National 26.8.2016 12:41 pm

Why Henry Prinsloo and Jub Jub aren’t murderers

Photo: Supplied

Photo: Supplied

Legal experts explain why the cases of Henry Prinsloo and Jub Jub were so difficult to argue as being murder.

As 26-year-old Henry Prinsloo begins his seven-year sentence for culpable homicide and drunken driving, his case is among many that have made headlines of drivers who were given jail time for culpable homicide.

READ THE FULL STORY: Man sentenced for Ontdekkers police deaths

In at least two of these incidents, the drivers were initially served sentences for murder but these were later overturned to culpable homicide. One of these is the well-known case of Molemo “Jub Jub” Maarohanye and Themba Tshabalala, who are currently serving their 10-year sentences, two of which are suspended, for culpable homicide. This, after the high court in Johannesburg converted their murder convictions to culpable homicide in 2014 for killing four schoolchildren during a drag racing accident. Maarohanye and Tshabalala were originally found guilty of murder, attempted murder, driving under the influence of drugs, and racing on a public road by the Protea Magistrates’ Court in Soweto, in 2012.

In a similar move, in March 2013, the sentence of Western Cape taxi driver Jacob Humphreys – who was convicted on 10 counts of murder after his vehicle collided with a train, killing 10 children – was reduced by the Supreme Court of Appeal to eight years after the murder charges were set aside and replaced with 10 counts of culpable homicide.

Candidate attorney at Dewey Hertzberg Levy Incorporated, Saul Smith, explains that the difference between murder and culpable homicide is that, in order to prove murder, one has to prove intent, which he says is not possible in motor vehicle accident cases in which the driver is intoxicated. Smith further explains: “The very term ‘accident’ implies that there is no intent. Where it can be shown that someone purposefully drove his car into a group of people, that would be intent, and then there could be a successful charge of murder.”

In 2014 it was reported that, now former associate professor of law at Wits University James Grant said the current definition of dolus eventualis (with indirect intention) made it difficult to understand the distinction of when it would not be appropriate for someone to be charged with murder when they killed someone in a motor vehicle accident.

Smith said: “Dolus eventualis is a form of intention – it means that the person subjectively foresees the likelihood of causing a harm but proceeds regardless. It is not that he ‘should have known better’ but that he did know better at the time, and that he did know better must be shown beyond reasonable doubt. If it is merely shown that a person should have known better, and proceeded anyway, that is negligence, and should that result in a death, that would be culpable homicide.”

Smith clarified that there was no minimum sentence for culpable homicide but the maximum sentence was 15 years and the courts consider many factors when sentencing.

“In short, there being so many variables it would be unfair to apply a ‘one size fits all’ approach to sentencing,” said Smith.

He added that sentencing should not only be seen as being about retribution.

“…It is also about rehabilitation and prevention, and sometimes long prison sentences aren’t the best way to achieve that.”

poll

today in print