A convicted murderer will continue serving his 12-year sentence for the shooting and killing of a rival gang member after the appeal against his conviction failed in the Western Cape High Court this week. 

Jonathan Lotter, one of three accused, was jailed by the Wynberg Regional Court but was aggrieved by the magistrate’s finding and took his conviction on appeal to the high court.

Lotter was accused of murdering Marcelino Maart in Manenberg on April 4, 2017, by shooting him in the pelvis. He and his co-accused pleaded not guilty to the charges. 

Lotter’s co-accused were acquitted of the charges against them, while the State proved that he was the one who pulled the trigger and killed Maart with a single shot.

During trial, two rival gang members Marlin Frazenberg and Sylvester Phillips – affiliated with the Hard Livings gang – identified Lotter, affiliated with the Americans gang, as the shooter. 

Giving testimony, Frazenberg said that while he did not know Lotter on a personal level, he knew him by sight and his nickname ‘Kojak’. In further testimony, Frazenberg said he knew who Lotter was as they lived two streets from each other. Lotter did not dispute that he lived in the vicinity of the witness.

According to Frazenberg, he had seen Lotter the morning of the shooting, which according to his version, occurred between 8am and 10am. 

Frazenberg said he had an unobstructed view of Lotter and that the lighting and weather conditions were good at the time.

“Frazenberg said that because he knew the appellant, Lotter, was a member of a rival gang who was in the territory of the Hard Livings gang, Frazenberg suspected that the appellant was intent on shooting members of the Hard Livings gang, such as himself and Phillips.

“Frazenberg testified that it was for this reason that he and Phillips decided to walk towards Plate Street in the direction from where the appellant and his friends were coming. Frazenberg testified that when they started walking towards the appellant, the latter shot at them (Frazenberg and Phillips). Nobody was hit by the bullets,” the judgment read.

Phillips testified that he witnessed Lotter as one of three who had shot at him and Frazenberg as well as the deceased. 

Phillips said he could identify Lotter as the shooter after a volley of shots rang out, and as the shooters fled the scene, Lotter was about 50m away from him.

Phillips testified that the appellant is well known to him. Apart from the fact that they lived close to each other in Manenberg, he said he knew the appellant because they were friends when the appellant was a member of the Hard Livings gang some years earlier. 

The court quashed Lotter’s legal counsel’s arguments – one of which was that the trial magistrate should have dismissed the identification of the appellant as the shooter.

 According to Lotter’s attorney, his identification was not based on any distinguishing features, identifying marks, facial characteristics, build, height, or dress, but rather exclusively on Phillips’ prior knowledge of, and experience with, the appellant. 

The State argued that the appeal lacks merit and should be dismissed.

In dismissing the appeal and citing case law, acting Judge Fareed Moosa said Lotter’s lawyer’s argument as to distinguishing features of the perpetrator at the scene of the crime should be rejected. 

In the case law cited, the Supreme Court of Appeal in the Abdullah v S matter held that the absence of a description of the clothing that an accused was wearing is hardly a reason to question the veracity of the identification and that such detail takes on far less significance once the appellant was a person well known to a witness.  

chevon.booysen@inl.co.za

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