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[2018] ZAECPEHC 45
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S v Horne and Another (CC3/2018) [2018] ZAECPEHC 45 (13 August 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
In
the matter
between: Case
No: CC 3/2018
THE
STATE
And
SHAAN
HORNE
Accused No. 1
SHANE
ARENDS
Accused No. 2
Coram:
Chetty J
Heard:
1 August 2018 – 10 August 2018
Delivered:
13 August 2018
JUDGMENT
Chetty
J:
[1]
At approximately 09:25 a.m. the morning of 23 July 2016, Captain
Christian Muller
(
Muller
), whilst on
routine patrol duty in Goliath Street, Gelvandale, Port Elizabeth,
hastened to van Duuren Street in response to an
inter police radio
bulletin of a shooting incident. On his arrival at the scene within
minutes of the report, he encountered the
prone body of a male person
lying on the bottommost segment of a concrete pedestrian stairway
linking van Duuren Street to its
summit in Avalon Crescent. The rapid
bloodstream from the cadaver’s head attested to the propinquity
of the shooting and
voices within the crowd assembled in close
proximity reported that the deceased’s assailants had fled the
scene in a Gold
coloured VW Polo.
Muller
immediately conveyed the information to radio control and requested
medical assistance.
[2]
Constable
Carelse
(
Carelse
) and his
fellow officers in the Tactical response squad of the South African
Police Services were fortuitously parked in Thoroghgood
Street
with the vehicle pointing in the direction of Rabie Street when news
of the shooting and the description of the suspects’
getaway
vehicle was announced on their police radio. Almost immediately, he
observed the Polo careering down Thoroghgood Street
and violently
entering Rabie Street. It screeched to a halt whereupon four
occupants alighted and fled into the adjoining erven.
Their flight
signalled their intended route towards Durban Road and as he drove
thence,
Carelse
saw a
police vehicle entering Rabie Street. He thus turned his vehicle and
drove towards and into Durban Road where he observed
a person with a
similar pants to that which one of the fleeing suspects from the Polo
had been wearing. He instructed his colleague,
one Constable
Ngwenya
to apprehend and detain him. It is not in dispute that the person
detained was accused no. 1.
Carelse
in turn entered the yard of the premises accused no. 1 had fled out
of and observed another person clothed in a hoodie top. He
grabbed
hold of him and almost immediately observed another person in black,
who attempted to retrace his steps but was thwarted
by a policeman to
his rear who apprehended him. It is likewise not in issue that the
person whom
Carelse
arrested was
Dayne Oosthuizen
aka
Pokkels
, now
deceased. After he locked the latter in the police van,
Carelse
returned to the yard the suspects had fled through and found a hoodie
top lying next to the house. It is common cause that the
fleece top
is that depicted on exhibit “E”, photographs 17 and 18.
[3]
Constable
Marvin Slater
(
Slater
), attached to
the Gelvandale Police Station was simultaneously engaged in routine
patrol operations along Standford Road near the
graveyard when a
report of the shooting and flight of the suspects echoed through the
vehicle radio. The information conveyed apropos
its direction of
travel intuited his own path and whilst driving he observed the Gold
Polo turning into Rabie Street, in Korsten
and pursued it. When he
entered the street he found the Polo stationary and persons scurrying
away. One them he recognised as
Dayne
aka
Pokkels
. He
stopped his own vehicle and pursued them. He scaled the back wall of
the premises in hot pursuit and found a person clothed
in black
standing at the side of the house holding a firearm. He, i.e.
Slater
fired two shots and ordered the person, whom it is common cause was
accused no. 2, to throw the firearm onto the ground. The latter
duly
complied whereafter
Slater
handcuffed him and secured the firearm.
[4]
The two accused and
Dayne Oosthuizen
(
Pokkels
) were duly
arrested and charged with the murder of the deceased;
Pokkels
has since died and the two accused now stand arraigned for trial on
charges of theft, murder, the unlawful possession of a firearm
and
the unlawful possession of ammunition. Accused no. 1 pleaded not
guilty to all the counts whilst accused no. 2 pleaded not
guilty to
counts 1 and 2 but tendered a guilty plea to counts 3 and 4. In his
written plea explanation he adverted to the circumstances
surrounding
the commission of the offences and recounted them as follows –
“
(a) On 23 July
2016 I was visiting my friend Daniel at […] B. Street in
Gelvandale. I was planning on attending a funeral
service of another
friend named Shaffer. Soon after 09h00 Accused 1, the now deceased
co-accused Dayne Oosthuizen (“Dayne”)
and one unknown man
came to fetch me in a goldish colour VW Polo. Dayne said we must go
for a drive. Dayne was driving the vehicle
whilst Accused 1 was
seated in the front passenger seat. I was seated in the right rear
passenger seat behind the driver.
(b) Dayne did not say
where we were going but he proceeded to drive around and drive in
Avalon Street in Gelvandale. In Avalon Street
Dayne suddenly stopped
the vehicle and Accused 1 suddenly jumped out of the vehicle. I then
noticed for the first time that Accused
1 had a firearm in his
possession which he removed from his hoodie top. It was a black in
colour revolver.
(c) Accused 1 then chased
an unknown male person down an alley between the house leading to Van
Duuren Street. Accused 1 then fired
one (1) shot into the direction
of this unknown male person who was running away from him. Accused 1
then fired a second shot in
his direction. This unknown person fell
to the ground. Accused 1 then further approached this unknown person
and fired two (2)
or three (3) shot at close range in the direction
of the unknown male person. Dayne, the unknown male occupant of the
vehicle and
I were seated in the vehicle. I had no idea that this was
going to happen.
(d) After Accused 1 fired
the shots he returned to the vehicle. Dayne then chased away and
drove in the direction of Korsten. Dayne
then drove into another
vehicle and caused an accident with a Red Toyota Tazz. He kept on
driving. A South African Police vehicle
was then chasing the VW Polo
we were travelling in and at a certain point in Rabie Street,
Schauderville, Port Elizabeth, The VW
Polo came to a standstill.
(e) Accused 1 then threw
the firearm back on my lap at the backseat and at that stage I heard
shots being fired and I grabbed the
firearm and ran away. It was
police members firing shots in the direction of Accused 1. I was then
apprehended by the police in
the nearby property whilst in possession
of the firearm.”
Although
accused no. 1 declined to proffer any plea explanation, his own
evidence placed him on the scene and in the Polo at all
relevant
times. The crux of his defence, as it emerged during his testimony,
was that shortly after being escorted into the Polo
at one
Daniel’s
home on the morning of 23 July 2016, he fell asleep and was only
aroused therefrom when the Polo collided with the red Toyota Tazz
in
Highfield Road later the morning.
[5]
A gravamen of the charges preferred against the two accused is that
they acted in concert and in the execution of a common purpose
and it
is apposite to emphasize that it is not in issue that the scene of
the shooting is an area under the control of the Dustlife
gang, a
bitter adversary of their nemesis, the Upstand Dogs. The only witness
who testified on behalf of the state concerning the
events which
unfolded on that fateful morning was Mr
Jonathan
Swartbooi
(
Swartbooi
),
an admitted member of the Dustlifes. He recounted how the Polo
entered Avalon Crescent from the direction of Daphne Street, passed
him, came to stop some 15 to 20 metres away in front of an electrical
substation whereupon accused no. 1 alighted, ran towards
the stairway
and along it in pursuit of the deceased and shot him before returning
to the vehicle which drove off.
Swartbooi
was a thoroughly unimpressive witness and his account of the events
which unfolded is clearly a reconstruction. Whilst I accept
that he
was positioned in one
Capone’s
erf when the Gold Polo entered Avalon Crescent, I can place no
reliance on his narrative of the
sequelae
save the correctness of his identification that accused no.’s 1
and 2 were two of the occupants of the vehicle.
[6]
The only other direct evidence concerning the shooting of the
deceased was that tendered by accused no. 2, in essence a detailed
reiteration of his plea explanation. The evidence of one accused is
admissible against any co-accused as any other witness. In
the
assessment of such testimony, in effect, accomplice evidence, the
cautionary rule applies. The correct approach to such evidence
is
that as formulated by Holmes JA in
S
v Hlapezula and Others
[1]
where the learned judge state: -
“
It is well settled
that the testimony of an accomplice requires particular scrutiny
because of the cumulative effect of the following
factors. First, he
is a self-confessed criminal. Second, various considerations may lead
him falsely to implicate the accused,
for example, a desire to shield
a culprit or particularly where he has not been sentenced, the hope
of clemency. Third, by reason
of his inside knowledge, he has a
deceptive facility for convincing description – his only
fiction being the substitution
of the accused for the culprit.
Accordingly, even where sec. 257 of the Code has been satisfied,
there has grown up a cautionary
rule of practice requiring (a)
recognition by the trial Court of the aforegoing dangers, and (b) the
safeguard of some factor reducing
the risk of a wrong conviction,
such as corroboration implicating the accused in the commission of
the offence, or the absence
of gainsaying evidence from him. Or his
mendacity as a witness, or the implication by the accomplice of
someone near and dear to
him; see in particular
R.
v Ncanana
,
1948 (4) S.A. 399
(A.D.) at pp.
405-6;
R. v Gumede
,
1949 (3) S.A. 749
(A.D.) at p. 758;
R. v
Nqamtweni and Another
,
1959 (1) S.A. 894
(A.D.) at pp. 897G-898D. Satisfaction of the cautionary rule does not
necessarily warrant a conviction, for the ultimate requirement
is
proof beyond reasonable doubt, and this depends upon an appraisal of
all the evidence and the degree of the safeguard aforementioned.”
[7]
There are a plethora of factors which vouchsafe the veracity of
accused no. 2’s fingering of accused no. 1 as the arch
villain.
It is not in issue that accused no. 1 was an occupant of the Gold
Polo at the time of the shooting. His evidence that
he was in a
comatose state, oblivious to his whereabouts, is not only nonsensical
but a complete fabrication advanced to provide
some explanation for
the presence of gunpowder residue on his hands. It is common cause
that shortly after his arrest accused no.
1 and the other arrestees
were transported to the Mount Road police station where Warrant
Office
Kevin Cecil Swartbooi
(Warrant Office
Swartbooi
)
conducted prime residue tests of their hands. In her testimony
Lieutenant Colonel
Noneke Gogela
(
Gogela
) confirmed
that upon analysis of the samples collected by Warrant Officer
Swartbooi
from accused
no. 1, it tested positive for gunpowder residue.
[8]
The presence of gunpowder residue foretold of dire consequences for
the accused and an explanation had accordingly to be sought
but there
was a hurdle to overcome. After his arrest accused no. 1 instructed
his erstwhile attorney, one
Bence
,
to have him admitted to bail. The application was brought on
affidavits deposed to by accused no. 1 and two (2) supporting
witnesses,
its collective import, an alibi, that the accused was
nowhere near the scene of the shooting. The presiding magistrate, for
reasons
which invite only bewilderment, acquiesced in the application
and admitted accused no. 1 to bail. The recantation of the alibi
during his testimony before me was, notwithstanding Mr
Bodlo’s
reticence to concede the obvious, triggered by the gunpowder residue
test result. It is wholly unnecessary to undertake any intensive
analysis of accused no. 1’s testimony for, as it unfolded, its
concocted nature was laid bare. I am satisfied that there
are
sufficient safeguards to conclude that accused no. 2’s account
of the shooting of the deceased is truthful, reliable
and establishes
that in firing repeatedly at the deceased, accused no. 1 had the
direct intent to kill. His possession of the firearm
and ammunition
has likewise clearly been established.
[9]
In his submissions before me, Mr
Sandan
urged me to convict accused no. 2 as an accessory after the fact.
Sec. 257 of the
Criminal
Procedure Act
[2]
provides as follows –
“
If the evidence in
criminal proceedings does not prove the commission of the offence
charged but proves that the accused is guilty
as an accessory after
that offence or any other offence of which he may be convicted on the
offence charged, the accused may be
found guilty as an accessory
after that offence or, as the case may be, such other offence, and
shall, in the absence of any punishment
expressly provided by the
law, be liable to punishment at the discretion of the court: Provided
that such punishment shall not
exceed the punishment which may be
imposed in respect of the offence with reference to which the accused
is convicted as an accessory.”
[10]
It is trite law that in order to sustain a conviction of being an
accessory after the fact, the state is required to prove
that the
accused performed some acts(s) intended to assist the main
perpetrator to escape his/her own conviction. The sole ground
advanced warranting such conviction relates to accused no. 2’s
acts apropos the firearm. It is admittedly so that accused
no. 2
advanced two conflicting versions concerning its possession. When the
evidence is viewed holistically however, the inference
cannot be
sustained that in fleeing from the vehicle with the firearm, accused
no. 2 intended to assist accused no. 1. On the probabilities,
his
conduct is rather the product of instinctive behaviour. I am
unpersauded that there is any legal basis to found the conviction
contended for.
[11]
Counsel for the state has fairly conceded that there is no evidence
implicating the accused in the commission of count 1 and
in the
result, the accused are convicted as follows:
1.
On
count 1, theft, both accused are acquitted.
2.
On
count 2, Murder, accused no. 1 is convicted as charged whilst accused
no. 2 is found not guilty and is acquitted.
3.
Accused no.’s 1 and 2 are found guilty as
charged on counts 3 and 4.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the State: Adv M Sandan / Adv R Ahmed
National
Director of Public Prosecutions, Uitenhage Road, North End, Port
Elizabeth
Tel:
(012) 842 1400
Obo
the Defence: Mr Bodlo/ Adv J. Coertzen
Legal
Aid South Africa, Uitenhage Road, North End Port Elizabeth
Tel:
(041) 402 2800
[1]
1965 (4) SA 439
(A) at 440D-H
[2]
Act No, 51 of 1977