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
>>
2021
>>
[2021] ZAECPEHC 11
|
|
S v Bailey (CC 26/2020) [2021] ZAECPEHC 11 (21 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
In
the matter between:
Case No: CC
26/2020
THE
STATE
And
GRANWILL BAILEY
Accused
JUDGMENT
GOVINDJEE
AJ:
Background
[1]
The
shooting of Mirlene Wilson (the deceased) is another unfortunate
chapter in the persistent gang-related warfare in Port Elizabeth’s
northern area suburbs. In this case the victim was an innocent
passer-by killed by a single stray bullet, but the events that
resulted in her shooting ultimately stem from the vengeful way in
which life is lived in certain parts of the city.
[2]
The
deceased died as a result of a gunshot wound to the head in Human
Street, Arcadia on 5 January 2020. The accused was charged
with her
murder, three counts of attempted murder and two contraventions of
the Firearms Control Act, 2000,
[1]
(FCA) related to unlawful possession of a firearm and ammunition. He
pleaded not guilty to all the charges. I do not deem it necessary,
for purposes of this judgment, to repeat the contents of the six
charges in the indictment. I direct that the indictment be treated
as
if specifically incorporated at this stage of my judgment.
[3]
The
various charges emanate from an altercation between the accused and
LeRoy Scholtz. Scholtz and his sister, Gaynor Coetzee (Coetzee)
both
testified that he had been sent to a nearby shop in Arcadia when his
encounter with the accused ensued. On this version, Scholtz
was
enraged at the accusation, levelled against him by the accused, a
Honde Koppe gang member, that he was somehow involved in
the murder
of a gang associate of the accused, Dwayne ‘Duey’
Jantjies (Jantjies). He returned home, changed sandals
into takkies
and despite the protestations and warnings of his mother (Patricia
Coetzee) and sister, Coetzee, set-off to accost
the accused. Scholtz,
followed by the two, collected stones along his route in Jenneker
Street and turned into Human Street. He
threw one stone, and then
another in quick succession. The accused evaded this attack, produced
a firearm from his pocket, and
fired once towards Scholtz, with
Coetzee and their mother a metre or two behind him at that time. It
was this shot that resulted
in the death of the deceased, the charge
of murder and three charges of attempted murder (in relation to
Scholtz, Patricia Coetzee
and Coetzee).
[4]
The
essence of the accused’s version is that he was not a gang
member. He was on the scene on the day of the incident and
involved
in a stone-throwing altercation with Scholtz. The Coetzee ladies were
not present. He saw the deceased coming into picture
out of the
corner of his eye at the time that a shot was fired from somewhere
behind him. That shot was fired at him by Chiecoucewills
Hartnick
(known as ‘Ian’), but resulted in the deceased’s
death. Scholtz and Coetzee held a vendetta against
him because he had
previously assaulted their cousin, Lester Loots. Hartnick, a G-Stars
gang member, had attempted to kill him
because he was witness to
another gang-related shooting the day before the deceased was shot
and killed.
The
state’s case
[5]
Coetzee
testified that she knew the accused well, given that the accused’s
mother had been involved in a relationship with
her cousin that had
yielded three children. The accused would accompany his mother to her
mother’s house and she and the
accused had been at school
together. She knew that the accused was a member of the Honde Koppe
gang and had no reason to be in
conflict with him. The witness
clearly described the conduct of her brother on the day in question,
admitting his anger at the
time. Scholtz had explained the issue
briefly when returning home to change into his takkies. The
allegation that Scholtz would
have somehow been involved in Jantjies’
death was surprising to Coetzee, given that Scholtz was not
affiliated to a gang,
although he did purchase drugs from the leader
of the G-Stars gang. She had followed him, seen him carry two stones,
one in each
hand, and had cautioned him not to engage with the
accused, whom she suspected would be carrying a firearm. Coetzee
testified that
she had seen her brother throw stones at the accused,
observed the accused point a firearm at him, looked at the accused’s
face and heard the shot before turning around and running back
towards Jenneker Street. She had been two metres behind Scholtz
at
the time the shot was fired. The accused had turned and run towards
Esterhuizen Street. She had also seen the deceased falling
and the
entire incident had lasted approximately twenty seconds. The witness
had not observed anybody at all while running behind
her brother in
Jenneker Street. She had noticed one person in the distance in Human
Street (where the incident occurred). Coetzee
could offer no
explanation as to where the deceased might have been or come from
immediately prior to the shooting. The deceased
had appeared suddenly
and seemingly out of nowhere, and people had emerged in the street
only after the shooting.
[6]
Coetzee’s
version of events was corroborated in material aspects by the
testimony of Scholtz. He testified that he was not
gang affiliated,
but visited a G-Stars gang post to obtain drugs. The accused was
known to him because of the relationship between
the accused’s
mother and his cousin, Lester Loots, but they were not friends. There
was no prior conflict between the two.
[7]
The
witness testified that the accused had confronted him at the shop
about the death of a friend and proceeded, with another person,
to
chase him down the street by throwing stones at him. He was angry and
left his home despite the protestations of his sister
and mother. He
picked up stones at the corner of his street, entered Human Street
with his mother and sister in tow and threw the
stones at the
accused. The accused evaded the stones by ducking, took out a black
gun and pointed it at him with his arm extended
horizontally. Scholtz
was looking at the accused’s face, approximately three metres
away from him, when a shot went off.
He was bending at the time and
then stood up, turned around and saw the deceased falling to the
ground. He ran towards home, accompanied
by his mother and sister,
and past the deceased who had fallen with an arm raised above her
head. The accused was seen running
towards Esterhuizen Street and the
incident had lasted approximately twenty seconds. Nobody else had
been visible to the witness
in Human Street at the time.
[8]
The
witness admitted during cross-examination that he had been unable to
point out the accused in a photograph parade that had been
conducted
and put this down to a change in the accused’s appearance,
saying that he had been thin at the time of the incident.
He
contradicted himself about the reason for his failure to identify the
accused in the photograph parade which had taken place
the day after
the incident, initially disputing the number of photographs he had
been shown and subsequently denying that the accused’s
image
had been included. He confirmed that he had not previously mentioned
the other person that had initially been with the accused
(in
relation only to the first stone throwing incident), and was not
completely clear when explaining the purpose for his original
visit
to the shop.
[9]
Hartnick
testified that he was a shooter for the G-Stars gang living in
Jenneker Street. He indicated that he did not know the accused
or
Jantjies and had never been questioned by the police in connection
with the latter’s death. On 5 January 2020 he had been
woken
and informed about the deceased’s death. He would never walk in
Esterhuizen Street because this was Honde Koppe territory
and he
would be shot there, given the poor relationship between the rival
gangs.
[10]
Hartnick’s
testimony was supported by Sergeant Xolani Peta, stationed at the
Provincial Organised Crime (Anti-Gang) Unit for
the past five years
and the Investigating Officer in this matter. He confirmed that he
was involved in northern area investigations
on a daily basis. He
became aware of the alleged shooter after taking the statement of
Scholtz on 5 January 2020, and started to
trace the accused, based on
that information, on 7 January 2020, visiting his home and leaving
his number at various Honde Koppe
posts so that the accused could
contact him. No information was obtained until the accused was
arrested on 9 January 2020.
[11]
Sergeant
Peta confirmed that the photograph of the accused that had been
included in the photo album shown to Scholtz was dated
in comparison
to an image of the accused at the time of his arrest, handed in as an
exhibit. The accused was tattooed with the
letters ‘NBA’,
signifying allegiance to the Honde Koppe and their motto of ‘Never
Broke Again’. He was
a known gang member, having been profiled
as such based upon witness testimonies. He also frequented Honde
Koppe drug posts, particularly
that of a person known as
‘Kaffertjie’, the Honde Koppe gang boss, and sported the
tattoo known to be associated with
that gang. Under
cross-examination, he denied that it was possible for the accused to
have the NBA tattoo because of an affinity
for basketball (on the
basis that ‘NBA’ is also the acronym for the National
Basketball Association). Gangsters, he
testified, did not trust other
people easily and would not typically permit non-gang members to
associate with them.
[12]
The
witness also confirmed that Jantjies’ police investigation
docket was known to him and contained no mention of the accused.
He
had assisted the defence to secure the attendance of other police
officers for purposes of consultation, and could confirm that
the
pocket book of a Sergeant Page contained no reference or entry to the
incident involving Jantjies on 4 January 2020.
The
defence
[13]
The
accused testified in his own defence. He stated that he lived in his
grandfather’s house together with his mother, grandmother,
three half-brothers (aged approximately between 12 and 7), sister and
uncle. His father has been serving life imprisonment since
he was
five years of age and the father of his half-brothers is Lester
Loots, who is related to the Coetzees and Scholtz.
[14]
He
was at school with Coetzee and got to know her when he would take his
half-brothers to her house. Loots supported the Coetzees
with money
for alcohol and drugs. He would occasionally visit the accused’s
mother in an intoxicated and argumentative state
and was physically
abusive towards her. On one occasion, four years ago, Loots had
visited his home while drunk. The accused had
opened the door as
Loots was about to kick it in, and had grabbed him and hit him
continuously, knocking him to the ground. Loots
had then travelled to
Gaynor Coetzee’s home and returned with the Coetzees and
Scholtz. According to the accused, this incident
could be the only
possible reason why Coetzee and Scholtz had made up the allegations
against him. Their vendetta was occasioned
by Loots supporting them
with alcohol and drugs, and due to the anger caused by his assault on
Loots.
[15]
The
accused denied being a Honde Koppe gang member, although he would buy
drugs from one of their drug posts. He had been walking
with Jantjies
on 4 January 2020 in Esterhuizen Street when Jantjies had told him
about an incident that had occurred the previous
day. Jantjies had
allegedly been involved in an altercation with Hartnick and a person
called Jonty, and had been threatened. Both
these people were known
to the accused. As Jantjies was sharing this information, the accused
noticed two people walking down an
alley and realised that these were
the same two people Jantjies had been speaking about. He then noticed
Hartnick produce a firearm.
Jantjies and the accused ran away in
Esterhuizen Street, Hartnick and Jonty followed and shots were fired
in the direction of Jantjies,
who was on the sidewalk. He heard a
number of shots, the last of which struck Jantjies. He assisted
Jantjies and noticed a hole
in his body where he had been shot. He
then called for an ambulance and, when that took long to arrive,
arranged with another friend
to take Jantjies to the hospital. They
then went straight to the police station, where he noticed Sergeant
Page, who was known
to him, and Captain Ross. They were on their way
to the hospital and advised him that they would visit him at his home
at 9am the
following day. The accused testified that the officers had
not noted anything in their pocket books at the time, because they
were
on their way to visit Jantjies in hospital.
[16]
On
5 January 2020, the accused had been minding his own business,
smoking outside a shop in Human Street when Scholtz had arrived.
Their verbal altercation resulted in him perceiving Scholtz to have
made reference to the shooting of Jantjies. He threw a stone
at
Scholtz, which hit him in the chest. Scholtz ran home whilst
threatening him. The accused remained in the vicinity of the shop.
Scholtz returned approximately five minutes later and a stone
throwing fight ensued, with the accused facing Jenneker Street and
Scholtz facing Esterhuizen Street. Nobody else was in the street at
the time. The accused at some stage moved towards the roadside,
threw
a stone and, out of the corner of his eye, noticed the deceased
walking. At that time he heard a shot sounding from behind
him. He
ran towards Jenneker Street, saw the deceased fall, and turned to
look back towards Esterhuizen Street, noticing that Hartnick
had a
gun in his hand which was being lowered from a shooting position.
Scholtz ran towards his home and the accused turned left
and ran in
the opposite direction up Jenneker Street. He turned around at that
stage and then noticed the Coetzees running from
their house towards
Scholtz. The accused testified that Scholtz could not have seen the
deceased, because he was looking towards
Esterhuizen Street at the
time of the stone throwing incident. He had seen the deceased come
around the corner from Jenneker Street,
turning left into Human
Street. He suspected that Hartnick, who was a G-Star member, had
aimed to kill him because he was a witness
to the Jantjies shooting.
The accused denied being in possession of a firearm on that day and
had not fired any shots towards the
complainants or the deceased.
[17]
Under
cross-examination, the accused indicated that he had assaulted Loots
as described four years ago, when he was 21 years of
age. He could
not adequately explain why his version of Coetzee and Scholtz being
present after that incident was not put to them.
He merely indicated
that he had forgotten this. He also admitted that he had failed to
indicate to Hartnick that he recognised
him because of an association
between Hartnick and his cousin – this too was only recalled
after Hartnick had testified.
He admitted that the version that had
been put on his behalf relating to the shooting incident on 4 January
2020 was different
from his own testimony and could not explain this
discrepancy. His version had also changed as to whether or not he and
Scholtz
had both initially been throwing stones at one another, and
whether they were still stoning one another at the time the shot was
fired.
[18]
Hartnick
had testified that he could not walk in Esterhuizen Street because of
his G-Star association, and this testimony had remained
unchallenged,
despite the accused’s version being that Hartnick had fired the
shot from close to that street, and a matter
of a few metres away
from the Honde Koppe gang boss’ drug post. On his version of
events, Scholtz was at that stage at the
bottom of Human Street, and
must have then been very close to the deceased. Significantly, the
accused could offer no explanation
whatsoever for failing to report
the 5 January 2020 shooting to the police, despite this being the
second occasion in two days,
on his version, that his life had been
in danger at the hands of Hartnick. He testified that he had been at
his house from the
day of the shooting until the day of his arrest,
and suggested that he may have been at the back of the house when
Sergeant Peta
had looked for him. This was never put to Sergeant
Peta. Again the accused explained this by indicating that he had
forgotten this
piece of evidence.
[19]
The
accused confirmed that he had heard that he was being implicated a
few minutes after the incident. Yet he did not visit the
police
station to report his alleged sighting and identification of the real
shooter.
Analysis
[20]
It
is true that the identity of the perpetrator of a crime depends on
human observation and that, when in dispute, a court must
carefully
consider all the surrounding circumstances before deciding whether
the state has proved beyond reasonable doubt that
the accused is the
perpetrator.
[2]
In order to
address the two mutually destructive versions relating to the
shooter, I have specifically considered all the direct
evidence
available, including the credibility and reliability of the
witnesses, and measured the reliable evidence against the
evidence
found to be false and measured this against the probabilities.
[3]
In respect of the actual identification of the shooter, this has
included consideration of the possible fallibility of human
observation,
the extent of the witnesses’ prior knowledge of
the accused and the corroborative dimensions of their testimony, the
inability
of Scholtz to identify the accused during the photograph
identification process, the mobility of the scene, opportunity for
observation
and evidence presented by the accused. I have also
considered that the state did not call Patricia Coetzee to testify,
and found
that, given the other available evidence presented, no
adverse inference ought to be drawn.
[21]
There
is no dispute that the accused was on the scene and engaged in stone
throwing with Scholtz. The defence suggests, however,
that he was not
the person who produced the firearm and fired the shot. The state’s
case relies heavily on the eye-witness
accounts of Coetzee and
Scholtz. Both these witnesses, and Scholtz in particular, were
unsophisticated, but appeared to me to be
honest in respect of the
material components of their testimonies. I find that Coetzee’s
version of events was cogent and
believable. It is true that she was
unable to account for minor discrepancies in her testimony when
compared to the written statements
made at the time of the
shooting.
[4]
She spoke very
softly and became flustered at times when trying to explain these
contradictions. Despite this, on the whole she
was a very good
witness. She made a particularly favourable impression in respect of
her identification of the accused and her
certainty that he had been
the one who had fired the shot. She expressed incredulity at the
suggestion that she had some reason
to fabricate her evidence and
spoke with clarity on that point.
[22]
Despite
the shortcoming in Scholtz’s testimony relating to the
photograph identification process, which I have considered,
he too
appeared to me to be an honest witness to the main events in
question. In
S
v Sauls and Others
,
[5]
the court held that:
“
The
trial judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is trustworthy
and whether, despite the fact that there are shortcomings and defects
or contradictions in the testimony, he is satisfied that
the truth
has been told.”
And
in
S
v Mkohle
:
[6]
‘
Contradictions
per se
do not lead to the rejection of a witness’ evidence…They
may simply be indicative of an error…not every error
made by a
witness affects his credibility; in each case the trier of fact has
to make an evaluation; taking into account such matters
as the nature
of the contradictions, their number and importance, and their bearing
on other parts of the witness’ evidence.’
I
accept that Scholtz, a relatively uneducated individual, was involved
in a fast-moving scene in which he was engaged in a fight
with the
accused. His testimony in respect of distances and time was clearly
influenced by this. Scholtz’s testimony
describing his
altercations with the accused on the day in question was clear, and I
have no hesitation in finding that he too
clearly witnessed the
accused drawing a firearm and firing the shot that killed the
deceased. It would be speculative to suggest
reasons for his failure
to identify the accused in the photograph that was included in the
photo album, and why he did not find
it easy to admit that he had
erred in that regard. His direct evidence of the incident, however,
corroborates Coetzee’s identification
of the accused as the
shooter, and was unshaken in that respect.
[23]
I
found Hartnick to be a credible witness, who also stood firm in
cross-examination. He completely denied the accused’s version
and testified that he had never seen the accused prior to giving
testimony. Sergeant Peta’s testimony must also be accepted,
all
evidence pointing to the accused being a Honde Koppe gang member and
that there is no mention at all of his alleged involvement
in the
Jantjies investigation.
[24]
By
contrast, the accused was a poor witness who was unable to explain
material contradictions and improbabilities in his testimony.
His
testimony lacked candour and amounted to an attempt to convince the
court of a version of events that is, in material parts,
not
reasonably possibly true and can only have been fabricated. His
version suggests a fanciful connection between his assault
of Loots
and a plot by Coetzee and Scholtz to enact revenge by fabricating his
involvement in a fatal shooting some three years
later. The evidence
does not support this suggestion at all. Scholtz and, particularly,
Coetzee, knew the accused well and over
a long period of time and
there is nothing to suggest any preceding bad blood or vendetta. The
time lapse between the assault of
Loots and the shooting of the
deceased is significant, and the belated suggestion that Coetzee and
Scholtz were brought to the
accused’s home by Loots after the
assault is unsupported. Likewise, his attempt to convince this court
that his chosen tattoo
is completely unrelated and instead
demonstrates his affinity for basketball is ludicrous when
considering all the evidence suggesting
his gang affiliation. I also
find that his identification of Hartnick as the person involved in
the shooting of Jantjies is improbable
given the circumstances he
described and that it is likely that he did not even know what
Hartnick looked like prior to his appearance
in court. The suggestion
that Hartnick, a G-Star shooter, would have somehow crossed to
Esterhuizen Street, where he was
persona
non grata
,
and fired a shot from Honde Koppe territory standing a few metres
away from the house of the Honde Koppe gang boss towards the
accused,
must be rejected as being wholly improbable and not reasonably
possibly true. This is also the case in respect of his
suggestion
that he ran towards Jenneker Street in making his escape from the
scene, on the basis that Hartnick was firing at him
from Esterhuizen
Street. Although not identical, the testimony of Coetzee and Scholtz
regarding the position of the accused at
the time of the shooting,
and his retreat towards Esterhuizen Street immediately thereafter,
fits in with the other facts found
to be proved and must be accepted.
The accused’s version of events in all these material aspects
is so improbable that it
cannot reasonably possibly be true.
[7]
[25]
On
the time and sequence of events, it is the version of Coetzee that
accords most satisfactorily with the balance of proven facts:
the
stone throwing incident involving the accused and Scholtz took some
time following Scholtz and the Coetzees running into Human
Street
from Jenneker Street. It must be accepted that Scholtz and Coetzee
simply did not see the deceased before they turned into
Human Street.
They were running and would only have been in Jenneker Street for a
few seconds before turning into Human Street.
Some seconds
thereafter, and while the fight was taking place, the deceased walked
somewhere from the bottom side of Jenneker Street
to the corner of
Human Street. At that stage the accepted evidence demonstrates that
the accused had crossed the street to the
side opposite the shop and
would have had a straight view to that street corner. Even without
the accused’s testimony in
this regard, it is clear that the
deceased must have been seen by him prior to being shot and killed.
[26]
Weighing
the accepted facts in the light of the totality of the evidence and
the probabilities results in the clear conclusion that
the state has
proved beyond reasonable doubt that the accused was the person who
fired the shot that killed the deceased.
[8]
[27]
It
remains to be determined whether, in the light of all the evidence
adduced at the trial, the guilt of the accused has been established
beyond reasonable doubt in respect of each of the charges. On the
count of murder, it is clear that there was no direct intention
on
the part of the accused to shoot and kill the deceased. The question
is whether the state has proved, beyond reasonable doubt,
that the
accused subjectively foresaw the possibility that his actions would
result in the death of the deceased, and nevertheless
persisted in
his conduct.
[9]
As the court
noted in
S
v Makgatho
:
[10]
“
A
person acts with intention, in the form of
dolus
eventualis
, if the
commission of the unlawful act or the causing of the unlawful result
is not his main aim, but he subjectively foresees
the possibility
that in striving towards his main aim, the unlawful act may be
committed or the unlawful result may ensue, and
he reconciles himself
to this possibility.”
[28]
The
question is whether there was a real, as opposed to a remote,
subjective appreciation of the reasonable possibility of the shot
that the accused fired at Scholtz killing the deceased. It is
so that the dividing line between culpable homicide and murder
with
dolus
eventualis
is notoriously thin and that subjective foresight may be proved by
inferential reasoning based on the premise that ‘in accordance
with common human experience, the possibility of the consequences
that ensued would have been obvious to any person of normal
intelligence.’
[11]
That
possibility must have been foreseen by the accused when he witnessed
the deceased walking into his vision during his altercation
with
Scholtz. While Scholtz and Coetzee would have been facing Esterhuizen
Street so that the deceased was behind them in Jenneker
Street
turning into Human Street, she would have directly faced the accused
for some moments before the shot was fired. In
Mgade
v S
,
[12]
the accused also denied firing a single shot at the complainant and
the court
a
quo
rejected
his version of the shooting. On appeal, Jones J held:
‘
In
my view this argument is unsound. It assumes that the evidence shows
that the single shot was aimed exclusively at the complainant…in
circumstances where the possibility that it might strike the deceased
was neither foreseen nor foreseeable. It fails to take into
account
the totality of the evidence. Instead it selectively concentrates on
the fact that the appellant quarrelled only with the
complainant and
that he had no motive to aim a shot at the deceased. It fails to
appreciate that this is not relevant to the real
issue before the
court
a quo
,
which was whether on all the evidence the only reasonable inference
was that, whatever his motive, the appellant fired the fatal
shot in
reckless disregard of the possibility, which he foresaw, that he
might hit the deceased…There is no reason to think
that the
appellant, like the complainant, did not see the deceased. Indeed,
the appellant did not have his back to the deceased
as the
complainant may have done. The appellant was facing the deceased who
must have been either next to the complainant to his
left or partly
behind him…It is significant that the appellant did not give a
version that he did not see the deceased,
and could not have seen
him. On the contrary, it is proper to accept from his version…in
court that he knew all along that
the deceased was there. There can
be no doubt on the evidence, therefore, that the appellant knew that
the deceased was close to
the complainant when the fatal shot was
fired. In the circumstances he must have foreseen and therefore did
foresee the possibility
that the deceased might be struck by a shot
fired at close range in his direction.’
[29]
The
same holds true on my assessment of all the evidence, including the
accused’s acknowledgment that he had seen the deceased
walking
prior to her death. It was approximately 8:30 am on a Sunday morning.
The street was empty other than the accused, the
Coetzees and
Scholtz. The accused was facing them from the side of Human Street
opposite the shop and drew a firearm during the
altercation. From
there, he was looking down Human Street and straight towards
the corner of Jenneker Street. The deceased
came into picture out of
that same corner, he reconciled himself to the possibility that she
may be killed, and recklessly persisted
in firing the shot that
killed her. This was not a remote possibility given the length of the
street, the vantage point he held
and his angle of sight, and the
likely distance between the accused and the deceased, as is evident
from the testimonies of the
eye-witnesses, aided by the photographs
of the scene. There is no reasonable possibility that subjectively
the accused did not
foresee that the shot he fired could kill the
deceased, and proof beyond reasonable doubt has accordingly been
established.
[13]
The accused
must accordingly be convicted of murder on count 1. It follows from
these findings that the accused is also guilty
of counts 5 and 6 in
respect of unlawful possession of a firearm and ammunition in terms
of the FCA, there being no evidence to
suggest that the accused was
licenced for these purposes.
[14]
[30]
I
am also satisfied that the state has proved beyond reasonable doubt
that the accused unlawfully and intentionally attempted to
kill
Scholtz by firing at him, so that the accused must be convicted on
Count 2.
[31]
The
state noted that there was insufficient evidence to convict the
accused of Counts 3 and 4 in relation to attempted murder of
the
Coetzees. I agree and find the accused not guilty on those counts.
Order
[33]
I make the following order:
1.
The
accused is found guilty on counts 1, 2, 5 and 6.
2.
The
accused is found not guilty, acquitted and discharged on counts 3 and
4.
____________________
A. GOVINDJEE
ACTING
JUDGE OF THE HIGH COURT
Obo the
State:
Adv L. Landman
National
Director of Public Prosecutions
North
End, Port Elizabeth
Tel:
(012) 842 1400
Obo the
Defence:
Mr van der Spuy
Legal-Aid,
South Africa
North
End, Port Elizabeth
Tel:
(041) 484 2800
[1]
Act
60 of 2000.
[2]
S
v Mthetwa
[1972]
3 All SA 568
(A)
at
page 570
.
[3]
See
S
v Janse van Rensburg and Another
2009 (2) SACR 216 (C).
[4]
See
S
v Bruiners en ‘n Ander
1998 (2) SACR 432
(SEC) at 437g
et
seq
on the relevance of non-substantial variations.
[5]
1981
(3) SA 172 (A).
[6]
1990
(1) SACR 95 (A).
[7]
See
S
v Shackell
2001 (2) SACR
185
(SCA)
194g-i.
[8]
On
the importance of prior knowledge in identification, see
R
v Dladla and others
1962 (1) SA 307
(A) at 310.
[9]
2013
(2) SACR
13
(SCA)
para 11.
[10]
Ibid
para
9.
[11]
Ndlanzi
v S
2014
(2) SACR 256
(SCA) at para 32.
[12]
[2006]
ZAECHC 30
at
paras
4, 7.
[13]
See
S
v Sigwahla
1967 4 All SA 431
(A). Also see
S
v Nkombani and Another
1963 (4) SA 877 (A).
[14]
Section
250(1)
of the CPA.