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
>>
2019
>>
[2019] ZAECPEHC 85
|
|
S v Kammies and Others (1727/2019) [2019] ZAECPEHC 85 (9 December 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 1727/2019
Date
heard: 23 – 26, 30 September 2019;
25
– 28 November 2019
Date
delivered: 9 December 2019
NOT
REPORTABLE
In
the matter
between:
THE
STATE
And
DAMIAN
KAMMIES
Accused 1
DEILON
MAKOPPA
Accused 2
KURT
BOSMAN
Accused 3
WARREN
STEYN
Accused 6
JUDGMENT
Goosen
J:
[1]
The accused are charged with several offences arising from events
alleged
to have occurred on or about 19 November 2016 at various
locations in Port Elizabeth. When the trial commenced there
were
six accused charged with 15 separate offences. At the conclusion
of the state case an application for discharge was brought on behalf
of each of the accused. The application was refused in relation to
some of the accused in respect of specified offences. It was
granted
in relation to certain charges preferred against the accused. Accused
4 and 5 were discharged on all counts.
[2]
It is appropriate therefore to record the charges which remain to be
considered:
(a)
Accused 1 and 6 were put to their defence in relation to counts 1 to
5,
and
(b)
Accused 1, 2 and 3 were put to their defence in relation to counts 6
to
10.
[3]
Counts 1 to 5 concern events that are alleged to have occurred
at
67 Gideon Road, Schauderville, Port Elizabeth on the morning of 19
November 2016. The state alleges that on the said morning the
accused
(for present purposes accused 1 and 6) acting with a common purpose
broke into the house at 67 Gideon Road. It is alleged
that they
kidnapped Mohammed Abdullah (a.k.a Mielie) and thereafter at or in
the vicinity of Malabar, Port Elizabeth killed him
by shooting him
with a firearm. It is alleged that the accused were in unlawful
possession of a firearm and ammunition.
[4]
Counts 6 to 10 concern events that are also alleged to have occurred
on
the morning of 19 November 2016. The state alleges that on the
said morning the accused (for present purposes accused 1, 2 and 3)
arrived at a property off Lawler Street, Schauderville and there
assaulted one Franklin Matthys; attempted to murder one Nigel
Matthys; kidnapped Franklin Matthys forcing him to take them to the
home of Deon Matthys at 165 Lawler Street where they killed
Deon
Matthys by shooting him with a firearm. It is alleged that the
accused were in unlawful possession of firearms and ammunition.
[5]
The accused pleaded not guilty to all charges. Each pleaded an alibi.
The alibis pleaded by the accused shared common features, although
(as will be apparent from discussion of the evidence of the accused
later in this judgment) the specific alibis raised differed slightly
as between the accused. The common feature of the alibis pleaded
was
that all of the accused had, on the night of 18 November 2016, been
in each other’s company attending a braai held at
Crystal
Heights (a block of apartments) in Glendenning Road, Schauderville.
The accused denied involvement in the commission of
the offences
pleading:
(i)
In the case of accused 1, that at the times of the commission
of the
offences he was either at No. 2 Crystal Heights or asleep in his own
apartment at No. 6 Emerald Court, also part of the
same apartment
complex;
(ii)
In the case of accused 2, that he was at the times of the commission
of the offences at/outside 2 Crystal Heights in the company of
accused 6 and Jonathan van Rhyn, a.k.a China.
(iii)
In the case of accused 3, that he was asleep at 2 Crystal Heights
with his
girlfriend and upon being woken proceeded to the apartment
of his girlfriend which apartment was also situated in the same
apartment
complex.
(iv)
In the case of accused 6, that he was at the time of the commission
of the
offences at or outside 2 Crystal Heights in the company of
accused 2 and Jonathan van Rhyn, a.k.a China.
[6]
The state
led the evidence of a number of witnesses. Several witnesses
testified in relation to charges for which the accused were
discharged. I do not consider it necessary to recount that evidence
save where it may bear upon the testimony of witnesses relevant
to
the remaining counts against the accused. Formal evidence, in the
form of admissions made in terms of s 220 of the
Criminal
Procedure Act
[1]
was also presented.
[7]
Based on these admissions it was established that the deceased in
count
5 was Mohammed Gamaldien Abdullah (a.k.a Mielie). He died on 19
November 2016 as a result of gunshot wounds to the head with blunt
force chest injuries. His body was found and recovered from alongside
a roadway in Malabar on the morning of 19 November 2016,
in a
vicinity opposite the Malabar Cemetery.
[8]
It was also established, by way of admissions, that the deceased in
count
6 was Deon Matthys. He died on 19 November 2016 as a result of
a perforating gunshot wound to the chest. His body was recovered
from
inside a backyard dwelling at 165 Lawler Street, Schauderville.
[9]
Formally admitted evidence also related to photograph albums,
depicting
the various scenes, aerial photographs depicting the
interrelationship and proximity of various locations relevant to the
crimes;
and exhibits recovered from the scenes. I shall refer to
these only where necessary in the discussion of the evidence
presented
by the main witnesses.
[10]
Before dealing with the main witnesses in relation to the two crime
events which gave rise
to the remaining charges, a general comment on
the witnesses called by the state is appropriate.
[11]
The witnesses Neville Bruintjies, Clodene Booysen, Merinda Kock and
Roelene Campher testified
in relation to counts 12 to 14, viz. arson
charges that arose from events at Riverside (an informal settlement)
on Highfield Road,
Malabar early on the morning of 19 November 2016.
In the judgment on the s 174 application I remarked that the evidence
of Neville
Bruintjies and Roelene Campher was of very poor quality.
Since Booysen and Kock did not implicate any of the accused there
was
no reliable evidence upon which a court might reasonably convict the
accused on those counts.
[12]
Bruintjies and Campher’s evidence has some relevance to the
evidence of Luciano Kiddo
who was the principal eyewitness in
relation to counts 1 to 5. I shall for this reason deal with their
evidence insofar as it is
relevant to the evidence of Kiddo.
[13]
There is, however, one aspect regarding the evidence of Bruintjies
which should be highlighted
since it formed the subject of some
debate regarding an alleged motive for the commission of the
offences. I deal with the argument
hereunder. For the present it is
recorded that Neville Bruintjies’ evidence was that on the
night of 18 November 2016 or
very early hours of 19 November 2016 he
and a friend, Austen, had walked from Riverside to a tavern in Lawler
Street, Schauderville
(Milton’s Place) to buy mandrax. When he
was at the tavern several of the accused arrived (he claimed it was
the erstwhile
accused 5 and accused 6). He became involved in a fight
with accused 6. They struggled for possession of a firearm.
Bruintjies
dispossessed accused 6 of the firearm whereupon accused 6
and the others fled. He claimed that they made their escape in a
white
Corsa bakkie which he identified as belonging to accused 1.
Bruintjies then made his way back to Riverside arriving back after
dawn. His further evidence, which I do not intend recounting,
concerns the subsequent events are Riverside giving rise to the arson
charges already referred to. His testimony implicated a number of the
accused, explaining that those events were in response or
relation to
what had occurred at the tavern when he took a firearm off accused 6.
[14]
I turn now
to the evidence presented by the state in respect of counts 6 to 10
and thereafter in respect of counts 1 to 5
[2]
.
The
events at Gideon Street
[15]
Luciano Kiddo testified that on the morning of 19 November 2016, at
daybreak, he was awoken
by the sound of the front door of 67 Gideon
Street being kicked open. He had been asleep in a room at the rear of
the house with
his partner and two children. The house was that of
his friend, Mielie. Mielie was asleep on the floor in the same room.
He saw three men enter the room. He recognized them as people known
to him. They were accused 1 (known by the nickname Oom Jan),
accused
6 (a.k.a Wakka) and one Pokkel.
[16]
Accused 1 was brandishing a firearm, a chrome coloured revolver. He
spoke in crude language
enquiring about the whereabouts of China
(this being the nickname of Neville Bruintjies). He wanted to know
his whereabouts because
he had a firearm belonging to accused 1. Both
Mielie and Kiddo told accused 1 that China was not there; that they
had not seen
him. Accused 1, 6 and Pokkel then left. Kiddo told his
partner to leave with their child. A short while later the three men
returned.
Kiddo was in the kitchen and made his escape out of the
window. He stated that he heard accused 1 and accused 6 speaking. He
was
hiding alongside the house. He then saw accused 6 and Pokkel
place Mielie into the back of a white Corsa bakkie. He said he
recognized
it as accused 1’s bakkie. The bakkie then drove
off.
[17]
He said that he then set off towards Riverside so that he could warn
Bruintjies that people
were looking for him. According to the
photographs, including the aerial photographs adduced in evidence (as
also the minute of
the inspection
in loco
), Gideon Street
leads into Gelvan Street at its western end. Gelvan Street proceeds
in a northerly direction along a ridge which
overlooks and is
parallel to the N2 highway. Gelvan Street is separated from the
highway by a steep bushy area. From the area where
Gideon Street
turns into Gelvan Street the Riverside settlement alongside Highfield
Road can be seen in a westerly direction some
1 kilometre distant.
[18]
Luciano Kiddo explained that he walked along Gideon Street towards
Gelvan Street. He then
entered the bushy area alongside Gelvan Street
and walked down towards the N2 highway. He met Bruintjies (a.k.a
China) and Roelene
Campher who were coming up the hill towards Gelvan
Street. He told them what had happened at the house in Gideon Street
and that
accused 1 was looking for him, Bruintjies. According to
Kiddo, Bruintjies told him of an incident at Milton’s Place and
what
had occurred earlier at Riverside.
[19]
The three of them then started walking back towards Riverside.
According to Kiddo he decided
to first go to check on his partner and
children before making his way towards Riverside. He later met
Bruintjies and Campher where
they were seated in a bushy area behind
the Much Asphalt factory. They proceeded to the quarry where they
smoked Mandrax. Whilst
there Roelene said that there is a bakkie at
the shacks. He did not pay attention. Shortly thereafter Roelene said
there was a
fire at the shacks.
[20]
Kiddo went to the shack fire together with Neville Bruintjies and
Roelene Campher. He was
present when the police arrived. Whilst there
he heard a report on the police radio about a body having been found
at Malabar.
He told the police what had happened earlier that
morning. He was taken by the police to the place where the body was
found. He
identified the deceased as his friend, Mielie.
[21]
According to Kiddo the bakkie that was at Riverside before the fire
started was a white
Corsa bakkie without a canopy. He said, when he
was at Riverside he saw the same bakkie driving alongside Gelvan
Street. Shortly
after that, he saw smoke coming from the area where
the house at 67 Gideon Street is located.
The
events at Lawler Street
[22]
Franklin Matthys testified that on the morning of 19 November 2016 he
was at Milton’s
Place, a tavern off Lawler Street,
Schauderville. He was in the company of Tubby Jones, Charmaine Jones,
Nigel Matthys, and Devon
Haan. Accused 1 (Oom Jan); accused 2
(Makoppa) and accused 3 arrived at the tavern. They were all known to
him. Accused 1 was brandishing
a chrome coloured firearm. Accused 2
carried a baseball bat. Accused 1 wanted to know the whereabouts of
Neville Bruintjies a.k.a
China. When they said they did not know,
accused 2 assaulted Neville by hitting him with a baseball bat. He
was then assaulted.
When Neville was struck with the baseball bat it
broke. The accused demanded to be taken to the house of Deon Matthys.
They then
took Franklin out of the tavern and he walked with them
along Lawler Street to the house where his cousin Deon Matthys was
living.
[23]
Franklin stated that he directed them to the backyard shack. When
they got to the back
of the house he was made to sit on the rear
step. Accused 3 remained with him. He then had in his possession a
firearm. Accused
1 and 2 entered the shack. Shortly after doing so
firearm shots sounded. Deon Matthys’ partner Mandolise came
running out
of the shack and fled. Accused 1 and 2 then emerged. They
came to where he was seated on the step. Accused 1 said to him that
he
must say nothing. The three accused then left. He did not enter
the shack. He left. A short while later that morning the body of
Deon
Matthys was found in the backyard dwelling at 165 Lawler Street. He
had died as a result of a gunshot wound.
[24]
In the evaluation of the totality of the evidence later in this
judgment I will deal, where
necessary, with the evidence presented in
relation to the two crime scenes. For the present it suffices to
state that the only
evidence implicating the accused in the
commission of these offences was that set out in the evidence of the
two witnesses.
The
defence case
[25]
As indicated each of the accused relied upon an alibi. Each of the
accused testified in
his defence. In the case of accused 2 and 3
witnesses were called to support their evidence as to alibi.
[26]
Accused 1 explained that on the night of 18 December and early
morning of 19 December 2016
he had attended a braai at the
Glendenning Flats. The braai was organised to celebrate the release
on bail of two friends, viz.
the erstwhile accused 4 and accused 6.
They had been granted bail on the 18
th
and when informed
of this he (accused 1) had gone to the New Law Courts to pay the bail
and collect them. The braai was attended
by all of the accused and
some of their partners.
[27]
According to accused 1, accused 6 had become drunk and had fallen
asleep on the bed in
2 Crystal Heights. Accused 2’s girlfriend
had arrived to collect him and they left earlier that evening. He,
accused 3, whom
he knew but had not spent time with before and the
others remained drinking at 2 Crystal Heights. During the course of
the night
his girlfriend asked him to walk her home which he did. He
returned to 2 Crystal Heights and continued drinking. In the early
hours
of the morning accused 4’s mother arrived. She asked for
money to buy cider. Accused 1 accompanied her back to his flat so
that he could give her money.
[28]
Accused 1 then went to sleep. He was woken later that morning to be
told that the police
had arrived and that they were removing his
Corsa bakkie, he was not in a state to get up and so remained in bed.
He emerged later
that day to be told that the police had arrived at
the flats and had impounded his car. He was arrested later that day.
[29]
Accused 2 stated that he had attended the braai. He had remained
until approximately 8
p.m. after they had eaten. His girlfriend then
arrived and the two of them left. They went out for entertainment at
the Boardwalk
on the beachfront. The following morning a friend,
Jonathan Van Rhyn came to his house. He wanted to smoke a hookah
pipe. Accused
2 and he then walked the short distance from his home
to the Glendenning Flats. He went into 2 Crystal Heights to retrieve
the
pipe. Accused 6 and some other friends were there. They went
outside to smoke the pipe. They stood at accused 1’s Corsa
bakkie.
They shared some beer that Van Rhyn had in his possession.
[30]
Whilst they were standing there he heard several gunshots. The sound
came from the direction
of Highfield Road. He and accused 6 went
inside to smoke the pipe. Van Rhyn left to buy more beer. Later
whilst standing near the
Corsa bakkie the police arrived. They seized
the bakkie belonging to accused 1.
[31]
That afternoon accused 2 was arrested. He explained that on being
informed of the reason
for his arrest he denied involvement. He told
the police that he was at Glendenning Flats at the time. He stated
that he was near
Glynn Carelse’s house and that this would have
been recorded on CCTV cameras at the house.
[32]
Van Rhyn testified that on the morning of 19 November 2016 he had
gone to the Glendenning
Flats to look for accused 2. When he found
that he was not there he walked the short distance to accused 2’s
house. The two
of them then returned to the flats so they could drink
and smoke a pipe. He confirmed they were standing outside when he
heard
shots being fired. It sounded like they were fired at or near
Highfield Road.
[33]
Accused 3 testified that his girlfriend, Charmelle, who is a friend
of accused 1’s
girlfriend, invited him to attend a braai to be
held on the evening of 18 November 2016. He had not socialized with
accused 1 before.
He knew accused 2 though. He and his girlfriend
attended the braai.
[34]
During the course of the evening he received a telephone call from
his father who asked
him to buy him a lottery ticket. Accused 3 then
went home, collected the money and went to a nearby café to
buy the ticket.
On the way back home Franklin Matthys, with whom he
had a previous altercation, attempted to rob him. He was able to
avoid the
robbery and hastened home. When he got home he told his
father what had happened. His father knew Matthys’ father and
had
previously spoken to him about Franklin Matthys’ behaviour.
Although accused 3 did not see his sister he was aware that she
was
present in the house in her bedroom. After dropping off the ticket he
returned to the flats in Glendenning Road.
[35]
On his arrival accused 1 was not there. He went inside and spoke to
the women who were
present, including his girlfriend. Accused 1 then
returned. They sat in the lounge where accused 6 was asleep on a bed
and drank
and talked.
[36]
They continued in this fashion until the very early hours of the
morning. His girlfriend
and the other women had fallen asleep on a
bed. At some stage accused 4’s mother arrived looking for him.
She asked accused
1 for money for drinks and he took her to his flat
to give her money for drinks. Accused 3 fell asleep on the bed
alongside his
girlfriend.
[37]
He was awoken by his girlfriend who told him that Shamila wanted to
clean the house. He
got up and went to a friend’s flat in the
same block. After being there for a while his girlfriend called him
and they then
walked to her apartment. On the way there he saw
accused 2 and 6 standing outside Crystal Heights. He and his
girlfriend spent
the day at her apartment. He denied being involved
in the events at Lawler Street. He was arrested that afternoon when
the police
arrived at 3 Crystal Heights where he was with his friend,
Sheldon. He was arrested apparently because a firearm was found under
the bed he was sitting on.
[38]
Charmelle Paterson, accused 3’s girlfriend, testified in his
defence. She confirmed
that they had attended the braai; that she had
gone to sleep on a bed along with some of the other women. She said
that she awoke
at about 5:00 a.m. Accused 1 and 3 were still awake
drinking. She stated that one Yolande came looking for accused 4.
Accused
1 left with her to give her money with which to buy ciders.
At that stage accused 3 came to lie down on the bed with her. He fell
asleep. When she awoke again he was still sleeping. She woke him when
Shamila wanted to clean the apartment. Accused 3 went next
door.
After they had cleaned up she called him and they went to her
apartment in Ruby Heights.
[39]
Accused 3 also tendered the evidence of Mr Carstens, the Headmaster
of Excelsior Primary
School. His evidence concerned the question as
to when accused 3 attended the school. For reasons that will become
apparent later
it is unnecessary to deal with this aspect any
further.
[40]
Accused 6 also testified. His evidence was brief. He stated that he
attended the braai
which was held to celebrate his release on bail.
He was responsible for braaing the meat. He was drinking with the
other accused
who attended. After the food was served they continued
to drink and he fell asleep on a bed in the lounge of 2 Crystal
Heights.
He was awoken the next morning by three of his friends who
wanted to smoke a hookah pipe. He got up, went outside to prepare the
pipe and came inside to smoke it with them. Later that morning
accused 2 came and said he wanted to smoke a pipe. He again went
outside to prepare the pipe. China was there. They drank some Flying
Fish beer and when van Rhyn (China) went to buy more beer,
he and
accused 2 went in to smoke the pipe.
Evaluation
and Assessment of the evidence
[41]
Mr Sandan, for the state, readily conceded that the witness, Neville
Bruintjies was not
a good witness. His evidence (and that of Roelene
Campher) could, in its detail, be disregarded. However, he submitted
that his
evidence establishes the context in which the events
occurred. In this respect it provided insight into what motive
underlay the
commission of the offences.
[42]
Mr Sandan submitted that it must be accepted that Bruintjies had been
involved in an incident
at Milton’s Place early on the morning
of 19 November as a result of which he came to be in possession of a
firearm. It was
this that triggered the events that followed. There
was evidence that some persons (members of the Spotbouer gang and
including
some of the accused) had come looking for Bruintjies at
Riverside on two occasions. Kiddo testified to the fact that accused
1,
6 and a Pokkel were looking for Bruintjies and that this related
to a firearm.
[43]
Franklin Matthys, who was at Milton’s Place on the morning of
19 November testified
that accused 1, 2 and 3 came looking for
Bruintjies there. This evidence suggests that Bruintjies’
description of what occurred
is reliable as a background explanation
for the sequence of events that followed.
[44]
Evidence of
an accused’s motive for the commission of an offence is
generally relevant to the determination of intention or
identity
[3]
.
In the present instance no question arose regarding the admissibility
of Bruintjies’ evidence. It was tendered as part of
the
narrative of events giving rise to the alleged commission of offences
which occurred at Riverside. The accused were all discharged
from
those charges on the basis, as explained in the judgment on the s 174
application, that the evidence implicating the accused
was of such
quality that no reasonable court could convict thereon. The question
that now arises is what probative value, if any,
does the narrative
evidence have in relation to the remaining offences. The answer to
this, it seems to me, must be very little.
The identity of the
perpetrators of the offences at Gideon Street and Lawler Street and
their intention is to be determined on
the basis of the credibility
and reliability of the witnesses to those events and not the
existence of an underlying motive. It
is with this in mind that I
turn to this evidence.
[45]
It is a trite principle that the state bears the onus to prove all of
the elements of a
crime beyond a reasonable doubt. In deciding
whether the onus has been discharged the court must consider the
evidence in its totality.
Each piece of evidence must be taken into
account and its effect, if accepted, upon every other piece of
evidence must be carefully
weighed and considered.
[46]
An accused person bears no onus to prove his or her version of
events. It suffices if the
evidence of an accused or that tendered on
his/her behalf raises sufficient doubt in the mind of the trier of
fact that the court
is not satisfied beyond a reasonable doubt that
the evidence of the state must be accepted. This test, and what
constitutes proof
beyond a reasonable doubt has been articulated a
great many times by our courts. It is apposite, however, to call it
to mind.
[47]
In
S
v Van der Meyden
[4]
it was said:
“
The onus of proof
in a criminal case is discharged by the State if the evidence
establishes the guilt of the accused beyond reasonable
doubt. The
corollary is that he is entitled to be acquitted if it is reasonably
possible that he might be innocent (see, for example,
R v Difford
1937 AD 370
at 373 and 383). These are not separate and independent
tests, but the expression of the same test when viewed from opposite
perspectives.
In order to convict, the evidence must establish the
guilt of the accused beyond reasonable doubt, which will be so only
if there
is at the same time no reasonable possibility that an
innocent explanation which has been put forward might be true. The
two are
inseparable, each being the logical corollary of the other.
In
whichever form the test is expressed, it must be satisfied upon a
consideration of all the evidence. A court does not look at
the
evidence implicating the accused in isolation in order to determine
whether there is proof beyond reasonable doubt, and so
too does it
not look at the exculpatory evidence in isolation in order to
determine whether it is reasonably possible that it might
be true. In
R v Hlongwane
1959 (3) SA 337
(A), after pointing out that an accused
must be acquitted if an alibi might reasonably be true, Holmes AJA
said the following at
340H-341B, which applies equally to any other
defence which might present itself:
'But it is important to
bear in mind that in applying this test, the alibi does not have to
be considered in isolation . . . . The
correct approach is to
consider the alibi in the light of the totality of the evidence in
the case, and the Court's impressions
of the witnesses.'
Counsel
for the accused referred us to three cases which are frequently cited
in this Court in elaboration upon that test. In S
v Kubeka
1982 (1)
SA 534
(W) Slomowitz AJ said the following at 537F - H:
'Whether I subjectively
disbelieve (the accused) is not the test. I need not even reject the
State case in order to acquit him.
I am bound to acquit him if there
exists a reasonable possibility that his evidence may be true.'”
[48]
In this case the accused each rely upon an alibi defence. The
evidence as to alibi must,
therefore, be considered within the
totality of the evidence. The impression created by the witnesses and
question as to their
credibility and reliability bear upon the
conspectus of the evidence.
[49]
It should be stated, before dealing with this latter aspect that
issues of identity do
not arise. Although there was some dispute
regarding the extent to which the witnesses Kiddo and Matthys knew
each of the accused
there was no doubt that they knew the accused and
had had sufficient contact with and even dealings with each of the
accused as
would render them readily recognizable and identifiable.
Nor was there scope for the identification of the perpetrators at
Gideon
Street or Lawler Street to be undermined by factors such as
lighting; opportunity for observation and the like. The accused
contended
that they were not present relying upon their alibis and
that the evidence given by the two key witnesses was false.
[50]
Mr Sandan argued that both Luciano Kiddo and Franklin Matthys were
credible and reliable
witnesses. In the case of Kiddo it was
submitted that he was a very scared witness. This was evident from
his conduct and demeanour
whilst in the witness box. He positioned
himself in a way which avoided any eye contact with the accused or
with defence counsel.
He appeared quite terrified despite assurances
given to him.
[51]
It was also submitted that he was not a highly educated or
sophisticated individual. He
cannot be criticized for this. His
evidence, it was submitted, was simple and was given without
exaggeration or elaboration. The
fact that he did not in any way
ascribe a greater role to either accused 6 or Pokkel points to honest
and adds to his credibility.
Mr Sandan accepted that there were
contradictions between his evidence and that of Neville Bruintjies,
regarding where they met
and what was reported, but these were
immaterial to the essence of his evidence. It was argued that
notwithstanding the application
of the cautionary rule applicable to
a single witness, his evidence should be accepted as credible and
reliable.
[52]
Mr Nel, for accused 1, submitted that Kiddo was not a reliable
witness. He pointed in this
regard to his assertion that the events
occurred on a Thursday morning and not, as other evidence
established, a Saturday morning.
He pointed also to the assertion, by
accused 6, that Pokkel was then in St Albans. This was not gainsaid
by the state. Mr Nel also
argued that the evidence regarding the
bakkie changed, first it was with a canopy then without. It was also,
he submitted “
a ubiquitous bakkie
”.
[53]
Relying on the contradictions between Neville Bruintjies and Roelene
Campher on the one
hand and Kiddo on the other it was submitted that
Kiddo’s evidence regarding events at Gideon Street was false.
[54]
Kiddo was unequivocal in his evidence that when Mielie was placed in
the bakkie it had
a canopy. Insofar as he saw a bakkie at Riverside
he could not say if it was the same bakkie. The assertion that the
bakkie which
was seen by Bruintjies and Campher did not have a canopy
does not detract from his evidence. It was Kiddo’s evidence
that
a person who called himself Pokkel was present. He did not know
him. The fact that accused 6 might know a Pokkel who might have
been
in prison does not render Kiddo’s evidence a fabrication. In
any event to the extent that the person Pokkel to whom
Kiddo referred
as being present could prove that he was not there (and this was
known to accused 6) such witness could have been
called by him.
[55]
In my view, Kiddo was indeed an honest and reliable witness. His
evidence places accused
1 and 6 at Gideon Street at sunrise on the
morning of 19 November 2016. It places accused 1 in possession of a
firearm and it establishes
that the deceased Mielie was taken from
Gideon Street by the accused in the back of a white Corsa bakkie.
[56]
What is the effect of this upon the evidence regarding accused 1 and
6’s respective
alibis? In the case of accused 1, he left 2
Crystal Heights at some time around 5:00 a.m. He did not provide a
time. However, Charmelle
stated that he left in the company of
Jolene. His whereabouts immediately thereafter are not accounted for.
[57]
According to accused 6 he was asleep until he was woken by his three
friends. Charmelle
is the only witness who says that accused 6 was
woken by Pikka and the others. She does not, however, say when that
was, nor does
she testify to whether he was there after she again
fell asleep with her boyfriend, Kurt.
[58]
There is accordingly no direct evidence to reliably contradict the
evidence of Kiddo. To
the extent that the alibi evidence of accused 1
and 6 purports to exclude the presence of accused 1 and 6 at the
house at Gideon
Street, it must be rejected in light of the evidence
of Kiddo. I shall return hereunder to the effect of acceptance of
this evidence.
[59]
Franklin Matthys, it was submitted by Mr Sandan, was also a credible
and reliable witness
whose evidence should be accepted. He submitted
that he was unshaken in cross-examination and that his evidence was
simple and
straight forward. There was also no doubt regarding his
identification of the perpetrators.
[60]
The challenge to Franklin Matthys’ evidence, advanced by
counsel for accused 1, 2
and 3, centred on three aspects. Firstly, it
was submitted that whereas at trial he was a single witness he was in
fact not a “
single
” witness. As is apparent from
the charge sheet and indeed from Franklin Matthys’ evidence,
Nigel Matthys was also present
at Milton’s Place when accused
1, 2 and 3 are said to have arrived. The state had gone so far as to
charge the accused with
attempted murder because of the assault upon
him, yet had failed to call him as a witness. No explanation was
given for this. Since
the state had available to it a witness who
could have been expected to corroborate Franklin Matthys on crucial
issues, the failure
to call that witness should attract an adverse
inference, so the argument went.
[61]
The second challenge concerned the credibility of his testimony in
the light of contradictions
and inherent improbabilities. These are
to be weighed against the credibility, consistency and reliability of
the accused as witnesses
and their alibi witnesses.
[62]
The third concerned the failure by the state to fully and properly
investigate the alibi
raised by accused 2 at the time of his arrest
and the failure to call a Warrant Officer Goosen to whom the alibi
was conveyed and
who had undertaken to investigate it.
[63]
In
Elgin
Fireclays Limited v Webb
[5]
Watermeyer CJ held that:
“
. . it is true
that if a party fails to place the evidence of a witness, who is
available and able to elucidate the facts, before
the trial Court,
this failure leads naturally to the inference that he fears that such
evidence will expose facts unfavourable
to him. See Wigmore (secs.
285 and 286).) But the inference is only a proper one if the evidence
is available and if it would elucidate
the facts.”
[64]
In this instance, the indictment included a charge of attempted
murder (count 11) in which
the complainant was Nigel Matthys. The
alleged attack upon him occurred at or near Lawler Street. The
Summary of Substantial facts
it should be stated makes no reference
to this attack nor does it deal with counts 9 and 10. The list of
state witnesses does not
include the names of any of the lay
witnesses to be called not the complainants in the respective
charges. The absence of the name,
therefore, does not mean that Nigel
Matthys was not an intended witness available to the state. It was
Franklin Matthys’
evidence that he was present at the time of
the assault upon him and that he (Nigel) was assaulted by accused 2
who struck him
with a baseball bat.
[65]
As I indicated earlier there was no explanation given for not calling
Nigel Matthys. By
not doing so the state effectively abandoned proof
of the elements of count 11. It also failed to present evidence which
would
have provided crucial corroboration for the evidence of a
single witness as to the identity of the perpetrators of the crimes
allegedly
committed at Milton’s Place on the morning of 19
November 2016 and immediately thereafter.
[66]
In these circumstances, it seems to me that it will be proper to draw
an adverse inference from
the failure by the state to call Nigel
Matthys. It was submitted that Franklin Matthys’ evidence must
be approached with
caution since he is a single witness and because
he had testified under compulsion. To accept his evidence this court
would need
to be satisfied that it is satisfactory in every material
respect.
[67]
In arguing that his evidence was not satisfactory Mr Erasmus, for
accused 2, pointed to
the fact that it was his evidence that the
accused had told him to show them where Deon Matthys lived. Yet, from
his description
of what followed they clearly knew where he lived.
His description of how he was taken there also changed. First, he
walked in
front with a gun pointed at him. Later he said accused 1
and 2 walked in front. Finally, he said they walked alongside him.
[68]
Regarding his testimony under compulsion, it cannot be ignored that
Franklin Matthys was
testifying in circumstances where the risk of
harm was perceived as very substantial. It was for this reason that
he had absconded
from the witness protection programme and had
prevaricated in his decision to testify. Nevertheless, it is
appropriate that his
evidence be approached with caution.
[69]
One aspect which arises in this regard is that of inherent
probabilities and improbabilities
in the version he gave. He
described the assault on Nigel Matthys as one in which the baseball
bat with which he was struck broke.
He too was assaulted with force.
Yet, Nigel was apparently able to make his escape. Franklin’s
evidence regarding what occurred
at 165 Lawler Street suggests that
the accused went there with the prior intention to murder Deon
Matthys when found. He was present
when the killing occurred yet he
was not harmed. Indeed two witnesses to the murder were left
unharmed. In his case he was merely
told to say nothing.
[70]
On the probabilities, it must be accepted that the accused knew where
Deon Matthys lived.
They did not need to be directed to the property
according to the evidence of Franklin Matthys. Accused 3 also lives
in the neighbourhood.
If that is so it strikes me as highly
improbable that the accused would risk exposure by taking a witness
along to what was to
be an execution.
[71]
In my view, however, the probabilities provide only an additional
reason to reject the
evidence as unreliable. In the light of the
adverse inference to be drawn regarding the failure to call Nigel
Matthys, which is
to the effect that his evidence would not have
corroborated the version of what occurred at Milton’s Place, I
am unable to
conclude that the evidence of Franklin is satisfactory
in every material respect.
[72]
Since there is no other evidence implicating the three accused I am
unable, on the strength
only of the evidence of Franklin Matthys, to
convict the accused. This conclusion would hold, in my view, even if
the alibi evidence
was not accepted.
[73]
I have already pointed to the absence of evidence regarding the
whereabouts of accused
1 at the time of the commission of the offence
in counts 1 to 5. There is equally no evidence which can be framed as
an alibi in
respect of the period in which the offences in counts 6
to 10 were committed.
[74]
Different considerations apply in respect of accused 2 and 3. In the
case of accused 3
the evidence as to alibi is, at best vague. There
is little or no detail regarding when accused 3 woke on the morning
of 19 November
2016. The only witness who can confirm that he was at
Glendenning Flats when the offences in counts 6 to 10 were committed
is his
girlfriend. Whilst she says so there is no way of determining
when that was.
[75]
The position of accused 2 is different. In his case the alibi
consists of being in the
company of Van Rhyn at Glendenning Flats
that morning and hearing gunshots from the direction of Highfield
Road. Van Rhyn, it should
be said, was an unimpressive witness who
sought to adapt his evidence to meet challenges based on differences
with what accused
2 had stated. Most notable in this regard was where
he said they were standing and where his vehicle was parked. The
impression
he created was of a witness of convenience. As for the
gunshots allegedly heard, the underlying assumption was that these
must
have been the fatal shots fired at Deon Matthys since Lawler
Street also lies in the direction of Highfield Road from Glendenning
Street. This hardly counts as a basis to conclude that accused 2 was
indeed not in Lawler Street when the incident occurred.
[76]
Although rejection of the alibi is unnecessary in the circumstances
of this case, I nevertheless
consider it appropriate to comment upon
what appears to have been a failure by the police to investigate a
disclosed alibi in the
case of accused 2.
[77]
It is common cause that accused 2 disclosed during his bail
application that he had, on
arrest, informed Warrant Office Goosen of
an alibi. He had disclosed that since he was at the flats in
Glendenning Street that
it is likely his presence could be confirmed
by video footage from the house of Glynn Carelse opposite where he
was.
[78]
Mr Erasmus argued that there is a duty upon the police to investigate
a matter fully, particularly
when an alibi is raised. Indeed, it is
for this reason that an accused person is required to raise reliance
upon an alibi at the
earliest stage so that it may be investigated.
The onus rests upon the state to prove its case. That includes the
onus to disprove
an alibi. There is no duty upon an accused to prove
his alibi.
[79]
In
S
v Mafiri
[6]
,
a matter concerning the unlawful possession of a firearm found under
a pillow in a room occupied by the accused and in which the
accused
had told the police that another person had occupied the room, the
court said
[7]
:
“
[16] In my view,
once the appellant had mentioned Makakula as being the person who
occupied the bedroom in which the pistol was
found, it was incumbent
on the State to pursue it, given the onus that rests on it to
establish the guilt of the accused beyond
reasonable doubt. Even
though that took place some 6 years after the appellant’s
arrest, a delay for which the appellant
was not to blame, the fact of
Makakula having resided at the appellant’s house is not
something that could on the facts of
this case not have been
established even at that stage. The appellant was not pressed in
cross-examination on whether Makakula
existed at all nor did the
prosecution enquire as to whether he could still be found. The
appellant did testify that Makakula could
be found at the taxi rank.
It seems to me that even at that stage the matter could have been
stood down to establish whether Makakula
did use and occupy the
bedroom where the pistol and the ammunition were found. It was still
open to the State to apply to reopen
its case for this purpose.”
[80]
See
Vijai
v Minister of Police and Another
[8]
where the duty to investigate an alibi is addressed in the context of
an alleged unlawful arrest. In this matter a full and proper
investigation may very well have been decisive of the treatment of
the alleged alibi.
[81]
It is
perhaps also appropriate to consider the conduct of the investigation
as a whole. Counsel for the defence sought to suggest
that the case
was poorly investigated (principally since aspects potentially
favourable to the accused were not brought to light).
There is,
however, nothing that points to this save the aspect regarding
investigation of accused 2’s alibi. It cannot be
ignored that
crimes of the nature of these prosecuted where gang-related violence
is as prevalent as it is in some parts of this
city and where witness
intimidation and even assassinations are fairly regular
occurrences
[9]
. The task of the
police and prosecuting authorities in such circumstances is
particularly difficult. It appears from the record
in this matter
that the police did seek to gather forensic evidence, in the form of
potential ballistic evidence; DNA samples and
the like, from the
various crime scene and from the vehicle linked to the commission of
the offences without success. In the circumstances,
criticism of the
efficacy of the police investigation is not warranted.
[82]
It follows from the evaluation of the evidence relating to counts 6
to 10 that I am not
satisfied that the state has been able to prove
beyond a reasonable doubt, and upon reliable evidence, that accused
1, 2 and 3
committed the offences. It must follow, therefore, that
they are to be acquitted of those offences.
[83]
As I indicated earlier in this judgment I consider Luciano Kiddo’s
evidence to be
credible and reliable. He is, in relation to the
events at 67 Gideon Street, a single witness. In my view, his
evidence was satisfactory
in every material respect. Acceptance of
his evidence is destructive of the claimed alibis of accused 1 and 6.
As already indicated
they do not, in fact, raise by way of an alibi,
evidence which tends to establish that they were not present other
than their denial.
I am satisfied that their denials are not
reasonably possibly true.
[84]
Mr Sandan conceded that there is no evidence which establishes that
accused 6 was at any
time in possession of a firearm or ammunition.
He must accordingly be acquitted of those charges. Kiddo’s
evidence establishes
that accused 1 was in possession of a firearm.
There is, however, no evidence that he was, in the presence of Kiddo,
in possession
of ammunition.
[85]
On the strength of his testimony it must be accepted that count 1 is
established and count
3 (as against accused 1) is established. It
must also be accepted that the deceased, Mielie was removed from the
house at Gideon
Street against his will and that he was deprived of
his freedom. Accordingly, count 2 is proved.
[86]
In respect of count 5, it is admitted that the body of the deceased,
Mohammed Abdullah
aka Mielie was recovered from alongside a roadway
in Malabar on the morning of 19 November 2016. His body was
discovered at about
the time that the police were on the scene of the
fires at Riverside. His body was identified by Luciano Kiddo.
The post
mortem report admitted into evidence establishes that he
died as a result of gunshot wounds to his head and blunt force trauma
to his chest. The fired bullets were recovered during the post mortem
examination.
[87]
On the facts found to be proved by the state, the deceased was last
seen alive by Luciano
Kiddo at the time that he was being loaded into
the back of white Corsa bakkie. Accused 1 and 6 were present with one
Pokkel. This
was shortly after sunrise. His body was found a few
hours later. Accused 1 and 6 provide no explanation other than a
denial that
they were present. That denial is rejected. At the time
that the deceased was transported away from his house Accused 1 and 6
were
acting in concert.
[88]
In my view, the proven facts allow for only one reasonable inference
to be drawn, viz that
Accused 1 and 6 unlawfully and intentionally
killed the deceased and disposed of his body where it was found. I am
satisfied therefore
that the state has proved, beyond a reasonable
doubt, that the accused are also guilty of murder.
[89]
In the result, and based upon a careful consideration of the evidence
in its entirety,
I make the following orders:
Accused 1, Damian
Kammies, is found GUILTY on COUNTS 1, 2, 3 and 5 and is ACQUITTED AND
DISCHARGED on COUNTS 4, 6, 7, 8, 9 AND 10.
Accused 2, Deilon
Makkopa, is ACQUITTED AND DISCHARGED on COUNTS 6, 7, 8, 9 AND 10.
Accused 3, Kurt Bosman,
is ACQUITTED AND DISCHARGED on COUNTS 6, 7, 8, 9 AND 10.
Accused 6, Warren Steyn,
is found GUILTY on COUNTS 1, 2 and 5 and is ACQUITTED AND DISCHARGED
on COUNTS 3 AND 4.
________________________
G.
GOOSEN
JUDGE
OF THE HIGH COURT
[1]
Act No. 51 of 1977
[2]
This sequence is followed because the evidence points to the events
occurring in such order.
[3]
S v Sithole
1980 (4) SA 148
(D) at 150C-F
[4]
1999 (1) SACR 447
(W) at 448f-449b
[5]
1947 (4) SA 744
(A) at 747-750
[6]
(360/2002)
[2003] ZASCA 37
(31 March 2003), 2003 (2) SACR 121 (SCA)
[7]
Supra
at par [16]
[8]
(41706/2016) [2018] ZAGPPHC 100 (19 March 2018)
[9]
Mandolise, Deon Matthys’ partner who was scheduled to testify
in this matter was herself shot and killed.