THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  300/2013

Not reportable

In the matter between:

LEEROY BENSON                                                          Appellant

and

THE STATE

Respondent

Neutral citation: Benson v the State (300/13) [2014] ZASCA 26 (28 March
2014)
Coram:

Ponnan, Maya and Willis JJA

Heard:

20 March 2014

Delivered:

28 March 2014

Summary:

Evidence – murder – confusing and contradictory –

conviction not justified.

ORDER

On appeal from: Western Cape High Court, Cape Town (Griesel J and
Dolamo AJ sitting as court of appeal):
The appeal is upheld.
The order of the high court is set aside and the following is substituted
therefor:

‘The conviction and sentence on the charge of murder are set aside.’

JUDGMENT

Willis JA (Ponnan and Maya JJA concurring):

[1] The appellant was arraigned before the regional court in Somerset-
West on a charge of murder. He was found guilty and sentenced to 12 years’
imprisonment, of which five years were suspended on appropriate conditions,
the magistrate having found that there were substantial and compelling
circumstances which justified a departure from the prescribed minimum
sentence provided for in the Criminal Law Amendment Act 105 of 1997.

[2] The appellant applied to the magistrate for leave to appeal against his
conviction only, which leave was granted. Although the Western Cape High
Court (Griesel J and Dolamo AJ) dismissed the appeal, it granted the
appellant, on application, leave to appeal further to this court. The application
for leave to appeal was supported by the State. The appellant has been on
bail throughout the proceedings, including the appeals. Bail was originally set

at R500 but on granting the appellant leave to appeal to this court the amount
was increased to R1000.

[3] It is common cause that Ricardo Andrews (the deceased) died at
Goniew Park, Villiersdorp either late at night on Friday, 6 October 2007 or in
the early hours of the morning on Saturday, 7 October 2007 as a result of a
head injury caused by the application of a blunt object to his skull with force. It
is also common cause that both the deceased and the appellant had attended
a dance at the community hall, in the company of others, on the night in
question. Alcohol had been liberally consumed by those who attended the
event, including the deceased.

[4] Nehemiah Marthinus, a witness for the State, said that fights broke out
among ‘tjommies’ (friends) at this function. There were two of these fights, the
second being a follow-up to the first. The first fight took place outside the hall
but within the precinct thereof, the second in a street nearby. Mr Marthinus
said that the deceased had been involved in both fights and that his death
ensued as a result of the second. According to the admitted post mortem
report, there was a single injury to the head of the deceased, from which
injury he died. Mr Marthinus had already consumed four quarts of beer in the
time immediately preceding the fatal incident. Mr Marthinus denied that he
had been under the influence of alcohol.

[5] Mr Marthinus described how the appellant had been sitting in a motor
vehicle outside the function for some time and had driven off later in the
evening with one ‘Papskep’. This occurred after the first fight had taken place.
At this time Mr Marthinus said that he also left the party on foot. He continued
to say in his evidence that while walking along the road he encountered an
altercation between the deceased and others and that there were about six or
seven persons who participated in this fracas and that the appellant who had,
by this time, alighted from his motor vehicle, joined the fray.

[6] Mr Marthinus said that he saw the appellant hit the deceased once on
the head with a short, fat object that appeared to be black in colour,

whereupon the deceased fell to the ground. He said the instrument in
question appeared to have been made of hard rubber or plastic. This
contrasts with the allegation in the charge sheet that a knobkierie had been
used.  Mr Marthinus, who had last seen the deceased lying on the ground
said that he then departed from the scene, together with the appellant, in the
motor vehicle. Mr Marthinus said that Mr Lesley Dick drove off in his own
vehicle. Mr Lesley Dick, when testifying on behalf of the State, said that he,
together with Mr Marthinus and the appellant, drove off in his, Mr Dick’s,
vehicle. Mr Dick did not see anyone strike the blow to the deceased’s head.

[7] Ms Elmarie Jantjies, another State witness, who had also attended the
party, testified for the State, said that she had seen the appellant strike the
deceased about three times. She described the instrument as a ‘stok
voorwerp’. She said that she could not describe precisely what type of object
it was that the appellant had used. According to Ms Jantjies, two of these
blows hit the deceased on his head. She said that she and her friend Hema,
(a reference to Mr Marthinus), had tried to intervene to prevent the appellant
from hitting the deceased but the appellant had successfully resisted them.

[8] The appellant, when he gave evidence said that Mr Marthinus had
struck the deceased on the head with a shifting spanner. The appellant added
that Mr Dick had joined in the assault on the deceased by kicking him in the
ribs. This version was at no stage in the trial put to Mr Dick.

[9] After the appellant had closed his case, there had been an
adjournment. When proceedings resumed, the appellant had obtained the
services of a different legal representative. The appellant’s new legal
representative applied for leave to re-open his case in order to call Ms Louise
Louw in his defence. The magistrate acceded to this request. In her evidence-
in-chief, Ms Louw said that Mr Marthinus had hit the deceased on the head
with what appeared to be a shifting spanner. Under cross-examination, she
said that she had seen the appellant hit the deceased. She contradicted
herself on this aspect. When she had initially been approached by the police
to tell them what she had seen during the incident in which the deceased had

been killed, she had refused to do so. She said then that she had been under
the influence of alcohol at the time when the deceased had been assaulted.

[10] There are discrepancies in the versions given by the State witnesses.
For example, Mr Marthinus and Mr Dick gave different versions as to how,
precisely, the appellant had left the scene after the deceased had received
the fatal blow; Mr Marthinus described the instrument used by the appellant to
hit the deceased as appearing to have been made of hard rubber or plastic,
Ms Jantjies described it as resembling a ‘stok voorwerp’. Ms Jantjies, unlike
the other State witnesses, made no mention of any stones having been
thrown during the fights in question.

[11]  The backdrop to the scene where the killing of the deceased took place
presents a picture that was tense and fast-moving, exacerbated by occurring
during the diminished visibility of the night. It was also an event at which
young people had consumed vast amounts of liquor.  Counsel for the State
conceded that from the record it could not be deduced who did what, to whom
and when.

[12] The magistrate unfortunately descended into the arena and even put
questions to the appellant about a statement which he had made shortly after
his arrest which had not been adduced as evidence during the State’s case.
The appellant’s first legal representative in the early stages of the trial was
clearly inexperienced and failed to perform basic duties like putting the
version of the appellant to the State’s witnesses. When the appellant, for
readily understandable reasons, had appointed new counsel and sought an
opportunity to cross-examine the State’s witnesses, inter alia, for the purpose
of testing the appellant’s version against this, the magistrate disallowed this.
The fact that the appellant was denied a procedurally fair trial might, in itself,
have justified the intervention by this court in respect of the conviction. It is
fortunately not necessary to make any firm finding in that regard.

[13]  The primary difficulty for the State, as counsel on its behalf fairly and
correctly conceded in this court, lies in the evidence itself. It was confused

and, on the essential elements of the crime, contradictory. When the evidence
is viewed in its totality, there is too much uncertainty surrounding the critically
important facts to allow a court safely to convict and, for this reason alone, the
conviction cannot stand.

[14] The order of this court is the following:
The appeal is upheld.
The order of the high court is set aside and the following is substituted
therefor:
‘The conviction and sentence on the charge of murder are set aside.’

_____________________
N P WILLIS
JUDGE OF APPEAL

APPEARANCES:

For the Appellant:

R Kassel
Instructed by:
Kassel Sklaar Cohen & Co, Cape Town
c/o Symington & De Kock, Bloemfontein

For the Respondent:

S F A Raphaels
Instructed by:
The Director of Public Prosecutions, Cape
Town
c/o The Director of Public Prosecutions,
Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

28 March 2014

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does
not form part of the judgment.

Benson v the State (300/13) [2014] ZASCA 26 (28 March 2014)

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

Today the Supreme Court of Appeal (SCA) upheld an appeal by Mr Leeroy Benson
who had been convicted of murder and set aside the conviction and sentence.  Mr
Benson had been convicted on a charge of murder in the regional court in Somerset-
West. He had been sentenced to 12 years’ imprisonment, of which five years were
suspended on appropriate conditions, the magistrate having found that there were
substantial and compelling circumstances which justified a departure from the
prescribed minimum sentence provided for in the Criminal Law Amendment Act 105
of 1997.

The appellant had appealed to the Western Cape High Court. Although that court
dismissed the appeal, it granted the appellant leave to appeal further to this court.

The incident giving rise to the charge occurred in October 2007 and was related to a
dance party at a community hall during which alcohol had been liberally consumed
by those who attended the event, including the deceased.

The deceased had died from a single injury to the head administered with a blunt
object. The incident occurred in a situation that was tense and fast-moving. The
accuracy of observation had been affected by the diminished visibility of the night
and the consumption by young people of vast amounts of liquor.  Counsel for the
State conceded that from the record it could not be deduced who did what, to whom
and when.

The evidence was confused and, on the essential elements of the crime,
contradictory. There was too much uncertainty surrounding the critically important
facts to allow a court safely to convict and, for this reason, the conviction could not
stand.
.
The court upheld the appeal and set aside the conviction and sentence on the
charge of murder.