S v Jordaan and Others (CC20/2017) [2017] ZAWCHC 132; 2018 (1) SACR 522 (WCC) (16 November 2017)

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[2017] ZAWCHC 132
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S v Jordaan and Others (CC20/2017) [2017] ZAWCHC 132; 2018 (1) SACR 522 (WCC) (16 November 2017)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.  CC20/2017
Before:
The Hon. Mr Justice Binns-Ward
Hearing:
9, 11-12,-16-19, 23-26, 30-31 October 2017,
1,
6, 13-14  November 2017
Judgment
delivered: 16 November 2017
In
the matter between:
THE
STATE
and
NIZAAM
JORDAAN
Accused
1
SHALOMODIEN
DOLLIE
Accused
2
MANZAN
MAART
Accused
3
ROZARIO
LOTTERING
Accused
4
YUSRIE
BENTING
Accused
5
Firearms
Control Act 60 of 2000
:
Accused
charged with unlawful possession of firearm and ammunition in
contravention of the
Firearms Control Act 60 of 2000
– weapon
and ammunition not recovered – charge brought on the basis of
deduction, the accused having shot and injured
the complainant in
related charge of attempted murder.  Accused’s legal
representative, relying on
S v
Filani
2012 (1) SACR 508
(ECG),
argued that charges under the
Firearms Control Act not proved
in the absence of expert evidence to
establish that firearm had complied with the technical criteria in
the definition of ‘firearm’
in
s 1
of the Act.
Held that on the facts of the case, in particular the nature of the
complainant’s injury, sufficiently
established that the firearm
used by the accused must have had a ‘muzzle energy’
exceeding 8 joules.
(
Paragraphs
94-106.
)
Criminal
Law Amendment Act 105 of 1997
:
Murder
– ‘Planned or premeditated’ – meaning of term
–
S v Raath
2009 (2) SACR 46
(C),
Kekana v
S
[2014] ZASCA 158
(1 October 2014) and
Montsho v S
[2015] ZASCA 187
(27 November 2015)
discussed;
S v PM
2014 (2) SACR 481
(GP) disapproved.
(
Paragraphs
123 -130.
)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.  CC20/2017
Before:
The Hon. Mr Justice Binns-Ward
Hearing:
9, 11-12,-16-19, 23-26, 30-31 October 2017,
1,
6, 13-14  November 2017
Judgment
delivered: 16 November 2017
In
the matter between:
THE
STATE
and
NIZAAM
JORDAAN
Accused
1
SHALOMODIEN
DOLLIE
Accused
2
MANZAN
MAART
Accused
3
ROZARIO
LOTTERING
Accused
4
YUSRIE
BENTING
Accused
5
JUDGMENT
BINNS-WARD J:
[1]
The indictment served on the accused set
out 11 charges, but the prosecutor indicated at the commencement of
the trial that the
state was not proceeding on the two counts of
money laundering.  Counts 6 and 11 consequently fell away.
[2]
The
charge in terms of count one was brought against all five of the
accused.  They were charged on the main count of contravening
s 9(1)(a)
[1]
read with
s
10(1)(a)
and
10
(3) of the
Prevention of Organised Crime Act 121 of
1998
with having aided / assisted and abetted in criminal gang
activity in respect of the activity that was the subject of counts 2
to 5 and counts 7 to 10 in the indictment.  In the alternative
thereto, they were charged with having contravened
s 9(2)(a)
[2]
of the Act by having contributed towards a pattern of criminal gang
activity in the particulars set out in counts 2 to 5 and counts
7 to
10.
[3]
Accused 1, 2 and 3 were charged in terms of
counts 2, 3, 4 and 5 in connection with offences allegedly committed
on 24 December
2015 at or near Gamka Street, Manenberg.  Counts
2 and 3 related to the allegation that the aforementioned accused had
attempted
to murder L J and Keegan Solomon by shooting at those
complainants with a firearm.  Counts 4 and 5 were related
charges brought
under the relevant provisions of the
Firearms Control
Act 60 of 2000
in respect of the alleged unlawful possession of a
firearm and ammunition.
[4]
Counts 7 and 8, respectively, concerned
charges put to accused 1, 4 and 5 in respect of their alleged
commission of the murder by
shooting of Ashley Davids on 27 April
2016 at or near MC Stores, Jordan Str, Manenberg, and the attempted
murder of Carl May
in the same incident.  Counts 9 and 10 were
the related charges under the
Firearms Control Act in
respect of the
unlawful possession of the firearm and ammunition used in the
shooting incident.
[5]
All of the accused pleaded not guilty to
the charges put to them in terms of the indictment.
[6]
Mr Holt, who appeared for accused 1, gave
an oral plea explanation from the bar.  It was indicated that
accused 1 would admit
having been present, together with accused 2
and 3, at the shooting incident on 24 December 2015.  He
would say that
he had noticed a gambling game going on under the
floodlights and decided to join in.  While he was there a shot
went off
and everyone scattered.  He and accused 3 cycled away,
and accused 2 had run away.   Accused 1’s plea
explanation
indicated that he had been at home on the night of the
events that were the subject of the offences allegedly committed on
27 April
2016 and he had heard about the occurrences only later.
[7]
The other accused elected not to give a
plea explanation, save that Mr Roberts, who appeared for accused 3,
indicated that his client
would also admit having been at the scene
of the shooting incident on 24 December 2015.
[8]
Accused 1, 4 and 5 made formal admissions
in terms of s 220 of the Criminal Procedure Act in respect of
the identification
of the body of the deceased, Ashley Davids, and
the content of the post-mortem examination report (exh. E).  It
was admitted
that the deceased had been found dead on the scene by
the attending para-medics and that the cause of death was the effect
of multiple
gunshot wounds as indicated in the post mortem report.
Nine entrance wounds were identified on the body of the deceased.
[9]
The first witness called by the state was
Cst. Ndonga of the South African Police Service.  He was
patrolling with a colleague
in the Manenberg area on the night of
24 December 2015 when he heard a report over the police radio of
a shooting incident.
In consequence of the information
received, he proceeded to the Jooste Hospital in the nearby suburb of
Heideveld.  There
he found one of the persons who had been shot
receiving medical attention.  He was able to identify the person
concerned only
by his forename, L.  As a result of the
information he obtained from L, who was in a state of distress and
apparently not
particularly coherent at the time, Ndonga and his
colleague proceeded to a park on Gamka Street in Manenberg, which he
understood
to have been the place where the shooting incident had
occurred.  No-one from the community was present when he arrived
there
and he was unable to find any related real evidence such as
cartridge casings or blood in the area.
[10]
Ndonga said that he had been stationed in
Manenberg for several years at the time of the incident and had
acquired knowledge of
the gang activities in the area and of gang
warfare between rival gangs.  I understood him to say in his
evidence in chief
that the Hard Livings gang controlled Gamka Street,
but under cross-examination he denied having said that and said
instead that
it was mainly the Hard Livings gang that was involved in
fights with other gangs.  According to his evidence, gangs known
as the Americans and the Stupa Boys were also active in Gamka Street.
[11]
The next witness was the complainant in
respect of count 2, L J.  He was 16 years of age and a grade 9
pupil at the Phoenix
Secondary School at the time of the trial.  He
had been 14 when he was injured in the shooting incident on
24 December
2015.  He had lived all his life in Gamka Str.
He knew accused 1 by sight from having seen him walking from time to
time in Gamka Str.  He knew him by the nickname ‘Boef’.
J inferred that accused 1 was a member of the Clever
Kids gang
because he often saw him in the company of other members of that gang
in Elsjieskraal Rd. – 2 streets away from
Gamka Str. - which
was where he understood accused 1 to reside.  He also knew
accused 2 by sight and knew him by the names
‘Shalomodien’,
or ‘Lapes’.  He said accused 2 lived opposite his
school.  He believed him to
be a member of the Dixy Boys gang
because he saw him standing with members of that gang at the corner
of Gamtoos Street.
He knew accused 3 as ‘Oupa’, and
that his actual name was ‘Manzan’.  He did not know
where accused
3 lived, but understood that accused 3 was a member of
the Clever Kids gang because he always walked around with that gang.
[12]
J explained that Gamka Str. and the other
roads in the area that I have mentioned run in parallel with each
other in the following
order: Gamtoos Str, Gamka Str, Jordan Str. and
Elsjieskraal Rd.  A Google Map of the area (exh. N) was put in
later at the
court’s prompting.  It confirmed the
witness’s evidence as to the order of the roads, but it also
made it apparent
that Gamka Street and Gamtoos Street were actually
squares, rather than linear routes.  The Google Map also showed
that what
was referred to in the oral evidence as a ‘park’
between Gamka and Gamtoos Streets was in point of fact just an open

space, also square or rectangular in shape.  As can be seen on
exh. N2, the ‘park’ is an interlinking space between

Gamka and Gamtoos Streets.
[13]
L J testified that at some time after 10:00
pm on the night of 24 December 2015 he had been participating in
a gambling game
under a street light at the aforementioned ‘park’.
Seven or eight persons were involved in the game.  He
knew two
of them by name, namely, Keegan Solomons and one Galiek.  Both
of the persons he knew were gang members.  Solomons
belonged to
the Stupa Boys gang and Galiek to the Hard Livings gang.  J
testified under cross-examination by accused 3’s
legal
representative that the place where the gambling game was being held
was in the area in which the Stupa Boys gang dominated.
The
Stupa Boys were allied to the Hard Livings gang. The gambling game
was some form of dice game.  Keegan Solomons was in
a position
at the game next to that in which J was squatting on his haunches at
the time.
[14]
At a certain stage J noticed accused 1, 2
and 3 approaching the game.  They were together and on foot.
They approached
from his right hand side from the direction of
Gamtoos Str.  The direction of approach described by J
corresponded with that
related by accused 1 and 3 when they gave
evidence.  He said the accused took up a position behind the
participants in the
dice game.  He denied the proposition put to
him by counsel for accused 3 that accused 1 and 3 had participated in
the game
while accused 2 had stood by watching.  He
acknowledged, however, that accused 3 used to regularly participate
in the gambling
games played at that spot.
[15]
J said that shortly after the arrival of
the three accused he happened to glance behind him and saw accused 2
pointing a firearm
at a downward angle in the direction of the place
where he and Solomons were positioned.  He noticed that it was a
silver
coloured revolver.  A shot went off and everyone
scattered.  He said that accused 2 had fired the shot.
[16]
J said he ran towards Gamtoos Str.  He
noticed the three accused running in the opposite direction towards
Gamka Str.
As he was running from the scene of the shooting he
felt a pain in his lower leg and looked down to see blood oozing from
the sneaker
on his left foot.  It was only at that stage that he
realised that he must have been shot.  He encountered his cousin

who scooped him up in his arms and took him by car to the Jooste
Hospital in Heideveld.
[17]
J related that he had suffered a gunshot
wound in the region of his left ankle.  There was apparently
some confusion in the
medical records as to whether he had suffered
one or two wounds.  He cleared that up explaining that the other
injury, a cut
to his buttock, had been caused by a piece of broken
glass onto which he had momentarily fallen back when he commenced his
panicked
escape from the scene of the shooting.
[18]
J said that there had not been any
particular gang-related problems in the area at the time.  He
said that Keegan Solomons
had been killed in another shooting
incident some time during 2016.
[19]
He said that he had pointed out accused 1
and 3 in a photo album identification exercise during May 2016.
He said that there
had not been a photograph of accused 2 in the
album.
[20]
The witness was cross-examined about various minor
discrepancies between his evidence and the content of a statement he
had made
to the police at the hospital on the evening of the
incident.  The discrepancies were not material and J gave
satisfactory
explanations for them.  (It bears remark in this
connection that one of the less fortunate effects of the essential
abolition
of the state’s docket privilege in
Shabalala
and Others v Attorney-General of Transvaal and Another
[1995] ZACC 12
;
1995 (2) SACR 761
(CC) has been the use by some defence legal
representatives of prosecution witnesses’ statements to the
police for lengthy
and, too frequently, pettifogging
cross-examination.  The courts have to bear in mind when
evaluating the effect of such cross-examination
that the statements
are often affected by issues such as language difference and are more
often than not just summaries of what
the witness has told the
policeman, not the ipsissima verba.  It would be unusual for the
recording police officer to go into
the matter in the detail that
counsel do with the witness in court, and it should therefore be no
cause for surprise that each
and every detail elicited during
examination of the witness in the courtroom has not been captured in
their police statement.)
[21]
J denied the proposition put to him by the
accused’s counsel that accused 1 and 3 had come to the scene of
the gambling game
on bicycles.  He reiterated that all three of
them had approached together on foot and had fled the scene together
after the
shooting, also on foot.  He conceded that accused 1
had been a member of the schoolboy gang at the time and that he had
subsequently
become a member of the Clever Kids.
[22]
The complainant on count 8, Carl May,
testified that at between eight and nine o’clock on the night
of 27 April 2016
he had been playing dice with one Ashley Davids
(also known as ‘Elly’), who was a friend, and one Moneeb
outside MC
Stores, off Jordan Str in Manenberg, when he noticed
accused 1, 4 and 5 approaching them across the parking lot from
Ganges Close.
(The witness indicated that Ganges Close was the
road shown on exh. J as intersecting with Jordan Str, and from which
vehicular
entrance to the parking lot outside MC Stores could
apparently be obtained.  Ganges Close is also indicated on exhs.
N1 and
R.)  He knew accused 1 by his nickname ‘Boef’
and accused 4 by his nickname ‘Zaraks’.  Accused
4
had previously played dice with him and they had smoked dagga
together.  He said that accused 1 and 4 both lived in Elbe

Street.  Accused 4 broke away from the other two accused and
proceeded around the corner of the MC Stores, along the side
of the
building adjacent to Ganges Close.  (The witness described the
direction in which accused 4 proceeded as being to ‘the
yard of
the enemy’.  The direction in which accused 4 was
described as having deviated would have taken him towards
Gamka Str,
elsewhere described as the stronghold of the Stupa Boys and their
ally, the Hard Livings gang.)   A person
called Charlie had
also been standing nearby at the time, behind the metal gate at MC
Stores that is evident in some of the photographs
in the photo album
that was handed in, by agreement with the legal representatives of
accused 1, 4 and 5, as exh. H.  See
in particular photograph 4.
A police sketch showing the situation of MC Stores, the adjacent
parking lot and Jordan Str.
was also handed in as exh. J.
Various measurements relevant to the site depicted in exh. J were
taken by the investigating
officer during the course of the trial.
These measurements were recorded in a document that was handed in as
an ‘addendum
to exh J’, to which I shall refer as
exh. J1.
[23]
May indicated that the area was illuminated
by a floodlight at the entrance to the parking lot off Ganges Close
next to the corner
of MC Stores.  He marked the position of the
floodlight with the letter E on exh. J.  The area was also
illuminated by
light that was shining from behind the iron gates in
the MC Stores building that are apparent on photographs H 1, 2 and 4.
[24]
According to May, the other two accused
(accused 1 and 5) continued to proceed towards the place at which he
and his two companions
were gambling.  Accused 4 quickly
re-joined the other two.  Moneeb then got up from the gambling
game and walked towards
and past the three accused who were still
approaching.
[25]
May then saw accused 1 draw a gun from his
waist and heard two shots being fired.  He got up and ran from
the scene in the
direction of Ganges Close.  As he fled he
looked back and saw Davids on his haunches apparently struggling to
get up.
Davids was at this stage outside the Green Pastures
church, which is the pink coloured building depicted in the photo
album exh. H1
and H2, some metres away from the place where the
gambling game had been played.  The witness said he noticed that
accused
1 was walking towards Davids holding a firearm in front of
him with both hands pointing with it in the direction of Davids.

He indicated that Davids was at the spot that he indicated with the
letter A on photograph 1 in exh. H – this corresponded
with the
position marked B in the key to photographs H2, 37 and 38.   May
placed accused 1 at the time at the spot he
marked on the photograph
with the letter ‘M’.  He estimated that the distance
between points M and A, so indicated,
was 6-7 metres.  He also
noticed that accused 4 and 5 had run off towards the corner of Jordan
Str and Ganges Close when accused 1
fired his weapon.  After
May had rounded the corner of the MC Stores building into Ganges
Close he heard several more shots
being fired.
[26]
May said he was not a gang member, but his
friend Ashley Davids had been a member of the ‘HL’s’.
(Initially,
the witness professed not to know that HL was an
abbreviation for Hard Livings, but later, in answer to a question
from the court
while he was under cross-examination, he acknowledged
that they were one and the same thing.)  He denied the
proposition put
to him by accused 1’s legal representative that
he was himself a member of the Hard Livings gang.  He said that
he understood
that accused 1 and 4 were members of the Clever Kids
and accused 5 a member of the Americans gang.  His evidence
concerning
the accused’s gang membership was vague and
tentative, however, and it was by no means clear that he was able to
reliably
identify any of them as gang members.  It did, however,
emerge later in the other evidence that accused 1 and 4 had been
connected
with the Clever Kids and that accused 5 was indeed a member
of the Americans.
[27]
It emerged in cross-examination that the
witness had identified accused 1 and 4 at a photo ID parade.  He
said that he had
not identified accused 5 at the photo ID parade
because there had not been a photograph of him there.
[28]
Various discrepancies between the statement
the witness had given to the police (Exh. M) and his oral
evidence were put to
him under cross-examination, particularly by
accused 1’s legal representative.  I did not consider any
of them to be
material.  He explained that he had not mentioned
accused 5’s name in his police statement because he had not
known
his name at the time he made the statement.  It was quite
clear from the contextual evidence given by the witness about his

knowledge of accused 5 and his relationship with the deceased, Ashley
Davids, that the witness did indeed know who accused 5 was.
For
example he knew that he was the nephew of one ‘Junaid’,
who was known by the nickname ‘Natang’.
[29]
It was put to May in cross-examination that
he had a grudge against accused 1 and suggested that that was the
reason the witness
had implicated the accused.  No particulars
as to why such a grudge should have been harboured were put to the
witness.
He denied the proposition, and stated that in point of
fact, although not friends, they had had a sociable relationship,
often
participating in gambling games together.
[30]
It was put to the witness by counsel for
accused 4 that accused 4 would say that he had not been present when
the shooting took
place at MC Stores, but that he had been in Elbe
Street.  The witness denied that proposition.
[31]
He also denied the proposition put to him
by accused 5’s representative that accused 5 had not been on
the scene of the shooting,
but had been at the traffic lights in
Duinefontein Road when he heard shots from the Jordan Str area and
had decided to divert
to Elsjieskraal Road.  The relative
positions of these roads are apparent in the Google Maps screenshot
that was introduced
into the evidence as Exh N1.
[32]
The next witness, Moneeb Davids, confirmed
that he had been in a gambling game with the deceased, Ashley Davids,
Carl May and one
Charlie Engelbrecht on the evening of 27 April 2016
outside MC Stores.  He also indicated the relative positions
that the
game participants had occupied at the game.  His
evidence in this regard corresponded with that given by Carl May with
reference
to photograph H1 during his evidence.  Moneeb Davids
is employed at the store as a delivery driver.  He stated that
he
had happened to look up from the game at a certain stage and
noticed three persons approaching from the direction of Jordan Str.

On closer questioning it emerged that he saw the three entering the
parking lot through the entrance off Ganges Close near its

intersection with Jordan Str.  He immediately felt uneasy and
decided to leave.  He was unable to articulate precisely
what it
had been about the situation that had caused him to feel
discomforted, but I had no doubt while watching him give his evidence

as to the truthfulness of his description of his experience.
[33]
Moneeb Davids recognised two of the three
approaching men as accused 4 and 5.  The witness also knew
accused 4 by the name
‘Zaraks’, and had seen him for
approximately a year frequenting the area, especially in Elbe
Street.  He knew
accused 5 because he delivered bread to a shop
run by a Somalian from a container in the driveway of the address at
which accused
5 resided in Elbe Street.  He said that he knew
accused 5 by the name ‘Yurieq’.  He explained that
he learned
about the names ‘Zaraks’ and ‘Yurieq’
after he had identified accused 4 and 5 at the photo ID parade.

He had not previously known their names.  However, he did not
know the middle person in the approaching trio.
[34]
As mentioned, Moneeb got up to leave the
gambling game because of his feeling that something was amiss.
He headed towards
Ganges Close along the stoep (also referred
to as ‘the pavement’) in front of the MC Stores
building.  On his
way to Ganges Close, as he passed by the
approaching three men, he heard accused 4 utter the words ‘
This
is a naai HL
’.  He did not
understand those words to have been directed to him.  In the
context of his identification of the
deceased as having been the only
Hard Livings gang member present at the time, it may be inferred that
they must have related to
Ashley Davids.
[35]
Moneeb Davids said that as he rounded the
corner of the MC Stores building and turned into Ganges Close to head
towards his home
in Gamka Street he heard two gunshots.  As he
proceeded further towards his house he then heard several additional
shots being
fired.  He returned to the scene about 10 minutes
later and found Ashley Davids lying dead outside the Green Pastures
church
at the place depicted in photograph H 37.
[36]
Moneeb Davids confirmed Carl May’s
evidence about the lighting at the scene.  He was adamant that
he had recognised accused
4 and 5, but he was unable to recall what
they had been wearing.  As the two accused had been known to him
by sight for some
time it is unlikely that he would have
misidentified them.  Knowing who they were, he would have had no
reason to take particular
note of, or remember, what they were
wearing.
[37]
Charles Engelbrecht, another employee at MC
Stores, confirmed that he had been present at the store on the night
of the shooting.
Engelbrecht testified that he was currently a
member of the Ghetto Kids gang, which is allied to the Hard Livings
gang.  He
said that he had been a member for the past two to
three months (i.e. since June-July 2017).  He said that the Hard
Livings
gang’s rivals in the area were the Clever Kids, the
Dixy Boys and the Americans.  He said he had known accused 1
since
childhood.  He knew him by the name ‘Boef’.
He also knew accused 4 from seeing him at MC Stores.  He
knew
him by the name ‘Zaraks’.  He was not in a position
to say whether or not accused 4 belonged to a gang.
Engelbrecht
also said that he knew accused 5 by the name Yusrieq, although he had
never spoken to him.  He said accused 5
operated with the Clever
Kids gang.  He knew accused 5 by sight from having seen him in
the neighbourhood.  (It was common
ground that accused 5 was in
point of fact a member of the Ugly Americans gang, but Engelbrecht’s
impression that he was
associated with the Clever Kids is consistent
with the description by a number of witnesses of the alliance between
the two gangs.)
[38]
Engelbrecht confirmed the evidence given by
Carl May and Moneeb Davids concerning their participation in a
gambling game outside
MC Stores on the evening of 27 April
2016.  He also described having seen the approach of accused 1,
4 and 5 from the
direction of Jordan Str; although he said that
accused 1 had been somewhat ahead of accused 4 and 5 as they
approached.  He
nevertheless described the three of them as
having been together.  He also described how accused 4 had
broken away from the
other two and as having briefly disappeared down
Ganges Close alongside the wall of the MC Stores building on Ganges
Close.
He confirmed that Moneeb Davids had left the gambling
game on the approach of the three accused and had passed by accused 4
at
the corner of the MC Stores building.
[39]
Engelbrecht stated that after accused 4 had
broken away in the manner just described, accused 5 remained at the
entrance to the
parking lot off Ganges Close while accused 1
continued into the parking lot area, from where he fired two shots in
the direction
of where the gambling game had been taking place,
hitting Ashley Davids.  He said Ashley Davids had tried to
escape.
At that stage he (Engelbrecht) had taken cover inside
the shop behind a wall near the metal gates.  He said that
accused 1
thereafter came closer to where Ashley Davids was and fired
repeatedly at him until he had exhausted his ammunition.  He
could
not say exactly how many shots had been fired, but they had
been several.  By that time, indeed immediately after the first

two shots had been fired, he had seen accused 4 and 5 running away
from the scene in the direction of Jordan Str.  He said
that
accused 1 also ran in that direction after he had finished firing at
Ashley Davids.  He also said that Carl May had walked
off when
the first two shots were fired.  When asked by the court whether
May had just walked, rather than ran, from the scene,
he repeated his
evidence that May had just walked away.
[40]
Engelbrecht testified that the area in
which MC Stores was situated, as well as the adjoining Gamka Str
precinct in which he lived,
were under the control of the Hard
Livings and Ghetto Boys gangs.  According to him these two gangs
were also in alliance
with the Stupa Boys gang.  He said that
the Clever Kids, Dixy Boys and American gangs were the rivals of the
Hard Livings-Ghetto
Boys alliance.  The Clever Kids controlled
the Elsjieskraal Rd/ Elbe Str precinct, which, as evident from the
Google map (exh
N), is on the opposite side of Jordan Street from the
MC Stores / Gamka Str area.  He said the Gamtoos Str area was
controlled
by the Dixy Boys.
[41]
Engelbrecht was also tackled in
cross-examination about various discrepancies between his evidence
and the content of his written
police statement, but in his case too,
I am not persuaded that any of these points of criticism was
material.  The most important
issue in this respect was that he
had not mentioned accused 4 and 5 by name in his police statement.
Having regard to his
statement as a whole, and bearing in mind it was
written out by a policeman, and not by the witness himself, it is
clear that the
focus was on the individual who had done the shooting
(i.e. accused 1) and not on the two persons whom the statement
records had
been with him at the time.  It was quite evident
when the witness testified in court that he was very certain who the
other
two persons had been.  He said that the police had not
asked him who the other two had been.  I do not find that
evidence
in any way implausible.  The police had available at
the time two other eyewitnesses who were far more articulate than
Engelbrecht.
They may well have already obtained the
information as to the identity of all three of the accused from those
sources.  Engelbrecht
was a strikingly unsophisticated witness,
who impressed as being of limited intellect.  He had difficulty
in certain respects
working in the abstract with things such as the
sketch plan exh. J.  He nevertheless came across as entirely
frank and lacking
in any guile in describing what he had observed on
the evening in question.  He was notably forthright in his
rejection of
the propositions put to him in cross-examination on
behalf of each the three accused concerned that they had been
elsewhere at
the time of the shooting.
[42]
Ms W J testified that she was the mother of
L Joseph who had given evidence earlier.  She had been in a
relationship with the
deceased, Ashley Davids, for about four years
before he was killed.  At the time of Davids’ death she
was four months’
pregnant and already had a child aged one year
and four months by him.
[43]
Ms J said that she had been visiting a
friend at Ocean View near Kommetjie on the evening of 24 December
2015 when she received
news that her son, L, had been shot.  She
returned home and after receiving a report about the incident went to
the homes
of accused 1 and 3 to find out why her son had been
shot.  Neither of the accused had been at home.  She then
went
to the Jooste Hospital where she found her son who had just been
discharged.  She said that accused 1 had apologised to her
some
time later (she thought it had been during March 2016) for what
happened to her son.
[44]
As to the events of the evening of 27 April
2016, Ms J stated that she had been at her home in Gamka Str earlier
that evening
with Ashley Davids.  She decided that their child
should have some juice to drink and she understood that Ashley Davids
had
gone out to fetch some from the shop.  While Davids was
still away, she walked out to Great Fish Ave to accompany a friend
of
hers, one Fia, to the latter’s home in Jordan Str.  She
carried her infant child with her.  As they approached
the
intersection of Jordan Str with Great Fish Ave, where she and Fia
engaged in conversation with another friend (Wannie), Ms
J heard
gunshots from the direction of MC Stores.  She estimated the
total number of shots as having been more than 10.
It is
apparent from exh. N that MC Stores is one block away from the
intersection of Jordan Str and Great Fish Ave.
[45]
Ms J said that she looked down Jordan Str
in the direction of MC Stores and noticed two men crossing the road
and approaching in
the direction of Great Fish Ave along the
pavement.  At the same time she heard a hue and cry from MC
Stores and inferred
that somebody must have been shot there.
She had a feeling that the two men she saw approaching from that
direction might
have been involved in the shooting.  She decided
to follow them up the passage between Jordan Str and Elsjieskraal
Rd.
She could see that one of the men was wearing a red hoodie
and the other a reddish-orange cap.  She observed the man in the

hoodie handing a firearm to the other man.   She also heard
the words ‘
na my huis
’
(
Eng.
‘to
my house’), but was unable to tell which of the two men had
uttered them.  It was also necessarily implicit
in Ms Joseph’s
evidence in this regard that she had been unable to clearly see the
faces of either of the men, for the
evidence concerning the incident
on 24 December 2015 confirms that had she seen accused 1’s
face she would have been
able to recognise him.  (I shall come
back to the matter of Ms J having seen only two, not three, men
coming down Jordan
Str after the shooting later in this judgment.)
[46]
After emerging from the passage at
Elsjieskraal Rd, Ms J encountered another person from the area whom
she knew by the name of Rosa.
At that stage the two men whom
she had been following had proceeded up Elbe Str.  Rosa, who has
since moved to Johannesburg
and whose current address is apparently
unknown, made a report to her.  It is evident from Ms J’S
conduct later
in the evening that the report must have gone to the
identity of at least one of the men she had been following.  At
this
stage, when the witness went into Elbe Str, the two men she had
been following had disappeared from view.  A possible reason
for
their disappearance would be that they had entered a building on the
street.  In this regard it bears mention that all
three of the
accused arraigned in respect of the murder of Davids resided on Elbe
Str.  She then went back into the passage
towards Jordan Str,
where she met Fia who told her that Davids had been shot and taken to
hospital.
[47]
Ms J then walked up Jordan Str to its
intersection with Ganges Close.  She saw a large number of
persons thronging outside
MC Stores.  She said this gave her the
impression that somebody else must also have been shot.  She
formed this impression
in the context of having been told by Fia that
Davids had already been taken to hospital.
[48]
Ms J said that she spotted the bakkie of Mr
van Rooy, a local detective, on the scene.  She approached van
Rooy and gave him
the address of the person who had been named to her
by Rosa when they had met outside the mobile phone shop at the corner
of Elsjieskraal Rd
and Elbe Str.  She had the impression
that van Rooy did not seem to take particular note of what she had
told him.  Another
detective, one Cwele, then arrived with a
female colleague.  They asked if they could speak with her and
asked her to make
arrangements for someone else to look after her
infant child in the meantime.  A grey Ford Focus vehicle with
certain police
details in it then arrived.  She was asked if she
was Ashley Davids’ girlfriend, and when she answered
affirmatively
she was asked to get into the vehicle.  She
directed the police to 11 Elbe Street, where accused 1 resides.
It was clear
from the evidence that she had given concerning the
incident on 24 December 2015 that Ms J was familiar with
accused
1’s home address.
[49]
She said accused 1 was leaving the house as
they arrived at the address.  She pointed him out to the police
who arrested him.
They then all proceeded in the vehicle to the
Manenberg police station, where the witness was asked to wait in the
charge
office, while the police dealt with accused 1 elsewhere.
Ms J denied a proposition put her by accused 1’s legal

representative that the accused had been assaulted by the police in
the vehicle.
[50]
She was subsequently taken back to MC
Stores, where she saw the deceased’s body lying covered on the
ground.
[51]
Constable Manyota of the SAPS at Manenberg
attended the scene of the shooting outside MC Stores shortly after
the occurrence of
the incident.  He was involved in securing the
crime scene.  He found that there were 12 cartridge casings and
one bullet
head on the scene.  These were later pointed out to a
police photographer who attended the scene.  It was
uncontentious
that these exhibits (which are described in the
ballistics report exh. Q) were found in the positions indicated in
the photographs
in exh. H, and the accompanying key).  The
ballistics evidence established that all 12 cartridges had been fired
from the
same firearm.
[52]
Cst Manyota was tackled by accused 1’s
legal representative over an indication in his (Manyota’s)
written witness statement
(exh. P) of an entirely different account
from Ms W J to that which she had given in court.  The
inconsistent version
had not been put to Ms J when she testified,
apparently because the accused’s representative had not been in
possession of
Manyota’s statement at that time.  It became
apparent in re-examination that the witness had in fact not
interviewed
Ms J.  He explained that what he had written down in
his statement had been based on what Cst Cwele had told him, and had
not been obtained directly from Ms J.  Accused 1’s
legal representative did not apply for Ms J’S recall for

further cross-examination, despite having been alerted by the court
that he should do so if he wished to pursue the point.
(Cwele,
who had left the police service before the trial, was not called as a
witness.)
[53]
Cst. Jordan of the Manenberg police station
testified that he had arrested accused 4 at 9 Elbe Street on 28 April
2016, having
been requested by radio while he was patrolling in the
area to bring accused 4 in for questioning as a suspect in CAS
553/4/2016.
The name that had been given to him was ‘Zaraks’.
He had only learned of the accused’s given names later
at the
police station.
[54]
The investigating officer in both matters
was Detective Constable van Rooy.  He testified that he had been
stationed in the
detective branch at Manenberg police station for
eight years, attached to the gang unit.  He gave evidence
concerning the
dates upon which the respective accused had been
arrested.  He also identified the various gangs that operated in
the areas
that are pertinent to the cases that are subject of this
trial.   He stated that the Young Dixy Boys, the Clever
Kids
and the Ugly Americans (also known simply as ‘the
Americans’) were dominant in Gamtoos Str, Elbe Str and
Elsjieskraal
Rd, whilst the Hard Livings, Stupa Boys and their
allies, the Ghetto Kids, dominated the Gamka Str and Jordan Str area
in the vicinity
of MC Stores.  He said that the Hard Livings
gang was in opposition to the Clever Kids, Young Dixy Boys and
Americans.
The Clever Kids, Young Dixy Boys and Americans gang
alliance was referred to in the area as ‘die driekamp’.
[55]
Van Rooy testified that there had been a
shooting elsewhere in Manenberg (in Humber Street) on the evening of
27 April 2016 shortly
before that at MC Stores.  Two persons had
been injured in that incident.  One of them was an Ugly American
and the other
a member of the Clever Kids gang.  He had attended
that scene and been informed by the victims that they had been shot
by
someone from the Hard Livings gang.
[56]
Van Rooy expressed the opinion that the
shooting at MC Stores had been a revenge attack.  He described
that there had been
an elevated level of inter-gang violence in
Manenberg since 2014, with only brief intervals of relative peace.
He said that
the deceased, Ashley Davids was a member of the Hard
Livings gang.  He knew accused 1 to be a member of the Clever
Kids.
Accused 1 did not have any tattoos, but the witness
had seen him on many occasions actively associating with the Clever
Kids
at the scene of gang confrontations that reportedly commonly
take place, where the participants throw bricks and stones at each

other even in the face of a visible police presence.  He also
identified accused 4 as a Clever Kid, pointing out that the
accused
has an identifying CK tattoo on the inner side of his right ankle.
He had not personally witnessed accused 4 participating
in gang
activities, but said that he was known to members of the gang unit.
The witness said that accused 5 was a member
of the Ugly Americans
gang and had UA tattoo marks on his middle finger and left leg.
[57]
Under cross-examination by accused 3’s
legal representative, Det. Cst. van Rooy said that accused 3 had a
tattoo mark TSB,
which identified him as a member of the Terrible
School Boys gang.  The TSB’s associated themselves with
the Clever
Kids gang.  He said that accused 3 lived at
Silverstream Rd, which is within walking distance of Gamka Str.
Van
Rooy conceded that the TSB gang had ceased to exist during 2016.
He said it had amalgamated with the Clever Kids.  The
witness
testified that he had seen accused 3 involved in gang fights between
‘die driekamp’ and members of the Hard
Livings gang.
[58]
In answer to a proposition by counsel for
accused 4 that accused 4 had left the Clever Kids in 2011, the
witness said that he had
no knowledge of that.
[59]
It was put to van Rooy on behalf of accused
5 that the witness had tried to persuade him to turn state witness
and to implicate
accused 1.  He denied the proposition.  It
was also suggested to van Rooy that he had made a similar suggestion
to accused
5’s mother.  Accused 5 did not testify in
support of that proposition when he gave evidence, and his mother was

not called as a witness.
[60]
The state closed its case after van Rooy
completed his evidence.
[61]
An application for discharge at the end of
the state case was brought on behalf of accused 3.  The
prosecutor conceded that
the accused should be discharged on counts 1
and 3 (i.e. the charges under the
Prevention of Organised Crime Act
and
for the attempted murder of Keegan Solomons, respectively).
The accused was accordingly found not guilty and acquitted on
those
counts.  In the face of the evidence concerning his gang
membership and his association with accused 2, who had been

identified as the shooter, the application was otherwise dismissed.
The prosecutor also conceded that accused 1 should be
acquitted on
count 3, and accused 2 on counts 1 and 3.  Those accused
were also acquitted accordingly after the close
of the state’s
case.
[62]
Accused 1 gave evidence that on the evening
of 24 December 2015, he and accused 2 and 3 had joined the
gambling game that was
in progress in the ‘park’ between
Gamka and Gamtoos Strs.  He said that he and accused 3 had been
on bicycles
and accused 2 had been walking with them.  He had
spent some time beforehand with accused 3 and others smoking dagga
and had
then gone to accused 3’s house so that accused 3 could
put on something warmer to wear, whereafter they had gone to accused

2’s house near the Phoenix School.  At accused 2’s
house it had been decided that the three of them would go to
Elbe
Str.  On the way they had come across the gambling game.
He and accused 3 had joined the game and accused 2 had
stood behind
them.
[63]
The accused gave various contradictory
indications in his evidence as to the relative positions of the three
accused and L J at
the game.  He was consistent only on the fact
that the participants had been arranged in a circle and that accused
2 had been
standing somewhere behind him.  Initially, he said
that accused 2 was directly behind him and a later stage positioned
accused
2 obliquely behind him.  When pressed, he ended up
saying he could not say precisely where accused 2 had been in
relation
to him and accused 3 because he had been concentrating on
the gambling game.  Initially, he had accused 3 sitting opposite

him in the circle of persons playing the gambling game.  Later
he had him next to him, with two persons between them.  At
one
stage he had accused 3 to the right of him, but later in his evidence
he put him as having been to his left.  Initially,
accused 1
said that a few minutes after he had joined the game he heard a shot
going off and then saw accused 2 running from the
scene with a
firearm in his hand.  At a later stage he said he had been at
the game for about an hour when this happened,
and then when, pressed
in cross-examination on the point, said that, despite having reached
standard 7 at school (which he left
only because his father had found
him employment and because the family was experiencing financial
hardship), he was illiterate
and unable to make an estimate of the
time.
[64]
Under cross-examination by counsel for
accused 2, the accused also appeared to retract his incriminating
evidence against accused
2 and gave the impression that he could not
tell whether accused 2 had been carrying a firearm.  Under
subsequent cross-examination
by the state, however, the accused
reverted to his original evidence and was even able to say that he
had seen that the firearm
was greyish in colour.  In answer to
the prosecutor’s questioning accused 1 said that accused 2
had carried the
gun with his arm pointing downwards towards the
ground.  He said that he had not known that accused 2 had a
firearm on him
and was shocked to see him with one after the shot had
gone off.
[65]
Accused 1 said that it sounded as if the
shot had gone off behind him.  He said that after the shot had
gone off there had
been pandemonium, with everyone who had been
present fleeing from the scene in all directions.  He learned
only later that
L J had been injured in the shooting incident.
He said that he had climbed onto his bicycle and headed in the
direction of
his home via Gamka Street.  In his evidence in
chief he stated that he had not left together with accused 2 and 3.
Under
cross-examination he said that he did not know the names of the
streets, and was therefore unable to say whether his route had taken

him via Gamka Str or Gamtoos Str.  Earlier in his evidence he
had no difficulty in saying that he had seen both accused 2
and
accused 3 leaving the scene of the shooting in the direction of Gamka
Str.  Under questioning by the court, with reference
to exh. N,
he confirmed that he had taken the route via Gamka Str, Great Fish
Ave and the passage between Jordan Str and Elsjieskraal
Rd to get to
Elbe Street, where he lived.  He said that he and accused 3 had
left the scene of the shooting by bicycle, and
accused 2 on foot.
He was unable to explain why he had not overtaken accused 2 in the
course of his escape from the scene
if, as he described, they had
both departed in the direction of Gamka Str.
[66]
Accused 1 said that after he had arrived
home L J’S ‘people’ arrived there in an agitated
state and caused an
uproar.  He said that they had accused him
of firing the weapon and that he had denied this, but told them that
he had seen
accused 2 with a firearm.  He stated that W J had
been one of these people.  This evidence was in stark
contradiction
of the evidence of Ms J that the accused had been
absent when she had gone to his house.  It was not put to Ms J,
when she
gave evidence, that the accused had been present.  On
the contrary, the tenor of the cross-examination was consistent with

Ms J’S evidence.  It was to the effect that she had
confronted the accused’s mother about the shooting of
her son.
The accused confessed that he had not given the version he advanced
in his oral evidence to his legal representative
in pre-trial
consultation.
[67]
Accused 1 said that he had made no
enquiries of either of his co-accused after the event as to what had
happened.  He also
denied having gone to apologise for the
shooting to L Joseph’s mother.  He said that in fact L J
had come to him to
apologise for having laid charges against him.
(It had not been put to L that he had apologised to the accused.)
[68]
As to the incident in which Ashley Davids
was killed, accused 1 asserted, as had been foreshadowed in his plea
explanation, that
he had been at home at the time.  He said that
the witnesses who had identified him as the shooter had been badly
mistaken.
He admitted that Carl May and Charles Engelbrecht had
been known to him.  He said that he had been on his way out of
his house
to go to buy cigarettes when the police pulled up and
arrested him.  He said that he had not been outside his house at
any
stage earlier on that day.  He testified that as he had left
the house and just before the police arrived he had encountered

accused 4 on the street outside his house.  He was wearing a
blue top at the time and noticed that there was some discussion

between the police about the colour of his upper garment.  He
seemed to suggest that Ms J had given the police a different

description of his clothing.  Indeed, he said that Ms J had got
out of the police vehicle and pointed him out saying that
he had been
wearing a red top.  He denied that he had worn a red top on that
day.
[69]
Accused 1 initially stated that he had not
had the opportunity to tell the police that he had a number of
witnesses right there,
by way of his family members and girlfriend,
who could support his alibi.  He later contradicted himself on
this point.
He also later said that his mother had actually
come out of the house before he was taken away and remonstrated with
the police
that he could not have been involved in the shooting at MC
Stores because he had been at home.  That claim was not put to
Ms J, who had been present when he was arrested.  It was also
inconsistent with his mother’s evidence (to be described
in
more detail presently) that she did not know at the time for what he
had been arrested.  He said that he had asked his
family members
to make statements to the police confirming his alibi, but had not
bothered to find out whether they had or not.
[70]
Accused 1 stated that he was taken to the
Manenberg police station and tortured by having a bag put over his
head and having water
poured over it onto his face to get him to say
where the firearm was. He said that a policeman intervened at a
certain stage to
stop him from being mistreated. I infer that the
policemen involved must have accepted from the time of his arrest
that the accused
was no longer in possession of the firearm for one
would otherwise have expected them to have searched his house for it,
which
they did not.  Their conduct is consistent with their
having received a report, it would seem from Ms J, that he had handed

the weapon to someone else.  He then had gunshot residue tests
done on his hands and was photographed.  It is apparent
from the
photographs of the accused in exh. H that his t-shirt and the upper
part of his trousers were wet.  This lends support
to his
evidence concerning his ill treatment by some of the policemen at
Manenberg police station after his arrest.  It is
common cause
that the residue tests were negative.  I do not think that the
negative result of the residue test could properly
be regarded as
conclusive in the context of the evidence as a whole. Assuming ex
hypothesi that accused 1 had been dependably identified
as the
shooter by the eyewitnesses, it is evident that there would have been
an interval quite sufficient after he could have reached
his home
from the scene of the shooting to allow him to wash his hands and
even change his clothing before he was picked up by
the police.
Furthermore, his dousing with water in the context of being tortured
by the police could also have washed off
any residue that might
otherwise have been detected.
[71]
Accused 1’s evidence concerning his
gang membership was that he had belonged to the Clever Kids for about
six months during
2011, but had left the gang when he realised that
membership would lead inevitably to his death, injury or
incarceration.
He sought to vindicate his claim not to be a
member of the gang by pointing out that he did not have any
identifying tattoo marks.
He did not however give a convincing
explanation of his claim that every gang member had an identifying
tattoo mark.  He could
not explain why he had not obtained such
a mark when he had admittedly been a gang member for some time.
[72]
Accused 1 said that he had known accused 2
for six or seven years, but claimed to be unable to say whether or
not he was a gang
member.  He said that accused 2 had not been a
Clever Kid when he (accused 1) had been a member of the gang.
He said
that he had grown up with accused 3, whom he knew to be a
member of Terrible Schoolboys gang.  He confirmed that accused 4

was also a friend of his.  Accused 4 lived next door to him in
Elbe Str.  He said he did not know whether accused 4 was
a gang
member.  He had not seen him with gang members in the area.
Accused 5 had been a friend of his, but had moved
to Bonteheuwel.
He said that he could say that accused 5 was not a gang member
because he no longer lived in the area.
[73]
Accused 1 called his mother, Lameez Jordaan
to support his alibi.  Ms Jordaan testified that her son
had been at home
for the whole day on 27 April 2016.  She
said that they lived in a small open plan maisonette with two
bedrooms and a
bathroom on the upper level and that she had been in a
position to see that accused 1 had not left the house that day until
he
had been asked by his father to go to buy cigarettes.  She
had been busy cooking in the kitchen at that time, and was alerted
to
her son’s arrest when people from the street came in to say
that the police were taking accused 1 away.  She said
that she
had gone outside and asked the police why they were arresting her
son.  The police told her that they were arresting
him on a
charge of murder.  She was shocked and felt sick and numb in her
legs.  She had no idea at the time where or
when the alleged
murder had occurred, or who the victim had been.  She had not
asked the police for these particulars.
She said that she and
her late husband had gone to the police station the following day,
but that when they arrived there the accused
had already been loaded
into a police van to be taken to court.  The policeman to whom
she and her husband tried to speak
was not interested in their
enquiries.  He was more concerned that the accused might be late
for court.
[74]
Ms Jordaan was taxed in cross-examination
as to why she had not been more assertive in establishing her son’s
innocence by
speaking to his alibi.  She was asked why she had
not made a statement to the police or pointed out at the accused’s

bail application in the Wynberg magistrates’ court that he had
been at home all day.  Her answer on the first point
was that
the police had not been interested in listening to her.  On the
second point she said that she did not think that
she was permitted
just to speak out during the bail proceedings.  In answer to a
question from the court, Ms Jordaan indicated
that the accused had
been legally represented at the bail application.  She said that
he had been represented by an attorney
that had been privately
engaged by the family.
[75]
Ms Jordaan stated that she was absolutely
intolerant of gangs and was initially adamant that her son had never
been a gang member.
When it was put to her that on the
accused’s own evidence he had been a member of the Clever Kids
for six months, she said
that she had no knowledge of that, but was
in no position to argue with the prosecutor on the point.  She
did, however, after
an initial slight equivocation, confirm that the
Elbe Str / Elsjieskraal Rd area was the stronghold of the Clever
Kids, Ugly Americans
and Dixy Boys and that the territory of their
rival, the Hard Livings gang, was the MC Stores / Gamka Str area.
She said
that she also had no knowledge whether accused 4, who lived
next door, and had grown up before her, was a gang member.
[76]
Ms Jordaan purported to be able to remember
in detail exactly what the accused had been wearing on 27 April
2016.  She
also gave out that she could remember what she had
been wearing, as well as what her daughter and her son’s
girlfriend had
had on that day.  The only reasons she offered
for such an extraordinary ability to recall such insignificant detail
were
that the accused did not have a big wardrobe, and that it was
important for a mother to pay attention to her children’s
clothing.
Ms Jordaan was, however, unable to remember on which
day of the week the 27
th
April had fallen, or what it was that she had made for breakfast,
lunch or supper on that day.  She was also unable to say
what
the accused had been wearing on the 23
rd
of April.  She had been in court for much of the trial and when
she was absent other family members and the accused’s

girlfriend had been present; as had the family of accused 4 who live
right next door to her in Elbe Str.  Ms Jordaan’s

description of accused 1’s apparel on the day was
consistent with the description that had been given by the accused
in
his evidence.  She claimed that she had not discussed the
evidence with anyone else in the family before she testified,
but I
find that improbable.
[77]
As it was, in answer to questions posed by
the court, inspired by the photographs that had been taken of the
accused after his arrest
that were included in exh. H, the
witness said that the accused had been wearing a white t-shirt,
whereas the photographs
show him wearing a yellow one.  When her
attention was drawn to the discrepancy she sort to recover the
situation by saying
that her late husband may have taken a change of
clothing to her son at the police station on the evening of
27 April.
No evidence suggesting that such a visit had
taken place had been adduced in the context of the accused’s
evidence concerning
what had transpired at the police station after
his arrest.  On the contrary, Ms Jordaan’s evidence had
been that she
and her husband had gone to the police station the
following day to try to find out the particulars of the charge
against their
son.  The witness also initially said that the
trousers accused 1 is shown in the photograph to have been wearing
were not
the blue jeans that she had said he had on, but shortly
thereafter she contradicted that evidence saying that those were the
trousers
he had been wearing, but the top was not what he had had on.
[78]
The only significance, in the context of
the evidence adduced in the trial, of what the accused had been
wearing on that day was
related to the fact that it was plain from
the actions of Ms J in taking the police to his address - after
evidently having
reported that he was the shooter - that she had
identified him as the person wearing the red hoodie whom she had
followed up the
passage between Jordan Str and Elsjieskraal Rd.
The accused himself emphasised that there had been some discussion
between
the arresting police details and Ms J at the time of his
arrest about the fact that he was found wearing a
blue
top.  Nothing in the evidence
indicates that Ms Jordaan would have been aware of this issue at
the time, and she said
nothing to suggest that she had been alerted
to the question shortly after the 27
th
of April 2016.  On the contrary, as mentioned, she said that at
the time her son had been taken away by the police she had
not known
who had been murdered or when the alleged murder had happened.
[79]
Accused 1 closed his case after his mother
had given evidence.
[80]
Counsel for accused 2 closed his case
without calling any evidence.  The court confirmed with accused
2 that his decision not
to testify had been taken after properly
discussing the matter with his legal representative.
[81]
Accused 3 testified that on 24 December
2015 he had gone to smoke dagga at a spot on Elbe Str that he
regularly frequented for the
purpose.  He went there on his
bicycle.  Accused 1 was one of the persons whom he
encountered there.  The encounter
was by chance.  He said
that he had not made arrangements to meet accused 1 there.
[82]
It became cooler later in the evening and
he decided to go home to put on warmer clothing.  Accused 1
decided to accompany
him.  The two of them cycled back to
accused 3’s house in Silverstream Rd.  After accused 3 had
changed he went
outside and suggested to accused 1 that they look in
on accused 2 who lived on the same road, three or four houses away
from that
of accused 3.  Accused 3 said that he had intended to
ask accused 2 to arrange to procure some higher grade dagga for him
to smoke later that evening to celebrate Christmas.  He did not
get to the stage of making the request, however, because accused
2
had indicated that he was bored and said he would accompany accused 1
and 3 back to Elbe Str and go to visit family that he had
in
Elsjieskraal Rd.
[83]
Because accused 2 was on foot, they decided
to take a more direct route back to Elbe Str.  That route
took them to the
park where the gambling game was in progress.
He and accused 1 decided (quite independently of each other, it would
appear)
to stop and join in the game.  Accused 2 did not
participate and stood by watching at a position obliquely behind
accused 3.
Accused 3 said that accused 1 had sat opposite
him in the circle of gamblers participating in the game.  In the
result the
evidence of accused 1 and 3 was mutually contradictory
concerning where accused 2 had been in relation to each of them.
[84]
Accused 3 said he had been engaged in the
game for anything between 5 and 15 minutes when he heard a shot go
off.  He had no
idea from where in relation to his position the
sound had come.  He could only say it was very loud.  He
had not seen
anyone bearing a firearm, and even after the shot had
been fired he had no idea who or where the shooter was.
He grabbed
his money, mounted his bicycle and rode off as fast he
could in the direction of Elbe Str.  He took the route via Gamka
Str,
Ganges Close, Jordan Str and the passage from the top of the
Great Fish Ave to Elbe Str.  He said that he did not see accused

1 or 2 in his flight.  He pointed out that there were five
routes of escape from the park and that the people at the game
had
scattered in disarray after the shot had gone off.  When he
reached the top of the passage, at the corner of Elbe Str
and
Elsjieskraal Rd, he looked back over his shoulder down towards Great
Fish Ave to see if either of his co-accused was following
him.
He did not see them.  He then went to his grandmother’s
house in Elsjieskraal Rd.  He encountered his
uncle in the front
yard there and asked him to bring him a glass of water.  After
consuming the water he cycled back to his
house in Silverstream Rd.
When he reached home (which he agreed could have been no more than 15
minutes after the shot had
been fired), his mother was at the gate
and called to him to come to her.  She reported that W J had
been there about the
shooting incident.  Ms J had already left
by the time that he arrived there.  He told his mother about the
shooting incident.
She annoyed him by scolding him for having
participated in the gambling game and he left to visit other friends
around the corner
from his address.  On the way he encountered
accused 2’s sister, who told him that accused 2 had not yet
returned home.
[85]
Under cross-examination and questioning by
the court accused 3 struggled to explain various inconsistencies and
improbabilities
in his evidence.  His attempts to explain why
various details volunteered under cross-examination had not been
mentioned in
his evidence in chief were unconvincing, as was his
reportedly singular lack of interest in what had become of his two
friends
after the shooting incident.   His dogged
insistence that he could not tell from which direction the shot had
come and
that he would not have been able to see anyone in front or
to the side of him wielding a firearm, even in his peripheral field
of vision, came across as disingenuous and evasive.
[86]
He was moreover unable to explain how his
version of events after the shooting incident could be reconciled
with the evidence of
Ms J that she had heard of the shooting
incident when she had been at her friend’s house in Ocean View
near Kommetjie
and had proceeded from there to the addresses of
accused 1 and 3 respectively.  The court is able to take
judicial notice
that Ocean View is more than half an hour’s
drive from Manenberg in traffic free conditions.  Accused 3
suggested that
Ms J must have already been on her way home when she
heard of the shooting, or that she must have been untruthful in her
testimony
that she had been in Ocean View when she got news of the
shooting.  No plausible reason for Ms J to have concocted such
an
incidental piece of information suggests itself, and accused 3’s
legal representative did not challenge this aspect of
her evidence in
the course of detailed cross-examination.  A far more likely
reason for the conflict in the evidence of the
two witnesses is that
accused 3 was not being frank with the court as to his movements
after the shooting.  I formed the strong
impression that accused
3 was not an honest witness, but dishonesty does not afford a safe
basis, by itself, to found a conviction.
[87
Accused 3 called his mother, Ms Rochelle
Maart, in support of his defence.  She added nothing of
substance to the evidence
that her son had already given.  She
confirmed that the accused had been away from his home for most of
the evening of 24 December
2015 and that W J and her sister, S,
had come to her house that night claiming that accused 3 had
been present at the gambling
game when L J had been shot.  She
said that accused 3 had arrived home 15-20 minutes after W J had
left.  Ms Maart
was obviously in no position to say where
her son had actually been, or with whom, for most of the evening.
It was clearly
apparent from her evidence that accused 3 had not been
honest in telling her where he would be.  She confirmed that her
son
had been a member of the Terrible Schoolboys gang.  She said
that he had told her at some stage that he was no longer a member.
[88]
Accused 3 then closed his case.
[89]
The evidence as a whole did no more than
establish that accused 3 had been present at the scene of the
shooting and that he had
arrived there with accused 1 and 2 and fled
together with them after the shooting.  Even if he had known
that accused 2 intended
to shoot someone at the gambling game, that
knowledge and his mere attendance with accused 2 at the scene would
not make him a
co-perpetrator or accomplice in the commission of the
offence of attempted murder.  I think it was improbable that
accused
3 did not know that accused 2 was armed and that a shooting
was going to take place.  Even though I regard the probity of
his evidence with scepticism, I nevertheless cannot discount the
reasonable possibility that he was present at the shooting only
in a
passive capacity.  The accused is entitled in law to benefit of
that doubt.
[90]
Essentially the same considerations apply
in respect of the position of accused 1 in respect of the shooting
incident on 24 December
2015.  As Botha JA pointed out in
S
v Mgedezi and Others
1989 (1) SA 687
(A), at
703I-J, the court ‘
is obliged to
consider, in relation to each individual accused whose evidence could
properly be rejected as false, the facts found
proved by the State
evidence against that accused, in order to assess whether there was a
sufficient basis for holding that accused
liable on the ground of
active participation in the achievement of a common purpose
’.
[91]
There is no evidence of a prior agreement
between the accused in respect of the respective charges of attempted
murder and murder.
Accepting that they were members of the same
gang or of mutually allied gangs is not sufficient to make out a
prior agreement between
them to commit the acts in question.  In
the absence of proof of a prior agreement to commit the offence in
issue, five requirements
must be satisfied for common purpose to be
established.  In the first place, the accused must have been
present at the scene
where the offence was being committed. Secondly,
he must have been aware of commission of the offence. Thirdly, he
must have intended
to make common cause with the person who was
actually perpetrating the offence - in the current matters the person
who fired the
weapon.  Fourthly, he must have manifested his
sharing of a common purpose with the perpetrator by himself
performing some
act of association with the conduct of the others.
Fifthly, he must have had the requisite
mens
rea
; so, in respect of the killing of
the deceased and the shooting of L J, the accused must have intended
them to be killed, or must
have foreseen the possibility of their
being killed and performed their own acts of association with
recklessness as to whether
or not death was to ensue.  I refer
in this regard to
S v Mgedezi
supra
at 705I-706C, most recently endorsed by the Constitutional Court in
Makhubela v S, Matjeke v S
[2017] ZACC 36
(29 September 2017), at para. 36.  The
collective import of these requirements for common purpose liability
was summed
up by Moseneke J in
S v
Thebus and Another
[2003] ZACC 12
;
2003
(6) SA 505
(CC); 2003 (10) BCLR 1100, at para. 19 as
follows: ‘
The liability arises
from an active association and participation in a common criminal
design with the requisite blameworthy state
of mind.
’
[92]
Insofar
as the count of the attempted murder of L J is concerned, the
evidence establishes conclusively that accused 2 was the shooter.

L J was but a youth and also a sole witness for the state as to what
happened in the shooting incident of 24 December 2015.
I
have been astute to assess his evidence with special care in the
light of these considerations.  His evidence was given

coherently.  He made a good impression in the witness box and he
was not upset in any material respect in cross-examination.
His
evidence was, moreover, corroborated by that of accused 1, and
accused 2 chose not to rebut it.
[3]
[93]
It was common ground that accused 1 and 3
were present when the shot was fired, but I am unable to discount the
reasonable possibility
that their evidence that they were unaware
that accused 2 had a firearm might be true.  There is no
evidence of their active
association in the perpetration of the
crime.  Evidence that they stood with accused 2 watching the
gambling does not, without
more, establish association.  That
they ran away when the shot was fired was also common cause. While it
might be argued that
fleeing the scene with accused 2 could point to
their association with him in the undertaking, it is equally
consistent with the
absence of any association and a fear for their
own safety.  I am sceptical about the truth of the evidence of
accused 1 and
3, but that is not enough to found a decision on the
evidence to convict them of count 2 and they will therefore be
acquitted and
discharged on that charge.
[94]
Accused 2 therefore falls to be convicted
on the charge of the attempted murder of L J (count 2).  In the
circumstances, it
seems more likely that the intended victim of the
shooting was Keegan Solomons, who was positioned close to J at the
time, and
a member of a rival gang.  Nevertheless, in firing the
shot in the circumstances accused 2 must have appreciated that he
might
miss Solomons and hit someone close to him.  The potential
for fatal consequences would have been obvious to him, but he
proceeded
to fire reckless of the potential result.  He
therefore had the legal intention to commit the offence of murder.
[95]
The
proven facts show that accused 2 was in possession of a handgun of
make and calibre unknown and at least one round of ammunition
for
it.  He has not offered any evidence to suggest that he was
legally authorised to be in such possession.
[4]
His counsel, Mr Beukes, argued, however, that the state had failed to
prove the charges in terms of counts 4 and 5 against
him because no
expert evidence had been adduced to establish that the device used by
the accused had been a firearm as defined
in
s 1
of the
Firearms
Control Act.  Mr
Beukes relied on the judgment of the Eastern
Cape Division in
S
v Filani
2012 (1) SACR 508
(ECG) in support of his submission.  He also
provided the court with a copy of a published article that he has
written on
the subject, Beukes, H ‘
The
loaded danger of deduction when dealing with illegal possession of
ammunition
’
(2016 June)
De
Rebus
38.
[96]
The word ‘firearm’ is defined
in the Act as follows:
'
firearm
'
means any-
(a)
device manufactured or designed to propel a bullet or projectile
through a barrel or cylinder by means of burning propellant,
at a
muzzle energy exceeding 8 joules (6 ft-lbs);
(b)
device manufactured or designed to discharge rim-fire, centre-fire or
pin-fire ammunition;
(c)
device which is not at the time capable of discharging any bullet or
projectile, but which can be readily altered to be a firearm
within
the meaning of paragraph (a) or (b);
(d)
device manufactured to discharge a bullet or any other projectile of
a calibre of 5.6 mm (.22 calibre) or higher at a muzzle
energy of
more than 8 joules (6 ft-lbs), by means of compressed gas and not by
means of burning propellant; or
(e)
barrel, frame or receiver of a device referred to in paragraphs (a),
(b), (c) or (d),
but
does not include a muzzle loading firearm or any device contemplated
in
section 5.
Paragraphs
(c), (d) and (e) of the definition are indicative of the
legislature’s intention to frame the ambit of the meaning
of
the word ‘firearm’ widely, rather than narrowly, because
they draw into the net devices not available for immediate
use as
firearms, but amenable to adaption for the purpose, powerful airguns,
and even just component parts of an incomplete firearm.
By
contrast, the 8 joules muzzle energy threshold on the other hand is
manifestly intended to exclude devices with a low muzzle
energy from
regulation as ‘’.
[97]
An ‘airgun’ (as defined) is a
demonstrable example.  ‘Airgun’ is defined as
meaning –
…
any
device manufactured to discharge a bullet or any other projectile-
(a)
of a calibre of less than 5.6 mm (.22 calibre); or
(b)
at a muzzle energy of less than 8 joules (6ft-lbs),
by
means of compressed gas and not by means of burning propellant;
[98]
The expression ‘muzzle energy’
is not defined in the Act, nor have I been able to find a definition
in a standard English
dictionary.  The expression ‘muzzle
velocity’ is defined in the
Oxford
Dictionary of English
as ‘the
velocity with which a bullet or shell leaves the muzzle of a gun’.
A ‘joule’ is defined in
the same dictionary as ‘the
SI unit of energy, equal to the work done by a force of one newton
when its point of application
moves one metre in the direction of
action of the force, equivalent to one 3600
th
of a watt-hour’.  A foot-pound is defined in the
dictionary as ‘a unit of energy equal to the amount required
to
raise 1lb a distance of 1 foot’.  It follows that ‘muzzle
energy’ relates to the energetic force involved
in the
propulsion of the bullet from the weapon’s muzzle.  There
is no mystique in appreciating that the destructive
potential of a
projectile fired from a muzzle is related to the combined effect of
its mass and muzzle velocity, in other words
in direct relation to
the kinetic energy involved.  That is a matter of simple
physics.  Joules or foot-pounds are measures
of the production
of kinetic energy.  A firearm with a low muzzle energy will not
be capable of inflicting injury on the scale
that one with a higher
muzzle energy is able to do.  The firearm devices excluded from
the technical definition of the word
for the purposes of the Act on
the basis of their low muzzle energy are therefore ones that pose
little or no threat to people’s
right to life and security of
person.
[99]
A
more general consideration of the provisions of the Act bears out the
effect of the proposition I have sought to demonstrate.
Section
5
of the Act expressly provides that an ‘airgun’ is not
regarded as a firearm for the purposes of the Act.  Other

devices similarly excluded in terms of that provision include ‘a
tranquiliser gun’,
[5]
‘a
paintball gun’,
[6]
‘a
flare gun’ and ‘a deactivated firearm’.  The
Act does not prescribe that a person may not possess
an airgun unless
one is licensed to do so.  One also does not require a
competency certificate to possess an airgun (as defined),
as one does
to qualify to obtain a licence for a firearm; nor must the device
itself be licensed.  Furthermore, the storage
of airguns is not
subject to regulation under the Act, whereas that of firearms is.
The clearly discernible pattern throughout
the Act is that firearms
in the ordinary sense of the word that are not regarded as having
sufficient firepower to represent material
potential harm to members
of the community are excluded from the defined meaning of the word.
A firearm that is powerful
enough to send a bullet through a person’s
leg would not fall into the category of relatively innocuous devices
excluded
from the regulatory requirements of the Act.  Similar
provisions are found in the firearms legislation of other countries.

In Germany, for example, a licence is not required to use a firearm
outside a shooting range if its projectiles have a kinetic
energy of
less than 7,5 joules.
[7]
The evident ratio for the exception is that projectiles with a
kinetic energy of less than 7,5 joules were accepted by the
German
legislature not to present a material danger to life or limb.
[100]
In
Filani
’s
case, the High Court set aside the appellant’s convictions in
respect of the unauthorised possession of a firearm
and ammunition in
contravention of the
Firearms Control Act, holding
that it had been
incumbent on the state to adduce evidence establishing that the
device used fulfilled the technical criteria in
the definition of
‘firearm’.  The court recorded that the evidence in
that case had established that when the
device had been fired the
result had been to leave what a lay witness had described as ‘a
little, small hole’ in the
wall.  Counsel for the state
submitted that any weapon capable of having that effect would fall to
be recognised as one having
sufficient ‘force or velocity’
to qualify in terms of the technical criteria in the definition.
Pickering J
(Revelas J concurring) rejected the argument,
holding (at p.515
f-g
):
‘…
on
an acceptance of Ms
Hendricks'
submission,
any weapon which was capable of discharging or propelling a missile
as set out above would fall within the ambit
of the definition. In my
view, however, given the increased technical nature of the various
definitions of ‘firearm’
contained in the later and
current Act, such a finding cannot be made in the absence of expert
evidence to that effect. Certainly,
it is not a matter of which this
court may take judicial notice. The state failed to lead any such
expert evidence and accordingly
failed, in my view, to discharge the
onus upon it.’
The
learned judge highlighted the difference between the current
statutory instrument and its predecessor, the Arms and Ammunition
Act
75 of 1969, which had not contained a definition of ‘firearm’,
with the result, as held, amongst others, in
S v Shezi
1980
(4) SA 494
(N), that the word had fallen for the purpose of the
latter Act to be construed  in accordance with its ordinary
meaning such
as that to be found in the
Oxford English Dictionary
,
viz. ‘
a weapon from which missiles are propelled by an
explosive, e.g. gunpowder
’.
[101]
The logic of the court’s reasoning in
Filani
is
difficult to fault on the facts of that case.  Depending on the
evidence adduced in a particular case it could, however,
give rise to
uncomfortably anomalous results if applied as a general doctrine.
In the current matter, for example, it is
plain beyond question that
a significant wound was inflicted on the complainant by a shot fired
by accused 2 from a firearm in
the ordinary sense of the word.
It would make something of an ass of the state of the law if the
court were to find the accused
guilty of the common law offence of
attempted murder committed with the use of a firearm, but be unable
to hold that he had possessed
the firearm without a licence on the
basis that the weapon’s muzzle energy had not been empirically
proved.  Such a
result would be especially anomalous in the
context of the expressly stated objects of the
Firearms Control Act.
The
preamble to the Act states that the enactment is directed at the
protection of every person’s ‘right to life and the
right
to security of the person, which includes, among other things, the
right to be free from all forms of violence from either
public or
private sources’ and acknowledges the duty placed on the state
by the Constitution to respect, protect, promote
and fulfil the
rights in the Bill of Rights in the context of the contribution of
the increased availability and abuse of firearms
and ammunition to
the high levels of violent crime in our society.  It seems to me
that it would be inimical to the stated
objects of the Act to apply
its provisions in such a way as would place a higher burden on the
state to successfully procure convictions
in respect of the unlawful
possession of firearms and ammunition.  Certainly, if the
language of its substantive provisions
were construed to have such an
absolute effect, the result would be undermining of the statute’s
stated objects.
[102]
Mr Appels,
who appeared for the state, argued that the court should take ‘a
common sense’ approach.  He submitted
that regard should
be had to the complainant’s description of the firearm that he
had seen the accused wielding as a revolver,
identifiable as such by
its revolving chamber.
[8]
He also argued that the evidence concerning the explosive report of
the gunshot described by the complainant and accused
1 and 3, and the
fact that the bullet had passed right through the fleshy part of the
complainant’s ankle, with an entrance
wound on one side of the
leg and an exit wound on the other, taken together, ineluctably
supported deducing that the weapon had
the requisite muzzle energy.
It also demonstrated that the weapon that the accused had used was a
device manufactured or
designed to propel a bullet or projectile
through a barrel or cylinder by means of burning propellant.
[103]
The evident scope and object of the Act
does give some basis for a purposive approach to its construction and
application.
That the statute is avowedly directed at giving
substance to some of the fundamental rights in the Bill of Rights
weighs in favour
of construing it purposively in support of the
achievement of its objects and brings the injunction in s 39(2)
of the Constitution
very much to the fore.  These
considerations, however, afford no warrant to depart from or do
violence to the plain import
of the wording that the legislature has
chosen to employ, which undoubtedly has introduced technical criteria
that were absent
in the earlier legislation; nor does ‘common
sense’ for that matter.  The question essentially distils
to whether
it is only by expert evidence that the qualifying
technical criteria may be established.  Mr Appels’
argument essentially
propounds that the question should be answered
in the negative.
[104]
Some support for Mr Appels’ argument
is to be found in the approach of the Supreme Court of Appeal in
S
v Sehoole
2015 (2) SACR 196
(SCA), in
which the state appealed from a judgment of a two-judge bench of the
Gauteng Division of the High Court that had held
that absent expert
ballistic evidence it could not be proved that fifteen rounds of
ammunition found in the magazine of a 9mm pistol
in the possession of
the accused was ‘ammunition’ within the defined meaning
of the term.  The SCA rejected the
reasoning of the court a quo,
holding (at para 19) ‘Whilst it is undoubtedly so that a
ballistics report would provide
proof that a specific object is
indeed ammunition, there is no authority compelling the state to
produce such evidence in every
case. Where there is acceptable
evidence disclosing that ammunition was found inside a properly
working firearm, it can, in the
absence of any countervailing
evidence, be deduced to be ammunition related to the firearm.
Needless to say, each case must be
judged on its own particular facts
and circumstances’.  (In that matter there had been a
ballistic report put in evidence
confirming the character of the
firearm.)
[105]
In the current matter, having regard to the
evidence by the complainant and accused 1 identifying the object
that accused 2
was carrying as a firearm and the nature of the injury
inflicted on the complainant, I am satisfied beyond reasonable doubt,
in
the absence of any countervailing evidence, that the firearm was
one with a muzzle energy materially ‘exceeding 8 joules
(6 ft-lbs)’.  The consequences of the shooting
incident demonstrate that the firearm used could not have been a

device of the nature that the legislature excluded from statutory
regulation in terms of the Act.  It is clear from the other

evidence adduced at the trial that accused 1 is familiar with and
knows how to use firearms and the complainant, as someone who
had
grown up in the violence-riven neighbourhood, would, as he indeed
asserted under cross-examination, know a firearm when he
saw it.
The description by the witnesses of the explosive report made when
the weapon was fired supports the finding that
the bullet or
projectile was propelled by means of burning propellant, but it would
make no difference it were propelled by air
pressure.
[106]
In the circumstances accused 2 also falls
to be convicted on counts 4 and 5 in respect of the charges brought
under the
Firearms Control Act.
[107
]
There is no basis upon which accused 1 and
3 might properly be convicted on counts 4 and 5, and they will
therefore also be found
not guilty and acquitted and discharged on
those charges.
[108]
Accused 4 testified that on the evening of
27 April 2016 he had been at home at his house at 9 Elbe Str.
He had decided
to go ‘the corner’ to smoke dagga.
It was after dark.  While there he heard several shots being
fired.
His mother came out of the house and called to him to
come indoors.  He initially said that he had remained inside the
house
for the rest of the evening.  He reiterated that that had
been the case when under cross-examination he was asked if he was

certain that that had been so.
[109]
He later amended his evidence to say that
he had watched television for a while after being called inside by
his mother.  He
then made himself a cup of tea.  He had
just finished pouring his tea into his cup when he heard a rumpus
outside in the street.
He went out to see what was going on and
noted that accused 1, his friend and next-door neighbour, was in the
process of being
arrested by the police.  His evidence in this
respect was in conflict with that of accused 1, who had testified
that he encountered
accused 4 on the street just before he had been
arrested.
[110]
Accused 4 initially testified that he had
not spoken to accused 1 when the latter was being arrested.
Shortly thereafter,
however, he contradicted himself and said that he
had asked accused 1 why he was being arrested and that accused 1 had
replied
that it was for a murder of which he had no knowledge.
Accused 4 also claimed to have spoken to the mother of accused 1

at the scene of the latter’s arrest immediately after accused 1
had been driven away.  This evidence was in conflict
with that
of his mother, whom he called as an alibi witness.  Accused 4’s
mother testified that she and accused
4 had just watched accused 1
being arrested, that accused 4 had not known for what he was being
arrested and that they had then
withdrawn indoors because what was
going on outside was none of their business.  All of this
evidence, whether by accused
4 or his mother, was, of course,
inconsistent with accused 1’s evidence.  Accused 1’s
mother also did not testify
that she had spoken to accused 4 on
the street outside her house after accused 1’s arrest.
[111]
Accused 4 professed to have noted what
the accused 1 had been wearing at the time.  He described
accused 1’s attire
in great detail; right down to the fact that
he had been wearing black shoes with an orange logo and with the
colour blue.
His description of the shoes matched that of
accused 1’s footwear as depicted in the photographs in exh. H.
It is evident
from those photographs that accused 1 had been wearing
shoes with blue soles.  Accused 4 was unable to offer any
explanation
of why or how he should have noted such detail when there
was much else going on to distract his attention, and, apart from
street
lighting, it would have been dark.  It is difficult to
reconcile his claim with his inability to describe what his mother
had been wearing that evening.  It is highly improbable that in
the prevailing circumstances described by him and accused 1
that
accused 4 could have taken in the detail he professed to recall.
It is even more unlikely that, even if he had noted
some of the
detail that he described, he would have still remembered it 18 months
later.  He would not have had any cause
to think it important to
impress in his memory.  I am firmly of the view that the
accused’s evidence in this respect
was untruthful.
[112]
His dishonesty showed in other respects
too.  His description of the Clever Kids as a sort of social
group where the members
entertained themselves having fun with the
girls and going to parties, coupled with his professed ignorance that
the gang’s
activities were in any way associated with criminal
activity, imposed excessively on the court’s credulity.
His description
of his allegedly short-term membership of the gang
stood in stark contrast with the far more realistic description of
gang membership
given by accused 1.  Both of them claimed to
have been members of the gang only for a few months during 2011.
Accused
4 was equally unimpressive in his evidence claiming not to
know which the dominant gang in his area of Manenberg was, and who
its
principal rivals were.  His denial that accused 5 was a gang
member was contradicted by accused 5 himself.  Accused 4
said
that accused 5 was not a gang member.  He said that he was of
that opinion because accused 5 stayed home most of the
time and he
had not seen him in the company of gang members.  Yet, accused 5
said that he associated with the Ugly American
gang and stood with
members of that gang at the corner.  If accused 4, who was
unemployed, were observant enough to be able
to say that accused 5
stayed at home most of the time, he could not but have noticed that
the accused in fact associated with gang
members and stood at the
corner with them.  The Elbe Str community is a small one.
Elbe Str and Elsjieskraal Rd. comprise
just a tiny corner of the
Manenberg suburb.  Furthermore, it was not as if accused 5 hid
his gang association.  He had
two UA tattoos, and, as mentioned,
admitted publically associating with gang members.
[113]
Accused 4 called his mother, Ms Rochelle
Hutchinson, to give evidence in support of his alibi.  She was
an unimpressive witness.
I gained the impression that she would
say anything to protect her son.  Her story was a simple one
that coincided in all
material respects with the evidence given by
her son.  It was her evidence in respect of immaterial detail
that showed her
up.  She professed, for example, to have
remembered in detail what she had been wearing on the evening of
27 April 2016,
when, unsurprisingly, she was unable to say what
she had been wearing on 30 September 2016.  The witness offered
no reason
why she should be able to remember such inconsequential
detail and her claim in that regard was just not credible.  She
was
also evasive on questions of time and refused to make concessions
on various issues, such as that her son would have had ample time

during the period he was out of the house on that evening to go to MC
Stores, notwithstanding that, objectively, there could be
no feasible
basis for resisting the proposition.  It was also in respect of
matters of detail such as where in her mother’s
house the
accused could have watched television that her evidence and that of
accused 4 was mutually contradictory.  Ms Hutchinson

testified that there was only one television in the house and that it
was upstairs.  The accused testified that he had watched

television when he came back inside after being called inside, and
that he had done so downstairs.  It is, of course, on matters
of
detail of the sort where there could be no scope for innocent error
that witnesses who have fabricated a common version are
likely to
have the fallacy of their evidence exposed.
[114]
Accused 5 also gave evidence.  He said
that he been 16 years’ old in April 2016.  He lived at the
time with his
grandfather at 32b Elbe Str.  He had been living
there since December 2015, after he had absconded from the boarding
school
that he had been attending at Schaapkraal.  He said that
he had run away from school because he had grown tired of not being

able to come home during exeat weekends because his mother would not
let him due to the dangers of on-going gang violence.
The
accused admitted that he had joined the Ugly Americans gang after
coming to live with his grandfather and owned up to still
having been
a member of the gang at the time of the fatal shooting at MC Stores.
[115]
Accused 5 stated that on the evening of
27 April 2016, towards nightfall, he had proceeded from his
grandfather’s house
to go to visit his friend Shahieda, who
lived on that part of Elsjieskraal Rd where the houses fronted
towards Duinefontein Road.
She was not at home, so he proceeded
further down Elsjieskraal Rd in the direction of Jordan St.  He
heard several shots being
fired from the direction of Jordan Str in
the vicinity of MC Stores.  He broke into a run and headed
towards the corner of
Elsjieskraal Rd and Elbe Str where he
encountered a group of curious persons from the neighbourhood who had
been drawn outside
by the sound of gunfire to find out what had
happened.  His grandfather and one of his uncles were amongst
these people.
He stood around with them for a few minutes and
then proceeded to visit his girlfriend in Gouritz Rd.
[116]
Accused 5 denied any complicity in the
shooting.  He knew the various eyewitnesses to the shooting who
had given evidence and
conceded that they would also know who he
was.  He could not suggest any reason why they should have
falsely incriminated
him as having been on the scene.  He had no
personal differences or enmity with any of them.  He said that
he had first
been arrested on 28 April 2016, but he had released
after questioning.  He had not known that the police had been
looking
for him between then and his subsequent arrest for a second
time some months later.  His mother had taken him to live in
Bonteheuwel
after his initial arrest.  He had, however,
continued his ties with the Manenberg area with visits to his
grandfather and
girlfriend.
[117]
Accused 5, despite being much younger than his
co-accused, and of limited formal education, came across as the most
intelligent
amongst them.  He also gave a superficial impression
of candour and reasonableness.  If his evidence were to be
assessed
in isolation – which, of course, is
not
the proper approach – it would be accepted as probably
truthful.  It was not without material blemish or contradiction,

however.  Most notably, it was put by his counsel to Carl May
that accused 5 had been at the traffic lights in Duinefontein
Road on
his way to Jordan St when he had heard gunshots and ran away to
Elsjieskraal Rd.  The necessary implication in the
version put
by his counsel was that he had accessed Elsjieskraal Rd from
Duinefontein Rd.  His evidence was different.
It was to
the effect that he had been walking in Elsjieskraal Rd and had run to
Elbe St.
[118]
Assessed, in the proper manner, that is together
with all of the other evidence in the case, I think that accused 5
was astute to
the areas in which there would be no point in his
contesting the state’s evidence.  Hence, despite what
might otherwise
have appeared as reasonable concessions supportive of
his overall credibility as a witness, I am nevertheless satisfied as
to the
truthfulness of the eyewitnesses’ evidence against him.
Not only were the eyewitnesses not upset in cross-examination,
their
evidence about their knowledge of gang activity in the area was frank
and obviously informed.  This stood in sharp contrast
to the
coyness and professed ignorance of the accused on the subject.
As borne out by many uncontested remarks made from
all quarters
during the course of the trial, and from the police evidence, it is
notorious that Manenberg is a heavily gang infested
area and the
accompanying violence is salient in the local, if not the national,
news.  People living there cannot be other
than alert to it, who
is involved, and the dangers it presents to their lives and limbs.
As mentioned, accused 5 could suggest
no basis why the eyewitnesses,
who he conceded were familiar with him, at least by sight, could have
wrongly or falsely identified
him as being on the scene with accused
1 and 4.  Objectively, there is nothing to suggest that the
eyewitnesses had any
reason to falsely implicate him.  They did
not suggest that he actively participated in the assault on the
deceased.
On the contrary, they described how he ran from the
scene as soon as accused 1 started firing.  Being
unsophisticated, they
are not the sort of persons who are likely to
have thought that the accused could be guilty merely because he had
been present
with someone else who had decided to shoot the
deceased.  I am satisfied that they identified the accused as
having been there
because they had indeed seen him there.  The
evidence establishes that the scene was well illuminated and the
three persons
who approached the gambling game outside MC Stores came
within a short distance (less than 24 metres) of the
eyewitnesses.
That all three of them could have mistakenly
identified the accused in the circumstances is so highly improbable
that it may safely
be discounted.
[119]
In respect of the charge of murder arising
out of the fatal shooting of Ashley Davids (count 7) the evidence
established beyond
reasonable doubt that the actual perpetrator was
accused 1.  The proven facts, in particular the repeated firing
at him after
he had tried to escape, bear out that the shooting of
Davids was carried out with the deliberate and actual intention to
kill.
Accused 1 will therefore be found guilty of murder on
that charge.
[120]
Despite their denials, the evidence also
established that accused 4 and 5 had been with accused 1 when he
approached the gambling
game in which the deceased had been
participating outside MC Stores.  I am satisfied that accused 4
and 5 probably knew that
accused 1 intended to shoot someone.
The circumstances suggest that the gangs with which they were
associated (the so-called
‘driekamp’) would have been
intent at the time on exacting revenge for the recent attack on two
of their members in
Humber Street, a few blocks away.  The
suggestion is borne out by the fact that the attack was made on the
only person present
who was a member of a rival gang; and that there
is nothing in the evidence to indicate that Davids was targeted for
any other
reason but his membership of a rival gang and by the
observation made by accused 4 in offensive terms as the trio
approached the
persons in the gambling game, identifying Davids as a
member of the Hard Livings gang.
[121]
I am moreover satisfied that the state has
proved that accused 4 made common purpose with accused 1 in the
murder.  His actions
in uttering words that pointed out or
identified Davids as a member of the Hard Livings gang and in
checking that the coast was
clear for an attack by looking to see
what the position was along the side of MC Stores that led to Gamka
Str were manifestations
of an awareness of the intended assault on
the deceased and his intention to make common cause with accused 1 to
that end.
His conduct in those respects unambiguously
associated him in the intended assault.  He identified the
victim and checked
to make sure that he could be attacked with
impunity from counter-attack.  This showed his active
association and participation
in a common criminal design with the
requisite blameworthy state of mind.  Accused 4 will therefore
also be found guilty on
count 7 and convicted on the charge of
murder.  It is convenient to interpose at this point that in my
view it is probable
that accused 1 and 4 were the two men that W J
saw proceeding down Jordan Str from MC Stores after the shooting.
Any puzzlement
that the witness saw only two men, not three as might
have been expected were her observations to tally with the
descriptions given
by the eyewitnesses, is resolved if one factors in
the version initially put on behalf of accused 5, but abandoned when
he gave
evidence, that he had had made his way to Elsjieskraal Rd
after the shooting via Duinefontein Rd.   The proposition
was
not put to accused 5, but in the context of his fallacious
defence he could hardly have acceded to it even if it had been.
[122]
I have no doubt that accused 5 was also
well aware of what accused 1 and 4 were about, and supportive of
their object.  In
his case, however, the evidence did not
establish any conduct by him that might qualify as active association
in the commission
of the offence.  His mere presence, even
knowing what the criminal design was, is insufficient to found a
conviction based
on the doctrine of common purpose.  Accused 5
will accordingly be acquitted and discharged on the charge of murder
in terms
of count 7.
[123]
The indictment relied on
s 51(1)
of
the
Criminal Law Amendment Act 105 of 1997
in respect of count 7.
This implied, as the prosecutor confirmed, an allegation that the
murder of Ashley Davids had been
planned or premeditated; see
para. (a) of the description of the various  manifestations
of the offence of ‘murder’
in
Part 1
of Schedule 2 to the
Act.  The import of the term ‘planned or premeditated’
is inherently imprecise; see GP Stevens,
The
concept of premeditation in South African criminal law: Quo vadis?
2015 SACJ 347.
It is unlikely that the legislature could have
intended that the term should be construed as synonymous with ‘direct

intention’, and it is clear in any event that the crime can be
committed with direct intention without the involvement of
any prior
process of planning.
[124]
In
S v Raath
2009 (2) SACR 46
(C), a full court of this Division (Bozalek J,
Louw and Goliath JJ concurring) gave the following exposition of
the import
of the term, at para. 16:
The
concept of a planned or premeditated murder is not statutorily
defined. We were not referred to, and nor was I able to find,
any
authoritative pronouncement in our case law concerning this concept.
By and large it would seem that the question of whether
a murder was
planned or premeditated has been dealt with by the court on a
casuistic basis. The
Concise Oxford English Dictionary
10 ed,
revised, gives the meaning of premeditate as 'to think out or plan
beforehand' whilst 'to plan' is given as meaning 'to
decide on,
arrange in advance, make preparations for an anticipated event or
time'. Clearly the concept suggests a deliberate weighing-up
of the
proposed criminal conduct as opposed to the commission of the crime
on the spur of the moment or in unexpected circumstances.
There is,
however, a broad continuum between the two poles of a murder
committed in the heat of the moment and a murder which may
have been
conceived and planned over months or even years before its execution.
In my view only an examination of all the circumstances
surrounding
any particular murder, including not least the accused's state of
mind, will allow one to arrive at a conclusion as
to whether a
particular murder is 'planned or premeditated'. In such an evaluation
the period of time between the accused forming
the intent to commit
the murder and carrying out this intention is obviously of cardinal
importance but, equally, does not at some
arbitrary point, provide a
ready-made answer to the question of whether the murder was 'planned
or premeditated'.
The
court’s conclusion that the term does not lend itself to
ready-made answers and that a determination of whether a murder
has
been planned or premeditated depends of a weighing of an
indeterminate range of factors in the peculiar circumstances of a

given case underscores my finding that it is inherently imprecise.
The court’s identification that the time lapse between
the time
that the intention to commit the crime and the execution of that
intention is of cardinal importance suggests that time
for reflection
about carrying out the intention in its nascent form is an important
consideration.  But how much time?
And, indeed, is time
for reflection in fact always an important consideration at all?
[125]
The judgment of the Supreme Court of Appeal
in
Kekana v S
[2014] ZASCA 158
(1 October 2014) suggests that time for
reflection is not necessarily important, provided that the facts
prove an element
of planning in the commission of the offence.
In that matter the appellant, having decided whilst in a state of
emotional
arousal to kill his wife in the context of just having been
informed by her that their marriage was over, fetched a canister of

petrol that he had purchased to fill his car that was parked outside
the house, poured the fuel onto the bed upon which the deceased
had
been lying and set it alight before leaving the room locking the door
behind him as he went.  He also spread the petrol
in other parts
of the house and set it alight too.  The relevant action was
accepted by the appeal court as having taken place
within the compass
of ‘a few minutes, at the least’.  In confirming the
finding that the murder had been premeditated
Mathopo AJA (Lewis JA
and Gorven AJA concurring) held as follows at para 13-14:
In
my view it is not necessary that the appellant should have thought or
planned his action a long period of time in advance before
carrying
out his plan. Time is not the only consideration because even a few
minutes are enough to carry out a premeditated action.
The
appellant pertinently admitted that after he saw his clothes, he
formed an intention and in his own words he decided to end
it all and
kill the deceased. He then gave effect to this decision. He went
outside to fetch petrol. He re-entered the house and
poured it on the
bed of the deceased while at the same time telling her of his
intention. He set it alight with the petrol. He
locked the deceased
in the room. He spilled the petrol in the passage, kitchen and dining
room. The locking of the door and further
pouring of petrol show that
he was carefully implementing a plan to prevent her escape and to
ensure that she died in the blaze.
To my mind, this is proof of
premeditation on his part. It follows that the appellant was
correctly convicted of premeditated murder.
(It
is not necessary or appropriate to consider whether the finding that
the appellant in
Kekana
had planned the murder was the only
reasonable inference that the court could have drawn on the described
facts.  The argument
that the court was dealing with appears to
have been that absent proof by the state establishing the period of
time between an
accused person forming the intent to murder and his
carrying out of that intention, premeditation could not be
demonstrated.
The court rejected that argument.)
[126]
In
S v PM
2014
(2) SACR 481
(GP), Thulare AJ held that the expression ‘planned
or premeditated’ had a dichotomous connotation.  In this
respect
the learned acting judge placed emphasis on the disjunctive
implication of the word ‘or’.  He sought to explain

his understanding of how premeditation and planning fell to be
distinguished in the relevant context at para. 36 of the
judgment
as follows:
In
my view the two words ‘planned’ and ‘premeditated’
are two different concepts representing two different
ideas.
‘Premeditated’ refers to something done deliberately
after rationally considering the timing or method of so
doing,
calculated to increase the likelihood of success, or to evade
detection or apprehension. On the other hand, ‘planned’

refers to a scheme, design or method of acting, doing, proceeding or
making, which is developed in advance as a process, calculated
to
optimally achieve a goal. Such process has general features which
include:
(1)
The identification of the goal to be achieved;
(2)
the allocation of time to be spent;
(3)
the establishment of relationships necessary to execute;
(4)
the formulation of strategies to achieve the goal;
(5)
arrangement or creation of the means or resources required to achieve
the goal; and
(6)
directing, implementing and monitoring the process.
In
my view the word 'or' between ‘planned’ and
‘premeditated’ in part I of sch 2 introduces the second
of the two alternative concepts. In my view the use of the word ‘or’
indicates that the legislature did not favour a
composite description
of the circumstances to meet the test.
[127]
With respect, I find the basis for
distinction essayed in
S v PM
unconvincing.  The elements of ‘rational consideration’
that it attributes to ‘premeditation’ are
equally
inherent in any exercise of planning.  Importantly, if regard is
had to the object of the provision – i.e the
creation of a
criterion for the attraction of the mandatory sentence of life
imprisonment if substantial and compelling circumstances
to deviate
from the prescribed sentence are not present - no evident statutory
purpose would be served in making the distinction.
It is a
sterile exercise to seek the meaning of a word without regard to the
context in which it has been employed.  When
the word lies in a
statute, the evident scope and object of the instrument are critical
contextual considerations.
[128]
In my view the evident object of the provision
actually militates in favour of construing the conjunction in its
frequently acknowledged
possible sense of ‘and/or’; cf.
e.g.
Reeskens v Registrar of Deeds
1964 (4) SA 369 (N) at 371-2 and
S v
Bennie
1964 4 SA 192
(E) at 195; in other words, an
interpretation that would render any possible basis for distinction
that might be found between
the concepts immaterial for practical
purposes.  Indeed, the definition of ‘premeditation’
in the
Oxford Dictionary of English
suggests that the concept
of planning is wrapped up in that of ‘premeditation’;
viz. ‘the action of planning
something (especially a crime)
beforehand; intent:
the defendant said there was no planning
or premeditation
’.
[129]
In an appeal from the judgment in
S
v PM
, the Supreme Court of Appeal found
it unnecessary to expressly decide whether or not the phrase ‘planned
or premeditated’
denotes a single concept.  See
Montsho
v S
[2015] ZASCA 187
(27 November 2015).  The court took the
approach that the circumstances in which a crime was committed and
the peculiar facts
of each case will determine whether or not the
commission of the crime was planned or premeditated.  I would
respectfully
venture that such an approach is inconsistent with the
notion of any practical dichotomy between planning and
premeditation.
In point of fact the court in
Montsho
relied on the judgment in
Kekana
supra, which, as described,
accepted planning as indicative of premeditation.
[130]
One thing that is beyond doubt is that
where the state relies on premeditation or planning it bears the onus
of establishing those
factors.  In the current matter the only
evidence in support of the allegation is the occurrence shortly
before the shooting
at MC Stores of the shooting at Humber Street and
the conduct of accused 4, which taken together with that of accused
1, could
be indicative of the execution of a preconceived scheme.
There is no evidence, however, that the accused were aware of the

shooting in Humber Str.  There is also no evidence of the
circumstances in which the three accused came together that evening,

or of the circumstances in which accused 1 obtained the weapon or
happened to be in possession of it at the particular time.
In
short there was no direct proof of planning or premeditation.
The evidence about the prevalence of inter-gang rivalry
and violence
in the area was such that it is reasonably possible that the shooting
could have been a random act of violence perpetrated
when members of
one gang group chanced on a member of another gang group in
vulnerable circumstances.  It is reasonably possible
that the
accused could have decided on the assault virtually on the spur of
the moment in such circumstances.  In my judgment,
while
acknowledging this to be a borderline case, the state has failed to
discharge the onus of proving that the shooting was premeditated
or
planned.
[131]
It
follows from the finding that accused 1 was the actual perpetrator of
the murder that he has also been proven to have been in
possession of
a firearm and of at least 12 rounds of ammunition.  No evidence
has been offered that he was licenced to possess
the firearm and
ammunition,
[9]
and accordingly
he will, in addition, be found guilty on counts 9 and 10 in the
indictment.  In this instance there was ballistic
evidence
proving that the firearm used in the assault fired 9mm calibre
bullets, which exceeds the maximum calibre of ammunition
that the
Firearms Control Act would
allow as dischargeable from an ‘airgun’
as defined.  Indeed, the manner in which the firearm was
discharged according
to the description given by Charles Engelbrecht
suggests that the weapon used must have been self-loading, but the
charge did not
allege that a semi-automatic weapon had been used.
[132]
As discussed, accused 4 and 5 were probably
aware that accused 1 was armed and that he intended to use the
firearm against any member
of the Hard Livings gang that they might
encounter.  That would not be sufficient to convict them of
unlawful possession of
the firearms and ammunition.  As
explained by Marais J in
S v Nkosi
1998 (1) SACR 284
(W), joint possession of firearms and ammunition is
proved only if the state establishes beyond reasonable doubt (a) that
the company
of which the actual
detentor
was part intended as a whole to exercise possession of firearms
through the actual
detentor
and (b) that the actual
detentor
intended to hold firearms on behalf of the others.  The
correctness of that analysis has been endorsed in a number of appeal

court judgments; see
S v Mbuli
2003
(1) SACR 97
(SCA) at para. 71,
S v
Kwanda
2013 (1) SACR 137
(SCA) at para.
5 and
S v Ramoba
2017 (2) SACR 353
(SCA) at para. 11.  In my judgment, in
the absence of proof of a prior agreement or any evidence concerning
the circumstances
in which accused 1 came to be in possession of the
firearm, the state has failed to satisfy those requirements.
Accused 4
and 5 will therefore be acquitted and discharged on counts
9 and 10.
[133]
The evidence did not establish that there
was an attempt to murder Carl May (count 8).  On the
contrary, it was established
that the shooting on 27 April 2016
was directed narrowly, and effectively, at Ashley Davids, not at
anyone else in the group
outside MC Stores that evening.  The
prosecutor reasonably conceded as much in argument.  Accused 1,
4 and 5 will therefore
be acquitted and discharged on count 8.
[134]
Turning, lastly, to consider the charges on
count 1 brought under the
Prevention of Organised Crime Act.   The
expression ‘to aid and abet’ means to assist in or
facilitate the doing of something or to give counsel or encouragement

in respect of its doing; see Claassen,
Dictionary
of Legal Words and Phrases
s.v. ‘
Aid
and abet
’:  ‘
If
a person assists in or facilitates the commission of a crime, if he
gives counsel or encouragement, if, in short, there is any

co-operation between him and the criminal, then he “aids”
the latter to commit the crime (
R
v Van Niekerk
1944 EDL 202)
’.
The expression cannot apply to the conduct of the principal actor,
only to a person who assists him.  Accused
2 therefore cannot be
guilty of contravening s 9(1)(a) of the Act in respect of the
shooting on 24 December 2015, nor
can accused 1 and 4 in respect
of that on 27 April 2016.  There was nothing in the
evidence to support a finding that
accused 1 had aided and abetted
the commission of the offence of attempted murder by accused 2.
He is therefore entitled
to be acquitted and discharged on the main
charge in terms of count 1.  Similarly, there is no evidence to
establish that
accused 5 aided and abetted accused 1 and 4 in the
commission of the murder of Ashley Davids.  His mere presence at
the scene
did not constitute, assistance, facilitation or
co-operation in the relevant sense.  Accused 5 will therefore
also be acquitted
and discharged on the main charge in terms of count
1.
[135]
In order to obtain a conviction on the
alternative charge in terms of s 9(2)(a) it was incumbent on the
state to prove acts
by the accused ‘aimed at causing, bringing
about, promoting or contributing towards a pattern of criminal gang
activity’.
In other words the state had to establish a
relevant connection between the acts of the accused and a pattern of
criminal gang
activity.  The term ‘pattern of criminal
gang activity’ is defined in s 1 of the Act as follows:
"pattern
of criminal gang activity" includes the commission of two or
more criminal offences referred to in Schedule
1: Provided that
at least one of those offences occurred after the date of
commencement of Chapter 4 and the last of those offences
occurred
within three years after a prior offence and the offences were
committed –
(a)
on separate occasions; or
(b)
on the same occasion, by two or more persons who are members of, or
belong to, the same criminal gang.
[136]
I have had occasion previously, in
S
v Peters and Another
(unreported
judgment delivered on 4 November 2013 in case no. SS 17/2013),
to remark on the difficulties inherent in the definition
of ‘pattern
of criminal gang activity’, which is used only in s 9(2)(a)
of the Act and in the definition in s 1
of ‘criminal
gang’.  It was found unnecessary in that case to resolve
the difficulties; more particularly, whether
the import of the term
was comprehensively determined by the statutory definition, or
whether it also bore the meaning denoted
by the words making it up
used in their ordinary sense.  The same situation applies in
this case.  In my judgment the
state failed to adduce evidence
to prove a relevant ‘pattern of criminal gang activity’,
whether in the defined sense
of the term or the ordinary meaning of
those words, to which the actions of the accused could be related for
the purposes of s 9(2)(a).
Accused 1, 4 and 5 can
therefore also not be convicted on the alternative charge on count 1.
[137]
To sum up:
1.
Accused 3 and 5 have already been, or are
hereby found not guilty and acquitted and discharged on all counts
against them.
2.
Accused 1 has already been, or is hereby
found not guilty and acquitted and discharged on counts 1, 2, 3, 4, 5
and 8.
3.
Accused 4 is found not guilty and acquitted
and discharged on counts 1, 8, 9 and 10.
4.
Accused 1 is found guilty of –
a)
murder on count 7 (the murder of Ashley
Davids on 27 April 2016);
b)
contravening s 3(1) read with
s 120(1)(a)
of the
Firearms Control Act 60 of 2000
on count 9
(the unlawful possession of a firearm of make and calibre unknown on
27 April 2016); and
c)
contravening
s 90
read with
s 120(1)(a)
of the
Firearms Control Act 60 of 2000
on count 10
(the unlawful possession of at least 12 rounds of ammunition on
27 April 2016).
5.
Accused 2 is found guilty of –
a)
attempted murder on count 2 (the attempted
murder of L J on 24 December 2015);
b)
contravening
s 3(1)
read with
s 120(1)(a)
of the
Firearms Control Act 60 of 2000
on count 4
(the unlawful possession of a firearm of make and calibre unknown on
24 December 2015); and
c)
contravening
s 90
read with
s 120(1)(a)
of the
Firearms Control Act 60 of 2000
on count 5
(the unlawful possession of at least one round of ammunition on
24 December 2015)
6.
Accused 4 is found guilty of murder on
count 7 (the murder of Ashley Davids on 27 April 2016).
A.G.
BINNS-WARD
Judge
of the High Court
APPEARANCES
For
the State:

Mr Q.B. Appels
For
accused 1

Mr E. Holt (attorney)
For
accused 2

Mr H.A. Beukes
For
accused 3

Mr K. Roberts (attorney)
For
accused 4

Mr I. Salie
For
accused 5

Ms N. Abdurahman
[1]
Section 9(1)(a)
provides: ‘
(1)
Any person who actively participates in or is a member of a criminal
gang and who-(a) wilfully aids and abets any criminal
activity
committed for the benefit of, at the direction of, or in association
with any criminal gang shall be guilty of an offence’
.
[2]
Section 9(2)(a)
provides: ‘
Any
person who- (a) performs any act which is aimed at causing,
bringing about, promoting or contributing towards a pattern
of
criminal gang activity shall be guilty of a criminal offence
.’
[3]
As to the effect of the accused’s election not to give
evidence in the circumstances, see
S
v Boesak
2001 (1) SACR 1
(CC);
2001 (1) SA 912
;
2001 (1) BCLR 36
;
[2000] ZACC
25
, at paras. 24-29.
[4]
See s 250(1) of the Criminal Procedure Act, which provides:
Presumption
of lack of authority
(1)
If a person would commit an offence if he-
(a)
carried on any occupation or business;
(b)
performed any act;
(c)
owned or had in his possession or custody or used any article; or
(d)
was present at or entered any place,
without
being the holder of a licence, permit, permission or other authority
or qualification (in this section referred to as
the 'necessary
authority'), an accused shall, at criminal proceedings upon a charge
that he committed such an offence, be deemed
not to have been the
holder of the necessary authority, unless the contrary is proved.
[5]
‘tranquiliser gun’ is not defined in the Act.  It
is clear enough that it denotes a device that is used to shoot
a
cartridge containing a sedative at an animal.  An animal shot
using such a device would be tranquilized or sedated.
The
object of shooting an animal with a tranquiliser gun would not be to
kill or significantly injure it.
[6]
‘Paintball’ is not defined in the Act.
The
Oxford Dictionary of English
gives the meaning as ‘a game in which participants simulate
military combat using airguns to shoot capsules of paint at
each
other’ and gives ‘paintball gun’ as a modifier of
the word.  It is obviously not a device intended
to cause
injury.
[7]
Section 12(4)(1) of the Waffengesetz (WaffG), 2002, which came into
effect on 1 April 2003.
[8]
The complainant described the firearm as a silver coloured handgun
with a spin barrel.
[9]
See note 4 above.