S v Maarohanye & Another

1. Official Case Title

• S v Molemo “Jub Jub” Maarohanye & Themba Tshabalala (2010, appeared on trial to be tried in 2012, appeal 2014).
• Appeal citation: S v Maarohanye and Tshabalala (A285/2013) [2014] ZASCA (8 October 2014).

2. Court Name & Bench

• Trial Court: South Gauteng High Court, Johannesburg.
• Judge: Justice Mandla Makhoba.
• Bench Type: Single Judge, Criminal Trial Court.
• Appeal: Supreme Court of Appeal (SCA), Bloemfontein, before a panel of five judges.

3. Date of Judgment

• Trial Judgment: 16 October 2012.
• Appeal Judgment: 8 October 2014.

4. Parties Involved

• The State (Respondent): Represented by the National Prosecuting Authority (NPA).
• Accused/Appellants: Molemo “Jub Jub” Maarohanye, a South African rapper and television personality, and his co-accused, Themba Tshabalala. Both were young men in their late twenties at the time.

5. Facts of the Case

On 8 March 2010, the accused engaged in an illegal drag race in Soweto on Mdlalose Street. Both men were under the influence of alcohol and drugs, later confirmed to include cocaine and morphine. During the race, they lost control of their Mini Coopers and ploughed into a group of schoolchildren walking home.

The accident caused the instant deaths of four children and left two others with severe brain injuries, resulting in permanent disability. The horrific nature of the incident, combined with Jub Jub’s celebrity status, ensured massive media coverage and public outcry. Parents of schoolchildren in Soweto demanded harsh punishment, framing the trial as a test of whether South Africa’s justice system treats celebrities differently from ordinary citizens. The trial attracted a lot of media involvement and everyone was seeking justice.

The accused were arrested on the scene and initially charged with:

• Murder of Four children.
• Attempted murder of Two Children left with severe brain damage.
• Reckless and negligent driving.
• Driving under the intoxicated, under the influence of drugs and alcohol.

The trial lasted nearly two years, with extensive forensic evidence and witness testimony.

6. Issues Raised

The main legal issues before the court were:

• Whether the accused’s conduct amounted to murder or merely culpable homicide.
• Whether the doctrine of dolus eventualis(which is a form of intent/mens rea in South African criminal law). This doctrine differs from where someone sets out to cause a specific act, it is applied to reckless driving under the influence.
• Whether intoxication could negate or reduce criminal liability.
• The proper application of sentencing principles in cases involving multiple deaths caused by reckless driving.

7. Arguments of the Parties

State’s Arguments (Prosecution):

• The accused engaged in conduct that was inherently life-threatening and demonstrated subjective foresight of the risk of death.
• By continuing the drag race, despite knowing that pedestrians used the road daily, they reconciled themselves to the possibility of death, satisfying dolus eventualis.[1]
• Intoxication was not mitigating but aggravating, showing disregard for human life.[2] That conclusion was made based off the area in which the crime was committed, which was on a residential road.
• South Africa’s high rates of road fatalities required strong deterrence. The Constitution, particularly s 11 (right to life), supported the need for serious punishment.[3]

Defense’s Arguments (Accused):

• The accused did not possess actual intent to kill; their actions were reckless but not intentional.
• At most, they were guilty of culpable homicide, based on gross negligence.
• Intoxication impaired their foresight, making dolus eventualis inapplicable.
• Mitigating factors included their relative youth, lack of prior convictions, and the possibility of rehabilitation. The lack of any prior convictions is a clear indication that the accused are not violent people, and neither are they a danger to the community.

8. Judgment / Final Decision

Trial Court (2012):

• Convicted both accused of murder (x4), attempted murder (x2), and reckless/negligent driving.
• Sentenced each to 25 years’ imprisonment, plus a driving ban.
• Justice Makhoba emphasized that “society must be protected from those who abuse drugs and drive recklessly.”

Supreme Court of Appeal (2014):

• Substituted the convictions of murder with culpable homicide.
• Found that the trial court misapplied dolus eventualis, holding that while the conduct was reckless, the State had not proved subjective foresight beyond a reasonable doubt.[4]
• Convictions of attempted murder were also replaced with culpable homicide and negligent driving.
• Sentences reduced to 10 years’ imprisonment, with part suspended.

9. Legal Reasoning / Ratio Decidendi

The trial court reasoned that dolus eventualis was satisfied because any reasonable person would foresee the danger of drag racing while intoxicated. Justice Makhoba equated this with subjective foresight. However, this approach blurred the distinction between negligence and intention.

On appeal, the SCA clarified the law:

• For dolus eventualis, the accused must not only foresee the possibility of death but must also reconcile themselves to that outcome.[5]
• Mere objective recklessness is not enough; without proven subjective foresight, liability falls under culpable homicide.
• The SCA criticized the trial court for “importing objective standards into a subjective inquiry.”

The case was compared to:

• S v De Oliveira (1993) 2 SACR 59 (A): established that foresight of death and persistence in conduct can ground dolus eventualis.
• S v Humphreys 2013 (2) SACR 1 (SCA): held that a driver who caused multiple deaths by negligence could not be convicted of murder without proof of subjective foresight.
• S v Pistorius 2014 (SCA): reaffirmed that dolus eventualis requires subjective foresight, distinguishing it from negligence.[6]

The SCA also emphasized sentencing proportionality: while the deaths were tragic, punishment must reflect the proven mental state, not public anger.

10. Conclusion / Observations

This case remains a landmark in South African criminal law, illustrating the tension between public expectations of harsh punishment and the legal requirement of proof beyond reasonable doubt.

• It clarified that reckless driving under intoxication, even when fatal, does not automatically amount to murder unless subjective foresight is proven.
• It reinforced the importance of distinguishing between dolus eventualis and negligence, a distinction often misunderstood by lower courts.
• From a socio-legal perspective, the case highlighted the devastating toll of road accidents in South Africa and the need for stricter prevention measures beyond criminal punishment.
• The decision also reflected the rule of law principle: courts must apply doctrine consistently, even in emotionally charged cases involving celebrities and vulnerable victims.

While some members of the public saw the reduced sentence as “lenient,” the SCA’s ruling upheld the principle that criminal liability must be grounded in proven mental states, not public pressure. This ensures fairness even when the accused are unpopular.

BIBLIOGRAPHY

1. Carstens, Pieter, “Revisiting the Relationship between Dolus Eventualis and Luxuria in Context of Vehicular Collisions Causing the Death of Fellow Passengers and/or Pedestrians: S v Humphreys 2013 (2) SACR 1 (SCA),” 26 S. Afr. J. Crim. Just. 90 (2013).
2. Constitution of the Republic of South Africa, 1996.
3. Criminal Law Amendment Act 105 of 1997 (S. Afr.).
4. Director of Public Prosecutions, Gauteng v Pistorius (96/2015) [2015] ZASCA 204 (S. Afr.).
5. Maarohanye and Another v S (A378/2013) [2014] ZAGPJHC 251 (S. Afr.).
6. “Revisiting Dolus Eventualis in South African Criminal Law: An Analysis of S v Humphreys,” L. Democracy & Dev. J. (2013), available at https://www.saflii.org/za/journals/LDD/2013/3.pdf.
7. SAFLII, S v De Oliveira (668/91) [1993] ZASCA 62; [1993] 2 All SA 415 (A), available at https://www.saflii.org/za/cases/ZASCA/1993/62.html.
8. SAFLII, S v Humphreys (424/2012) [2013] ZASCA 20; 2013 (2) SACR 1 (SCA), available at https://www.saflii.org/za/cases/ZASCA/2013/20.html.
9. SAFLII, S v Maarohanye and Another (A378/2013) [2014] ZAGPJHC 251, available at https://www.saflii.org/za/cases/ZAGPJHC/2014/251.html.
10. SAFLII, S v Pistorius (96/2015) [2015] ZASCA 204, available at https://www.saflii.org/za/cases/ZASCA/2015/204.html.
11. Snyman, C.R., Criminal Law (7th ed., S.V. Hoctor rev., LexisNexis 2020).
12. University of South Africa, “Interpretation and Application of Dolus Eventualis in South African Criminal Law” (2015), available at https://uir.unisa.ac.za/server/api/core/bitstreams/6bd73e1d-85f8-4091-8009-112e6ca9d8e3/content.

[1]S v De Oliveira 1993 (2) SACR 59 (A) (explaining dolus eventualis as requiring subjective foresight).

[2] Criminal Law Amendment Act 105 of 1997 § 51 (mandatory minimum sentencing provisions).

[3] S. AFR. CONST., 1996, § 11.

[4] S v Maarohanye and Tshabalala (A285/2013) [2014] ZASCA.

[5] S v Humphreys 2013 (2) SACR 1 (SCA).

[6] S v Pistorius 2014 (2) SACR 314 (SCA