Notorious gang leader and convicted murderer Wendell Petersen was given a second bite at the cherry on Thursday when the Gqeberha high court granted him leave to appeal against his convictions.
Judge Mandela Makaula, after hearing arguments from the state and the defence, conceded that another court might come to a different finding.
Petersen’s legal team brought the application for leave to appeal a month after Petersen was sentenced to three life terms for his crimes.
Defence attorneys Peter Daubermann and Alwyn Griebenow argued that Makaula had erred in finding that the evidence presented by now-deceased Section 204 witness Morne Nel was sufficient to secure a conviction.
They also argued that intercepted calls between Petersen and his fellow convicted murderers, Jermaine Mitchell, Glynn Carelson and Robin Taylor, as well as Nel, should not have been deemed admissible.
In June 2021, Makaula found Petersen, Mitchell, Carelson and Taylor guilty of the September 2015 murders of three people over a period of a few hours.
Opposing the application on Thursday, state advocate Mujaahid Sandan said the grounds for which Petersen had applied for leave to appeal were merely a “second bite at the cherry” as they were similar to those raised during an application in terms of Section 174 of the Criminal Procedure Act for his discharge at the close of the state’s case.
Petersen was unsuccessful in that application.
Sandan said Makaula had been correct to look at the evidence presented by the state holistically, and that the judge had not only convicted the men purely based on Nel’s testimony.
Daubermann argued that Makaula had erred in the way he warned Nel when he was sworn in as a Section 204 witness (meaning he could be exempt from prosecution if his evidence was found to be truthful), by advising Nel that he would be indemnified from prosecution only if his testimony was favourable to the court and the state.
“[Makaula] inadvertently told [Nel] to testify what the state wanted, to align with their evidence.
“This was improper inducement of [Nel] to testify in favour of the state,” Daubermann said.
According to Daubermann, Makaula erroneously allowed digital recordings of intercepted telephone calls between the accused to be submitted as evidence as there were no original signed directives presented to the court.
“We do not know what the terms of the original directive were [which were] never proved or placed before the court,” Daubermann said.
Makaula, in granting the defence's application for leave to appeal, said another court might find Daubermann’s arguments pertinent when it came to finding Petersen guilty or not guilty.
Makaula ordered that the appeal be heard before a full bench, though a date has not yet been arranged.
Nel, the state’s key witness who went into hiding, spilt the beans on the actions of his former co-accused on the day of the shooting spree.
He was later killed in a hail of bullets near his Barcelona home on June 5.
The men were found guilty of murdering Theodore Matthews, Rajen Naidoo and Jermain Essau.
Nel claimed Petersen had arranged with Mitchell and Carelson to have Matthews killed and later met them to arrange Naidoo’s murder.
After killing Naidoo, they fled to a house in Tobias Street, Gelvandale, and murdered Essau along the way.
Graham Kammies, a former member of the notorious Spotbouers gang, who shared the dock with Petersen until he was acquitted in 2019, met a similar fate in February 2020 when he was shot dead outside a house in Candlebush Street, Bethelsdorp.
Makaula convicted each of the men on four counts of contravening the Prevention of the Organised Crime Act for their roles in gang-related activities, and a count each for the illegal possession of firearms and ammunition.
Carelson, Petersen and Taylor were further convicted on three counts of murder.
For his role, Mitchell was sentenced to five years for each of the POCA-related crimes and 15 years for the firearm and ammunition charges.
Peterson, Carelson and Taylor received the same sentences, plus life for each of the murder convictions.
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