Christo van Schalkwyk, for Blayne Shepard, 23, and his brother Kyle, 25, said none of the State’s witnesses had told the court they saw his clients and Andries van der Merwe, 23, and Dustin van Wyk, 23, kick Brett Williams.
Van Schalkwyk told Magistrate Trevor Levitt the State had failed to provide any “acceptable evidence which caused the blunt trauma” that Dr Ashley Hammond had previously told the court was the cause of Williams’s death.
He said Hammond and specialist forensic pathologist Dr Christa Hattingh, who testified for the State, had agreed that there was no medical evidence showing that Williams sustained any blows to the body, despite witnesses’ claims that they saw Williams being punched and kicked.
“How can you kick and stomp a person for five minutes and there is not a single injury?” he asked.
In their testimony earlier this week, Hammond and Hattingh were unable to rule out that the injury to Williams’s left temple was caused by him falling on a trailer parked near the scene of the alleged fight.
“Hattingh’s evidence was that it was not caused by a shoe. The evidence is due to blunt force. If there is no evidence which one of them have caused the deadly blunt force then they should all go [free],” Van Schalkwyk submitted.
He was applying to have the case against his clients discharged in terms of section 174 of the Criminal Procedure Act.
The men each face a charge of murder, three of assault with intent to do grievous bodily harm, and one of crimen injuria.
They are accused of beating Williams to death outside Kings Park stadium in Durban on the night of March 23, 2013, after the Sharks beat the Melbourne Rebels in a Super XV Rugby match.
Referring to the assault with intent to do grievous bodily harm charge, Van Schalkwyk said the State had failed to prove that there was any intent and therefore there was no charge.
He said he had difficulties with the crimen injuria charge, which related to one of the four allegedly calling a security guard “a k*****”.
Van Schalkwyk said this was said by only one person and all the accused could not be blamed for the insult.
He said that if the court found the charge was not one of murder, it would have to consider whether a charge of culpable homicide was applicable.
“When dealing with culpable homicide, the State must exclude the fact that the actions of the deceased did not cause his own death,” he said.
The State had failed to prove that there was any common purpose between the four men or that they had a “prior agreement on conspiracy”, he contended.
“How did they cause the death? There is no evidence that the conspirators caused the death.”
Van Schalkwyk said the fact that the four went to a rugby match together could not imply that they had conspired to commit a crime.
The evidence of the witnesses did not tie up with the medical evidence presented to the court.
There were “insurmountable” difficulties when it came to witnesses’ testimony.
He said that, in particular, the testimony of paramedic Derrick Banks and a security supervisor “was so bad that it must be rejected”.
A reasonable court would not convict.
Van Schalkwyk said several State witnesses had misled the court or given evidence that contradicted their written statements.