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[2020] ZAECPEHC 18
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S v Williams (CC 22/2019) [2020] ZAECPEHC 18 (15 June 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH
Case
No.: CC 22/2019
Date
Delivered: 15 June 2020
Date
Heard: 11 June 2020
In
the matter:
THE
STATE
and
WALTER
WILLIAMS
Accused
JUDGMENT
MOODLIAR AJ:
[1]
The accused is charged with ten offences arising from the events
which occurred on 9 December 2018 and 10 December 2018 in Helenvale,
Port Elizabeth.
[2]
Counts 1 and 2 relate to both events and counts 3 to 7 (three counts
of attempted murder, unlawful possession of a firearm and
unlawful
possession of ammunition) relate to events which are alleged to have
occurred in the afternoon on 9 December 2018 at Anita
Drive,
Helenvale. The State alleges that the accused is a member of a gang
called the Nice Time Bozzas (‘NTBs’), and
that he pursued
Benito Bosch who is a witness in a murder charge against a gang
member, affiliated to the NTBs, pointed a firearm
at him with the
intention of killing him and the shots intended to kill Benito
injured two teenagers
,
Cassidy and Calvin Dolph who received treatment for their wounds at
Livingstone Hospital. It is alleged that the accused was in
unlawful
possession of a firearm and ammunition.
[3]
Counts 8 to 10 (murder, unlawful possession of a firearm and unlawful
possession of ammunition) concern events which are alleged
to have
occurred on 10 December 2018 at the home of Buren Jordan (‘Buren
or Dumpie’) at 172A Kobus Road, Helenvale.
The State alleges
that the accused arrived at Buren’s home where Richard Marius
Stuurman (‘the deceased’), an
informant for a rival gang
was playing cards with Veronique Jacobs, Shevonne May and Buren. The
State alleges that the accused
sat with them, drank a glass of
cool-drink and thereafter took out a firearm, pointed it at the
deceased and fired a shot at him.
It is alleged that the deceased
fell to the ground and that the accused left the premises. The State
alleges that the accused murdered
the deceased who died a few days
after the shooting as a result of a head injury due to the gunshot
wound. It is alleged that the
accused was in unlawful possession of a
firearm and ammunition.
[4]
The accused pleaded not guilty to all charges.
[5]
In respect of counts 1 to 7, the accused denies belonging to the
NTBs, pleads that he has friends who are acquaintances of the
NTBs
and denies being in the vicinity at the time of the shooting,
averring that he was at work.
[6]
In respect of counts 8 to 12 the accused pleaded an alibi. The
accused denied involvement in the commission of the offences
pleading
that he was never at the house in Kobus Road. He was asleep in the
early hours of the morning, woke up a bit later and
went to work.
[7]
The State led the evidence of several witnesses.
[8] At
the commencement of the trial the accused made various formal
admissions in terms of section 220 of the Criminal Procedure
Act
[1]
which
narrowed the ambit of the issues in dispute significantly.
[9]
Based on these admissions, it was established that the deceased in
count 8 was Richard Marius Stuurman who died on 13 December
2018 as a
result of a head injury due to a gunshot wound. The body was removed
from 172A Kobus Road on 10 December 2018 and taken
to Livingstone
Hospital for treatment and he did not sustain any further injuries
from the time of removal to the hospital where
the deceased remained
until he was declared dead on 13 December 2018. The accused was
arrested on 21 January 2019 in Gelvandale.
Other formally admitted
evidence includes photograph albums of the scene, plan and keys
including aerial photographs depicting
the proximity of various
locations relevant to the crimes and exhibits recovered from the
crime scenes. I refer to these later
where relevant to the evidence
presented by the main witnesses.
[10]
The principal eye witness Jacobs, Warrant Officer Wesley Mclean and
Dr Prudent Mgobo testified in relation to counts 8 to 10
viz. the
murder, unlawful possession of a firearm and unlawful possession of
ammunition charges.
[11]
I turn now to deal with the evidence which the State presented in
respect of counts 3 to 7 which incident occurred on Sunday,
9
December 2018 and thereafter, the evidence in respect of counts 8 to
10 which incident occurred less than 15 hours later on Monday,
10
December 2018,
The events at Anita
Drive
Benito
Bosch (Counts 1 to 7)
[12]
Benito testified that he is an 18 year old, resident at 115A Reginald
Road who has lived in the area from birth. On 9 December
2018, at
about 14h30 or 15h30, his friend’s mother sent him to buy cheap
cigarettes for her. He bought a cigarette for himself
and as there
were no cheap cigarettes, he walked in the direction of Reginald
Road, passed Scholtz Street and went to a second
shop in Reginald
Road. On the way, he saw his friend’s brother whom he referred
to as a small child who then accompanied
him. When they had bought
the cigarettes, he saw 2 suspicious looking men coming out of Scholtz
Street. One walked on the sidewalk
and the other in the middle of the
road. He gave R3.00 to the boy and told him to buy noodles and wait
inside the shop. He then
walked to the opposite side of the road in
the direction of Anita Drive and as he crossed the street, he noticed
the one male walking
faster than the other. When he walked into the
gravel road and was about 10 to 12 metres away from the accused, he
recognised the
man walking faster as the accused whom he knows as
Twallie. He looked at him for about four (4) seconds. He then
continued walking
along a gravel road or path between Reginald road
and Anita Drive, turned around and looked behind and saw the accused
pulling
out a grey firearm from his right side. At this stage he was
about 4 metres away from him. He looked at him for about 2 (two)
seconds.
Benito stated that he thought that whatever happened at that
moment, he had made peace with himself. He continued walking up the
gravel road and when he got closer to the corner of the wall, he
started running. The accused also walked faster and the accused
followed him on the gravel road until he reached the top of the road
where Benito turned the corner at Anita Drive. He then heard
about 4
or 5 shots behind him emanating from the direction of the accused and
he continued running and screaming to people in the
street to get
out. He thereafter ran straight to his house.
[13]
The South African Police Services came to his house and he related
what had happened and that the accused had shot at him.
He stated
that he had been suspicious of the two men pursuing him as he was a
witness in a case against an accused who belongs
to the NTBs and
because they kept looking back. He knew the accused prior to the
incident because he went to Fontein Primary School
with him. He knew
that the accused belonged to the NTBs as he saw the accused about 2
to 3 times a week when he purchased electricity
at “the Stoep”
which he explained was a reference to different shops in one building
in Kobus road where the NTBs and
Blink Boemelaars gangs hang out. He
often saw the accused with other people who are also NTB members viz.
Maxwell Muller, Nunu,
Damian, Martin, Noel and Claudio. He, Benito is
not a gang member and he knows that the accused lives in Voisen Road
as he has
seen him there. He had never had any prior problems with
the accused. He stated that witnesses in these kind of cases in the
area
get threatened. He knew that it was the accused who shot at him
as it was only the accused who had a firearm who had come up with
him
on the gravel road until he reached the top of the road. The defence
contended that Benito was mistaken when he says the accused
is the
shooter and Benito stated categorically that he was walking alone
behind him on the gravel road and that he had seen him
with the
firearm a few minutes before the shots were fired which ultimately
injured the teenagers.
[14]
I turn to deal with the contradictions raised by Ms Coertzen in
respect of Benito’s evidence in court compared to his
statement
to the police. The first related to Benito saying in his statement
that he was walking from his friend’s house
with a small boy.
Benito conceded that this was not correct as he had not walked with
the boy from his friend’s house right
from the start. Ms
Coertzen pointed out that in his evidence before court; he had said
that he had “
found him after he
had left the shop”
. Benito
then described the position as being that the first shop is a house
away from his friend’s house and the child
was in the street in
front of this house. The witness conceded that the statement did not
correctly reflect this point. My view
is that the confusion seems to
be between the house and ‘the house shop’ and Benito
described this house as a shop
which is located in a house. It is
apparent that this relates to a communication and language barrier.
The second contradiction
which the defence raised in relation to his
police statement was that Benito said that he was walking from his
friend’s house
with a small boy and gave him R3 when they were
at the shop and he bought noodles for himself. When he was about to
leave the shop
he saw two males coming out of Scholtz Street in his
direction. He then got suspicious when he saw these two males and he
told
the small boy to remain in the shop. In his evidence
before court however, he had testified that he gave R3 to the boy to
buy noodles after he knew that they were suspicious and it was
intended to keep the boy at the shop for his safety. Benito’s
reply was that the constable wrote the word ‘before’ and
got the sequence wrong. His evidence was that he had corrected
this.
Benito explained the discrepancy by saying that he told the constable
“
I was giving him the money, when
I saw there comes two suspicious men then I told him to wait there in
the shop and he must buy
him something. That is why I see the
detective write this in front of this paragraph”
.
This to my mind, is a reasonable explanation which again appears to
be a result of inelegant articulation
,
and colloquial expression which does
create ambiguity. It does not however impinge on his honesty as a
witness. His explanation
for the confusion does not cast doubt on his
version that he had given the money to the boy when he noticed the
two suspicious
men. He also explained that at the time of making the
statement, his mind was on the two children who had been shot and he
was
in shock.
[15]
In
S
v Bruiners en Ander
[2]
it
was stated that “
the
purpose of an affidavit was to obtain the details of an offence, so
that it could be decided whether a prosecution should be
instituted
against the accused. It was not the purpose of such affidavit to
anticipate the witness’s evidence in court, and
it was absurd
to expect of a witness to furnish precisely the same account in his
evidence as he would in his evidence in open
court”
.
[16]
Applying this reasoning to the present matter, it is apparent that
Benito’s police statement must be viewed in that context
particularly because the differences are not destructive of the
honesty of his
viva voce
evidence.
[17]
The second witness in respect of the events at Anita Drive on 9
December 2018 was William Dolph (‘William’), an
18 year
old pupil who testified that Cassidy and Calvin Dolph are his
cousins. He remembered the date well as it was his sister’s
birthday and that they were shot between 14h00 and 15h00 in Anita
Drive as they had been coming from the top shop walking on the
pavement. He was walking with Calvin and Cassidy when he saw Benito
running past them and then he saw a man ‘tramping on
the side
of the pavement’. He saw the man’s hand lift and then
heard between five and eight shots go off. He looked
around him to
make sure that the two he had been walking with, were still with him
but Calvin was not with him, only Cassidy was.
He grabbed
Cassidy and dived with him to the wall. They did not hear any shots
thereafter and “Cassidy’s blood was
cooling down”
and Cassidy told him that something was paining in his stomach. He
pulled Cassidy’s sweater up and saw
a hole in his stomach. He
did not see Calvin until later when he saw him coming out of his
father’s house. Calvin’s
hand was full of blood and there
was a bullet in his hand. An ambulance took them away. The man
who trampled on the pavement
according to William, started shooting
but he was unable to identify who that man was as everything happened
too quickly. When
Benito had passed him, he was proceeding from the
front. The person who was doing the shooting came out of the passage
on the gravel
road. William testified that he is not friends with
Benito but he is familiar to him as he is from the area. William
presented
as a reliable and credible witness. His evidence is
corroborative of Benito’s evidence that he (Benito) was running
past
him in Anita Drive
,
fleeing
from the shooter as William described how immediately after he saw
Benito run past, the person on the side of the pavement
lifted his
hand
,
then
shots were fired which injured his cousins.
Counts 1, 2 and 8
to 10
The
events at Kobus Road, Helenvale
[18]
Veronique Jacobs is a 24 year old woman who lives in Voisen Street,
Gelvandale and has a Standard 2 education. She had visited
the house
of Buren at 172A Kobus Road at about 21h30 on the evening of 9
December 2018 with a view to seeing her friend whom she
discovered
was out with her boyfriend. She then stayed and played cards on a
crate used as a makeshift table with the deceased
and Jordan whilst
Shevonne was asleep. There was a knock on the door and the accused
known to her as Twallie entered after announcing
“
It’s
me, Twallie”
. He came
inside and sat next to the deceased and Buren. The accused asked for
a glass of cool-drink which she gave to him.
He drank the cool-drink,
put the glass down, stood up and shot the deceased. The deceased fell
to the ground, as did she. Prior
to the shooting, the accused said to
Buren “
Forgive me for what I will
do now”
. The accused then walked
out of the house as if nothing was wrong. Buren closed the door
behind him and she told Buren that she
wanted to go home as she was
scared. The incident occurred in the early hours of the morning of 10
December when people were on
their way to work. She thereafter went
home.
[19]
She testified that the colour of the firearm was grey and that it was
partly covered with black cello-tape. There was light
coming from the
back of the electrical box on the wall in the room. The light was on
when the shooting occurred and the accused
had nothing obscuring his
face. She knew the accused as Twallie as she used to visit her friend
Britney in Kobus Road and she saw
him as frequently as every second
day. The accused was usually talking to his friends when she visited
her friend. She testified
that she knows one of the accused’s
friends OJ who is now deceased and that OJ was a member of the NTBs.
Other than seeing
the accused on the corner, she did not speak to him
prior to the incident but she does know his mother through her
grandmother
.
The
accused’s mother
,
Judy
often visits her house. She described the accused’s facial
expression prior to the shooting as being angry. It was the
first
time that she had witnessed an incident like this and she was taken
to the Gelvandale Police Station where she made her statement
to
Constable Yali.
Warrant
Officer Kelvin Swartbooi
[20]
Based on the admissions, it was established that Warrant Officer
Kelvin Swartbooi of the SAPS, a crime scene investigator,
technician
and forensic fieldworker attended on the two crime scenes, collected
four cartridge cases at Anita Drive and at 172A
Kobus Road and he
recovered one fired bullet collected on the floor inside the house
and one fired cartridge case on the floor
behind the crate. The
accused formally admitted that these cartridge cases and bullet were
collected and sealed and placed in tamperproof
forensic evidence seal
bags. The accused also admitted the subsequent dispatch of these
exhibits for ballistic analysis and the
correctness of the findings
made in respect thereof set out below.
Warrant
Officer Wesley McLean
[21]
The admitted evidence of McLean, a warrant officer in the South
African Police Services (SAPS) and forensic analyst in the
Forensic
Science Laboratory in respect of his ballistic analysis conducted on
12 December 2018 establishes the following in relation
to the
exhibits retrieved from both crime scenes: From the Anita Drive
scene, McLean identified four 9mm Parabellum calibre fired
cartridge
cases designed to be fired by a centre-fire firearm and after
conducting a comparison, he found that all 4 cartridge
cases were
fired in the same firearm (Exhibit “F”).
[22]
From the crime scene at Kobus Road, there was one fired bullet of 9mm
calibre, one fired cartridge case of 9mm Parabellum calibre
and the
cartridge case was manufactured to be fired by a centre-fire firearm
(Exhibit “J”).
[23]
McLean compared the above bullets and cartridge cases from both crime
scenes with each other using a comparison microscope
and established
that the one 9mm Parabellum calibre fired cartridge case above and
the four 9mm Parabellum calibre fired cartridge
cases were fired in
the same firearm (Exhibit “K”). McLean testified that the
five (5) cartridge cases (4 from the
one crime scene and 1 from the
other) were all fired from a semi-automatic firearm as he had found
firing pin marks indicative
of a dropping breech which is only
found in semi-automatic firearms. Only a semi-automatic firearm would
leave cartridge cases,
a revolver would not. “
The
same firearm was used on the one scene and also on the other scene”
.
It was not possible for two (2) firearms to make identical marks on a
cartridge case.
Dr
Prudent Mgobo
[24]
The post mortem was conducted by Dr Mgobo on 19 December 2018.
His report including findings and conclusions was also
admitted in
terms of section 220. The report records his findings that the
deceased had a 1cm x 1cm gunshot entrance wound in the
frontal area
of the head. Dr Mgobo confirmed in his evidence that the deceased
died as result of a head injury due to a gunshot
wound.
Constable
Davian Piet
[25]
The next State witness was Constable Davian Piet who is employed by
the SAPS in the Anti-Gang Investigative Unit. He had qualified
in
2011 and had been based at the Gang Intervention Unit from 2015 and
from 2017, his specific focus was on the Northern areas
which
includes Gelvandale and Helenvale where these incidents occurred. In
summary, Constable Piet profiles arrested suspects;
conducts searches
of premises with uniformed members; photographs persons vacating
these premises; gathers information on how gangs
expand to enable the
police to identify new faces in a gang and creates a database which
he later uses to associate members of
a particular gang with other
members of the gang. He compiled a document handed in as
exhibit “T”. A map on “T1”
entitled Gang Turf
was prepared by him in which he identified the various territories
occupied by gangs with the top centre marked
in red being that of the
Nice Time Bozzas. They were rival gangs with the Upstand Dogs and
Nice Time Kids who are associated with
each other. The Room Rats are
associated with the Upstand Dogs and that the NTBs, the Upstand Dogs,
the Nice Time Kids, and the
Room Rats and Dondollas formed a huge
association which broke up. The Nice Time Kids broke away from
the NTBs and they sided
with the Upstand Dogs. This split then
precipitated a huge gang war during 2018 which is the context within
which these events
occurred. He identified the NTBs as occupying the
biggest territory in Helenvale and stated that they were striving for
bigger
territory.
[26]
He identified the place where the NTBs pack their drugs and store
their firearms. He identified the area known as the Stoep
in Kobus
Road as the place where the NTBs frequently spend their time during
the day. This was also referred to earlier by Benito
Bosch as the
place where he regularly saw the accused with NTB members. The NTB
gang members were seen in Exhibit “T4”
with their typical
clothing brands. Their most dominant piece of clothing is Nike. He
then identified on Exhibit “T5”,
the accused with a gang
tattoo which is the loyalty tattoo from the 26 prison gang. He also
identified Luciano Claasen, who had
a tattoo on his arm and a haircut
with NTB engraved on his head as a friend of the accused.
[27]
He stated that he had personal knowledge of the accused’s
association with known NTB members through his work at the
Gang
Intervention Unit. Whilst patrolling the area he had observed
the accused standing on the corners of Olifant and Voisen
Roads where
he would accompany fellow NTB members such as Elvardo Francis (‘aka
Viro or Tone’), Claudio Carelse ‘aka
Clobber’) and
Damian Brooks.
[28]
He knew the accused prior to this case as he had received information
about drugs and firearms being used by the NTBs and he
went to three
addresses that were given to him viz. 39, 45 and 56 Voisen Road. The
police had spilt into three (3) groups in order
to avoid arriving at
an address and finding that the drugs or firearms had already been
disposed of at one of the other addresses.
His group went to 56
Voisen Road, a known NTB drug post where he found three teenagers on
the premises, one of whom was the accused.
The eldest person at the
premises was the accused who was with Diego Waits and Renaldo
Roberts. Constable Piet stated that the
homeowner was Johnny Bosman
who was a member of the Upstand Dogs and the house was being used as
a drug post. The accused replied
that they were just sleeping at the
house. He asked him why they were sleeping at the house and the
accused answered that they
could not sleep at their houses which are
in the gang territory of rival gangs and that there are two different
gangs. If they
slept at their parent’s premises, the rival gang
would kill them. Constable Piet did not find any drugs or firearms
there
on that occasion but the group at 49 Voisen Road found drugs
and loose ammunition. He took a photograph of the accused on
this occasion.
[29]
In response to Ms Coertzen, he stated that not everybody found on the
premises is a gangster or that there is an assumption
that everybody
there belongs to a gang. Constable Piet reiterated that the accused
mentioned that he cannot live at his parents’
house due to the
fact that he may be killed by the rival gang. This, he said, was an
indication that the accused belongs to a certain
gang.
[30]
He identified various members of the NTBs including Claudio Karelse,
Nunu Brooks who is the brother of Damian Brooks, Elvardo
Francis and
Maxwell Muller a convicted NTB member under the Prevention of
Organised Crime Act. He described 172A Kobus Road where
the deceased
was killed as being in the area of the Nice Time Kids and Reginald
Road and/or Anita Drive as the area of the NTBs
(I mention that this
is where Benito was pursued and the shooting of Cassidy and Calvin
Dolph occurred) He described it as being
in the middle of the area.
He referred to a Cheslyn McCabe whose alias is Chicklets and said
that he was associated with the Honde
Koppe Gang situated in Arcadia,
who are in turn associated with the NTB gang.
[31]
Constable Piet testified that the gang violence in the area is
traditionally a fight for territory. The value of the territory
was
the fact that members of the gangs deal in drugs and extort money
from business owners to expand the gang businesses. Once
a person is
arrested or charged with an attempted murder or murder, the gang
itself would eliminate witnesses to set the accused
free.
[32]
Ms. Coertzen put it to the witness that the accused did not have the
other markings and clothing of the NTBs, only the 26 tattoo
and he
confirmed that those were automatically obtained in prison. The
accused’s version is that he denies that he mentioned
a rival
gang and that he had told Constable Piet that the reason why he could
not sleep at home is because he had an argument with
his mother. She
also put it to him that the accused denies being friends with Luciano
Claasen but knows him by sight because they
live in the same street.
I found that Constable Piet’s evidence was clear, reliable and
credible as it was based on his personal
observations and studying of
gang activity over a period of time. His evidence of the accused’s
association with other NTB
members and the place that the accused
frequented is consistent with that of Benito and Veronique’s
evidence which I deal
with later.
The
defence case
[33]
The accused relies upon an alibi in respect of both events. He
testified in his defence. Accused’s defence
is that on
the 9
th
and 10
th
December 2018 he resided with his Aunt Ilse at 42 Reginald Road
,
Helenvale. He was employed by Uncle Elo as a hawker selling fruit and
vegetables from Monday to Friday at Greenacres, Four Ways
in Cape
Road. He denied being a member of the NTBs. He does not
know why Constable Piet testified that he saw him with
Elvardo
Francis. He denies knowing other NTB members such as Damian Brookes
and denies hanging out on the corner of Voisin Road
and Olifant
Street with these persons. He has no idea whether these persons
belong to any gang. The accused called no witnesses
to support his
evidence as to his alibi. The only tattoo he has is that of the 26
gang which only exists in prison and which he
joined in order to
survive in prison.
[34]
He denies killing the deceased, Richard Stuurman but knew him from
the area. He denies knowing the witnesses Benito Bosch
and
Veronique Jacobs.
[35]
In relation to the Anita Drive shooting on 9 December 2018, the
accused testified that he was at Greenacres in Cape Road selling
fruit and vegetables after Uncle Elo had fetched him from his home
between 07h00 and 08h00. He worked until after 17h00. Uncle
Elo
normally arrives at the location at 15h00 to bring him food and
/
or
more goods to sell. He earned R100 per day. On the day in question
,
Uncle Elo collected him after 17h00 and before 18h00. He did not
leave Four Ways at all on that day. He could not think of a reason
for the witness to implicate him in the shootings. He remembers the
date well as it was two (2) days subsequent to the day of 9
December
2018, and it would have been his younger sister’s birthday. On
9 December 2018
,
he went to his Aunt Ilse’s house where she lives with her 2
daughters and 2 sons. He did not leave the house on the evening
of 9
December 2018. Had he left the house
,
the other residents would have known.
[36]
In relation to the murder of the deceased Richard Stuurman, he was
never at the Kobus Road house. He stated that the 10
th
December is his resting day. He denies having a firearm in his
possession and never handled one. He was arrested on 21 January
2019
at Inyala Street. At that stage he was no longer staying with his
Aunt Ilse but was staying at 44 Aandblom Street in Arcardia
at the
house of his Aunt May. He had left Aunt Ilse in January 2019 due to
animosity between his mother and Aunt Ilse arising out
of his failure
to inform his mother that he would be residing at Aunt Ilse’s
house.
[37]
He had never been approached by a gang member to shoot for them or
eliminate a witness in a case. He was never instructed to
kill Benito
Bosch or Richard Stuurman.
Evaluation
and Assessment of the evidence
[38]
It is trite that the State bears the onus to prove the guilt of the
accused beyond reasonable doubt and conversely that there
is no duty
on the accused to convince the court of the truthfulness of his
explanation.
[3]
In
S
v T
[4]
Plasket
J stated the following:
“
The
State is required, when it tries a person for allegedly committing an
offence, to prove the guilt of the accused beyond
a reasonable
doubt. This high standard of proof - universally required in
civilised systems of criminal justice - is a core
component of the
fundamental right that every person enjoys under the Constitution,
and under the common law prior to 1994, to
a fair trial. …”
[39]
In order to avoid conviction, an accused is not required to prove his
innocence but merely has to provide an explanation that
is reasonably
possibly true.
[40]
The State must not deal with every instant of doubt but prove its
case beyond a reasonable doubt. In
S
v Mavinini
[5]
it
was said:
“
It
is sometimes said that proof beyond reasonable doubt requires the
decision-maker to have 'moral certainty' of the guilt of the
accused.
Though the notion of 'moral certainty' has been criticised as
importing potential confusion in jury trials, it
may be
helpful in providing a contrast with mathematical or logical or
'complete' certainty. It comes down to this: even if there
is some
measure of doubt, the decision-maker must be prepared not only to
take moral responsibility on the evidence and inferences
for
convicting the accused, but to vouch that the integrity of the system
that has produced the conviction - in our case, the rules
of evidence
interpreted within the precepts of the Bill of Rights - remains
intact. Differently put, subjective moral satisfaction
of guilt is
not enough: it must be subjective satisfaction attained through
proper application of the rules of the system.”
[41]
In
R
v Hlongwane
,
[6]
Holmes
AJA in dealing with an alibi said that an accused must be acquitted
if the alibi may reasonably be true.
“
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.”
[42]
The accused has relied upon such an alibi defence. His evidence
as to the alibi must not be considered in isolation as
it will not
meet the required standard of proof but must be considered with the
evidence in its totality.
[43]
What is clear is that the witness Veronique in the Kobus Road
shooting of the deceased, knew the accused and his mother by
name,
and she had frequently seen him and as such was able to identify the
accused. Her close proximity to the accused (less than
2 metres away)
at the time of the offence, and the light source in the room are
factors which did not impeach this witness. Veronique
was a credible
and reliable witness although she has a Standard 2 education and
presented her evidence rather simply. When relaying
the sequence of
events she did not hesitate and testified that there was no prior
history between her and the accused. Ms Coertzen
submitted that there
were a few contradictions between her evidence in court and the
statement made to Constable Yali.
[44]
In
S
v Mkohle
[7]
,
Nestadt JA held that:
“
Contradictions
per se do not lead to the rejection of a witness’ evidence …
They may simply be indicative of an error.
(
S
v Oosthuisen
1982 (3) SA 571
(T)
quoting from 576G-H)
…
it
is stated that not every error made by a witness affects his
credibility; in each case the trier of fact has to take into
account such matters as the nature of the contradictions, their
number and importance and the bearing on the other part of the
witness’ evidence. No fault can be found with his conclusion
that what inconsistencies and differences there were, were of
a
relatively minor nature and the sort of thing to be expected from
honest but imperfect recollection, observance and reconstruction.”
[45]
Similarly in other decided cases regarding the statement made to the
police it was held in
S
v Mafaladiso
[8]
that:
“…
the
juridical approach to contradictions between two witnesses and
contradictions between the versions of the same witness (such
as,
inter alia
,
between her or his
viva voce,
evidence and a previous statement) is, in principle (even if not in
degree) identical. Indeed, neither case is the aim to prove
which
versions is correct, but to satisfy one’s self that the witness
could err, either because of a defective recollection
or dishonesty.
The mere fact that it is evident that there are self-contradictions
must be approached with caution by the court.
Discrepancy in
statement caused by one sentence only - can be interpreted in one of
two ways - must be read in the context of the
whole statement. First
the court must ascertain what the witness meant to say in order to
determine whether there was a discrepancy
and the extent of the
discrepancy. The court must take into account the following: the fact
that a statement to the police was
not subjected to
cross-examination, language and colloquial manner of expression
between the witness and the person who took the
statement, and the
fact that the police did not require any explanation of a statement.
Secondly, not every error by or discrepancy
in the statement affects
the witness’ credibility. Thirdly, the different versions must
be evaluated holistically.
This evaluation includes the
circumstances in which the versions were given, reasons for the
discrepancies, the effect of the discrepancies
on the witness’
credibility and whether the witness had sufficient opportunity to
explain the discrepancy. Lastly,
the witness’ statement
to the police must be weighed up against the witness’
viva
voce
evidence, to consider all the
evidence and to decide whether it is reliable or not and to decide
the truth has been told despite
any shortcomings”.
[46]
The contradictions which the defence counsel raised are firstly that
in her statement to the police, she says that she left
her house at
19h30. During cross-examination, the witness reiterated that she left
her house at 21h30 as she had testified in her
examination in chief.
She had told the constable but he did not correct it. The second
contradiction in her statement was that
she stated that Shevonne went
to sleep in her room and she continued to play cards. Veronique
conceded that this was incorrect
as Shevonne had slept in the same
room where they were playing cards. Again Veronique stated that she
did tell the policeman but
it was not corrected. The third
contradiction is that in her evidence before court, she had said that
the incident occurred in
the early hours of the morning when people
were on their way to work and in clarification she said this was
about 5am. In her statement
to the police however, she states that
the incident occurred when there were taxis outside and birds were
singing and that it may
have been 4am. She clarified this discrepancy
by saying that the incident did not occur at 4am and that she did not
hear this when
the constable read the statement back to her and
therefore she did not tell him that it was incorrect. This in my view
is a reasonable
and plausible explanation for the discrepancy.
Lastly, in her statement to the police, the firearm was described as
being silver,
and that when the accused came inside the house he had
a firearm in his hand wrapped with cello-tape.
[47]
Under cross-examination Veronique stated that she was confused when
she gave the statement and that she was not listening when
he read
the paragraph and that she knew it was wrong. She stated that she was
not herself when she gave the statement. In her statement
she also
said that the owner Buren closed the door and she saw Ricky bleeding
in his face and then she went to wake up Shevonne.
Veronique
denied waking up Shevonne. She agreed that this too was incorrect.
She was confronted with various omissions in
her statement such as
why she did not tell the detective that the accused looked angry when
he came in. She stated that it was
because she was confused. When
asked why she failed to tell the detective that the accused had told
Buren to forgive him for what
he will do prior to the shooting, she
stated that it was because it did not come to her mind but that she
did tell the police this
before she came to court. In my view, the
nature of the contradictions are relatively trivial on close scrutiny
such as the incident
happened when taxis were heard as opposed to
people going to work or 4am as opposed to 5am. The omissions referred
are manifestly
excusable as she was relaying a statement after a
traumatic evening and she had not slept well and had witnessed a
shooting at
close quarters.
[48]
I am satisfied in the circumstances that the contradictions between
Veronique’s
viva voce
evidence and the police statement are firstly not material and
secondly, they are to be understood in the context of a young woman
who did not waiver from her evidence in chief and readily conceded
the omissions in her police statement. They can be reasonably
explained by her standard of education, the language barrier between
her and the policeman and the fact that she is not able to
read.
Whilst the court has taken into account these contradictions with
circumspection, I found Veronique to be a reliable and
credible
witness.
[49]
Ms. Coertzen referred me to
S
v Mthetwa
[9]
wherein
Holmes, J.A said “
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is
not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various
factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation, both
as to time and
situation; the extent of his prior knowledge of the accused;
the mobility of the scene; corroboration;
suggestibility;
the accused's face, voice, build, gait, and dress; the result of
identification parades, if any;
and, of course, the evidence by
or on behalf of the accused. The list is not exhaustive. These
factors, or such of them as are
applicable in a particular case, are
not individually decisive, but must be weighed one against the other,
in the light of the
totality of the evidence, and the probabilities”
.
[50]
The effect of Veronique’s evidence on the accused’s alibi
is to be examined. He states that he was asleep
at that time
and woke up and went to work. The accused has not provided direct
evidence to gainsay Veronique’s evidence despite
his testimony
that he was at his Aunt Ilse’s house when this happened.
Notwithstanding the application of the cautionary
rule which is
applicable to a single witness, Veronique provided sufficient
evidence of her familiarity with the accused,
his family and
associates and places he frequents and her evidence should therefore
be accepted as credible and reliable. Moreover,
the caution I am
required by the rule to exercise is satisfied by the corroborating
evidence of Constable Piet as to the accused’s
associates and
places he was seen with NTB members. Benito’s evidence also
corroborates Veronique’s version with regard
to his friends and
where he commonly associated with his friends. The accused’s
denial that he knows either Benito or Veronique
is not reasonably
possibly true. There is no room for doubt as to her identification of
the accused less than 15 hours after the
shooting at Anita Drive.
Benito also placed the accused whom he knew well in possession of a
firearm of an identical description
to that provided by Veronique.
The forensic and ballistic evidence established that the cartridges
and bullet were fired from the
same firearm used at both crime
scenes. Both Veronique and Benito unequivocally identified the
accused as the shooter and both
had sufficient prior knowledge of the
accused, adequate time to observe the accused, adequate
lighting and proximity to the
accused to be certain as to his
identity.
[51]
It follows from the evaluation of evidence that I find Veronique a
reliable and credible witness in relation to the shooting
of the
deceased at 172A Kobus Road. Her evidence was satisfactory in every
material respect. Her evidence is also dispositive of
the alibi
defence upon which the accused relies. The accused’s denial is
not reasonably possibly true. The denial is rejected.
Based on the
proved facts, it follows that the accused’s killing of the
deceased was pre-meditated and that he had entered
the Kobus Road
home with the requisite intent of killing the deceased. I accordingly
find that the State has proved beyond reasonable
doubt that the
accused is guilty of murder. Based on Veronique’s evidence
counts 8, 9 and 10 are established.
[52]
Constable Piet’s evidence on his profiling of gang members and
his identification of the accused as a member of the NTBs
based on
his observations of him including the accused’s
association with other known NTB members, including Maxwell
Muller
who was convicted of a POCA offence, the accused’s frequenting
of the Stoep which is a NTB area with other known NTB
members and his
discovery of the accused at a NTB drug post where he admitted being
concerned about a rival gang provides cogent
evidence of the
accused’s involvement with a gang. Benito corroborated this by
his evidence that he frequently saw him in
the company of NTB members
viz. Maxwell Muller, Nunu, Damian, Martin, Noel and Claudio.
Veronique’s evidence strengthened
this as she testified that
she had seen him in the company of the late OJ, a known NTB member.
If the accused’s membership
and association of the NTBs is
established, then one can draw the inference that the State’s
allegation that the accused
was instructed to eliminate Benito as a
witness in the forthcoming criminal trial is consistent with the
proved fact that it was
the accused who was identified as the shooter
in possession of a firearm at both crime scenes and actively
participated in a criminal
gang. I find them all honest, credible and
reliable witnesses. For the reasons that follow, it is also
established that the accused’s
involvement in the commission of
the offences below, means that he has performed or participated in a
pattern of criminal gang
activity. Counts 1 and 2 are accordingly
established.
[53]
The accused’s alibi in relation to the Anita Drive shooting is
not reasonably possibly true. Whilst the accused stated
that Uncle
Elo, his employer would not testify on his behalf as he did not want
to be involved in gang related matters, he could
have called Aunt
Ilse or one of her 4 children whom he claimed were present at the
house and would have seen him leaving the house.
Mr Ahmed for the
State correctly submitted that when the accused was arrested
,
he failed to raise the alibi defence which would have enabled the
State to investigate its veracity. Mr Ahmed submitted that the
accused’s mendacity was apparent from two statements to the
police where he stated to Constables Yali and Peta that he was
unemployed. This he argued was destructive of his alibi that he was
at work on 9 December and asleep at home on 10 December then
he went
to work. In his examination in chief, the accused described how he
spent the entire day on 9 December 2018 at work. Mr
Ahmed submitted
that the 9 December 2018 was however a Sunday and the accused had
stated under cross examination that he did not
work on a Sunday as it
was his day of rest. The accused also stated that he was home on 10
December 2018 and went nowhere as it
was his rest day. When
confronted with these contradictions, the accused feigned confusion
as to the dates and days.
[54]
He submitted further that the accused lied in this court about having
only one child as he had deposed to an affidavit in his
bail
application that he has a four year old child residing with his
mother (Exhibit “U”, page 2, lines 19 and 20).
The
accused’s explanation under cross examination that he was
referring to his aunt’s daughter’s child who lived
at
Aunt Ilse’s house was nonsensical, so Mr Ahmed argued. Mr Ahmed
submitted that the accused also lied when he told the
court that he
was staying at 44 Aandblom Street in Arcadia at the time of his
arrest. This was borne out by the affidavit in the
bail application
by Wendy McCabe, the owner of the home at this address when she
stated that the accused does not reside at her
premises but that she
had seen him visiting Cheslyn McCabe (Exhibit “U”, page
17, line 23).
[55]
I found the accused to be an unreliable, evasive and argumentative
witness who frequently and expediently adapted his evidence
when
confronted with these discrepancies. His versions put to the witness
Veronique were contrary to his answers under cross examination
and
his employment status which was critical to his defence is not
reasonably possibly true in light of his statement at the time
of his
arrest that he was unemployed. He was dishonest and not credible. Ms
Coertzen conceded that he was a poor witness but argued
that this did
not mean he was guilty.
[56]
In
R
v Blom
[10]
Watermeyer
JA observed that:
“
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
1.
The inference sought to be drawn must be consistent with all the
proved facts.
If it is not, then the inference cannot be drawn.
2.
The proved facts should be such that they exclude every reasonable
inference
from them save the one sought to be drawn. If they do
not exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.”
[57]
Ms Coertzen submitted that although the shots at both crime scenes
were fired from the same firearm, the shooter was not necessarily
the
same person. The inference that should be drawn that it was the
second person who initially walked with the accused is rejected
as
the facts viewed as a whole exclude this inference. Benito’s
certainty about the accused pursuing him with a firearm when
he
walked faster and ran, shots being fired from behind him where he had
last seen the accused and William’s corroborative
evidence that
Benito ran past him and then the man on the pavement fired shots
which hit his cousins excludes the defence’s
suggested
inference that it was the second man originally on the scene. The
accused’s version that he was at work on 9 December
2018
contradicts his own version that Sunday was his rest day. Based on an
evaluation of Benito’s evidence whom I found to
be credible,
reliable and spontaneous in relation to the accused’s identity
viewed with the evidence of William Dolph whom
I also found to be
honest and forthcoming, the accused’s reliance on an alibi is
destroyed.
[58]
Benito’s evidence that the accused attempted to kill him is
consonant with Veronique’s evidence which placed the
accused at
Kobus Road within 15 hours of the shooting at Anita Drive. Both
Benito and Veronique’s identification of the accused
as the
shooter at both crime scenes seen with the same firearm is consistent
with the ballistic and forensic findings that the
shots at both crime
scenes were fired from the same firearm.
[59]
Mr Ahmed submitted that the accused should be convicted of attempted
murder on the basis of
dolus eventualis
in respect of the shots which injured Calvin and Cassidy. He
submitted that the accused ought to have known that in discharging
shots at Benito who was fleeing, other people in the vicinity could
be injured.
[60]
In
S
v Siwahla
,
Holmes JA said
[11]
“
The
fact that objectively the accused ought to reasonably have foreseen
such possibility is not sufficient. The distinction must
be observed
between actually went on in the mind of the accused and what would
have gone on in the mind of a bonus paterfamilias
in the position of
the accused. In other words, the foreseeability must not become
blurred. The factum probandum is dolus, not
culpa. These two
different concepts never coincide”
.
[61]
It is not is dispute that there were people in the street at the time
the shots were fired including William, Calvin and Cassidy.
The
accused had the direct intention to kill Benito and he should have
foreseen that by shooting him, the bullets might strike
other people
yet he went ahead. That he had such intention to shoot Benito is
clear from the evidence and when he fired four (4)
shots in a crowded
area, I find that he was aware and considered it a reasonable
possibility that by shooting Benito, he might
miss him and hit others
but he recklessly proceeded with the shooting. When all of the
evidence is considered in its totality,
the conclusion is inescapable
that the accused was in possession of a firearm and ammunition at
both Anita Drive and Kobus Road
and that he fired the shots which
killed the deceased and the shots intended to kill Benito which
injured Calvin and Cassidy. His
bare denial of being there and his
version is not reasonably possibly true. In the circumstances, counts
3 to 7 are established.
[62]
In the result, and based upon a careful consideration of the evidence
in its entirety, I make the following orders:
The
accused, Walter Williams, is found GUILTY on COUNTS 1, 2, 3, 4, 5, 6,
7, 8, 9 AND 10.
————————————
S MOODLIAR
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR THE STATE:
Adv Ahmed instructed by the National
Director
of Public Prosecution, Port
Elizabeth
COUNSEL
FOR THE ACCUSED:
Adv
Coertzen instructed by Legal Aid, South Africa
[1]
No
51 of 1997
[2]
1998
(2) SACR 432
(SE) quoted in the case of
S
v Khoza
2014 JDR 200 GP
[3]
S
v V
2000 (1) SACR 453(SCA)
at 455
b
[4]
2005
(2) SACR 318( E)
para (37]
[5]
2009
(1) SACR 523
(SCA) para [26]
[6]
1959
(3) SA 337
(A)Para 340H-341B
[7]
1990(1)
SACR 95 (A)
[8]
2003
(1) SACR 583
(SCA) 593
e
-
594
a-h
[9]
[1972]
3 All SA 568 (A)
[10]
1939
AD 188
AT 202-203
[11]
1967(4)SA
566(A) AT 570B-F