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[2021] ZAGPJHC 891
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S v Davids and Another (SS12/2019) [2021] ZAGPJHC 891 (18 March 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: SS12/2019
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED:
NO
18/03/2022
In
the matter of:
THE
STATE
and
DAVIDS
JERMAINE LLOYD
Accused 1
SHIMIDZU
OTTIE
Accused 2
JUDGMENT
STRYDOM
J:
[1]
The two accused were arraigned on a count
of murder read with section 51(1) of Act 105 of 1997; two counts of
attempted murder;
a contravention of section 3 read with sections 1,
103 117, 120 and 121 of Act 60 of 2000, i.e. unlawful possession of a
firearm,
and on a count of contravening section 90 read with sections
1, 103, 117, 120 and 121 of Act 60 of 2000, i.e. the unlawful
possession
of ammunition.
[2]
Ms Z Peck appearing for the State applied
for an amendment of the charge sheet to include the reference to
section 51(2) of Act
105 of 1997 to the attempted murder counts, 2
and 4.
[3]
Mr Jermaine Lloyd Davids (“Accused
1”) and Mr Ottie Shimidzu (“Accused 2”) pleaded not
guilty on all counts.
[4]
Mr Spies appearing for Accused 1 indicated
to the court that Accused 1 will deny all allegations against him. He
has an alibi.
[5]
Ms Muir, appearing for Accused 2, in terms
of section 115 of the Criminal Procedure Act (“CPA”),
placed on record that
Accused 2 will admit that he had a shop in S
[....]3 Street. He will deny that he shot anybody or had a firearm or
ammunition in
his possession. He will deny all allegations against
him.
[6]
In terms of section 220 of the CPA,
admissions were made by both accused as per exhibit A. These
admissions relate to the identity
of the deceased in count 1, to wit,
H [....]1 P [....]1; that she died on 27 September 2018 as a result
of a perforating gunshot
wound to the chest which she sustained at or
near Westbury in the district of Johannesburg, that the body of the
deceased sustained
no further injuries until a post mortem
examination was conducted thereupon; the findings as recorded in
exhibit B pertaining to
the post mortem examination; the contents of
the crime scene photographs taken by Warrant Officer CL Wood as per
exhibit C; the
findings of a ballistic report, exhibit D, and the
correctness of the facts and findings of the competency report which
was compiled
on 30 September 2019 by Captain I [....] van der Merwe
who interviewed the complainant S [....]1 B [....], marked exhibit G.
[7]
It should be noted that the accused were
not prepared to make the admissions as contained in paragraphs 9 to
12 of exhibit A. These
admissions would have pertained to primary
residue tests conducted on L [....] M [....]1 and S [....]2 M
[....]2.
[8]
The accused were warned of the
applicability of the minimum sentences pursuant to
section 51(2)
of
the
Criminal Law Amendment Act 105 of 1997
.
[9]
In terms of the summary of substantial
facts provided to the accused and the court, the State indicated that
it is going to prove
that on 27 September 2018 at about 10h00, the
accused arrived in Westbury. They were both armed with firearms. They
acted in concert
and engaged in a shooting spree that appears to be
gang related. During this shooting, the complainants mentioned in
count 2 and
3, who appears to be an opposing gang, was shot whilst
the deceased in count 1, together with a minor child, the complainant
mentioned
in count 4 were also hit by bullets. The complainant in
count 3 was also shot on the side of his chest.
[10]
To prove the State’s case, it called
eleven witnesses.
[11]
S [....]2 M [....]2 (“ M
[....]2” or aka “Eezo”) testified that on 27
September 2018, he went to buy cigarettes
in S [....]3 Street. He was
with L [....] M [....]1 (hereinafter referred to as “L [....] M
[....]1” or “L [....]”
or “Bitsy”). L
[....] stayed on the other side of the road whilst he crossed the
road and went to the shop. He knew
the two accused and also that
accused 2 had a shop in S [....]3 Street. He referred to accused 1 as
“Ray” and accused
2 as “Otties”. When he
crossed the street to another shop he could see Accused 1 and 2 and
one D [....]1 D [....]2
(“D [....]2”) in front of the
shop. There was also a black Audi A3 which he previously saw was
driven by Accused 1.
When he came out of the shop he crossed the
street and met up with L [....]. Ms I [....] A [....] (“ I
[....] A [....]”)
was standing in front of house [....]. Whilst
he and L [....] were walking down the passage he heard many shots.
Initially he said
he could not remember how many, but later he said
there were three shots. When he turned around he heard more shots and
saw Accused
1 and Accused 2 with guns firing at them. He saw H
[....]1 P [....]1 also in the passage with children. He also noticed
that P
[....]2 H [....]2 was in the passage. He and L [....] started
to run away and turn in different directions. When he saw Accused
1
and Accused 2 firing shots they were 3 to 4 paces away from them. He
testified that he was hit by one of the bullets and was
taken to
hospital. At hospital he again saw L [....] who was handcuffed. At
the hospital gunshot residue tests were conducted on
them by Sergeant
Naidoo. He and L [....] were arrested and accused of attempted murder
and murder. The matter was later withdrawn
after the gunshot residue
tests conducted on them came back negative.
[12]
During cross examination, he denied that he
was part of a gang. He said that he saw Accused 1 and Accused 2 with
firearms but cannot
say who shot him. It was put to him that Accused
1 had incriminated him in the murder matter of M [....]3 C [....] and
that is
the reason why he now falsely incriminate accused 1. He
denied this.
[13]
He was confronted with a statement that he
had made to the police in which he said that when he crossed the
street he saw Accused
1 and 2 standing in front of the shop with
Liza, the girlfriend of one of the accused. He said he made a mistake
in his statement.
[14]
It was put on behalf of Accused 1 that he
will deny that he possessed a black Audi vehicle.
[15]
On behalf of Accused 2 it was put to this
witness that he was involved in the murder of M [....]3 C [....].
Accused 2 made a statement
against him and that is the reason why he
now falsely implicates him. This was denied by the witness. He was
never arrested for
that case. It was put to him that there was not a
black Audi in front of the shop but a black Polo belonging to Accused
2’s
girlfriend and a silver grey Audi. He persisted that he saw
a black Audi. It was put that two people with “hoodies”
were firing the shots. This he denied. It was put to him that there
was some kind of relationship between him and one Leroy Brown
(aka
“Finch”) the leader of the Varados gang. Also with
Warrant Officer Steyn who was siding with the Varados. This
he
denied. It was further put that Accused 2 will say that he was at the
shop and only heard the shots. He was not responsible
for firing
these shots. It was further put that this witness after the incident
bragged that he is the person who shot H [....]1
P [....]1. This he
denied.
[16]
The next witness called by the state was Ms
I [....] A [....]. She stated that Accused 1 was like family to her.
She used to greet
Accused 2 as well. She grew up with Accused 1’s
grandmother.
[17]
On 27 September between 12h30 and 13h30 she
went to buy a cold drink. She saw L [....] sitting on a concrete
block in the passage.
The next moment whilst she was on the side of
the road, a black Audi vehicle came speeding and turned across the
street and came
to a standstill. Accused 2 got out of the vehicle
holding a gun and started to shoot down the passage called
Tamboekiehof. She
saw that D [....]1 D [....]2 was the driver of the
vehicle. She indicated where H [....]1 P [....]1 and the children
with her were
when the shooting started. H [....]1 P [....]1 shouted
for L [....] to watch out. She went to lay flat and she saw L [....]
with
S [....]2. They ran down the passage. More shot were fired.
[18]
She heard that H [....]1 P [....]1 was
shot. She only saw Accused 1 after the shots were fired with a
firearm in his hand. She never
saw him shooting. After the shots were
fired he came down the passage and got into the car and the car drove
off. She saw two firearms
and stated that she did not see any
firearms in the possession of L [....] and S [....]2.
[19]
After the incident she was contacted by
Accused 1 who told her not to testify. She told him that she was not
going to testify. She
only spoke to L [....] or Ezzo when they were
released from custody some months later.
[20]
When she was confronted during cross
examination that her testimony was not the truth, she said that after
she fell down she activated
the video function on her cell phone and
took a video of the persons who fired shots. She indicated that she
would bring the phone
and show it to the court.
[21]
Once she realised that H [....]1 P [....]1
was killed, she decided to go to the Sophia Town police station to
give a statement.
[22]
Warrant Officer Steyn came to her and told
her that W/O Saunders said that she changed her statement. She
indicated to him that
she does not want to testify. During cross
examination she was confronted with her statement. She said that she
never saw Accused
1 getting out of the car or shooting in her
statement. She said that the statement was never read back to her and
the statement
is wrong.
[23]
The State then called L [....] M [....]1 as
a witness. On 27 September 2018 he went with S [....]2 M [....]2, who
he referred to
as Ezzo, to buy cigarettes at a shop in S [....]3
Street. He however stayed on the side of the road where they came
from and M
[....]2 went across the street to the shop. He went to sit
down. From his position he could see the two accused, Ray and Ottie
in front of D [....]2 Takeaway. Liza, Ottie’s girlfriend, was
also present. He gained the impression that they were discussing
him.
In front of the business a black audi and a red golf vehicle were
parked. According to him the black audi belonged to D [....]1
Doons.
[24]
He knew both accused for some time and he
never had any problems with them. When M [....]2 returned they
started to walk up the
passage called Tamboekiehof. There were also
at different stages other people walking in the passage. He did not
see I [....] A
[....].
[25]
As they were walking he heard Auntie H
[....]1 shouting “ L [....] watch”. He heard two to three
gunshots and when he
looked around he saw Ray (Accused 1) and Ottie
(Accused 2) were shooting towards him and Ezzo. Auntie H [....]1 was
with two children.
They were behind him as he was walking away from S
[....]3 Street. Accused 1 and 2 were about 10 metres away from him
and both
had firearms in their hands shooting at them. They started
to run and when he looked back he could clearly see accused 1,
standing
on the drain, shooting at Ezzo. At the end of the passage he
turned right and M [....]2 turned left. He saw P [....]2 H [....]2
in
front of the house of deceased. He jumped from his chair as the shots
were fired.
[26]
Later he met up with Ezzo who was shot. He
was taken to the hospital.
[27]
He went back to the scene and met with two
policemen called Steyn and Keet. He told them that he wanted to give
a statement that
Ray and Otties shot at them. Auntie H [....]1 was
lying in the passage. She was dead.
[28]
Later he went to the hospital and was
arrested. He was told that there was cross fire and that he was also
involved. He was charged
together with M [....]2 in this case but the
cases against them were withdrawn. A gun powder residue test was
conducted on him
but it delivered negative results. After 3 months in
custody he was released.
[29]
During cross examination, he admitted he
was part of the Varados gang at the time of the shooting. He said
Ezzo, his friend, was
not part of the Varados group.
[30]
When this witness gave his testimony he was
in custody on another charge.
[31]
It was put to him that the accused will
deny that they fired shots and that this witness was part of a
conspiracy to falsely implicate
them. This was denied.
[32]
He testified under cross examination that
he never saw the black audi at the entrance at the passage. He saw
that someone was sitting
in the drivers’ seat of the black audi
whilst it was still stationary in front of D [....]1 Doons’
shop.
[33]
It was put to him on behalf of Accused 2
that he was involved in the shooting of one M [....]3 C [....] and
that he falsely implicated
Accused 2 so that the latter can be locked
preventing him to testify against L [....] M [....]1. He denied this
and also denied
that Accused 2 stayed at his shop during the shooting
and never came to the passage. It was put to him that he was a hitman
but
this was denied. He also denied that Steyn was friendly with the
Varados gang. He further denied that I [....] A [....] was a
professional
witness.
[34]
The next witness was P [....]2 H [....]2
who testified that on this day he was seated in front of Auntie H
[....]1’s house
facing the passage called Tamboekiehof. He said
that if he turned his head he could look left and right up and down
the passage.
At some stage he was confusing his left from his right
but after pointing out his position on exhibit H1, it transpired that
if
he was looking to his right he would be able to see down the
passage towards S [....]3 Street.
[35]
While sitting there at approximately 13H00
he heard two shots being fired. Later he said it was only one shot.
Thereafter he saw
Ezzo and L [....] running past him. They did not
have guns in their possession. When he looked to his right he saw Ray
(Accused
1) shooting three shots from a position where there was a
drain. He fired in the direction of Ezzo and L [....] who were
running
away.
[36]
He took a dive and then could see no more
of what transpired. Later he saw three spent cartridges lying on the
drain. He asked a
boy to see that no-one touches these cartridges. He
later picked them up and put them in a plastic potato chips bag and
handed
them over to an unknown policeman. The place where these
cartridges were picked up were marked. He then saw Auntie H [....]1
lying
down in the passage. He heard about a child that was injured
and he arranged for an ambulance.
[37]
He never saw the two policeman Steyn and
Keet.
[38]
He knew accused 1 as he used to “hang
out” with him. He previously was a member of the Varados gang
with him.
[39]
He testified that he knows Accused 2 but
never saw him that day. He is still friendly with him.
[40]
During cross examination on behalf of
Accused 1, it was put to him that he is a professional witness and
that he falsely implicated
Accused 1. This was denied outright by the
witness. It was put to him that Accused 1 will deny that he was
involved at all and
that he will deny that he was part of the Varados
gang.
[41]
The witness said Accused 1 was lying
through his teeth.
[42]
It transpired that he made his statement
months after the incident. He denied that he was requested by the
Varados to make a statement.
[43]
LT Colonel Mangema then testified that he
was employed by the SAPS for 26 years and he is currently stationed
at the Forensic Science
Laboratory in Pretoria. He testified as an
expert witness to reconstruct crime scenes. He attended the crime
scene and compiled
a report, submitted as Exhibit “
K
”.
Most importantly his report concluded that the shooters stood at the
entrance of the passage southern side firing a number
of shots
towards the northern side. He concluded that the deceased died from a
bullet fired from the southern side consistent with
the post mortem
report wherein it was indicated that the bullet entered from the back
of deceased. Of further importance is that
he concluded that he could
not find any bullets or holes on the southern side which is the
entrance to the passage and on the side
of the shops. This is
indicative that shots were not fired by the people running away in
Tamboekiehof. The Ballistic report Exhibit
“
D
”
compared the fired cartridge cases collected form the scene and
concluded that two (2) different fired cartridge cases were
found to
have been fired from two (2) different firearms both semi-automatic
firearms.
[44]
W/O Naidoo then testified that on 27
September 2018 he conducted primer residue tests on state witnesses M
[....]2 and L [....]
at Helen Joseph Hospital. The tests were
conducted between 15H25 and 15H35. His report was submitted as
Exhibit “
E”.
[45]
W/O Mehlape then testified that he is
a police officer with 8 years’ experience and currently a
forensic analyst stationed
at the Forensic Science Laboratory in
Pretoria. He examined the gunshot residue tests conducted and
concluded that all the test
samples tested negative for gunshot
residue. His report was admitted as Exhibit “
F”.
[46]
Dr Thandi Mahuluhulu testified that she
conducted the post mortem examination and found that the entry wound
was from the back of
the deceased and the exit would to the front.
Her report was received in evidence as Exhibit “
B
”.
[47]
S [....]1 B [....] was then called by
the state. This state witness testified in camera through an
intermediary. She was only 10
years old when she was shot from the
back in her leg at Tamboekiehof on 27 September 2018. She was
collected from school by the
deceased together with her 2 other
siblings. She testified that on entering the passage her Aunt greeted
a short, thin lady. The
lady was at the entrance of the passage, she
always sees her in the area. She noticed 2 guys in the passage. She
recalls them as
Bitsy and Eezo. Whilst walking into the passage she
heard 3 gunshots and saw Eezo and Bitsy running. She thought it was
the sound
of crackers. The sound was coming from the back. Bitsy and
Eezo were in front of her. When she looked back she saw two men. She
noticed one of them had a gun holding it down. She looked so quick
she did not look at their faces. She only noticed them wearing
caps.
She thinks they were coloured men. She noticed a car near the houses.
She did not recall the colour of the vehicle. After
she noticed the
one man had a firearm she started to run. Her sister L [....]1 fell,
she helped her up. She felt her foot vibrating
and blood dripping
from her left knee. She ran to the nearest house which was Aunt
Toenkie`s house. She did not notice in which
direction Bitsy and Eezo
ran after she entered the house. She had a gunshot wound to her left
knee, it entered from the back of
her knee and exited at the front of
her knee.
[48]
Constable Gabriel Rudolph testified that he
is a constable with 16 years’ experience in the SAPS and
currently based at crime
intelligence. His duties are to gather
information and to assist with investigations. They utilise
registered informants and tip
offs to assist warrant officer Saunders
to trace and arrest accused 2 in East London. Accused 2 was arrested
on 18 November 2018.
He was found hiding underneath a bed. He was
informed of his rights and that he was being arrested for murder. He
was thereafter
transported back to Sophiatown Police Station.
[49]
The last state witness was W/O Saunders who
is employed by the SAPS in the Anti-Gang Investigative Unit. He had
28 years’
experience. He was previously based in Cape Town
working with serious violent crimes and gang related incidents in
Cape Town. In
2014 he was requested at national level to transfer to
Johannesburg. In 2018 the then Minister of Police, Bheki Cele,
created a
task team to deal with gang related matters. The community
of Westbury prior to this incident staged protests as rival gangs in
the community were causing havoc in the area. Innocent bystanders
were killed and mostly children were affected. It was within
this
context that he and 10 other members were tasked to investigate these
cases. He was appointed the investigating officer after
Sgt Mthetwa.
He never attended the scene on the day of the incident. He attended
the scene to accompany Col Mangena to reconstruct
the scene. He found
P [....]2 H [....]2 seated in front of the deceased house. He
enquired whether on the day in question he saw
the shooting of the
deceased to which P [....]2 told him he did. P [....]2, later made a
statement to him. He also took down I
[....] A [....] statement as
well as L [....] M [....]1`s statement. He confirmed that both M
[....]2 and L [....] were not arrested
for the murders of M [....]3 C
[....] and of B [....] O [....]. He confirmed that he had both
dockets at court with him. The suspect
arrested for the death of M
[....]3 was in fact R[....]1 N[....]1 aka Nadie. The matter was
withdrawn by the senior public prosecutor
of Johannesburg as accused
1 stated he would not testify in that matter. In the B [....] O
[....] case no suspects were identified
as the witness said they did
not see who shot at the deceased. He reiterated that L [....] M
[....]1 and S [....]2 M [....]2 were
not suspects in the matter nor
were they ever arrested for these cases. He further confirmed that I
[....] A [....] and P [....]2
H [....]2 never made statements or
provided alibis in these matters or any other cases that he is aware
of. He further testified
that he was involved in the arrest of
accused 1. He was arrested on 14 October 2018 whilst attending a
wedding in Krugersdorp.
Accused 1 was informed of his rights and the
reason for his arrest and taken to Sophiatown police station.
Saunders explained that
the reason for the arrest of L [....] and S
[....]2 was because the previous investigating officer received
information that there
was a cross-fire. He stated that as they
obtained more evidence and statements it became clear that there was
no cross -fire and
that L [....] and M [....]2 were victims. The
charges were withdrawn against them. He denied that he had conspired
with any witnesses
to falsely implicate the accused. He had no reason
to do so. He denied that a witness attended the police station when
accused
1 was arrested. He only became aware of R [....] M [....]4
when representations were made by the accused 1 to the state through
Advocate Lekgotoane of the legal-aid. He contacted Mr M [....]4 who
acknowledged that he knew accused 1 and that he did a property
evaluation for him but he could not recall the date when he visited
the house in Quellerina. He testified that he tried to contact
Mr M
[....]4 again but he would not answer or return his calls. He
confirmed that he went to his alleged place of business to verify
if
Accused 1 was a property agent. He was informed by the other tenants
of the building that the business had moved and the premises
was now
occupied by an NGO. He confirmed that he was requested to trace a
cellular phone of I [....] A [....] and after numerous
attempts he
managed to obtain the phone and sent it for analysis. The analyst had
stated that he could not download the video footage.
The phone was
damaged and had scratches. I [....] identified the phone as hers. He
confirmed that the person who originally had
the phone did not
download anything from the phone on to a laptop. He disagreed that
accused 2 went to East London because he was threatened by “Finch”.
[50]
W/O Saunders confirmed that according to
his information both accused were Varados members, until the death of
M [....]3, when things
changed and the relationship turned sour. He
confirmed booking the cell phone of accused 1 into the SAP 13 but did
not obtain a
section 212
statement. He denied working for any members
of a gang to conspire to implicate the accused. Saunders confirmed
that warrant officer
Steyn was arrested by him and currently standing
trial in the High Court. He further confirmed that whilst the country
was in lockdown
due to coronavirus the witness L [....] M [....]1 was
also arrested by him and was currently in custody for another matter.
He
therefore denied that he worked for the Varadors as he was
responsible for the arrest of these persons.
[51]
The state then closed its case
[52]
Accused 1 then testified in his own
defence. The accused relied upon an alibi in respect of the events on
27
th
September 2018. Accused 1 defence is that on the 27 September 2018 he
resided with his wife L [....]3 D [….]3 at [….]
D
[....]4 Street W [....]. He was employed as an estate agent at Urban
Links at [….] [....] B [....]2 Hertzog Street, Emmarentia.
He
denied being a member of the Varados gang. He knew the state witness
I [....] and her sister. According to him I [....] resided
in
Pedestrian which is an area in Westbury. He does not know uncle
Frikkie or aunty Pam. He denied that she grew up in his grandmother’s
house or with any other family member. He further testified that I
[....] told him at Johannesburg prison that Veronica made the
statement for her. He asked I [....] what the reason for her visit
was, and she told him she is a witness in this case. She came
alone
and was not in the company of anybody else. He denies Ishodeen was
his cousin or that she was with I [....] at the prison.
He believed I
[....] falsely implicated him to protect L [....] because L [....]
had a child with her sister. He testified that
the witnesses
conspired with police officers to falsely implicate him in this
matter. He testified that L [....] M [....]1`s father
was shot and
killed by his uncle who is currently serving a life sentence for that
offence. This is yet another reason why L [....]
would falsely
implicate him in this matter. He also made a statement implicating L
[....] and R[....]1 N[....]1 aka Nadie in the
murder of M [....]3 C
[....]. He disputed the contents of the statement he made to Sgt
Mthetwa and said that things were deliberately
put in the statement
and other information left out. He denies that he told Sgt Mthetwa he
was unemployed or that he resided at
[....] C [....]2 Flats
Westbury. He does however admit that he read and signed the
statement. He denied that he informed
the prosecutor that he refused
to testify in the M [....]3 case. He was adamant the prosecutor lied
and disputed the entry on the
docket that he refused to testify. He
would travel with Saunders in his vehicle and would see him in
possession of the M [....]3
C [....] docket even though he was not
the investigating officer. He testified that he concluded that
Saunders worked for the Varadors
and would take orders from Leroy
Brown aka “Finch”. He testified that all police officers
at Sophiatown Police station
were corrupt including Saunders. They
removed statements in the B [....] O [....] matter because according
to him I [....] was
an alibi for L [....] in that matter. He further
denied that he was friends with accused 2. He denies that he was at D
[....]2
takeaways on the day in question. He was with his wife L
[....]3 at [….] M[....]5 street Quellerina between 12H00 and
14h00
for a viewing that took place for potential clients to the rent
the property. He brought two clients to the house for viewing. He
arrived at the house of Mr R [....] M [....]4 who was present
together with other family members in the house. The clients viewed
the property and thereafter they went straight home to [....]
Dover Street, W [....]. He cannot provide proof of the emails
between
him and the clients as his Samsung phone was given back to his aunt.
He says he could not access work emails from any other
device. His
aunt informed him all the contents of her phone were deleted. He said
Saunders lied that M [....]4 had not gone to
the police station. He
kept in contact with M [....]4 in prison and would often phone him
from prison. L [....]3 and he would discuss
this case and she
informed him that another police officer was also present when M
[....]4 spoke to Saunders. He was told by M
[....]4 that Saunders
made appointments to meet but it did not materialise. He believed
Saunders did not honour these appointments
because he did not want
him to be released. He estimated that the driving distance from
Westbury to Quellerina is approximately
30 minutes drive, although he
was not sure and never drove from Quellerina to Westbury. He could
not dispute that according to google maps it showed
a distance of 5.9
kilometers and 11 minutes driving time with a vehicle. He also
admitted that he mentioned L [....]3 being with
him on the day in
question for the first-time during evidence in chief. He testified
that he had not mentioned her in his representations
to the Director
of Public Prosecutions nor had he mentioned it to anybody else.
[53]
R [....] M [....]4 testified that he knew
accused 1 through a letting agency to assist in letting out the
property where he resided
at the time. He was residing at [….]
M[....]5 Avenue Quellerina. Charlene was the personal assistant who
arranged for the
meeting that day. On 27 September 2018 at about
12h00 accused 1 arrived in a Toyota vehicle with a female. He cannot
say who the
female occupant was. After five to ten minutes the first
client pulled up. They were shown the property and there after the
second
client arrived. Accused 1 was at the property for over an
hour.
[54]
He met warrant officer Saunders on the day
he was requested by accused 1`s wife to accompany her to Sophiatown
police station. He
does not recall the date. Saunders asked L [....]3
a few questions he did not ask him much. After this incident, months
later the
specific date the witness could not recall Saunders called
him but he was on holiday. Saunders tried to contact him but he
missed
his call and he tried to call Saunders but they kept missing
each other and that was the last interaction he had with Saunders.
The witness had to look at his lease to recall the date of viewing
when he was contacted by L [....]3.
[55]
Under cross examination he admitted that he
vaguely remembered the time he asked his helper who told him it was
at twelve midday
but that he had no independent recollection of the
time. He could not remember when he spoke to L [....]3 or when he
accompanied
her to Sophiatown police station. When he spoke to L
[....]3 he was not sure why he was needed at the police station but
he went.
At the police station L [....]3 asked him to say that
accused 1 was together with her for a viewing at the house. He told
her he
could not say that because he did not see her. When they
entered a room at the police station, Saunders introduced himself and
started asking L [....]3 questions. She responded to the questions
and they continued talking at no stage did she introduce him
or state
the reason for him being at the police station. He tried to explain
to Saunders that L [....]3 asked him to explain how
he knew accused
1. He further testified that a few months ago L [....]3 had asked him
if he could give a statement. They agreed
he would type a statement
and forward it to her which he did and emailed it to her. He admitted
to being forgetful, he sometimes
would forget to fetch his own kids
at school. His family would often fight with him of how forgetful he
was. He testified that
he cannot recall exact dates and times as he
was pre-occupied with a million things. He conceded that he could
have been mistaken
about the time. He admitted that he personally had
no recollection of the time accused 1 came to the house. He testified
that he
was certain that the day accused 1 came to the house was a
Wednesday. He was certain of this because he looked at the calendar
as he could not remember what transpired 2 years ago. He testified he
looked at the lease and then he looked at the calendar and
saw that
it was a Wednesday that accused 1 came to the house. His lease was
about to expire on 30
September
he looked at the calendar and then from his own memory and
recollection he concluded that accused 1 came to the house
on the
Wednesday. He further said that the reason why he was certain that it
was Wednesday is because he called Charlene that exact
day to ask her
if they could not extend the lease as the lease would expire in 4
days. He had to be out the Saturday and his belongings
were literally
outside as he had to accommodate the new tenants. He further remember
the day being a Wednesday because he was waiting
for Mariana to hand
over the keys for the new place. It was then put to him that 26
September 2018 fell on a Wednesday and that
27
September 2018 fell on a Thursday. He
then changed his version and said then he was mistaken and it was a
Thursday. He reiterated
that he was not good with dates and times. He
was not certain of the date.
[56]
L [....]3 D [....]3 is accused 1 wife. They
have been married for two years and reside together at 7 D [....]4
Street, W [....].
She recalls accused 1 was arrested on a Sunday, he
was attending a wedding in Krugersdorp but she was not present. After
being
informed about his arrest she went to Sophiatown Police Station
at about 17H00 but could not see accused 1. When she went on the
Monday to visit her husband she met Saunders. She was informed that
accused 1 was arrested for the murder of H [....]1 Pietersen.
She
told Saunders that accused 1 was employed at Urban Links in
Emmarentia. She informed Saunders that the day of the incident
on 27
September 2018 he had appointments
with clients to view a property. She testified that she became aware
of the date the shooting
took place through social media in relation
to when the riots took place in Westbury. She recalls on that day
accused 1 collected
her from Wits University and they drove to
Quellerina. She testified she went through his work files and
confirmed the date. She
checked the date after she spoke to Saunders.
She testified she knew the previous witness R [....] M [....]4. The
first time she
spoke to him was the day after accused 1 was arrested.
She testified that she had told R [....] specifically that he was
there
because he was present at his property on the day the incident
occurred. She took him to Saunders office and told Saunders that
accused 1 conducted a viewing at his house on the day in question.
They further discussed the times of the viewing and nothing
further.
R [....] told Saunders it was between 12H00 and 14h00. She denied
that R [....] emailed his statement to her. She testified
that she
did not inform her current lawyer that she was at the viewing because
she was the wife of accused 1 and she did not consider
herself as an
alibi, because there would be a perceived bias. She confirmed that
accused 1 had at least 3 other attorneys before
Mr Spies and that she
also chose to only tell one of them and not the others that she was
also present at the viewing. She was
in possession of an
administrative file of accused 1 but was not sure whether the
document she consulted was in that file or not.
She further confirmed
that she had no independent recollection of their whereabouts on that
day and had to go and look for the
information. She admitted being
present during the entire trial in court and listening to the
evidence of witnesses and that she
was asked by the current lawyer to
give evidence.
[57]
Accused 1 then closed his case.
[58]
Accused 2 then testified in his defence
which came down to a bare denial. According to him he was falsely
implicated by police officers
and witnesses who colluded and worked
for the leader of the Varadors Leroy Brown aka Finch. He testified
that he resided at 56
S [....]3 Street Westbury. He was the owner of
D [....]2 takeaway which was situated at the same address,
approximately 20 metres
from Tamboekiehof. He would not venture into
the passage as there were many people in that passage with firearms
and one could
sustain injuries. The Varadors sold drugs in that
passage. On the day of the incident he was at his shop busy peeling
potatoes
for pre-fry. In front of his shop was a black polo which was
his wife`s car and a silver audi A1 at the barbershop. A red golf was
parked inside the yard but was not running. He confirmed the black
audi belonged to his cousin Lilly D [....]2. He testified that
according to his knowledge the Audi was sold in the year 2016 or
2017. A document of registration of the Audi was handed in as
Exhibit
“
L1 and L2”.
[59]
The information he had about the murder of
H [....]1 P [....]1 was that Bitsy, Eezo and Tavey, who works for
Finch, shot at each
other including a fourth unknown person. He said
I [....], Bitsy and Eezo were liars and that they acted in cahoots
with Finch
to falsely implicate him in this matter. He testified that
W/O Steyn took a firearm from Eezo who was wearing a hoodie top and
had a firearm in his hands on the day H [....]1 P [....]1 was shot.
He heard in prison Eezo bragged about killing H [....]1 P [....]1.
[60]
He testified in detail about the M [....]3
C [....] murder. In short, he was outside his shop with accused 1 and
M [....]3. He noticed
Bitsy, Eezo and Waagiet approach in a combi. He
heard gunshots and M [....]3 was shot. He and accused 1 took M
[....]3 to the hospital.
At the hospital Steyn and Keet arrived, aunt
Gladys told him they were sent by Finch. She told him to say he did
not see anything.
She was aware of high-ranking police officers whom
she will contact. He was introduced to a policeman called Rassie. He
told Rassie
what had happened to M [....]3 and Rassie said he should
not trust Steyn. Rassie did not return to take their statements. He
relayed
the story to Mthetwa as well but two days later he saw
Mthetwa with Finch and Bitsy walking in Tamboekiehof and he realised
that
they were all in cahoots with the police and drug dealers. He
was never asked to attend court to testify in the M [....]3 matter.
[61]
He admitted he was arrested in East London
on 18 November 2018 with his wife and children. He was in East London
because he felt
his life and that of his wife and children were in
danger. Finch sent Tavey with a phone to him so he could speak to
him. Finch
told him M [....]3 was a Fastgun boy and if he should
testify he would shoot his wife and children. He testified that he
heard
in prison and the whole of Westbury knew that Saunders was paid
by the Varadors an amount of R250 000 to make this case go away.
According to him Saunders was paid this amount to release Bitsy and
Eezo. He further testified that Saunders had informed him whilst
driving back from East London when he was arrested that Finch offered
him R 500 000. He further testified that Saunders told him
he would
be placed under witness protection. He admits to having a tattoo of
the Majimbos group as he was a car thief many years
ago and was part
of that group. He denies that he was ever a member of the Varadors.
He admitted he knew P [....]2 H [....]2 as
a person who would
frequent his shop. They were not friends. Lastly, he testified that
he does not have or like firearms. He called
no witnesses and closed
his case.
[62]
The correct approach the evaluate evidence
in a criminal trial was enunciated by the Supreme Court of Appeal as
follows in S v Chabalala
2003 (1) SACR 134
(SCA) at paragraph 15:
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sided and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.”
[63]
The defence raised by accused 1 is one of
an alibi. He testified he was not at the crime scene at the relevant
time. He called two
witnesses to corroborate his version. In S v
Malefo and other 1998(1) SACR 127(W) at 157j to 158 a-d the court set
out five principles
which should be considered when an alibi defence
is assessed as follows:
63.1
There is no burden of proof on the accused
to prove his alibi;
63.2
If there is a reasonable possibility that
the accused’s alibi could be true, then the prosecution has
failed to discharge
its burden of proof and the accused must be given
the benefit of the doubt;
63.3
Every “alibi” must be
considered against the totality of evidence and the impression formed
by the court of the witnesses;
63.4
If there are identifying witnesses, the
court should be satisfied, not only that they are honest, but also
that their identification
of the accused is reliable;
63.5
The ultimate test is whether the
prosecution has furnished proof beyond reasonable doubt – and
for this purpose a court M
[....]1 take into account the fact that
the accused raised a false alibi.
[64]
On a consideration of the evidence as a
whole it has become common cause that the deceased was shot and
killed, and S [....]1 was
shot and injured, as a result of a shooting
which took place on 27 February 2018, between 12h00 and 14h00, whilst
walking in a
northern direction down a passage called Tamboekiehof.
It was also not disputed that M [....]2 was shot and taken to
hospital.
The evidence of Col Mangena confirmed the direction of the
shooting and his evidence was not seriously challenged. The only
question
for this court to decide is who was responsible for the
shooting. The ballistic evidence indicated that two semi-automatic
firearms
were used. This, on the probabilities, would indicate that
there were two people who fired shots.
[65]
The state argued that the evidence of the
state witnesses should be accepted and that the state has proven,
beyond reasonable doubt,
that the two people who fired the shots were
accused 1 and 2. It was argued that identity could not really be
disputed once the
court accept the evidence of M [....]2, L [....] M
[....]1, I [....] A [....] and P [....]2 H [....]2. They knew the
accused and
would not have wrongly identified them. The state argued
that the alibi of accused 1 was proven to be false beyond reasonable
doubt.
[66]
On behalf of the two accused it was argued
that the state witnesses contradicted each other and themselves. It
was argued that the
witnesses colluded with each other and with the
corrupt police, particularly with W/O Steyn and W/O Saunders to frame
the two accused.
The witnesses were referred to as professional
witnesses to protect M [....]2 and L [....] M [....]1. Finch, the
leader of the
Varados was the person behind all of this corrupt
activity. He, as leader of the drug smuggling Varados gang, was
paying the police
to act according to his wishes.
[67]
The court was informed about other murder
cases, particularly the matter of M [....]3 C [....] where the
accused allegedly made
statements against M [....]2 and M [....]1 but
they were never arrested. It was argued that because of wide spread
police corruption,
evidenced by the arrest of W/O Steyn stationed of
Sohiatown Police Station, the evidence of the state witnesses were
tainted with
the flavour of corruption and should not be accepted.
The court was asked to draw an adverse inference against the state
for not
calling W/O Steyn to testify. He and Keet was the first
policemen on the scene after the shooting.
[68]
It was argued that the police protected L
[....] M [....]1 and M [....]2 and that they might have been the
persons who shot the
deceased, alternatively that they were involved
in crossfire with other people. This possibility, so was it argued,
was supported
by the fact that they were arrested but failed to
immediately make statements proclaiming their innocence. Only after
the negative
gun powder residue test became available some 3 months
later did they make statements implicating the accused. Coupled with
this
the fact that P [....]2 H [....]2 only, quite incidentally, came
forward as a witness about a month after the shooting incident.
[69]
It was argued that the issue of the video
evidence that disappeared is an extremely important aspect. It was
confirmed in court
on record that the material existed and that Cst
Modise could confirm that two people are clearly seen on the video.
Later it appeared
that the video footage could not be retrieved as
the phone was damaged. The question was rightfully asked why it was
then not properly
explained to court what has happened to the
footage.
[70]
On behalf of accused 1 it was argued that
above all his alibi defence is reasonably possibly through and should
be accepted.
[71]
To deal with the issue of W/O Steyn first.
There is a suspicion that W/O Steyn acted corruptly and sided with
gangs. For this he
was arrested according to W/O Saunders. There is
however, no acceptable evidence placed before this court that he
influenced witnesses
in this matter. There is also no evidence or
indication that he tampered with evidence or influenced witnesses
when he arrived
at the crime scene shortly after the shooting.
[72]
As far as W/O Saunders is concerned
there is no evidence whatsoever implicating him of any corrupt
activities. He in fact was deployed
from Cape Town to assist in this
gang related crimes. This court should not base its findings on vague
allegations of corruption
and open ended allegations that the police
sided with certain gangs. To do this the court will have to rely on
hearsay evidence,
speculate and give credence to conjecture. The
court must deal with the evidence led in this court and evaluate the
evidence to
consider whether the state has proven its case against
the accused beyond reasonable doubt. In my view, there is nothing
sinister
to be found in the fact that Saunders, who was investigating
gang related crimes, took the statements of I [....] A [....] and
other witnesses in this matter.
[73]
The court considered the evidence of M
[....]2 and find him to be a reliable witness who related what has
transpired on that day
in a logical and clear manner. He did not
contradict himself on material aspects. The fact that he did not see
the vehicle parked
at the entrance to the passage is not affecting is
credibility or observation ability. Things were happening fast and he
was moving
down in the passage.
[74]
The contradictions pointed out in his own
testimony when compared with the evidence of I [....] A [....]
relating who stood where
outside D [....]2 take away, the type of
cars parked, the way in which the black Audi travelled and where it
came to a standstill
is not material issues affecting the credibility
of the witnesses. It is rather an indication that these witnesses did
not collude
to come up with a version.
[75]
I [....] A [....] has testified that
she had no axe to grind with the accused and that accused 1 was like
a brother to her. She
also gave her evidence in a logical manner and
she did not contradict herself. The court gained the impression that
she related
to court exactly what she saw. She made her statement to
the police a day after the shooting and would not have had a chance
to
collude with anybody about her version of the events. The contents
of her statement, dated 28 September 2018 which was handed in
as
exhibit “J” was materially the same as her evidence in
court. The court could not find any reason why she would
lie about
her friendly relationship with accused 1 which go back to her youth.
The fact that she late in her evidence brought up
the issue of her
cellular phone and the video she took is not affecting her
credibility. She said the phone was damaged. What transpired
thereafter and what the court was told from the bar about video
footage is not evidence although the court expected from the state
to
clarify this issue through evidence. The matter was postponed on a
few occasions for the video footage to be presented in court.
The
court was led to believe that video footage was retrieved from the
cellular phone onto a hard drive and will be made available.
Despite
these statement the court was told on 19 August 2020 that there was
no video footage. To leave it at that was unacceptable.
The question
however remains whether it affected the credibility of I [....] A
[....]. In my view it did not.
[76]
The court also find L [....] M
[....]1 to be a credible witness. He admitted that he was part of the
Varados gang. He related his
version without contradicting himself.
The fact that he only made a written statement after his release does
not point to any wrongdoing.
It is not uncommon and in fact in
happens more often than not that suspects do not provide the police
with statements.
[77]
The witness P [....]2 H [....]2 impressed
the court as a witness although it is strange why he only came to the
fore when the police
revisited the crime scene about a month or so
after the incident. His explanation was that H [....]1’s
husband told him,
Saunders was looking for him to take a statement.
When Saunders asked him if he saw something he was prepared to give a
statement.
Furthermore, it is understandable that people do not want
to get themselves involved in these gang related shootings. His
presence
on the scene and position in front of the house in
Tamboekiehof was corroborated by the other witnesses. They saw him
there. At
some stage during his testimony he became confused. In my
view, this came about as a result of the intimidating style of cross
examination by Mr Spies. He raised his voice and asked one question
after the other affording the witness limited time to reply.
The
court had to ask Mr Spies not to shout and intimidate the witness.
[78]
The evidence of S [....]1 B [....] remains
uncontested and should be accepted. Her evidence cannot be
criticised, she was coherent
and an honest witness. Although this
witness could not identify the shooters, she did corroborate every
other state witness`s evidence
in material aspects. She even
confirmed the vehicle that was parked near the houses that was
mentioned by I [....] A [....]. This
witness also gave a description
of the thin short lady whom the deceased greeted which the court
accepts to be I [....] A [....].
L [....] also testified that he
recalls that accused 1 wore a black cap.
[79]
Considering the eye witnesses’
evidence holistically it becomes clear that they corroborate each
other on material aspect
but still each one gave his or her version
of the events. There is no evidence of collusion, as if this happened
and they discuss
how they would implicate the two accused, the court
would have expected all the witnesses to implicate, in some detail,
both the
accused and the role they played. This did not happen. If P
[....]2 H [....]2 was part of this conspiracy he would have given his
statement at a much earlier stage. Moreover, there was no time for I
[....] A [....] to conspire with anyone before she gave her
statement.
[80]
As far as the identity of the accused as
the two perpetrators are concerned the evidence is overwhelming. The
state witnesses M
[....]2, L [....] M [....]1, I [....] A [....] and
P [....]2 H [....]2 were familiar with the area of Westbury. They
were familiar
with accused 1 and accused 2. M [....]2 and L [....]
knew accused 1 for a number of years and would often see him in
Westbury at
accused 2 shop. They knew them to be friends. L [....]
and M [....]2 often bought food at D [....]2 take away and were
familiar
with accused 2 and his family members.
[81]
Accused 1 and 2 were identified in broad
day light and over a relative short distance. The deceased shouting “
L [....] watch
out” was also heard by all 3 witnesess I [....],
M [....]2 and L [....].
[82]
The deceased and the children were walking
behind M [....]2 and L [....] when the shots were fired. Shots were
fired from the front
of the passage. The evidence of Col Mangena
corroborates the witness’s evidence that there was no cross –
fire on the
day in question. Shots were only fired from the entrance
of the passage towards the witnesses. This evidence put pay to the
suggestion
that M [....]2 and M [....]1 were the persons who fired
the fatal shots. First, how would M [....]2 end up being shot if he
was
shooting from the entrance and second, they did not fire from
inside the passage as this would be contrary to the evidence of Col
Mangena and the post mortem report indicating the entry and exit
wounds found on the deceased’s body. Further, there is now
evidence that the shooters were different people shooting at M
[....]2 and L [....] M [....]1.
[83]
The suggestion of police corruption which
caused witnesses to testify against accused 1 and 2, either to
falsely implicate the accused
or to protect themselves hold no water.
There is no acceptable evidence of collusion and there are no
probabilities that favour
such a conclusion. For instance if the
police and state witnesses colluded one would have expected S [....]1
B [....] to also identify
the shooters. Her evidence was rather of a
witness who was not influence to blindly support other witnesses. Her
version is clearly
what she saw under stressful circumstances, but it
support the other witnesses on material aspects as to the vehicle at
the entrance
of the passage, the presence of the thin lady as well as
that Bitsy and Ezzo were running down the passage whilst shots were
fired
towards them. This thin short lady the deceased greeted that
afternoon could only have been I [....] A [....]. She saw Eezo and
L
[....] in the passage sitting on the drains. She also noticed a car
parked on the side of the houses corroborating I [....] Adam’s
version of a vehicle parked at the entrance of the passage.
[84]
Both accused raised issues of corruption by
the police members of Sophiatown and witnesses colluding with each
other to falsely
implicate them in this matter. One of the main
reasons for that was because accused 1 and 2 implicated M [....]2 and
L [....] M
[....]1 in the murder of M [....]3 C [....]. Yet accused 1
only mentioned Nadie R[....]1 N[....]1`s name in his statement and
the
name Valentino.
[85]
Accused 1 testified that L [....]`s father
was killed by his uncle and this could also be a reason for falsely
implicating him.
Yet, L [....] was not even aware that the person who
killed his father was accused 1`s uncle.
[86]
Accused 1 was adamant that he wanted to
testify in the M [....]3 matter. Yet, the entry by the Senior Public
Prosecutor Johannesburg
on the docket indicated that he refused to
testify and therefore the matter was withdrawn.
[87]
Accused 2 only made his statement on 18
November 2018 in the M [....]3 matter when he was arrested for the
murder of H [....]1 Peterson.
I [....], P [....]2 and other
statements were already in the docket identifying him and accused 1
as the shooters on the day in
question.
[88]
The two accused testified that they were
not friends. Despite this they, on their own versions, were also in
each other’s
company when the shooting of M [....]3 took place.
They took him to hospital. This is an indication that they were much
closer
connected as what they wanted this court to belief.
[89]
Both accused testified that I [....] and P
[....]2 were professional witnesses for the Varadors and created
alibis for L [....]
in other matters. Yet, in both dockets in the M
[....]3 C [....] and the B [....] O [....] cases were brought to
court by W/O Saunders
who testified that neither I [....] nor P
[....]2 were alibis or made statements in those dockets.
[90]
Both accused specifically mentioned W/O
Steyn, Keet and Mthetwa as corrupt police officers who worked for
Leroy Brown. Yet, the
only statement Steyn provided in this case was
that of attending the crime scene as the officer on duty. He did not
incriminate
the accused in any way. Keet had no relevance in this
case. Mthetwa was removed as the investigating officer and Saunders
took
over.
[91]
Accused 2 testified that everybody knew
that M [....]2 wore a hoodie top on the day in question and that
Steyn took a firearm from
him. This version is based on hearsay and
conjecture.
[92]
Accused 2 further testified that Saunders
was paid by the Varadors an amount of R250000 to release M [....]2
and L [....] in this
matter. He admitted he had no proof and that he
heard this in prison and the entire Westbury knew this to be true.
Yet, this was
never put to the witness when he testified which was
crucial seeing that this was also part of the collusion with the
Varadors.
[93]
Accused 2 further testified that whilst
driving back from East London. Saunders also told him that Finch
offered him R500 000 for
this case. This version was also not put to
Saunders.
[94]
Accused 2 testified for the first time
about a suspect Tavey who was involved in the shooting of H [....]1 P
[....]1. Failure to
canvass this evidence with Saunders is indicative
of fabrication whilst testifying.
[95]
After the murder of H [....]1 P [....]1
accused 2 fled to East London. He testified that he and his family
were threatened by Finch.
Yet, he left one of his other children to
work in the shop as he felt only the children he had with Lisa were
in danger. The indication
is rather that he fled because of his
involvement in the killing of H [....]1 P [....]1.
[96]
The evidence both accused provided about
the collusion between witnesses and the police with members of the
Varados gang to falsely
implicate them in the death of H [....]1 P
[....]1 amounts to hearsay and gossip stories amongst the community
of Westbury. The
court cannot base its findings on speculation and
conjecture.
[97]
The two accused testified that they are
working people and have nothing to do with this gang related
violence. If that is in fact
the case the court finds it hard to
understand why the state witnesses, either under pressure of Leroy
Brown or on their own, would
have single out the accused of all
people to blame for the killing of H [....]1 P [....]1. They said
they had no problems with
the Varados. They were not part of this
gang violence yet prosecutors, the police and witnesses, with whom
they had no trouble
before, gang up against them to exonerate M
[....]2 and L [....] M [....]1. This is highly improbable and should
be rejected as
false beyond reasonable doubt. This evidence is
baseless, and lacks substance.
[98]
The court must regardless its rejection of
the allegations that the state witness colluded amongst themselves,
with the assistance
of the police, still consider whether the alibi
defence of accused 1 is not reasonably possibly true. This should be
considered
in light of all the evidence.
[99]
In
R v
Hlongwane 1959(3) SA 337(A) para 340 H-341B Holmes AJA
in dealing with an alibi said that an accused must be acquitted if
the alibi M [....]1 reasonably be true ”
But
it is important to bear in mind that in applying this test, the alibi
does not have to be considered in isolation. 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.”
[100]
Accused 1 has relied upon such an alibi
defence. His alibi defence and evidence tendered in support thereof
must not be considered
in isolation but must be considered with the
evidence in its totality. R [....] M [....]4 and his wife L [....]3 D
[....]3 testified
as alibi witnesses.
[101]
Mr R [....] M [....]4 a self-confessed
forgetful witness, admitted and correctly so, that he was not certain
of the dates and times
when accused 1 came to property.
[102]
Firstly, he testified that he was without a
doubt certain that the accused came on a Wednesday to view the
property from his own
recollection of his memory. He confirmed this
by stating that he looked at his calendar and concluded that his
lease was about
to expire in 4 days and that is how he recalled it
being a Wednesday. Correctly so, the lease expired on 30 September
and Wednesday
was the 26
th
of
September which was 4 days apart.
[103]
He further recalled that on the exact day
the viewing took place was the Wednesday the day he telephonically
called Charlene who
was the personal assistant who arranged for the
viewing that specific day.
[104]
He further testified that he also recalled
that on that Wednesday he was waiting for Mariaan to hand over the
keys to the new place
and he specifically remembered his things were
literally standing outside to allow the new tenant to move in.
[105]
When confronted with the fact that the 27
th
was on a Thursday, he changed the
date and admitted that he was not certain of the date or time. He
said do not hold me to the date
or time. He sometimes would forget to
fetch his own kids. His own family can testify to how forgetful he
was.
[106]
He testified L [....]3 called him and asked
him to come to the police station and that it was in connection with
the day accused
1 came to view the property, no dates or times were
discussed.
[107]
His evidence became blurred on the crucial
issue on whether accused 1 was at this property between the hours of
12h00 and 14h00
on the 27
th
of September 2018. The court finds that his evidence does not support
accused 1’s version that he was at this property at
the time
when the shooting took place in Westbury.
[108]
The evidence of the wife of accused 1, L
[....]3 D [....]3 also created more questions than being
corroboration for the version
of accused 1 that he was not in
Westbury when the shooting took place. First, she is not an
independent witness being the wife
of accused 1, second she only
became an alibi witness during the course of the trial and third Mr M
[....]4 did not even saw her
at the property. Her evidence what
transpired at the police station after the arrest of accused 1 is
also unclear placing a question
mark over her version that she was
there with Mr M [....]4. There are contradictions between her
evidence and that of M [....]4.
[109]
L [....]3 testified that she had referred
to the administrative file of accused 1 after she spoke to Saunders
and realised that
he had a viewing on that day. Yet, she testified
that during the first conversation with Saunders she already told him
accused
1 was at a viewing and that he had an alibi of which she
would provide evidence.
[110]
M [....]4 testified that L [....]3
contacted him to provide a statement in this matter, he agreed to
type out a statement and emailed
it to her. Yet, L [....]3 testified
that M [....]4 handed a statement to the Legal representative
Advocate Lekgotoane from the
Legal Aid. M [....]4 denied this and L
[....]3 denied that she received his statement.
[111]
She had the file in court but did not refer
to it or the document that she said had scribblings on. In fact her
evidence was she
was not sure if that evidence was in that file she
would need to check it. The court finds it highly improbable that she
would
not have previously looked at the file and if it could support
her husband’s alibi she would have produced it to legal
representatives
long before the trial started. The state was
criticised for not cross examining the witness on the file she
brought to court. In
my view, it was the state’s prerogative
not to do that as this file should have been produced and referred to
earlier in
her evidence and not as an afterthought.
[112]
M [....]4 testified that he was confused as
to why he was called to the police station because Saunders had asked
L [....]3 some
personal questions but was not interested in him. L
[....]3 did not tell Saunders who he was or the reason for him being
there.
He told Saunders how he met accused 1 and that L [....]3 had
asked him to come to the police station but Saunders was not
interested
in him. Saunders was only interested in L [....]3 and he
asked her more questions and he then asked to be excused. Yet, L
[....]3
testified Saunders specifically asked M [....]4 about the
date of the incident and the viewings time and M [....]4 responded
with
the date and time of the viewing. M [....]4 denied this
happened.
[113]
In the view of the court both alibi
witnesses were unreliable and adapted their versions when confronted
with various discrepancies
in their evidence. Both their versions
were tested and their answers were contrary to each other pertaining
to dates and times
of the viewing of the property which was crucial
to the defence of accused 1. The court finds that the alibi defence
of accused
1 is not reasonably possibly true particularly in light of
the M [....]4`s evidence that the viewing took place on the
Wednesday.
[114]
Moreover, even if accused 1 was at the
viewing at 12h00 on the 27
th
of September 2018 he could have been in Westbury after 13h00 when the
shooting took place. The uncontested evidence was that it
will only
take between 11 and 30 minutes to travel the distance from Quellerina
to Westbury.
[115]
On the totality of evidence and considering
the reliable and credible identification by the state witnesses
compared to the poor
quality of accused 1 defence and alibi evidence
the court rejects the alibi defence as not being reasonably possibly
true.
[116]
The same apply to the bare denial of
accused 2. His denial cannot be reasonable possibly true in the face
of reliable witnesses
identifying him as one of the persons who fired
shots that killed H [....]1 P [....]1. His defence of a conspiracy
has been pointed
out to be false.
[117]
The court finds that accused 1 and 2 acted
in concert on 27 September 2018 to shoot and kill L [....] M [....]1
and S [....]2 M
[....]2. They were both armed with firearms and
actively participated in the shooting. As a consequence of their
direct intent
they foresaw that other persons will be injured by
their actions. They reconciled themselves to this fact and as a
result directly
caused the death of H [....]1 P [....]1 and injured S
[....]1 B [....] as a result of their actions. The Ballistic report
confirms
that the fired cartridge cases obtained at the scene were
fired from two different semi- automatic firearms.
ORDER
[120]
Consequently, the two accused are found guilty on the following
counts as charged:
1.
Count 1, murder read with
section 51(1)
of Act 105 of 1997.
2.
Counts 2, 3 and 4 attempted
murder.
3.
Count 5 the unlawful possession of a
firearm.
4.
Count 6 the unlawful possession of
ammunition.
RÉAN
STRYDOM
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Appearances
For
the State:
Adv. Z. Peck
For
Accused one:
Adv. R. Spies
For
Accused two:
Adv. J. Muir
Instructed
by:
Mr. D. Greef
Date
of Hearing:
24
February 2020
Date
Judgment Reserved:
12 February 2021
Date
of Judgment:
18 March 2021