Murderers fail to overturn life

SCA rejects bid to reverse conviction

The Supreme Court of Appeal (SCA) has dismissed an appeal by two men jailed for life for murder who wanted their conviction and sentences nullified, arguing the Western Cape High Court (WCHC) was wrong to convict them on the strength of “hearsay evidence” from the state’s single witness.

Antonio van Willing and Fareez Mohamed, who were first and second appellants in the matter respectively, were convicted of killing Lance Harrison on the night of June 27, 2012, as he prepared to retire to bed at his home in Cape Town.
The reason for the killing is not known.

It could not be established who between the two shot Harrison as the only witness to the incident – the victim himself – died.

The state therefore had to rely on the evidence of Erica Pietersen who was at the house at the time of the shooting and identified the murderers to the police.

Dismissing the appeal, the SCA in a judgment handed down by Acting Judge of Appeal Irma Schoeman said the appellants had failed to satisfy the court why it should reverse their conviction and the sentences.
It said while the state has not provided a motive for the killing of Harrison, the manner in which the crime was committed presented all the characteristics of an assassination.
“Murder is a heinous crime,” Schoeman’s judgment read in part.

“No real substantial and compelling reasons were advanced (why conviction and sentence should be struck down) accordingly, the . . . appeal against the conviction and the sentence of each of the appellants is dismissed.”
The appeal was initially heard in the SCA on March 6 and judgment was passed last Friday.

In the appeal lawyers for the two murderers urged the SCA to strike down the conviction of their clients and sentences imposed, saying the trial court had misdirected itself by putting much emphasis on the evidence of Pietersen.
Legal Aid South Africa lawyer Russell Cloete who represented the first appellant told the SCA that Pietersen was not a credible witness and that her evidence must have been rejected by the trial court.

Mornay Calitz from the same firm, who acted for the second appellant, told the appeal court that more care should have been taken if the state was to rely on the evidence of one witness.

The lawyers tried to cast doubt on Pietersen’s evidence, labelling it hearsay because her claim that the victim was the one who had told their two clients were the ones that attacked and shot him could not be corroborated by anyone else as the victim subsequently died.
In the 19-page ruling, the SCA said it could not alter a judgment or sentence in a situation where the trial court has not misdirected itself in interpreting the facts presented to it and has meted out a penalty based on sound reason.

“The judgment of the court below was comprehensive and detailed, setting out the reasons for all the findings,” the SCA said, declining to tamper with the verdict of the Cape Town court.
The state’s case was that Harrison lived on the property of Pietersen in a bungalow in the backyard.

On the night in question, the state, represented by advocate Kriban Pillay who was assisted by Nicolette Bell, said a man called Harrison’s name from the street.
Pietersen recognised the voice as that of Tony van Willing as she often saw him when he visited her neighbour’s daughter with whom he was involved in a relationship.

As Van Willing continued calling, Pietersen called Harrison from his bungalow.
He went to the front door and asked Van Willing what he wanted.

The person on the other side of the door said that he must come out as “ons soek jou stem” (we want your voice).
Pietersen said she did not know what that meant.

She heard a second voice say that Harrison must come out.

Harrison was heard asking in Afrikaans: “What is it Fareez?” and “Fareez, why do you want my voice?”
Pietersen told investigators that Harrison sounded anxious and when she peeped through her bedroom window she saw two men outside the gate, one of whom was Van Willing and the other a person she only knew from the neighbourhood but whose name she did not know.

While the two men were talking with Harrison, the first appellant entered the yard and walked towards the house.

Thereafter the second appellant entered the yard while he had his right hand in his pocket.
They asked the Harrison to come outside.

Pietersen left her vantage point and was on her way to the front door.

She wanted to remonstrate with the two men because they were causing a disturbance but before she could get to the door gunshots rang out.
At that point Pietersen heard Harrison crying out in Afrikaans: “What are you doing now Fareez?”

More shots were fired, said Pietersen, adding that at that point she jumped onto the bed to protect her son.

Afterwards she went to the door and saw that Harrison who had been shot and had stumbled back into the house.
The high court found the two guilty of the killing almost a year later on June 4, 2013.

The two men were each sentenced to life in prison for the murder on July 31 the same year.

Fareez who was 22 years old when he committed the crime was convicted on a further count of illegal possession of an unlicensed firearm and ammunition was given another two years and one year for the respective crimes.

Van Willing, then 23, was sent to Brandvlei Maximum Correctional Centre to serve his term while Fareez was incarcerated at Helderstroom Maximum Correctional Centre.
Schoeman heard the case with justices Lex Mpati, Ian van der Merwe, Lebotsang Orphan Bosielo and PA Meyer.