The two initially handed 20 years for murder but the High Court in Johannesburg converted the murder convictions to culpable homicide. Their sentences were reduced to 10 years, two of which were suspended.
“In many instances people are released on parole after they served half of their sentence, but remember many factors are taken into account,” criminal lawyer William Booth said.
“The parole board would consider parole for both of them. Technically they could be released maybe within two years, but that will be in the hands of the correctional services department.”
Judge George Maluleke ruled in the High Court in Johannesburg that Maarohanye and Tshabalala were guilty of culpable homicide — and not murder — for killing four schoolchildren during a drag racing accident.
The sentences would be backdated to October 2012 when the two were first sentenced and jailed.
Maarohanye and Tshabalala were also initially sentenced to four years in jail on two attempted murder convictions and another year for driving under the influence of drugs and racing on a public road.
The attempted murder convictions were set aside.
The two were found guilty of murder, attempted murder, driving under the influence of drugs, and racing on a public road by the Protea Magistrate’s Court, Soweto, on October 16, 2012.
University of Wits criminal law and criminal procedure lecturer Professor James Grant said in most cases a person’s eligibility for parole came up around the “halfway” mark if it was not mentioned by the judge.
He said initially when the National Prosecuting Authority started charging people with murder instead of culpable homicide for car accidents that caused a death, it raised a lot of concern.
“Many people thought that it was inappropriate. I don’t think it is but it depends on the facts,” Grant said.
“The fact that somebody did foresee the risk of killing and they accepted that risk and proceeded — they have intention to kill. I don’t see anything wrong with prosecution pursuing a person with murder.”
In March last year, the Supreme Court of Appeal (SCA) reduced the 20-year sentence imposed on a Western Cape taxi driver Jacob Humphreys, who was convicted of 10 counts of murder after his vehicle collided with a train.
The SCA reduced Humphreys’ sentence to eight years’ imprisonment.
Grant said it was difficult to understand when and when it would not be appropriate to charge someone with murder when they killed someone in a motor vehicle accident with the current definition of dolus eventualis (with indirect intention).
“Nothing wrong in principle with charging someone where they see a substantial or real risk of killing someone by the way they are driving and they proceed — there can be no principle objection to charging the person with murder when and if someone is killed.
“The difficulty is that there is an argument around how we should define intention.”
He said that there was no surprise that the courts were “flip-flopping” on murder convictions that were turned into culpable homicide.
The current definition of dolus eventualis that was proposed and adopted made absolutely no sense, said Grant.
Academics had been trying to tell the courts this, he said.
“The definition is illogical — now we wonder why there is confusion,” he said.
Maarohanye and Tshabalala crashed their Mini Coopers into a group of school boys in Protea North, Soweto, on March 8, 2010. Four boys –Prince Mohube, Mlungisi Cwayi, Andile Mthombeni, and Phomello Masemola — were killed. Frank Mlambo and Fumani Mushwana were left permanently brain-damaged.
Booth agreed and said the fact that another murder conviction for a car accident was overturned was “quite significant”.
“Significant to note this because the NPA have in some cases taken the approach to charge people with murder, where traditionally everybody was usually charged with culpable homicide,” he said.
“Initially they succeeded — but it is very difficult to prove intention when it relates to a motor car collision. It’s the facts that could justify a decision of murder.”
He said intention was difficult to prove.
Ten school children died when Humphreys drove over a railway level-crossing into the path of an oncoming train.