction, but not on merits

He was also refused an application in terms the Criminal Procedure Act to adduce further evidence. 

Bezuidenhout then petitioned the Gauteng High Court, but was given leave to appeal the sentence only.

He turned to the SCA seeking an order that the case be remitted to the regional court for further evidence to be heard.

At issue before the court was whether Bezuidenhout had a fair trial. 

According to the judgment, during his trial, Bezuidenhout first appeared in person after his right to legal representation was explained to him.

Remained unrepresented

He later appointed a legal representation from Legal Aid, but the attorney failed to appear on his behalf. 

When the matter was set down for trial, the attorney remained absent.

He told the court that he did not wish to have an attorney and had only done so on the court’s advice. He added he wanted to finalise the matter. According to the judgment, the court then concluded that it was his right to conduct his own defence, but informed him that he would have to lead and cross-examine witnesses and was further advised of his right to appoint an alternative attorney.

When his trial started, Bezuidenhout remained unrepresented.  

Nicholls said: "In his evidence, chief Mr Dumezweni said that he heard only one shot. Later he confirmed to the appellant that he had heard three shots being fired but maintained that these were from the pellet gun and not the revolver.

"It is against this evidence that one must assess whether the appellant had a fair trial. While the trial court had been cognisant of the need to explain fully to the appellant the consequences of declining legal representation at the outset of the trial, at the end of the State's case, the court merely reminded the appellant that he had the right to testify."  

'Rendered the trial unfair' 

Nicholls said while finality in litigation is an important consideration, it should not be at the expense of an accused person's fair trial rights.

She said: 

In this instance, it was not enough for the magistrate, at the end of the State’s case, to have merely informed the appellant, an unrepresented accused, that he could call witnesses in his defence.

"The importance of the forensic evidence, and its possible impact on the eventual outcome of the trial, should have been fully explained to the appellant. As a layperson, and from a perusal of the record, it is clear that he did not have sufficient skill and expertise to understand what countervailing evidence was required and, indeed, where he may procure evidence of such a specialised nature.

"The magistrate, after explaining the consequences of the evidence, should have asked the appellant whether he wished to call expert witnesses in rebuttal, and if necessary, assisted him in doing so. It would also have been apt at this stage to suggest to the appellant that he reconsider his stance on legal representation, once faced with evidence of a technical nature. The magistrate's failure to adopt either course of action, in my view, rendered the trial unfair."

Nicholls said that to refer the matter to the trial court would not be fair to Bezuidenhout.

She said the only option was for the trial to start from the beginning.

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