Judges at odds as ‘baboon’ killer gets SCA reprieve

Crossberg was convicted of murder in April 2007 in the Polokwane Circuit Court after Jealous Dube, a farm worker, was shot and killed. The incident happened in June 2004 when Crossberg, at close range, shot and killed Dube thinking that he was shooting into bushes to scare off baboons. The trial court sentenced Crossberg to an effective 20 years' imprisonment. The SCA set aside the charge of murder and the four counts of attempted murder and the related sentences. The conviction on the murder charge was substituted with a conviction of culpable homicide. The court changed Crossberg’s sentence to five years' imprisonment, two years of which were suspended for five years on condition that he was not convicted of culpable homicide or assault with intent to do grievous bodily harm or any contraventions of the Firearms Control Act during the period of suspension. Full report on the IoL site Judgment (PDF file)

The incident caused an uproar at the time, with claims that it was racially motivated. And there was evident tension in the SCA arriving at its decision, suggests legal commentator Carmel Rickard in an article in The Weekender. The SCA judges were Mahomed Navsa, Fritz Brand, Vic Ponnan, Dunstan Mlambo and acting Appeal Court judge Frans Malan. Navsa wrote the main decision in which he found the state’s version of events ‘totally at odds with the objective facts’. The judge suggested 13 witness statements taken immediately after the incident, which mysteriously went ‘missing’ soon afterwards, had not suited the state’s case, and the conclusion that ‘they are missing by design rather than misfortune’ was compelling. Rickard notes that Navsa’s decision, supported by three of his four colleagues, was followed by a second judgment, written by Mlambo, which adopted the opposite position. In his dissenting decision Mlambo said his colleagues’ criticisms of the state were misplaced and Crossberg had suffered no substantial prejudice because of the missing statements. In his view, the farmer did not see a troop of baboons in the vicinity because there were none. It was clear Crossberg had always known he was shooting at people and not animals. He would therefore have dismissed the appeal and upheld the murder finding. A third judgment was written by Ponnan in defence of the decision by Navsa. He gave more details and examples to substantiate why he and his colleagues found Crossberg not guilty of murder. In the course of his judgment, there were clear indications of the tensions between the five judges, suggests Rickard. Ponnan said Mlambo was correct to say all the evidence had to be taken into account. But that was ‘no licence for an inversion of the inquiry’. He said: ‘The correct starting point remains the state case, which unquestionably has to pass a certain minimum threshold before one even turns to consider the veracity of the defence. To commence with the defence version, to subject it in isolation to rigorous scrutiny, to find it wanting and thus susceptible to rejection, as Mlambo has done is, to my mind, the very antithesis of approaching the evidence holistically,’ he said. Full article in The Weekender