S v Siyeka (SS11/2014) [2015] ZAWCHC 204 (19 November 2015)

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[2015] ZAWCHC 204
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S v Siyeka (SS11/2014) [2015] ZAWCHC 204 (19 November 2015)

IN THE
HIGH COURT OF SOUTH AFRICA
(
WESTERN
CAPE HIGH COURT, CAPE TOWN
)
CASE
NUMBER
: SS11/2014
DATE
:19
NOVEMBER 2015
In the
matter between:
THE STATE
And
CHUMA
SIYEKA
........................................................................................................................
Accused
J
U D G M E N T
BOQWANA,
J
:
Introduction
The
accused was arraigned for trial before this Court on an indictment
consisting of altogether 16 counts, namely, two counts of
theft
(counts 1 and 8); two counts of robbery with aggravating
circumstances (counts 2 and 9); six counts of attempted murder
(counts 3, 4, 11, 12, 13 and 14); one count of murder (count 10); one
count of possession of unlicensed firearm (count 5); two counts
of
possession of prohibited firearms fully automatic firearm (count 6
and 15); and two counts of possession of ammunition (counts
7 and
16).  Counts 2,6, 9, 10 and 15 are read with the provisions of
section 51 of the Criminal Law Amendment Act 105 of 1977
(‘The
Criminal Law Amendment Act’). Counts 6 and 15 are also read
with the relevant provisions of the
Firearms Control Act, 60 of 2000
and Schedule 4 of that Act.
Counts
1 to 7 related to incidents that allegedly occurred in October 2007
in the district of Bellville.  In respect of count
1, it was
alleged that on 5 October 2007, the accused stole a white Mercedes
Benz motor vehicle from one, Daniel Brinkhuis at Boston
Bellville.
Charges 2, 3, 4, 5, 6 and 7 related to incident that allegedly took
place on 8 October 2007, when a Coin Security
van was ambushed by a
group of robbers at Bellville.
In
regard to count 8, it is alleged that the accused stole a Mazda
bakkie belonging to one, Andreas Coulbanis (‘Coulbanis’)

at Mowbray on 20 September 2013. Counts 9, 10, 11, 12, 13, 14, 15 and
16 relate to an incident that occurred on 25 October 2013
near or at
Monte Vista Boulevard, in the district of Bellville, when a group of
armed robbers used a stolen vehicle during a cash-in-transit

robbery.  In that instance shots were allegedly fired at
Johannes Hloi (‘Hloi’); Isaac Witbooi (‘Witbooi’)

and Gareth Jones (‘the deceased’) who were occupants of
the Coin Security truck transporting an unknown sum of money.
During
the incident the driver of the Coin Security van, the deceased was
killed.  Shots were also fired at Bryan Butler (‘Butler’)

and Werner Kotze (‘Kotze’) from the District Watch who
were travelling in a patrol vehicle.
The
accused was represented by Mr Van der Berg and he pleaded not guilty
to all charges.  The State was represented by Mr Wolmarans.
Mr Van
der Berg informed the Court that the accused denied any
participation, or that he was present during the commission of any
of
the offences.  The accused’s defence was about his
identity.  He further submitted, that the accused did not
place
in dispute that any of the offences contained in the indictment were
in fact committed.  Aspects such as crime scene
ballistics found
on the scene were also not placed in dispute.
Admissions
were handed in in terms of section 220 of the Criminal Procedure Act
51 of 1977 (‘
Criminal Procedure Act&rsquo
;) and marked as
Exhibit “L”.  The most significant of the admissions
were the following:
The
correctness of the statements regarding the ballistic reports handed
in as Exhibits “N” and “O” respectively;
That
seven 62 x 39 millimetre calibre cartridges fired during the
incident were ejected from an AK47 rifle during firing of a
fully
automatic firearm;
That
the deceased’s death was caused by gunshot wound to the
chest.  A bullet was collected from his clothing and sealed
for
forensic testing as depicted in the post-mortem report Exhibit “M”;
The
correctness of the photo album, sketch plan and key to photos as
well as the sketch plan marked as Exhibit “A”;
That
the identity parade proceedings were accurately recorded and that
the accused was pointed out by the witness Butler as the
person in
the line-up holding card number 7.
The
State called eight witnesses in respect of the incidents which took
place on 20 September 2013 and 25 October 2013 respectively.

Those were in regard to counts 8 to 16.  As regards counts 1 to
7 which related to the offences committed on 5 and 8 October
2007, no
evidence was led.
After
the close of the state’s case, the defence brought an
application in terms of the
section 174
of the
Criminal Procedure Act
for
discharge of the accused on all charges.  The Court
acquitted the accused in respect of counts 1 to 7, but refused
discharged
on counts 8 to 16.  The defence called the accused to
testify.
Issue
To Be Decided
The
facts of the case are largely common cause and the only issue placed
in dispute is the involvement of the accused in the commission
of the
offences. Thus, this case falls to be determined on a narrow aspect
which is the identity of the accused as the member of
the gang of
robbers who attempted to rob the Coin Security van and in the process
committing various other offences.
State’s
Evidence
The
state called Mornay Daniel Le Roux (‘Le Roux’); Werner
Kotze (‘Kotze’); Huwett Faulmann (‘Faulmann’);

Andreas Coulbanis (‘Coulbanis’); Brian Butler (‘Butler’);
Isaac Witbooi (‘Witbooi’); Johannes
Hloi (‘Hloi’)
and Theresa Wernich (‘Wernich’).
Le Roux
testified that he was employed by ABSA Bank as an administration
clerk.  During October 2013, his function as an ATM
custodian
was to load ATM machines with money and to ensure that it was up and
available for clients.  He was assigned a geographical
area with
30 to 35 ATM machines under his supervision.  He explained the
procedure of collecting money at the cash centre
and the function of
Coin cash in transit services and securing of the area.  On 25
October 2013, he was on duty and at approximately
past 2:00 in the
afternoon he was inside an ATM cubicle at Monte Vista.  He was
driving his own vehicle. The Coin van followed
him from ATM to ATM.
Each Coin van was assigned three guards.  On that day the
members of the Coin van were the driver
(Jones), the crewman who
carried the money (Hloi), and a third person who secured the site
(Witbooi).
On 25
October 2013 after 2:00 in the afternoon, whilst in the cubicle, he
observed through the peephole, which was about head height
in the
door, the crewman Hloi coming closer towards the cubicle with the
money bag.  He unbolted the door to let him.
Hloi handed
the money bag over to him, and he signed for it.  Hloi then left
the cubicle to go back to the Coin van.
He proceeded to load
the money into the ATM canisters and activated the machine.
Whilst
he was still inside the cubicle, he heard a bang sound.  After
that he heard a shout, and a second and third bang.
He looked
through the peephole and saw about 3 or 4 people running around the
Coin security truck.  These people were not
known to him and he
could not identify them.  When he looked the second time he saw
Witbooi running from the left-hand side
of the truck followed by a
robber.  Witbooi jumped into the back of the truck and one of
the robbers grabbed the edge of the
door with his left hand in order
to pull the door open. He then pointed the firearm into the vehicle
with the right hand and proceeded
to fire a shot into the van at
Witbooi.  Witbooi or Hloi managed to close the back door of the
van.
The
robber shouted “
maak oop
”
three times. They did not open the door.  The
robber then ran away from the truck and jumped onto the back of a
white bakkie
and the bakkie then left the scene.  There were
also two other males on the back of the bakkie standing directly
behind the
cab.  He only saw the one robber with the firearm and
no other firearms.  When he first saw the bakkie it was moving
very slowly on the right hand side in front of the Coin truck.
He observed a male person inside the bakkie in the driver’s

seat.  The robber who chased Witbooi had on a white t-shirt and
a white ‘
material
’
sunhat with a rim right around it.
He
heard further rapid shots which sounded like machine gun bangs coming
from the direction that the bakkie went into.  He
initially
thought the white bakkie was a Ford Courier bakkie without a canopy.
He later found out that it was a Mazda bakkie.
He then
phoned 10111 after the shooting stopped.  He exited the ATM
cubicle, and found Witbooi and Hloi outside the Coin van.

Witbooi was standing at the rear end of the van.  He noticed a
bullet wound to Witbooi’s left shoulder and that he was

bleeding.  Hloi exited the rear of the van and he had no
injuries.  Le Roux phoned the ambulance services.  As he

walked around the van he noticed Jones lying on the ground next to
the van with his eyes closed and he was not moving.
He
further testified that at the time of the robbery it was not raining,
but a little later in the day it started to rain.
Kotze
testified that during October 2013 he was employed for about seven
months as an armed response officer for District Watch.
As part
of his duties he had to attend to any panic or alarm activations.
On 25 October 2013 he together with Butler, his
co-worker, were
patrolling the streets in District Watch marked Chevrolet bakkie
(‘Chev bakkie’).  After 2 p.m.
he and Butler turned
up in a northerly direction in Diaz Road, when they received a radio
call and panic activations from the chemist
in Monte Vista
Boulevard.  He was unarmed at that stage.
He
spotted a Coin Security vehicle and told Butler that it seemed that
there was an armed robbery in progress.  This was at
Monte Vista
Boulevard.  Monte Vista Boulevard is not a one way road.
As they came up Diaz Road he saw a Mazda bakkie
travelling at a slow
speed towards the stop street.  He then noticed a person running
towards the bakkie and this person climbed
onto the back of the
bakkie.  Altogether there were five people in and on the bakkie.
Three of these people were on the back
and two in the cab, or in
front of the bakkie.  On the back of the bakkie, two people were
standing in front of each other.
The third person who ran
towards the bakkie joined those on the back. When they were all on
the back of the bakkie, he noticed
that one was sitting, one standing
and the third one who climbed on later also stood.
The
Mazda bakkie was moving in a westerly direction whilst he and Butler
were moving in a northerly direction.  He confirmed
when a
question was put to him that the two vehicles were destined to cross
paths. Butler took his firearm and pointed it through
the driver’s
side window to the direction of the white Mazda bakkie.  Butler
shouted “
stop
”
to the Mazda bakkie. He then fired off his pistol.  Their Chev
bakkie also came to a stop.  He exited from the
bakkie and hid
behind the door frame of the bakkie.  Butler then fired seven
rounds and thereafter the Mazda bakkie also came
to a stop.  He
then saw the driver of the Mazda bakkie taking out something from the
middle next to the steering wheel.
He noticed the back wooden
part of an AK47 rifle.
The
driver of the Mazda bakkie then placed the rifle over the roof of the
bakkie and started shooting at their vehicle.  Kotze

demonstrated the action of the driver by using his right hand going
up in an arch and in an overhead position, pointing towards
the left
hand side of the vehicle.
Kotze
testified further that some of the rounds hit their Chev bakkie.
When he saw the back part of the AK47 he exited the
armed response
vehicle completely and he went to the left hand side of their
vehicle.  He could hear gunshots and a few rounds
hitting the
Chev bakkie.  He then laid flat on the ground behind the bakkie
and one of the rounds hit the ground next to his
shoulder and
ricocheted into the bakkie.  He then got up and ran towards the
dentist surgery.
During
his run there was still gunfire.  He could hear a few shots and
their Chev bakkie reversing.  After a while in
the surgery the
gunfire stopped and he exited the surgery and met up with Butler. He
did not see the white Mazda bakkie again.
In
cross-examination he confirmed that he made a statement to the police
on the same day of the incident at 17:40.  He gave
to the police
as accurate information as he could. He read and signed the
statement. He further confirmed meeting up with Butler
after he
emerged from the ‘surgery’ and they asked each other if
they would be able to identify their attackers.
It was put to
him that the answer that he gave to Butler would have been the same
as that which he gave to the police in his statement,
which was: “
I
am unable to give a description of the suspects nor will I identify
them if seen again.”
To which he
answered ‘
yes
’.
It was
further put to him that Butler gave a similar answer as to his
ability to identify their attackers and he said “yes”.

He confirmed that Butler’s statement to the police which was,
inter alia, that:
“
I am not able to give a description
of the suspects besides that the driver was a big built African
male.  I will not be able
to identify them if seen again”
was in essence what Butler told him as
well.
He
stated that the reason why he was not able to give a description of
the people was because he was stressed and it was his first
incident
with cross fire or shooting with firearms and his life was in
danger.
He
confirmed that he did not attend an identity parade and was never
informed by Butler that Butler had attended such a parade.
He
further testified during cross-examination that during the shooting
the front end of the Chev bakkie was facing the left hand
side of the
Mazda bakkie.  He could not see anyone on the back of the Mazda
bakkie with firearms and shooting.  He also
did not see the
front passenger drawing a firearm from around his chest area or
shooting. He could not see what the passenger was
doing as his focus
was only on the front of the bakkie and shooting next to him.
The head of the front seat passenger in
the Mazda bakkie was between
him and the driver of that bakkie all the time.  He also gave a
description of how Butler was
shooting his pistol from their Chev
bakkie, and that his hand and head were outside the window of the
bakkie.
According
to him it was a cloudy day, and it later started to rain.  The
duration of the shooting felt like it lasted for a
day, but in
reality it was over in a few seconds.
The
next witness was Faulmann, who testified that on 25 October 2013 just
after lunch (past two), he was at Jack Hammers Hardware
Store that
was where he was working.  He had just finished serving a client
when he heard shooting.  It could have been
15 shots that he
heard.  He pressed the panic button inside the store and also
phoned the District Watch Security.  He
observed this from the
window of the store and could see directly onto the Coin cash in
transit vehicle and according to him the
shots came from the right
hand side of the Coin vehicle.
The
robbers were chasing one of the security guards, and he was running
around the Coin vehicle.  Plus/minusfive male robbers,
most of
whom were wearing black tops were chasing this security guard.
This security guard was running to escape the shots
and he fired
back.  He was shot in the shoulder.  The guard then moved
from the right to the left hand side of the vehicle
and he could not
see him anymore.  The robbers then jumped onto the white Mazda
pick-up vehicle, which did not have a canopy
and drove off.
Faulmann was able to get the registration number of the bakkie, which
he confirmed to be CA 717 289 and gave
it to the police.  The
Mazda bakkie departed from the scene in the direction it was facing,
which is depicted on the sketch
plan as the westerly direction in
Monte Vista Boulevard North.
Coulbanis
testified that on 20 September 2013 he was driving a white Mazda
bakkie registered in his father’s name.  He
parked the
bakkie outside a friend’s house in Rondebosch.  The
vehicle was stolen and he reported it to the police.
The
insurance paid the value of approximately R150 000,00 for the stolen
bakkie.
When he
parked the vehicle everything was in good order. The doors were
locked, windows were closed and the bakkie had a canopy.
The
photographs taken on the scene in Monte Vista Boulevard showed the
bakkie without a canopy.
On 1
November 2013 Coulbanis was contacted by the police and went to
Stikland and identified the bakkie as depicted in photographs
213 and
214 of Exhibit “A”.  He made a statement to the
police pertaining to the registration number of the vehicle.

The police statement reflected the registration number as CJ 22062
while the registration number depicted in photograph 214 was
CA 717
289 which is clearly different.
Butler
testified that he is 41 years of age and has been in the employ of
District Watch for 5 years.  He has a competency
accreditation
as well as a business competency accreditation pertaining to the use
of a handgun.
On 25
October 2013 he was on duty dressed in uniform and had in his
possession a weapon known as a, CZ75 semi-automatic pistol issued
to
him with 2 magazines containing 15 rounds each.  On that
particular day he was the driver of a patrol Chev bakkie marked
ROMEO
7 which was a District Watch vehicle and Kotze was his passenger.
They
were patrolling and travelling along McCarthy Road.  Just after
half past two in the afternoon they received a call out
from the
control room regarding a panic alarm at Kemtique Pharmacy.  A
panic alarm signal is classified as a priority signal.
He saw
four people running towards a white Mazda bakkie from the direction
of the ATM at Monte Vista Boulevard.  One person
jumped in front
and three people jumped on the back.  On the back of the bakkie,
one person was standing directly behind the
driver’s side with
his back against the driver’s cab.  Another person was
sitting on the passenger side on the
wheel arch and a third person
was also standing ‘sort of’ just behind where the one
person was standing.
Butler
stopped his Chev bakkie in the centre of Monte Vista Boulevard
(south) facing in a northerly direction.  The Mazda bakkie

travelled not fast down Monte Vista Boulevard (north) from east to
west and came to a stop halfway over the stop street.
He took
out his firearm from the holster and cocked it.  He then noticed
one of the suspects on the bakkie standing behind
the driver turning
around towards him and this suspect was carrying an AK47. He has been
in the industry almost 20 years and has
seen a number of firearms,
one of them being an AK47.
He also
saw the driver of the Mazda bakkie pulling out an AK47 and the said
driver put his right arm out of the window over the
roof.  He
then realised that a shootout was about to ensue.  Butler then
pointed his firearm out of his vehicle’s
driver’s window
and started shooting in the direction of the people pointing firearms
at him.
All
three persons on the back of the Mazda bakkie ducked into the well of
the bakkie.  The driver of that bakkie started returning
fire.
Kotze then jumped out of the vehicle and he saw Kotze moving towards
the back of the vehicle.  The suspects carried
on shooting at
him.  He then moved his body over the driver’s seat.
The person at the back of the Mazda bakkie
who was behind the driver
was also shooting at him with an AK47 and this person was slightly
elevated.  He could not recall
anyone else shooting at him.
He had sight of the Mazda bakkie most of the times.  He saw
Kotze running towards the dentist
practice.  When he saw Kotze
running he knew that it was time to get out of that situation.
He then put his vehicle
in reverse and put his foot on the
accelerator.
The
Mazda bakkie came directly towards his vehicle as he was reversing in
a southerly direction.  He was slightly elevated
and he could
see over the top of the dash board.  His vehicle swung around
and mounted the pavement in an easterly direction
and carried on
reversing in a northerly direction and came to a standstill under a
tree.
When
the two vehicles crossed each other’s paths they were probably
five metres apart.  The occupants of the Mazda bakkie
were still
shooting at him.  He observed the suspects again as his vehicle
was moving north and their vehicle going south
as they crossed
paths.  Their vehicles were side by side and his side door was
facing theirs as they passed him.  They
were still shooting when
they drove passed his vehicle.
He
sustained no injuries.  His attention was mostly focused on the
driver and the person behind the driver during this episode.
He was
asked about the description of the two individuals.  He stated
that the driver was a quite a big person.  When
asked about the
person who wielded the AK47 on the back of the bakkie he answered
that he was initially standing, he knew that
this person was not a
very tall person, he was fairly stocky in build and had a bit of a
roundish face.  Only the windscreen
separated him and the driver
of the Mazda bakkie.  The person on the back of the bakkie was
not obstructed and he had nothing
over his face.  He could
clearly see and only needed to use spectacles at night when he was
driving.
He made
his statement to the police at 16:40, which he confirmed was just
after two hours after the incident.  He did not give
the police
any type of description of the suspects at the time.  His reason
for that was:
“
I had just been through quite an
intense incident and your adrenalin is still pumping and mind racing
away with you and you are
pretty much thankful to be alive after
facing what you did.”
On 23
November 2013 he attended an identity parade at Mannenberg Police
Station.  He identified a person as the one who was
shooting at
him.  This person was the one standing behind the driver on the
back of the Mazda bakkie.
There
were three points during the whole incident where he was able to have
a good look at the suspects and those were firstly,
when they stopped
at the corner of Monte Vista Boulevard and Diaz Road, the second time
was when the attackers were shooting at
him, and the third time was
when the Mazda bakkie came passed him when he was reversing.
During these key moments, he noted
that the person on the back of the
bakkie was not a very tall person, he was quite stocky built, had a
very short neck and had
smallish ears.  He was 100% certain of
the identification.
In
cross-examination, he confirmed that he made a statement to the
police on 25 October 2013. This was not the first time he made
a
police statement and he was familiar with the routine.  As far
as he could recall he read the statement himself after it
was taken.
He was satisfied that the content of the statement was accurate and
complete.  He was not rushed when the
statement was taken and
the effects of the incident were still fresh in his mind.  This
was the most overwhelming incident
that he had experienced and it
played quite a lot in his mind.  When he made the statement he
was not at ease because his
life had been threatened during the
incident and a bullet had missed him by 30 cm.
Warrant
Officer Streicher of SAPS Bothasig arrived on the scene and he gave
to him a description of the vehicle that had gone down
towards Barrow
Road.  A lot of police vehicles, emergency services and traffic
officials arrived in approximately 5 minutes.
Warrant Officer
Swan spoke to him.  The statement he made to the police was
taken in the dentist’s office at Monte Vista.
During this
time he probably got up five or six times to go outside and smoked.
He
confirmed that he was an experienced person in the law enforcement
field.  He realised that he was going to be asked for
a
description of the people but he did not really apply his mind to the
appearance of the attackers because in his mind he was
thinking about
too many things all at once, and could not process everything
straight away.
His
recollection was that he did give a description to the police of the
driver and that the one person on the back of the bakkie
had a blue
overall top on and also that somebody had a green overall top on.
He could not recall what else he had said, although
in his statement
he mentioned that the driver was quite a big guy.  He seemed to
recall that the man standing on the back
of the bakkie did not have
hair but was not sure.  He also could not recall seeing him
wearing a cap.
He was
further asked as to how it is possible that he was able to give a
description two years later in court, and whether he had
given a
description before.  He testified that he recalled speaking to
Swan and giving him a description a day or a week after
the incident
although he could not give any exact time frame.
He
described to Swan that the person that was on the back of the vehicle
who was shooting at him was not a tall guy, he was stocky
built and
clean-shaven or appeared to be clean-shaven.  Although he could
not remember his exact words, he thought he also
made a comment that
the man had pretty small ears (but was not sure).  Those were
things that just caught his eye.  Swan
informed him that no-one
had been apprehended at that stage.  He did not give the
description in writing by making another
statement or complete a
description form.
He was
asked why in his first description to the court he had left out the
ears and neck and in his description to Swan he had left
out the neck
altogether and possibly did not mention the ears.  He stated
that he could not answer that, but mentioned that
he noticed the ears
when the Mazda bakkie came past him whilst he was reversing. Until
the point where his vehicle spun around
he had sight of what was
coming in front of him and once his vehicle spun around and hit the
pavement, it carried on moving backwards.
When he
first saw the Mazda bakkie at the intersection his vehicle was about
50 to 60 metres away from it.  When his vehicle
was stationary
in Diaz Avenue, the Mazda bakkie was stationary at an angle of about
10 metres away to his vehicle.
When
asked about the differences between his police statement and his
testimony in Court he replied, inter alia, as follows:
“
at the time that this statement was
taken it was just over two hours after the incident had occurred, so
the mind is racing, you
are thinking of things, you are not going to
remember everything straight away.  I do not have a photographic
memory so I
won’t remember everything - it is something that
takes time.”
He
testified that he was under incredible pressure and it played a role
on his stress levels.  He also had an unarmed colleague
to
protect.  He fired seven shots at their attackers.
He
conceded that one of those on the back of the bakkie had a pistol and
one possibly had an assault rifle (as reflected in his
police
statement).  The person with the pistol possibly fired.  He
further confirmed that more than one of those on the
back of the
bakkie possibly fired shots but he could not say why he did not tell
that to the Court in his evidence in chief.
In his
estimation the whole shooting incident took about 20 to 30 seconds.
The
beginning of his manoeuvre to reverse, until the last shot was fired
at him took about 12 seconds.  After the Mazda bakkie
drove past
his vehicle it turned into Barrow and Barnard Street.  There was
no direct threat to his life anymore. That is
when he called for
police assistance.  He took a tape out of his bakkie and started
closing off the entire area where the
incident had taken place.
He preserved the scene by means of the crime scene tape.  He
agreed that after the incident
he acted in a rational and logical
way.
He
confirmed that the man on the back with an AK47 swung around in his
direction holding the AK47 at midriff.  He did not see
the
person put the butt against his shoulders.  He further stated
that he has handled an AK47 rifle before and it is a fairly
light
firearm.
He
conceded that during the 20 to 30 seconds his attention was divided.
It was pointed out to him that in his statement he
mentioned that two
of the African males on the back of the bakkie pointed firearms
towards his direction, they had an AK47 rifle
and others had a
pistol.
Mr Van
der Berg put to him the danger of identification and the possibility
of him having pointed out [during the identity parade]
a person most
resembling the man he saw.  His response was that there could be
a possibility, but he was 100% right and was
not mistaken.  He
confirmed in re-examination that he pointed out the one particular
person with card number 7 because he
was the person he saw as the ‘AK
man’ on the back of the bakkie.  He also mentioned that
the person he pointed
out at the identity parade had a ‘
bokbaard’,
that is, hair growth around his mouth and chin.
Despite this difference from the person he saw on the day of the
incident
(who was clean shaven), he was still convinced that he
pointed out the right person.
The
next witness was Witbooi who testified that on 25 October 2013, he
was working at Coin Security as a security officer.
On this day
he was driving with his colleagues in a Coin Security van and he was
the ‘third man’ and his duty was to
secure the area.
The ‘crewman’ was Hloi and his function was to carry the
money.  Jones was the driver of
the van.  They were
following Le Roux from ABSA with the Coin Security van visiting
different ATM’s to deliver money
for the loading of machines.
Just
after 2 o’clock in the afternoon they arrived at the ATM at
Monte Vista Boulevard.  Le Roux was already there.
He
alighted from the vehicle in order to ascertain if everything was
safe.  He then gave a sign to Le Roux to indicate that
it was
safe for him to enter the ATM cubicle.  Hloi followed with the
money. Le Roux and Hloi were safely inside the cubicle.
It was
his task to keep customers away from the ATM whilst the money was
loaded.
He was
dressed in a uniform and at that stage standing in front of the ATM.
He also carried a 9mm Norinco weapon.  He
gave a sign as an
indication that it was safe.  Hloi exited the cubicle and
climbed back into the back of the van.  Hloi
also carried a
pistol.  The driver (Jones) was unarmed.  Witbooi and Hloi
were normally seated at the back of the truck.
The only way to
communicate with the driver was through a microphone (intercom).
Hloi
was safely back in the back of the truck and he (Witbooi) was still
outside waiting for Le Roux to finish at the ATM machine.
Whilst
he was waiting he noticed three male persons, one came from the OK
MiniMarket and the other two came out of the pharmacy
next to the ATM
and they joined each other.  These men approached his
direction.  Before they reached him he asked them
to go towards
the front of the van and not come towards him and they did so.
The reason for this was to keep the customers
as far away from the
ATM. When these men moved to the front of the truck he lost sight of
them.
Close
to the ATM there is a shrub as depicted on photo 1 of Exhibit “A”.
One of the three men surprised him when
he quickly appeared from
behind the shrub.  He noticed a firearm in this man’s hand
which he pointed towards his direction.
They were 2 to 3 paces
away from each other.  This man shouted at him in English that
if he was going to run he would shoot
him.
Witbooi
then took cover on the left-hand side of the truck and he then pulled
his firearm.  Two shots were fired at him by
the attacker.
He later, after the ordeal was over, discovered that he was shot in
the right shoulder.  He shot back
at the attacker by firing two
rounds.
He
waited to see what was going to happen because the attacker wanted to
get hold of him so that he could open the door.  He
then ran to
the front of the Coin truck and he noticed the other two attackers
standing in the road waiting for him.  He fired
one shot at them
and they returned fire.  Both of them had hand held weapons.
He moved back to the left hand side of
the Coin truck.  After he
fired the shot his firearm jammed.  The Coin van back door can
only be opened from the inside.
He ran to the back of the Coin
van and asked Hloi to give his gun to him.  Hloi opened the door
slightly and gave his firearm
to him through the lower side of the
door.  He again ran to the front side of the truck and noticed
that Jones was lying down
on the ground and was still moving.
He ran to the back of the truck and asked Hloi to open the door so
that he could enter
because he did not know how many attackers were
still there.  When he got out again he could hear machine gun
shots at a distance.
He confirmed that he saw three persons
each had a hand held weapon.
Hloi
testified that on 25 October 2013 he worked for Coin Security and on
that day he was on duty with his colleagues, Witbooi and
Jones.
His job was to carry the money from the truck to the ATM for
loading.
On the
day in question he and his colleagues, Witbooi and Jones, arrived at
the ABSA ATM at Monte Vista Boulevard just after two
in the
afternoon.  On their arrival, ‘the third man’,
Witbooi, got out of the truck to secure the environment.

Witbooi informed him
via
the radio that it was safe and he may proceed to take the money in
his CPC moneybox to the ATM to handover to the custodian, Le
Roux,
from ABSA for loading.
Le Roux
was already inside by then and the outside door was locked.  Le
Roux opened the door, Hloi entered with the money box
and unloaded
the money.  He gave it to Le Roux for loading.  Hloi closed
his moneybox and walked back to the Coin Security
truck.
On his
way to the truck he spotted a gentleman who was not far away from the
ATM busy on his cell phone.  Thereafter two other
gentlemen came
from the direction of the Mini Market.  He, at that stage opened
the truck door at the back and went inside
to drop his CPC box into
the sleeve.
He then
heard a gunshot outside and he looked through the rear window of the
van and saw someone outside exchanging fire with Witbooi,
who was
running to the back of the van for cover. One shot hit the window of
the truck.  He remained in the back of the truck.
He
confirmed that the attacker that was chasing Witbooi saw him and shot
back at the window that he was looking through.
The bullet did
not go through the window due to the fact that it was bulletproof. It
just made a mark.  He was scared and
just sat down inside the
truck.
Witbooi
knocked on the window of the Coin van and screamed at him telling him
that his firearm had jammed.  He opened the door
slightly and
gave Witbooi his firearm.  At the later stage, Witbooi once
again knocked on the door. He opened and Witbooi
also got into the
truck where they remained.
They
have an intercom system in the truck and one could hear any movement
in front of the vehicle.  He heard a scream from
Jones and a
gunshot and thereafter it was quiet.
The
attacker he first noticed was standing next to the ATM talking on his
cell phone just before he entered the cubicle.  He
did not see
the two gentlemen again who came from the direction of the Mini
Market.
He
described the two gentlemen as both tall, slender and light in
complexion.  He had three sightings of the man who was talking

on his cell phone and described him as “
a
big muscled guy, he was like fat
.”
He could not remember these men’s clothing.  They all
looked to be middle-aged or young between the ages
of 28 to 30
years.  The big muscled person was a grown man of over 30
years.
Wernich
testified that she was employed by the South African Police Services
attached to the Local Criminal Record Centre at the
Provincial Crimes
Investigation Unit of the Western Cape as a criminalist expert. She
has 13 years experience. She successfully
completed several courses
relating to her work.
At the
courses she was trained by experienced and trained experts in the
detection, comparison and identification of fingerprints,
as well as
the collection of forensic evidence.  In 2007 she completed the
AFIS operator’s course which is the Automated
Fingerprint
Identification System.  She obtained expert status in March
2010.  In 2012 she did an AFIS expert operators
course.
She also completed a B-Tech degree in policing
cum
laude
at UNISA.
On 25
October 2013, she went to the scene of the crime at Monte Vista
Boulevard.  She took photographs of the scene focusing
on
fingerprint investigation [from the Mazda bakkie] which was submitted
as Exhibit “D”.  Due to the weather the
vehicle in
question was towed to Stikland.  On 26 October 2013 (which is
the day after the incident) she investigated a white
Mazda bakkie
with registration number CA 717 289 for fingerprints, palm prints and
forensic evidence.
During
her testimony she gave a power point presentation regarding specific
photographs she took during her investigation of the
white Mazda
bakkie.  A photo album and a power point presentation disc were
handed in as Exhibit “E” and Exhibit
“2”
respectively.
Photograph
2 of Exhibit “E” shows a print found on the roof of the
bakkie and marked point 11.  Finger lifter no.7
in Exhibit “F”
also depicted as lifter no.7 in Exhibit “F” depicts
fingerprints lifted from the vehicle
with reference number
2040/10/2013.
On 30
July 2015, she received a set of fingerprints from the investigating
officer on which the name Chuma Siyeka appeared.
Those were
handed in as Exhibit “G”.  She compared the marked
prints on Exhibit “F”, which is the
scotch tape, with the
marked print on Exhibit “G” (SAP 192) and found it to be
corresponding.  She then prepared
a court chart which was handed
in as Exhibit “J”. A description of the marked out ridge
features points is contained
in court chart SAPS 333. Points 1 to 9
are marked out on the court chart, Exhibit “H”.
She
explained that photograph 1 on Exhibit “H” was a
photographic enlargement of the crime scene print which was lifted

from the roof of the bakkie that was found on Exhibit “F”.
Photograph 2 on Exhibit “H” was a photographic

enlargement of the marked printout Exhibit “G” which is
the set of fingerprints received from the investigating officer.

She marked out nine point ridge features and these ridge features
corresponded with regards to type, direction, place, position
and in
relation to one another of which, according to her, only seven ridge
features are sufficient to prove a person’s identity
beyond all
doubt. She further testified that on the day that she came to court
to testify and before the start of the court proceedings
she took the
fingerprints of the accused which were handed in as Exhibit “K”.
She compared those to the print lifter,
Exhibit “F”, the
court chart SAPS 333, Exhibit H and the set of fingerprints taken by
the Investigating Officer, Exhibit
“G” and found them to
be corresponding.
She
testified further, that no two persons have the same finger, palm or
footprints and that is why she had no doubt that the prints
she found
on the white Mazda bakkie belonged to nobody other than the accused
before Court.
The
bakkie was taken to SAPS at Stikland where it was kept under cover
for examination because it was overcast and they were of
the opinion
that it might rain.
Verification
of fingerprints lifted was always done by other experts, and if an
agreement was not reached on an identification,
a statement in the
form of
Section 212
of the
Criminal Procedure Act would
not be
issued.  The print in photo 1 of Exhibit “H” was
made in uncontrolled and unfavourable circumstances whilst
photograph
2 of Exhibit “H” was taken in control circumstances.
According to her, the little dots on photograph
1 in Exhibit “H”
could be attributed to dust particles.
In
cross-examination various articles, such as those of Professors
Meintjies Van Der Walt and De Villiers were put to her which
espoused
the view that two people may have the same fingerprint.  She
stated that she kept up to date with literature on the
subject of
fingerprints but she did not read the articles of Prof Meintjies Van
Der Walt or Prof De Villiers.  Further, her
practical training
was done by police experts.  She however was aware of people
saying errors do occur but she made no errors
and her work is
verified by experienced experts who are police officials.  She
mentioned that  the South African courts
require the seven
points corresponding ridge characteristics.
According
to her, research has been done by SA Criminal Record Centre on more
than 1 million cases on the 7 points corresponding
ridge features and
not once was it found to be inadequate.
It was
further put to her that blotches on photograph 1 could have been as a
result of a skin condition or sandblasting.  She
stated that
according to her expert opinion the blotches were caused by dust.
She was certain that the fingerprint lifted
from the roof of the
white Mazda bakkie was the fingerprint of the accused.  That
concludes the state’s case.
Defence
Case
The
accused testified that he was 48 years old at the time of the
incidents and resided in Khayelitsha.  He is married with
six
children, five boys and a girl.  The youngest boy was 2 years
old in October 2013, and he attended pre-school from 8 o’clock

in the morning until 4 o’clock in the afternoon, 5 times a
week.  The pre-school is situated in the same street as their

home.  The child’s mother or he would take the child to
school and fetch him.  His wife worked for an NGO known
as
Umthawelanga.
He
owned two kombis which he used as taxis under the name Siyeka Taxis
and one sedan Ford Focus vehicle.  He employed two drivers
for
the taxis.  He used the income generated from his taxi business
to support his family.
He
testified that he was neither present at the scene of the robbery and
a shootout that took place at the ATM in Monte Vista Boulevard
in
Goodwood nor was he present at the shootout that occurred near or at
the intersection of Monte Vista Boulevard and Diaz Road
on 25 October
2013.  He further denied that he was the man standing behind the
driver of the Mazda bakkie armed with an AK47
rifle.
He did
not work out in a gym or lifted weights, and was not very athletic,
nor was a he a big muscled man.  He was requested
by his counsel
to remove his jacket and pull up the sleeve of his shirt, right up to
his shoulder, and to show that his arm was
not bulging with muscles
and that he did not have a ‘six-pack’.
He was
asked whether he new persons by the names of Spencer, Wilberforce,
Zuki, Dama and Xolani (all going with the surname Siyeka).

He testified that he knew the name Xolani. He did not at any time go
by any of those names.
In 2013
he ran an unlicensed shebeen business.  He bought liquor for his
business at the surrounding bars or liquor outlets
in Nyanga.
He did not own a bakkie in 2013, and transported the liquor he
purchased by means of non-specific bakkies that
he would hire
randomly.  He explained that he would, for instance, see a
bakkie moving along the road and stop it, or approach
a bakkie that
was stationary where he would request the “
owner
”
of the bakkie to take him to the relevant bar or outlet to buy
liquor.  This happened at the most three  times
and at the
least two times a week.  This is the routine that he followed
during the period of September and October 2013.
He did not
have cause to take any notice in the particular make, model or colour
of the bakkies concerned nor did he have any interest
in the actual
ownership of the vehicle.
He did
not drive the hired bakkies himself but gave directions to the
driver.  He would sometimes sit in front with the driver
and at
times would stand at the back of such bakkie where he would direct
the driver through the driver’s window or the sliding
window of
the cab.  During September and October 2013 he normally
participated in the actual loading of liquor onto such a
bakkie.
The
volume varied between 20 cases to a pallet of 77 cases.  He also
assisted with the offloading of the cases.  In this
process he
would be on the back of the bakkie picking up a case and passing it
onto the receiver who would carry it into the house.
He
denied that he stole a Mazda bakkie as mentioned in the charge
sheet.  When asked by his counsel whether to his knowledge
he
has ever been on the Mazda bakkie that was discussed and shown [on
the photographs] in court he testified that he could not
recall but
he might have been.
He
testified that he was arrested on 1 November 2013, at his house.
During the arrest he was informed that the arrest was
for armed
robbery that occurred in Goodwood.  The group of police
officials who arrested him did not inform him when the incident
took
place. They asked permission to search his house, which he gave.
They also searched his car, a Ford Focus.  No
firearms or
ammunition were found during this search and no clothing interested
them.
He was
then taken to Bellville where he interacted with various police
officials.  His warning statement was taken by Detective
Swan
who informed him of the charges and the date upon which those charges
were committed namely, (25 October 2013).  He could
not recall
whether Swan informed him of the time the crimes were committed.
He told Detective Swan that he had no knowledge
of the crimes.
Swan took a set of his fingerprints.  He did not suffer from any
skin condition during the period of
September and October 2013.
He had no warts or blisters, no itching hands or fingers and his
hands did not require ointment.
He also did not work or
participate in sandblasting operations.
When he
was at the Bellville Police Station he tried to think back where he
was or might have been on 25 October 2013.  He
testified that
during the last two weeks in October 2013 there was a taxi war.
At the time, he belonged to a taxi association
called CODETA.
CODETA was interested in defusing the tensions that prevailed in the
taxi industry.  They had meetings
at all times, at the taxi rank
and sometimes at the community hall, pertaining to what was
happening.  The taxi owners were
obliged to attend these
meetings in the morning at different offices almost every day from
Monday to Friday.  A member of
the committee would inform them
about a meeting but the times on which the meetings were held were
not the same. They usually started
after peak hours [in the morning]
and continued to after lunch. Sometimes meetings would be held in the
afternoon.  When he
thought back about where he was on 25
October 2013 he concluded that he was forced to attend the meetings
in the morning and that
he was at the rank on that specific day.
They had to be at the rank between five and half past five in the
morning.
If he failed to arrive at the rank his vehicles would
not be permitted to work.
He
confirmed that he was pointed out by Butler at the identify parade as
the person holding card number 7.  He however stated
that Butler
was mistaken as he was not present at either of the two scenes of
violence on 25 October 2013.  He further testified
that he would
probably touch a bakkie that he randomly hired all over in the
process of loading or off-loading the liquor.
He
explained that perhaps when he was directing the driver, he would
hold onto the roof of the bakkie with his hand.  He demonstrated

how he would do so by making gestures with both his hands holding
onto the witness box.  He testified that he would kneel
a bit
down to talk to the driver through the sliding glass at the back or
through his window.
In
cross-examination, he testified that his shebeen business is in
Zwelitsha in Nyanga at a house belonging to his wife’s
paternal
uncle.  He gave some unspecified amount of money to his uncle
when he needed it.  The uncle would also make
money from
recycling empty bottles.
The accused
ran his shebeen for three or four years before October 2013.  He
was unable to say how much he made per month because
he did not count
how much money he accumulated.  He made a profit but did not
know how much he made per month or per year.
It was
put to him that he did not run a shebeen business at all and that he
fabricated the running of a shebeen business in order
to explain his
fingerprint on the bakkie which he denied.
When
pressed in cross-examination he testified that he estimated his
weekly profit in 2013 was between R700,00 and R1 200,00 per
week and
that was the money that he would put away. Further, that in 2013, a
case of beer was priced at R95,00 to R105,00.
He stated that he
made a mistake when he first testified that he paid R20,00 or R30,00
per case (which was calculated by Mr Wolmarans
to equate to R1,60 per
bottle on a figure of R20,00 figure or R2,50 per bottle on a R30,00
figure).  He agreed that such prices
are nonsensical and stated
that he made a mistake.
He
testified further that he purchased the alcohol from bars in Nyanga.
One bar was in the vicinity of the police station,
one in Crossroads
at a place known as Emtshinini and another one behind the market in
Hazeldene at Philippi.  According to
him these bars were
legitimate wholesalers of liquor because they were selling liquor in
bulk and had business names.  The
outlet in Crossroads was known
as Masakhane and the one in Hazeldene was called Dali; another outlet
was called Layni and another
one known as Zongezile.  All these
liquor outlets were in Nyanga.  He would obtain a receipt for
purchases and there
is nothing he signed. From the start of October
2013 all the way to his arrest as per routine he went to purchase
alcohol during
the day and any time before close of business. Layni
wholesalers were open on Sundays and after hours.  The 25October
2013
fell on a Friday.  On that day there were problems at the
rank and he could not just leave during the day.  He went to

purchase alcohol after rank hours which were between 6 and 7 p.m. at
Layni because Layni closed at 10 o’clock in the evening.
His
family members assisted him in the shebeen and he had no record of
the hours they worked.  He also had no financial records
and no
documentation to show the existence of this (shebeen) business he was
running.
On
Friday 25 October 2013 before he went to purchase liquor he was kept
busy at the meeting and after the meeting adjourned he remained

waiting and sat around at the rank.  At past 2 o’clock in
the afternoon he would have been at the rank.  He never
signed
an attendance register at any meeting. He just arrived there and went
to the place where they convened the meeting.
He
never observed that a record was kept.  They were forced to
attend meetings and if they did not attend their taxis would
be
grounded.  At the meetings in the community hall they would give
their names to a member of the committee and that person
would write
the name down.  His name could be on a list pertaining to a
meeting held by CODETA on 25 October 2013 if it was
written down and
if 2013 documents were still kept.  These meetings would
sometimes continue in the afternoon.  If a
meeting ended at 2
o’clock one would remain there because one would not be aware
whether another meeting was to be called.
He
requested permission to fetch his child at pre-school at 5 p.m.
The pre-school was near the rank.  When he was arrested
he did
not make any statement to the police. He told them he would speak to
his lawyer.
In
regard to this case he was arrested in the early hours of the morning
on Friday, 1 November 2013.  He conceded that whilst
he was
incarcerated from the date of arrest in November 2013 until the bail
application was heard on 26 November 2013, he had time
to think where
he was on 25 October 2013.  He did not try to get a document or
ask anyone or his lawyer to do that, in order
to show that he
actually attended a meeting on that day.  He did not testify at
the bail application but his lawyer handed
up an affidavit that he
had signed.  He did not mention to anyone that he was at a taxi
meeting on 25 October 2013.
He remained silent for two years.
The reason was that he saved his explanation for when he was asked.
He denied that he fabricated
his version and maintained that Butler
was mistaken by pointing him as a perpetrator.  He stated that
he did not enquire from
CODETA or anyone regarding the records kept
for a meeting on 25 October 2013.
He
recalled the identity parade and that a lawyer (representing him) Mr
Slabbert, was present.  There were nine persons in
the line-up
during the parade.  He had requested one of the participants to
get people from the rank to be part of the line-up.
He conceded
that the people in the line-up were organised by the defence. He did
so at the instruction of the detective and his
lawyer. The people in
the line-up were all black males.  He was satisfied with the
people that they brought because they were
of his colour and others
had the same height and physique as him.  He could not say with
certainty whether he was clean-shaven
on 25 October 2013 because it
was some time ago.
He was
not aware of the ownership of the vehicle in which his prints were
allegedly found.
He
confirmed that he was arrested for contravening liquor laws in
January 2013 as indicated in a docket handed in as Exhibit “R”.

He also confirmed that when the police took a photograph of him on 1
November 2013 as depicted in Exhibit “S”, he was
bearded
and that was a week after the crimes were conducted and that
concludes the summary of the evidence.
Analysis
Turning
to the analysis.  The manner in which the Court should assess
evidence is trite.  The holistic approach has been
followed in
decisions such as
S v Van Tellingen
1992(2) SACR 104 (C) and
S v Van Der
Meyden
1999(2) SA 79 (WLD) where the
court stressed at 82 A–C that the decision whether to acquit or
convict should not be based
only part of the evidence. The conclusion
which the court reaches must account for all the evidence.  In
that decision Nugent
J held at 82(D) that some of the evidence, in a
matter might be found to be false; some of it might be found to be
unreliable;
and some of it might be found to be only possibly false
or unreliable; but none of it may simply be ignored. This approach
has
been echoed in many cases such as
S
v Trainor
2003(1) All SA 435 (SCA) and
S v Stevens
2005
(1)
All SA 1
(SCA) where the courts warned against dealing with the
evidence in a compartmentalised fashion but rather for a court to
base its
conclusion on a conspectus of all the evidential material
placed before it.
The
issue in dispute in this case is identification.  The key
witness for the State on this aspect is Butler. He is the only

witness who alleged to have identified the accused as one of the men
on the back of the white Mazda bakkie. Strictly speaking Butler
is a
single witness on this aspect. It is well established that the Court
should exercise caution when dealing with such evidence.

However, such exercise of caution should not displace common sense.
The
second key role player in the State’s case is Wernich, the
fingerprint expert, we will deal with her evidence later on
in the
judgment.
Butler’s
evidence was criticised by the defence counsel on various grounds.
Mr Van der Berg pointed out that the issue
is not whether Butler lied
or fabricated his evidence or erred or was confused. The persuasive
relevance of his evidence, rested
on the reliability of his evidence
rather than on his credibility.  The ultimate question, he
argued was whether the Court
could rely on what he said.  The
point sought to be highlighted by Mr Van der Berg was that the
witness’s own conviction
must not cloud the separate enquiry
which is the reliability of his evidence.
We have
no quarrel with Mr Van Der Berg’s submissions and the
literature he referred to which in the main suggests that honesty
is
no guarantee to reliability.  According to the
Justice
Project Eyewitness Identification – A Policy Review
at page 5;     “
a
witness’ self-reported degree of certainty in an identification
was considered a good indicator of accuracy.  Unfortunately
a
great deal of research in recent decades has proven this intuitive
assumption false.”
We are
alive to and do take heed of the warnings that have been sounded to
the trial courts on numerous occasions of the danger
of wrong
convictions owing to ‘honest’ but mistaken identification
of accused persons.  In that connection, it
is worth repeating
the words of Holmes JA in the  seminal decision of
S
v Mthethwa
1972(3) SA 766 (A) where he
said the following at 768A-C
“
Because of the fallibility of human
observation, evidence of identification is approached by the courts
with some caution.
It is not enough for the identifying witness
to be honest:
The reliability of his
observation must also be tested
.
This depends on various factors, such as lighting, visibility, and
eyesight; the proximity of the witness; his opportunity
for
observation, both as to time and situation; the extent of his prior
knowledge of the accused; the mobility of the scene; corroboration;

suggestibility; the accused’s face, voice, build, gait, and
dress; the result of identification parades, if any; and of course,

the evidence by or on behalf of the accused.  The list is not
exhaustive.  These factors or such of them as are applicable
in
a particular case, are not individually decisive, but must be weighed
one against the other, in the light of the totality of
the evidence,
and the probabilities.  See such cases as
R
v Masemang
1950(2) SA 488 (A.D.)…”
Butler
testified that he noticed the white bakkie for the first time when it
was pulling away next to the Coin Security van that
was parked in
Monte Vista Boulevard.  He then noticed four men running towards
the bakkie, three jumped onto the back of the
bakkie and one got in
front.  Witnesses that testified about what took place at the
intersection of Monte Vista Boulevard
and Diaz Road are consistent
about the fact that five men were in an on the white Mazda bakkie.
Le Roux
observed that there were three persons on the back of the bakkie when
he was looking through the peephole from the ATM cubicle
at Diaz
Road. Kotze also testified of seeing three persons on the back of the
bakkie.  According to both, Butler and Kotze
two other men were
in front being the driver and the passenger.  Kotze and Butler’s
evidence is also consistent on the
fact that one of the perpetrators
was standing behind the cab on the driver’s side.
Butler
testified that his focus was on the actions of the driver and the man
standing behind the cab on the driver’s side.
He noticed
the driver of the bakkie who held an AK47 rifle over the roof of the
bakkie and the man behind the driver who also held
an AK47 because
they posed a threat to him and were shooting at him.
According to
Mr Van der Berg, Butler’s reliability is fatally compromised in
that during the duration of the incident which
took about 20 to 30
seconds there were at least nine distractions which diverted his
attention from the man standing behind the
driver. For the
substantial part, he was forced to take cover, sliding below the
dashboard in order to duck from the shots; the
man who stood behind
the driver was the furthest from him of all the occupants of the
bakkie; for the most part he was in a defensive
position hiding
inside the vehicle; he reversed his vehicle for a distance; a
split-second of the observation was unlikely to be
conducive in these
circumstances, therefore, his claim that he observed the perpetrator
behind the driver at this juncture and
even gave a description of a
frontal facial view, including the “smallish ears” of the
perpetrator was ‘ludicrous’.
Butler’s
inability to give a description barely two hours after the incident,
as depicted in his statement to the police when
he was no longer
under any pressure, was criticised.  This was exacerbated by his
assertion that he would not be able to identify
the suspects if seen
again.  Butler’s evidence is indeed not without flaws. His
positive assertion [in his statement
to the police] that he could not
give a description except that the driver was a big man and that he
would not be able to identify
the suspects if seen again does raise
questions.  However, Butler out of his own volition called Swan
not very long after
the incident (i.e. according to him a day or a
week after the incident) to give a physical description of the
attackers particularly
of the person who was standing behind the
driver and shooting at him.  He described this man to Swan as a
short guy, stocky
built, clean-shaven and perhaps mentioned smallish
ears.  It must be borne in mind that the accused was arrested on
1 November
2013.  Butler’s testimony was that when he
called Swan, Swan confirmed that no arrest was yet made.
Mr Van
der Berg correctly conceded that one could not speculate as to what
gave rise to this “sudden recollection of the description”

or even get suspicious that there was a sudden fabrication regarding
the appearance of the perpetrators.  The explanation
given by
the witness that he did not apply his mind to the description of the
attackers because his mind was thinking about too
many things and he
could not process everything “straight away” at the time,
as he put it, cannot be discarded.
A month
later, at an identity parade, Butler identified the accused as the
man that stood behind the cab on the driver’s side
holding an
AK47 rifle and shooting at him.  Mr Van der Berg argued that
despite his professed 100% certainty that his identification
in the
line-up was correct, Butler conceded to the possibility that he had
committed an error of pointing out the person in the
line-up who most
resembled the man who stood on the back of the bakkie.
In the
Court’s view, Butler’s concession was a general one
regarding a possibility of pointing a person most resembling
a
shooter.  He did not admit to the possibility of error on his
part by pointing number 7, the accused, as a person most resembling

the attacker.
Whilst
the pointing out took place a month after the incident, a description
was given to Swan a day, or a week after the incident,
according to
Butler. In the Court’s view, Butler’s ability to point
out a person who had facial hair or a ‘small
beard’,
during the identity parade, whilst his description of the attacker to
Swan was that he was clean-shaven is evidence
of his powers of
observation rather than his lack thereof.
Butler’s
evidence was that both the driver and the man on the back of the
bakkie had AK47 rifles, and were shooting at him.
His evidence
suggested that two AK47s were used for the shooting.  The
ballistic evidence has however revealed that only one
AK47 was used.
Based
on this, the defence argues that it must be accepted that only the
driver and not the man behind the driver on the back of
the bakkie
held and used the AK47 to shoot.  This proposition according to
the defence is bolstered by Kotze’s evidence
who described in
some detail how he saw the driver producing an AK47 firing at them
from the roof of the bakkie.  Kotze did
not see the man behind
the bakkie firing, or holding a firearm.  He mentioned that
after Butler fired at the Mazda bakkie,
the driver of the Mazda
bakkie returned fire.
This position
according to the defence, weakens the state’s case in respect
of Butler’s identification ability.
Mr Van der Berg
argued that the significance of this is that, if it is found that the
driver was the only person who held and fired
an AK47 the reason
given by Butler as to why he focused on the man on the back of the
bakkie behind the driver (which is that he
also fired at him with an
AK47) would disappear.
Mr
Wolmarans on the other hand submits that both Kotze and Butler must
have erred when they thought that the driver fired shots.
He
however, also suggests that the driver could have initially fired a
shot or two.  He further submits that Butler made a
mistake when
he mentioned two AK47s.  According to him, a closer look at the
ballistic evidence suggests that firing must
have come from two
persons on the back of the bakkie, one behind the driver’s cab
with an AK47 and another one with a pistol.
He
suggested that the positions of where the cartridges landed are in
support of the view that the shots would not have come from
the
driver who was in an awkward position over the roof of the bakkie and
who also at the same time had to drive the vehicle.
The people
better placed to fire and land those shots were the men on the back
of the Mazda bakkie.  It is therefore, reasonable
to conclude,
according to him, that Butler made an honest mistake when he thought
that there were two AK47s.  Furthermore,
evidence shows that
shots were fired from a pistol as well.  Although Butler did not
focus on the man firing the pistol, he
did mention in his statement
and confirmed when asked during his evidence that one of the men
behind the bakkie had a pistol.
The ballistic evidence also
confirmed that pistols were used.
The
conclusion that the Court must draw must be based on the evidence.
The inconsistencies that became apparent between the
ballistic
evidence (that only one AK47 was used) and Butler’s evidence
that two AK47s were used was not put to him for comment.
Numerous
possibilities may be surmised as to why Butler testified that he saw
both the driver and the man with an AK47 firing shots.
Both
Butler and Kotze demonstrated how the driver fired over the roof.
Butler conceded that the position of the driver was
unusual but
stated that he was not surprised. He even mentioned that he was
experienced with firearms and an AK47 is a light weapon.
It is
possible, in the Court’s view that one weapon was used by both
the driver and the man behind the driver at different
times.
The incident happened so swiftly that the witness could have
perceived shots being fired from two AK47s whereas only
one AK47 and
a pistol were used.
The
argument brought by the State that two cartridges which emanated from
an AK47 that were found at the lower end of Diaz Road
would have most
likely come from a man who was using an AK47 on the back of the
bakkie, because at that stage the driver of the
vehicle would
possibly have been driving the vehicle whilst Butler was reversing,
is more convincing.
It may
be so that the driver of the Mazda bakkie did fire a few shots
initially when the bakkie came to a stop even though he was
in an
unusual position.  However when the bakkie began to move again
the focus of the driver would have been on the driving
of the
vehicle.  Furthermore, the driver of the Mazda bakkie would have
been in an even more awkward position at that time
to fire any shots
over the roof of the bakkie.
It must
be borne in mind that the attackers were in the process of escaping
from the crime scene after having come from a failed
robbery.
They met Butler and Kotze who interfered with their process of
fleeing and were obstacles. In those circumstances
they had to fend
them off.  The men on the back of the bakkie were clearly in a
much better position to do that, whilst the
driver had to concentrate
on getting away.  Butler’s evidence was that the men on
the back of the bakkie behind the
driver swung around in his
direction and shot at him from an elevated position at midriff.
This was clearly not an aimless
shooting; it was intended to hit the
target.
The
weaknesses that have been shown regarding Butler’s evidence as
to the number of AK47s used do not detract from the fact
that he was
able to identify a man who stood behind the cab on the driver’s
side, and that was the direction from where the
shots from an AK47
were fired. Whilst there would have been the various distractions,
such as ducking for cover, hiding below the
dashboard, and reversing,
the focus of attention was the direction from which the shots came.
It is
unlikely that Butler made up the testimony about the man behind the
driver firing at him.  It may be that he confused
certain issues
such as the number of AK47s used but he was steadfast during his
evidence that he managed to ‘identify’
certain features
from a person he focused on, which were that he had a roundish face,
was stocky in build and big.  There
is not much of a difference
between the description he gave to Swan and that which he gave during
his evidence in chief.
Butler did not only testify about the
features of the perpetrators he focused on.  He also gave other
details such as the
presence of the AK47, the standing, or sitting
positions of the suspects in and on the bakkie, and what they were
doing.
His attention was directly drawn to specific incidences.
It must
be accepted that the description given by Butler was that of an
average person in that there were no striking features such
as a scar
or a tattoo.  Butler mentioned however towards the end of his
cross-examination that sometimes one may not remember
certain
particulars about the event or even the clothing of the person
involved but “
some faces you never
forget
”.
It is
so that the man behind the driver was a stranger to Butler.  In
fact the attackers were all strangers and that Butler
felt threatened
and feared for his life. There is however no reason not to accept
that, in daylight, where it was not raining,
where he could see
clearly and where the faces of the perpetrators were not covered,
Butler would not in 20 to 30 seconds, at a
distance between 5 to 10
metres, be able to look at the face or, faces of the perpetrators and
remember a specific face of one
of them, even with a lot of activity
taking place in between.
Whilst
there may be concerns regarding the assertion that Butler made to the
police in his statement he did give an explanation
which in the
Court’s view is not unreasonable.
As
regards, the identity parade, the defence had no quarrel with the
process followed during the parade.  Mr Van der Berg submitted,

that there was a possibility that Butler pointed out a person who
most resembled his attacker.  The pointing out of the accused
at
the identity parade however must be viewed together with the
fingerprints expert’s evidence and other relevant evidence.
It is
perhaps apposite at this point to refer to the remarks made in the
judgment of
Mosheshi and Others v R
(1980-1984) LAC 57
at 59 F-H that has been quoted with approval in
some of the SCA judgments including the most recent one of
Modiga
v The State
(2015) All SA 13
(SCA) at
para 24, where it was effectively found that a court does not look at
the evidence implicating the accused in isolation
to determine
whether there is proof beyond reasonable doubt nor does it look at
the exculpatory evidence in isolation to determine
whether it is
reasonably possible that it might be true.  The Court held,
inter alia, as follows:
“…
the breaking down of a body
of evidence into its component parts is obviously a useful aid to a
proper understanding and evaluation
of it. But, in doing so, one must
guard against a tendency to focus too intently upon the separate and
individual parts of what
is, after all, a mosaic of proof.
Doubts about one aspect of the evidence led in a trial may arise when
that aspect is viewed
in isolation.  Those doubts may be set at
rest when it is evaluated again together with all the other available
evidence.
That is not to say that a broad and indulgent
approach is appropriate when evaluating evidence.  Far from it.
There is no
substitute for a detailed and critical examination of
each and every component in a body of evidence. But, once that has
been done,
it is necessary to step back a pace and consider the
mosaic as a whole.  If that is not done, one may fail to see the
wood
for the trees.”
The
evidence regarding the individual whom Butler alleges was standing
behind the driver’s cab is consistent with the location
of a
fingerprint which was lifted from the roof of the bakkie by Wernich.
Mr Van
der Berg submitted that the print was more to the left side of the
roof, which is not in line with the position of where
the man
standing behind the driver of the bakkie was.
We are
not persuaded by this argument, it is possible that the person
standing would gain balance by holding onto the roof of the
bakkie
with his hands and in that process he could leave a fingerprint with
whichever side of his hands.  The accused himself
in fact
demonstrated by spreading both his hands in the witness box as to how
he would stand on a random bakkie he hired.
It is not clear
from which hand (i.e. whether right or left) the print lifted from
the crime scene came.  There would evidently
be a lot of
movement with the shooting taking place.  The bottom line,
however, according to Wernich’s evidence, is
that a fingerprint
was lifted from the roof of the bakkie and the person whose print
that was, would have been standing with his
hand touching the roof of
the bakkie with his fingers pointed forward.
Mr Van
der Berg referred to a number of articles and more particularly to
Prof De Villiers’ article published in the
Oxford
University Common Wealth Law Journal
(2012) Issue 2 page 317) where he states, inter alia, as follows:
“
Still there is no objective peer
reviewed study supportive of the uniqueness of the fingerprint.”
He further submits that: “
Until
the uniqueness claim can be backed up by fundamental research it
would not be appropriate to make such a claim.”
Prof De
Villiers however in the same passage states that fingerprint
examiners, being the ones who do the comparisons: “
Have
been in agreement across the world for approximately a hundred years
that complete and partial fingerprints are unique.”
He goes on to state that
: “The
individuals that question whether fingerprints are unique have never
lifted or compared prints neither are they qualified
to do so.”
Mr Van
der Berg also referred to an article by Dr Sangero and Halpert, “
Why
a Conviction should not be based on a Single Piece of Evidence: a
Proposal for Reform
”
48
Jurimetrics J 43-94
(2007) 64 who state that no scientific proof
exists that it is impossible that two people can share the same
points of comparison
in a fingerprint examined by an expert.
These two writers are said to be a lawyer, and a physicist.
Mr Van
der Berg invites this Court to find that there is substance in the
contention that individualisation in fingerprints has
not been
scientifically proven.  He would also like the Court to find
that there is a possibility that two people can have
the same
fingerprint.
Whilst
Wernich did not provide literature regarding studies done in respect
of the uniqueness of a fingerprint, she testified that
in all her
time she has been working at the fingerprint department she has not
found two people with the same fingerprint.
Whilst
there seems to be a number of those raising doubts about the
uniqueness of the fingerprint, it is not possible in the absence
of
expert evidence that the same fingerprint can be ascribed to two
people, for the Court to make a positive finding that indeed
there is
substance in those views or even a slight possibility.
The
views expressed on the ‘possibility of such a scenario’
are noted but they cannot be elevated into a scientific
conclusion
warranting deviation from the position that has admittedly been held
by fingerprint examiners for over hundred years
that fingerprints are
unique.  That however does not mean that, if tested evidence
comes to the fore to support those views,
a different approach may
not be taken.  For now, however, those views are simply views.
They do not go as far as placing an
alternative fact proven beyond
dispute that two people can have the same fingerprint.
This
Court cannot take the argument and the noises any further without
more (which is, expert evidence presented before the Court).
To
support the possibility of two people having the same print,  Mr
Van der Berg referred to Exhibit “D” which
made mention
to a name Dama Siyaka.  Wernich was not asked about this
different name and a possibility that it belonged to
someone else.
We do not know whether this can be ascribed to a spelling mistake or
not.  Certainly the names are strikingly
similar, so the name
could be a possible spelling mistake.  What seems to be the case
though, is that the print found on the
database belonging to ‘Dama
Siyaka’ was compared with that which was lifted on the crime
scene, a match was found which
led to the accused’s arrest.
Mr Van
der Berg argued that the print from the crime scene was disfigured by
the various white and grey blotches.  Some of
the blotches
according to him are sufficiently large, such that they obscure the
ridge path and mask the actual property of the
ridge where it
disappears under the blotch.  Wernich testified that whilst one
would not know what the blotched ridge would
have done, the ridge
continues. The points she marked were however not affected by the
blotches.  She further testified that
the fingerprint lifted
from the crime scene was a good enough print for the purposes of
examination and conclusions.
With
regards to the possibilities that were put to her as to what the
causes of the blotches could be, including a skin condition
and
working with sandblast, she testified that she was of the opinion
that the blotches were caused by dust particles and not a
skin
condition.  According to her, the print was located on the
outside of the vehicle and on the top of the roof of the vehicle

which was exposed to natural elements such as the sun, rain and
wind.  Fingerprints according to her are delicate.
Furthermore,
the quality of the fingerprint would not be as good as the one taken
in favourable circumstances where those circumstances
were not
present.  The surface on which a fingerprint was deposited may
be clean or dirty. The person may be perspiring at
the time and may
also apply pressure when touching the object which means the ridges
might appear to be broader.
Wernich
gave a clear and logical explanation of how the fingerprints were
compared and the conclusions she came to were properly
explained.
She found nine corresponding points between the fingerprint lifted on
the crime scene and that of the accused.
She was thoroughly
cross-examined on the doubts raised by the various authors regarding
individualisation of fingerprints.
After due consideration of
her evidence, the Court finds no basis to reject it.  The Court
accepts her evidence, as conclusive
of the fact that the print found
on the crime scene is that of the accused.
Turning
to the accused’s version, it can be accepted that the accused
ran a shebeen business.  The accused testified
that it was
possible that fingerprints might be on the white Mazda bakkie because
he hired bakkies randomly to purchase liquor
from the liquor outlets
in Nyanga and that he did not keep names of owners, models, make and
colours of the bakkies that he hired.
He often stood on the
back of such a bakkie whilst giving directions to the driver and
would hold onto the roof of the bakkie with
his hands.  He would
be on the back of the bakkie at times to load or off load the liquor,
and it should be expected that
his prints would be anywhere in or on
such a bakkie.
Viewed
in isolation the accused’s explanation regarding the presence
of his fingerprints on the white Mazda bakkie might be
very well be
plausible. But, viewed in context of the entire case it is not.
It
could not just be a coincidence as the accused would like the Court
to accept that a print that was found on this specific Mazda
bakkie
which was used in an attempted robbery was linked to the accused who
happened to be identified at an identity parade as
one of the
perpetrators.
The
accused’s version, when considered with the other evidence
becomes so farfetched and untenable and not only that, it cannot
be
reasonably possibly true in light of all the evidence. It must
therefore be rejected.
Furthermore,
his explanation about his whereabouts on the day of the incident was
weak.  He explained that his routine during
the last two weeks
of October 2013 would normally be to go to the taxi rank for meetings
relating to taxi wars and remain there
for the day until after peak
hours.
It is
clear from the evidence that the accused vacillated from a general
position about a routine he normally followed during the
period of
taxi wars, he  then conceded that he had freedom of movement and
could go and get liquor during the day, and would
not be constrained
by the meetings. He later in his cross-examination seemed to be
certain that he was at the rank attending a
meeting on 25 October
2013 and remained there until after peak hours which were between 6
and 7 p.m. which was the only time he
could go and purchase alcohol
at Layni liquor outlet.  This was all of a sudden the only
outlet that was seemingly open during
that time which also
contradicts his earlier testimony that he purchased alcohol from
three or four other liquor stores or bars
in Nyanga during that
time.  His testimony that he was forced to stay at the rank for
the whole day was challenged in cross-examination
on the basis that
he had testified that he was responsible for fetching his two year
old son from pre-school, to which he testified
that he was given
permission to fetch his son.  There are more examples of such
contradictions.
Mr Van
der Berg conceded that the accused’s version has somewhat
changed.  He submitted that the accused’s real
defence was
not an alibi but what he termed a “quasi- alibi” which in
effect would be a general picture of his activities
that he recalled
during the period of the alleged incident.
In other
words, the accused may or may not have been at the meeting at the
taxi rank on the day of the incident.  He was not
sure of his
whereabouts but the evidence he gave was in respect of what he would
normally do based on his recollection.  In
the Court’s
view this version, makes it possible for the accused to have been on
the crime scene on the afternoon of 25 October
2013.
It
seems that on every possible version the accused has had difficulty
explaining his whereabouts on the day in question.
The
accused’s changed version was not a matter of him refining his
evidence: he appeared to be making up versions as he went
along.
This did not create a good and a convincing impression.
In view
of the totality of the evidence, the version of the accused cannot be
reasonably possibly true.  It lacks credibility
and coherence
and falls to be rejected.
Turning
to the offences, it is common cause that a group of armed individuals
approached the Coin Security vehicle with a mission
to rob such
vehicle.  The accused and his cohorts were armed with loaded
firearms.  It is clear from the facts of this
case that the
robbers acted with common purpose. As stated by Prof Snyman in
CR
Snyman Criminal Law Fifth Edition
at
201  our courts have held accused persons criminally liable on
the basis of
dolus eventualis
for the expected deaths in wild shootouts such as in this case.
The
evidence reveals that the attackers sought to eliminate any form of
resistance or obstructions along the way.  They would
have
foreseen the likelihood of resistance and a shootout.  They also
would have known that they would encounter crew members
or security
officers who were armed hence the need to arm themselves.  It
was undoubtedly foreseeable that a shootout was
bound to occur.
The
evidence shows that these individuals acted in concert.  They
all actively took part in the commission of the robbery.
The
accused was identified as one of the men that were standing on the
back of the bakkie. He carried and used a firearm.
In
respect of the theft charge, the principle is well established that
theft is a continuous offence.  The question is, whether
the
accused knew that the Mazda bakkie was stolen.  Mr Wolmarans
argued that the perpetrators’ collective use of the
stolen
vehicle constituted a continuation of the original theft.  The
Court is of the same view.
It was
clear that the bakkie was stolen for the purposes of committing the
crime.  The number plates were changed, and the
canopy was
removed.  The perpetrators very well knew that a stolen vehicle
was needed in the commission of the robbery so
as to avoid detection
and to ensure that the stolen vehicle could not be easily traced.
The accused together with others
availed themselves for the
usefulness of the bakkie for the purposes of the robbery and later
abandoned it.  The Court notes
that the indictment stated that
the Mazda bakkie was stolen in Mowbray whereas the evidence by
Coulbanis was that the bakkie was
parked in Rondebosch.  This
aspect was not raised by the parties as an issue.
On the
charge of murder, it is clear that the deceased was killed in the
process of perpetrating the robbery.  It is irrelevant
that he
was killed with a pistol, and that the man who fired the shot that
killed him was unidentified.  He was killed by
one of the
members of the group during the attempted robbery acting with common
purpose.  Cachalia AJA as he then was held
in
S
v Molimi and Another
2006(2) SACR 8
(SCA) at para 35 and 36: “
Once all
the participants in the common purpose foresaw the possibility that
anybody in the immediate vicinity of the scene could
be killed by
cross-fire, whether from a law enforcement official or a private
citizen, which in the circumstances of this case
they must have done,
dolus eventualis was proved.”…
He held further that:  “
The
common purpose doctrine does not require each participant to know or
foresee every detail of the way in which the unlawful result
is
brought about.”
In this
instance it cannot be held that the person who killed the deceased
embarked on a frolic of his own.  The deceased was
killed during
the commission of the robbery. In this instance
dolus
eventualis
would be applicable. The
accused and his fellow robbers subjectively foresaw the possibility
that their firing of shots during
the gunfire at the members of the
Coin Security vehicle would lead to the death of any of those
members.  They must have reconciled
themselves with that fact
and possibility.
The
same principle applies on the counts of attempted murder and
attempted robbery.  The picture does not change in respect
of
the shootout at the intersection of Monte Vista Boulevard and Diaz
Road as this event flowed from the attempted robbery.
What
followed there was part of the continued excursion; the robbers were
fleeing from the scene of an attempted robbery.
They would
reasonably foresee pursuit or confrontation or dangerous resistance
which could lead to a shootout.
In
regard to the charge of attempted murder in respect of Hloi, the fact
that the Coin Security van was bullet-proofed makes no
difference.
The robbers had their requisite criminal intent even if they were
attempting the impossible.  In this regard
see
Ngcamu
v The State
(665/09) [2010] ZACSA 70
(26 May 2010) at para 19.  As regards possession of prohibited
firearm and ammunition charges, the
accused held an AK47 which was
loaded with ammunition and he used it.
The
state has therefore proved its case beyond reasonable doubt in
respect of all the charges.
IN
THE RESULT IS THE ACCUSED IS FOUND GUILTY OF
:
1.
COUNT 8 OF THEFT
.
2.
COUNT 9 OF ATTEMPTED ROBBERY WITH
AGGRAVATING CIRCUMSTANCES
.
COUNT
10 OF MURDER
.
4.
COUNT 11 OF ATTEMPTED MURDER
.
5.
COUNT 12 OF ATTEMPTED MURDER
.
6.
COUNT 13 OF ATTEMPTED MURDER
.
7.
COUNT 14 OF ATTEMPTED MURDER
.
8.
COUNT 15 OF UNLAWFUL POSSESSION
OF PROHIBITED FIREARM
9.
COUNT 16 OF UNLAWFUL POSSESSION
OF AMMUNITION
.
BOQWANA,
J