Two men accused of being affiliated to the Terrible Josters gang and sentenced to life imprisonment have a second chance at freedom after their case was successfully appealed in the Western Cape High Court this week.
The men were sentenced to life imprisonment by the Parow Magistrate’s Court after their guilty convictions on murder and attempted murder charges.
Marco Canterbury and Heinrich Potgieter each faced six criminal charges including two counts of contravening the Prevention of Organised Crime Act, murder, attempted murder, unlawful possession of a firearm and unlawful possession of ammunition.
However, Potgieter is a free man after Judge James Lekhuleni set aside his guilty conviction.
The life imprisonment term handed to Canterbury has been set aside and has now been remitted to the trial court for sentence proceedings to start afresh.
Judge Lekhuleni said: “It was not proven beyond a reasonable doubt that the appellants were part of a gang.
The evidence presented by the State was insufficient and lacking.
“The evidence presented by (the detective) regarding the appellants’ alleged membership in the Terrible Josters gang was speculative.”
During the trial, the duo were accused of operating in the Bishop Lavis area. According to court documents, the two were accused of the murder of Gavin Barnes and attempted murder when they shot and injured Will Smith in Kalksteenfontein having used a 9mm firearm and ammunition –having no licence or permit to possess either.
A State witness had testified that on the day of the incident, she was at her home when Canterbury entered brandishing a firearm and gestured to her to get up from her bed where two men were smoking tik. As she left her room and approached her front door, she heard a gunshot. While approaching her front gate, she heard a second shot.
Judge Lekhuleni said: “From the conspectus of the evidence, I am of the view that the conviction of the first appellant (Canterbury) on the charge of murder and attempted murder is irreproachable. The first appellant shot the deceased and Will Smith with a firearm. The ballistic report, admitted by consent, described the cartridges found at the crime scene as 9mm parabellum calibre, designed for a centre-fire firearm.
“It follows that the conviction of the first appellant on unlawful possession of a firearm without a licence and possession of ammunition was correct. The trial court's finding on these counts should not be altered.”
Judge Lekhuleni said that despite the limited, incomplete evidence that the State had, the court still sentenced the duo to the most severe penalty.
“Gleaning from the record of proceedings, the trial court conducted the sentencing of the appellants in a perfunctory and desultory (lacklustre) fashion ... Although the trial court was presented with limited and incomplete evidence, the court proceeded to sentence the appellants to life imprisonment. This decision was taken even though the information provided to the court was scanty and did not adequately support the decision to impose such a severe penalty ...
“In my view, it was not proven beyond a reasonable doubt that the appellants were part of a gang. The evidence presented by the State was insufficient and lacking.
“In (the detective’s) evidence he stated that Potgieter had a ‘Thug life’ tattoo on his left arm. Potgieter contested these allegations, and when he testified, he stripped his upper body in front of the court, and the alleged tattoo referred to by Petersen was not found,” said Judge Lekhuleni.
Cape Times