Musician Molemo "Jub Jub” Maarohanye applied for leave to appeal his murder conviction and sentence in the Protea Magistrate’s Court on Thursday (07/02/2013).
Rudi Krause, for Maarohanye, based the appeal on two factors: the law, and the doctrine of common purpose.
"[Maarohanye] was driving on the left-hand side of the road. He was not involved in a race. [Themba Tshabalala] lost control causing [Maarohanye] to also lose control,” he told the court.
Krause was arguing that according to the evidence before the court, Tshabalala’s car crashed into a group of schoolchildren.
He said the doctrine of common purpose did not deal with the issue of intent.
"The doctrine of common purpose does not render accused jointly liable for a criminal act,” he said.
"Under the present circumstances, the evidence ought to have been assessed on conduct of each of the accused... The reliance in the doctrine of common purpose went further than it ought to have done.” Krause argued that the evidence before the court on how the accident happened ”casts serious doubt on the murder conviction”.
"[The court] ought to grant accused one [Maarohanye] leave to appeal for the [murder] conviction.” He said there was a possibility a different court could arrive at a different conclusion, based on the evidence.
"I have no intention to make the life of accused two [Tshabalala] difficult,” he added.
Krause said the 25-year jail term was "shockingly inappropriate” given the facts.
"A different court would find your worship imposed a sentence that is not appropriate,” he said.
While Maarohanye was appealing both his conviction and sentence, Tshabalala was only appealing his 25-year jail term.
Tshabalala, in shackles, wore blue jeans, an orange shirt and brown jacket. Maarohanye, also in shackles, was clad in black trousers, a white shirt and had his hair neatly braided.
Both men sat in the dock looking at magistrate Brian Nemavhidi.
Maarohanye occasionally leaned forward and looked at the floor.
On December 5 the same court sentenced them to 20 years imprisonment each for murder, and four years for attempted murder.
For use of drugs, driving under the influence of drugs, and racing on a public road, they received a year for each count, to run concurrently.
They were drag-racing in Protea North on March 8, 2010, when they crashed into a group of schoolboys. Prince Mohube, Mlungisi Cwayi, Andile Mthombeni, and Phomello Masemola were killed. Frank Mlambo and Fumani Mushwana were left permanently brain damaged.
The court found the men guilty on October 16.
The relatives of the victims and Maarohanye’s friends were present in court.
Mlungiseleli Soviti, for Tshabalala, was also arguing for leave to appeal on the grounds of the evidence. - Sapa
