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[2018] ZAECPEHC 42
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S v Redhouse and Another (CC14/2017) [2018] ZAECPEHC 42 (19 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE
NUMBER: CC14/2017
Date
delivered: 19 June 2018
In
the matter between
THE
STATE
and
NEALON
REDHOUSE
Accused
No. 1
DEON
HARMSE
Accused
No. 2
JUDGMENT
MAKAULA,
J.
[1]
A few
minutes before she was mercilessly killed, the fourteen year old
Aaliyah Angelic Tee (Aaliyah) read her parents a verse from
the
Bible. When she was fatally shot she was seated on a toilet
seat with her back towards her killers, praying for her life
and that
of her parents to be spared. Nonetheless, she was shot through
her head and left thigh and died on the spot.
I shall revert to
her cause of death.
[2]
Mr
Edmund Tee (Edmund), his wife, Mrs Candice Cecilia Tee (Candice) and
Aaliyah, their daughter were on the evening of 7 June 2016
in the
sanctity of their home about to sleep. They were disturbed by a
hard knock on the front door. Someone demanded
that they should
open the door retorting that it was the police. Edmund answered
the front door but could not open it because
the key broke. The
hard knock continued. Candice then heard a voice saying “Sorry,
uncle Attie it is your turn”.
Edmund suspected that it might be
the gangsters.
[3]
Edmund pushed two
couches against the front door trying to prevent those people from
entering. I mention at this stage that
had Edmund and Candice
not done that, probably those people would not have broken and
entered through the front door.
[4]
Edmund
thereafter went to the back door. He opened it and took a step
outside and peeped around the corner of the house and
came back.
Candice instructed Aaliyah to remain in the bedroom.
[5]
Candice
proceeded towards the back door. As she was approaching it, she
saw Edmund pushing against the back door, preventing
someone from
coming inside the house. The person at the door pointed her
with a firearm. That person was standing outside
in the
doorway. At that time she was inside Aaliyah’s room.
She could see the back door from her position.
The back door
was 50 to 60 cm ajar. She noticed that the person pointing the
firearm at her was Accused 1. Accused
1 was pushing using his
right shoulder and holding the firearm with his left hand. She
testified that she could see clearly,
because the room adjacent to
the backroom was lit with an electric bulb. The light shone up
to the back room.
[6]
There
was sufficient light, according to her which enabled her to properly
see Accused 1. She testified that she knew Accused
1 from his
early age because he used to play with her son who was at the time 16
years old. Effectively, she said she knew
Accused 1 for 17
years. They were next door neighbours and she was a friend of
his mother. She used to see Accused
1 almost every day as he
would spend time at the smart shop which was opposite her house.
As a result of that background
and the light, she was able to
identify Accused 1 at that stage.
[7]
She
testified that Accused 1 was wearing a black jacket and transparent
safety goggles. He had nothing on his head.
She further
testified that she was three metres away from where they were at the
door. She could not assist Edmund in pushing
the door closed
because she was afraid of the firearm Accused 1 was pointing her
with.
[8]
As
the Accused 1 was pushing the door, she saw Accused 2 standing behind
him. She knew Accused 2 as Kwas. Accused 2
was a friend
of Accused 1 and he frequently visited her area because he and
Accused 1 would stand and chat at the smart shop.
She had known
him for about a year.
[9]
She
testified that when Edmund was peeping at the corner of the house,
she went back to the room where Aaliyah was. She found
Aaliyah
praying and she did not disturb her. She went back to see what
was happening at the back room.
[10]
She
realised that the Accused were over powering Edmund. She ran to
the bathroom with Aaliyah. She opened the bathroom
window and
shouted to her neighbours for help. No one heard her. She
turned away from the window and looked towards
the door. She
saw the Accused standing in front of her next to the washing machine
in the bathroom. They were looking
at her. They were
three spaces away from her. The bathroom light was on. She
heard Aaliyah pleading with them with
both hands in a praying
position, (both held in front of her chest) not to shoot. She
grabbed Aaliyah and they knelt in front
of the toilet. She
heard one of them saying “skiet my broer”. The
other one said “fok jou auntie”.
Immediately after
that she heard a gunshot going off. The sound was like a bomb
going off close to her ears.
[11]
After
a while she felt “warm blood” as she put it. She
felt that her legs were numb and wet because the toilet
seat was
broken. She lifted her head and turned to her left side.
She saw Aaliyah lying on the floor bleeding from
her ear. She
put her hand on Aaliyah and said “take her Lord she is yours”.
She sat next to her lifeless
body and prayed. While still
praying she heard a distant voice calling her name, Candice, Candice,
Candice. She crawled
out of the bathroom. She followed
the direction of the voice until Aaliyah’s room. She got
the strength to stand
up. She looked at the back door and saw
Edmund lying behind the door. Edmund asked her to come and
assist him.
She told him to wait. She went to the
bathroom and touched Aaliyah and felt that she was cold. There
was a lot of blood
flowing from her body. She called the emergency
number 112. The recording of her call was played in court for
the record.
I hasten to mention that it was an emotional call
which was not pleasant to listen to. Her hysterical voice
asking for help
was unbearable to listen to. She was
demonstrably in pain and anguish. The police promptly responded
to her call.
[12]
Candice
testified that the owner of the smart shop, Daniel was murdered some
time before these offences were perpetrated against
her family.
She testified that on 3 May 2016 in the morning she witnessed the
killing of a person she later learnt was Stahl
Barry. She
identified three of his killers. Aaliyah was at school and
Edmund was in front of their house at the time.
She did not
give the police her statement about the incident because she was
afraid of being killed.
[13]
Candice
testified that she became aware that the Accused were members of a
gang called Spotbouers. She confronted Accused
2 one day at the
Smart Shop. At the time, she had been speaking to Daniel about the
spate of killings which frustrated her.
When she turned she saw
Accused 2 standing behind her and asked from him when they would stop
killing people. Accused 2 did
not respond instead he looked at
her. She said to him may “God bless you” and left
the shop. She was talking
to Accused 2 for the first time that
day. She stated that on a certain day, a member of the Spotbouers by
the name of Sella came
to her house and assured Edmund that nothing
would happen to them (meaning they were not going to be harmed).
[14]
Edmund
is the husband of Candice and the father of Aaliyah. He
confirmed the evidence of Candice about the knock at the door
up
until the events at the back door. He testified that he
realised that the people who were knocking at the door were not
the
police when he heard one of them saying “oom Attie it is your
turn”. He, with the assistance of Candice,
pushed couches
against the front door. He informed Candice that it was not the
police but gangsters.
[15]
He
went to the back door and opened it. He stepped outside and
peeped looking down the passage between his yard and the
neighbour’s.
He saw Accused 1 walking in the passage
towards him. They looked at each other. He saw his full
face, as he put it.
He looked at Accused 1 for a few seconds.
Accused 1 turned and looked backwards. He said to someone
who was following
him, here are the people at the back of the house.
He recognised that he was talking to Accused 2. They were
approaching
him.
[16]
The
passage was well illuminated because of the light that was emanating
from the garage light, the light from the front of the
shop and the
street lights. He testified that Accused 1 was dressed in black
and spotted safety goggles. He had nothing
on his head.
Accused 2 was also dressed in black and had nothing on his head.
He looked Accused 1 for more than 5 seconds
and Accused 2 for about
three seconds while they were approaching him in the passage.
[17]
Edmund
went back to the house and closed the door. He stood against
the door with his left shoulder pushing it. He did
so because
there was no security gate and the door was not strong. The
accused kicked the door. The latch broke and
they pushed the
door. He pushed back preventing it to open. He asked
“Ouens what do you want?, What have we done
to you?”
They did not respond. A left hand emerged through the door
carrying a black firearm. A gunshot
went off. He became
weak and fell on a box that was behind the door. There was also
a window frame behind the door.
[18]
Accused
1 then got inside the room followed by Accused 2. They stood
infront of him. They were two paces away. Accused started
to shoot at
him. Accused 2 had a firearm in his hand. After Accused 1 shot
him, they both went through Aaliyah’s room
to the front room.
He pretended to be dead by opening his eyes slightly.
[19]
As
they disappeared through the other rooms, he heard Candice screaming
for help calling their neighbour. He heard gunshots
and after a
while the accused came back. He looked at them. They went
out of the back door and left. He waited
for a while until he
could not hear their footsteps and called out for Candice. The
latter came to him. She left again
to call for help.
Later the police arrived and he was taken by ambulance to Livingstone
Hospital. After some days he
learnt from his brother that
Aaliyah had passed away.
[20]
Edmund
testified that he had known Accused 1 for 17 years thus confirming
the evidence of Candice in this regard. Accused
1 was his next
door neighbour and spent most of his time with his son. As
Candice testified, he also saw the accused on the
day of the incident
passing in front of his home. They greeted each other. He
knew Accused 2 for a period of a year.
They used to see him at
the Smart Shop or at Accused 1’s home. He confirmed the
evidence of Warrant Officer Blom about
the photo identification
parade.
[21]
He
thought the reason why the accused attacked them is because he and
Candice had witnessed Stahl Barry being killed. Therefore,
the
accused wanted to eliminate them as witnesses in that case. On
a certain occasion, he was approached by Justin who told
him that he
constantly phoned the police. Justin, Accused 1 and 2 were
gangsters and belonged to the Spotbouers according
to Edmund.
He approached Sella who is the general or the leader of the
Spotbouers. Sella assured him and Candice that
nothing would
happen to them because he was going to talk to the gang members.
[22]
The
evidence of Edmund was criticised based on the inconsistencies
between his statement and his testimony in court. In his
statement, Edmund said whilst pushing against the door a right hand
appeared through the door and a shot was fired. In court
he
testified that it was the left hand. To me nothing turns on the
aspect. He testified that he might have made a mistake
in his
statement because it was not possible for a right hand to have been
used because the door, as one faced it, opened towards
the left hand
side. This explanation is plausible in the circumstances.
[23]
He
was further criticised for having mentioned in his statement that
Candice went outside and stood at the fence or boundary wall
and
called for her neighbour to come and help. Edmund testified
that was a mistake. I agree with Edmund in this regard.
Candice
could not have been able to leave the house for two reasons.
Firstly, the front door could not open because the door
was locked as
the key had broken. Secondly, immediately after Edmund peeped
around the corner, he came back to the house
and closed the door.
The pushing against the door started which culminated in the attacker
gaining entry. This inconsistency
therefore is immaterial and
what appears in the statement is not logical.
[24]
Edmund
was further taken to tusk about him saying in his statement to the
police that immediately after he was shot he saw four
people.
What transpired after the statement is not consistent with the photo
identification parade in which Edmund spoke
of and identified two
people. In court he also mentioned two people. It is
understandable in the circumstances that
Edmund might have been
confused by the four legs he observed while lying on the floor.
Nothing turns on the criticism of
his evidence in this regard.
[25]
Warrant
Officer Lambertus Jacobs Blom conducted a photo identification parade
while Edmund was still in hospital. A video
footage of that
parade was exhibited. In the photo parade Edmund pointed at the
accused as the people who attacked him and
his family. He
identified Accused 2 as the shooter, something which he later
corrected in court.
He
stated that he made a mistake, he was shot at by Accused 1.
Accused 2 was present and also in possession of a firearm at
the
time.
[26]
Quinton
Gould, a Constable in the South African Police Service (SAPS), was
the first to arrive at the scene. He met with Candice
outside
their house. He could not easily get into the house through the
back door. He discovered that it was blocked
by Edmund who lay
injured behind the door. The door was partially opened.
He was seating in a box and leaning against
the wall. Aaliyah
was lying in a pool of blood in the toilet. He attempted to
calm Candice who was crying and hysterical
at the time. He
secured the crime scene and communicated with the SAPS radio control
room reporting about the crime scene
and conveying some of the
information he received from Candice and Edmund about what occurred.
Edmund was in pain at the
time he spoke with him.
[27]
Edmund
told him that he was attacked by four men, amongst them was Nealon
and Kwas, i.e. Accused 1 and 2 respectively. He
further
testified that there was light in the doorway of the back door and in
the back room where Edmund was lying behind the door.
[28]
On 08
June 2016 at 02h25 Warrant Officer Philip Roedolf Bekker,
investigated the crime scene in this matter. The scene was
pointed out to him by Warrant Officer Phillips and Constable Gould.
He evaluated the scene for evidential possibilities and
documented
his findings and observations in a video recording and photographs..
He processed the scene for forensic evidence
and other impression
evidence. Warrant Officer Bekker is a Bloodstain Pattern Analyst and
Crime Scene Reconstruction Analyst. It
is not in dispute that he is
an expert in his field. He reconstructed the scene and made a
bloodstain analysis. He recovered
amongst others, the following
exhibits which he sealed in various seal bags:
·
2
cartridge cases found outside the house at backdoor threshold;
·
3
cartridge cases found inside house in backroom at backdoor;
·
2
cartridge cases found inside the house in bathroom in the bathtub;
·
2
bullet fragments found in a pool of blood under the Aaliyah in the
bathroom;
·
1
bullet found inside the bathroom in a plastic container under the
toilet bowl.
[29]
The
chain evidence in respect of these cartridges has not been disputed
by the Accused. These cartridges were registered under
CAS
97/06/16.
[30]
I
should hasten to mention that the evidence of Candice and Edmund
regarding the lighting of the backroom where Edmund was shot
is
confirmed by Warrant Officer Bekker. The latter testified as follows
in this regard:
“
Bedroom
2” There is a light that was on. There was only a divider
in between the two rooms, so that is bedroom 2 and
backroom. That
provided enough illumination for me for instance on the crime scene
not to take the photos with the assistance of
an additional torch. I
have only focused with the available illumination in the room and
that is normally an indication that the
human eye can also observe
very good in that illumination
.
. .
If the back door was open, as is visible on image 25, the light from
these two rooms, the bedroom and the backroom, would have
spilled out
into the area and it would have been illuminated”
The
area he is referring to is that which is in front of the backdoor as
it was opened and depicted in photo 25 of the photo album
exhibited.
It is the same area Candice testified that she saw Accused 1 and
Accused 2 standing.
[31]
Warrant
Officer Bekker’s evidence is technical and accords with the
post mortem findings of Dr Kalev. He took the height
reflected
by Dr Kalev and created two mannequins (as depicted in the picture
below) on a computer programme and superimposed them
onto Aaliyah’s
photo as she was lying on the floor of the bathroom. He used
Anatomical limitations of a human body
specifically a slender female
of approximately 1,6 metres in length. This postulated Aaliyah
in a blueish colour. The
other is ‘greyish’ in
colour and depicts Candice. He testified that he used various
physical evidence that he
collected and observed on the crime scene,
bloodstain pattern analyses that he had done and the report of Dr
Kalev, to use, establish
variables and limitations as to the exact
positioning of the bodies. Aaliyah, the blue mannequin, was
sitting on the toilet
with her knees in the direction of the bath,
looking towards the wall and the mother which is the grey mannequin,
was on her knees
on the ground to the right of the toilet.
Bekker testified:
“
My Lord,
please note that this is the only one instance, one single event, in
a whole series of possible events and this specific
event that I have
chosen here is the one which I have got the most direct evidence of
and that is the moment the gunshot wound
to the head was sustained”.
The reconstructed scene is as follows:
[See
PDF for image]
[32]
Warrant Officer Bekker, taking into account the post mortem findings
of Dr Kalev that the bullet entered the right upper occipital
bone of
the skull travelling through the brain as well as the maxillary sinus
cavity exiting on the left lower cheek, concluded
that the bullet hit
the wall above the cistern of the toilet and left a mark on the wall.
He further concluded that the blood and
mucus strands which were
deposited on the wall were as a result of the bullet travelling
through the maxillary sinus cavity thus
taking with it mucus.
[33]
Warrant Officer Bekker said that the bloodstain patterns on the wall
next to where the bullet struck are called
misting
.
The blood patterns are small one millimetre in diameter and
consistent with splatters caused by the kinetic energy and the
high
velocity that occurs during a gunshot wound and the blood that is
dispersed from the wound itself. He testified further
that the
two volumes of blood deposited on the lid of the cistern were
deposited at once and not as a result of continuous dripping
of
blood. He concluded that the blood was expelled from the mouth
of Aaliyah just after the bullet went out through the left
side of
the cheek. He concluded further that Aaliyah had her head
elevated above the cistern. He found that there was
no blood on
the right edge of the cistern when in fact the area should have had
bloodstains. He called it a void. To
him, that was when
Candice had her hand on that part of the cistern which caused the
void.
[34]
Warrant Officer Bekker, opined that the injury on the left thigh was
sustained while Aaliyah was seating on the toilet seat.
The
bullet entered on top of the thigh exited on the side and hit the
bottom of the cistern just above the toilet lid hence that
part is
broken. The blood pattern on the front of the toilet seat,
which he identified as a transfer stain or contact stain,
occurs when
a bloodied object is in contact with another object and transfer the
blood to that object. There were also signs
of lateral movement
in the transfer pattern which confirmed the positioning of the wound
and proof that the wound was obtained
while Aaliyah was sitting on
the toilet seat, so he testified.
[35]
Warrant Officer Bekker testified that drops on the toilet lid which
he called vertical or gravity drops were from an elevated
position
and probably from the head. This, according to him, confirmed that
Aaliyah was in a sitting position when she was shot
at. The stain on
the bath was the transfer of the hand from the cistern, i.e. where
the void occurred, to the bath when Candice
moved her right hand away
from the position in which it was when the bullet that struck Aaliyah
and exited.
[36]
Warrant Officer Xola Baleni testified that he was attached to the
National Intervention Unit. He was deployed in Port Elizabeth
in July
2016. On 8 July 2016 at about 20h00 he was in Bethelsdorp when they
received information from Crime Intelligence about
people with
firearms. It was conveyed to them that, that person was a wanted
suspect in a murder case. They said the suspect was
Nealon Redhouse.
They proceeded to the address. They knocked and a girl answered the
door and opened for them. They introduced
themselves as police
officers and requested to search the room. She referred them to her
boyfriend claiming that she was a visitor
there. The girl told them
that her boyfriend was Nealon Redhouse. He called out for him but
there was no response. He went to the
bedroom. He could see that
there was a person under the bed. He lifted the bed and saw Accused
1. As he was introducing himself
and stating the reason for being
there, he saw a bullet proof vest, a defence force camouflage,
cellphones, hand gloves, a firearm
and ammunition. He asked whose
items were those. Accused 1 said they belonged to his friend. What
surprised him is that he did
not know his friend’s name and
address. He questioned him and Accused 1 told him that he was 21
years old. He denied that
Accused 1 was assaulted at the time he was
arrested. He stated that the items together with the firearms and
ammunition were found
under the bed next to where he was hiding.
[37]
Detective Sgt Conrad Goosen is the investigating officer in this
matter. He testified that the firearm that was found in this
matter
that is CAS 97/06/16 was linked to various other cases i.e
Bethelsdorp CAS 28/05/2016, Humansdorp CAS 105/05/16, and Bethelsdorp
CAS 314/06/2016.
[38]
Sergeant Goosen further testified that he obtained a second statement
from Edmund because the latter was not happy about the
contents of
the first statement. He took a second statement from him. Sgt Goosen
further handed a document from the Department
of Correctional
Services that proved that Accused No 2 was detained at St Albans
Medium Correctional Centre from 20 June 2016.
He was detained in
connection with Bethelsdorp CAS 28/05/16. He testified that the date
marked as the release date is initially
a date when further charges
were added but in actual fact he has been in custody since 20 June
2016. Barry Stalh was murdered on
3 May 2016. He produced proof from
St Albans Medium Correctional Centre that Accused 2 was detained from
5 February 2016 and released
on 4 March 2016. Effectively, his
testimony was that Accused 2 was not in custody from 4 March 2016 to
20 June 2016. He testified
that according to the physical addresses
given, Accused 1 and 2 lived about 450 metres from each other which
was a five minutes
walk.
[39]
Warrant Officer Yolandi Schoeman is attached to the Ballistic Section
of the SAPS. She was requested to test five cartridge
cases which
were found at the scene by Warrant Officer Bekker. She found that
three of the five cartridges were fired from the
same firearm and the
two others from another firearm. In other words two firearms were
used in shooting Edmund and Aaliyah that
fateful evening.
[40] Warrant Officer Schoeman was also
requested to compare exhibits from different CAS numbers. She
testified that she compared
three cartridge cases found in the
Bethelsdorp CAS 97/06/2016 and one cartridge case retrieved from
Bethelsdorp CAS 28/05/2016.
She concluded that the four cartridge
cases, even though found in different scenes were fired from the same
firearm. The three
cartridge cases according to the sketch plan and
the chain evidence were found by Warrant Officer Bekker in the
backroom where
Edmund was shot at. The other two cartridge cases
which she alleged were fired from a different firearm were found by
Warrant Officer
Bekker in the bathtub where Aaliyah was shot and
killed. She was further requested to compare Lab 223503/16 i.e CAS
97/06/16 and
Lab 155525/16 (5) in respect of CAS 28/05/16. Lab
223503/16 contained the following exhibits amongst others:
“
4.1.1
Firearm Parrabellum Calibre fired cartridge cases marked 223503/16
A3, A6, A7, A14 and A15 respectively; “
[41] In respect of Lab 155525/16 that
in Bethelsdorp CAS 28/05/16, amongst other exhibits, contained:
“
5.1 Thirty
One Parrabellum Calibre fired cartridge cases marked 155525/16
.
. .
A31 respectively”
[42] She concluded that:
“
7.1 The
cartridge cases mentioned in 4.1.1 marked 223503/16 A3, A6, A7
(Bethelsdorp CAS 28/05/16) were fired in the same firearm”
[43] She further testified that there
was a firearm that was linked to both CAS numbers, she received Lab
259660/16 Bethelsdorp
CAS 98/07/16 a 9mm Parabellum Calibre Feg Model
PJK-9HP semi- automatic pistol with serial number 57234 amongst other
exhibits.
She testified the firearm functioned normally without any
defects. She was requested by the investigating officer in the matter
to make a comparison of various exhibits dealt with in various Lab
numbers she concluded as follows:
“
9.1 The
cartridge cases mentioned and in 5.1 marked 155525/16 A31
(Bethelsdorp CAS 28/05/16) and 6.1 marked 223503/A3, A6, A7
(Bethelsdorp
CAS 97/06/2016) were fired in the firearm mentioned in
4.1 – 9mm Parabellum Calibre Reg Model PJK – 9HP with
serial
number 57234 (Bethelsdorp Cas 98/07/2016)”.
[44] In other words, the firearm which
was found in possession of Accused 1 by Warrant Officer Baleni was
used in firing the empty
cartridge cases found in the backroom where
Edmund was shot at. Furthermore, the same firearm was used in firing
the cartridge
case which was found, at the scene of the shooting of
Luciano Magilies. The inference which the State, correctly sought
this court
to draw is that the Tee family was attacked because, apart
from Aaliyah, Edmund and Candice witnessed the shooting of Luciano
Magilies.
TRIAL WITHIN A TRIAL:
[45]
Lieutenant Colonel Michael Coenraad Grobler (Lt Col. Grobler)
testified that he was 33 years in the SAPS and has been a
commissioned
officer for 24 years. At the time of his evidence, he
was the Commander of the Provincial Organised Crime Gang Unit. He
testified
that on 9 July 2016 at 11h00 he took a warning statement
from Accused 1 who gave his age as 21 years old. He filled in a
Proforma
Form for a warning statement in English even though Accused
1 was Afrikaans speaking. He translated it from English to Afrikaans
and wrote the answers in Afrikaans. Having obtained the statement, he
asked Accused 1 to initial and sign it where necessary.
[46]
For purposes hereof, I shall not deal particularly with what is
contained in the pro-forma form word for word. Lt Colonel Grobler
testified that he advised Accused 1 of the charges he was facing and
explained his constitutional rights. It was after he had informed
Accused 1 that his powers in obtaining a statement were equivalent to
those of a Magistrate. Amongst the rights explained Accused
1
indicated to him that he shall require the services of a Legal Aid
attorney when the matter appeared in court. He elected to
continue
with the interview. Furthermore, Accused 1 told him that he was not
willing to make a statement. He explained to Accused
1 that he had a
right to put questions to him about the offences he was charged with.
But Accused 1 had a right not to respond
to those questions if he so
wished. He further advised him that if he elected to answer he was
going to note his answers in writing
and may testify in court about
them. Accused 1 answered in Afrikaans and said “Ja meneer, ek
sal die vrae antwoord, ek verstaan
my regte”.
[47]
Lt Colonel Grobler noted than Accused 1 had a chafed mark on his head
above the right eye and right wrist. He asked him how
he sustained
the injuries, The Accused said “Die polisie – beampte het
my geslaan, toe ek arresteer is”. Accused
1 never indicated to
him that he had been assaulted or forced to make a statement. He was
sober at the time. Lt Colonel Grobler
testified that as the Commander
of his Unit, he knew the facts of the case he interviewed Accused 1
about because he inspects dockets
in his unit. He was not
specifically briefed about the facts and he remained as objective as
he could when asking Accused 1.
[48] Under cross examination, Lt
Colonel Grobler insisted that Accused 1 said he was 21 years. He
denied that there was another
police officer present during the
interview. He stated that as proof that Accused 1 answered questions
freely and voluntarily he
said:
“…
because
you will see later that every answer he gives me
leads to the
next question. Now, I wouldn’t know that
information
unless I get it from him. So there is no such thing
that he was not
freely and voluntarily or under treat of
assault
or anything like that in my office; that is not so.” (SIC)
[49]
He insisted that after questioning the Accused, he read the document
back to him before he asked him to sign and initial where
it was
required. Having obtained a statement from him, he asked Captain
Kriel to commission the statement and determine from Accused
1
whether he was satisfied with the statement.
[50]
Captain Rio Bunhizer Kriel attached to the Provincial Organised Gang
Unit testified that he had 28 years of service. He has
been a
detective for 26 years.He has been in the rank of a Captain for 23
years. He was asked to commission a statement by his
colleague Lt
Colonel Grobler. He enquired from Accused 1 whether he was satisfied
with the questions and answers that were contained
in his statement
and he confirmed. He further asked if he read through the statement
or it was read back to him by Lt Colonel Grobler
and was satisfied
with it. Accused 1 confirmed that it was read back to him. It was the
three of them in the office. Accused 1
did not inform him that he was
forced to make the statement.
[51]
Accused 1 testified that he was approached by Lt Colonel Grobler in
the presence of Captain Kriel to make a statement. Lt Colonel
Grobler
asked for his age. He told him that he was 17 years old. He denied
that he gave his age out to him as 21 years. He testified
that Lt
Colonel Grobler explained the legal rights that he enjoyed as an
arrestee but did not go through the entire document with
him. He
further testified that he informed him that he was not willing to
answer questions. But he went ahead and asked him. He
showed him that
he had an injury above the left eye lid, an injury around the left
wrist and on the lower lip of his mouth. He
testified that during the
interview, Captain Kriel threatened to cut his ‘tottie’
meaning his penis, if he did not
sign the document. In fact he said
he was threatened throughout the whole process of filling in the
document.
[52]
It is only during cross examination of Accused 1 that the details of
the threat by Captain Kriel surfaced. Accused 1 testified
that
Captain Kriel had a sharp iron which was approximately 40 centimetres
with which he threatened to cut his penis. Lt Colonel
Grobler was
laughing and encouraging Captain Kriel to cut off his penis. He
testified that when Captain Kriel testified, he was
not aware that he
is the same person who threatened him. He only recognised him when he
was leaving the witness stand, hence he
did not give instructions to
his Counsel about this aspect. He could not explain why the detail of
the threat was not put to Lt
Colonel Grobler and Captain Kriel.
[53]
It was put to Lt Colonel Grobler that he got Accused 1’s age
from the docket that was there. But under Accused 1’s
cross
examination, he stated that he did not know where he got his age from
because he did not or look at any document. He however,
confirmed
that the signature and initials on the statement were his. Initially,
Accused 1 testified that he was threatened to sign
the document.
Later during cross-examination, he said he was threatened after each
question to give an answer. He further testified
that his pants were
pulled down, he was not wearing underwear and Captain Kriel
instructed him to place his penis on the table.
This detail was never
put to the witnesses at all.
[54]
I ruled after the trial within a trial that the statement was freely
and voluntarily made and therefore admissible. I undertook
to furnish
my reasons at this stage of the proceedings. These are now my
reasons. The evidence presented by the State comes from
two highly
ranked Officers who collectively have 64 years of experience. Their
evidence was simple and straight forward with no
contradictions at
all. The role played by Captain Kriel was minimal but very important.
This evidence speaks for itself. I need
not repeat it. The questions
asked of him were shot and of a general nature. Accused 1 alleges
that they were three in the office.
Captain Kriel placed himself in
that Office and stated that he found the Accused only with Lt Colonel
Grobler.
[55]
It is inconceivable in the circumstances for Advocate Coetzern,
Counsel for Accused 1, who is an able legal representative,
to have
failed to put the version of Accused 1 to both officers. Especially
if Accused 1 was aware of the detail of the torture
at the time of
their testimonies. The detail of the torture is an afterthought.
[56]
The detail of the version of the torture more especially the role
played by the second person, should have been put to Lt Colonel
Grobler. That confirms that this version of cutting Accused 1’s
penis by Captain Kriel is false and not even an afterthought.
Continually, during trial, Accused 1 would give instructions to his
Counsel. Assuming, as he alleged, recognised Captain Kriel
when
leaving the witness stand, nothing prevented him from bringing that
to the attention of Ms Coetzern who by all means knows
what she would
have done in the circumstances. I reject his version that he was
threatened and humiliated by Captain Kriel and
Lt Colonel Grobler
into making the statement. The statement was freely and voluntarily
obtained from Accused 1.
[57]
The relevant portion of the statement was read into the record after
I had made the ruling. The essence of the statement is
about the
relationship between Accused 1 and the Tee family. The questioning
established that Accused 1 knew Aaliyah. He grew up
with her brother.
They are neighbours and he used to play at her home. Edmund knew him
very well. He grew up infront of him. He
was at Humansdorp at the
time of the death of Aaliyah at his friend’s house. The
questioning further dealt with Accused 1’s
arrest. He answered
that he was arrested at a friend’s place. He had been
there for three days because he was hiding
away from the ‘army’
because he got word that they wanted to arrest him. He had been
moving from house to house for
two weeks. The police arrived at the
house where he was with his girlfired and fired gunshots. He was
afraid. He hid under a cabinet.
They searched the house and found a
fire arm, magazine and a bullet proof vest. The fire arm belonged to
his friend Eschol and
it was found in his room. He did not use the
fire arm and it was not used in the commission of an offence.
[58]
Accused 1 testified in his defence. He stated that he was born on 24
November 1998 and was 17 years old at the time of his
arrest. He
lived at No […] B Drive in Extension 31, Bethelsdorp and was a
next door neighbour of the Tee family. He lived
with his mother,
stepfather and five siblings. He said that he had known Accused 2 for
a period of a year at the time of his arrest.
He used to spend time
with him at the smart shop. He testified that he knew Candice and
Edmund very well. He grew up in front of
them. He regularly visited
their house as he was a friend of their son. He and Zano attended the
same school i.e Strelitzia. He
used to fight a lot with Zano at
school over child issues. He never quarrelled with Candice and
Edmund.
[59]
He denied in his evidence in chief that he was a member of a gang. He
stated that on the 7
th
June 2016 he went to her mother’s friend’s house i.e Aunt
Courtney at about 17h00. He was with Aunt Courtney and her
son Zandre
Caesar. During the night, his mother arrived and told them that there
was a shooting at the Tee’s home. She and
Aunt Courtney left.
He remained with Zandre until the following morning. His house is up
the street from Aunt Courtney’s
home.
[60]
Accused 1 related an incident a few weeks before Aaliyah was killed.
He and Accused 2 were at the smart shop. Edmund approached
them
alleging that he head that they wanted to shoot him. Accused 1
assured him that was a lie because he would never shoot him.
He
suspected that it is because of that rumour that Edmund and Candice
accuse him of killing Aaliyah and injuring Edmund. He was
not with
Accused 2 on the fateful night. He denied further that he was with
him in the afternoon of that day. He did not meet with
the Tee family
that afternoon.
[61]
Accused 1 admitted that he was arrested at a friend’s house. He
was with his girlfriend. On arrival, he, his girlfriend
and his
friend, i.e owner of the house, Eddie Mazene smoked oka pipe. After a
while he and his girlfriend, went to the bedroom
and started kissing.
While in the process, the back door was kicked open and a sound like
a gunshot went off. He jumped and stood
next to the dressing table.
Police came into the bedroom and handcuffed him and caused him to sit
on the floor next to a single
bed they had been sleeping on with his
girlfriend. The police started to search the room. When they lifted
the single bed, they
found a gun, a box with ammunition and a blue
bullet proof vest. The police started to assault him by kicking and
trampling him
with booted feet on the face, head and body. He was
arrested and taken to Bethelsdorp police station. The police never
explained
his legal rights. His warning statement was obtained in the
manner described above in the trial within a trial. He denied that he
was at the Tee’s home on the night of 7 June 2016.
[62]
Under cross examination it became clear that Accused No 1 was not
certain what time he got to Aunt Courtney’s house.
His defence
Counsel put to Candice that he got to Aunt Courtney’s house at
21h00. He changed to say that he made a mistake
by saying he arrived
at Aunt Courtney’s home in the afternoon. When pressed further
it became apparent that he did not know
what time he arrived at Aunt
Connie’s home. He testified that after the report Aunt Courtney
and his mother went down to
Candice’s house. He remained at
Aunt Courtney’s home until the following morning as alluded.
[63]
It transpired during cross examination that Accused No 1 had many
tattoos on his body. Inside his right hand it was written
in capital
letters RBN 26 standing for Robana which he translated to mean
Intsizwa in Zulu. That is a strong young man. He testified
that 26 is
a group of gangsters that operate in prison. He confirmed, despite
that he had initially testified that he did not belong
to a gang
group, that he belongs to the 26 gang group. On the left hand, he was
wearing a tattoo which depicted a hand carrying
a money bag with
dollars inside it. On the right top part of the arm, it is written
two and on the left top part of the arm it
is written six. At his
scapular or shoulders two firearms are depicted which are pointed at
each other. On his belly button it
is written ‘thug live’.
On the side of the neck there is a depiction of two fingers with a
thump touching on both and
top of that an inscription of a tattoo
reading “novae”. The Accused said that matched with the
intsizwa sign on his
arm. He testified that he had to wear the tattoo
26 so as to be protected when he is in prison.
[64]
Accused No 1 was informed during cross examination that the firearm
which was found in his presence was linked ballistically
to the
murder of Aaliyah. The accused could not comment. He found it strange
that Candice, Edmund, Warrant Officer Baleni and the
other witnesses,
implicated him. He further found it strange that the firearm used in
killing Aaliyah was found in a house in which
he was. He further
could not explain why the police went to the house where he was found
bearing in mind that Warrant Officer Baleni
testified that they went
there on information that Accused 1 and 2 were in that house. Accused
No 1 did not call either Zandre
or Aunt Courtney to corroborate his
alibi.
[65]
Accused 2 testified that he was born on 3 June 1993. Initially he
stayed at his mother’s house in Extension 31, Bethelsdorp.
He
moved to his sister’s house because of police harassment. He
testified that on the day of the incident he was not at the
Tee’s
home. He was at his sister’s place. He arrived at her place at
about 17h00. He remained in doors until the following
morning. He
could not leave because he was afraid of her dogs which were vicious.
He would be escorted out of the house whenever
the dogs were not
chained. He heard that there was a shooting at Edmund’s house.
He went there to see for himself. He joined
people who were also
standing next to Edmund’s house. He left after some time.
[66]
Accused 2 testified that the previous day, he was wearing a blue Nike
top, black Levi jeans and brown Dakota shoes. He knew
Edmund as a
child he would walk pass his school. Edmund knew him as well. He used
to talk to Edmund. Edmund knew him by the nickname
Kwas. He also knew
his son, Zano from 2007. He knew Candice. He would talk to her when
he came to buy liquor from her tavern. He
would see them when they
drove pass him in the street. He denied that he ever met Edmund and
Candice at the smart shop. He did
not meet them in the afternoon of
the day of the incident. He was not in the company of Accused 1 on
that day. He has never been
at Accused 1’s house and he in turn
visited his house once in their life time.
[67]
Accused No. 2 denied that he was involved in Stal’s murder even
though he stands accused of killing him. He denied
that he was
a member of the Spotbouers gang. He admitted that he spoke to Edmund
once when the latter approached and told him that
he heard rumours
that they wanted to kill him. He denied knowledge of that rumour. He
testified that he did not killed Aaliyah
nor shot at Edmund. He had
no ill feelings towards them and would not have a reason to attack
them. He had a good relationship
with them. He knew of another person
who was called Kwas in Extension 31 but he has since died. He
stated that he was arrested
in the year 2011 and released in
September 2015 and therefore could not have been involved in the
killing of Stal.
[68]
He testified that he had tattoos on his body. NWA which is on the
inside of the right hand means he is a member of the 26 gang
in
prison. N stands for a glass which is a higher position in the gang,
the W means a wire which meant top people in the gang.
In general
terms it meant that he was the ranked high in the hierarchy of the 26
gangs in prison. Accused 2 has also a tattoo RDN
meaning a Robane. A
Robane is a robber, so he explained. There were coins which were
tattooed with the number 26 in them. He also
had tattoos which
depicted stars. He testified that they proved that he was a glass and
a leader of those below him in rank. There
were more than fifty
individuals who would report to him in prison.
[69]
The issue to be decided in this matter is whether Edmund and Candice
correctly identified the Accused. The answer to this question
is yes
they did. Both Candice and Edmund know the Accused well. I have dealt
with their prior knowledge of the Accused above. That
aspect was
confirmed by the Accused. The lights were on at the time of the
incident. The room was well lit and a human eye, as
testified by
Warrant Officer Bekker could easily see because the room was well
illuminated. According to Warrant Officer Bekker
even the doorway was
light. This confirms the evidence of Edmund and Candice. Edmund
immediately, whilst still at the scene informed
Constable Gould who
in turn conveyed the message through to the control room, that it was
the Accused who attacked them. Edmund,
whilst still in pain in
hospital identified his assaillants in the video photo parade as the
Accused.
[70]
The Tee Family had a painful experience, especially Candice who
witnessed her child die, lying in a pool of blood but still,
gave
credible evidence. They were credible witnesses whose evidence was
never shaken through cross examination. They did not contradict
each
other. I have dealt with the contradictions in the evidence of Edmund
above. They are not material and are expected from an
injured person
who was left paralyzed. Their demeanour was impeccable. They excelled
in re-living the painful events of that fateful
night. The trauma
they suffered did not affect their credibility and ability to clearly
explain what took place in their home.
[71]
The evidence of the blood splatter and reconstruction of the scene by
Warrant Officer Bekker, who did an excellent job in the
circumstances, corroborated the evidence of Candice regarding the
position Aaliyah was when she was killed. Edmund testified that
he
was shot by Accused 1 while Accused 2 was standing next to him
holding a firearm. The empty cartridge cases picked up by Warrant
Officer Bekker from the backroom were ballistically linked to the
firearm found with Accused 1 when he was arrested. The two cartridge
cases which were found in the bathtub where Aaliyah was killed were
fired from a different firearm to those cartridge cases found
in the
backroom according to the ballistic evidence of Warrant Officer
Yolandi Schoeman. This confirms the evidence of Edmund that
both
Accused were carrying a firearm each.
[72]
As alluded Edmund and Candice believed that the Accused attacked them
because they had witnessed the killing of Stahl Barry.
The firearm
found with Accused 1 is linked ballistically to the death of Stahl
Barry as shown above. The belief they harboured
is confirmed by the
evidence in respect of the firearm. I am of the firm view that that
was the motive of the attack on the Tee
family. Candice testified
that she got hold of Aaliyah and they turned their backs on the
Accused. As stated in paragraph 9 above,
one of the Accused said “fok
jou Auntie” and the other said “skiet my broer”.
This to me clearly indicates
that the Accused wanted to murder
Candice. Candice and Aaliyah were in close proximity to each other.
Two empty cartridge cases
were found in the bathroom, two bullet
fragments and one bullet were found in the bathroom as stated in
paragraph 27 above. It
is clear to me that when the Accused left they
thought they had killed everybody. Edmund also pretended to be dead
when the Accused
walked passed him.
[73]
Consequently, I found the Accused guilty of the following offences:
Count 1:
Contravention of Section 68(1) of the South African Police Services
Act
68 of 1995 i.e presenting themselves as members of the South
African Police Service whilst in actual fact they were not members.
Count 2:
Attempted Housebreaking with intent to commit murder.
Count 3:
Attempted murder of Edmund Tee
Count 4:
Housebreaking with intent to commit murder.
Count 5:
Murder
Count 6:
Attempted murder of Candice Tee.
Count 7:
Accused 1 is found guilty and Accused 2 not guilty and discharged
Count 8:
Accused 1 is found guilty and Accused 2 is found not guilty
[74] The Accused are facing one count
of attempted housebreaking. I am not in a position to find that the
State moved its case beyond
reasonable doubt in this respect of the
front door. Both Edmund and Candice testified they heard a hard knock
at the front door.
The door was never broken nor an attempt to force
it open. In respect of the back door. There was housebreaking.
Accused forced
their entry into the house by pushing the door open
while Edmund was resisting. The State has proved housebreaking in
respect of
the backdoor.
_________________________
M MAKAULA
JUDGE OF THE HIGH COURT
Counsel for the State: Adv Sandan &
Adv Landman
Director
of Public Prosecutions
Port
Elizabeth
For Accused 1: Adv J Coertzen
Legal
Aid
Port
Elizabeth
For Accused 2: Mr J Riley
Instructed by: Legal Aid
Port
Elizabeth
Conviction
Delivered: 19 June 2018