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[2010] ZAWCHC 580
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S v Ceaser and Others (SS29/2009) [2010] ZAWCHC 580 (29 November 2010)
IN
THE HIGH COURT OF
SOUTH
AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER:SS29/2009
DATE:29
NOVEMBER 2010
In
the matter between:
THE
STATE
and
MOENEDIEN
CEASER
….................................................................................................................
Accused
1
JUNAID
MITCHELLS
…...................................................................................................................
Accused
2
ISMAIL
CEASER
…..........................................................................................................................
Accused
3
ALLAN
ALMON ALBERT
…............................................................................................................
Accused
4
IKARAAM
MASARAPA
…................................................................................................................
Accused
5
LUCIAN
LACKAY
….........................................................................................................................
Accused
6
MICHAEL
SAM
…............................................................................................................................
.
Accused
7
JUDGMENT
LE
GRANGE, J:
In
this matter the seven accused before Court have been indicted on a
total of 45 charges. Counts 1 and 2 relate to a contravention
of
section 9(1)(a) and
section 9(1)(b)
of the
Prevention of Organised
Crime Act 121 of 1998
, also known as POCA.
The
accused are also charged individually or collectively with 43 other
charges, which include five counts of murder attempted
murder,
various counts of robbery, theft, possession of stolen property,
malicious injury to property, dealing in drugs, possession
of drugs
and various counts of possession of firearms and ammunition and a
contravention of the provision of
section 4
of POCA, known as money
laundering.
Accused
1, Mr Moenedien Ceaser, has been indicted on a total of 16 counts.
Accused 2, Mr Junaid Mitchells, has been indicted on
a total of 19
counts. Accused 3, Mr Ismail Ceaser has been indicted on a total of
27 counts. Accused 4, Mr Allan Almon Albert,
has been indicted on a
total of 28 counts Accused 5, Mr Ikaraam Masarapa, has been indicted
on a total of 17 counts. Accused
6, Mr Lucian Lackay, has been
indicted on a total of 16 counts and accused 7, Mr Michael Sam, has
been indicted on a total of
10 counts.
All
of the accused, except accused 7, have been charged with counts 1
and 2. The basis of the crimes created by this piece of
legislation,
have bearing on criminal gang activities, where the offences make
punishable conduct, where any person who actively
participates in,
or is a member of a criminal gang, and who aids and abets criminal
activity for the benefit of, or in association
with any criminal
gang. The State avers in these two counts that prior to and until
March 2009, accused 1 to 6 actively participated
in criminal
activities and were members of the American gang whose main aim is
the causing, promoting or contributing towards
a pattern of criminal
gang activity.
Counts
25 to 34 in the indictment relate to the attack by gunmen on the
business premises of Moegamat Sadeka Madatt in Woodstock,
also known
as the Woodstock massacre, where five people were shot and died as a
result of multiple gunshot wounds and the consequences
thereof, and
where a number of taxi vehicles were deliberately set alight and
damaged. The 10 counts in total that relate to
the Woodstock
massacre, consists of five counts of murder, one count of attempted
murder, one count of robbery with aggravating
circumstances, one
count of possession of unlicensed firearms, one count of possession
of ammunition and one count of malicious
injury to property.
The
one count of attempted murder is the averment that accused 1 to 7
attempted to kill Vuzumzi Cakume, also known as Justice,
by shooting
at him. The one count of aggravating robbery relates to the averment
that accused robbed Vuzumzi Cakume and certain
of the deceased
before the shooting commenced. The State avers further that cell
phones cigarettes and an unknown amount of cash
were appropriated
from the scene of the shooting. Counts 32 and 33, relate to the
allegation that accused had unlicensed firearms
and ammunition in
their possession during the attack on Madatt's premises. Count 34 is
one of malicious injury to property, in
that five taxi vehicles that
were owned or in possession of Madatt, were deliberately set alight
and damaged. All of the other
counts not relating to the Woodstock
massacre, are individual or collective charges against the accused
and are allegations of
criminal conduct in various forms prior to
the Woodstock incident and subsequent thereto.
The
State, in their summary of substantial facts, has set out what they
intend to prove beyond a reasonable doubt against the
accused.
According to this summary, the accused are members of, or associated
with the American gang, who engage in violent criminal
activity in
order to maintain territorial dominance within their membership. The
allegation against accused 1, 2 and 3 is that
they are the leaders
of the American gang in the Bonteheuwel area. It is further alleged
that accused 4 and 5 are also members
of the American gang and are
leaders in the Heinz Park, Mitchells Plain and Athlone areas. It is
alleged that accused 6 is also
a member of the
American
gang that is operative in the Manenberg area
The
facts that the State allege is that a conflict situation arose
amongst the leaders of the American gang with regard to control
over
certain drug territories. As a result of this conflict, two alleged
members of the American gang were killed. Their names
were Mark
Williams, also known as Markie Mokes and Rashaad Abrahams, also
known as Charra. An alleged American gang leader, Mogamat
Madatt was
suspected of orchestrating the killing of Markie Mokes, with a
suspicion that one of Madatt's henchmen by the name
of Nathan
McGregor had actually shot Markie Mokes. This event would eventually
lead to the massacre in Woodstock where five people
were gunned down
on the premises of Madatt on 5 November 2007.
It
is further alleged by the State that accused 6 had attempted to kill
a person called Nathan McGregor, who was believed to be
the person
responsible for the killing of Markie Mokes on 2 November 2007,
which was three days prior to the Woodstock murders
referred to
earlier. Because of the belief that Madatt and Markie Mokes had
clashed with each other of certain deals in the drug
trade and the
suspicion that Madatt was instrumental in the planning of the death
of Markie Mokes, it is alleged that members
and leaders of the
various territories of the American gang, which include accused 1 to
7. conspired to take revenge on Madatt
and hence the attack on his
premises in Woodstock on 5 November 2007.
As
stated earlier, five people were killed in a bloody violent attack
at the premises of Madatt in Albert Road. Woodstock in the
early
hours of the morning of 5 November 2007. In addition to the five
persons killed, five of Madatt's taxis were set alight
and damaged.
It is further alleged that in fear of a retaliatory attack from
Madatt and his associates, the accused decided to
acquire firearms
to use for their protection. The State avers that accused 2, 3, 4
and 5 and a State witness present with them,
drove to Paarl on 7
November 2007 to acquire the firearms.
On
the way back from Paarl, accused 2, a State witness and a person by
the name of Rashaad Solomons were stopped by members of
the South
African Police Service on the N1 Highway. The police conducted a
search of the vehicle and found two firearms and ammunition
in the
vehicle. It
is
further
alleged that on the same date and in another separate incident,
accused 3, 4 and 5 were travelling in a motor vehicle
on the R300
road, were also stopped by the police and the motor vehicle was
searched. The allegation is that a silver .38 revolver
was found
alongside the road that had been thrown out the car when the police
indicated that the vehicle should stop. The police
also found a
significant amount of ammunition in the motor vehicle they travelled
in and a substantial amount of cash was also
found. The police also
found four cell phones in the vehicle and the three accused were
then arrested.
According
to the State, they aver that the aforementioned incidents all relate
to a pattern of criminal gang activity and therefore,
charged
accused 1 to 6 in particular, with the contravention of
section
9(1)(a)
and
section 9(1)(b)
of POCA In terms of the wording of POCA,
and particularly referring to these two sections, the following is
of relevance The
wording is as follows:
"Any
person who actively participates in or is a member of a criminal
gang, and who wilfully aids and abets any criminal
activity
committed for the benefit of, and the direction of, or in
association with any criminal gang, shall be guilty of an
offence.
u
And
further to this Act prescribes:
"Any
person who 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."
To
these charges all seven accused pleaded not guilty and elected to
remain silent and no admissions were forthcoming during pleading
stage. In the presentation of the State's case counsel for the State
led the evidence of a total of 58 witnesses, two trials-within-trial
were held, and Exhibits A to AAAAA were handed in by the State as
documentary evidence Further to the aforementioned documentary
evidence submitted, the State also tendered Exhibit 1 as evidence
Exhibit 1 consists of a CD, showing a video recording of a
photographic identification parade that was held at the offices of
Bellville South Police Station on 23 April 2008 The content
and
material thereof, have not been placed in issue and prior to the
closure of the State's case, a number of admissions were
made by the
defence in terms of section 220 of the Criminal Procedure Act. The
admissions recorded were of a formal nature. These
written
admissions were handed in and marked as Exhibit GGGG1 in respect of
accused 1 Exhibit GGGG2 in respect of accused 2 and
Exhibit HHHH in
respect of accused 3 to 7.
In
summary, the following admissions have been tendered The accused
have admitted that the deceased persons, as indicated in counts
25
to 29 of the indictment, and who were declared dead at the scene of
the crime, situated at Madatt's Transport, number 226
Albert Road.
Woodstock on 5 November 2007, have been positively identified as
Sivuyile Albert Bobotyana, a male person, Fariz
Maggot, a male
person, Sinethemba Dedeka, a male person, Tamsyn Tamin Jordaan. a
female person, and Reginald Pienaar, a male
person.
Post-mortem
examinations
conducted by the Forensic Pathologist, Dr Brouwer, on each of the
five deceased persons, concluded that the cause
of death was as a
result of gunshot wounds mainly to the head and the consequences
thereof.
Further
admissions made with regard to establishing the cause of death and
identity of those killed, were that the bodies of the
five deceased
were removed from the scene and transported to the forensic
pathology laboratory and that no further injuries were
sustained
prior to the
post-mortem
examinations
being completed. The report of Inspector Nimb the dog handler from
the Dog Squad and fire inspector was also tendered
as evidence and
the correctness of the finding was admitted by counsel for all seven
accused. Photographic images tendered of
the damage caused by the
fire, were also admitted as correct.
At
the close of the State's case, counsel for all seven accused brought
an application for discharge in terms of section 174 of
the Criminal
Procedure Act, Act 51 of 1977. The application for discharge was
only partially successful. Accused 4 was found
not guilty and
discharged on counts 4, 8, 9 and 10 Accused 5 was found not guilty
and discharged on count 3 Accused 6 was found
not guilty and
discharged on count 14 The application for discharge on the
remaining counts, was refused. All of the accused
then elected to
testify in their defence. Accused 1, 3 and 6 also called defence
witnesses.
The
defence cases were all presented with a blanket denial of the
charges preferred against them. The essence of the cases presented
by all seven accused were that they were not members of the American
gang and have no association with this gang, did not have
a meeting
to discuss any attacks on Madatt and have no knowledge of the five
people that were murdered in Woodstock on 5 November
2007 It is
further alleged by those four accused arrested on 7 November 2007
that they had not been in Paarl together and had
not acquired
firearms to defend themselves against a possible retaliatory attack
from Madatt.
According
to their evidence, the two witnesses called by the State in terms of
the provisions of section 204 of the Criminal
Procedure
Act, were unreliable, untruthful and that they contradicted
themselves, and the only reason for their testimony was
to protect
themselves from prosecution and gain financial reward. The seven
accused have alleged that this evidence had been
manufactured
against them and should not be accepted by this Court and be
rejected in its entirety. The Woodstock massacre is
central to the
arrest of all the accused in this case. The events and subsequent
charges preceding this attack and the charges
subsequent to the
arrest that were carried out are averred by the State to be a
culmination of criminal gang activity in terms
of the provisions of
POCA.
During
the presentation of the State's case, the following was not placed
in dispute. That two members of the American gang named
Charra and
Markie Mokes were shot and killed by unknown persons. That there was
an attack on the business premises of Madatt
in Woodstock where five
people lost their lives hit by gunshots and the consequences
thereof. That five motor vehicles used as
taxis and owned by Madatt,
were set alight and damaged during this attack. That accused 2, the
State witness, Shahied Carelse
and Rashaad Solomons, were arrested
in a motor vehicle on the N1 Highway on 7 November 2007 and that
when their vehicle was stopped
and searched the police found two
firearms in the vehicle and an amount of ammunition, which was also
handed in as exhibits.
Accused
3, 4 and 5 were stopped by the police in a motor vehicle on the R300
road on 7 November 2007 and after the vehicle was
searched, the
police found a substantial amount of ammunition on the floor of the
front passenger seat, as well as four cellular
phone handsets that
was seized by the police, as well as an amount of cash. It was all
handed in as exhibits A firearm was also
found close to the motor
vehicle. The death of Markie Mokes and the subsequent Woodstock
killings three days later, appear to
be the catalyst for the police
to intensify the investigation against all the accused. This
resulted in the accused being charged
with the offences in the
indictment that are not to the Woodstock killings, in particular
counts 1 and 2 where it is averred
that accused 1 to 6 are members
of the American gang and derived benefit from criminal conduct and
the proceeds thereof.
The
only issue in dispute with regard to the Woodstock killings is the
identity of the perpetrators. In respect of the remaining
charges,
the accused dispute their involvement of these crimes. It is trite
that the standard of proof required in our criminal
law, is that it
is the duty of the State to discharge their burden of proof beyond a
reasonable doubt. An accused's version need
only be reasonably
possibly true. As a result of the magnitude of evidence presented by
the State, I will now concentrate on
the evidence presented in
respect of the five murders and related counts at the business
premises of Madatt in Woodstock. These
crimes refer to counts 25 to
34 as reflected in the indictment.
The
first witness called by the State in respect of the Woodstock
killings, was Vusumzi Cakume, also known as "Justice".
His
testimony can be summarised as follows. He was employed by Madatt as
a taxi cleaner. During the day he operated as a driver
and at night
he worked as a security guard. He was at the premises during the
evening of 4 November 2007 busy cleaning taxis.
During the early
hours of the morning of 5 November 2007, two other people at the
premises started fighting and one of them had
to be taken to the
hospital. At the gate he saw three male persons, of which one of
them pointed a firearm at him and ordered
him to open the gate. The
two other male persons were with the person pointing the firearm at
him. He saw the other two men had
two five litre cans of petrol with
them and they started to douse him with petrol all over his body. He
told them that he just
worked there and will take them to the
workshop
In
the workshop were five other persons. He was assaulted, doused with
petrol again and then taken to the kitchen According to
his
testimony, it was in the kitchen at the premises where the three men
started assaulting them and the
shooting
started. The witness managed to conceal himself in a little cupboard
and after hiding for a period of time, he got out
and saw the five
deceased persons all lying in a line. The police were called, the
fire brigade arrived and the scene was then
further managed by the
police.
The
witness further recounted events of the killings that took place
that morning and the only part of his evidence which was
of any
significant importance, was the evidence led that whilst standing in
the Wendy house when the attackers arrived, he heard
the person who
was standing with, by the name of Fareez, and who was later shot by
the attackers, say that he knew one of the
three attackers and told
the witness that his name was Lucien. The witness did, however,
testify that he did not know any of
the three men that had entered
the premises.
The
other aspect of his testimony which bear some closer scrutiny, is
when the witness made a statement at the police he was asked
to
participate in a photographic identification process. The
photographic identification procedure was captured on video and
tendered as evidence marked as Exhibit 1. He pointed out three
photographs and signed on each one. In response to a question
by the
Court, clarifying his evidence, he explained that the three
photographs he pointed out, were just a comparison, the one
photograph of the person he identified who had the firearm. Having
observed the video evidence of the identification process,
the
witness immediately pointed out the photographs situated at the
bottom right of page 2, which in fact was accused 6, Lucien
Lakay
That evidence is also corroborative of the evidence that the person
shot on the scene, Fareez Magot, had said that he knew
the one
attacker as Lucien. This evidence was not questioned by counsel for
accused 6 and although it deemed to be hearsay evidence,
the
probative value thereof must be considered, in particular where it
implicates accused 6 and places him on the scene of the
crime.
The
first section 204 witness called by the State was Ashrief
Diedericks. who was 28 years old at the time of giving evidence.
His
version, briefly stated, was the following. He personally knows
accused 1, 2, 3, 4 and 5. He knows their names, as well as
their
nicknames. He testified that he has seen accused 6 at the house of
accused 2 in Bonteheuwel before, but does not know him
personally.
He testified that he is a member of the American gang in Bonteheuwel
and has been a member since he was 18 years
old. According to him
accused 1, 2, 3, 4 and 5 are also members of the American gang,
sometimes also referred to as Ugly Americans.
He could not say
whether accused 6 was a member of the gang, but said that he did
come to accused 2's house
He
described the tattoos that he had on his body, showing his
association with the American gang and the meanings of the various
tattoos. He also described signals and grouping within the gang
structure. According to him there are different territories where
the gang is operative and that each territory has a leader. He
testified that accused 2 is the leader of the Bonteheuwel area
and
that accused 2 is involved in drug dealing. Each accused had a
specific role in the gang structure He explained that if someone
is,
as he called it, an "ot/", then he has more say. He also
explained that the meaning of the word
ou
is
a prison gang member like a "26 and a "27".
His
testimony regarding gang association was that accused 1 dealt in
drugs, accused 3 was a fighting general in the gang etcetera,
and
that accused 4 was his right-hand man According to him, a fighting
general is the person in the gang who does all the fighting,
shooting and gunrunning. He does not know much about accused 5,
other than his membership of the gang and could not say much
about
accused 6 and 7. He provided the Court with information on where
accused 1, 2, 3. 4, and 5 live and all he could say about
accused 6
was that he comes from Athlone.
One
of his functions in the American gang setup, was that he sold and
stored drugs for accused 2 and kept firearms stored for
accused 1.
He would receive drug from accused 2 to be sold and would also hide
firearms for accused 1 and give to him when needed.
His further
evidence was that he is currently in the witness protection
programme after he was found in possession of an unlicensed
firearm
given to him by another American gang member called Pretty Boy. He
was arrested and when released on bail, he realised
that his life
was on the wrong track and decided to approach the police to provide
them with information.
Approximately
three months after his release on bail pending the case of the
unlicensed firearm, he went to Bellville South Organised
Crime,
where he spoke to Inspector Swann. He told Inspector Swann that he
was in custody for a firearm that did not belong to
him and that he
had other firearms and drugs in his house and wanted to come clean.
He then gave Inspector Swann the firearms
and drugs at his house by
pretending to be arrested. He says that the firearms and drugs found
at his house and seized by the
police, came from accused 1. After he
had approached Inspector Swann, he then supplied the police with a
written statement, providing
full details of his activities and
describing all the gang related information he had, to the police
He
was arrested for the unlawful possession of a firearm Following his
arrest, Diedericks went to see Inspector Swann to state
that the gun
in his possession did not belong to him but it belongs to Pretty
Boy. Diedericks was asked if he was aware of the
incident at the
Madatt's premises and whether he knew anything regarding the case.
He indicated that he knew most of the accused.
Number 1, Moenedien
Ceaser as Moeno Number 2, Junaid Mitchells as Meff. Number 3, Ismail
Ceaser as Balie Dice. Number 4, Allan
Albert known as Kaya Number 5,
Ikaraam Masarapa as Masarapa. Diedericks stated that he does not
know accused 6 personally, but
knows his face from Bonteheuwel and
stated that he does not know accused 7.
He
stated that the accused were members of the American gang, excluding
accused 6, who he could not identify as a gang member.
He identified
accused 2 as the leader of the Ugly Americans in the Bonteheuwel
area, who is mostly involved with dealings in
drugs, predominantly
the drug known as TIK. He identified accused 1 as a TIK dealer and
one of the top dealers and that he lived
with accused 2 Accused 3.
identified as the fighting general, and accused 4 as number 3's
regterhand.
The
witness was unsure about accused 5, 6 and
7.
The witness testified that the handled drugs for Meff and also held
weapons and drugs for Moeno.
His
further evidence is that he took accused 1, also known as Moeno. to
Vanguard Day Hospital, because of an injury to his foot
and
thereafter to Fiekie, where he overheard a conversation between the
two parties. The witness testified that during the conversation
he
heard accused 1 say that Meff was part of the planning and that Meff
planned what to do and how to carry out the act. Moeno
said that he
had been at the planning, but did not speak at all. Moeno said that
Kaya was the one who shot the people and that
accused 3 and 5 sat
outside in the car. The witness also testified and said that Moeno
mentioned another person's name, but he
cannot remember the name.
This
witness' evidence in chief was concluded, whereupon he was
extensively cross-examined by counsel for all seven accused. The
essence of the cross-examination of this witness by counsel for the
accused, was that he was a section 204 witness, only trying
to
protect his own interests and that he was afraid of being convicted
on the firearm charge and that his testimony was loaded
with
inconsistencies and contradictions and was untruthful in every
respect. Counsel for all the accused also denied the averments
made
by the witness. Counsel for accused 1 and 2 put it to the witness
that the conversation with Fiekie never happened and that
no
firearms or drugs were given to the witness to keep The State did
not all Fiekie as a witness and it appears that he did not
want to
make a statement or did not want to co-operate with the police and
the investigation in this matter
The
second witness called by the State in terms of the provisions of
section 204 of the Criminal Procedure Act, was Shahied Carelse,
also
known as Merchant. He is 48 years old grew up in Bonteheuwel, was a
member of the Scorpion gang and has spent most of his
adult life in
prison He is apparently also a member of the "28" prison
gang. Upon his release from prison in 2004,
he met up with accused
2. got involved with drugs supplied to him by accused 2 and
subsequently became a member of the American
gang. He testified that
he came to know the accused from different sources. He met accused 1
through his dealings with accused
2. He knows accused 3 from his
time spent in prison, where they were incarcerated together. Accused
4 is known to him as Kaya
and he met him outside of prison. He said
that he did not know accused 5 for very long, and that he did not
know accused 6 personally,
but he only knew him by his name as
Lucien, as accused 6 had been at the house of accused 2 with accused
5. He does not know
accused 7 at all.
He
also testified that accused 1 to 6 are all members of the American
gang and described where they operate from and exactly where
one
lives. According to this witness, accused 2 had given him drugs to
make a start, after spending approximately 18 years in
prison. The
witness admitted that at the time he abused drugs and that this
abuse was his downfall In order to sustain his habit,
he became more
involved in gang activities for the Americans, where he sold and
stored drugs and firearms for them. He also testified
that by
assisting them with these activities, the gang took care of his
needs and he generally did a lot of dirty work for the
gang.
His
evidence in chief was presented by the State, starting from his
arrest and how he ended up in the witness protection programme
he is
currently still in. He had approached the police for assistance,
because he had a suspicion that his gang associates wanted
to murder
him, as they did not trust him any more. He testified that on 30
October 2007, he was at a restaurant with accused
1 and 2 and whilst
accused 2 received a call that one of their friends who was also a
member of the American gang, called Charra.
had been murdered. They
immediately went to the scene of the murder and when they got there,
they met accused 3, who told them
that he had found Madatt, also a
member of the American gang, on the scene as well. Accused 3 told
them
"ek
trust
nie
daai hond nie",
referring
to Madatt.
They
left the scene of the murder and went to the deceased's house to
wait for the body. At this house he was with accused 2 and
another
American gang member called Mark Williams also known as Markie
Mokes. Markie Mokes then told them they should be careful
and that
they should watch their backs He was with accused 2 again on 2
November 2007 and accused 2 received another phone call
that Markie
Mokes had been killed. They went to Manenberg to another American
member's house, called Wynand, also known as Charlie
Hangkas There
were approximately 30 people there so they all congregated on a
school field opposite his house. They gathered
to establish who had
been responsible for the death of Charra and Markie Mokes and tried
to contact Madatt, but could not reach
him.
When
they could not get hold of Madatt, accused 3 told them to leave this
business and his words were
"ek
sal weet wat om te data",
which
meant that he would know what to do He left Manenberg with accused
1, 2, 3 and 4, where they drove to accused 5 in Kewtown.
They waited
for accused 5 to arrive and when he got there, accused 3 told him
that they planned to attack Madatt, they need guns.
Accused 5 then
asked who they were going to take out and accused 5 then said if
they go then they must do a better job. Accused
5 then said that he
could not supply all of them with firearms Accused 5 then sent
another person inside and he came out with
two firearms and as he
called it, 'n
pomp,
which
is a shotgun. They took the three firearms and then left.
He
testified further that acquisition of the firearms, they dropped him
back at the street corner in Bonteheuwel, where he then
took the
firearms home and hid them away. On Saturday, 3 November 2007, he
was asked by accused 2 to bring the three firearms.
He collected
them and handed them over to accused 2, who in turn gave them to
accused 3 Accused 3 and a person called Faizel,
who drives for
accused 3. then left with the firearms.
On
Sunday, 4 November 2007, he went about his business as normal with
accused 2. At approximately five o'clock the afternoon they
were at
the house of accused 2 when accused 3 arrived there with accused 6,
his driver, Faizel, and a person called Bloues, who
has subsequently
also passed away Accused 3 and his driver then left again, but left
accused 6 there. Accused 2 told the witness
to take accused 6 to
another place to go and smoke some drugs. Accused 3 then arrived
back at the house of accused 2 with some
other people and accused 5
also arrived with two other persons They then asked where accused 4
and 6 were.
Carelse
was told to go and find accused 6 at the place he had left him, but
it appears that accused 6 had left. Accused 3 phoned
him on his cell
phone and accused 6 told him that he was in Manenberg. Accused 3
then said he was going to fetch him in Manenberg,
because he must
also collect another firearm in Manenberg. Whilst waiting for
everyone to return accused 4 arrived with a white
Ford Bantam
bakkie.
Accused
1, 2, 3, 4. and 5 were all present and they went into accused 1's
room where he slept. According to Carelse, when he wanted
to go in,
they stopped him and told him they should not all go in and he was
still to go and keep watch outside. He could not
say what the
content and nature of the discussion was held in the bedroom of
accused 1.
After
the meeting they all left in their different vehicles Accused 1 and
2 left with accused 3 and accused 4 and 5 left with
their own
vehicles. Carelse then took accused 6 back to one of the drug houses
in the area, where they collected money and then
returned to accused
2's house later on the Sunday. Accused 1, 2 and Carelse then watched
football at accused 2's house. Accused
3 then arrived and received a
call on his cell phone. He then told them he was going back to
Manenberg
to collect two firearms. A few hours later they all got together
again at the house of accused 2. Accused 1, 2, 3 and
5 were there
with Carelse. Accused 5 then called accused 4 and asked him where he
was. Accused 4 also then arrived a while later.
Accused 3 had also
arrived there with Bloues. Faizel in a white Tazz motor vehicle. The
vehicle, according to the witness, belonged
to accused 5.
At
approximately 10 o'clock that Sunday evening, 4 November 2007,
accused 2, 3, 6, Faizel and Bloues left in the white Tazz and
accused 4 was in the white Bantam
bakkie.
Accused
5 left in a Quantum van with three other persons who were with him
Carelse stayed with accused 1 at the house When accused
2 arrived
back, Carelse told him it was late and that he was going home.
On
Monday morning, 5 November 2007, Carelse went about his business and
then went to the house of accused 2 again Accused 2 asked
him to go
buy two newspapers and he saw that Madatt was on the front page of
the paper. He gave the papers to accused 2 and he
heard accused 2
say to accused 1. who was in the shower,
"my
broer die ouens se nommer raak vol",
which
according to the witness meant that the guys had done a good job.
Accused 3 then also arrived there again and accused 1
said that he
wanted to talk to accused 4. They agreed to go and find him and they
all drove to Heinz Park to look for accused
4.
They
stopped outside his girlfriend's house and accused 4 came out and
accused 3 said to him that
"die
hele nommer le in die koerant in, jy moet die bakkie uitbring.
miskien is daar mense wat die bakkie gesien het".
Accused
4 then said that he was going to sell the
bakkie
to
a black man and continued by saying that he should not worry about
the
bakkie.
because
he was still sleeping with the murder weapon under his pillow
Accused 3 then told him to swop the firearm with another
one because
one of their associates could not be found with a firearm. They then
left and returned to accused 2 s house where
he heard accused 3 say
to accused 1 that they needed guns, because he did not trust Madatt.
Accused 2 then made a few phone calls.
On
7 November 2007, accused 1, 2 and 3 were again present at the house
of accused 2. Accused 3 then phoned accused 5 again and
told him
that they were leaving and would come and fetch him from his home.
They left and Rashaad Solomons drove the white Tazz,
accused 2 sat
next to him and sitting behind were accused 3 and the witness
Carelse. Rashaad Solomons took out a firearm and
gave it to Carelse
to keep because he said it hurt him when he drove They stopped at
the Promenade Mall in Mitchells Plain to
wait for accused 5 Accused
5 then phoned accused 3 and told him that he would meet them at the
corner. They then left and picked
up accused 5 on the corner. There
were now five persons in the white Tazz. It was Carelse, accused 2,
3, 5 and Rashaad Solomons
They phoned accused 4 whilst driving and
asked him where he was. He told them that he would meet them on the
road.
When
the arrived in Paarl, they went to a house and purchased two
firearms in exchange for drugs. When they got outside again,
they
saw that accused 4 had just arrived in a gold coloured Toyota
Corolla. When asked where he got this particular motor vehicle,
he
said that he had been given the motor vehicle by a foreigner who had
owed him money for drugs. Accused 3 and 5 then decided
to drive with
accused 4 in the Toyota Corolla and accused 2, Carelse and Rashaad
Solomons drove in the white Tazz they had originally
driven to Paarl
With
regard to the firearms they had acquired in Paarl Rashaad Solomons
took one, accused 3 took the.38 and Carelse still had
the firearm
that Rashaad Solomons had given him to keep. The evidence then
presented by the State was with regard to the circumstances
of the
arrest of Carelse accused 2. 3, 4 and 5 after they had left Paarl as
indicated
above.
Carelse was in the white Tazz with accused 2 and Rashaad Solomons.
They were pulled over by the police on the N1 Highway
where the
firearms were found and consequently arrested. Accused 3, 4 and 5
had driven past them also on their way back to Bonteheuwel,
and they
were also arrested by the police on the R300 road towards
Bonteheuwel. This is one of the issues not in dispute.
He
testified that they appeared in court in Paarl for possession of
unlicensed firearm charges, but that these charges against
him were
withdrawn a few months later. He then testified of the circumstances
under which he became a section 204 witness and
how he entered the
witness protection programme A few months later he began supplying
the police with information and then a
year after the Paarl arrest,
he felt as though the other members of the gang had become aware and
suspicious of him. There was
also an unsuccessful attempt to kill
him by a person called Slim Shady, who had received instructions,
according to him, from
accused 3 to discipline him The attempt on
his life failed and it was then that he entered the witness
protection programme.
He
testified that he had received an amount of R7 000,00 from the
police for information that he furnished them with Accused 3
had
also phoned him one day and made him a cash
offer
not to testify in this trial. According to the witness accused 3 was
prepared to give him R30 000.00 in cash in exchange
for his silence,
but he elected not to take the cash and rather to co-operate with
the police. The rest of his evidence presented,
related to the other
charges, as well as a description of how the American gangs operate
and the various signals and tattoos
that is associated with the
American gangs
At
the conclusion of his evidence in chief, the witness was extensively
cross-examined and in great detail about the evidence
that he
presented in court by counsel for all seven accused. He was in the
witness box under cross-examination for a week. In
a nutshell, the
evidence of the cross-examination dealt with his decision to become
a State witness his knowledge of the events
he described in great
detail and his honesty and trustworthiness and reliability The
general slant taken was that his motive
to implicate the accused was
driven by greed, and the offer of money for information and his
desire to avoid returning to prison
at all costs when he was
arrested for being in possession of the unlicensed firearm in the
Paarl case.
Counsel
had put it to him that he was only trying to protect his own skin by
attempting to falsely and with malicious intent incriminate
the
other accused. It was also put to him that his memory had been
affected by the abuse of drugs and at one stage it was even
put to
him that he was under the influence of a dependence producing
substance whilst testifying. The fact that he had received
money
from the police for the information supplied and the fact that he
was testifying to avoid returning to prison, and the
motives he had
for falsely accusing the accused, was in summary the challenges put
to the witness by counsel for the accused.
The
third witness called by the State in terms of the provision of
section 204 of the Criminal Procedure Act was Nathan McGregor.
The
relevance of a summation of his evidence is that it has bearing on
the Woodstock killings. He spontaneously and directly,
without being
led. confirmed in open court that he is an active member of the
American gang and was part of the American gang
setup in Manenberg.
He has been in prison several times and he also confirmed and
admitted that he committed a murder. The leader
of the American gang
in Manenberg, according to him. was Madatt He confirmed that he knew
Markie Mokes and that he had also been
a member of the American
gang. He also said that accused 6 had previously been a member of
the Dixie Boys gang, but that he later
switched his allegians and
became part of the American gang.
He
had heard that Markie Mokes had been killed on 2 November 2007 and
testified all the people suspected that he had been responsible
for
the death of Markie Mokes. He then testified, as he called it, "the
boys then came for him" When asked who the
boys were, he
testified that accused 6 was the first person who had fired shots at
him that particular morning. He admitted that
he also had a firearm
and shot back at him and then chased accused 6 to the main road and
therefore, not hiding from the Court
that he was also in possession
of an unlicensed firearm. He then saw a car driven by a lady with
the brother of Markie Mokes
as the passenger When they saw him,
Joey, who is the brother of Markie Mokes jumped out with a firearm.
He retaliated and shot
at the car and then ran away. When he saw
them again, they had regrouped. This time accused 6 was with Joey
and the lady driving
the car. He was in the backyard of a house and
they drove past him and they saw him again.
Upon
a Court's question as to why the people would think that he was
responsible for the shooting of Markie Mokes, he provided
a detailed
description of how things had changed in the setup of the American
gang. During his period of incarceration, he understood
that al the
old Americans must die, because Markie Mokes had made new Americans.
The younger members wanted to do away with the
old guard because
Markie Mokes had built up the younger group. The witness became
quite tearful and emotional when he spoke about
the vision between
the old Americans and the new Americans built up by Markie Mokes. He
recalled giving the younger members money
and said that he was
heartbroken that he would have to kill or shoot people that had
grown up before him. He said all of this
is about money and power.
He explained that as a result of these divisions and the lust for
the money, there was division between
Madatt and Markie Mokes, which
was to cause all the problems within the gang.
With
regard to the downloading of information data from certain cell
phone handsets and the detailed billing of some of these
phones, the
State presented the evidence of Constable Lungile Mfiki, who is
stationed in Cape Town and trained to download information
from cell
phones. Hilda du Plessis, a specialist data analyst from MTN, Jaco
Prmsloo, who is a technical manager at the Law Agency
Support
Department at Vodacom and Johanna Reyneke, manager at Vodacom
working in the same department as Prinsloo, and Marthinus
Otto, a
forensic computer crime analyst, were called by the State.
Mfiki's
evidence essentially relates to the four cell phones that were found
in a motor vehicle wherein accused 3. 4 and 5 were
arrested on 7
November 2007, whilst travelling on the R300 road. The phones that
he received for testing were Nokia 5140, Samsung
SGHD 820 and two
Motorola phones The one was a L7 SLR and the other a V3. According
Mfiki, he could only download data from the
Samsung and the two
Motorola phones, as the Nokia phone was damaged. The information
downloaded from the three phones was handed
in and marked as
Exhibits YY and BBB.
In
cross-examination, Mfiki was attacked for the different IMEI
numbers, which is a cell phone ID number, that was contained in
his
report. In reply he was adamant that he might have made a mistake,
but the information downloaded from the phones used in
the specific
software developed specifically for this purposes, is correct and
cannot in any way be tampered with or altered.
It must be stated,
Mfiki did not impress as a good witness.
The
witness, Marthinus Otto, from Risk Diversion Digital, who is a
forensic computer crime analyst, confirmed in his evidence
that the
data collected from these phones by Mfiki, cannot be manipulated or
fabricated. Otto was adamant during cross-examination
that the cell
phone data downloaded by Mfiki from these handsets he had received,
could not be altered, as the programme used
memory blocks to prevent
interference with the data contained in these handsets.
The
evidence tendered by the two witnesses representing MTN and Vodacom,
relate essentially to the detailed billing of the cell
phones of
accused 5 and 6 and the whereabouts of these handsets prior to the
attack on the business premises of Madatt and immediately
thereafter. Du Plessis provided detailed billing with regard to the
following numbers being 0838606340, 0731374271 and 0733883916
The
latter two numbers both belong to accused 6, the first being his old
number and the second being his new number. The first
is the number
that appeared on the screen of a phone that belongs to Gail Marcus,
the mother of deceased, Tamsyn Jordaan, just
prior to and during the
shooting of the deceased
Reyneke
provided detailed billing in respect of the following three cell
phone numbers 0825501734, 0826649865 and 0798096003.
It is not in
dispute that the 0825501743 number is that of accused 5. Du Plessis,
Prinsloo and Reyneke also presented testimony
with regard to the
operation and technical aspects of the base stations that are used
by mobile cellular service networks. They
provided information on
detailed billing areas, where cell phone users find themselves and
in particular the movement of cell
phone usage between the various
base stations.
Much
cross-examination centred around the base station and the
effectiveness of picking up the cell phone signals within a
particular
area of radius. Much of the cross-examination of these
witnesses was, with all due respect, speculation in nature. This
Court
can find no plausible reason to reject the evidence relating
to the downloading of information and data and is, therefore,
accepted
as reliable and truthful in every respect
In
evaluating the evidence of Diedericks, Carelse and McGregor, it is
trite that where a person has been warned in terms of the
provisions
of section 204 of the Criminal Procedure Act and has given evidence
as an accomplice, such evidence must be treated
with caution. This
is aimed at overcoming the danger of an accused person being wrongly
convicted on the evidence of an accomplice,
who not only has a
motive for telling lies, but is, by his insight knowledge of the
crime or crimes, peculiarly equipped to convince
the unsuspecting
that his lies are true. Corroboration would normally provide a
safeguard for an accomplice witness evidence
implicating an accused.
In this regard see
S
v Mnvamana & Another
1990
(1) SACR 137
(A) at 140f.
The
evidence of Diedericks, Carelse and McGregor that prior to the
events in Woodstock on 5 November 2007 conflict between the
various
leaders of the American gang in certain areas of the Cape Flats
occurred, which resulted in some gang members being killed,
was not
essentially challenged by the accused. The evidence that gang lead,
Madatt, was suspected of being involved in the killing
of a fellow
gang member Markie Mokes, who was shot and killed three days before
the Woodstock killings, was also not attacked
in cross-examination.
Accused
6 does not dispute that he and McGregor were involved in a shooting
incident on 2 November 2007, the same day that Markie
Mokes was
killed. Accused 6 alleges that McGregor shot at him first. He then
retaliated by shooting back. McGregor was rather
frank and open when
he testified about this incident. He did not try to hide who he was.
He spontaneously, without being led,
revealed that he has spent many
years in prison. He has committed a murder already and had a firearm
which he used to shoot at
accused 6 It is clear there was no attempt
on his part to be evasive and deceptive about his criminal
background and activities
He was unapologetic for the fact that he
was a gangster and with a sense of loyalty to the cause of the gang
ideals, could not
understand why the accused would deny their
membership of the gang. His loyalty towards his gang became
noticeable when he, with
emotion and near to tears, could not
believe that there was a division between what he termed the old
Americans and the new Americans
under Mokes' control.
He
identified the accused by their names and/or nicknames He could, for
example, say that accused 3 grew up in Manenberg, which
was
confirmed during cross-examination He was prepared to make certain
concessions, for example in the case of accused 4, he
readily
indicated that he did not know him that well. His evidence to an
extent, provides strong corroboration for Carelse and
Diedericks
regarding the accused being Americans. His evidence also lent
support for the fact that Madatt was suspected of being
involved. It
is. therefore, not improbable that a meeting was held in Manenberg
to discuss an attack on Madatt McGregor was also
adamant that the
problem between Madatt and Mokes was as a result of drug monies that
were handed to Mokes McGregor impressed
this Court with his frank
and open disclosure of his criminal activities and involvement in
the crime His evidence is, therefore,
factually accepted by this
Court.
Diedericks
evidence, in essence, relates to his involvement as a member of the
American gangs. His role within the gang structure
and knowledge
about the Woodstock killings and his decision to leave the gang and
to go into the witness protection programme.
The State argued that
although this person appeared nervous, he made a good overall
impression and that the defence was unable
to unravel his testimony.
The defence contended that Diedericks was a poor and unreliable
witness and that his evidence should
be rejected.
It
appears from Diedericks' evidence that he became more involved in
gangsterism when he was retrenched He admitted to having
a previous
conviction for the possession of a firearm The fact that he went to
the police on a Sunday and was advised to come
back the next day
when the offices were open, could not be disputed by the accused
Warrant Officer Swann explained that he was
not involved in the
investigation of gang offences and the witness arrived in his office
on the Monday. Swann lends credence
to Diedericks' statement that he
wanted to come clean and was asked to prove himself whereupon he
showed the police the firearms
and drugs he stored. Diedericks was
not approached by the police for information and according to Swann,
never requested any
favours in return for his co-operation.
The
defence argued that the witness was motivated by the possibility of
a lengthy jail term, should he be convicted on the second
firearm
charge and that fact was his principal reason and motivation to
falsely implicate the accused. If this was his motivation,
then
certainly he had ample opportunity to do so He did not amplify his
evidence at any stage by adding facts which may have
implicated the
accused any further. His version amounted to what he knew and the
minimum knowledge he had of the Woodstock matter.
In essence his
testimony amounts to a conversation he heard between accused 1 and
Fiekie. This evidence, in a manner, supports
the evidence of Carelse
regarding a meeting that took place and that the discussion was
about a revenge attack on Madatt.
With
regard to Carelse, his evidence, in summation, is that he spent most
of his adult life in prison. He admitted that he was
a member of a
gang in prison and became an American due to circumstances. He
primarily became involved with accused 2 and met
accused 1 though
him. He also knew accused 3 from prison. He identified accused 1 to
6 as gang members. He was upfront that he
did know accused 7. He
admitted that he became a police informant after he was arrested on
7 November 2007 and received remuneration
for his information. His
evidence that he only received R7 000,00 was, however, contradicted
by Warrant Officer Titus from Crime
Intelligence, who indicated the
witness received approximately R30 000,00. This Court will accept
that the police place great
reliance on informants to solve crime in
this country and on occasions must rely on paid performance for
information.
There
is, however, no evidence that Carelse was remunerated for his
testimony in this court, or that the amounts actually paid
to him,
was so significant that it enticed him to deliberately fabricate his
evidence in this court The evidence of Carelse was
that the killing
of Markie Mokes instilled the feeling of distrust in Madatt, had
invoked a sense of anger and ill feelings amongst
members of the
American gang and division within the ranks of the gangs was
supported by the evidence of McGregor. His evidence
that Madatt was
fingered was also confirmed by McGregor.
Carelse's
evidence is supported by Diedericks version in respect of the
meeting that was held on 4 November and those who were
present. The
detailed billing of accused 5 and 6's cell phones, gives credence to
Carelse's evidence that a meeting took place
in Bonteheuwel. As the
records reflect whoever was in possession thereof, was in the area
of Bonteheuwel for a considerable period
of time. The fact that
Carelse was arrested twice with some of the accused in a vehicle
with firearms, must certainly be proof
that he was closely operating
with some of the accused.
Another
piece of evidence that suggests that Carelse operated closely with
some of them, is his knowledge regarding the stolen
Toyota vehicle.
He testified that accused 4 admitted to accused 5 that he received
the Toyota from a foreign man who took the
vehicle from his mother
and gave it to accused 4 in lieu of drug monies owed to him. He told
the man to take the car from his
mother when she was away for the
weekend. If accused 4 and 5, as alleged, had never met Carelse in
Paarl or Wellington, then
how could it have been possible that he
knows about the details of this vehicle that they were arrested in?
Carelse
also testified that accused 4 arrived with a white Bantam
bakkie
and
left with it. His evidence was further that on the 5
th
,
after the incident in Woodstock, accused 4 mentioned why are they
worried about the
bakkie,
since
he still has the murder weapon under his pillow From this, it is
evident that there were some concern about the
bakkie,
that
they may have been seen on the crime scene. The text message that
was sent to accused 5 from the Motorola V3 phone, confiscated
during
the arrest of accused 3, 4 and 5. illustrates that Carelse's
evidence is not without credence The message which reads
as follows:
"Hosh,
hoe het jy geweet net twee wit bene en die twee Quantum's is al, en
hoe weet hulle van die bakkie?"
shows
that there were concerns for the possibility that either the police
or others know that the
bakkie
was
at the murder scene. It is not in dispute that firearms and
ammunition was found in the car that accused 2 and Carelse was
arrested in on the N1. It is also not in dispute that a large amount
of live ammunition was found in the car that accused 3 4
and 5 were
arrested in on the R300 road. There were 43 x 9 mm rounds and 41x
.38 Special rounds found on the floor of the front
passenger seat
where accused 3 was seated. An amount of R1 1 880 was also
confiscated, which accused claims belongs to him as
he is a business
man.
The
evidence of both Diedericks and Carelse is not without criticism
Karelse was subject to vigorous cross-examination and at
one stage
was clearly confused as to the dates when Mokes was killed and at
what time of the day the meeting took place at accused
2's house. It
is well accepted that where a witness has shown to have lied in some
aspects of his testimony, it does not automatically
lead to the
rejection of the other aspects of his evidence, nor does proof that
a witness has contradicted himself or was contradicted
by other
witnesses, lead to a complete rejection of the witness' entire
testimony. On a conspectus of all the evidence, and taking
into
account the well established evidentiary rules regarding single
witnesses and that of accomplices, this Court is satisfied
that
there is sufficient corroboration and safeguards for accepting the
evidence of Diedericks and Carelse.
Firearms
and ammunition were also found at the premises where accused 4
resides, including a police uniform, handcuffs and a bullet
proof
vest, that was suspected as being stolen property. Constable Laduka
testified how he found the firearms and ammunition
in the presence
of accused 4 when they conducted the search at the premises. The
firearms and ammunition were handed in at the
police station.
Warrant Officer January testified that he took the exhibits that
Laduka handed in to the forensic laboratory.
With
regard to the robbery at Cape Wood Centre in Kraaifontein, the
complainants, Shaun Crosby and Jan van der Merwe testified
how four
unknown men with a firearm robbed him of R20 000 in cash, a laptop
and two cell phones. The robbers fled the scene in
a silver Toyota
Corolla Van der Merwe gave chase and on the R300 road, he managed to
push the Toyota off the road with his vehicle
The robbers fled and
accused 4 was arrested soon thereafter in the bush swamp where he
was hiding according to the police. His
clothes were also wet as a
result of the swamp. Accused 4's fingerprint was also lifted from
the Toyota vehicle that was later
established to have been a rented
car from the Tempest and reported stolen. A driver's licence was
also found in his possession,
which he denies knowledge of.
The
evidence of the seven accused can briefly be stated as follows.
Accused 1 in his evidence admits that he was a member of the
Young
Americans many years ago. but denies that he is a member of the
American gang. He also denied he had a phone during the
relevant
periods in 2007 In cross-examination he was confronted with a matter
in 2005 when he was arrested and a cell phone number
written next to
his name. He conceded he had a phone, but cannot remember the
number. He at first also testified that he knew
Carelse since 2007.
He soon changed his version when the prosecutor pointed out to him
that he and Karelse were arrested together
in 2006 He then intimated
that he knew Carelse since his arrival in Bonteheuwel. Accused 1
denied that he ever gave Carelse drugs
to sell. He testified that he
does not know of turf wars relating to drugs. When he was questioned
about the American gang in
Bonteheuwel and the gang related drug
territory and disputes, his reply was rather surprising as he stated
the following, "ons
het nie 'n
turf
nie".
Accused
2 testified that he makes a living from selling clothes and shoes He
denies knowing accused 4. 6 and 7 He knows accused
1. 3 and 5. He
denies being a member of the
American
gang. He denies being at the funeral of Markie Mokes and there was
never a meeting at his house on the Sunday as alleged
by Carelse. He
admits that he was with Carelse and Rashaad Solomons when he went to
Paarl According to him he went to Paarl to
deliver clothes and money
to a friend of his known as Neville Jansen. who is also known as
Neville Witvlag. He did not know the
person was still in prison, and
arranged with his girlfriend to drop off the goods He then met the
girlfriend on the corner of
a road in Paarl and gave her the goods
and returned immediately to his house. He denies knowing anything
about the firearms found
in the Tazz and that he said to Captain
Hendricks that he is an American gang member.
In
cross-examination, he was adamant that he is known as Mefaking and
not as Mef or King. When confronted that accused 1 said
he is known
as Mef or King, the accused was rather vague in answering the
question. The accused could also not give an explanation
why his
house was attacked by unknown gunmen when it was his birthday. He
also changed his version as to how he gave the goods
to Witvlag's
girlfriend when it was pointed out to him that his counsel put it to
Carelse that he was at the house of Witvlag
Accused
3 confirmed that he was in prison for 15 years. That he is a member
of the 26 prison gang, but denies he is a member of
the American
gang. He knows accused 1, 2 and 5 and accused 4 he knows from
prison. He does not know accused 6 and 7. He testified
that he does
not know Diedericks. He knows Carelse, whom he met at Bailie Nonge's
house. He testified that on 7 November 2007
he was in Wellington and
denies that he knew about the firearm and ammunition. He also denied
the robbery and drug charges against
him. He also called a witness,
Natasha Nolan, to confirm that he was not involved with the robbery
as alleged in count 18 of
the indictment.
As
to the trip to Wellington, his version was that he wanted to go and
visit a girlfriend he met at a dance Accused 4 and 5 accompanied
him. She was not at her house and they then met up with a person,
Neville Jansen, also known as Witvlag in Wellington He denied
that
he saw Carelse that evening. In cross-examination he could not give
a reasonable explanation as to how he could not find
the house of
his girlfriend He also denied that any of the cell phones found in
the car, belonged to him.
Accused
4 admits that he belongs to the 26 prison gang, but does not belong
to any gang outside of prison. He knows accused 1,
2 and 3.
According to him, he does not know accused 5, 6 and 7 at all. He
denied all the drug related charges against him, but
admits that he
saw the guns at his mother's house. He denied that it belonged to
him. He also admits that he was arrested on
the day of the
Kraaifontein robbery, but stated that the police found him on the
other side of the R300 road where he was on
his way to the train
station According to him, the police arrested him and took him to
the swamp where they then let the dogs
out. He was assaulted and
taken to a place where lots of motor vehicles were standing.
In
cross-examination he denied that the police found a driver's licence
in his possession as he does not possess a driver's licence.
Accused
4, however, admitted that the signature of the false licence is his.
Despite the photo of the licence being a marked
resemblance of the
accused, he was adamant that the licence did not belong to him.
Accused
5 testified that he is single, and the father of two minor children.
He stays with his mother in Surrey Estate The mother
of his children
stays in Kewtown, her name is Zulfa. He denied his involvement in
any gang activities and he denied he was involved
in the attack on
Madatt's premises. He denied that he was in possession of a cell
phone when arrested in the car on the R300
road. He also testified
that Igshaan Abrahams was one of his taxi drivers. According to
accused 5, he forgot his cell phone in
the vehicle when Igshaan came
to fetch it to do taxi work the evening of 4 November 2007. Igshaan
brought the phone to his house
at about three o'clock the Monday
afternoon.
In
cross-examination the accused could not explain the reason why he
and accused 6 had several telephone conversations with each
other in
the early hours of 3 November 2007, whilst both phones picked up the
base stations in the vicinity of the crime scene
in Woodstock. He
also could not give a reasonable explanation why, that after moving
from Woodstock to the CBD in Cape Town,
his cell phone signal picked
up the Bishop Lavis base station and then later the Surrey Estate
base station where he resides.
He could also not give a reasonable
explanation why Igshaan would have made contact with accused 6 and a
person called Klong.
He had difficulty to explain why Igshaan would
send his girlfriend a SMS from his phone.
The
accused then tendered new evidence that he phoned his own cell phone
from his girlfriend's to check where it was This apparent
call is
nowhere to be found on the detailed billing of the records. The cell
phone evidence against
accused
5, in this particular case, is damning against him The accused
placed in issue the evidence of Captain Hendricks, when
he was first
called to attend a meeting with Hendricks. Hendricks testified that
the accused was brought to his office by members
of the Crime
Intelligence and may have possible information. A
trial-within-a-trial was held as to the admissibility of the
evidence, as it was argued by counsel for the accused that his
rights to legal representation were not explained to the accused
when Hendricks questioned him.
The
evidence tendered by Hendricks was provisionally allowed. Hendricks
testified that he did explain the accused's rights to
him, although
it was not in writing as the accused was not detained. The accused
was asked about his whereabouts at the time
the attack on Madatt's
premises took place According to Hendricks, the accused gave an
explanation that he was at Century City
Shopping Complex and
thereafter with his girlfriend. He also moved in the vicinity of
Camps Bay and it appears thereafter he
moved home. At the time, and
before the accused's cell phone detailed billing records, it was a
reasonable explanation and according
to Hendricks he was not
detained. Having regard to the totality of the evidence presented in
this case, this Court can find no
justifiable reason to exclude the
evidence, and the evidence of Hendricks in this case is accepted.
Accused
6 admits that he is a member of the 26 prison gang He denies he is a
member of the American gang He denied he was involved
in the attack
on Madatt's premises. He also denies that he knows people in
Bonteheuwel and he was not in Bonteheuwel between
3 November and 8
November 2007 He confirmed that his cell phone was in his possession
from 2 November to 8 November 2007. He
rejected the evidence of
Captain Hendricks that he voluntarily made a statement detailing the
events and persons involved in
the attack. The accused persisted
with his claim that the police assaulted him and that Hendricks
fabricated all the information
in the statement.
Accused
6 was undeniably a poor witness He dismally failed to give a
reasonable explanation why his cell phone signal would pick
up the
base station in Bonteheuwel area if he was in possession of his cell
phone during that period He could also not explain
how he has
accused 1 to 4's nicknames on his list of contacts. He had great
difficulty in explaining why he frequently made contact
with accused
5 a day before the attack He was at one stage lost for words to
explain how his cell phone picked up the base stations
in the
vicinity of Madatt's premises during the attack. The cell phone
evidence with regard to accused, is also damning in this
case.
With
regard to the trial-within-a-trial, the accused had clearly
fabricated his evidence when he testified that the police assaulted
him and that Hendricks was the author of the statement. The
statement contained so much detail and names of people that the
accused knew It is highly improbable that Hendricks could have
fabricated the detailed information contained in the statement.
It
is also noteworthy that accused 6's counsel initially put it to
Hendricks that the accused was under the impression he confessed
to
the incident between him and Nathan McGregor. There is no plausible
reason to reject the statement made by accused 6. It clearly
amounts
to a confession. The statement by accused is finally admitted.
Accused
6 also elected to call a witness, Cameron Reitz. He testified that
he was arrested as a suspect in a case and was assaulted
by the
police. Despite the police brutality and injuries the witness
claimed he incurred, he failed to mention the assault to
the
magistrate on his first appearance. He claims that he mentioned his
injuries to his attorney as well but that his attorney
did not
mention it to the magistrate. But more surprising, is that this
witness does not know accused 6 and only knows accused
3. This
witness also admitted that he was a member of the 26 prison gang.
Accused
7 testified that he only knows accused 6. He denies that he was
involved in the charges he faced. Prior to this incident,
he did not
know the other accused. It is also not in dispute that accused 5
paid his bail monies in this matter of R30 000,00.
He testified that
prior to the arrest, he did not speak to accused 6 at all. He had
great difficulty explaining how it came to
be that accused 6 had
phoned his house phone number on 4 November 2007, a few hours before
the Woodstock attack. He also did
not advance to Captain Hendricks
his whereabouts during the time of the attack on Madatt's premises.
Hendricks
testified that accused 7 informed him that he was at the premises,
but only set the taxis alight According to Hendricks,
the accused
was too scared to make a statement to this effect, and only signed
his warning statement. This evidence was vehemently
denied by the
accused. Hendricks impressed this Court as a good, reliable and
honest witness He did not try to amplify the evidence
against the
accused Hendricks' version of events regarding this incident, is
accepted.
As
far as this Court is concerned, all the accused failed to make a
favourable impression. They contradicted themselves
and
their versions of events are highly improbable This Court is
satisfied that the evidence tendered by the State in respect
of the
Woodstock killings should be accepted and the versions of the
accused can safely be rejected as not being reasonably possibly
true.
On
the State's evidence, however, accused 1 and 2 did not go with the
other accused to launch the attack on Madatt's premises.
Insofar as
accused 1 is concerned this Court is satisfied that he was present
at the first meeting on the school grounds in Manenberg
opposite the
residence of Wynand, also known as Charlie Hangkas, where it was
discussed
"wie
beplan moorde op
Americans".
It was also at this meeting where accused 3 said that he would know
what to do with Madatt.
Accused
1 was also present in Kewtown when firearms were procured for the
attack on Madatt. The firearms were stored in a vehicle
in which he
travelled to Bonteheuwel with accused 2 3 and Carelse. He was
present when the firearms were handed to Carelse for
safekeeping at
his mothers place There is no doubt that he was present at the
meeting held at the house of accused 2 on Sunday
4 November 2007,
where the attack on Madatt was planned and final arrangements were
made. His presence at the meeting provided
him with the knowledge of
the fact that a revenge attack was going to take place
Although
there is no evidence to place him on the scene of the attack in
Woodstock, he was told the following morning that the
work was
properly done. A few weeks later he admitted to Fickie, in the
presence of Diedericks, that discussions took place regarding
the
attack on Madatt. Having regard to the totality of the evidence in
this case, this Court has no doubt that the evidence presented
by
the State, proved beyond a reasonable doubt, the guilt of accused 1
in respect of the five murders, one attempted murder,
the possession
of an unlicensed firearm and ammunition and the malicious injury to
property counts, i.e counts 25 to 30 and counts
32 to 34. In respect
of count 31, the robbery with aggravating circumstances, there is no
evidence that accused actively associates
himself with this charge
and as a result cannot be found guilty.
Insofar
as accused 2 is concerned, this Court is satisfied he was one of the
persons who masterminded the planning acquisition
of weapons and the
execution of the planned attack, despite the evidence that he was
not at the premises during the attack on
Madatt. He went with to
meet accused 4 the morning after the attack on the premises of
Madatt and he was present when discussions
took place surrounding
the disposal of the murder weapon and the
bakkie.
Having
regard to the totality of the evidence in this case, this Court has
no doubt that the evidence presented by the State proved
beyond a
reasonable doubt, the guilt of accused 2 in respect of the five
murders, one attempted murder, the possession of an
unlicensed
firearm and ammunition and the malicious injury to property counts,
i.e counts 25 to 30 and counts 32 to 34. In respect
of count 31, the
robbery with aggravating circumstances, there is no evidence that
the accused actively associates himself with
this charge and as a
result he should be found not guilty.
Insofar
as accused 3 to 7 are concerned, this Court is satisfied that the
State proved beyond a reasonable doubt that they were
indeed present
on the scene and are guilty of their involvement in the gruesome
massacre of the five persons Accused 3 to 7 are,
therefore, guilty
in respect of counts 25 to 34 as reflected in the indictment.
This
Court is also satisfied that the evidence against accused 3, 4 and 5
in terms of counts 35 and 36 regarding the firearm and
the vast
amount of ammunition found by the police in the car, proved beyond a
reasonable doubt that they had the intention to
possess this firearm
and ammunition as a group to protect themselves.
In
respect of accused 4, this Court is satisfied that the State proved
beyond a reasonable doubt the accused's guilt in respect
of counts 5
to 7, those are the counts relating to the firearms, ammunition and
the suspected stolen property found at the premises
where he
resided, as well as counts 16 and 17. that is regarding the robbery
at Kraaifontein.
As
far as the remaining counts are concerned, inasmuch as there is a
strong suspicion that accused 1 to 6 are involved in gang
activities
of some sorts, the evidence presented in this case does not prove
beyond a reasonable doubt that they engage in a
pattern of criminal
gang activity. It follows that accused 1 to 6 cannot be found guilty
on the remaining charges. In conclusion,
the accused are found
guilty as follows:
1.
Accused 1 and 2 are
FOUND
GUILTY
on
counts 25 to 30 as well as counts 32 to 34.
2.
Accused 3 to 7 are
FOUND
GUILTY
of
counts 25 to 34.
3.
Accused 3, 4 and 5 are
FOUND
GUILTY
on
counts 35 and 36.
4.
Accused 4 is
FOUND
GUILTY
on
counts 5, 6, 7, 16 and 17.
5.
With regard to the remaining counts as charged, the accused are
FOUND NOT GUILTY and DISCHARGED.
LE GRANGE, J