Judge slams botched investigation into deaths of two cyclists hit by car
The police investigation into a crash which resulted in the deaths of two cyclists on the M4 near Durban in 2016 - and the subsequent prosecution of motorist Omesh Ramnarain - had been so badly handled it was "mind boggling".
This was the comment of judge Kate Pillay during argument in the Durban high court on Friday in an appeal by Ramnarain against his conviction on two counts of culpable homicide and a sentence of 10 years' imprisonment.
"This is a very sad case. Two innocent people lost their lives and yet there was no expert accident reconstruction evidence … and his blood alcohol level was not tested in the required time.
"It was handled with complete incompetence," the judge said.
Cyclists Richard da Silva and Jarred Dwyer were at the back of a pack on an early morning ride up the KwaZulu-Natal north coast when Ramnarain, who was returning from a nightclub, smashed into them.
While witnesses said he smelt of alcohol, the blood test was taken outside of the legislated two-hour window period and was not admitted into evidence during his trial.
He claimed to have had four drinks during the evening and said he did not see the cyclists at all. His windscreen "smashed" and he swerved to the left before hearing two bangs.
It was only some days after the accident that he discovered a rock in the well of the passenger seat in his car.
Because of poor evidence of witnesses at his trial in the Durban Regional Court, magistrate Anand Maharaj convicted him on his own version, but rejected any suggestion that a rock had been thrown at his vehicle just before he crashed into the cyclists.
In argument before judge Pillay, his advocate, Murray Pitman, said the magistrate had been wrong to do so - particularly because police had taken a photograph of it at the scene and then attempted to "keep it out of evidence".
The judge raised concerns about the speed Ramnarain had been travelling but Pitman said there was no evidence - and nor had the magistrate found that he had been speeding.
"On the evidence, there was no speeding, no drunk driving and no recklessness. He should have been acquitted."
Regarding the "exemplary" sentence handed down by the magistrate, he said: "I can understand it at gut level ... but that is what the process of sentencing is meant to avoid. One should not sentence out of anger or to please public opinion."
He said the magistrate had overstated the extent of the negligence and, if the judge ruled that the conviction was correct, she should rather impose a sentence of house arrest.
State advocate Yoliswa Nyakata submitted that the state had proved its case beyond a reasonable doubt.
"He says he heard two bangs. He hit two people. So where does the rock feature in this?"
Ramnarain spent one month in prison after the magistrate refused to extend his bail. He successfully applied in the high court to be released.
He attended court on Friday with friends and family. Relatives of Da Silva and Dwyer were also at the hearing.
Judgment was reserved.