About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2016
>>
[2016] ZAECPEHC 38
|
|
S v Baadjies (CC10/2016) [2016] ZAECPEHC 38 (5 August 2016)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: CC 10/2016
In
the matter between:
THE
STATE
And
PRESTON
BAADJIES
Accused
Coram:
Chetty J
Heard:
26 - 29 July 2016 & 1, 2 and 4 August 2016
Delivered:
5 August 2016
JUDGMENT
Chetty
J:
[1]
The accused, a twenty-eight (28) year old male, stands arraigned on
multiple counts, to wit, two (2) counts of murder, two (2)
counts of
attempted murder, two (2) counts of unlawful possession of firearms
and two (2) counts of unlawful possession of ammunition.
The charges
arise from incidents which occurred on 12 July 2013 first, on an open
field at the corner of Velozia and Hibiscus streets
in Extension 31,
Bethelsdorp, Port Elizabeth (the murder scene) and thence at a veld
adjacent to Kroneberg Street in Extension
21, Bethelsdorp
respectively. The accused pleaded not guilty to the charges as
aforestated, declined to proffer any plea explanation,
but as the
trial progressed, the accused, through his counsel, admitted being on
the open fields alluded to in the indictment,
albeit, idiomatically,
in the wrong place at the wrong time.
[2]
It is not in dispute that during the course of the afternoon of 12
July 2013, two (2) persons, messrs
Ivan
MacDonald, (MacDonald)
and
Randy
Nel (Nel)
,
respectively were shot and killed at the murder scene,
MacDonald
who was found in a motor vehicle died on the scene whilst
Nel
,
found in an adjacent residential erf, died a few days later at the
Livingstone Hospital. The complainant on the attempted murder
charge
(count 3), one Mr
Dean
Gallant
,
was, according to the indictment, similarly shot at the murder scene.
He has in the interim been killed. The statements which
he made to
the police vis-à-vis the events outlined in counts 1-3 and at
a photo identification, where it is common cause
he identified the
accused, were sought to be introduced into evidence pursuant to the
provisions of s 3 of the
Law
of Evidence Amendment Act
[1]
(the
Act). I shall revert hereto in due course.
[3]
It was formally admitted that both
MacDonald
and
Nel
died as a result of gunshot wounds to the chest and abdomen, and head
respectively. The chief post-mortem findings vis-a-vis
MacDonald
were:
“
4.
. . .
1.
Perforating gunshot wound of the head.
2.
One perforating and one penetrating gunshot wounds of chest
(involving also abdomen)
3.
Bullet lodged in the right posterior shoulder.
4.
Bullet tracks through spleen, stomach, left diaphragm, left lung and
heart.
5.
Haemothorax, haemopericardium.
6.
Superficial, perforating gunshot wound of left upper back.
That the cause of death
was determined to be:
Gunshot
wounds of the chest and abdomen.”
whilst
Nel’s
chief post-mortem findings were recorded thus: -
“
4.
. . .
1.
2 Gunshot entrance wounds in the left and right parietal areas.
2.
Gunshot exit left temporal area
3.
Gunshot exit right frontal area of head.
4.
Lacerated brain.
5.
Diffuse subdural and subarachnoid haemorrhage.
6.
Crushed frontal skull.
7.
Pale internal organs.”
[4]
As adumbrated hereinbefore, the precise location where the first
shooting occurred, to wit, the murder scene is common cause
and
graphically depicted on exhibits E and F, a Google map and aerial
photographs respectively. In addition thereto, a photo album
containing some sixty six photographs, a plan and key thereto was
likewise admitted. Photographs 1 – 45 correctly depict
the
murder scene and the remainder, the events which ensued and which
ultimately culminated in the apprehension and arrest of the
accused.
[5]
The only account of the circumstances surrounding the shooting
incident at the murder scene was narrated by reservist Constable
Wesley
Alexander
(
Alexander
).
He was an impressive witness, who, despite the distance between his
observation point and the murder scene, clearly had an unimpeded
view
of the events which unfolded. He observed a taxi stopping on the
tarred road adjacent to the murder scene, saw three (3) persons
emerging therefrom, proceeding directly to the parked vehicle on the
open field. His evidence that one (1) person was in the vehicle
and
the others in its environs, finds corroboration in the admitted
photographs of the scene. It depicts the deceased laying sprawled
across the front seats, bottles, an upended chair and glasses in the
immediate surrounds and an assortment of cartridge cases.
The latter
lends credence to his testimony that several shots were fired by the
three individuals who immediately fled the scene
in the direction of
Extension 21. His depiction of the route the gunmen fled finds
corroboration in the evidence of Constable
Graven
Hendricks
(
Hendricks
)
who observed three persons running across the veld in the direction
of the Kroneberg Primary School.
[6]
It was put to
Alexander
that whilst the accused admitted being on the open field, his
presence thereanent was merely fortuitous and entirely unrelated
to
the shooting incident. The version suggested was that when the shots
were fired, the accused, who happened to be in Kroneberg
Street near
the Stepping Stones Institution, fled when he observed a group of
people running in his direction behind the gunmen.
A similar version
was put to
Hendricks
,
but both he and
Alexander
disputed that any group of persons, save for the three gunmen, ran in
the direction of Stepping Stones. The version put is not
only
opportunistic but highly improbable. The probabilities favour
Alexander’s
evidence that whomsoever was on the open field fled towards the
safety of the adjacent homes when the shots rang out – the
reasons is obvious – no right thinking individual would pursue
a group of armed individuals, who had, literally a few minutes
earlier, brazenly fired several shots at a partying group. The
probabilities overwhelmingly establish the falsity of the
proposition.
[7]
Alexander’s
evidence relating to the gunshots, the
assassins’ flight from the scene and the direction whence they
fled, finds corroboration
in the testimony of Hendricks. Whilst in
Kamedie Circle on routine police duties, he heard several gunshots
and hastened in the
direction it emanated. When he exited the circle
and turned right into Kroneberg Street proceeding in the direction of
the Kroneberg
Primary School he observed three (3) persons running
across the field to his left. Fearful for his own safety he proceeded
beyond
their flight path and stopped his vehicle along Kroneberg
Street. The three (3) persons, all of whom were armed, crossed the
street
to the rear of his vehicle. When
Hendricks
exited his
vehicle he loudly announced that he was a policeman and ordered them
to stop running. His exhortation went unheeded.
The three (3) persons
crossed the road and he fleetingly lost sight of them. He however
immediately pursued them and when he entered
the open field between
the houses, shots were fired at him by two (2) of the gunmen.
[8]
He lay prone, returned the gunfire but after the exchange the gunmen
took flight.
Hendricks
returned to his vehicle, drove after them in hot pursuit and when he
reached the vicinity of Stepping Stones, he once more observed
two
(2) of them running across an open field opposite Stepping Stones. A
police vehicle fortuitously appeared on the scene and
fortified by
their presence,
Hendricks
pursued the two (2) persons he had seen running across the road. He
once more commanded them to stop and when they did, ordered
the
person dressed in a purple top to drop his weapon. The command,
coupled to
Hendricks’
pointing of his firearm at the purple clad individual and the other
person, had the desired effect.
[9]
Hendricks’
testimony was corroborated in all material respects by Constable
Eldridge
Jansen
(
Jansen
),
one of the occupants of the police vehicle, which, as adverted to in
the preceding paragraph, fortuitously arrived when Hendricks
stopped
and exited his vehicle. Both of them identified the accused as one of
the two (2) persons whom
Hendricks
had pursued and apprehended. Their description of the colour of the
accused’s T-shirt, to wit, greyish in colour, is moreover
vouchsafed by the photograph, image 46 of exhibit B, which depicts
the accused clothed in a grey T-shirt shortly after arrest.
[10]
Hendricks’
evidence hereanent was sought to be impugned by reason of his
omission to recall the insignia on the front of the accused’s
T-shirt. Mr
Cilliers
submitted that
Hendricks’
testimony must be evaluated with a measure of caution. Our law has
long recognized the necessity of doing so but, in the final
analysis,
evidence is assessed holistically.
Hendricks
did not have a fleeting glimpse of the accused and his cohorts. He
had heard the gunshots, repaired in its direction with, no doubt
a
heightened sense of awareness. Prior to stopping his vehicle he saw
three people running towards Kroneberg Street. He thus had
ample
opportunity to observe not only them, but their impending flight
route. The criticism directed against
Hendricks
is without substance. Holistically viewed, his testimony is
unimpeachable.
[11]
The avouchment made during the cross-examination of both
Hendricks
and
Alexander
that the accused was an innocent passer-by on the open field and took
flight when hoards of people pursued the assassins is in
direct
conflict with the import of the evidence adduced.
Jansen’s
evidence that the accused was armed when he first observed him finds
corroboration in
Hendricks’
evidence that the person clad in a grey T-shirt was armed as he ran
across the open field. The aforegoing testimony stands
uncontradicted.
The accused elected not to dispute the evidence
adduced on behalf of the state and the uncontroverted testimony
adduced by the
state must accordingly harden into proof beyond a
reasonable doubt. The legal position was aptly described in
S
v Brown and Others
[2]
as:
“
Prakties
beteken dit dat die probleem dus benader moet word uit die hoek van
die onweerspreekte getuienis van die Staat en
nie uit die hoek
van die stilswye van die beskuldigde nie. Die vraag wat beslis moet
word, is of die onweerspreekte Staatsgetuienis
sterk genoeg is om die
facta probanda bo redelike twyfel te bewys en nie of die beskuldigde
se stilswye die een of ander bewyswaarde
het nie. Sy stilswye het
volgens my oordeel geen bewyswaarde nie, maar gewone logika sê
dat sy stilswye nadelige gevolge
vir hom kan inhou.”
[12]
The mere fact that the accused was, when arrested, no longer in
possession of the firearm is of no consequence. The photographic
evidence which, it was admitted, depicts and explains what it
purports, shows an area covered in vegetation. The probabilities
are
that during the latter portion of his flight, the accused either
discarded the firearm or handed possession thereof to his
cohort who
made good his escape. The undisputed evidence that the accused was
exhausted and out of breath when he was apprehended
confirms that he
could physically, no longer evade arrest. Furthermore, the mere
fact that the prime residue test performed
on his hands yielded a
negative result does not inure to his benefit. Warrant Officer
Phillip
Rudolph Bekker’s
(
Bekker
),
evidence provides the death knell for any suggestion that the accused
did not fire any shots on the day in question.
[13]
On the uncontroverted evidence, the firearm which was found in the
immediate vicinity of the accused and his cohort,
Vuyani
Kondile (Kondile)
,
was the firearm whence the cartridges found on the murder scene had
been fired. Despite the accused’s protestation, put
to the
state witnesses, that he was unfamiliar with
Kondile
,
I accept
Jansen’s
evidence that he had seen them in each other’s company. The
criticism directed at Jansen’s testimony is unwarranted.
The
import of his evidence was that he was driving slowly and had ample
opportunity to observe the accused and
Kondile
.
The accused’s conduct, from the time when the shots rang out at
the murder scene until his apprehension a short while thereafter
is
graphically chronicled in the evidence of
Alexander
,
Hendricks
and
Jansen
and I accept that he was one of the assassins who fired shots at the
murder scene. The gun toting trio, whom
Alexander
saw alighting from the taxi had, on the probabilities, been appraised
that their intended victims were sojourning on the open field.
Their
goal directed conduct conclusively establishes that they acted
premeditatively.
Alexander
witnessed them with firearms drawn, and proceeding directly to the
vehicle and firing. The location of the bullet wounds on the
deceased’s bodies demonstrate, unequivocally, that the accused
and his cohorts had the direct intent to kill. Their collective
flight from the murder scene attests that they acted in concert. In
my judgment, the evidence adduced on behalf of the state proves
the
accused’s guilt on the two (2) charges of murder beyond a
reasonable doubt. The inference may legitimately be drawn that
the
trio had the joint intention to possess the firearms rendering the
accused guilty on counts five (5) and six (6).
[14]
There is however a dearth of evidence to found a conviction on count
3. The complainant, Mr
Dean Gallant
, has, in the interim,
departed this earth, and save for the allegations in the indictment,
the summary of substantial facts and
his police statements, there is
no evidence concerning the location and circumstances in which the
offence circumscribed in count
3 was committed. It is convenient at
this juncture to provide reasons for the ruling, made during the
trial, disallowing the admission
of
Gallant’s
police
statements. The application was premised on the provisions of s
3(1)(c) of the Act which permits the reception of hearsay
evidence in
particular instances. It provides as follows: -
“
3
Hearsay evidence
(1) Subject to the
provisions of any other law, hearsay evidence shall not be admitted
as evidence at criminal or civil proceedings,
unless-
(a)
. . .
(b)
. . .
(c)
the court, having regard to-
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence
depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into account,
is
of the opinion that such evidence should be admitted in the interests
of justice.”
[15]
The hearsay sought to be adduced, coupled to the pointing out of the
accused by the declarant was no doubt intended to place
the accused
at the murder scene and the reliability of such testimony, in the
overall assessment of the evidence adduced is a paramount
consideration. There can be little doubt that the killing of the
deceased was gang related Gallant’s presence at the murder
scene would justify the inference that he was an affiliate of such a
rival gang. The reliability of his testimony can only be tested
under
cross-examination and, absent such interrogation, the interests of
justice clearly do not, in the circumstances of this case,
allow for
its reception. It is for these reasons that the hearsay statements
were ruled inadmissible. The accused must accordingly
be found not
guilty on count 3.
[16]
As adumbrated hereinbefore, the accused and his cohorts acted with
fixed resolve and in concert. They collectively fled the
scene and,
when confronted by
Hendricks
and commanded to submit, the accused’ two cohorts responded by
firing at him. Although
Hendricks
stated that the accused did not fire at him, his inaction does not
inure to his credit. The firing at
Hendricks
was directed at ensuring that they were not apprehended and could
make good their escape. The common purpose was not confined to
the
killing of the deceased but extended to facilitating their getaway.
The accused’s cohort’s conduct in firing at
Hendricks
was to ensure the trio’s successful escape and fell within
their common design.
[17]
The evidence adduced conclusively establishes that the accused was
armed. The fact that the weapon was neither found in his
possession
nor gunshot residue on his hands does not, as I have earlier found,
inure to his benefit. In the result therefore the
accused is
convicted on counts 1, 2, 4, 5 and 6 as charged.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the State:
Adv. A. Canary
National
Director of Public Prosecutions
North
End, Port Elizabeth
Tel:
(012) 841 1432
Obo
the Defence:
Adv G. Cilliers
Instructed
by
Port Elizabeth Justice Centre
North
End, Port Elizabeth
Tel:
(041
) 408 2800
[1]
Act No, 45 of 1988
[2]
1996 (2) SACR 49
(WC)