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[2021] ZAWCHC 191
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S v Booysen and Others (CC55/2020) [2021] ZAWCHC 191; [2021] 4 All SA 859 (WCC) (28 September 2021)
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. CC55/2020
Before:
The Hon. Mr Justice Binns-Ward
Hearing: 10-12, 16-19,
24-25, 30-31 August; 1, 10 September 2021
Judgment: 28 September
2021
In the matter between:
THE
STATE
and
ANTHONIO
BOOYSEN
Accused
1
NADIEM
THORPE
Accused
2
CHESLYN
JOHNSON
Accused
3
JUDGMENT
BINNS-WARD J:
[1]
The
accused in this matter, Anthonio Booysen (accused 1), Nadiem Thorpe
(accused 2) and Cheslyn Johnson (accused 3) were arraigned
on the
following charges:
1.
Contravening
s 9(2)(a), alternatively s 9(1)(a) of the Prevention of
Organised Crime Act 121 of 1998. (Count 1.)
2.
The murder of Cecilia Alexis Hartenberg
(described in the indictment as ‘a juvenile female person’).
(Count 2.)
3.
The murder of Melicia Claasen. (Count 3.)
4.
The attempted murder of Ryno Anthony.
(Count 4.)
5.
The attempted murder of Brandon Graaf.
(Count 5.)
6.
The attempted murder of Jenene Rhodes.
(Count 6.)
7.
Contravening s 3 of the Firearms
Control Act 60 of 2000 (possession of firearms without being the
holder of a licence to do
so). (Count 7.)
8.
Contravening
s 90
of the
Firearms
Control Act (unlawful
possession of ammunition). (Count 8.)
Except for count 6, the
charges all related to a shooting incident that took place outside a
block of flats known as Gullhaven Court
in the Robinvale area of
Atlantis on the evening of 1 January 2020. Gullhaven Court is one of
12 apartment buildings depicted on
the aerial photograph put in
evidence as exh. F1. The buildings are reportedly referred to
collectively as the ‘Dura
Flats’. Count 6 concerned a
shooting incident at another of the blocks, Eagles Nest, that
reportedly occurred soon after
the first mentioned incident.
[2]
The
accused pleaded not guilty on all counts. Accused 1 elected not to
give a plea explanation, but it soon became evident from
the
cross-examination of the state witnesses that he claimed to have been
at home at the time of the shootings recovering from
a marathon party
at a house in nearby Beacon Hill to which he had gone on the previous
day. Accused 2 explained that he had been
shot in the ankle during
the morning of the day in question and was not at the scenes where
the shootings occurred. Accused 3 stated
in explanation of his plea
that he had been at home at the time of the incidents.
[3]
Certain
admissions by the accused, made in terms of
s 220
of the
Criminal Procedure Act 51 of 1977
, were put in evidence in
documentary form in Exh. A1-A3, respectively, at the
commencement of the trial. The identically worded
s 220
admissions documents signed by each of the accused referred in turn
to certain other documents itemised therein as exhibits B’
to
‘H, the contents whereof were admitted as true and correct. The
said documents were accordingly duly introduced as exhibits
B to H,
respectively.
[4]
Exhibit
B was the post-mortem examination report in respect of the
aforementioned Cecilia Alexis Hartenberg, the deceased named
in the
charge of murder that was framed as the second count in the
indictment. The examination, which was undertaken by Dr Many
Chong, a
pathologist in the employ of the Western Cape government, took place
at Salt River, Cape Town, on 8 January 2020. The
body was assessed as
being that of a child of five years of age, whose death was reported
to have been certified at 12h20 on 2
January 2020. The report
recorded that the deceased had died as a result of a gunshot wound to
the head. There was a gunshot entry
wound on the right side of the
forehead with an exit wound on the left side of the forehead. It is
evident from the fact that a
nasogastric tube was found inserted
through the left nostril and an endotracheal tube was found in the
mouth that the deceased
probably received medical treatment before
she died. This was confirmed later in the evidence of the
investigating officer, Detective
Sergeant Noordien, who testified
that the child had been transferred to the Red Cross Children’s
Hospital, where a doctor
informed him on 2 January 2020 that Cecilia
was brain dead.
[5]
Exhibit
C was the post-mortem examination report in respect of the
aforementioned Melicia Claasen, the deceased named in the charge
of
murder that was framed as the third count in the indictment. The
examination, which was undertaken by Dr Laura Taylor, a registrar
in
forensic pathology in the employ of the Western Cape government, took
place at Salt River, Cape Town, on 7 January 2020. The
report
indicated that the deceased had died as a result of a gunshot wound
to the back. The corpse had two gunshot wounds, a perforating
wound
of the right arm and a penetrating wound to the back. In respect of
the perforating wound, the bullet had entered and exited
the
deceased’s right upper arm. The entry wound was to the front of
the arm and the exit to the rear, which suggests that
the deceased
must have been facing towards the shooter when the wound was
inflicted. In respect of the penetrative wound, it appears
that the
bullet, which was retrieved from the deceased’s chest wall
during the examination, perforated the deceased’s
right lung
and her pericardial sac and lacerated her liver. A 800 ml haemothorax
and a 200 ml haemopericardium were recorded. A
‘gunshot defect
in the 10
th
intercostal space on the right chest postero-laterally, as well as in
the 7
th
intercostal space on the left anteriorly with surrounding
haemorrhage’ were noted. The postmortem report indicates that
the chest wound was inflicted when the bullet entered the deceased’s
back, suggesting that she was facing away from the shooter
when the
shot was fired. The deceased also had abrasions above and to the side
of her right eye. No evidence was adduced as to
the likely cause of
those injuries. The estimated age of the deceased was 34 years. It
was recorded that her death had been certified
at 21h30 on 1 January
2020.
[6]
Exhibits
D and E comprised of photographs taken at the aforementioned
post-mortem examinations.
[7]
Exhibit
F consisted of a bundle of six consecutively numbered photographs of
the Dura Flats area in Robinvale, Atlantis. The photographs
most
frequently referred to during the trial were photograph F1, which is
an aerial depiction of the area, and photograph F6, which
is also an
aerial photograph that shows a more close-up depiction of the
locality in the Dura Flats where the shootings occurred.
The central
part of exh. F 6 shows an open area within which there is a
rectangular concrete slab, apparently all that is left
of a crèche
or youth centre that used to stand on the spot. The concrete slab
appears to be known as ‘die blad’
by the locals, and I
shall sometimes find it convenient to refer to it by that label in
this judgment. It is helpful to interpret
the photographs in exh. F
with correlation to the street layout depicted in the Google Maps
printouts that were admitted as exh.s
P1-P3.
[8]
Six
cartridges were recovered at the scene of the shooting. Their
location was pointed out by Cst (referred to in the oral evidence
as
Sgt) Matjan to W/O Jacobs, a police photographer and forensic
analyst, between 00h20 and 01h40 on 2 January 2020. Jacobs took
photographs of the scene showing where the cartridges were recovered
and measured the distances between each one in the places
that they
were pointed out to him. Exh. G comprised the photographs taken by
W/O Jacobs together with his covering affidavit
giving a
description of the points depicted on the photographs and the
measurements between those points. All the casings were
found on the
aforementioned concrete slab. The photographs suggest that the
casings were located in two groupings. Cartridges 1
to 3 in the first
grouping and the others in the second grouping. The two groupings
were about 2 to 3 metres apart. The casings
in the first grouping
were found lying closer together than those in the second group,
which suggests that the person whose shooting
was responsible for the
second group of cartridges was probably moving about a little more
than the person whose shooting accounted
for cartridges 1-3.
[9]
That
two firearms had been used in the shooting to which the recovered
cartridges related was established on forensic analysis of
the
casings by W/O Hoffman, a forensic analyst in the ballistics section
of the police forensic science laboratory. Her affidavits,
which were
produced in terms of 212 of the
Criminal Procedure Act, were
handed
in as exh. H. Ms Hoffman established that cartridges 1-3 identified
in W/O Jacobs’ affidavit were fired from a different
weapon to
cartridges 4-6. All six cartridges were 9 mm Parabellum casings.
The evidence suggests that there were seven gunshot
wounds accounted
for in the shooting incident, which serves to illustrate that the
number of cartridges recovered should not be
taken to equate with the
number of shots fired. The disparity is not surprising bearing in
mind that the exercise in which the
casings were recovered occurred
in the dead of night when visibility conditions would not have been
ideal.
[10]
The
complainant on count 4, Ryno Anthony, was the first state witness. He
is currently 27 years of age. He left school in standard
8 and since
then has been involved in gang-related activity. He is a member of
the 28 gang. He explained that while this is a known
prison gang, it
also operates outside the confines of the prisons. According to
Anthony, the 28’s were involved in an ongoing
turf war in the
area with the Ugly Americans, a rival gang known locally as the
‘Terribles’. The turf war is over territory
in which to
trade in illicit drugs and generate an income.
[11]
On
the evening in question, at between 8 and 9 o’clock when it was
dusk, he was standing on a concrete slab on the opposite
side of
Bunting Crescent from Gullhaven Court conversing with Melicia
Claasen, the deceased in count 3, when he felt someone grabbing
him
around the neck from behind. He pushed the person away using his
elbow and, as he did so, heard a shot going off. He sustained
a
gunshot wound low down on the right side of his back. As he pushed
his assailant away from him, he looked back and saw that it
was
accused 1. He had known accused 1 (whom he called ‘Tony’)
for a number of years. They had been involved on opposing
sides in
the gang wars in the area. He said that accused 1 was a member of the
Terribles.
[12]
Anthony
said that he then fled from the scene. As he was running away, he
heard more shots being fired – he was unable to
say how many
there were. He sustained two more gunshot wounds as he fled. The
second one was to the area under his left shoulder
and the third
passed through his neck from back to front. He collapsed after the
third shot and only came to in the local hospital.
He heard after his
release from hospital that Melicia Claasen had been killed. The
witness said that when he looked back when the
second shot went off
he saw someone he knew by the name of Saadje standing 4 to 5 metres
behind Tony. Saadje was holding a pistol,
but he did not see him
firing it. He confirmed that Saadje (whose proper name is Nishaad van
Niekerk) was not one of the accused.
[13]
The
witness described that there were a number of other persons gathered
at various spots on the concrete slab when the shooting
incident took
place. He mentioned someone called Maudlin who had been with other
persons in one area of the slab and some ‘Rastas’
(Rastafarians) in another area. The atmosphere was reportedly one of
New Year festivity. People were braaiing, drinking and making
music.
The area was illuminated by light from the nearby apartments and
street lighting. He said that the lighting was good enough
to be able
to recognise a person from a distance of about 10 metres, although I
must say I place little confidence in the accuracy
of the witnesses’
estimations of distance.
[14]
Asked
whether he could think of any reason for having been targeted in the
shooting incident, the witness said he thought it might
have related
to him having been an accused in a case involving the murder of two
leading figures in the Terrible Americans. He
said that he was
acquitted on the charges and released from detention a few months
earlier in August 2019. It was put to him by
accused 1’s
representative that the shooting had in fact been an incident related
to infighting between two factions of the
Horribles gang. He replied
that he was unaware of that.
[15]
Anthony
was taken to the Wesfleur Hospital in Atlantis after the shooting. He
was transferred to the Groote Schuur Hospital in Cape
Town later
during the night, where he remained for five days before being
discharged. He made a witness statement to the police
at the Wesfleur
Hospital before his transfer. The statement (exh. J) was put to him
in cross-examination. It identified two of
his alleged assailants
(named as ‘6’ and ‘Saar’), but made no
mention of ‘Tony’. He pointed
out that ‘6’
was accused 3. Taxed on the omission of any mention of ‘Tony’
by accused 1’s legal
representative, the witness said that
he had been in no fit state to make a statement on the night of the
shooting and had told
the detective as much.
[16]
Anthony
said that he was unable to accept the proposition put to him by
accused 1’s representative that the accused had been
at his
mother’s house at […] Canary Place at the time of the
shooting.
[17]
The
witness was asked in cross-examination whether he knew someone by the
name of Wayne Florence. He said that Florence lived in
the same block
of flats as he did. He had not seen him on the slab that evening. In
answer to a further question by accused 1’s
attorney, Anthony
identified someone known as ‘Wagga’ as the local leader
of the 28’s gang. He denied that Wagga
gave instructions to
persons in the local community as to how they should testify in court
cases. He also denied the proposition
that he had been in an affair
with Maudlin Solomons (another person on the list of state
witnesses).
[18]
Under
questioning by counsel for accused 2, Anthony confirmed that he had
not seen Nadiem Thorpe on the scene on the night of the
shooting.
This is understandable in the context of the evidence of another
witness, Cherel Brandt, with whose evidence I shall
treat in some
detail later in this judgment. Suffice it to say that according to Ms
Brandt’s evidence accused 2 appeared
on the ‘blad’
later than accused 1 and 3 and at some stage after the shooting had
begun. It is therefore conceivable,
if Ms Brandt’s evidence
were accepted, that Anthony would have fled or be in the process of
fleeing from the scene when accused
2’s presence on the ‘blad’
first became visible.
[19]
It
was put to Anthony by counsel for accused 3 that his client would
deny that his nickname was ‘6’. It was also pointed
out
by counsel for accused 3 that the witness had failed to identify
accused 3 at a photo ID parade at which he had pointed out
accused 1
and Saadje. The witness conceded that he had not done so. When
accused 3’s photograph was pointed out to him as
photograph 8
on page A20/7 of exh L, the witness said that the accused looked
‘different’ in that photograph. The witness
was adamant
under cross-examination that accused 3 had been on the scene at the
shooting. Under re-examination the witness testified
that he had been
shown the ID photographs while he was still in hospital at Groote
Schuur.
[20]
The
witness conceded that he was acquainted with Cherel Brandt, Maudlin
Solomons, Jenene Rhodes and Desiree Adams. He said that
Jenene and
Desiree were sisters and that Jenene and Cherel lived in the same
block of flats that he did. He denied that that they
(Jenene and
Cherel) dealt in drugs for the 28’s gang.
[21]
Maudlin
Solomons, a 19-year-old resident in the Gullhaven Court block of
flats testified that she had been very close to Melicia
Claasen
during the latter’s lifetime. She said that Melicia had been a
bit older than she was. She had looked up to her.
Melicia had been
there for her whenever she needed her. She had been present at the
scene when Melicia was shot.
[22]
Ms
Solomons testified that she was at a party at her flat (the location
of which she indicated with a ‘2’ on exh, F03)
on the
evening of 1 January when she received a message on her phone that
Melicia was nearby and wishing to meet up with her. Melicia
had
apparently said that she first wanted to buy something to smoke (‘n
rookie’) from the Rasta’s. She went outside
and found
Melicia conversing with Ryno Anthony. Melicia asked her to wait while
she finished talking to Anthony. She stood against
the wall of the
block of flats about 3 m [it was evident from other evidence that her
estimate of 3 m was unreliable; the distance
from the wall of the
Gullhaven Court to the blad was more realistically in order of 10 m]
away from the two while she waited
for them to finish their
conversation. She could see the Rastas in a group on Bunting Crescent
outside the place where they lived.
She indicated the Rastas’
position with the mark R2 on exh F06. It was close to the place that
had been marked as R by the
previous witness, Ryno Anthony. Using the
approximately 10 m distance from the block of flats to the ‘blad’
as a scale,
the spot marked by the witness as R2 would be at least 20
m from the spot where she said she stood waiting for Ryno and Melicia
to finish their conversation. She said that there were also several
children playing at various places up and down Bunting Crescent.
Cecelia Hartenberg was apparently one of those children, although the
witness said that she had not seen her before the shooting.
[23]
As
she stood there, she noticed two figures approaching from the
direction of a nearby park and as they drew closer and came into
the
better illuminated area of the slab recognised them as accused 1 and
3, whom she knew as Tony and Koela, respectively. She
said that they
were walking side by side and disputed the correctness of Ryno
Anthony’s evidence that the person with Tony
had been 4 to 5
metres behind him. She knew that they were members of the Terrible
Americans gang. When she gave her evidence,
she volunteered, without
being asked, that she could not see which of them had the firearm. At
a later stage she said that Tony
(accused 1) had the firearm.
[24]
Something
about the two men’s approach made Ms Solomons apprehend that
something untoward was about to happen and she called
out a warning,
apparently to Ryno Anthony and Melicia Claasen. (Under
cross-examination she said that she had called out to warn
Melicia.)
She then said she called out the warning because she saw the firearm
being taken out. She said that she had called out
something to the
effect of ‘
pas op hier kom die
jongens’
. She used the word
‘
jongens
’
to refer to gangsters. She turned to run away from the scene and as
she did so heard shots ring out. She said that although
she wanted to
run away, she hung back to see what would happen and saw accused 1
shoot at Ryno Anthony. Under cross-examination
by accused 1’s
attorney she said that she had not immediately run away because she
had not known to which side she should
go, by which I understood her
to mean that she was undecided what route would be best to take to
get out of harm’s way. When
cross-examined on the same point by
accused 3’s counsel she said that she could not run away
without Melicia. She said that
Tony had been about an arm’s
length distance from Ryno when he fired the first shot. She described
that Tony put one of his
arms around Ryno’s neck or upper body
before the shot went off. She described seeing Ryno flee the scene
into a passageway
that she marked with a G on exh F 6. Under
cross-examination she said that she had not seen Ryno running away.
That would appear
to be an instance of self-contradiction. It may be,
however, that her evidence as to the route by which Ryno Anthony fled
was predicated
on inference from where he collapsed. If the witness
was on the scene she would probably have been aware that Anthony was
taken
from the scene, apparently in an unconscious state, shortly
after the shootings. Shots rang out continuously. She then ran home.
She said that shots were still being fired when she reached home. She
mentioned that people in the vicinity were making a commotion
and
shouting.
[25]
When
taxed on the fact that Ryno had not testified that he had heard her
call out a warning, Ms Solomons said that he may not have
heard her
because there was music playing very loudly at the time.
[26]
When
things quietened down she went outside. Her sister told her that
Melicia had been hit. Melicia was at the ‘ai ai’.
Other
evidence explained that ‘ai ai’ is a term used locally
for Rastafarians.
[27]
Ms
Solomons said that it was ‘very dark’ when the shooting
happened but that the slab had been illuminated to some degree
by the
light thrown from a nearby streetlight on a pole that she indicated
on exh F6.
[28]
Ms
Solomons identified accused 2 as the person she knew as ‘Ses’.
She was adamant that was his nickname and did not
budge on the point
when it was pointed out that the previous witness had identified
accused 3 as Ses. She had last seen accused
2 quite some time before
the shooting incident and did not see him present when the shooting
happened.
[29]
She
mentioned that the local gangs were the Fancy Boys and the Terrible
Americans. The latter had their territory near the KFC.
Ms Solomons
confirmed that Melicia Claasen had lived in the area her entire life
and that she was familiar with the gangs. She
conceded that Melicia
would have been able to see the two assailants approaching from the
position in which she was standing talking
to Ryno Anthony. She said
that she had heard Melicia say something just before the first shot
rang out but could not hear what
it was because of the loud music.
[30]
The
attorney representing accused 1 directed attention to the statement
that the witness had given the police and put it to her
that in the
statement she had identified 3 persons rather than only the two
identified in her oral testimony. The statement was
not produced. The
witness conceded to the proposition and said that there was a lot
that was incorrect in her statement. The implication
was that the
police had not properly recorded it. The third person named in the
statement was Saadje. She said that the police
had taken the
statement from her at her home on the evening of the incident having
been told by somebody that she had been on the
scene. It would appear
from her evidence that when the police interviewed her, they already
had Tony’s name as one of the
assailants. It emerged during her
cross-examination by accused 3’s counsel that the witness had
made two witness statements,
one on 1 January 2020 and the other two
days later on 3 January. She had named accused 1, 2 and 3 in her 1
January statement.
[31]
She
said she could not remember what the assailants had been wearing, but
then on reflection seemed to think that one of them was
wearing a
black nike track suit top.
[32]
The
witness was also asked by accused 1’s representative whether
she was acquainted with Wayne Florence, which she affirmed.
Questioned by accused 3’s counsel, she said she could not say
whether Florence had been there that evening. She had not seen
him.
It was put to her that Florence had given a statement to the police
in which he said he had spoken to Ryno. The witness said
she did not
know anything about that.
[33]
It
was put to Ms Solomons by accused 1’s legal representative as
well as counsel for accused 3 that she was a drug dealer
for the
Horribles gang and that she had instructions to testify against the
accused. She denied the propositions and said that
the only reason
she was at the trial was to speak for Melicia and Cecilia Hartenberg
(the deceased on count 2).
[34]
Under
cross-examination by counsel for accused 2 the witness confirmed that
she had not seen accused 2 at the scene. She conceded
that she had
pointed accused 2 out as one of the assailants when she was shown a
number of photographs by the police. The photo
ID parade had taken
place at her flat on 3 January 2020. She tried to explain her
apparent misidentification of accused 2 by saying
that she had been
confused and could not picture Koela (accused 3) in her mind when she
had erroneously pointed out accused 2’s
photograph. Under
cross-examination by counsel for accused 3 the witness stated that
she had mistaken accused 2 for accused 3 when
she pointed out accused
2 at the photo ID. She claimed that the photograph of accused 2 made
him appear to her like accused 3.
She claimed to be certain, however,
that it was accused 3 that she had seen with ‘Tony’.
[35]
In
answer to questions put by Mr Vismer for accused 3, Ms Solomons said
that Cherel Brandt had been around the corner from where
she (i.e. Ms
Solomons) had been standing against the wall at point N on exh F6
while Melicia Claasen had been speaking to Ryno
Anthony. She
indicated what she meant by ‘around the corner’ by
marking the place with a D on exh F6. Point D is outside
the
Gullhaven flats on the opposite side of the building from the place
that Ms Solomons had marked with a 2 on exh. F3. The evidence
led
during the trial suggested that ground floor apartments in the Dura
Flats had front entrances on their courtyard facing frontages
with
backdoors on the opposite side of the apartment. The point marked by
Ms Solomons with a ‘D’ would therefore be
quite close to
the front entrance of her ground floor apartment at no. […].
[36]
It
was pointed out in argument that Ms Solomons had stated in her
evidence in chief that Ms Brandt was in Flamingo Court. That evidence
was on the face of it contradicted by her evidence in respect of
point D on exh F6. The apparent contradiction was not explored
in
cross-examination and it is difficult to make anything of it in the
context of her unchallenged evidence as to Ms Brandt’s
position
at point D at the time of the shooting.
[37]
In
answer to Mr Vismer’s questions, Ms Solomons said that Leonora
was her sister. She did not know if Leonora had been in
the vicinity
at the time. She said there were quite a lot of people around at the
time. The purpose of the enquiry about Leonora
did not emerge in the
remainder of the trial.
[38]
The
state then called Mr Wayne Florence. He said that he lived in
Darters’ Place, which is one of the apartment blocks comprising
the Dura Flats. He described the local area as being divided between
the rival Terribles and Horribles gangs, but said that Darters
Place,
which was between the two gangs’ respective turfs, was not
under the regime of either gang. He knew the deceased Melicia
Claasen
because she had been his children’s aunt. Florence did not
proceed far with his evidence before it was necessary
to stand him
down because it was almost impossible to make out what he was saying.
He apparently was suffering from tooth ache.
Certainly, his jaw
looked swollen on the left side.
[39]
When
the hearing resumed after a three-day break, Florence testified that
on the evening in question, at between 7:00 and 8:00 p.m.,
he had
gone to Melicia Claasen’s flat in Eagles Nest to purchase
dagga. As Melicia did not have any dagga to sell at the
time, the two
of them walked together to the place near Flamingo Court where
Rastafarians (‘Rastas’) were known to
sell the product.
He said that Flamingo Court was in the Horribles’ area.
[40]
On
the way to the Rastafarians, he and Melicia bumped into Ryno Anthony.
That happened in the area where the concrete slab was.
Ryno had
emerged from the Gullhaven flats as he and Melicia walked up. Melicia
and Ryno struck up a conversation with each other.
He stood a few
metres away waiting for Melicia and Ryno to finish talking. He knew
Ryno to be a member of the Horribles gang. Ryno
lived in the same
block of flats that he did. Melicia and Ryno had their conversation
while standing on the concrete block. He
marked the spot where Ryno
had been standing on exhibit F. His indication coincided with that
which had previously been marked
on the exhibit by Ryno. He marked
the point where he had stood waiting for Melicia as E on exhibit F6.
[41]
Florence
testified that while he was waiting for Melicia shooting broke out.
He looked up and saw the person who was shooting at
Ryno. He
recognized the shooter as Tony. He said that Tony had approached from
behind Ryno. Melicia had been facing Ryno while
they were talking.
She was standing about 1,5 meters away from him. After freezing for a
moment due to shock, he then turned to
run away. By the time he took
flight, a number of shots had already gone off. He was unable to say
precisely how many. He ran into
a passageway behind the Gullhaven
block of flats. He said that he had seen two persons shooting, but he
did not know who the second
shooter had been as he was unable to see
his face because of the angle at which that person was relative to
where he was standing.
He said that the second shooter had been
standing next to Tony, which is consistent with the situation that
can be deduced objectively
from the forensic and photographic
evidence described earlier. He did not see the direction from which
the two shooters had approached
the concrete slab.
[42]
Florence
said that he knew Tony to be a member of the Terribles gang. He had
seen him with members of that gang on many occasions,
almost daily.
He maintained that every time there was a shooting in the area Tony
was involved. He said that even the children
in the area knew that.
He said that he used to see Tony shooting three times a week or even
more. The shootings happened in broad
daylight. He identified accused
number one as Tony. When doing so he remarked that there was no need
for the accused to remove
his mask in the dock for identification
purposes because he knew him well.
[43]
Florence
testified that when the shooting happened it was already dark, but
that the lighting in the area was good enough for him
to be able to
see. He mentioned that there were streetlights on the sidewalk.
However, he said that he could see flashes when the
gunfire was
happening because of the prevailing darkness. He conceded that he
would not have been able to see the flashes had it
been daylight.
[44]
After
the shooting stopped, he reconnected with Melicia. She was in the
road adjoining the concrete block. She told him that she
had been
shot but he did not see any wound. He said that she and he then
proceeded to where the Rastafarians were, where Melicia
collapsed.
She was taken to hospital by a neighbour, whom he named as Pulu.
[45]
Under
cross-examination by accused 1’s representative, Florence said
that he knows Maudlin Solomons but did not see her that
evening. When
confronted with Ryno Anthony’s evidence that he had not seen
Florence on that day, Florence said he was unable
to explain why Ryno
would have said that. He had greeted Ryno when they met. He was also
unable to say why Maudlin should have
said that she had seen Melicia
come to the concrete slab from the direction of the shop (marked as W
on exh F6). He claimed that
there was a shop on the way to the
‘blad’, and, in re-examination confirmed point W as the
place where the shop was.
[46]
If
one studies the aerial photographs and maps put in evidence, one can
see that anyone using Bunting Crescent to walk from Eagles
Nest to
the place where the Rastafarians were would go past the shop at point
W. It is also evident from such a consideration that
crossing the
‘blad’ from the direction of the shop would afford a
shortcut at the junction of Bunting Crescent with
the offshoot lane
that runs past Gullhaven Court and the place where the Rastafarians
were in the direction of Flamingo Place,
which was marked by a
witness as being at point G on exh. F6. The offshoot lane of which I
speak is that marked with the words
‘Flamingo Park’ on
Exh. P2. It is the section of road between Gullhaven Court and the
‘blad’, depicted
inter alia on exh. F6, often referred to
in the evidence as ‘Bunting Street’.
[47]
In
the circumstances, I find nothing inconsistent between Florence’s
evidence and that of Maudlin Solomons concerning the
latter’s
observation about the direction from which she had seen Melicia
Claasen approach over the ‘blad’.
[48]
Florence
could not explain why Maudlin had testified that she had not seen him
on the scene. One would imagine that as they were
reportedly walking
together, Ms Solomons would have seen both of them when she saw
Melicia Claasen approaching. When pressed on
the point Florence said
that their evidence might conflict because it was dark. It is also
apparent that it was quite a busy scene.
Maudlin had also not seen
Cecilia Hartenberg at the scene, but she was undoubtedly there. If
anything, the evidence by the two
witnesses that they had not noticed
each other at the scene lends a measure of assurance about the
independence of their testimony
and detracts from the notion
propounded in their cross-examination, and that of the other persons
who gave eye-witness evidence,
that their evidence was fabricated and
based on instructions given by the leaders of the Horribles.
[49]
Florence
also testified under cross-examination that a person could not walk
in any area of the Dura Flats if he did not belong
in that area. He
asserted that if anyone did that they would be shot at. He said that
he was able to go wherever he wanted because
he knew people ‘on
both sides’.
[50]
Florence
admitted to knowing Wagga as the leader of the Horribles/ 28’s.
He denied dealing in drugs for Wagga. He said that
Wagga comes to
Eagles Nest daily. He professed to be ignorant of the reason for the
fights that take place between the Terribles
and the Horribles. He
claimed to be unaware that the gangs fought each other for turf.
[51]
He
said that did not know a person by the name of Cherel. He identified
Jenene Rhodes as the mother of his children and said that
one Desiree
was Janene’s sister.
[52]
The
next witness called by the state was Brandon Graaf, apparently also
known as ‘Skivvies’. He is a 34-year-old Rastafarian
who
said he was employed as a construction worker. His mother lives in
Gullhaven Court, and he was living there at the time of
the incident.
He now lives somewhere else with ‘other people’.
[53]
Graaf
said that on the night of the incident he was making potjiekos with
some other Rastafarians outside a refuse bin storage hut
between
Gullhaven and Flamingo Place. Suddenly he heard shots being fired.
There was a commotion with bullets flying everywhere
and he felt
himself being injured. The injury was to his lower left leg. He could
tell that the shots were coming from the ‘blad’.
He saw
three persons there who were shooting. He was able to see flashes
from the weapons being fired. He said it was after 9 p.m.
and dark,
but there was light shining onto the ‘blad’. He was
unable to see the shooters’ faces. Under cross-examination
he
for the first time volunteered that two of the three had their faces
covered. He had mentioned earlier that two of the three
had been
wearing hoodies, but that would not ordinarily have obscured the
wearers’ faces. He claimed to have been able to
see only their
clothing. He purported to describe what each of the three had been
wearing and their respective body builds. I find
it unnecessary to go
into any detail in this regard because his evidence was so vague and
contradictory that I would not attach
any weight to it unless it were
corroborated by other satisfactory evidence. He described himself as
having been shocked and confused.
At another stage of his evidence,
he said it had been so dark that he could not see sufficiently to
cook the potjiekos, with the
result that it had been inedible. He was
demonstrably confabulating on the last point because he was still in
the process of cooking
the meal when he was shot and taken to
hospital.
[54]
Graaf
elaborated his evidence by marking with the numbers 2-5 on exhibit F6
where the three persons whom he described as the shooters
had been
positioned when he saw them.
[55]
He
testified that he knew Melicia Claasen by sight, but that he did not
see her in the vicinity at the time of the shooting. He
also knew
Ryno Anthony by his nickname Tete. He said he had also not seen Ryno
at the time of the shooting.
[56]
Graaf
testified that the police took him to the hospital. He said that he
had to wait to be treated there, so he left and went home
where his
mother ministered to his injury, which he said was just a flesh
wound, with ointment and bandages. Pressed on why he
had left the
hospital, he said that it was because he was very drunk and in shock.
According to Graaf, he and his fellow Rastafarians
had been drinking
a punch that they had made and left to ferment for three days. He
confirmed that the Rastafarians habitually
sold dagga from the spot
where they had been making a potjie that evening.
[57]
Graaf
was a notably unimpressive witness. His evidence, insofar as it could
safely be relied upon, went no further than to confirm
that there was
a shooting incident at the ‘blad’ on the evening of 1
January 2020 in which he was injured.
[58]
The
next witness was Jenene Rhodes, a resident of Eagles Nest flats,
where she occupies an apartment at no. […]. She is 39
years
old and has lived all her life in the Dura Flats. She said that
Eagles Nest fell within the Horribles gang’s territory.
She
identified the blocks of flats associated with the rival Terribles
gang as Albatross Place, Babblers’ Place and Canary
Place. She
said that, amongst themselves, the residents of the Dura Flats were
classified by the areas in which they lived and
associated with the
prevailing gangs there irrespective of whether they were gang members
or not. Having lived in the community
all her life, she knew who
belonged to each of the opposing gangs. Melicia Claasen was her
niece, the daughter of her sister Mary
Claasen. Melicia lived at […]
Eagles Nest.
[59]
Asked
whether she knew the accused, she pointed out accused 1, who was
referred to by all the other witnesses who identified him
as ‘Tony’,
calling him ‘Koela’. She said that she did not know
accused 2. She pointed out accused 3 as
‘Tony’, whereas
other witnesses had called that accused ‘Koela’. Later in
her evidence she explained that
although she knew both men by sight
she had not known their names at the time of the incident and had
been told their names by
youngsters of the area. She later added that
she had heard of Koela by name for some time. She said that her
sister Desiree had
told her that same evening that
Koela
was Tollie’s son
. She said that
Desiree had been standing with her at the time that the person she
called Koela had fired a shot towards her.
[60]
She
said that she knew accused 3, whom she had called ‘Tony’,
having seen him grow up in the area. She said that he
used to sport
Rasta hair in the past, although he did not have that hairstyle at
the time of the shooting. She also said that he
used to visit his
cousins in Crow Court and that his father had been a soccer player.
His mother was friendly with people living
at Eagles Nest. The
witness was not cross-examined on these details given in respect of
accused 3.
[61]
Jenene
Rhodes testified that on the evening in question she and various
members of her family were making potjiekos outside her
flat at
Eagles Nest. She said that they began preparing the potjie at about 8
p.m.. While they were busy with the preparation of
the food, she sent
her 12-year-old son to the tuckshop (Mobil) in Bunting Crescent.
Shortly after her son had left, she heard
shots being fired. She ran
in the direction of the gunfire to see if she could see her son. As
she reached the corner of Eagles
Nest someone called out ‘
Hier
kom hulle
’, which she understood
to be a reference to the persons who had been shooting. She, together
with the crowd of other people
in the vicinity, ran for safety. She
managed to get inside her flat and looked out through the window of
her front room. She saw
two men running through the courtyard of
Eagles Nest in the direction of the nearby main road, identified by a
later witness as
Charel Uys Drive (the position of which is depicted
on exh.s P1 and P2).
[62]
She
said that she recognised the two men. She was familiar with them as
people from the area. They were members of the Terribles
gang. She
could see from their demeanour that they had been involved in the
shooting. The words she used were ‘
Ek
kon sien hulle was wild
’. She ran
out of her flat and swore at them from the entrance to her part of
the apartment block. She said one off them (whom
she identified as
‘Koela’ -i.e. accused 1) turned around and fired a shot
towards her. She said that there was no difficulty
with visibility.
It was dusk, not completely dark yet, and there were lights
illuminating the courtyard.
[63]
She
said that she went to the scene of the shooting afterwards and saw
Melicia’s body lying there in somebody’s yard.
She
thought the yard belonged to a Rasta. It was at a maisonette attached
to Flamingo Court.
[64]
Under
cross-examination by accused 1’s attorney, the witness said
that she had known Ryno Anthony for about 15 years and that
she had
children by Wayne Florence. She also knew who Wagga was. Although she
had been dealing in drugs at that time, she denied
having done so for
Wagga. She said that she did not know if Wagga was a gang leader but
volunteered that Ryno Anthony would be
able to say whether he was or
not. She was aware that the 28’s and the Horribles went under
the British flag. Mr Halday,
for accused 1, pointed out that the
weatherproof jacket that the witness was wearing had a Union Jack
label on the right sleeve.
The witness explained that it was not her
jacket but one that she had borrowed to come to court. The day on
which she testified
was wet and wintery.
[65]
The
witness was more confident in her delivery than most of the other lay
witnesses. She was not upset in cross-examination. The
only troubling
aspect to her evidence was her identification of accused 1 as ‘Koela’
and accused 3 as ‘Tony’,
whereas all the other witnesses
had the names the other way round.
[66]
Jenene
Rhodes was followed in the witness box by her older sister, Desiree
Adams. Ms Adams looked much older than Jenene. She
confirmed
that she was 55 years old, which makes her Jenene’s senior by
16 years. .
[67]
Ms
Adams said that she was at Jenene’s flat on the evening in
question, where potjiekos was being prepared. She arrived there
at
about 8:30 p.m., when a start on the preparation of the food had
already been made. She estimated that it was at about 9:00
p.m. that
she heard shots being fired. She jumped up to run in the direction of
the gunfire. She explained that people regularly
did that when there
was gunfire in the area. She said they did so in order to see what
was going on and if anyone had been hit;
in other words, out of
curiosity. When she reached the corner of the Eagles Nest building,
she heard someone shouting ‘
Hier
kom hulle
’. There was no evidence
as to from which direction the person who called out had seen the
suspected shooters approaching.
If the shooters had run from the
‘blad’ into the passageway near the shop as described by
Cherel Brandt, that would
have taken them into Courser Ave, which
joins up with Bunting Crescent in the proximity of Eagles Nest.
[68]
Along
with a number of other apparently curious people, Ms Adams then
turned around and stampeded back in a panic from where they
had come.
Her retreat was slowed up by children blocking her way and she was
consequently unable to get into Jenene’s flat
soon enough and
had to take cover behind a wall in the stairwell a short distance
away from Jenene’s front door. She demonstrated
how she had
stood there pressed against the wall with her eyes shut, apparently
hoping desperately that she would not be seen as
she heard the
persons whom she believed to have been the shooters running past
through the courtyard that divides Eagles Nest from
the neighbouring
block of flats, Darters’ Place. She said that her brother
Jermayne had also not been able to get back soon
enough to go into
Jenene’s flat and that he took shelter up the stairs.
[69]
Ms
Adams said she then noticed Jenene emerging from her flat. I assume
that she must have opened her eyes when she heard the door
opening.
Jenene went to peer out from the entrance to that part of the flats.
Ms Adams joined her and also looked out. She saw
two men, each of
them carrying a firearm. Jenene swore at the two men who had run past
in the courtyard, at which one of them turned
around and fired a shot
in their direction. She said that the men carried on running ‘in
their direction’ (‘
in hulle
rigting
’), by which the witness
meant in the direction of Charel Uys Drive which would take them into
the Terribles gang’s
territory. She said that she knew both men
from the area. She knew them as persons who had been involved in
gunfights. She identified
them as Tony and Koela. She said Koela (by
which she, unlike her sister, meant accused 3) was the one who had
turned and fired
a shot in Jenene Rhodes’ direction. She said
that she had recognised Tony by his height. In re-examination by the
prosecutor,
Ms Adams stated that when Koela had fired the shot,
Tony had also turned and looked back over his shoulder. Under further
questioning by accused 1’s representative, she maintained that
Tony and Koela were always seen together. They are ‘the
hitmen’, she said of them.
[70]
The
witness indicated that she knew accused 2 as ‘Ses’, but
she was sure he was not one of the two men she had seen
running
through the courtyard.
[71]
She
said that she had learned later that Melicia Claasen had been killed
in the shooting, but she had not herself gone to the scene.
[72]
Desiree
Adams admitted under cross-examination by accused 1’s legal
representative that her daughter had been arrested for
unlawful
possession of two firearms. She denied that the firearms were
Wagga’s. She vehemently denied a proposition put to
her by
counsel for accused 3 that she and her sister were accused in a
pending murder case.
[73]
Mr
Jermayne Rhodes, the brother of the Jenene Rhodes and Desiree Adams
testified next. He said that he was at the family gathering
at Eagles
Nest that evening. He was expecting his son to arrive from the
airport. He anticipated that his son would arrive just
after 8
o’clock. After his son’s arrival, and when his son had
gone off to greet some of his friends nearby, Rhodes
heard the sound
of gunfire from the direction of Flamingo Place. That happened about
five minutes after his son had gone off from
Eagles Nest in the
direction of Bunting Crescent. Concerned about his son’s safety
he ran through the courtyard in the direction
of Bunting Crescent. As
he did so, he saw two men coming in the opposite direction. He
noticed that they had emerged from the passageway
between the end of
the Eagles Nest block of flats and the maisonette at the entrance to
Eagles Nest from Bunting Crescent. He said
that as they came towards
him a shot went off. No other witness described hearing this shot.
Rhodes took cover in the stairwell,
near where his sister Desiree was
also sheltering.
[74]
He
said that he noticed as the men ran past the entrance area where he
was sheltering that both were carrying handguns. He used
the word
‘pistols’.
[75]
He
said that Jenene Rhodes came out of her flat and swore at the men, at
which a shot was fired at her from the Charel Uys Drive
end of the
courtyard.
[76]
Mr
Rhodes said that everything had happened so quickly that he did not
have the opportunity to be able to recognize the two men.
He
described the conditions as dusk (‘skemer’) but said
there was adequate lighting in the courtyard from streetlights
and
lights mounted outside the flats.
[77]
Under
cross-examination he said that he had not heard anyone calling ‘
Hier
kom hulle
’, as described by his
sisters.
[78]
The
identification by Jenene Rhodes and Desiree Adams of accused 1 and 3
was suspect because their report about the shooting at
Eagles Nest
was made more than a month after the incident. The delay that
attended their report was not revealed until the investigating
officer gave evidence at a later stage of the trial, and it was not
explained. There was also the mix-up in Jenene Rhodes calling
accused
1 ‘Koela’ and accused 3 ‘Tony’. I accept that
she did, however, give other details about accused
3 that suggested
that she did know who she was talking about even, if she got his name
wrong. It is was nevertheless significant
that Ms Rhodes and Ms Adams
identified different people as the shooter at Eagles Nest. The former
said it was accused 1 and the
latter said it was accused 3. It was
also notable that none of the witnesses to the shooting at the ‘blad’
testified
to hearing further shots after the shooters had run away
from there. Eagles Nest is quite close to the ‘blad’ and
there
can be little doubt that shots fired at Eagles Nest would have
been audible at the ‘blad’ in ordinary circumstances.
I
do acknowledge, however, that there was evidence that loud music was
being played in the area which might have affected the position.
[79]
In
all the circumstances I consider that it would be unsafe to found a
conviction of any of the accused on count 6 on the basis
of the
evidence of Ms Rhodes and Ms Adams. The state correctly conceded as
much, and Ms van der Merwe intimated in her address
that the state
did not persist in pressing for a conviction on that count.
[80]
Constable
Adrian Elias of the SA Police Service stationed at Atlantis testified
that he had been on vehicular patrol in the area
on the night of 1
January 2020 together with his colleague Sergeant Matjan when he
received a radio message concerning a shooting
incident at Dura Court
(which is one of the collective names for the Dura Flats). The report
had been received from Flamingo Park.
It took him approximately 10
minutes to reach the scene, where he found an injured man (evidently
Ryno Anthony) on the side of
the road that leads past Gullhaven Court
towards Flamingo Place. There was a congregation of people on the
scene when he got there.
He put his time of arrival at 21h35. He said
the area of the shooting was well enough illuminated for him to be
able see everything.
He said he was also assisted by the headlights
of his vehicle. He mentioned that there were streetlights in Bunting
Crescent and
that each block of flats in Dura Court usually had a
bright ‘council light’ above the name of the block on the
exterior
of the buildings. It was pointed out to him in
cross-examination that no such light could be seen on the exterior of
Falcon Place
in exh F6. It is noteworthy, however, that the exterior
wall of Falcon Place does not overlook a road as most of the end
walls
of the other blocks of flats do, and as the end of Gullhaven
Court does.
[81]
He
said that no sooner had the police vehicle come to a standstill, than
members of the public loaded Ryno Anthony into the vehicle.
He said
that he and his colleague were on the scene for no more than three
minutes. There were no other policemen there at the
time. He and his
colleague then transported Anthony to the nearby Wesfleur Hospital,
which I gathered was on Charel Uys Drive not
that far, as the crow
flies, from the scene of the shooting. Det Sgt Noordien subsequently
confirmed that the hospital is adjacent
to the magistrates’
court complex. The situation of the hospital is also indicated on
Exh.s P1 and P3.
[82]
While
Cst. Elias was at the hospital he was approached by Brandon Graaf who
reported that he had also been injured in the shooting
incident. He
noticed that Graaf appeared to have an injury on his leg. The place
of the injury was covered by some form of makeshift
bandaging through
which blood could be seen to have seeped.
[83]
He
viewed the corpse of Melicia Claasen at the hospital. He also saw
Cecilia Hartenberg, who was in an unresponsive condition.
[84]
Elias
testified that the Dura Flats were notorious for gang activity and
that shootings occurred there virtually daily. He had been
stationed
in Atlantis for nine years when he gave evidence. He said that the
community had no confidence in the local police force
and frequently
reported matters to the police station in nearby Melkbosstrand,
rather than to the Atlantis police station.
[85]
Ms
Cherel Brandt, a 20 year old resident of the Dura Flats was on the
witness stand for the entire day of the seventh day of the
trial.
[86]
Unlike
the preceding lay witnesses, she had not lived in Atlantis all her
life. She came to the area at the age of 14 from Beaufort
West. She
finished her schooling in standard 9 at the Atlantis Secondary
School. She said that she had been a friend of the earlier
witness,
Maudlin Solomons, since 2014. She attended a party at Maudlin’s
home at […] Gullhaven Court on the evening
of 1 January
2020. She arrived at the party at between 4 and 5 p.m..
[87]
At
some stage Ryno Anthony, whom she called by his nickname ‘Tete’,
also arrived at the party. Ryno and Maudlin went
outside for a smoke.
They mentioned to Ms Brandt that they would let her know when she
could join them. After waiting about five
minutes she went out to see
why they were taking so long. When she emerged from Gullhaven Court
she saw Ryno standing on the ‘blad’
chatting to Melicia
Claasen. When asked to indicate on exh. F6 where Ryno had been
standing on the ‘blad’ she marked
a place more or less in
the same place that previous witnesses had indicated he had been when
they saw him speaking to Melicia.
She knew Melicia Claasen as the
aunt of her friend, Mu’nas.
[88]
As
Ms Brandt walked towards the ‘blad’ she saw two men
(‘
ouens
’)
approaching out of the darkness over the ‘blad’ from the
direction of the park or playground situated beyond
the ‘blad’.
The park is clearly depicted in the photograph exh. F1 It is on the
corner of Charel Uys Drive and Reyersdal
Drive, opposite the white
roofed complex marked on the exhibit with an ‘H’ that was
identified in the evidence as the
Atlantis magistrates’ court.
[89]
The
men were coming towards Ryno Anthony from behind him. Ms Brandt
sensed something to be amiss because people never came through
the
playground at that time of day. Her apprehension of danger made her
call out a warning for Ryno to watch out and look behind
him.
[90]
One
knows from the other evidence that someone approaching through the
park from the direction of Charel Uys Avenue could well be
coming
into the Horribles territory from the Terribles’ area. It was
made very evident from the testimony adduced during
the trial as a
whole that any resident of Dura Court would have their antennae
finely attuned to indicators of potential inter-gang
violence
breaking out. The undisputed facts of this case illustrate the
potentially fatal consequences of being caught in the crossfire
in
such eventualities. It does not take much imagination to understand
that in such conditions a high state of alertness would
be part of
everyone’s survival instincts.
[91]
The
two men who approached from the park had what she referred to as
‘Pagad doeks’ wrapped over the top of their heads
and
covering their mouths and lower faces rather as if they had been
wearing the sort of face masks with which we are all now all
too
familiar. She explained that a ‘Pagad doek’ is a type of
checked scarf, also known as a ‘Palestinian scarf’.
As
she watched them, and simultaneously with her shout to Ryno, the two
men pulled off their headdress and began shooting at Ryno
Anthony.
She recognised the shooters as accused 1 (whom she called Tony) and
accused 3 (whom she named as Koela). She marked as
P on exh F6 the
place where the two men were when they started shooting.
[92]
At
this, the witness ran back into Maudlin Solomon’s flat. Maudlin
was not in the flat when she got there. She then went out
again to
see what was going on and if anyone had been hit. Ms Brandt said that
the shooting was still going on when she re-emerged
from the
building.
[93]
When
she came out of the building, Ms Brandt saw Nadiem (to whom she at
times also referred as ‘Ses’) running over the
‘blad’.
She said that he had a weapon in his hand. She identified Nadiem as
accused 2. At the same time, she noticed
Maudlin Solomons emerging
from the passageway behind Gullhaven Court (which is the same
passageway as that into which Ryno Anthony
testified he ran into when
fleeing the shooters). She said that the three accused ran around the
‘blad’ almost as if
they wanted people to see who they
were (I understood the witness to be describing her perception of the
accused’s behaviour
as a kind of showing off display) before
they ran off over the tiled area and disappeared into the passageway
near the shop marked
with a W on exh F6. The passageway in question
is clearly visible on exh F5. It leads from Bunting Crescent into
Courser Avenue,
as can be seen on Exh. P1. As can also be seen from
the maps and photographs, Courser Avenue then leads back into Bunting
Crescent
in the vicinity of Eagles Nest.
[94]
Ms
Brandt said that she knew all three accused by sight, having seen
them around in the area. She had made their personal acquaintance
two
weeks or so before the shooting incident when they came to a
gathering at one of her friend’s houses. She mentioned that
she
had also seen them together, before the aforementioned gathering and
after it, in the vicinity of the ‘new Kentucky’
at the
Telkom building, the location of which had been marked by previous
witness as U on exh F6.
[95]
When
it was put to her that the accused denied any such meeting, the
witness rejected the proposition, pointing out that she had
even
taken a drive from the party with accused 1 and two others to the
nearby area of Protea Park. The vehicle that they had gone
there in
was an Avanza driven by someone called Toontjie, who was a taxi
driver. She said that accused 1 had gone briefly into
a house at
Protea Park while the rest of them waited in the car, and they had
then all returned to the party. Accused 2 and
3 had remained at
the party while they were away. She estimated that they had been away
from the party on this expedition for between
15 and 20 minutes. When
they returned from Protea Park, she did not see accused 2 but accused
3 was still there.
[96]
The
police took a statement from the witness on the night of the
shooting. The time is given on the statement as 23h45. The statement,
which was admitted as exh. M, contained a sentence to the effect that
the witness had not seen who had been shooting: ‘
Ek
het nie gesien wie skiet nie’
.
That was, of course, inconsistent with her oral testimony at the
trial. When taxed with the inconsistency, Ms Brandt said that
when
she made the statement she had not wanted to be involved in the case.
She explained that she was afraid. That she did go in
fear was borne
out by the evidence that she was taken by the police less than two
weeks later to a place of safety in Springbok,
where she remained for
about a month before deciding of her own accord to return to
Atlantis. She said that she had been threatened
by one ‘Saadje’
(Nishaad van Niekerk).
[97]
Ms
Brandt was also taxed in cross-examination with a second statement
that she had given to the police in April 2020. It was suggested
that
making the second statement was irreconcilable with her evidence that
she had been reluctant to be involved in the case. The
witness
explained that she had made the second statement after she telephoned
the detective investigating the case to reiterate
that she did not
want to be involved as a witness. She did that after having been
threatened by her cousin, who is a member of
the Terribles, that he
would shoot her for putting his friends in gaol. The detective had
told her that she could not withdraw
from the case as she had already
given a witness statement. The detective then came to see her to make
a second statement because
she had not described in her first
statement how the accused had been dressed at the time of the
shooting. The second statement
does not contain anything about the
accused’s dress. The additional detail added in the second
statement gave a description
of the firearms that accused 1 and 2 had
been carrying.
[98]
The
witness was unable to explain why, in the face of her oral testimony,
the statement dealt with the appearance of the weapons
the accused
had been carrying, rather than with what they were wearing. I do not
ascribe significant weight to her inability in
this regard. It was
apparent from the investigating officer’s evidence, of which I
shall treat presently, that he had been
instructed by the
prosecutor’s office to seek further detail in a given respect
in a supplementary witness statement to be
obtained from Ms Brandt.
It is clear from the statement that the investigating officer took
that the further detail concerned whether
she was able to describe
with particularity the weapons that she had seen the suspects using.
That Ms Brandt may have misremembered
the nature of the extra detail
that she had been asked about as pertaining to the suspect’s
clothing is neither here nor
there. It became clear from the
investigating officer’s evidence that she was in an overwrought
and traumatised condition
when he interviewed her for the second
statement.
[99]
It
was evident from her demeanour while testifying that Ms Brandt was
under considerable strain and very obviously frightened. I
noted that
she frequently looked fearfully towards the dock and into the public
gallery above the courtroom. I also noticed that
the public gallery
was notably fuller when she gave evidence than it had been on the
preceding days of the trial.
[100]
I
found Ms Brandt to be a compelling witness. She put all three accused
on the scene in a statement given to the police very shortly
after
the shooting. The time of her identification of the accused
corresponded closely with the times of their arrest. There would
have
been little or no opportunity for anyone to prevail on her to falsely
incriminate the accused. Despite the pressure and threats
to which
she has been subject, she has remained consistent and steadfast as to
which of the suspects she saw there.
[101]
I
also find it significant that she should in her statement have
confirmed her identification of the accused with reference to having
sat with them in a ‘Company’. The ‘Company’
mentioned in her almost contemporaneously made police statement
was
obviously the gathering about which she gave convincing detail during
her oral testimony. She knew exactly who she was talking
about when
she identified the suspects she had seen to the police shortly after
the shooting incident.
[102]
Ms
Brandt’s explanation for saying that she had not seen which of
the accused had done the shooting was consistent with her
persistent
and very evident reluctance to be involved in the case. It is readily
understandable that residents in the area who
were witness to
gang-related shootings would apprehend danger to themselves should
they give incriminating evidence against those
involved. As it was,
the unchallenged evidence was that Ms Brandt’s life was
threatened more than once on account of her
involvement as a witness.
She impressed on the witness stand as very frightened but brave young
woman.
[103]
I
do not find the fact that she was the only one of the eyewitnesses to
describe that accused 1 and 3 wore scarves around their
heads a valid
basis to question the truth or reliability of Ms Brandt’s
evidence. The discrepancy between what she said she
saw and what Ms
Solomons described depends very much on the possible interval between
the time that Ms Brandt first saw the approaching
gunmen and the time
that Ms Solomons did. It would need only a second’s difference
for Ms Brandt to have seen the men when
they were still wearing the
scarves and Ms Solomons to have first seen them when the scarves had
been pulled off. Some form of
disguise might explain why Melicia
Claasen who, as discussed earlier, was in all probability facing the
approaching gunmen did
not recognise the danger before the shooting
started.
[104]
I
find it significant that Ms Brandt did not incriminate all three of
the accused as directly involved in the shooting. She put
accused 2
on the scene after the shooting had stopped. While she testified to
having seen accused 2 carrying what appeared to be
a firearm, she did
not claim to having seen him firing it, or indeed having been visibly
present while the shooting was happening.
Her discriminatory
treatment of the respective degrees of involvement of the accused in
the events is inconsistent with the version
of someone intent on
giving falsely incriminating evidence.
[105]
It
is also significant that Ms Brandt was the only eyewitness who gave
evidence not only of what she saw of the gunmen before the
shooting
and when it commenced, but also afterwards. Her description of the
accused’s behaviour in carrying out what one
might call a
victory parade before they ran off was the sort of detail that only
the most imaginative of people might invent. It
was very evident from
her demeanour when describing that behaviour that the witness found
it difficult to credit, indeed astonishing,
that the accused should
actually have wanted to be seen and recognised. It was evident from
her testimony that Ms Brandt had the
persons involved in the shooting
in sight for considerably longer than the other eyewitnesses and
that, of course, would have lessened
the chances of her having been
mistaken in her identification of them.
[106]
The
last witness called in the state’s case was the investigating
officer, Det Sgt Noordien. He has 18 years’ service
in the
South African Police Service, and at all times material to the
current case has been attached to the Anti-Gang Unit at Faure.
He was
assigned to the current case on 2 January 2020 because of the
alleged connection of criminal gang activity in the shooting
of a
woman and a young child. There were already witness statements from
Maudlin Solomons, Cherel Brandt and Ryno Anthony in the
docket when
he took it over from the Atlantis police.
[107]
His
first act after assuming his function as investigating officer was to
visit Ryno Anthony at the Groote Schuur Hospital on the
morning of 2
January 2020. He found Anthony on a drip, but in a well enough
condition to be able to converse with him. He said
that Anthony spoke
slowly but coherently. Anthony confirmed that he had already given a
witness statement. It appears that Anthony
was asked to undertake a
photo identification from 45 colour photographs that Mr Noordien
showed to him. I have already dealt
with the pointing out done by
Anthony when I reviewed his evidence earlier in this judgment.
Noordien said that the photo ID parades
were done on 3 January 2020
at Groote Schuur Hospital and where Maudlin Solomons was living,
respectively.
[108]
Mr
Noordien then proceeded to the Red Cross Children’s hospital to
ascertain the condition of Cecilia Hartenberg. I have already
described the information that he was given there.
[109]
The
investigating officer testified that he was informed by the Atlantis
police that two of the witnesses were being threatened.
These were
Maudlin Solomons and Cherel Brandt. Maudlin Solomons, who was already
staying somewhere away from her usual place of
residence, went into
the witness protection scheme and Cherel Brandt preferred to be taken
to a place of safety at a location of
her own choice. Maudlin
Solomons asked to be released from witness protection after a period
of a few weeks, Noordien said it was
less than two months.
[110]
Mr
Noordien explained that he had not been involved in arresting the
accused, who had all been taken into custody in the early hours
of 2
January 2020. (The evidence of the accused was that they were
arrested before midnight on 1 January) He testified that someone
by
the name of Damian Johnson, otherwise known as ‘Damme’,
had also been arrested. Nishaad van Niekerk, also known
as Saadje,
had been arrested later in the day. Johnson was released before the
first court appearance and van Niekerk was let go
after the
investigating officer had confirmed with van Niekerk’s family
that he had been with them at Melkbosstrand at the
relevant time. He
conceded that he had not investigated the alibi defences of the
accused. His reason for having done so in van
Niekerk’s case
was that only one person (Anthony) had identified van Niekerk as
having been involved.
[111]
Noordien
confirmed the essence of Cherel Brandt’s evidence concerning
the circumstances in which she had given her second
witness
statement. He said he had been instructed by the office of the
Director of Public Prosecutions to obtain a further statement
from
her. He said that he had spoken to Cherel Brandt and her sister in
the grounds of a church because they had been unwilling
to have a
police vehicle seen parked near their house. He described Cherel
Brandt as frightened and in tears but he eventually
persuaded to give
her further cooperation. Cherel declined an offer that a case of
intimidation could be opened against the persons
who were threatening
her.
[112]
Mr
Noordien also said that on the instructions of the office of the
Director of Public Prosecutions he had double checked Anthony’s
identification of Saadje van Niekerk with the witness on 28 April
2020. He said that Anthony stuck to the identification he had
given
on the day of the incident.
[113]
After
initially stating that all three of the accused had distinguishing
tattoo markings, Mr Noordien was able to describe
only those he
had seen on accused 1 and 2. He conceded that he had not asked
accused 3 whether he had any tattoos. Accused 1 and
2 both had
tattoos suggesting their association with the Ugly Americans. Under
questioning by accused 2’s counsel, the witness
confirmed that
the accused had a bandage on his foot on 2 January 2020 and that the
accused had explained that it was on account
of an injury sustained
in a shooting incident with a rival gang before that which is in
issue in the current matter.
[114]
Noordien
disclosed that Jenene Rhodes and Desiree Adams had reported what had
allegedly transpired at Eagles Nest on the night of
1 January 2020 at
the Atlantis police station only on 5 February 2020.
[115]
It
was put to Mr Noordien that accused 3 had been assaulted before his
interview with the witness for the purpose of taking a warned
statement. Noordien said that he was unaware of that. The accused had
not told him about being assaulted when he asked him whether
he had
been mistreated or subjected to undue influence to make a statement.
[116]
The
state closed its case after Mr Noordien completed his evidence. All
three accused thereupon applied to be discharged in terms
of
s 174
of
the
Criminal Procedure Act. I
refused the applications and indicated
that my reason for doing so would be given later.
[117]
It
is trite that an accused person is entitled to his or her discharge
at the close of the prosecution’s case if at that stage
there
is no evidence upon which a reasonable court could convict him or
her. A court seized of the question of the possible discharge
of an
accused at the close of the state’s case is concerned with
whether there is prima facie evidence that
could
,
not
would
,
sustain a conviction. The court does not concern itself in a
discharge application in a determinative manner with questions of
credibility; which is not to say that it will refuse a discharge if
the only evidence against an accused is so obviously unreliable
or
lacking in credibility that there is no prospect of it standing
muster at the end of the day.
[118]
In
the current case there was eyewitness testimony identifying all three
accused as having been involved in the shooting incidents
that gave
rise to the charges brought against them. There was also evidence
that all three of them were gang members and that the
shootings were
probably gang-related. I shall have to treat of that evidence
determinatively in this judgment. Suffice it to say
that whatever my
findings concerning it might be now, at the end of the trial, it was
not of the sort that could be rejected out
of hand without the need
to weigh its credibility in the manner that is generally considered
inappropriate in an application in
terms of
s 174.
On the
contrary, it was evidence that were it to be accepted at the end of
the day was material upon which a reasonable court could
bring in a
conviction.
[119]
After
the dismissal of the applications in terms of
s 174
, all three
of the accused chose to adduce evidence in their defence. It will be
recalled that each of them maintained that they
were somewhere else
when the shootings happened.
[120]
Accused
1 testified that he is 25 years old and that his usual place of
residence is at [...] Canary Place in the Dura Flats
part of
Robinvale, Atlantis. He has lived there all his life. His parents and
two sisters also live at that address. He has been
a member of the
Ugly Americans gang since he was 16. While in prison, he joined the
27’s gang. He dealt in drugs for the
Ugly Americans. He
volunteered that he had previously been arrested on four separate
occasions but had never been convicted because
the charges had been
withdrawn. He said that they were all gang-related cases. Ryno
Anthony, the complainant on count 4 in the
current matter, had been a
complainant in one of the previous cases in which he had been
detained. The charge had been one of attempted
murder. He did not say
whether that charge had also arisen from a shooting incident. He
claimed that Ryno Anthony was a shooter
for the Horribles, and
mentioned that he had been arrested on a murder charge only a week or
so after he (Anthony) had testified
in the current matter. He said
that he had witnessed first-hand Anthony’s involvement in a
shooting incident.
[121]
Accused
1 confirmed the rivalry between the Terribles and the Horribles and
said that they clashed whenever they encountered one
another. He said
that, if they had weapons on them, his gang would shoot at the
Horribles. The rivalry was about ‘turf’
and drug dealing.
He denied that the Ugly Americans had a gang leader. He maintained
that the gang’s activities were regulated
by consensus between
its members. Decisions were made at meetings of the gang’s
members. He denied that he was ever present
at or involved in
shooting incidents between the gangs. He was always at home he said.
If, however, he happened to witness a shooting,
he would just stand
to one side and watch. He claimed to stick to his role in the gang
which was to deal in drugs, the income from
which was shared with the
rest of the gang. He conceded that the Terribles sent shooting
parties into the Horribles’ ‘territory’
on
occasion, but denied that he was ever part of such incursions. He
conceded that the Terribles did have shooters, and allowed
that
members of the local community would get to know who the shooters
were.
[122]
He
was friendly with both accused 2 and 3, who were also members of the
Ugly Americans gang. Neither of them had any function in
the gang. He
said accused 2 just smoked dagga. Accused 3 worked at a factory. He
said both of them were involved in taunting and
throwing stones at
the rival gang, but not in shooting at them. If correct, this
evidence would suggest there would be little reason
for persons
connected with the opposing gang to falsely incriminate them.
[123]
The
accused said that he went to a party at a person called Eugene’s
house in the adjoining area of Beacon Hill on the afternoon
of
31 December 2019 and only returned home the next day, where,
deeply under the influence, he retired to bed until about
10:00 p.m..
He was unable to give the precise address at which the party took
place. He said that his parents knew Eugene and that
he had told them
where he was going. When he got up at about 10 p.m. he indicated his
intention to go out to buy a dagga cigarette
and asked his mother for
R2 to pay for it. She told him that she did not want him to go out
because she had heard shooting outside.
He went back to his room and
lay on the bed and watched television in his bedroom. He said that he
was still doing that when the
police arrived at the flat to detain
him. The accused testified that he was accordingly not outside at any
stage on the night of
1 January 2020.
[124]
He
was unable to say how his parents had spent New Year’s Day.
When he arrived home from the party his mother had been in
the front
room. He was unable to say where his father was at the time, as he
had not seen him. Only one of his sisters was at home
when he
returned, the other was out. He named Anthea as the sister who was
out and Mishka as the one who had been at home in the
front room with
his mother. The accused’s evidence that he did not know how his
parents had spent the day was somewhat inconsistent
with his father’s
subsequent evidence that he had complained to his son for not being
present to help him with the braai
fire.
[125]
He
said that his father was in the front room together with both of his
sisters when he woke up late in the evening of 1 January
2020. He did
not speak to his father at the time. He just walked through the room
on the way to going to speak to his mother in
the kitchen.
[126]
Accused
1 said his parents knew that he was a gang member, but that his
father did not know that he dealt in drugs. His mother,
who works as
a domestic worker in Melkbosstrand and is the sole breadwinner in the
household, had not seen him deal in drugs, but
she was not willing to
accept any financial contribution from him because she was not
prepared to take ‘dirty money’
(Afriks. ‘
vuilgeld
’).
He said that he did not sell drugs from home, but only in the street.
[127]
Accused
1 stated that when the police came to his flat they did not inform
him why they were arresting him. They merely instructed
him to get
dressed and said that they could talk at the police station. He said
that when he arrived at the police station he was
assaulted and then
taken to the cells. After an hour or so he was collected from the
cells and assaulted again. His evidence was
that they (the police)
‘assaulted us again’. Asked what he meant by ‘us’,
he said that referred to himself
and the other two accused. (Other
evidence in the trial suggested that the accused had been kept apart
and had only seen each other
some days after their arrest. Accused 1
in later evidence under cross-examination said that they had seen
each other when Mr Noordien
had come to interview them.) The police
refused to tell him why he had been arrested. He was also forced sign
a form in respect
of the taking of his fingerprints. I suspect that
the form the witness was referring to was probably in fact one in
which he was
asked to acknowledge that he had been informed of his
rights upon having been arrested. He said that the form had not been
read
to him.
[128]
Accused
1 testified that the investigating officer, Mr Noordien, had come to
interview him on the fourth day after his arrest. Noordien
explained
who he was and what he was looking for from the accused. He informed
him of the reason for his arrest. Amongst other
matters, Noordien
checked the accused for tattoos and identified the Ugly Americans
tattoo marking on the accused’s back.
Accused 1 confirmed that
two other persons, Nashied van Niekerk (‘Saadje’) and
Damien Johnson (accused 3’s brother)
had also been arrested,
but that they had been released.
[129]
He
initially ventured that the witnesses who had testified to having
seen him at the shootings were speaking in relation to allegations
against him which they had heard, and not as to what they had seen.
He later asserted that the witnesses had testified against
him
because they were associated with a rival gang that was in
competition with the Ugly Americans in the drug-dealing that goes
on
in the area. He went on to claim that the witnesses had been
instructed to implicate him to get him out of the way.
[130]
Accused
1 denied having been at a party a fortnight or so before his arrest
that had also been attended by Cherel Brandt. He denied
Ms Brandt’s
evidence that he had left the party to travel in an Avanza vehicle to
an address in Protea Park. He said that
Ms Brandt’s family did
tasks for one Wagga, the leader of the Horribles. He knew her only
from having seen her about in the
Dura Flats area.
[131]
He
said that Maudlin Solomons had a boyfriend who is member of the
Horribles. She also sold drugs for Wagga and worked as a cleaner
for
Wagga’s wife. He indicated that Wayne Florence was also one of
Wagga’s workers. Under cross-examination he said
that he used
to see Florence travelling in a motor vehicle together with Wagga.
That was not put to Florence when Florence testified.
Accused 1 also
said he saw Florence from time to time when Florence came to purchase
drugs. I find it improbable that Florence
would buy drugs from the
Terribles if he were an associate of the leader of the Horribles-28’s
alliance. The accused’s
evidence in this regard tends to bear
out Florence’s claim that he was an ‘independent’,
able to move freely
on both sides of the gang divide.
[132]
Accused
1 said that Florence would also see him washing cars at times. He did
not know where Florence lived. Notably, in the context
of his
father’s evidence that Florence sometimes worked as a tiler
with him on building contracts, the accused said nothing
about that
connection. The father’s evidence was that the accused was also
employed by him on such contracts.
[133]
Accused
1 testified that Jenene Rhodes dealt in drugs on Wagga’s behalf
and that her sister, Desiree Adams is the person who
stores Wagga’s
ammunition for him. He said that he had heard it told that the
shooting on the night of 1 January 2020
was part of a fracas
between the Horribles and the Fancy Boys gang, who had previously
been in alliance with one another. He believed
that the shooting had
been about ‘cases’, a reference to an apparent practice
between the gangs to trade in the withdrawal
of charges laid against
their respective members.
[134]
Accused
1 was not a good witness. His evidence was inconsistent and
contradictory in material respects and implausible in others.
[135]
He
gave conflicting evidence about the time of his return from the party
in Beacon Hill. He variously put the time of his return
as in the
morning and in the late afternoon. The conflict was not immaterial.
It came to the fore when he was asked in cross-examination
whether
there had been a shooting incident between the Terribles and the
Horribles on the morning of 1 January 2020.
The reason that
the prosecutor put the question was because it had been put to
witnesses by accused 2’s counsel that the
latter had sustained
a gunshot wound in such a shooting that morning. Accused 1 initially
stated that there had
not
been a shooting but then went on to say that he had been asleep at
home that morning so that he was unable to say whether there
had been
one or not. He knew nothing about the incident in which accused 2’s
foot had reportedly been injured. He had not
noticed accused 2’s
injury when in detention because when accused 2 passed by his cell he
(accused 1) was too weak from being
assaulted to be able to stand up
to see his condition.
[136]
Accused
1’s father, Henrico Booysen, testified as a witness in support
of his son’s defence. He is a builder. He testified
that he had
previously worked for 17 years with H&I (Haw & Inglis) but
had since been unemployed apart from the odd contract
work that he
had been able to get from time to time. He is 47 years of age and has
lived in Atlantis for 32 years.
[137]
Mr
Booysen testified that his son had not been at home on 1 January 2020
as he had been at a party since the previous afternoon
at the house
in Beacon Hill of someone called Jerome or Jeremy; the witness seemed
unsure of the name. Under cross-examination,
he said that he knew
where his son had gone because he had overheard him telling his
mother. The house where the party was held
was three houses away from
the address at which accused 1’s cousins live, and the accused
had said that his cousins, Brandon,
Jason and Benedict, would also be
at the party.
[138]
Mr
Booysen said that accused 1 had been very drunk when he arrived home
between 4 o’clock and 5 o’clock in the
afternoon.
The whole family had been at home at the time, including both of his
daughters. His evidence in the latter regard was
in conflict with
that of the accused, who, it will be recalled, said that only one of
his sisters had been at home when he returned.
[139]
Mr
Booysen had been outside in the courtyard of Canary Place chatting to
a friend when accused 1 returned home, and he watched the
accused
swaying drunkenly up the stairs to the flat. The accused went
straight to sleep in his room and awoke at about 10:00 p.m..
When the
accused emerged from his slumber, he was hungry, and his mother
dished some food up for him. He asked his mother for R2
to go the
shop, but his mother said the shop would be closed and she did not
want him going out in any event because there had
been a shooting. He
said accused 1 returned to his room and watched television.
[140]
The
police arrived sometime before 11 o’clock and asked where
‘Tony’ (accused 1) was. Mr Booysen mentioned
that it
was not the first time this had happened. The police had apparently
previously come to the flat on several occasions looking
for accused
1 after a shooting had happened. It strikes me as unlikely that that
would happen if, as accused 1 claimed, he never
had any role to play
in the gang shootings. That, of course, is only a factor bearing on
accused 1’s credibility. It does
not carry any probative effect
in respect of the shootings in issue in the current case. Accused 1
said that on some occasions
they arrested him and on others only
questioned him. Mr Booysen mentioned that whenever his son was
detained a whole group of others
were arrested at the same time.
[141]
The
witness said that he knew of Wagga by sight and that he was one of
the gang members. As it subsequently emerged that there are
at least
two people who go by that name in the Dura Flats area, one of whom is
associated with the Terribles and the other with
the 28’s gang,
it was not clear to which Wagga the witness was referring. He also
knew Ryno Anthony from the area and from
the soccer field. It turned
out that Mr Booysen had been a local soccer player and then a soccer
coach. He confirmed that accused
3’s father (Tollie) had also
been a soccer player. He said that they had all played soccer
together. He was also familiar
with Wayne Florence, who sometimes
worked with him as a tiler. He agreed that Florence came into the
Terribles’ area from
time to time, but disputed Florence’s
claim that Darters’ Place was neutral territory. Mr Booysen
said that some Horribles
gang members live there. That some Horribles
resided in Darters’ Place was actually consistent with
Florence’s evidence.
It will be recalled that Florence
testified that Ryno Anthony lived there.
[142]
Mr
Booysen said that he had spent the day at home on New Year’s
Day. He had made a braai in the inbuilt braai that he had
built on
his first-floor flat’s balcony.
[143]
Under
cross-examination, the witness said that about 20 minutes after
accused 1’s return home he had gone upstairs and gone
to the
accused’s room to speak to him. He said he stood in the doorway
of his son’s room while he was speaking to him.
The accused was
sitting on his bed. He went to ask his son where he had come from. He
had not expected that his son would be away
for so long at the party
and was a little upset that he had not been home to help him with the
braai earlier in the day. The accused
told him that he had come from
his cousins (‘niggies’). The accused testified that one
of his female cousins had dropped
him off at Canary Place after the
party. His father, for some reason, seemed to think that one of his
male cousins had driven him
home. The accused said nothing about this
conversation with his father in his evidence and indeed the
occurrence of such a conversation
is inconsistent with Mr Booysen’s
evidence that his son went straight to sleep after getting home in a
deeply intoxicated
state.
[144]
Asked
about accused 1’s involvement in the Ugly Americans gang, Mr
Booysen was noticeably reticent. He said that he had noticed
a tattoo
on him, but that when he asked his son about it he had not been given
an answer. He professed not to be aware of his son’s
involvement in drug dealing. His evidence in this regard was
unconvincing. It was evident from accused 1’s own evidence that
his mother found his gang-related activity as unacceptable, so much
so that she refused to accept what she termed ‘dirty
money’
from him. In the Robinvale context it was obvious that the dirty
money concerned would be money obtained by involvement
through
dealing in drugs.
[145]
It
is inconceivable that Mrs Booysen’s views and the reasons for
them would not have been known to her husband. Indeed, Mr
Booysen -
having initially maintained he did not know why his wife would not
accept money from accused 1 - when
pressed on the point by
questions from the bench, grudgingly conceded as much, but maintained
that he had never seen his son dealing
in drugs. He would go no
further than to say that he had seen him with drug dealers. He sought
to suggest that the accused made
his living off the wages he was able
to pay him when he employed him to work on the occasional building
work contracts that he
obtained.
[146]
Mr
Booysen said that he and his wife had laid a charge against Wagga of
the Horribles gang during 2020 (i.e. while his son was in
custody
awaiting trial in the current matter) for firing two shots through
the kitchen window of their flat. One of the shots had
gone through
the electricity meter. It had been necessary to lay a charge and
obtain a case number in order to have the meter replaced.
He gave
that as ‘one of the reasons’ he reported the matter.
[147]
Mr
Booysen was asked by the prosecutor if he knew who the leader of the
Terribles was in their area. There was a notable pause before
he gave
his answer, which was that he had not known that there was a leader.
‘They are a group together’ was his eventual
reply. He
said that he had sometimes seen the Terribles shooting when they had
been shot at and that he had sometimes seen who
was doing the
shooting. He mentioned someone called Wagga shooting for the
Terribles. It was pointed out that this was a different
person from
the Wagga often mentioned during the trial as the leader of the 28’s
or the Horribles.
[148]
He
confirmed that people do report to the police who they have seen
being involved in shootings in the area. In the same breath
he said
that people were forced to lie about who had been involved. He then
mentioned a recent incident involving Ryno Anthony
and Wagga in
respect of which at least Anthony was reportedly arrested for murder.
He said that Anthony’s uncle had told
him that people were
threatened as to what to say concerning the incident. The witness’s
evidence in this regard was hearsay.
He did not appear to have any
direct personal experience to support it. In the current case
statements were made by Maudlin Solomons
and Cherel Brandt
identifying some of the accused within less than three hours of the
incident. It is improbable that they would
have received instructions
so promptly. It is also clear that they were threatened not to make
the statements, but rather for having
made them. There would have
been no objectively plausible reason for identifying the accused –
more especially 2 and 3 -
if they were inconsequential members of the
Terribles as all three of the accused claimed. Accepting the
accused’s evidence
makes it hard to see that there would be any
advantage for the Horribles in a false incrimination of the accused.
[149]
Mr
Booysen claimed to know that amongst the Terribles on the other hand
people do not get forced to give false evidence. This was
a
convenient indication of purported intimate knowledge by him of the
Terribles’ culture when it suits him or his son. It
stands in
contrast with his claims of ignorance when that suits him or his son.
[150]
Accused’
s
1
father said that he knew that accused 2 lived at Crow Court. He
said that accused 2’s family live next door to him at Canary
Place. He said he occasionally saw accused 2, whom he called
‘Sessie’, together with his son and that accused 2
occasionally
visited at his flat. His son was also friends with
accused 3, whom he knew as ‘Koela’. He said that accused
3 also
lived at Crow Court. Mr Booysen said that accused 3’s
mother was a friend of his. He mentioned that accused 3 had not lived
at Crow Court very long.
[151]
Mr
Booysen claimed not to know where accused 3’s family had lived
before they moved into Crow Court. I find that improbable.
He must
have known accused 3’s mother when she lived at Crow Court
previously. He knew accused 3’s father from soccer
and claims
to have been a friend of the mother. Accused 3’s mother would
in all likelihood have visited her mother, with
whom she has since
moved back in, at Crow Court regularly during the period that she
lived in Sherwood Park/Saxonsea. Mr Booysen
agreed that until the
last two years, when a residential extension was built, the community
at the Dura Flats had been stable.
He said ‘That’s why we
all know each other’.
[152]
Mr
Booysen stated that he could not comment on Wayne Florence’s
evidence that he had seen accused 1 involved in shooting incidents
on
a number of occasions. He said he did not have any knowledge of that.
I found it notable that he did not suggest that Florence
had
fabricated his evidence or that he would have had any reason to do
so.
[153]
Mr
Booysen admitted that he had sat in court listening to the evidence
during the state’s case. He would therefore have been
privy to
the version put to the state’s witnesses on accused 1’s
behalf. Whilst his demeanour in the witness stand
was generally
satisfactory, there were a few features in his evidence that called
its truth and reliability in doubt. On the latter
score it bears
mention that he testified and reiterated under clarificatory
questioning from the bench that he had worked for Haw
& Inglis
for 17 years until he left the company’s employ in 2000. When
it was pointed out to him that his evidence in
that regard was
demonstrably incorrect for it would have involved him commencing work
at the company when he was only eight or
nine years old, he
unconvincingly sought to extract himself from the difficulty by
claiming to have worked in two separate periods
for the company. The
details he gave in that regard had him commencing his initial
employment there in 1997 and then leaving in
2000 and returning in
2003 for a further period of seven years, giving him a total of 10
years at the company. The performance
demonstrated that the witness
was able to spout nonsense with a straight face.
[154]
Accused
2 then came to the witness stand after accused 1 closed his case.
[155]
Accused
2 is 20 years of age (born in August 2001) and has lived at […]
Crow Court in the Dura Flats since he was 16. He
had previously lived
in a house at Cuckoo Avenue, also in Robinvale. He was educated at
Protea Park Primary School and thereafter,
to the equivalent of
standard 9 level, at the School of Skills, where he was trained in
spray painting. He has never been employed.
He confirmed that his
nickname was ‘Ses’ or ‘Sessie’.
[156]
He
testified that he was on his way to the shop opposite Canary Place at
about 6:30 a.m. on the morning of 1 January 2020 when he
was shot at
and injured in his right foot. He had no idea who his attacker was.
He said that he would have liked to have gone to
hospital, but it was
too dangerous to do so because the entrance to the hospital was
visible from the area controlled by the Horribles.
It may be deduced
from that, I think, that he thought that his attackers were members
of the Horribles gang. He expressly said
as much later in his
evidence when he was being cross-examined.
[157]
He
said that he went to his aunt’s place at […] Canary
Place. His aunt cleaned his wound and removed the bullet from
his
foot. He did not receive any formal medical treatment. His injury
healed without any residual effects.
[158]
He
smoked some dagga after his aunt had ministered to him and then went
out into the courtyard of Canary Place where he spent the
day
drinking and celebrating the new year. Under cross-examination, he
mentioned that his cousins Saadje and Pooksie had been part
of the
company. He did not see accused 1’s father in the courtyard
while he was at Canary Place. He stayed there until between
4:00 and
5:00 p.m., when he went home. He was drunk and under the influence of
dagga by that time. He was unable to walk properly
on his injured
foot. He went to sleep when he got home and was awakened later that
night when the police came looking for him.
[159]
He
said that the police colonel told him that he was just going to
interrogate him at the police station and then bring him home.
That
did not happen, and he was kept in detention. He knew nothing about
the shooting incident at the ‘blad’ and had
no idea why
Cherel Brandt should have testified that she had seen him there. He
knew who Cherel Brandt was from having seen her
at times at the KFC.
He was not on speaking terms with her, but he knew her name. He
claimed to have no knowledge of the party
at which Cherel Brandt said
she had met him a couple of weeks before the shooting incident. He
also knew Maudlin Solomons as they
had been at school together.
[160]
Accused
2 admitted that he was a member of the Ugly Americans gang. He said
that he had joined the gang in 2018. There were 15-20
members in
total. He explained that he had joined it because he was ‘classified’
as if he were a gang member and not
able to stay at school as a
result. He said that there were no advantages to being a gang member
and that he did not offer anything
to the gang by his membership. He
joined because he wanted to identify with the people he smoked dagga
and played soccer with.
Membership was also part of the ethos of the
area. He said he bought his dagga from the Rastas with money given to
him by his mother.
Sometimes his friends gave him dagga. He did not
buy the drug from the other gang members. He said that he was
friendly with accused
1 and 3 both within and outside of the gang
context. He had been friends with accused 1 for four to five years
and with accused
3, who was relatively new to the area, for two to
three years.
[161]
Accused
2 said that the gang sat as a group and decided who would be shot. He
was sometimes present at such meetings. He said that
they did not
determine a date and time for a shooting. ‘We just do it’
were his words. He said that there was no decision
on a revenge
attack after he had been shot because everyone was not there.
Everyone had to be together for a decision to be taken.
Firearms were
not always used. It all depended, he said. He could not specify by
what criteria a decision to use them would be
made.
[162]
Accused
2 said that every gang member had his own job to do. He suggested
that there were designated shooters. He claimed that his
function was
to keep a look out and to participate in verbally taunting (Afriks.
‘
om te skel
’)
the gang’s opponents. In the event of a shooting, he would just
sit at the corner and smoke dagga and wait for the
others to report
back on what had transpired. He said that no-one in the Horribles
area would ever see him when there was a shooting
there by the
Terribles. Somewhat inconsistently with his initial evidence, he then
claimed that he had no function in the gang.
At another stage he
identified himself as a ‘soldier’ for the gang, although
he said that was not the term that was
used.
[163]
Accused
2 closed his case without calling any supporting witnesses.
[164]
Accused
3 is 22 years of age. His home address is at […] Crow Court,
Robinvale. He moved there with his mother and sibling
(an older
brother, Damien Johnson) from Athens Avenue in Saxonsea (which I
initially misheard as ‘Section C’) in 2019.
He lived
there with his mother and grandmother. He reached grade 11 at the
Saxonsea Secondary School in Atlantis. After completing
his schooling
in 2017, he obtained employment as a packer at a shop in Sunningdale.
He worked there for over a year. In 2018 he
obtained a new job, also
as a packer, at Freddy Hirsch, a factory in Montagu Gardens, Cape
Town, where he remained until August
2019. At the time of the
incidents giving rise to the charges in the current matter he was
unemployed and searching for work in
Atlantis and beyond.
[165]
He
denied having been present at the shooting incidents on the night of
1 January 2020. He said that he had attended a 21
st
birthday party on Old Year’s Night at an address in Saxonsea.
He only returned home from the party at between 8 and 9 o’clock
on the morning of New Year’s Day. His mother was at home when
he arrived there. He went straight to bed and was awakened
by one of
his cousins sometime between noon and one o’clock. He then
joined a family braai that was held at Crow Court. The
braai went on
until between five and six o’clock in the afternoon. He said he
got very drunk at the braai and went back to
bed. He was woken by his
brother later in the night when the police came looking for Damian
Johnson. The police took both him and
his brother to the police
station. They not told why they were being detained. They were told
not to ask questions and that they
could speak at the police station.
He said he was given a ‘klap’.
[166]
Accused
3 said that at the police station he was assaulted to make him sign
the ‘aanklag blaai’. He said that his co-accused
and his
brother were also assaulted and then placed into separate cells. He
was confined alone and kept in detention for five days
before
appearing in court on Monday, 6 January 2020. Det Sgt Noordien
interviewed him on Saturday, 4 January. On the previous day
(3
January) he was taken out of his cell and assaulted. He did not offer
any details of by whom he was assaulted or what the reason
for it
could have been. He understood that his brother had been released on
either 2 or 3 January 2020.
[167]
Accused
3 asserted that the state witnesses had lied in their evidence
incriminating him. He said that he did not know Maudlin Solomons,
Cherel Brandt or Desiree Adams and denied that Jenene Rhodes could
have seen him when she was shot at in the courtyard of Eagles
Nest.
Under cross-examination he said that he had never heard of Jenene or
Desiree. He said that Cherel Brandt’s evidence
that she had
encountered him together with accused 1 and 2 at a party sometime
before the shootings was not true. He suggested
that witnesses were
instructed to falsely implicate people in the context of the gang
rivalry between Horribles and the Fancy Boys
on the one side and the
Terribles on the other. He said getting people arrested on the basis
of fabricated evidence was used as
means of obtaining bargaining
chips to get pending cases against other persons withdrawn. He
admitted, however, that no-one had
ever asked him to withdraw a case.
[168]
The
accused admitted to being a member of the Ugly Americans gang. He
said he had become one in 2018 before he moved to Robinvale.
He
became a member after he lost his employment in Sunningdale when the
business closed down. He was initially a member of the
gang in
Sherwood Park, which he described as being part of Saxonsea, and was
recognized by the Robinvale group when he moved there.
He said that
he did not have any function within the gang. He did not deal in
drugs, he did not help to protect the territory and
he did not fight
for the Terribles against the Horribles. He also was not involved in
any discussions by Terribles concerning attacks
on the Horribles. He
claimed not to be aware even that such discussions took place. If a
shooting or a shouting match (‘skellery’)
happened when
he was around, he would disassociate himself from it and go to his
mother’s place. He stated that he did not
spend much time with
the gang as he stays at home a lot of the time and also spends time
with his girlfriend. He admitted that
he did learn about shootouts
between the gangs after they happened. He would hear about these when
he sat with his fellow gang
members on the lawn in front of Canary
Place opposite the KFC and the Telkom building. He admitted to having
tattoos identifying
his gang membership. He also had a tattoo on his
right arm with the words ‘Only god can judge me’.
[169]
He
said that the address at Crow Court where he lived was his
grandmother’s home. His parents had lived there when they first
got married. His brother, Damien, was nicknamed ‘Damma’
and he was called ‘Koela’ after a name his grandfather
used to call him by when he was a boy. He confirmed that his father,
Raymond Johnson, was called ‘Tollie’. His father
remained
living at Athens Ave in Saxonsea.
[170]
Accused
3 also confirmed that he was friends with both accused 1 and 2 and
sometimes walked around the area with them. Accused 2
also lived at
Crow Court in a flat diagonally above his grandmother’s place.
He was aware that accused 1 dealt in drugs.
He had seen him with
‘smokkelgeld’, which he described as a lot of R10 and R20
notes. He stated that he did not know
what accused 1 did with the
drug money. He maintained that it was not shared amongst the gang
members. He professed to have no
knowledge of who benefitted from the
profits generated by the drug dealing. He explained that one did not
have to belong to a gang
to be able to sell drugs in the area. The
only qualification was that you had to purchase your stock from the
gang. He did know
who had imposed that regime.
[171]
The
accused confirmed that shooting incidents happened frequently in the
Robinvale area. He said they went over fights for territory.
He
professed to be unable to say why the gangs fought over territory.
[172]
Accused
3 pointed out that some people joined a gang for protection against
anyone harming them. He said that that was the reason
he had joined a
gang. His evidence in this regard was inconsistent with his earlier
evidence to the effect that he had joined to
be like his friends.
Under questioning by accused 1’s legal representative, he said
that Atlantis was a difficult place in
which to live. He acknowledged
that gang membership was a romanticised concept aided by movies in
which gangs were glorified. He
acceded to the proposition that gang
membership boosted one’s image even if one did not have a role
within the gang.
[173]
Accused
3 contradicted the evidence of many other witnesses who testified
that people from the area controlled by one gang were
made to feel
uncomfortable and unsafe if they strayed in the area controlled by
the opposing gang. He said he was unaware that
people from the
Horribles area were taunted (‘geskel’) when they walked
to the KFC, which was situate in the Terribles
area. He claimed it
had never happened in his presence.
[174]
Accused
3 said that after he was taken into custody by the police, and before
being detained in a cell, he and the others who had
been arrested had
to stand together at the police station. He did not notice that
accused 2’s foot was injured, and he could
not say whether
accused 2 was wearing shoes or not. Accused 2 did not complain about
his foot. He was detained in a separate cell
in solitary confinement.
In answer to a question by accused 2’s counsel, accused 3 said
that he had not had the opportunity
before his arrest to hear about
the shooting incident in which accused 2 was injured.
[175]
Mrs
Swindell Olivia Johnson, the mother of accused 3, testified in
support of her son’s defence. She confirmed his evidence
as to
his whereabouts on New Year’s Day from the time he returned
home at between 8 and 9 o’clock in the morning. She
knew he had
gone to a 21st party in Saxonsea, but did not know whose party it
was. She said that at the end of the family braai
that afternoon, the
accused was deeply intoxicated and had thrown up. She had to make up
a bed for him on the floor because he
complained that his bed felt as
if it was swirling.
[176]
Mrs
Johnson said that the police arrived sometime before midnight. They
were looking for her son Damien. They went through to the
room where
Damien was with accused 3 and she heard the sound of someone being
slapped about. The police took both her sons away
and told her that
they would be interviewed and then released.
[177]
She
went to the police station the following morning to enquire about her
sons. She was told that they had been detained in connection
with a
shooting incident the previous night. When she pointed out that her
sons had been at home, the police gave her no answer.
Damien was
released on Saturday, 4 January 2020.
[178]
Mrs
Johnson denied that she was well-known in the area. She said that she
stayed at home most of the time and had only returned
to Robinvale
two years previously. But, as already noted, her mother lived there
and she is likely to have visited regularly. The
indications are that
Saxonsea and Sherwood Park are not far from Robinvale. A marker in
respect of Saxonsea Hardware & Gifts
is shown on exhibit P3. It
is not that far from the Wesfleur Hospital. She said that she knew
Maudlin Solomons and Cherel Brandt
only by sight. She initially said
that she did not know any of the other state witnesses, but when
questioned in more detail admitted
to having previously seen Jenene
Rhodes and Desiree Adams when she went to the mall (‘sentrum’)
or they walked past
where she lives.
[179]
She
said that she did not involve herself with the shootings in
Robinvale. She said it was something new to her as Saxonsea, where
she had lived between 2000 and 2019, was a very peaceful area. Her
evidence about the peaceful character of Saxonsea struck me
as
somewhat at odds with her son’s evidence that he had joined a
gang while still living there because he felt in need of
protection.
[180]
Mrs
Booysen was aware of a shooting incident that had happened near where
she lived early on the morning of New Year’s Day.
She said it
happened in the road behind her residence. She went out to
investigate because she heard that someone had been shot.
She learned
that it was accused 2 who had been hit and that the Horribles had
been shooting. She was not told who the shooter or
shooters had been.
[181]
She
became aware of accused 3’s gang membership when she noticed
his tattoos. She said that she had asked him whether that
was really
the kind of life he wanted to live.
[182]
Mrs
Johnson admitted that she had attended court when Cherel Brandt was
called to give evidence. I recall seeing the witness positioning
herself prominently in the middle of the upstairs gallery on that
occasion. She did not attend the trial on the preceding six days
of
evidence. Mrs Johnson said that she had no reason to think that
Cherel Brandt would be frightened of her. She said that
she had never
had a conversation with her. She could not think of any reason why Ms
Brandt or Maudlin Solomons would say that they
had seen accused 3
involved in the shooting.
[183]
Asked
about how she covered her living expenses, Mrs Johnson said she had
savings from her previous employment and she sold packs
of chicken,
mainly to other persons in Crow Court. Her son, Damien, who is
employed, also makes a contribution towards the household
expenses.
[184]
Mrs
Johnson said that she never went into the Horribles area because
stones would be thrown at her if she was seen there.
[185]
That
concluded the evidence.
[186]
The
foregoing summary highlights that the fundamental issues to be
weighed in making the determination whether the state has proved
its
case against the accused beyond reasonable doubt are whether their
identification by the eyewitnesses who gave evidence for
the
prosecution is credible and reliable and whether there is a
reasonable possibility that their alibi defences could be true.
It is
important to appreciate that what, so stated, might appear to be two
discrete questions are actually integral aspects of
a single enquiry
to be undertaken by the court. See in this regard
S v
Ngcina
2007 (1) SACR 19
(SCA) at para
18, where Navsa JA said:
In [Hoffmann and Zeffert]
The South African Law of Evidence
[2003], p 151, the learned
authors correctly point out that courts occasionally fall into the
error of treating an alibi defence
as a separate issue to the issue
of identification. An alibi defence is essentially a denial of the
prosecution's case on the issue
of identification.
The learned authors state
the following:
‘
As
the Appellate Division has said in
R v
Hlongwani
[sic] and
R
v Khumalo en Andere
the correct
approach is to consider the alibi in the light of the totality of the
evidence and the court's impression of the witnesses.
It is
sufficient if it might reasonably be true. This does not mean that
the court must consider the probability of the alibi in
isolation. If
someone says that he was in bed at midnight and no other evidence may
be considered, it would be difficult to say
that it could not
reasonably be true, but if there is sufficiently strong evidence to
show that he was in fact breaking into a
shop, the court may consider
that his story can safely be rejected.’
[187]
This,
in essence, is a recapitulation of the principled approach concerning
the adjudication of cases in which the accused raises
an alibi
defence stated by Holmes AJA in
R v
Hlongwane
1959 (3) SA 337
(A) at
340-341:
The legal position with
regard to an alibi is that there is no onus on an accused to
establish it, and if it might reasonably be
true he must be
acquitted.
R v Biya
,
1952 (4) SA 514
(AD). But it is important
to point out that in applying this test, the alibi does not have to
be considered in isolation. I do
not consider that in
R v
Masemang
,
1950 (2) SA 488
(AD),
Van den Heever, J.A., had
this in mind when he said at pp. 494 and 495 that the trial Court had
not rejected the accused’s
alibi evidence ‘independently’.
In my view he merely intended to point out that it is wrong for a
trial Court to reason
thus: ‘I believe the Crown witnesses.
Ergo
, the alibi must be rejected.’ See also
R v
Tusini and Another
,
1953 (4) SA 406
(AD) at p. 414. The correct
approach is to consider the alibi in the light of the totality of the
evidence in the case, and the
Court's impressions of the witnesses.
In
Biya
's case supra, Greenberg, J.A., said at p. 521 (the
italics being mine)
‘
.
. .
if on all the evidence
there is a reasonable possibility that this alibi evidence is true it
means that there is the same possibility that he has not
committed
the crime’.
[188]
These
statements of principle make it clear that there is nothing
exceptional or special in the assessment of the evidence required
in
alibi cases. The proper approach, in accordance with the oft-cited
dicta of Nugent J in
S v Van der Meyden
1999 (2) SA 79
(W) at 80H-82E, is that the court’s judgment
must be founded on a holistic consideration in an integrated manner
of
all
the
evidence adduced at the trial, and that a compartmentalised
assessment of any part of the evidence would be misdirected. See
also
S v Van Aswegen
2001 (2) SACR 97
(SCA) at para 7-8,
S v
Trainor
2003 (1) SACR 35
(SCA) at para
8-9 and
S v Heslop
2007 (1) SACR 461
(SCA) at para 11.
[189]
The
dictum uttered in
S v Van Eck en ’n
Ander
1996 (1) SACR 130
(A) at 135e, a
judgment referred to by counsel in argument, to the effect that an
alibi can only be rejected if the state’s
evidence against the
accused is overwhelming (‘
oorweldigend
sterk
’), falls to be qualified in
the light of the aforementioned statements of principle. It was not,
in my view, intended in
any way to derogate from the well-entrenched
authority of the passage from
Hlongwane
that I quoted earlier, and which, as I have noted, was essentially
reiterated in
Ngcina
as well as any number of subsequent appeal court decisions and
endorsed in one of the judgments in the Constitutional Court in
S
v Thebus and Another
[2003] ZACC 12
;
2003 (6) SA 505
(CC) (in para 79, fn. 105).
[190]
Indeed,
the judgment in
Van Eck
cites
Hlongwane
,
without qualification, as setting out ‘
die
regsposisie aangaande ’n alibi’
.
The reference in
Van Eck
to ‘overwhelmingly strong evidence’ does not posit a new
standard of proof in criminal cases. The standard is that
a
conviction is justified only when the court is convinced beyond
reasonable doubt that the evidence, considered in the holistic
manner
just referred to, has established the accused’s guilt. It is
obvious that a court cannot be convinced beyond reasonable
doubt of
an accused person’s guilt when there is a reasonable
possibility that the evidence adduced by the accused in support
of
his or her innocence could be true. It is also axiomatic, as a matter
of logic, that a court does not have to actually believe
an accused
person’s evidence for it to have to acknowledge the reasonable
possibility that it could be true.
[191]
Proof
beyond reasonable doubt does not, however, equate to proof beyond any
shadow of doubt. The following statement by Denning
J (as he then
was) in
Miller v Minister of Pensions
[1947] 2 All ER 372
has been quoted with on several occasions in our
jurisprudence:
‘
It
need not reach certainty, but it must carry a high degree of
probability. Proof beyond reasonable doubt does not mean proof beyond
the shadow of a doubt. The law would fail to protect the community if
it admitted fanciful possibilities to deflect the course
of justice.
If the evidence is so strong against a man as to leave only a remote
possibility in his favour which can be dismissed
with the sentence
“of course it is possible, but not in the least probable”,
the case is proved beyond reasonable doubt.’
In
S v Ntsele
1998
(2) SACR 178
(SCA) at 182b-e, Eksteen JA remarked of that passage
that ‘(o)
ns reg vereis insgelyks nie dat ’n hof slegs
op absolute sekerheid sal handel nie, maar wel op geregverdigde en
redelike oortuigings
– niks meer en niks minder nie (
S
v Reddy and Others
1996 (2) SACR 1 (A) op 9d-e)
.’
The passage in
Reddy
that was referred to was part of a
quotation from the second Lord Coleridge’s address concerning
the proper approach to circumstantial
evidence in
R v Dickman
that went as follows: ‘
The law does not demand that you
should act upon certainties alone ... . In our lives, in our acts, in
our thoughts we do not deal
with certainties; we ought to act upon
just and reasonable convictions founded upon just and reasonable
grounds ... . The law asks
for no more and the law demands no less
’.
[192]
In
the circumstances of the state case’s primary dependence on
identification evidence, it is, of course, apposite in any
review of
applicable principles, also to acknowledge that such evidence must
always be weighed with some caution. A court must
be astute to the
danger of honest but mistaken identification. The following dicta in
S v Mthetwa
1972 (3) SA 766
(A) at 768A-C are the locus classicus in this regard:
‘
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is
not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various
factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation, both as to
time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused's
face, voice, build, gait, and dress; the result of identification
parades, if any; and, of course, the evidence by
or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case,
are not individually
decisive, but must be weighed one against the other, in the light of
the totality of the evidence, and the
probabilities; see cases such
as
R. v Masemang
,
1950 (2) SA 488
(AD);
R. v Dladla and
Others
,
1962 (1) SA 307
(AD) at p.
310C;
S. v Mehlape
,
1963 (2) SA 29
(AD).’
However, as the passage
itself makes clear, the reliability of identification evidence is
also not a compartmental question. It
is an aspect to be weighed and
considered in the light of the totality of the evidence in the case
and the probabilities.
[193]
The
identification evidence given by Ryno Anthony was wholly unreliable.
He initially identified his assailants as Accused 3 (misnamed
by
accused 2’s nickname) and Saadje and then pointed out accused 1
and Saadje in a photo ID parade. In my view it is probable
that
Anthony was caught unawares when the shooting broke out. I
accordingly consider that he probably would not have had much of
an
opportunity to take note of the identity of his assailants. I am
surprised that the state did not lead any medical evidence
concerning
Anthony’s injuries as that could have provided an objective
indication of his likely position viv-a-vis the shooters
when the
shots were fired. The evidence from other eyewitnesses was that
Anthony had his back to the shooters when they approached
and that
Melicia Claasen, to whom he was speaking at the time, had been facing
him, which suggests she must having been facing
towards the shooters
as they approached. Some support for that evidence is given by the
fact that one of the gunshot wounds sustained
by Melicia Claasen had
a frontal or anterior entry point.
[194]
I
have little doubt that Anthony would instinctively have started to
flee the scene as soon as the shooting commenced; and even
if he did
look over his should as he ran, as he claimed to have done, the
conditions, infused with panic and urgency as they would
have been,
would have been far from ideal for him to be able to make a reliable
identification of the shooters even if they were
people that he knew.
[195]
The
evidence suggests a background history of gang-related violence
between Anthony and at least accused 1 and Saadje. I would not
be
surprised in the circumstances if the identification evidence he gave
in statements to the investigators on the night of the
incident and
two days later in hospital was predicated on his suspicions, rather
than his observations.
[196]
Anthony
was not asked how he came to be on the ‘blad’ at the time
of the shooting. His evidence in chief and cross-examination
was not
led in a way that might corroborate the evidence of Cherel Brandt
that he had been at the party at Maudlin Solomons’
flat in
Gullhaven Court before the shooting. Oddly enough, Maudlin Solomons
was also not asked about this. The fact might not have
been apparent
from the witness statements in defence counsel’s possession,
but I would have thought that the prosecutor should
have been aware
of the evidence in that regard that was going to be adduced from
Cherel Brandt.
[197]
Be
that as it may, there were two indications in the evidence that
supported the probability that Ms Brandt’s evidence that
Anthony had come to the ‘blad’ from the party was true.
Firstly, it was put to Anthony on accused 1’s behalf
that Ms
Solomons was in a relationship with him. The proposition was denied,
but it is nevertheless unlikely that a basis for it
would have arisen
if there were no connection whatsoever between the two even if, in
reality, it was only a non-romantic friendship.
The evidence gave a
clear impression that Robinvale is a small community in which most
people knew most of the other residents,
where they lived, and who
their connections were. Secondly, Wayne Florence, whom both Anthony
and Solomons said they had not seen
on the evening in question,
testified that he saw Anthony emerge from emerge from Gullhaven Court
as he and Melicia Claasen approached.
[198]
Considering
the evidence holistically, which, of course, was something that I was
unable to do when Anthony gave his evidence at
the beginning of the
trial and I was possessed with the most meagre summary by the state
of the material facts that I have ever
seen, I consider it is
probable that there was something that Anthony and Ms Claasen wanted
to discuss tête-à-tête
when they met that evening.
I think this may be deduced from the fact that Ms Solomons testified
that she was asked to stand aside
while the conversation took place
and that Florence, who was accompanying Ms Claasen at the time, also
went on a way without her
when they encountered Anthony, and a
discussion between Anthony and Claasen ensued.
[199]
Ms
Solomons’ evidence was that while she was at the party in
Gullhaven Court Melicia Claasen had contacted her by phone to
tell
her that she would be coming that way. It is quite feasible that
Maudlin Solomons would have mentioned the phone call to Anthony
if he
was there, as, for the reasons just given, I believe he was. That
would explain how both Anthony and Solomons emerged from
Gullhaven
Court just as Melicia Claasen approached the area of the ‘blad’
opposite those flats. The purpose of Melicia
Claasen’s
expedition to that area was, according to Florence, to purchase dagga
from the Rastafarians near Flamingo Park.
Ms Solomons’ evidence
corroborated that of Florence. She said that Ms Claasen had told her
on the phone that she was going
to get ‘’
n
rokie
’ (something to smoke) from
the Rastafarians. The reference to the ‘
rokie
’
could well explain why Ms Brandt was under the impression that
Anthony and Ms Solomons had gone outside for a smoke. She
could well
have misheard the explanation for them leaving the party when she
testified that she understood that they had gone outside
for a
cigarette. If the two had gone outside to speak to Melicia Claasen it
would give a more plausible basis for Ms Solomons to
have told Ms
Brandt that they would let her know when she could come outside and
join them.
[200]
I
consider that the evidence of Anthony and Ms Solomons said that they
had not seen Florence that evening is explicable.
[201]
Florence
was surprised to hear that Anthony did not recall having seen him. He
said that he had greeted Anthony. Florence’s
surprise at the
proposition was evident in the witness box and appeared genuine. The
encounter was probably a fleeting one and
Anthony could well have
forgotten it. It was hardly something he would have regarded as a
significant event at the time, and one
does not know if he knew that
Florence would be a witness in the case. One does not know if he was
even conscious that Ms Claasen
had been walking together with
Florence at the time. The evidence suggested that the area around the
‘blad’ was buzzing
with people at the time.
[202]
The
same observation goes for Ms Solomons. She could easily have missed
spotting Florence amongst all the other people as she saw
Melicia
Claasen approach from the direction of the shop. We do not know how
close or far apart from one another Florence and Ms
Claasen were as
they walked together. If all that Florence did was to greet Anthony,
Solomons could easily not have noticed that
in the given
circumstances.
[203]
The
evidence of Anthony and Ms Solomons that they did not see Florence
supports the idea that their testimony was based on their
independent
recollections and detracts from the suggestion raised from time to
time during the trial that the evidence against
the accused was an
organised fabrication. In this regard I should also mention, of
course, that Florence also testified that he
had not seen Ms Solomons
that evening. Ms Solomons testified that she had not seen Cecilia
Hartenberg that evening, and we know
from the fact that Cecilia was
caught in the shooting that she must have been in the vicinity. There
were other indications that
the individual eyewitnesses’
evidence was not affected by that of the others. Ms Solomons, for
example, was adamant that
she did not agree with the evidence given
by Anthony concerning the position of his assailants relative to one
another. She was
definite that the two persons who approached Anthony
were side by side and not one four or five metres behind the other.
The forensic
evidence concerning the recovery of the cartridges tends
to support the correctness of her observation. She was also adamant
that
Anthony was incorrect to think that accused 3 was ‘Ses’.
[204]
I
should record that I have been particularly careful to look out for
assurances of independence in the testimony of the eyewitnesses
because I am astute to the danger in gang ridden context of the
Robinvale community that incidents like those involved in this
case
can be susceptible to manipulation for ulterior purposes as was
suggested in the cross-examination by the accused’s
legal
representatives.
[205]
As
described earlier, Ms Solomons gave two partly inconsistent
statements concerning whom she had seen involved in the attack on
Anthony. Neither of the statements was put in evidence, but it was
apparent that accused 1, 2 and 3 were named in the statement
she made
on the same night as the shooting and accused 1, 3 and Saardje in the
later statement. The first statement was made so
soon after the
incident that it was unlikely to have been influenced by extraneous
considerations. It is not a matter of prior
consistent statement, but
rather one of early identification. However, there is no escaping her
subsequent contradictions on the
issue. Her claimed confusion in the
photo ID parade was also unconvincing.
[206]
I
have little reason to doubt that Ms Solomons was an eyewitness to the
events, as she testified, but the conflict between her statements
does call into question the reliability of her identification. It has
only been in respect of her identification of accused 1 that
she has
been consistent. However, even in that respect I would be inclined,
on account of the evident flaws in her testimony, to
accept her
identificatory evidence only to the extent that it was independently
supported by the acceptable evidence of the other
eyewitnesses. Her
consistent identification of accused 1 is supported by the evidence
of Florence and Ms Brandt.
[207]
I
reviewed Florence’s evidence earlier in the judgment. Apart
from the unconvincing nature of his claim not to know what the
gang
warfare between the Terribles and the Horribles was about, he was a
satisfactory witness whose evidence was not shaken in
any material
aspect in cross-examination. It weighs with me that he was candid
about his ability to recognise only one of the two
shooters, and he
gave a plausible reason for that. His evidence about the relative
positions of the actors on the ‘blad’,
i.e. Ryno Anthony,
Melicia Claasen and the two shooters is supported by the objective
evidence. I have already identified aspects
of the other eyewitness
evidence that in my judgment lends assurance to the independence of
his testimony. He was well acquainted
with accused 1 and assuming the
visibility conditions were good enough – a matter to which I
shall come- would have no difficulty
recognising him if he saw him.
[208]
I
have also reviewed Ms Brandt’s evidence. It is clear that I
found her to be an honest witness. Her evidence directly implicates
accused 1 and 3 in the shooting at the ‘blad’. Her
evidence concerning accused 2 would not sustain convicting him of
the
charges of murder and attempted murder related to the shooting at the
‘blad’. She had him coming on the scene only
after the
shooting had stopped. Although the evidence suggests that accused 2
was probably privy to the actions of the shooters
and supported them,
his described behaviour does not satisfy the requirements that would
need to be satisfied to hold him guilty
on the basis of the doctrine
of common purpose; see
S v Mgedezi
1989 (1) SA 687
(A);
[1989] 2 All SA 13
, at 705I-706C (SALR),
endorsed by the Constitutional Court in inter alia
S
v Makhubela and Another
[2017] ZACC 36
(29 September
2017), 2017 (2) SACR 665
(CC);
2017 (12) BCLR 1510
(CC). An act of approbation after the event does not suffice. The
evidence also does not establish that the firearm that Ms Brandt
saw
Accused 2 wielding was in fact a firearm or that it was loaded.
[209]
Accused
2 will therefore be acquitted on counts 2 to 8. I shall deal with his
position in respect of the charges under the
Prevention of Organised
Crime Act in
count 1 presently.
[210]
The
evidence of Ms Brandt incriminates accused 1 as one of the shooters
on ‘the blad’. Her identification of the accused
is
independently supported by the evidence of two other eyewitnesses. I
have indicated that I consider one of those witnesses,
Florence, to
have been a satisfactory witness. Insofar as the other witness,
Solomons, was a less than satisfactory witness in
many respects, her
early identification of accused 1 as one of the culprits cannot be
ignored as a factor, counting in support
of his identification by the
other two satisfactory witnesses even if it would not have carried
the day had it stood by itself.
[211]
As
I have recorded, the accused was well known to all three of the
witnesses who identified him. There was, however, understandably,
great focus by the defence on the visibility conditions at the time.
It is regrettable that the state in such cases, in which visibility
conditions are very foreseeably going to be an important issue,
regularly fails to call expert meteorological or astronomical
evidence to provide the court with an objective and more definitive
basis to assess the position. Such evidence would be admissible
in
affidavit form in terms of
s 212
of the
Criminal Procedure Act.
In
the current case the state did not even avail of the machinery
afforded by
s 229
of the
Criminal Procedure Act.
[212
]
It
is evident that the shooting on the ‘blad’ happened at
approximately 9 o’clock in the evening. It was common
cause,
and in any event readily ascertainable from any number of
authoritative published sources, that the sun sets in the Western
Cape just after 8 o’clock at that time of the year. It is also
well known that in mid-summer sunset here is followed by a
fairly
prolonged period of twilight. Several of the witnesses described the
prevailing conditions as twilight. Only Ms Solomons
suggested that it
was ‘very dark’. But even on Ms Solomons’ evidence
the darkness was not such as to prevent
her from being able to see
the two approaching men at some distance even if she was not at first
able to see them clearly enough
to recognise them. I am disposed on
account of my long-time experience as an inhabitant of this part of
the world to accept the
evidence of most of the eyewitnesses that
darkness had not completely closed in. It must be nonetheless be
acknowledged that it
had become dark enough for the flashes caused by
the firing of the weapons to show up, as described Florence.
[213]
It
is apparent from the evidence that the ambient lighting conditions
were assisted by artificial illumination. It appears from
the
photographs and was confirmed in the oral testimony that street
lighting illuminates at least part of the ‘blad’.
It is
also apparent that one was able to see at least as far as between
Gullhaven Court and the place where the Rastafarians were,
which as I
have mentioned was at least 20 m. There was much activity going on on
and around the ‘blad’. It is most
improbable that that
would have been occurring in anything like conditions of total
darkness. It is significant that when Florence
testified that he was
able to identify only one of the two gunmen, he said it was because
of the angle of vision, not because of
the lighting conditions. There
was a close correspondence between the various witnesses as to the
place on the ‘blad’
where they saw Melicia Claasen and
Ryno Anthony in conversation together. I do not think that was
coincidental; it was because
of the witnesses ability to see where
they were.
[214]
Maudlin
Solomons was able to recognise Melicia Claasen from sufficient
distance to be able to say that she had approached from the
direction
of the shop. Cherel Brandt was able to see well enough to describe
that the two gunmen and the person who joined them
after the shooting
ran away and disappeared down the lane that runs near the shop
between Bunting Crescent and Courser Avenue.
It is also apparent that
the visibility was good enough for the shooters to be able to zero in
on their target from some distance
away. Everything, including the
evidence of the accused themselves, suggests that Anthony was not a
random victim. I am satisfied
that that there was sufficient
visibility for the witnesses to be able to make reliable
identifications. The position would have
been assisted by the
witnesses’ familiarity with the persons they purported to
identify. In Cherel Brandt’s case she
had the suspects in sight
for long enough to diminish the possibility of a mistaken
identification almost to the point of exclusion.
Evidence of three
independent identifications of the same person, in the case of
accused 1, lends further support to the conclusion
that the
visibility was sufficiently good and that the identification was not
mistaken. The cumulative effect of all the forementioned
considerations has informed my conclusion.
[215]
In
all the circumstances I am satisfied beyond reasonable doubt that
accused 1 was reliably identified as one of the shooters. I
have
already described the poor quality of the accused’s evidence
and that of his father. The weakness of that evidence affords
good
reason to reject it. As Nugent J pointed out in
Van
der Meyden
supra, at p. 81F-G,
‘(e)
vidence which incriminates the
accused, and evidence which exculpates him, cannot both be true –
there is not even a possibility
that both might be true – the
one is possibly true only if there is an equivalent possibility that
the other is untrue. There
will be cases where the State evidence is
so convincing and conclusive as to exclude the reasonable possibility
that the accused
might be innocent, no matter that his evidence might
suggest the contrary when viewed in isolation
’.
In the current case the weight of the evidence of three witnesses
independently identifying the accused as one of the shooters
is
compelling, and against it the alibi evidence of the accused and his
father was of demonstrably weak quality. Assessing the
evidence in
its totality, I am able safely to reject the alibi evidence of
accused 1 as being not reasonably possibly true.
[216]
The
evidence does not establish that it was the bullets fired by accused
1 as opposed to those fired by the other shooter that caused
the
injuries to the deceased and the complainants on counts 4 and 5. That
is of no consequence, however. It is clear that the shooting
was a
concerted action by both shooters. The evidence establishes the
requirements for the doctrine of common purpose to apply.
The
shooters were clearly intent on shooting Ryno Anthony. The evident
intention was to kill him. What else could be the object
in firing a
hail of bullets at him?
[217]
It
is probably so that the shooters had no actual intention to kill or
injure Cecilia Hartenberg or Brandon Graaf and possibly also
not
Melicia Claasen, but they must have appreciated that firing a
fusillade of bullets in a relatively crowded area was liable
to cause
death or serious injury to bystanders, and they proceeded to do just
that reckless of the potential consequences. In the
circumstances I
am satisfied that the evidence established a so-called
dolus
indeterminatus
or general intention to
kill; cf.
S v Nlapho
1981 2 SA 744
(A) at 751 and
S v
Nkombani and Another
1963 (4) SA 877
(A) at 891H-892A (per Rumpff JA) and 894E-H (per Holmes JA).
Moreover, the killings were committed in the execution of a common
purpose as provided in para (d) s.v. ‘murder’ in
Part I
of Schedule 2 to the Criminal Law Amendment Act 105 of 1977. Accused
1 will therefore be convicted on counts 2, 3, 4 and 5 in the
indictment.
[218]
The
evidence also establishes that both shooters were armed with
functioning firearms loaded with 9mm Parabellum ammunition. Accused
1
has not rebutted the presumption created in terms of
s 250
of
the
Criminal Procedure Act. In
the circumstances his guilt on counts
7 and 8 concerning the unlawful possession of a firearm and
ammunition has also been established.
The joint possession of each of
the shooters of the other’s firearm has not been established in
the sense explained by Marais J
in
S
v Nkosi
1998 (1) SACR 284
(W) and
subsequently endorsed by the appeal court in
S
v Ramoba
2017 (2) SACR 353
(SCA) at
para 11, amongst others; and by the Constitutional Court in
S
v Makhubela and Another
supra, at
para 46-57. The conviction therefore bears only on the firearm
he was bearing at the time of the shooting and the
ammunition that
was in it.
[219]
Accused
3 was reliably incriminated only by the evidence of Cherel Brandt.
The incriminating evidence against him by Maudlin Solomons
was
unsatisfactory for the reasons described earlier in this judgment.
Unlike the position with regard to accused 1, Cherel Brandt’s
evidence against accused 3 was not buttressed by the acceptable
evidence of any other witness. Although I found accused 3 to be
an
unconvincing witness in material respects and also identified various
improbabilities in the supporting evidence given by his
mother, I was
not able, despite my considerable doubt as to its truth, to reject
their evidence as not reasonably possibly true.
The position in which
I found myself was a living example of that postulated by Van Coller
AJA in
Van Eck
supra, where the evidence for the state did not weigh sufficiently
‘overwhelmingly’ against that of the defence for
me to be
able to reject the latter even though I was inclined not to believe
it. Accused 3 will be acquitted and discharged on
all counts.
[220]
It
is time now to consider in regard to accused 1 and 2 the charges
brought in count 1 under
s 9
of the
Prevention of Organised
Crime Act. The
main charge alleges a contravention of
s 9(2)(a)
;
a contravention of
s 9(1)(a)
is alleged in the alternative
charge.
[221]
Section
9(1)(a)
provides:
‘
Any
person who actively participates in or is a member of a criminal gang
and who-
(a) wilfully
aids and abets any criminal activity committed for the benefit of, at
the direction of,
or in association with any criminal gang;
…
shall be guilty of an
offence.’
The term ‘criminal
activity’ is not defined. It must bear its ordinary meaning
which is ‘activity that constitutes
a crime’. The
expression ‘aids and abets’ connotes the giving of
assistance. Claassen,
Dictionary of Legal Words and Phrases
s.v. ‘
Aid and abet
’ explains the import of the
expression as follows: ‘
If a person assists in or
facilitates the commission of a crime, if he gives counsel or
encouragement, if, in short, there is any
co-operation between him
and the criminal, then he “aids” the latter to commit the
crime (
R v Van Niekerk
1944 EDL 202
)’.
[222]
Section
9(2)(a)
provides:
‘
(2)
Any person who-
(a) performs
any act which is aimed at causing, bringing about, promoting or
contributing towards a pattern
of criminal gang activity;
shall be guilty of an
offence.’
The expression ‘
pattern
of criminal gang activity
’ is defined in
s 1
as
follows:
'pattern of criminal gang
activity' includes the commission of two or more criminal offences
referred to in Schedule 1: Provided
that at least one of those
offences occurred after the date of commencement of Chapter 4 and the
last of those offences occurred
within three years after a prior
offence and the offences were committed-
(a) on
separate occasions;
(b) on
the same occasion, by two or more persons who are members of, or
belong to, the same criminal
gang.’
[223]
I
find it convenient to deal with the charges under count 1 following
the sequence of the provisions of the section, dealing first
with
s 9(1)(a)
and then moving on to
s 9(2)(a).
[224]
The
provisions of
s 9
are not a model of clarity and the
difficulties attending their interpretation have been commented on in
previous judgments:
S v Peters and
Another
[2013] ZAWCHC 218
(4 November
2013) in para 88-95,
S v Jordaan and
Others
[2017] ZAWCHC 132
(16 November
2017); 2018 (1) SACR 522
(WCC) in para 134-136 and
S
v Solomon and Others
[2020] ZAWCHC 116
(29 September 2020) in para 902-925, and see also Professor CR
Snyman’s article, ‘
Die nuwe
statutêre misdaad van deelname aan ’n kriminele bande
’
(1999) 12 SACJ 213.
[225]
Professor
Snyman argues, and I incline to agree, that s 9(1) of the Act
covers the same ground as other long subsisting offences
under the
common law. He points out that the behaviour described in paragraphs
(a) to (c) of the subsection could equally amount
to involvement in
the principal crimes involved under the doctrine of common purpose or
by way of attempt, conspiracy or incitement.
Professor Snyman opines
that s 9(1) serves no practical purpose and is a high-sounding
superfluity. Of direct relevance in
the current context, however, is
the feature I discussed in
S v Peters
supra loc cit; namely, that a principal actor cannot be convicted of
aiding and abetting his own offence. The ‘criminal activity’
in which accused 1 was engaged, and in respect of which he is to be
convicted on counts 2-5 and 7-8, was committed by him, he did
not
‘aid and abet’ the commission of those crimes. He cannot
therefore be convicted of contravening s 9(1)(a).
The only
cogent evidence implicating accused 2 in the shooting at the ‘blad’
went to his conduct after the event. On
any approach it did not
establish that he had aided and abetted the commission of the
criminal activity that was involved in the
shooting. Accordingly, he
also cannot be convicted on the alternative charge in count 1.
[226]
Turning
now to the main charge, under s 9(2)(b). Citing the (unsigned)
Afrikaans text, which employs the word ‘
ook
’
in place of the English text ‘
includes
’,
Professor Snyman considers that the defined meaning of the expression
is not exclusive of a meaning of the term arrived
at on the
application of the ordinary meaning of the words that make it up. I
do not find it necessary to reach any conclusion
on that opinion. On
the one hand, if the ordinary meaning of the words were intended to
apply, it is difficult to conceive what
the object of the legislature
was in devising the rather cumbersome and complicated special
definition of the expression. On the
other hand it is difficult to
see how anyone could do something to bring about a pattern of
criminal gang activity when the definition
of such activity is
predicated on historical rather than future events. Whatever the
position, I agree with Professor Snyman that
the words ‘
which
is aimed at
’ (Afriks. ‘
wat
daarop gemik is
’) imply that a
person charged with s 9(2)(a) must be shown to have intended
their act to cause, bring about, promote
or contribute towards a
pattern of criminal gang activity. In other words, it is the
subjective intention of the accused charged
with a contravention of
s 9(2)(a) that must be established, not the objectively
determined effect of his or her act. This
construction of the
provisions does not have the effect of the stultifying the obvious
legislative intention of penalising criminal
activity by members of
criminal gangs committed within the context of their gang membership.
That object is served by the provisions
of s 10(3) of the Act,
which bears on sanction.
[227]
In
the current case the indictment made it plain that the ‘pattern
of criminal gang activity’ relied upon by the state
was the
commission of the offences alleged in counts 2-8. The indictment
clearly indicated that the state relied on the defined
meaning of the
expression. As there will be no conviction in respect of the charge
on count 6, and as the identity of the second
shooter involved in
counts 2-5 was not proven beyond reasonable doubt, and furthermore as
the offences subject of counts 2-5 and
7 and 8 were committed on the
same occasion, the requirement in para (b) of the definition of
‘pattern of criminal gang activity’
was not established.
The alleged acts therefore were not shown to have caused the alleged
pattern of criminal gang activity. But
even if the expression were
given a meaning wider than its statutorily defined one, I do not
consider that it was established that
accused 1 or 2 had the required
intention to commit the statutory offence of ‘bringing about,
promoting or contributing towards
a pattern of criminal gang
activity’. Accused 1 and 2 will therefore also be acquitted on
the main charge of contravening
s 9(2)(a).
[228]
The
order of the court is therefore as follows:
1.
Accused 1 (Anthonio Booysen
)
is found guilty and convicted on counts 2 and 3 (two counts of
murder), counts 4 and 5 (two counts of attempted murder), and on
counts 7 and 8 (contravening s 3 and s 90, respectively, of the
Firearms Control Act 60 of 2000
, ‘unlawful possession of a
firearm and an undetermined number of rounds of ammunition’).
2.
Accused 1 is found not guilty and acquitted
on count 1 (contravening
s 9
of the
Prevention of Organised
Crime Act 121 of 1998
) and count 6 (the attempted murder of Jenene
Rhodes).
3.
Accused 2 (Nadiem Thorpe) is found not
guilty and acquitted on all counts.
4.
Accused 3 (Cheslyn Johnson) is found not
guilty and acquitted on all counts.
A.G
BINNS-WARD
Judge of the High
court