S v Willemse and Others (SS93/2019) [2020] ZAWCHC 105 (15 September 2020)

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[2020] ZAWCHC 105
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S v Willemse and Others (SS93/2019) [2020] ZAWCHC 105 (15 September 2020)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.: SS93/2019
In
the matter between:
THE
STATE
and
ASHWIN
WILLEMSE
Accused
1
WAYLIN
ABDULLAH
Accused
2
JUDGMENT DELIVERED ON
15 SEPTEMBER 2020
CORAM:
SALIE-HLOPHE, J
DATE
OF HEARING: 9 MARCH 2020
DELIVERED:
15 SEPTEMBER 2020
COUNSEL FOR THE STATE:
ADV.L. BADENHORST
COUNSEL FOR ACCUSED 1:
ADV.J. BUURMAN
COUNSEL FOR ACCUSED 2:
ADV.R. LIDDEL
Instructed
by:
Liddell Weeber Van der
Merwe Inc.
SALIE-HLOPHE,
J:
Introduction:
1]
On 18 October 2018 the deceased, Mr. Gregory Carelse and Mr. Prezano
Holland were killed in a shooting incident on the corner
of Baracuda
Crescent and [...]weg, Nooitgedacht, Bishop Lavis.  Mr. Carelse
was, at the time of his death, employed as a security
officer in the
Community Safety Department of the City of Cape Town.  He also
worked as a police reservist, was well known
in the community of the
Bishop Lavis area and was an active member in the neighbourhood for
community safety as well as crime prevention.
On 17 June 2017
he observed a drive-by shooting in F Street, Valhalla Park (“the
F incident”), pursued the vehicle
in which the assailants were
travelling and arrested one of the suspects, Abraham Wilson
(“Wilson”), a gangster and
member of the 28 Gang.
The latter is a notorious prison gang which operates in the
surrounding area as “The Firm”.
After Carelse handed
Wilson over to the police at the scene, he deposed to an affidavit to
Warrant Officer Wesley Lombard on 18
June 2017, setting out the
sequence of events as he had observed during the shooting including
his pursuit of the assailants which
resulted in his arrest of
Wilson.  Three suspects were charged in connection with the
triple murder which occurred in the
F incident, which included Wilson
and one, Mr. Craig Stanfield, the relative of the leader of the 28
Gang in the Valhalla Park
area.  Carelse was a witness in that
trial and which was pending before the Western Cape High Court at the
time of his death.
It is common cause that another State
witness in that trial was also murdered some months ago.
2]
In the afternoon of 18
th
October 2018, at around 15h20, Carelse left his home, situate at […]
Street, Bishop Lavis, passing his son, Dale,
[1]
outside and walked up the road.  He was the registered licensee
of a .38 special revolver with serial number 29356.
[2]
The fire-arm was tucked in the side of his pants.  Shortly after
17h00 he was shot on the corner about a block away from his
home.
[3]
The revolver and holster was not in his possession immediately after
the shooting.  His son,
[4]
approached the scene during the shooting whilst two perpetrators were
shooting at Carelse.  He died as a result of multiple
gunshot
wounds to the body which included 16 gunshot wounds with 8 fired
bullets and one bullet core retrieved from his body.
[5]
Five (5) of the fired bullets were from a .38/357 revolver.
It is not known if the revolver which fired these 5 gunshots
were
from Carelse’s own .38 revolver.
3]
On the ground, on the opposite side of the road, was Mr. Prezano
Holland (“Holland”), fatally shot in his abdomen.
Both
Carelse and Holland succumbed to their wounds at the scene.
Holland died as a result of one bullet wound caused by a
9mm calibre
pistol.  The hands of both deceased tested negative for gunshot
residue.
[6]
4]
The two perpetrators who were shooting at Caresle ran into the
passage way between the houses and […] Avenue, Valhalla
Park.
No firearms linked to this incident were retrieved, including
Carelse’s revolver.
5] Dale, the only eye
witness for the State, made a police statement 18 days after the
incident incriminating the persons “Krag”
and “Wena”.
During a photo identity parade conducted on the day after he gave his
statement, he identified both
the accused as the persons who had shot
his father, accused 1 as Krag and accused 2 as Wena.  Both
accused were represented
throughout the trial and pleaded not guilty.
Charges:
6]
Both accused were charged with two counts of murder as contemplated
by section 51(1) read with part I of Schedule 2 of Act 105
of 1997;
robbery with aggravated circumstances as contemplated by section
51(2) read with part II of schedule 2 of Act 105 of 1997;
unlawful
possession of firearms and unlawful possession of ammunition.
It was also the case for the State that the offences
of murder were
planned or premeditated and that it were committed by persons or a
syndicate acting in the execution of a furtherance
of a common
purpose or conspiracy, which was to eliminate Carelse as a witness
for the State in the pending trial relating to the
F Street triple
murders.
7]
They both pleaded not guilty to all the charges.  Only accused 2
gave a plea explanation in terms of Section 115
[7]
in which he denied causing the death of the two deceased or that he
knew that Gregory Carelse was a witness for the State, he denied

robbing anyone on the date of the incident or that he was in
possession of a firearm or ammunition on that date.  He had no

personal knowledge of the commission of the offences and he denied
being a member of the Firm gang.
Formal
Admissions:
[8]
8] During the trial
formal admissions were made on behalf both accused in terms of
Section 220 formally admitting the crime scene
key and photograph
album, the identity and post-mortem reports in respect of both
deceased, that the bodies of the deceased had
not sustained any
further injuries after death until an autopsy was performed and that
the bullet fragments and projectiles removed
from the body of the
deceased were properly sealed.
Inspection
in Loco:
[9]
9]
An inspection in loco was conducted on 16 March 2020, after the
testimony of the second state witness, Dale Carelse, was concluded.
SUMMARIES OF
WITNESSES TESTIMONIES:
10]
The State called 12 witnesses to prove the charges against both
accused.  These witnesses were made up on a single eye
witness
to the incident, the son of the deceased, Dale Carelse, and his
mother, Mrs Rezone Carelse.  The remaining witnesses
were
professional witnesses in the form police officers inter alia
attending at the scene, the ballistics officer, arresting officer,

the officer and administrative clerk involved in the photo
identification parade and the investigating officer who conducted a

2017 incident in respect of which Carelse, had been a witness for the
State and the investigating officer of this matter.
11] Accused 1, Mr Ashwin
Willemse, testified in his own defence and called no further
witnesses.  Accused 2 elected not to
testify and did not call
any witnesses.
Warrant
Officer Wesley Lombard
:
[10]
12]
Lombard was the first witness for the State.  He testified that
he has been a member of the SAPS for 17 years.  He
is the
investigating officer assigned to the murders which transpired in F
Street in which three charges of murder as well as a
charge of
possession of an unlicensed firearm and unlawful possession of
ammunition had been subject to police investigation.
The matter
arose from the F incident which happened on the afternoon of
Saturday, 17 June 2017 in the Nooitgedacht area, adjacent
to Valhalla
Park.  The trial which was to be heard before the Western Cape
High Court and in respect of which Carelse was
a witness for the
State is linked to gang affiliations between the gang called “The
Firm Boys” and a faction of the
28 Gang (“the 28’s”).
The latter gang has a number of leaders, including the Stanfield
family who control
the 28’s in the Valhalla Park area.
Craig Stanfield is related to Ralph and Simon Stanfield.
Abraham Wilson
is affiliated to the 28’s which is known as “The
Firm” in the area and outside of prison.
13]
In the course of investigation he had obtained a statement from
Gregory Carelse, dated 18 June 2017.
[11]
In
the statement he stated that around 14h35 on 17 June 2017 he was
outside of his residence on the corners of T. and B. Street,

Nooitgedacht, Bishop Lavis, when a gold coloured VW Polo (“VW”)
drove pass and made a U-turn on further down the road
and drove back
in his direction.  There were three occupants inside the
vehicle.  He identified the person seated behind
the driver as
Abraham Wilson.  About 10 seconds later he heard gunshots.
With the aid of a male person driving another
vehicle, he pursued the
VW.  During pursuit, the driver of the VW jumped a red traffic
light and he called radio control for
assistance. After some time he
saw Wilson and two others walking close to E. Road when he called at
Wilson to come to him.
Wilson responded that he did nothing
wrong and the three ran away into different directions.  Carelse
pursued Wilson, caught
up with him and after a struggle Carelse
succeeded to place him under arrest. Wilson told him that it was the
other guy who had
fired the shots that he went into the Nyanga area
to buy a sheep head, but after a bodily search, it was apparent that
he had no
money on him.  He could not explain how he would have
managed to make the purchase.  Carelse returned him to the scene

at F Street and upon arriving there handed him over to Captain van
der Berg of the SAPS.  He gave a description of the other

suspect who had run away and stated that he had seen his face and
would be able to point him out.  The shooting was linked
to
gangster activities.
14]
Under
cross-examination
the witness testified that if one is a member of a gang in prison, it
is inevitable that such member belongs to a gang after release
from
prison.  He also testified that Carelse was a well-known figure
in the area and that he had worked closely with the police,
had
assisted with crime prevention and that Carelse arrested and handed
Wilson over to the police. Carelse’s apprehension
of Wilson was
also stated during the proceedings of the bail application of the
accused in the F incident.  A few months after
Wilson’s
arrest, three additional accused were arrested.  Wilson was the
first accused to be granted bail during 2017.
In response to a
question by the Court, he explained that Carelse was a uniformed law
enforcement officer and that Community Safety
members work with the
SAPS in the prevention of crime and conduct operations together.
[12]
He got to know Carelse in the course of assisting the police in
gang-related matters.
Dale
Carelse
:
[13]
15]
Dale testified that he had been born in the area, initially they
lived with his grandmother, but since the age of 8 they had
been
staying at the present residence on the corners of Tuna and Baracuda
Crescent, Nooitgedacht, Bishop Lavis.  He attended
primary
school close by in the Montana area followed by high school situate
in Valhalla Park known as Beauvallon Secondary.
His father was
employed by the City of Cape Town, Community Safety Department as a
chief security officer and also assisted as
a reservist in the police
form operating in the Bishop Lavis area for over 20 years.  His
father was well known in the community
for his service to advance the
safety of community members and the prevention of crime in the area.
16]
Dale indicated that he knew accused 1 by the nickname as “Krag”
from the Valhalla Park area which he had frequented
regularly, had
many friends there as well as a girlfriend.  Accused 1 had
occasion to approach for money whilst he was walking
in the area.
They were not friends however he had occasion to greet and talk with
accused 1.  He is familiar with the
area and the gangster
activities therein.  He testified that accused 1 was a member of
the gang which operated in the area
as The Firm.  As at the date
of the incident, he had known accused 1 for approximately 15 years.
He had no problems
with accused 1and he knew accused 1 to attend
Bishop Lavis High.
17]
He testified that he knew accused 2 as “Krag”, when they
had been hanging out and socialising with mutual friends
in the
area.  He explained that he had a friend in H. Street in
Valhalla Park, known as Ederees, who also knew and socialised
with
accused 2. He denied that he ever had occasion to converse with
accused 2 but that he was aware that accused 2 was also a
member of
The Firm.  This he understood from accused 2’s socializing
with the members of The Firm and being in control
of the Valhalla
Park area as the territory or safe-haven of that gang.  He
testified other members of the same gang as Thello,
Noah and Keaton
who was often in the company of accused 2.  Whilst he is not
familiar with all the members’ names, he
was familiar with
their faces.  Ralph Stanfield is the leader of The Firm, who
frequented the area and in particular the home
of Noah and alleyways
which was known for selling drugs.  He knew Abraham Wilson to
also be a member of The Firm.  Rival
members of a gang cannot
enter into the Valhalla Park area as this would exclusively be for
the entry and stay of gang members
only.  Ralph and Keaton were
related and referred to as cousins.  When asked whether he born
knowledge whether accused
1 and 2 used gangster lingo, he indicated
that he only has personal knowledge of accused 2 speaking in that
lingo when he was in
his presence at Ederees’ place in H.
Street.  He understood that accused 2 did not like him as he the
son of Carelse.
Whenever he would come into the company of
mutual friends where accused 2 was present, he would give the witness
an unwelcoming
facial expression and after accused 2 would leave,
then other friends would caution him about accused 2.
[14]
18]
He knew Mr. Prezano Holland, as “Junior”, whom he had
seen socializing with members of The Firm.  They had
attended
High School together and often played X-box at the same place, drank
and smoked together.
19]
At approximately 15h20 on 18 October 2018 he was at the home he
shared with his father. As his father passed him outside the
house,
he told him that he was going to Valhalla Park as he was informed of
an incident that happened there.  His father was
armed with his
.38 special revolver tucked in his waist holster.  He walked up
Barracuda Crescent, into the direction of Valhalla
Park.  Later
that same day, Dale’s sister left the home for work.  He
was in the doorway in the house, when approximately
two minutes later
he heard a gunshot followed by a short break and then a series of
further gunshots.  He jumped over the
wall after the first shot
as the close proximity of the sound cause him concern for the safety
of his sister.  As he crossed
over the wall, facing Barracuda
Crescent, he ran upwards on the left hand side of the road.  The
bus stop was diagonally across
the road.  As he advanced up the
road, he called on his sister to return to the house and he continued
running as the shots
were being fired.  She called upon him to
return, but he saw two persons firing shots on the opposite side of
the right.
The shooters were not stagnant, they came out of the
[…] avenue area to shoot the person on the opposite side or
the road.
20]
After accused 2 directed shots, he searched the person whom he shot
at.  Accused 1 thereafter also fiddled into the waist
of the
person and at some point looked back over his left shoulder to the
road.  The witness testified that accused 1 must
have heard him
shouting and looked back either to see if there was an oncoming car
so that he could cross back over the road and
run into the opposite
avenue.  The person whom had been shot was lying on his back
with him one hand on his stomach and the
other hand on the ground.
Initially he did not know it was his father but as he got closer, he
recognised the clothing as
that which his father had worn at the time
when he left the house earlier.  It was approximately between
17h00 and 18h00,
it was a hot and bright day.
[15]
It was before sunset, the sun was still up and shining bright.
He estimated that he was approximately 15 – 25 metres
away when
he identified the shooters as the two accused.  The shooters
approached and started shooting from the left hand
side of the road,
the same side where he was, and they moved in closer to the deceased
as they proceeded shooting at him.
They moved slowly whilst
busy shooting.
[16]
They
were about 5 to 6 metres apart,
[17]
but as they moved in towards the deceased, they came closer to each
other.  They had not worn anything over their faces.
There
were other people in the street, running into […] Avenue, some
into Valhalla Park and others into [...]weg.
[18]
During the time when the shots were being fired, he did not see
Holland in the vicinity.
[19]
21]
When he identified accused 1, he saw the side of his face.  When
accused 1 looked around he saw his face when he was busy
searching
the deceased and “
readying
himself to run away
”.
[20]
At that time he saw accused 1 was on the right hand side of the
deceased and accused 2 on the left-hand side.
Accused 2 stood
pointing the fire-arm at the victim as if ready to shoot, with his
arms stretched out holding the fire-arm clutching
it with both
hands.   Accused 1 was busy searching in the side-waist
area of the person on the ground whilst accused
2 stood pointing the
firearm in the direction of the victim.  As the back of accused
1 was facing the witness, he could not
see exactly what he was busy
doing with his hands, but when the person turned around, he saw it
was accused 1.  He estimated
that he looked at the face of
accused 1 for about 3 seconds as he turned around and then a further
3 or 4 seconds as he was running
across the road.
[21]
22]
He identified accused 2 as he was moving closer and whilst accused 2
was standing aiming at the deceased, at a distance of approximately
3
metres.  He saw accused 2 with a hand pistol but he did not
focus on the hands of accused 1 as he mostly focused on his
face.
Both accused 1 and 2 ran into […] Avenue, Valhalla Park. As he
was advancing towards the scene, he first recognised
the shooters and
then identified the person whom they were shooting at as being his
father.  He went over to his father, diagonally
crossing from
the left-hand side of the road, and bent down.  His father was
lying on his back, his right hand on his stomach,
left had on the
ground, with his head to the right hand side.  He checked his
pulse and shouted his name.  His father
was dead.  His
father’s firearm and holster was missing.
[22]
Dale testified that he did not see who took the firearm but his
cellphone was still in his pocket.
[23]
People were coming out of […] Avenue on the opposite side and
some moved over to the other side of [...]weg because
there was
another person lying there.  Shortly thereafter someone shouted
that: “
here
they come again”
,
[24]
people ran away again but he did not see the shooters returning.
No shots were fired again.
[25]
The person lying across the road was Holland, whom he knew as
Junior.   He crossed over to Holland after about
five
minutes from the time he kneeled down over his father’s body.
It seemed as if Holland was still breathing.
He did not have
any firearms or weapons near him.  The witness asked Holland who
had shot him, however, Holland did not respond.
23]
He did not speak with anyone at the scene.  He left shortly
before it became dark.  He only gave his first police
statement
on 9 November 2018, though the incident happened on 18 October 2018.
He explained that he was shocked and could
not trust anyone.
The Bishop Lavis police officers arrived about 20 minutes after the
shooting.  He was scared and feared
for his life.  To him
it was as if persons came the scene to check if they had accomplished
the mission.  To illustrate
this concern, he referred to a
person who was at the scene by the name of Mujahid whom was
frequently in the company of accused
2.  From the time of the
incident until he gave his first police statement, 18 days later, he
had spoken to four persons.
He spoke with his mother later in
the evening, but he did not tell her everything as she was crying as
was heartsore.  He
mentioned to her that he saw the persons
known to him as “Wena” and “Krag” shooting
his father and he told
her that his father was shot because he had
arrested Wilson in 2017.  He also spoke with his sister, his
uncle and a good
friend of his father by the name of Michael who is
also a police reservist.  He enquired from Michael if he could
trust one
Charl Kinnear (“Kinnear”) is he did not know
him at that time and that he had been investigating the matter.
He was scared after his father’s shooting and remained
indoors.  He eventually went with Kinnear to make a statement
at
the Bishop Lavis police station on 9 November 2017.  The
following day he attended a photo identification parade that was
held
at the same police station by Sergeant Henderson.  He identified
two persons at the photo parade, accused 1 and 2, as
Krag and
Wena.
[26]
He signed on
the photographs in the line-up which depicted accused 1 and 2.
24]
Under
cross-examination by counsel for accused 1
,
the witness testified that he was 27 years old at the time of the
incident.  His father carried a fire-arm daily.  It
was not
unusual to hear gunshots in the area especially during times of gang
wars.  The gang war at the time of the incident
started with the
shooting incident in F Way in 2017 where his father arrested Wilson.
People would generally run away when
they heard gunshots but when he
heard the first shot on the date in question he immediately ran
towards his sister by jumping over
the front wall of their house.
As he got over the wall he heard a series of further shots.  He
continued to run towards
the scene though he had managed to get his
sister to go back into the house as he had a feeling that he should
get to the place
of the shooting.  He saw the shooters coming
out of […] avenue towards the person they were shooting on the
opposite
corner.  When he testified in chief that accused 1 must
have heard him shouting, he was referring to him calling out at his

sister that he was coming now.
[27]
He discounted the possibility that his father had been shooting back
at the persons who shot at him.  The version of
accused 1 put to
him that he was not at school with the witness, that he does not know
the witness, that accused 1 was not at the
scene, that his parole
conditions only allow him to walk around between 10 and 12 during the
day and that accused 1 was at this
family home on that particularly
day as the sister of accused 1 would testify to.  The witness
maintained that accused 1 was
present at the scene as he had
testified in his evidence in chief.
25]
Under
cross-examination by counsel for accused 2
,
the witness testified that he does not make issues of things where he
can avoid it as one could easily get into trouble or hurt.
[28]
At the point where he got to his sister, he did not recognise the two
shooters.  He explained that he ran past his sister
towards the
shooting as it was a time of gang war and he had a feeling that the
person that they are shooting are from Bishop Lavis
or Nooitgedacht
area.
[29]
He
testified that accused 2 was dressed in a greyish tracksuit trousers
and a T-shirt with maroon and orange shades.
Whilst the
clothing description is not in the statement, he gave it to the
investigating officer, but he had not written it down
in the
statement.  He testified that when he stated in his statement
that he saw the faces of the accused, he meant that he
had identified
them as persons whom he knew and that he did not deem it necessary to
relay identifying facial features. He did
not see who shot Holland,
however, he had not seen anyone else with firearms at the time of the
shooting.  He saw accused
2 from the right side of his face, as
he was standing pointing with a firearm at the deceased.
[30]
He testified that he told the investigating officer how he saw
accused 2 from the side of his face, but it is not contained in
the
statement.  After Accused 1 had fiddled on deceased and before
both fled the scene, there was a “hiccup” and
that he saw
the face of accused 2 for about 2 or 3 seconds.
[31]
He was probed that this is a very fleeting period. The record at page
144, lines 15 to 24 reads:
“
COUNSEL:
You will agree, Sir, that two or three seconds is not a long
time.
WITNESS:
Yes, but if you know someone very well, then it’s a long time.
COUNSEL:
But in that same three to four seconds, you still had to take
at
the same time the opportunity who is searching your father.
WITNESS:
They are in the same distance, I could see both persons at
the
same. It’s not like the other one was on that side and the
other one was on the other side of the road.
26]
It was put to the witness that he did not include in his statement
that he looked at accused 2’s face for three to four
seconds,
to which the witness replied:
[32]
“
I
answered the questions according to how he asked me the
questions”
27]
In response a statement put to the witness by counsel for accused 2
that he had waited 18 days to implicate accused 2 instead
of making a
statement immediately, the witness replied that he was afraid, that
he feared for his life and at the time he did not
know who to trust.
He denied that he was shown photos of the accused before the
identification parade or that he provided
photos of the accused.
When the accused fled after the shooting, they ran over the road to
[…] avenue, passing the
line his line of vision during which
time he had further opportunity to observe them.  He testified
further that he saw accused
2 daily, would frequent the same places
and he recognised him at the scene.  The instructions of accused
2 was that he is
not a member of the firm and that he would testify
that he was not at the crime scene, that he would also testify that
he was at
home at the time of the incident to which the witness
responded:
[33]
“
Definitely
at the crime scene.  Definitely at the crime scene, M’Lady
and he was definitely one of the shooters, M’Lady.”
28]
Under
re-examination
the witness testified that he knows the sister
of accused 1 and that she had lived in the backyard of his residence
including at
the time of the incident.
29]
In response to a question by the Court as to the exact point at which
he identified that the person on the ground is his father,
he
testified that immediately after recognising the accused, he noticed
that the takkies, jeans and shirt of the person on the
ground was
that of his father and as he came closer he saw his father’s
face.  At this time the accused were still in
the process of
moving away.  They started moving after he had observed and
recognised them.  In explanation to running
towards the shooting
which was dangerous, the record reads:
[34]
“
COURT:
Would you say this was quite a brave effort on your part as you
described?
WITNESS:
Yes, I’m not claiming to be Superman now, but I just felt that
I needed to go.
COURT: So when you
approached…
WITNESS: Without
thinking as to what can happen.
COURT: So when you
approached them and you saw them, were you scared?
WITNESS:
You don’t think straight at the time.  Your adrenalin
rushes or you blood shoots up.  You just soldier
on, M’Lady.
COURT:
Are you satisfied then that in this time and under this amount of
pressure and adrenalin, as you’ve just indicated,
that your
observations were reliable?
WITNESS: Yes….I
was close enough to see everything, M’Lady.”
30]
He further replied to question by the Court whether he saw another
person lying on the opposite side of the road, at the time
of the
shooting. He replied:
[35]
“
No….because
I wasn’t actually, like, looking at that side of the road.”
He testified that it was only when he got closer to his father that
he noticed that there was another person that was shot
and he
“
wondered
why would Junior”
be shot as well or “
was
Junior also shot”.
[36]
He
also indicated to the Court that that he is not good with estimation
of distances.
[37]
Warrant
Officer Ricardo James:
31]
James has been in the SAPS for 28 years.  He attended the crime
scene as a crime scene investigator around 19h50 on the
date of the
incident.  He took 44 photographs of cartridges and bullet
points found at the scene.  He took the Court
through the photo
album
[38]
and he prepared a
sketch plan which he drafted at the scene.
[39]
He also took a video of the crime scene which was screened in
Court.
[40]
Cartridges
were found in the street and bullets were found in various locations
at the house on the corner where the shooting
took place, such as the
stoep, one penetrated into a cupboard through a window and the other
in the bedroom.  He testified
that they used lighting to light
up the scene during their investigation.  He could not say if
the position of the cartridges
as he had found it on the scene had
been as it was ejected from the fire-arms as he as it would be
possible for the shooters to
disturb the cartridge cases if they were
moving. His role was to collect the evidence presence at the
scene.
[41]
32]
Under
cross-examination
he testified that when he arrived at the scene,
the area was cordoned off already and no persons were allowed on the
crime scene.
By the time his department is called out, the
crime scene and evidence would be preserved by the local crime scene
record centres,
in this case it was the Bellville LCRC.
Sergeant
Wade Henderson:
33]
Henderson is a sergeant in the SAPS with 16 years’ experience.
He conducted a photo identification parade at the
request of the
investigating officer, Col Kinnear.  The parade was conducted at
Bishop Lavis police station on 10 November
2018 with the presence and
assistance of two colleagues, Constable Tofile who assisted by taking
the witness away from the parade
and Sergeant Williams who guarded
the witness and brought him into the parade. There was also Constable
Williams who is affiliated
to the Bellville LCRC who captured the
proceedings on video camera.  The video footage was screened in
Court.  He indicated
to the witness that the photos shown to him
may or may not depict persons who were involved in the offences.
He was not involved
in the investigation of the matter nor did he
know any of the deceased. He was informed of the crime that was
committed when he
was asked to conduct the identification parade.
When he opened the envelope only the photos were contained in it and

he requested from Constable Tofile to get the required form from the
investigating officer who was attending in the police cells.

There were no other persons present during the parade.
34]
Under cross
examination
the Henderson testified that when he arrived at the
parade, the Dale was already present.  He testified that whilst
it is
an arguable point that the presence of the investing office on
the premises at the time of the parade could result in a
contamination
of the parade he testified in re-examination that from
his observation there did not appear anything irregular in the course
of
the parade nor from the presence of the investigating officer at
the premises.
Dr
Bjorn Swigelaar:
35] Dr. Swigelaar
conducted the post-mortem examination on both deceased.  He
explained that the number of times that someone
has been shot is not
merely as easy as counting all the wounds on the body as one
projectile could perforate the body twice.
Furthermore,
projectiles can also break up during the shooting action causing
fragments of the projectile to injure the body.
Bearing that in
mind, the body of the Carelse was shot 10 times with 6 wounds to the
face and head, a total of 16 bullet wounds.
Bullets which
enters through the body can also cause a wound to the face and head
as it may pass through another part of the body.
Holland had a single
shot to the abdomen which was fatal.
Mr.
Andrew Johannes:
36]
Johannes is an administrative clerk based at Manenberg police station
and has been so employed for 17 years.  He attended
to the
compiling of the photos in respect of the photo identification
parade.  He explained the procedure employed when tasked
with a
photo line-up.  When he obtains the photos of the suspects then
he draws photos from a KRIM system where he would get
photos with
details of other persons which he uses in the compilation.   He
would not know the suspects.  It is
usually provided to by him
the anti-gang unit. The list of names and addresses of possible
suspects as compiled by this witness
in the line-up was handed up as
Exhibit U.
37]
Under cross
examination by counsel for accused 1
he testified that for every one suspect he would take five or seven
other suspects to compile the line-up.  He would use pictures
of
persons that looks similar and the background must be clear ideally
such as a clear wall.  The similarity need not be perfect
but it
must be more or less the same including skin tone.  He
maintained that the criteria used in the compilation of the
line-up
of accused 1 was correct however if some photos appear lighter than
others it is most likely that it was captured with
a flash which
could cause over exposure.
38]
Under cross examination by counsel for accused 2
he explained
that photos are obtained from his system in respect of other persons
whom had been previously arrested, however, one
could also have been
a complainant.  However, a photo can be obtained in respect of
anyone.  Once the compilation is
done, he leaves it for the
collection of the investigating officer.  This process does not
involve it being formally sealed.
According to his statement he
handed the compiled photographs to the investigating officer on 9
November 2018.
Warrant
Officer Sibongiseni Sentumetse:
39] Sentumetse testified
as the ballistics expert, employed at the ballistics section of the
SAPS Forensic Science Laboratory in
Plattekloof.  Her statement
in terms of Section 212(4)(a) and 8(a) of the CPA was handed up as
Exhibit V.  From the statement
of her colleague, Ms. Kowa, two 9
mm firearms were used in the shooting as 7 of the 14 retrieved
cartridges were each from two
different firearms.  A revolver
was also used in the commission of the offence so determined by the
bullets retrieved which
was either a .38 or a 357 revolver in that
the bullet of both types of revolvers are the same in weight and
diameter.  She
was able to determine from the layout of the
cartridges that the shooters were moving either to or from the
position of the deceased,
Mr. Carelse.   Only the 9mm
pistols ejects cartridges, as revolvers retain the cartridges.
Sergeant
Raymond Plaatjies & Constable Nathaniel Sass:
40]
Plaatjies attended at the scene after he started nightshift and
performed parade.  His shift started at 17h45.  Upon

arrival at the scene there were about 10 police officers and he noted
two lifeless bodies lying on the sides of the road across
from each
other.  The bodies were already covered.  He took over from
Constable Hartzenberg and called upon the ambulance,
forensic
photographers and the mortuary.  Members of the public were
behind the cordoned off area.  He has been working
in the area
for approximately 13 years and it is known for crime, gang violence
and robberies.
41] Sass is a uniformed
member of the SAPS, doing patrol work in Bonteheuwel sector.  He
attended at the scene shortly after
he started nightshift with the
previous witness.  He arrested accused 1 on the 8 November 2018
in a house situate at […]
M. Street, Valhalla Park which was
not his place of residence.  He acted upon the instruction of
Warrant Officer Julius who
requested of him to attend at the said
house to arrest a suspect in a murder case.  The property is
known for gang activities,
drugs and guns and he had on a number of
previous occasions conducted searches at that residence.  The
gang affiliated to
the home where he arrested accused 1 was known as
The Firm.  Accused 1 was with two other males inside the
property and no
firearms or drugs were found on that date.
Warrant Officer Julius was present with them when they effected

the arrest.
Mrs.
Rezone Carelse:
42]
Mrs. Carelse is the widow of deceased, Gregory Carelse, and the
mother of the second state witness, Dale Carelse.  She
is
employed as a theatre porter at Netcare, N1 City Hospital, Parow.
Her daughter tried to contact her on the day of the
incident but she
was busy in theatre.  She learnt of the shooting when her
daughter and a relative fetch her from work and
told her that her
husband had been shot and that he is deceased.  They took her to
the scene where her husband’s body
was.  The area was
cordoned off and she was allowed on the scene escorted by the
pastor.  She did not disturb anything
at the scene, her
husband’s body was covered after her arrival and she made a
statement at her home to the police around
23h30 that evening.
She testified that she was devastated by the news that her husband
had been shot and traumatized by the
events and having attended to
the scene where her husband’s body was lying.  Later that
evening she was hysterical and
in the months which followed she
lapsed into a depressive state. Dale spoke with her subsequent to the
shooting, though she was
unsure if it was on the evening of the
incident or on the day following and shared with her that he saw the
shooters and that he
knew them by their nicknames, Wena and Krag.
She did not know who these persons were other than previously seeing
them at
the inspection in loco during the course of this trial.
She explained that she did not go to the police as she was too
emotional
and does not like to be involved in these type of matters.
43]
Under
cross-examination
she indicated that she arrived at the scene shortly after her shift
finished at 18h30.    She estimate that her

conversation with Dale was the following day as it was at a time when
they were alone and on the evening of the incident it was
very
congested with people at their home, hence it was most likely on the
following day when the home was quieter.  She did
not tell the
police what her son had shared with her about the incident and in
particular the names of the persons who shot her
husband.
[42]
When probed why she had not shared the information to the police she
explained that she does not trust people and that her husband
always
told her not to trust people especially those at Bishop Lavis police
station.  She mentioned it to the investigating
officer when she
saw him when he initially came to investigate the matter.  She
did not see yellow tape cordoning off the
scene however there were no
persons on the crime scene as they were kept at about a 5 metre
distance.
Under
re-examination
she stated that she never shared the information received from her
son in a formal or official manner in a statement form.
Captain Althea
Nomdoe Jaftha:
44]
Jaftha is a captain in the South African Police Service with the
anti-gang unit in Faure.  She is in the service of the
SAPS for
28 years and attended the scene around 19h15 that day.  Upon her
arrival the area was cordoned off with majority
of the police
officers were from Bishop Lavis police station.  Her duties
entail attending to gang-related crime scene, murders
and shootings.
She also provides assistance and backup to members in respect of
crime scene management and control.
At around 20h30 that
evening and after they left the scene they attended at two houses to
follow up on information that was received
at the scene, in
particular suspects who were named as Waylin Abdullah (alias Wena)
and Ashwin Willemse.  They searched at
[…] H. Street in
Valhalla Park, however, only an elderly female was present.  The
suspect was not present.  Whilst
at the premises she got
information which they followed up by attending at a squatter camp in
[…] Avenue, Valhalla Park.
As they did not have a shack
or house number the team consisting of herself with 16 members just
walked in the area and interviewed
people.  They followed up
with a search for Ashwin Willemse at […] J. Street, Valhalla
Park.  They did not find
the suspect present.  She was not
involved with subsequent arrests of the suspects, however, they made
subsequent searches
over the following two weeks for the suspects at
the said addresses and in and around the Bishop Lavis area.  The
persons
whom she interviewed at the scene did not wish to get
involved or make a statement and spoke to her in confidence.
45]
Under cross
examination by counsel for accused 1
she
explained the general police procedure when securing a crime scene.
The first responding officer must preserve the evidence
on the scene
and identify marking as to where the crime scene will be cordoned
off, followed by relevant role players who would
be called upon via
radio control to attend at the scene.  Cordoning off is done
with tape and in areas where it is difficult
to tape off then vehicle
or uniformed members facilitates in doing so.  She was confident
that the area was cordoned off with
tape, though the cordoned off
area was subsequently broadened off into A. Road with police vehicles
parked on the border of the
crime scene referred to as being within
the perimeter of the crime scene but not on the crime scene.
46]
Under cross
examination by counsel for accused 2
the witness testified that
she indicated that they had attended at the respective premises
looking for suspects and not to search
the house for items, hence
they did not require a search warrant.  At the premises they
sought the consent of the occupant
to enter the premises.  When
probed as to why she gave a statement only recently whilst her
testimony is that she had done
a number of searches for the accused
immediate following the incident and in the days thereafter, she
explained that it is procedure
that only the arresting officer makes
a statement.  She was never asked to give a statement until two
weeks prior to her date
of testimony.  She is not familiar with
either of the accused.
Colonel
Charl Kinnear:
47]
The last witness testifying for the State was the investigating
officer, Col Kinnear.  He has been in the police service
for 31
years and had lived his entire life in the area.  He also lives
very close to the scene of the incident.  He was
the first
person from his unit (the anti-gang unit) on the scene, arriving
approximately half an hour after the shooting.
Officers from
the Bishop Lavis police station were in attendance upon his
arrival.   People at the scene refused to give
statements
as to what they saw during the shooting.  He is familiar with
the gangsterism in the area and testified that the
predominant ruling
gang is the 28’s under the leadership of Ralph Stanfield.
There are two factions of the 28’s
within the Nooitgedacht
area, whose respective control are bordered at F Street.  His
role at the crime scene was to preserve
the scene and any exhibits.
Whilst he obtained a statement from Dale Carelse 18 days after the
incident, he explained that
he had contact with him after he left the
scene that evening.  Kinnear mostly communicated with Dale via
whatsapp that he
needed a statement from him, but Dale was scared.
At some state he engaged with Dale’s father’s brother and
explained
to him that he required a statement from Dale.  When
the accused were implicated, he was not familiar with them or by
their
nicknames.  He arranged for a photo line-up sourcing
photos of the suspects, Krag and Wena, as there were crime
intelligence
at Bishop Lavis SAPS that they were the suspects, with
their names and nicknames known.  Together with members who had
attended
at the scene, who were from Manenberg SAPS, the photos of
the two suspects were left for the management information officer at
that police station to look for suitable photos to compile a photo
album.  Sergeant van der Horst handed the photos to Mr.

Johannes, a clerk at the police station.  They returned later in
the afternoon to collect the compiled photographs for the
photo
parade.  He had no further contact with Johannes.
48]
He arranged for Sergeant Henderson to conduct the photo parade.
He sealed the envelope and placed it into a forensic bag.
The
first time that he looked at the photos was after Sergeant Henderson
gave it to him which as after the parade and he placed
it in the case
docket.  He was interviewing a prisoner in the cells when he was
asked by an officer sent by Henderson to obtain
the photo
identification parade form which he had prepared but it was still in
his laptop bag.  Dale was not collected for
the parade and when
he enquired as to where he is, Dale said that he would only attend if
Kinnear fetches him.  He has no
reason to suspect anyone of
influencing Dale to have pointed out the two accused in the parade as
the perpetrators.  Accused
1 was arrested a day prior to Dale
making his statement on 9 November 2018.  Kinnear was not
involved in the arrests of either
of the accused.  The first
time he saw accused 1 was when he interviewed and charged him at
10h05 on 10 November 2018.
He was not in the province when
accused 2 was arrested and charged.  The first saw accused 2
after his third court appearance.
49]
None of the 3 fire-arms (revolver and the two 9mm pistols) were
retrieved after the shooting however the one 9mm pistol was
used in
the shooting was linked to 16 other criminal cases, 14 of which are
crimes in the Bishop Lavis area.
[43]
50]
The addresses provided in the docket by accused 1 and 2 is […]
J. Street and […] H. Street respectively, both
homes situate
in Valhalla Park.  In the matter involving the shooting in F
Street in 2017, only the accused known as Craig
Stanfield is
remaining.  A witness in that matter was also killed in Valhalla
Park during March.  Carelse was also a
witness in that matter,
who been killed in the shooting of 18 October 2018.
51]
Under
cross examination by counsel for accused 1
Kinnear confirmed that the scene was cordoned off with tape and
detailed how the tape was affixed to the surrounding areas.
[44]
The members of the community present at the scene would not give
statements out of fear for their lives or being killed in

retaliation.
[45]
When he
initially spoke with Dale, he was reluctant as he was scared that he
was also going to be killed and that he lives
in the area, hence the
passage of time.  However, with the support of his uncle, Dale
gave a statement.  Accused 1 was
arrested after information was
received from crime intelligence.
52]
Under cross
examination by counsel for accused 2
Kinnear testified that he
writes down everything provided by a witness who deposes to a
statement.  He confirmed that there
was no language or cultural
barrier between himself and Dale and that he already understood at
the time that he would be the only
eye witness to the crime.
The record reads:
“
KINNEAR:
M’Lady, everything that is in the statement is what he has told
me.
COUNSEL: …can
the Court accept whatever is not in his statement which he says
should have been, it couldn’t have been
mentioned to you,
otherwise you would have written it down, correct?
KINNEAR: That’s
correct, yes, M’Lady.”
53]
Counsel probed the witness why he did not set out the description of
the clothing of accused 2.  Kinnear replied that if
there is no
description of clothing then Dale had not given it to him.  He
also agreed with counsel that he would have included
in the statement
any details which Dale would have given him regarding the incident
and how the scene had unfolded.  After
he read the statement to
Dale, he was satisfied with the contents and did not indicate that
details were omitted.  He denied
that he spoke with Dale when he
fetched him for the purposes of attending to the photo identification
parade with Henderson.
He had been interviewing accused 1 when
the identification parade as conducted.  He took a statement
from Dale a day prior
to the parade and one immediately after the
parade.  The second statement dealt with the identification
parade itself.
[46]
54]
In answer to a question by Court: “
Do
you recall what questions you asked him to elicit the answer?”
Kinnear
indicated that he could not remember the questions which he had put
to Dale, but that as far as the accused 2’s clothing
is
concerned it was only described as dark in colour.  Kinnear also
conceded that if Dale specified how he had come to recognise
one of
the shooters as accused 2, he would have recorded it in the
statement.  Kinnear replied to a series of similar questions
by
counsel as follows:
[47]
“
M’Lady,
I’m going to say again.  If it’s not in the
statement, then he didn’t tell me in so many words…”
55]
Kinnear testified that he is absolutely sure that he had never shown
photos to Dale prior to the parade of the two accused and
dismissed
any suggestion that he had done so.
56]
Under
re-examination
Kinnear testified as to the process he employs when taking down a
statement for a witness.  The record reads:
[48]
“
You
will tell me what happened and then afterwards I’ll try and
draft the statement.”
Kinnear further explained
that he would not tailor his questions as would be in Court and that
he did not go into detail as he is
familiar with the area and had
frequented it since he was young.  He was in a different
position to that of the Court, who
was required to familiarise itself
with the scene by way of an inspection in loco.
STATE
CASE CLOSED
DEFENCE CASE:
Mr.
Ashwin Willemse – Accused 1
:
57]
Ashwin Willemse testified that he on the day of the incident he was
at his home situate situate at […] J. Street, Valhalla
Park.
He had been cleaning the yard in the morning, played video games at
around lunch time, listened to music in his room
in the afternoon and
took a nap.  He woke up around 2 or 3 o’clock in the
morning when he went to the toilet.
He returned to bed
thereafter.  He was at home the entire day as he is under
correctional supervision and woke up at around
10 or 11 o’clock
the following morning.  The first time that he learnt of this
incident where Carelse had been shot
was when he was arrested by
Constable Julius about three weeks later on 8 November 2018.  As
he is under correctional supervision,
he never leaves his house, and
had not heard of this incident from members of the community.
58]
He denied that police had been attending at his home to look for him
as their dogs would have barked had anyone been at his
home.  He
was apprehended in M. Street, Valhalla Park.  The arresting
officer made use of a photo on his cellphone to
assist him in making
the arrest.  He abandoned an application for bail as sentence in
respect of which he had been released
on parole had come into effect
which he was required to serve.  He denied knowing Carelse or
knowing accused 2 prior to this
matter or that he knew either Dale or
accused 2 from high school.  He furthermore denied being
involved in the shooting incident
involving Carelse and Holland.
59]
Under cross examination he testified that he was 31 years old and
that he was released from prison on parole on 1 October 2018.

He confirmed that he was known by the nickname Krag.  Whilst he
denied knowing Dale he could not explain how it is that Dale
knew at
the time of making his statement on 9 November 2018 that he had
recently been released from prison or that he knew him
by his
nickname.
[49]
When it
was put to him that Dale seems to know however know him, he testified
that his sister, Vanessa Lombard, and her daughters
had been staying
at the home of Carelse and his family.  He had however never
been there.  This could possibly be how
Dale had known of his
recent release from prison.  He heard from them that they were
staying by someone known as Kallie.
He did not see Vanessa when
he was released from prison since there is tension between his two
sisters.  Vanessa had never
been to visit at the home where he
had been staying with his eldest sister, Petulia, although Vanessa’s
daughter who also
stayed at the Carelse residence would visit at his
home.  He heard from Vanessa’s daughter that they were
staying at
Carelse’s house, although he did not know who
Carelse was.   He explained that he would not visit Vanessa
as he
was on parole and was not allowed to visit around.  He
could only attend to work if he had employment.  He explained
that when he said in his evidence in chief that he did not know who
Carelse “really” was he in fact do not know Carelse
at
all.  He had not known of the shooting of the 18
th
of October 2018 until after his arrest, when the investigating
officer told him that the charges includes the murder of Carelse.

He did not know what time the shooting happened but he said he was at
home at the time of the shooting.  He could not explain
how it
was that he know to have been home at the time, whilst not knowing
when in fact the shooting had happened.
60]
He testified that he had 2 cellphones after his release from prison
but that it did not have sim cards or cell numbers as he
only used it
for listening to music.  He only made use of memory cards in the
phone so that he could listen to music.
The only reason why he
had been at […] M. Street, Valhalla Park when he was arrested
was because he asked John for a cellphone.
When it was put to
him that he already had two cellphones, he testified that his phone
had difficulties when speaking on it.
[50]
61]
The tattoos that he has on his body brandishing the markings of the
28 Gang is only because he had previously been in prison
and had to
belong to a gang for protection.  The stars tattooed on his
shoulders had been made by him and are not indicative
of any rank
that he holds in the gang.  Stars on tattooed on the shoulder
would mean that you hold the rank of a captain but
his tattoos are
fake.  He bears no knowledge of the drug dens which Dale had
testified of and does not know who is Ralph or
Simon Stanfield.
He knows of no 28 gang members who lives in the area whom had been in
prison with him.  He also did
not know Holland.
[51]
He born no knowledge of the F incident and does not know
Abraham Wilson.  He explained that when the witness or the
State
testified that the Valhalla Park area is the territory of the 28’s,
they were not challenged about it by his legal
representative as he
does not know of the gang politics in the area.  He does not
know accused 2 and though he had seen the
28 gang tattoos on accused
2, he did not ask him regarding his affiliation with the gang.
62]
He testified that his sister, Petulia Petersen and her daughter
Tamsyn Petersen, were at home with him on the day of the incident
and
would confirm that he was at home.  When pushed to explain why
he raised the alibi only during his evidence in chief and
not
earlier, he said that he had told his legal representative that his
sister was at home with him on the day.
[52]
He maintained that she is his alibi witness and would be able to
confirm that he was at home at the time of the shooting.
Though
he stated that he was asleep at the time, he struggled to explain how
it is that he would know that his sister was at home
to verify that
he was at home.  He was of the view that if she had gone out
whilst he was sleeping that afternoon, she would
have woken him
up.
[53]
63] Accused 2 did not
call any further witnesses after his testimony and proceed to close
his case.
Accused
2:
64] Accused elected not
to testify in his defence and called no witnesses.  He closed
his case.
DISCUSSION:
INSPECTION IN
LOCO AND APPLICATION TO RECALL STATE WITNESS:
65]
An inspection in loco
[54]
was
conducted at the crime scene on March 2020.  Leave was sought on
17 March 2020 by Mr. Botman, counsel as at that time
for accused 2,
to withdraw on the basis that his mandate had been terminated and
that the services of a new counsel had been obtained
by him.  In
these circumstances and for the reasons submitted, leave was
accordingly granted and new counsel came on record
for accused 2.
[55]
A formal application
[56]
was
thereafter brought to have the state witness, Dale Gregory Carelse,
recalled as a witness and that further cross-examination
be allowed
in respect of his previously presented evidence.  The purpose
essentially for recalling the witness was to test
the state of mind
of the witness at the time of the incident and the reasons for only
furnishing a statement to the police, implicating
accused 2, 18 days
later.  The conduct of the inspection in loco was not
challenged.  Accused 2 wished to recall the
witness as he had
new counsel and sought to have further instructions put to the
witness.  The grounds for the application
was traversed during
submissions and ventilated by questions from the Court.
66]
The grounds upon which the application was brought and as set out in
the application, were that he sought the state witness
to be further
cross examined as to opportunity to identify the perpetrator at the
time of the shooting, including his degree of
previous knowledge of
accused 2, whether the short period of time had been sufficient to
have made an identification that one of
the shooters were accused 2,
that issues such as accused 2 speaking in “gangster language”
had not been adequately
traversed as well as the state witness’
evidence that he had heard accused 2 had attempted to flee from the
police.
The application to recall the witness was also on the
ground that the state witness’ pointing out at the inspection
in loco
had not been placed on record and that such evidence by Mr.
Dale Carelse needed to be testified to and subjected to
cross-examination.
The application was dismissed, with reasons
to follow in the judgment.
[57]
67]
In terms of Section 35(3)(i) of our Constitution every accused person
has the right to a fair trial, which includes the right
to adduce and
challenge evidence.  The Court exercised its discretion to
conduct an inspection in loco at the scene in order
to gain an
orientation and visual of the scene and in particular to the
testimonies given during trial and the further record of
proceedings,
including the formal admissions insofar as it related to the scene.
No evidence is led at an inspection in loco.
The product of the
inspection in loco is real evidence.  The observations so made
at the inspection is for the presiding officer
as the Court to
advance the comprehension of the testimonies without adding anything
to the evidence already adduced viva voce
by the witness. The witness
was requested by respective counsel as well as the Court, in the
presence of both the accused, to point
out various points at the
scene or illustrate certain actions
only
in accordance with the evidence he had given during his testimony in
Court.  The recorded observations so made were in the
course of
ventilation by the counsel and the Court and same were recorded in
the presence of counsel for the state and defence.
68] In dismissing the
application, the Court was satisfied that the issues which were
sought to be addressed or re-addressed were
in fact already traversed
in the testimony of the state witness, leaving it for the Court to
determine the credibility and reliability
of the evidence so given.
Furthermore no actions, deeds or beacons were pointed out or
illustrate during the inspection in
loco which required to be placed
under oath through further testimony by the state witness and which
would thus have been available
to be subjected to cross-examination.
In weighing up various applicable fundamental principles and
constitutional rights,
including trial fairness and the rights of the
accused, whether the accused stood to be prejudiced, the Court was
satisfied that
the interests of justice did not warrant the recalling
of the state witness.
APPLICABLE
LEGAL PRINCIPLES:
Cautionary rule in
respect of single witness and identification:
69]
Dale Carelse was the only eye witness to the commission of the
offences and as such he is not only a single witness but also
gave
identification evidence.  The Court is therefore required to
consider his evidence with caution in both respects.
70] The thrust of the
matter turns on the issue of identification.  Much has been said
by our courts in that regard over the
years but perhaps the most oft
cited passage is that of Holmes JA in
S v Mthethwa
1972 (3) SA
766
(A) at 768:
“
Because
of the fallibility of human observation, evidence of identification
is approached by the courts with some caution.
It is not enough
for the identifying witness to be honest, the reliability of his
observation must also be tested.  This depends
on various
factors such as lighting, visibility and eyesight, the proximity of
the witness, his opportunity for observation, both
as to time and
situation, the extent of his prior knowledge of the accused, the
mobility of the scene, corroboration, suggestibility,
the accused’s
face, voice, build, gait and dress, the result of identification
parades, if any and of course, the evidence
by or on behalf of the
accused. The list is not exhaustive.  These factors or such of
them as are applicable in a particular
case are not individually
decisive, but must be weighed up one against the other, in the light
of the totality of the evidence
and the probabilities…”
71] As a single witness
the Court must also be satisfied that his evidence was satisfactory
and reliable in all material respects.
In terms of section 208
of the CPA an accused can be convicted of any offence on the single
evidence of any competent witness.
In
S v Sauls and Ors
1981 (3) SA 172
(A)
at 180 E – G the Court referred to
the cautionary rule and stated as follows:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
remarks
of Rumpff JA in S v Webber…) The trial judge will weigh his
evidence, will consider its merits and demerits and
having done so,
will decide whether, despite the fact that there are shortcomings or
defects or contradictions in the testimony,
he is satisfied that the
truth has been told.”
72] It is trite that the
exercise of caution must not be allowed to displace the exercise of
common sense.  The evidence of
Dale Carelse must be found to be
clear and satisfactory in every material respect before this Court
can place reliance thereon.
Counsel for accused 2 directed much
of the cross-examination of both Dale Carelse as well as Col Kinnear
relating to aspects which
was argued to be crucial aspects not
included in the statement which however was testified to by witness
in his evidence before
the Court.  It was argued that these
missing pieces in the statement amounted not to contradictions but
rather simply not
having been stated by the witness at the time when
he made the statement, suggesting that he had invented it during his
testimony
in Court which ought to discredit the reliability of the
evidence.  I consider this aspect below.
Evidence
of witness in respect of written statement and viva voce evidence:
73] In
S v
Mafaladiso en Andere
2003 (1) SACR 583
at 593E – 594H
the Court considered the material difference between the statement of
the witness and the testimony of the
witness.  The Court held:
“
The
juridicial approach to contradictions between two witnesses and
contradictions between the versions of the same witness (such
as,
iner lia, beween her or his viva cove evidence and a previous
statement) is, in principle (even if not in degree), identical.

Indeed in neither case is the aim to prove which of the versions is
correct, but to satisfy oneself that the witness could err,
either
because of a defective recollection or because of dishonesty.
The mere fact that it is evident that there are self-contradictions

must be approached with caution by a court.  Firstly, it must be
carefully determined what the witnesses actually meant to
say on each
occasion, in order to determine whether there is an actual
contradiction and is precise nature thereof.  In this
regard the
adjudicator of fact must keep in mind that a previous statement is
not taken down by means of cross examination, that
there may be
language and cultural differences between the witness and the person
taking down the statement which can stand in
the way of what
precisely was meant, and that the person giving the statement is
selfdom, in ever, asked by the police office to
explain their
statement in detail.  Secondly, it must be kept in mind that not
every error by a witness and not every contradiction
or deviation
affects the credibility of a witness.  Non-material deviations
are not necessarily relevant.  Thirdly, the
contradictory
versions must be considered and evaluated on a holistic basis.
The circumstances under which the versions were
made, the proven
reasons for the contradictions, the actual effect of the
contradictions with regard to the reliability and credibility
of the
witness, the question whether the witness was given a sufficient
opportunity to explain the contradictions – and the
quality of
the explanations – and the connection between the
contradictions and the rest of the witness; evidence, amongst
other
factor, to be taken into consideration and weighed up.  Lastly,
there is the final task of the trial Judge, namely to
weigh up the
previous statement against the viva voce evidence, to consider all
the evidence and to decide whether it is reliable
or not and to
decide whether it is reliable or not and to decide whether the truth
has been told despite any shortcomings.”
74]
The overwhelming feature of the statement of Dale Carelse,
implicating accused 1 and 2, as the shooters on the fateful day was

that he knew both the accused.  “
Ek
ken hulle lankal”
.
[58]
He recognised the shooters prior to realising that the person shot on
the ground is his father.  In terms of his evidence
he had a
fleeting few seconds to see both accused.  The estimate distance
from the time he picked up speed, estimated as 15
– 20 metres,
which was measured at the inspection in loco as 39 metres, was
covered by him in just around 5 seconds.
During this time he
saw the face of accused 1 as he turned to look back before crossing
around, crouched over next to the deceased
as well as the face of
accused 2 for a period of around 2 – 3 seconds.  Dale
conceded that the period for recognising
the faces of the shooters as
the persons whom he knew as Krag and Wena was very fleetingly in
circumstances where everything happened
in moments, he was running as
he approached a horrific scene.  However, notwithstanding the
concession, he reiterated that
the momentary opportunity to recognise
the shooters as the accused was enough in circumstances where he had
known their faces for
a considerable period of years.
75]
Whilst cross examination of both Dale and the Kinnear regarding the
taking down of the statement eliminated the language and
cultural
issues as barriers to properly gauging Dale’s version in
specific detail, it is a prominent feature of the investigating

officer that he was
au
fait
with the area
and could without more understand and visualise the setup of the area
of the incident that he need not get clarification
on that.  It
was also a significant feature that to the eye witness, the shooters
were not strangers. His focus was on the
fact that he had positively
identified who they were, he knew their nicknames and other details
relating to them.  Kinnear
as the interviewer was not focused on
the distinguishing features of the shooters, for the eye witness was
self-assured as to who
they were and recognised them from prior
knowledge or history.  It is human nature that when one
recognises someone from prior
knowledge, identification recedes into
the background.  This fact would have resonated upon both the
interviewer and the interviewee.
Details as to distinguishing
and facial features are generally resorted to when the interviewee
has nothing else to go by in describing
the assailant. Similarly In
recollecting what he or she had looked like in circumstances where
the interviewee knew nothing else
of the actual identity of the
person.    It was a reverberating feature of
familiarity on the part of Dale that
he knew exactly who the shooters
were as well as the orientation of the scene and this clearly
permeated the interview between
Dale and Kinnear.  The police
statement is not a transcript of the interview between the two: eye
witness and investigating
officer.  Kinnear stated that he would
try to tell the story as Dale had told him.  In answer as to why
certain details
are provided which Dale had not mentioned in his
statement, his answer was in some respects that he did share that
with the investigating
officer and he also testified that he answered
questions as it was put to him.  Kinnear testified that he did
not pose questions
to Dale as would be the process in Court.
76]
The aspects which were set out in the viva voce evidence of Dale
Carelse in my view are an elaboration of his observation, illicited

by the questions put to him by the legal representatives as well as
the Court.  These lines of questioning cannot be equated
to the
product which culminated between himself and the investigating
officer.  The benefit that the trial processes have
insofar as
it relates to viva voce evidence to that of a product of a police
statement is that it unfolds in circumstances with
the benefit of the
written statement and the well-prepared forum of a trial which
includes the pre-trial procedures, exchanging
of the further
particulars and ventilation of the evidence of the witness by leading
and challenging thereof including questions
by the Court.  The
statement taken by Col Kinnear are over 3½ handwritten pages
divided into 15 paragraphs.  The
viva
voce
testimony of the eye witness spanned over a period of three court
days and was the subject of intense ventilation.  Further
to
that it was the evidence of both Dale and the investigating officer
that they could not remember the specific questions put
which
solicited the answers in the statement.  Dale testified that he
answered the questions according to how it was framed.
[59]
In considering the details provided by the witness during his viva
voce evidence, weighing up the details not provided for
in the
written statement, I am not persuaded that it is indicative of a post
fabrication by the eye witness and accordingly does
not render the
evidence so given as unreliable or unsatisfactory.
77]
In dealing with a witness who had not dealt with a full description
of the observation of an accused, the Court stated in:
Magadla
v State (80/2011) 2011
[2011]
ZASCA 195
[60]
the
Court held that:
“
The
fact that a witness failed to provide a description of the accused
does not always assist him or her [the accused] in the event
where
the witness was at a situation where he or she had ample opportunity
to make a proper and reliable observation of the perpetrator,

especially where the witness did not have any reason to falsely
implicate the perpetrator.”
Photo line-up
identification parade:
78] The use of photo
albums as a primary tool in the investigation of crime where identity
is in issue has been the subject of judicial
comment.  The issue
was discussed by the SCA in
S v Moti
1998 (2) SACR 245
(HHA) at
254 G – 255I
which held that the primary object of a
photo line-up was not to gather evidence for later production in a
trial court but rather
to promote the investigation of crime.
For that reason it would be inappropriate to impose upon such a photo
identification
the strict requirements set out for a regular
identification parade.  Essentially the purpose of photo
identification parades
is to facilitate the investigation.  It
is also significant
in casu
that the photo identification
parade conducted by Sergeant Henderson with photo compilation
prepared by Mr. Johannes was not the
primary tool in the
investigation as the accused had been known to be suspects in the
offences committed. The eye witness
had at that time already
positively identified them as persons whom he knew and they were not
strangers to him.  Their identities
in the form of their
nicknames known by the eye witness and their full names and details
were known through crime intelligence
in the course of the
investigation.
Circumstantial
Evidence:
79] The State relied on
circumstantial evidence in the following respects that:
(i)
when Carelse was shot and robbed, he was in possession of his
fire-arm,
a .38
revolver;
(ii)
Carelse was robbed of the said fire-arm during the commission of the
offence;
(iii)
Carelse’s was murdered in terms of a planned execution to
eliminate him
as a
state witness in a triple murder trial which happened in July 2017
and which was pending before the Cape
High Court;
(iv)
Carelse’s .38 revolver was used in the execution of the further
shots
which were fired;
(v)
Prezano Holland was shot and killed when the accused directed shots
and killed Carelse.
80]
It is a well-established principle that when inferences from evidence
are called for, two cardinal rules of logic must be guide
the Court:
(1) the inference must be consistent with the proven facts; and (2)
it must be the only reasonable inference sought
to be drawn.
[61]
The nature of the evidence led by the State
in
casu
was both direct and circumstantial and the approach of the Court in
this regard has been set out with reference to cardinal rules
of
logic which were enunciated in
R
v Blom
1939 AD 188
at 202 – 203 where the Court held that:
“
(1)
The inference sought to be drawn must be consistent with all the
proven facts.  If it is not then the inference cannot
be drawn.
(2)  The
proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn.
If they do
not exclude other reasonable inferences, then there must a doubt
whether the inference sought to be drawn is correct.”
81]
It is common cause that the area in which Gregory Carelse lived and
walked around on the day of his killing is notorious for
crime,
robberies and gang violence.  The evidence of Dale Carelse was
not disputed that in or around the date in question
there was gang
war and unrest in the area and that his father had always been armed
with a fire-arm.  It was also not disputed
that the last
activity on his cellphone was shortly before the time of the
shooting, which was a social message to a friend in
other words it
did not record that he had been caught up in a situation where he had
lost or was dispossessed of his firearm prior
to the shooting.
Gregory Carelse was a security conscious person and was actively
involved in community safety, crime fighting
and patrol.  He
left home around 15h20 with his .38 revolver in his waist holster.
For these reasons it is inherent
and most probable that at the
time of his murder he was still in possession of his fire-arm. In my
view, the only reasonable inference
that can be drawn from the proven
facts is that he was still armed with his .38 revolver.  It
follows logically that he was
robbed of his fire-arm during the
incident.
82] In all probability
the 5 revolver bullet points retrieved from the body of Carelse were
fired from his own revolver and most
likely used in the further fatal
assault on him.  This is so particularly in light of the fact
that there were two shooters
and three fire-arms found to be used in
the commission of the offences, that being, two 9mm pistols and one
revolver.  He
was robbed of his .38 revolver and the ballistics
report determined that the bullet points were executed from a .38/357
revolver.
It is however not necessary for this judgment that
this Court is required to make such a finding.
83]
The State sought of the Court to find that the killing of the Gregory
Carelse was in the course of a hit which was placed on
his life as a
result of being a witness for the State in the triple murder trial of
which he arrested one of the accused in 2017.
It was not placed
in dispute that another witness for the State in the same pending
trial relating to the F shooting had also subsequently
been shot and
killed.  It was the evidence and closing submissions for the
State that the members of the community are fearful
of their safety
with the consequence result, that no witnesses were willing to
testify to the killing being part of an executed
hit.  The area
is known for crime including robberies and murders.  Gregory
Carelse was very active in policing and community
safety and from the
evidence it is clear that he was a brave and committed person to
reduce crime in the area and did not hesitate
to pursue the unlawful
actions of others notwithstanding the fact that fear is pervasive
amongst community members to act against
the commission of crime with
grave consequences for themselves.  As evidence in relation to
this plot as alleged was not led
by the State other than as set out
above, it cannot be conclusively found by this Court to have been the
motive for the killing.
By all accounts, the manner and
circumstances of his murder is indicative that the shooters wanted
him dead and they successfully
achieved such goal.
84] I agree with counsel
for accused 2 that the shooting of Prezano Holland is a mystery.
Even the eye witness to the shooting
testified that after seeing his
father on the ground, he was perplexed at why Holland was lying on
the opposite side of the road
and if in fact he was shot, nor had he
noticed Holland prior thereto.  The State invited the Court to
find that the shooting
of the deceased resulted in the shooting of
Holland in that he would have been hit by a stray bullet.  No
evidence was led
as to how it is that Holland was at the scene, where
did he come from, where was he going to, who had interacted with him
prior
to his death and no one testified as to him being hit by a
bullet.  It is also reasonably possible that Holland had been
hit
prior to the shooting.  It was a violent gang war prevailing
in the area and the Court has heard that in the previous year
three
people were shot by persons in a passing vehicle, in broad daylight,
and in a road nearby to the scene.  The Court is
not able to
infer and determine beyond reasonable doubt that the killing of
Holland transpired as a logical and consequent result
of the shooting
directed of Carelse as the intended victim.
Onus on the State
to prove charges beyond reasonable doubt:
85]
It is a fundamental principle that in criminal proceedings the
prosecution must prove its case beyond reasonable doubt and that
a
mere preponderance of probabilities is not enough.  Equally
trite is the observation that, in view of this standard of proof
in a
criminal case, a court does not have to be convinced that every
detail of an accused’s version is true.  The version
of
the accused cannot be rejected on the basis of that it is
improbable.
[62]
Principles
applicable to an accused not giving evidence:
Accused
2 failure to testify
:
86]
The eye witness, Dale Carelse, placed accused 2 at the scene as one
of the shooters.  In
S
v Boesak
[63]
the court found that:
“
It
is trite law that a court is entitled to find that the State has
proved a case beyond reasonable doubt if a prima facie case
has been
established and the accused failed to gainsay it….. one of the
main and acknowledged instances where it can be
said that a prima
facie case becomes conclusive in the absence of rebuttal, is where it
lies exclusively within the power of the
other party to show what the
true facts were and he or she fails to give an acceptable
explanation.”
87]
There is a
prima
facie
case
against the accused, the failure to answer it becomes a factor to be
considered along with other factors and from that totality,
the Court
may draw the inference of guilt.
[64]
The accused’s constitutional right to silence cannot prevent
logical inferences.  The circumstances of a case
must be such
that a
prima
facie
case,
if left uncontradicted, become proof beyond reasonable doubt.
This happens not because the silence of the accused is
considered an
extra piece of evidence, but simply because the
prima
facie
case is in the absence of contradicted evidence on logical grounds
strong enough to become proof beyond reasonable doubt.
[65]
I would say, that the
prima
facie
case
against the accused 2 in this case, without evidence under oath
challenging the said evidence by the State, results in the
prima
facie
case ripening into proof beyond reasonable doubt of the charges
against him.
88] This is exactly the
position
in casu
.  In the circumstance where Mr. Waylin
Abdullah has exercised his constitutional right to silence, the Court
is left with
nothing but the uncontroverted prima facie case
presented by the State, which unchallenged ripens into proof beyond
reasonable
doubt.  This is not shifting the onus of the State to
prove its case beyond reasonable doubt.  The
prima facie
case of the charges against accused 2 therefore became conclusive in
the absence of his rebuttal.  His failure to give evidence
was
damning in the circumstances.   Accused 2 chose not to
testify in view of being accused of such a serious offence
draws the
inference that the appellant could not answer to the allegations
against him. In
S v Chabalala
2003 (1) SACR 134
SCA
paragraph 21 the Court held in relation to an appellant who had
elected not to testify in similar circumstances as Accused 2:
“
The
appellant was faced with direct and apparently credible evidence
which made him the prime mover in the offence.  H was
also
called upon to answer evidence of a similar nature relating to the
parade.  Both attacks were those of a single witness
and capable
of being neutralised by an honest rebuttal.  There can be no
acceptable explanation for him not rising to the
challenge.  To
have remained silent in the face of the evidence was damning.
He thereby left the prima case to speak
for itself.  One is
bound to conclude that the totality of the evidence taken in
conjunction with his silence excluded any
reasonable doubt about his
guilt.”
89]
In
Osman
and Another v Attorney-General Transvaal
[66]
the Court stated the following principle which squarely applies to
this matter:
“
Our
legal system is an adversarial one.  Once the prosecution has
produced evidence sufficient to establish a prima facie case,
an
accused who failed to produce evidence to rebut that case is at
risk.  The failure to testify does not relieve the prosecution

of its duty to prove guilt beyond reasonable doubt.  An accused,
however, always runs the risk that, absent any rebuttal,
the
prosecution’s case may be sufficient to prove the elements of
the offence.  The fact that an accused has to make
such an
election is not a breach of the right to silence.  If the right
to silence were to be so interpreted, it would destroy
the
fundamental nature of our adversarial system of criminal justice.”
EVALUATION OF
WITNESSES:
90]
The case for the State materially rested on the issue of
identification and the credibility of the eye witness, Dale Carelse.

Whilst he testified on details which he had not provided in his
written statement, the absence of such details had been discussed

earlier in this judgment and it cannot be said that his evidence is
not credible or reliable.  He withstood vigorous
cross-examination
and testified in a clear and coherent manner.
He did not embellish his evidence for example he limited his
testimony to what
he had observed.  He resisted stating that he
saw the shooters removing the fire-arm from his father and testified
that he
saw them fiddling in the side of his father’s waist.
He maintained throughout this cross examination that he saw the
faces
of both accused fleetingly and observed them for just over a few
seconds as they fled the scene, running into the opposite
avenue,
however, he was well able to demonstrate that his observations in
respect of both accused and his previous knowledge of
each provided
him with sufficient opportunity to see and identify them.
91]
The Court must not merely pay lip service to the rules of caution
which applied.
[67]
The
Court is alive to the fact that mere pronouncement that it is taking
a cautious approach to the evidence is insufficient
and is the
equivalent of non-compliance.  It must be apparent that the
Court has indeed treated the evidence cautiously.
The Court is
satisfied that he was well able to observe the unfolding of events at
the scene to the extent that he had testified.
I am satisfied that
his implication of the accused as being the shooters were not
mistaken or false nor was it suggested to him
by the investigating
officer.  This Court has been mindful of the caution which need
to apply to his evidence as both a single
witness and a witness on
identification.  He was familiar with both the accused for a
significant period of time and he recognised
him in the quick
succession of events.  He withstood cross-examination on a
number of aspects relating to this testimony,
stuck to his version of
events and was consistent throughout his testimony as to his
observation of the scene as well as his recognition
of both the
accused as the shooters.  He was constant and consistent that he
knew both accused from the area and having had
some or other
interaction or mutual friends with them over a great many years.
He was able to identify both the accused by
seeing their faces and as
they left his father’s body on the ground and running back
across the road.  The evidence
of the eye witness were not
simply bald and unsubstantiated assertions that the perpetrators were
in fact the accused.  He
methodically testified as to his
observation on the day, how he had recognised him and he was
consistent in that regard.
The Court is mindful and alive to
the fact that a positive assurance with which he was sworn to the
identity of the accused persons
is in itself no guarantee of the
correctness of his evidence.  I am of the view that all these
factors were sufficient safeguard
against a possible mistaken
identification by him.
92]
To this extent the evidence of his mother, Rezone Carelse, indicated
consistency as a first report by the eye witness.
They both
testified that Dale told her shortly after the incident that he had
seen accused 1 and 2, known to him as Krag and Wena,
shooting his
father.  It is highly probable that the Dale had been scared to
make a statement to the police and that only
after support of his
uncle, was he prepared to make a statement.  His reluctance to
make a statement is perfectly understandable
given the climate of
fear and violence which prevails in the area in relation to criminal
activities.  His evidence that he
does not step on other’s
toes unless he has to. He came across to the Court as someone who if
facts minds his own business,
not troublesome to others nor
vindictive.  He testified to the circumstances of his father’s
death when he felt comfortable
and safe to do so and when he felt
that he was duty bound to do that.  He came across proud of his
father and the legacy that
his father was a community activist and
prominent in crime prevention.  This clearly had prompted him,
notwithstanding his
fears, to attest to what he knows of his father’s
killing.  The Court found his evidence to be clear and
satisfactory
in all material respects.  Both Dale and his
mother, Mrs Caresle, were impressive witnesses and the Court is
satisfied that
the truth was told notwithstanding any shortcomings.
93]
The investigating officer, Col Kinnear and Sergeant Henderson
testified in a clear and satisfactory manner.  They made

concessions during their testimony which lends credence to the weight
and credibility of their testimonies.  The Court was
satisfied
that they were honest in their testimonies and in the performance of
their duties as officers.  They withstood vigorous

cross-examination.  The evidence of the other police officers in
their various roles and capacities in relation to the investigation

of these crimes supported and corroborated the testimonies of Dale
and Mrs. Carelse in respect of their evidence relating to the

investigation of the incident and the photo identification parade
which was conducted.  They made concessions, testified in
a
clear and coherent manner and was not evasive in their answers.
94]
The evidence of accused 1 was riddled with contradictions.
Whilst he testified in his evidence in chief that he does not
really
know Carelse, he later changed this to not knowing Carelse at all.
He later conceded that he heard from his sister’s
daughter that
his sister and her children live at the property of Carelse.  He
testified that he was occupied with listening
to music on his
cellphones on the day of the shooting but denied that it was
functional for the purposes of making or receiving
calls as it does
not contain SIM cards.  He exclusively used it as music devices.
He went back on this version when he had
to explain what he was doing
on the date of his arrest at residence where he was arrested.
Again, he changed his version
to justify that as he was struggling to
hear calls properly, he tried to swop the phone with one, John, who
resides at the home
where he was arrested.  That he could not
hear calls properly flies in the face of him not having SIM cards in
the cellphones.
His testimony that he had no contact with the
community (and therewith cellphone contact) was an attempt to
illustrate that he
had absolutely no knowledge of the shooting where
Carelse and Holland had been killed weeks prior to his arrest.
However,
the place of his arrest and the numerous occasions when
police attended at his home after the incident in search of him in
vain
flies in the face of his claim that he had never left the home
otherwise.    Whilst it was his version that he was

only a member of the 28’s in prison, Warrant Officer Lombard
was not challenged when he testified that once a member of a
gang in
prison the member inevitably belongs to a gang outside of prison.
The Stanfield leadership of the 28 gang and that
the Valhalla area
fell under their control was not challenged when various witness
testified thereto.  It is highly improbable
that accused 1, whom
on his own version was a 28 gang member in prison, would have no
knowledge of the leadership of the 28’s
in the area.
Accused 1 attempted to put distance between himself and the various
significant events and persons which played
pivotal roles in the
incident, being, both deceased, the eye witness, the leadership of
the 28 gang in the area, Wilson as a gang
member, the F shooting and
that Carelse had apprehended Wilson and was listed as a State witness
are in my view falsely created
in his attempts to absolve himself
from involvement in the shooting.  He was known to have previous
brushes with the law whilst
Carelse was a known law enforcement
officer.  It is highly unlikely that accused did not know who
Carelse was and what his
role was in the community.  The accused
1 was an untruthful and evasive witness who tailored his evidence as
questions were
put to him during his testimony.  He was
economical with the truth.  Whilst he maintained that he had an
alibi which
would confirm that he was at home at the time of the
shooting, no alibi witness was called to testify thereto.  The
failure
to call such a witness adversely affects the version of the
accused that he was at home with his relatives at the time of the
shooting.
[68]
CONCLUSION:
95] It is trite law that
the correct approach is to weigh up all the elements which point
towards the guilt of the accused against
all those which are
indicated of his or their innocence.  I have in my findings also
taken account of the inherent strengths
and weaknesses, probabilities
and improbabilities on both sides and having done so have to decide
whether the balance weighs so
heavily in favour of the State so as to
exclude any reasonable doubt about the guilt of the accused
respectively.  Having
applied the relevant legal principles in
the adjudication of this matter, the determination of the case for
the State and the defence
and the principle that the onus is on the
State to prove its case beyond reasonable doubt as discussed
hereinbefore and whether
on the facts and circumstances of this case
whether the version of accused 1 is reasonably possibly true and if
the State had discharged
the onus resting upon it, it is relevant to
refer to the following dictum in
Moshepi and Others v R (1980 –
1984) LAC 57
at 59F – H, in the evaluation of all the
evidence:
“
That
is not to say that a broad and indulgent approach is appropriate when
evaluation evidence.  Far from it.  There is
no substitute
for a detailed and critical examination of each and every component
in a body of evidence.  But, once that has
been done, it is
necessary to step back a pace and consider the mosaic as a whole.
If that is not done, one may fail to see
the wood for the trees.”
96]
The motive for the killing of Carelse is not altogether clear to this
Court.  Whilst it is highly possible that it was
an execution
killing with a view to eliminate him as a State witness in the trial
relating to the F shooting of 2017, on the evidence
this Court is not
able to make such a conclusive finding.  What is apparent is
that the killing was executed with the direct
intention to murder
Carelse and in the course thereof he was robbed of his firearm.
Carelse in all likelihood had been walking
back to his residence, the
shooters had waited for him and came guns blazing from the hideout
spot which faces the corner of the
road on route to his home.
No less than 3 firearms were used in executing the killing of
Carelse, with multiple gunshots
directed at his vital organs.
The intention was clearly to murder him in a brutal and cruel manner.
97] For the reasons set
out above, taking into account all the evidence in this matter this
Court makes the following finding in
respect of both Accused 1 and 2:
“
(i)
Count 1 in respect of the murder of Gregory David Carelse, the Court
finds you guilty;
(ii) Count 2 in
respect of the murder of Prezano Holland, the Court finds you not
guilty;
(iii) Count 3 in
respect of the robbery with aggravating circumstances of Gregory
David Carelse, the Court finds you guilty;
(iv)
Count 4 in respect of the possession of unlicensed firearms the Court
finds you guilty as charged;
(v) Count 5 in respect
of unlawful possession of ammunition, the Court finds you guilty as
charged.
__________________
SALIE-HLOPHE,
J
[1]
Dale
Carelse will be referred to as “Dale” in this judgment
to avoid confusion with his father, the deceased, referred
to as
Carelse.
[2]
Exhibit F
[3]
The
cellphone of the deceased was retrieved from his pocket after the
shooting, with last activity a whatsapp message at 16h42.
[4]
State
witness, Mr. Dale Carelse, aged 27 at the time of the incident
[5]
Two bullet
jackets were collected from the area nearby the shooting, one fired
bullet from inside the house situate on the house
on the corner
where the shooting happened.  It could not be determined
whether the bullet jackets and the bullet were fired
from the
cartridges found on the crime scene.
[6]
Admitted as
Section 212 reports, Exhibit S.  Statement by Warrant Officer
Mehlape
[7]
Exhibit A –
plea in terms of Section 115 of the Criminal Procedure Act 51 of
1977 (“the CPA”)
[8]
Exhibit H
[9]
Exhibit N
was a recording of various points as A1 to A9 on the scene,
distances between the said points and the running time between
the
respective points.
[10]
Testimony
from record page 14 - 38
[11]
Exhibit B –
the statement was provisionally admitted into evidence as an
exception to the hearsay rule
[12]
Record page
37, lines 12 - 15
[13]
For the
purposes of this judgment, this state witness is referred to as
“Dale”
[14]
Record page
54, lines 9 - 15
[15]
Record page
58, line13 & record page 62, lines 9 - 14
[16]
Record page
66, line 24
[17]
Record page
67, line 5
[18]
Record page
76, lines 5 - 12
[19]
Record page
77, line 15 - 18
[20]
Record page
63, lines 10 to 13
[21]
Record page
66, lines 14 - 16
[22]
Record page
82, lines 18 - 19
[23]
Record page
85, line 16 – last cellphone activity at 16h53
[24]
Record page
79, line 15
[25]
There were
two incidents where bystanders shouted that the shooters were coming
again – Record page 80
[26]
Exhibit E –
photo identification parade
[27]
Record page
111, lines 9 - 10
[28]
Record page
121, lines 21 – 22 “…
but
I do not step on other people’s toes where I need not to step”
[29]
Record page
125, lines 15 - 20
[30]
Record page
136, lines 2- - 24
[31]
Record page
144, lines 12 - 15
[32]
Record page
145, lines 3 - 4
[33]
Record page
162, lines 14 - 16
[34]
Record page
172, lines 15 - - 25 & record page 173, lines 1 - 3
[35]
Record page
174, lines12 – 13
[36]
Record page
174, lines 21 - 25
[37]
Record page
173, line 19
[38]
Record page
256 and Exhibit D
[39]
Exhibit R
[40]
Exhibit 1
[41]
Record page
284, lines 18 - 19
[42]
Record page
191, line10 - 14
[43]
Exhibit Y –
Ballistics report in re 9mm cartridge
[44]
Record page
388, lines 10 - 20
[45]
Record page
389, lines 18 - 20
[46]
Record page
414, lines 10 & 11
[47]
Record page
434, lines 18 & 19
[48]
Record page
451, lines 3 - 5
[49]
Record page
479, lines 10 - 12
[50]
Record page
499, lines 25 & record page 500, lines 1 - 5
[51]
Record page
513- line 15
[52]
Record page
518, lines 10 – 20
[53]
Record page
521, lines 21 - 25
[54]
Exhibit N
[55]
Adv.
Liddell instructed by attorneys: Liddell Weeber & Van der Merwe
Incorporated
[56]
Notice of
Motion for application to be made on 1 June 2020
[57]
Record page
253
[58]
Translated
from Afrikaans as: “
I
already know them for some time”
[59]
See
paragraphs 25 and 53 supra
[60]
16 November
2011
[61]
R v Blom
1939 AD 188
[62]
S v
Shackell
2001 (4) SA 1
(SCA) paragraph 30
[63]
[2000] ZASCA 112
;
2000 (3) SA
381
(SCA) page 396
[64]
S v Letsoko
and others
1964 (4) SA 768
(A) page 776
[65]
The
Evaluation of Evidence Ss30-9 (d) – Page 545
[66]
1998 (4) SA
1224 (CC)
[67]
S v Ganie
1967 (4) SA 203
(N) 206H; S v Letsedi 1963 (2) SA 471(A) 473 F
[68]
S v
Teixeira
1980 (3) SA 755
(A)