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 12
|
|
S v Klaas (CC16/2020) [2021] ZAECPEHC 12 (29 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Not Reportable
CASE NO: CC16/2020
In
the matter between:
THE
STATE
And
REVALDO
KLAAS
ACCUSED
Coram:
Govindjee AJ
Heard:
19 January – 27 January 2021
Delivered:
29 January 2021
JUDGMENT
GOVINDJEE
AJ:
Background
1.
Enrico
Kasterivier (“the deceased”) was shot in Arcadia, Port
Elizabeth, on 26 May 2019. He suffered multiple gunshot
wounds to the
head and body and died as a result of these injuries. The accused was
charged with his murder, together with charges
relating to statutory
infractions of the
Prevention
of Organised Crime Act
,
1998
[1]
(
POCA
)
linked to gang activity, and contraventions of the
Firearms
Control Act
,
2000 (
FCA
).
[2]
I do not deem it necessary, for purposes of this judgment, to repeat
the contents of the seven charges in the indictment. I direct
that
the indictment (including the preamble thereto related to criminal
gang activities and the summary of substantial facts) be
treated as
if specifically incorporated at this stage of my judgment.
2.
For ease of reference, however, it will be useful to deal with the
charges under separate heads:
a.
Counts 1 and 2
deal with the accused’s alleged
participation in criminal gang activity in contravention of
POCA
.
b.
Count 3:
Murder.
c.
Counts 4-7:
Unlawful possession of a firearm and ammunition on
26 May and 7 June 2019.
3.
Pleas of
not guilty were entered for each of the charges. Various admissions
pertaining to the crime scene investigation work (including
forensic
ballistics analysis) of the police were recorded in terms of section
220 of the
Criminal
Procedure Act
,
1977
(CPA)
.
[3]
The
State’s case
4.
Warrant Officer Zakhele Mhlanga testified that he was attached to the
Ballistics Section of the South African
Police Services (SAPS),
operating from the Forensic Science Laboratory. He compared two cases
emanating from Bethelsdorp Police
Station with one another on 12
August 2019. Various bullets that had been fired were successfully
matched against “test”
bullets following microscopic
individualisation of fired bullets stored in the Internal Ballistics
Information System. The unique
marks on bullets left by firearms made
this analysis possible. The witness was able to conclude that the
bullets analysed (and
reflected in Exh D, which were found at the
scene of the shooting of the deceased) were fired from the same
firearm (a Taurus Revolver
with Serial Number JD76537, as admitted in
Exh E). It was not in dispute that this was the weapon found in
possession of the accused
when he was arrested on 7 June 2019.
5.
Constable Davian Piet from the Provincial Organised Crime
Investigation (Anti-Gang) Unit also testified. He
had been employed
by the SAPS for ten years and spent 3 years working in the Anti-Gang
Unit. His duties included profiling arrested
persons, gathering
information in the Northern Areas of Port Elizabeth, conducting
searches, photographing premises and storing
data relating to gang
membership and activity.
6.
According to Constable Piet, the accused had been profiled by the
Anti-Gang Unit on various occasions and was
a member of the “Honde
Koppe” gang. This gang was in constant conflict with a smaller
grouping, the “G-Stars”
gang, and their long-standing
interactions were described as a gang war. The history of this
conflict and gang alliances and associations
were detailed by
Constable Piet. The reasons for the acrimony related largely to gang
territory and turf, which was linked to the
economy of the gang and
their ability to generate funds through illegal activities such as
selling drugs, abalone poaching, theft
of motor vehicles, house
robberies and business robberies.
7.
Gang members were required to prove loyalty to their gang. They
could, for example, be given a firearm to shoot
a member of an
opposing gang and would then return that to the owner, who would pass
the firearm onto another gang member for safe-keeping
at a house some
distance away from a drug post. Gang members were typically
vulnerable and young, seeking a sense of belonging,
desiring
protection or living in poverty. Firearms could, alternatively, be
stored with a gang member who lived in the midst of
another gang’s
territory for purposes of protection.
8.
Constable Piet also explained the contents of a photo album he had
compiled (Exh G). In particular, tattoos
on the lower right leg of
the accused were photographed and highlighted because they depicted
the letters “NBA”, signifying
the phrase “Never
Broke Again” and a gang’s intention to make money.
Various other alleged gang members tattooed
with the letters “NBA”
were also depicted. So-called “hand insignia” and
“emojis” utilised
by various gangs were also described,
particularly the depiction of a dog by splitting the index finger
from the little finger
on one hand. Social media posts related to the
Honde Koppe gang were provided, in order to demonstrate that all
members of this
gang used the same “dog” hand insignia
when communicating or posting messages on social media. Photographs
of graffiti
inscriptions of “NBA” on walls and small
buildings were also provided, demonstrating the territory of the
Honde Koppe
gang given their proximity to known drug posts in areas
such as Arcadia and Bloemendal. The witness also testified that
although
members of gangs did not adopt a particular colour, as is
the position in the United States of America, members of the Honde
Koppe
gang frequently wore Nike branded T-Shirts and jackets, K-Way
branded beanies and branded caps. An organogram of sorts, prepared
by
the witness, demonstrated the alleged members of the “Honde
Koppe: Arcadia (“Kaffer Boys”) group, including
the
accused. The members of the “G Stars and Kalawa-Bouers
(affiliated to the Spotbouers)” gang, led by Garth Bustin,
were
also depicted, together with Levandre Louw, whose testimony is
reflected below. The different gang territories, cross-pollination
and shootings in different territories were explained and depicted
(Exh H). Jenneker Street was shown as G-Stars territory. Drug
posts
and people reporting to gang leaders and their gang affiliations were
also depicted (Exh I). The witness confirmed that the
normal response
to a gang-related shooting would be revenge and retaliation.
9.
Under cross-examination, Constable Piet testified that it was not
difficult to distinguish gang members from
civilians. A person would
be found in different areas associated with the same gang and a
person loyal to a gang would also brand
himself accordingly and not
tattoo himself in that fashion otherwise. It was unknown, from the
witness’ experience, for a
non-gang member to tattoo themselves
with a gang tattoo. The accused was specifically considered to be a
member of the Honde Koppe
gang because of his associations and his
tattoo. He had been found to be present at different drug posts on
various occasions,
associating with other known gang members. This
was a dangerous gang and young people refusing to do their bidding
would not be
considered trustworthy and could be labelled as
traitors, possibly being injured or killed for failure to follow an
instruction.
It was specifically put to the witness that the
accused’s case was that he was not a member of the Honde Koppe
gang, and
that he was instructed by another person, a gang member, to
keep the firearm that was found in his possession on the day of his
arrest. A single photo was produced in evidence demonstrating the
accused in the presence of gang members, and the witness also
relied
on the photographs of the accused’s tattoos already described.
The witness also testified under re-examination that
it would never
be the case that a gang member would give a gun to a civilian for
safekeeping and it was also abnormal for civilians
to be associating
with gang members at drug posts. Recipients of firearms transferred
from gang members would be other gang members.
The witness’
opinion was that the accused lived in an area where he may need to
defend himself from G-Star members, who were
dangerous, and a firearm
could be necessary for protection. His evidence was based on personal
observations and the study of gang
activity in the Northern Areas and
was clear and credible.
10.
Sergeant Ulysses Mclean testified that he had been stationed at the
Anti-Gang Unit for more than four years, having been employed
by SAPS
for 12 years. He had been on duty on 7 June 2019 in Arcadia and had
been part of a convoy searching for the accused. The
witness was in a
Renault Duster together with Sergeant Uithaler, who was driving, and
another person who was expected to point
out the accused. While
driving in Rensburg Street that person noticed the accused as the
vehicle in which they were travelling
passed him on the road.
Sergeant Uithaler called Captain Kriel, who was in a “following
vehicle”, while driving. It
was Captain Kriel who stopped first
to apprehend the accused. The Renault Duster made a U-turn and the
witness confirmed with the
other passenger the identity of the person
being pointed out. Sergeant Mclean alighted from the vehicle and
searched the accused,
finding a black gun placed in the front of his
pants underneath a shirt or T-shirt. The accused confirmed that this
was a real
gun, after which Sergeant Mclean, suspecting him to be
holding the firearm without a permit, arrested him for unlawful
possession
of a firearm, read him his rights and contacted the
forensic unit to take photographs and DNA and to confirm if this was
a real
gun. The accused was handcuffed and placed in the police bus.
Constable Ceasar arrived on the scene thereafter to safely remove
the
gun. He took possession of the firearm and five live rounds were
observed inside the weapon. Photographs taken of the accused
at the
time were also submitted (Exh J), together with an affidavit from
Constable Ceasar. It was admitted by the accused that
the firearm and
cartridges collected were correctly handled and packaged prior to
submission to the Port Elizabeth Forensic Science
Laboratory.
11.
The witness did not see anybody with the accused at the time and
testified that had there been somebody present, that person
would
also have been searched. He had a vague memory of the incident, being
unable to remember various details. He confirmed that
he only saw the
accused once the Renault Duster had been turned and stopped, by which
time Captain Kriel was already at the scene
and holding the accused.
12.
Levandre Louw testified that he was 20
years old. He had left school because of incidents of fighting at the
age of 15 and was still
in grade 4 at the time. He suffered from
learning disabilities, was unable to read or write and was
unemployed. He was a member
of the G-Stars gang and lived close to
the leader of that gang, Garth Busten, together with friends who were
also G-Star gang members.
He was friends with the deceased, who
resided with him. Louw admitted using drugs during 2019, including
cocaine, mandrax pills,
tik and dagga, but testified that he had not
used drugs and was not under the influence of drugs on the day of the
incident. He
knew the accused from their days at school, as they
attended the same school around the same time, and the accused was in
a lower
grade. The accused resided at 1 Niekerk Street and was a
member of the Honde Koppe gang, going by the alias “Baba”.
The accused walked around with members of that gang, who were his
friends, and spent time with them at the drug post. The witness
had
last seen the accused three to four weeks prior to the incident at
his home, while the witness was at the shop. Prior to that,
the
witness had not seen the accused for some time because he (the
accused) was in prison. Prior to that, he would see the accused
two
to three times per week. The G-Stars and Honde Koppe gangs were
fighting about drug posts (establishments for the sale of drugs)
and
territory.
13.
On 26 May 2019, the witness was at his
home at 22 Jenneker Street. He went to Garth’s place,
across the road, to spend
time with him after 10 am. He was asked by
Garth to look for the deceased with a person named Gary, who had
since passed away.
The deceased was supposed to buy baked beans and
was taking long to return. They knew to look for him at the shop and
were unarmed.
Walking around the bend in the road towards the shop
the witness saw the accused standing there together with the
deceased. Nobody
else was observed in the street. The front of both
the accused and the deceased faced the witness, with the accused
standing behind
the deceased, approximately 20 metres away from the
witness and two metres behind the deceased. A map of Jenneker Street,
demonstrating
the curve in the road, the position of the witness in
relation to the accused at the time of the incident and the shop
towards
which the witness was walking was provided (Exh K). The
accused was wearing a blue hooded top, with the hood pulled up to
just
over the eyebrows, grey short pants and a pair of morning
slippers. His face was recognisable to the witness. He was holding a
black gun but the witness was unable to identify it further. The gun
was held by the accused with both hands and outstretched away
from
his body pointing away from him. The gun was pointed at the deceased,
who was two metres away from the accused. The witness
heard a gunshot
and he and Gary fell to the ground. The deceased had fallen, without
saying anything, but holding the back of his
neck with his right
hand. He lay motionless. The witness lay on top of his folded arms
with his chin resting on his arms in order
to observe the scene. Two
more shots were heard and the accused was observed still standing and
holding the gun in the same position,
pointing the firearm at the
deceased from a distance of approximately two metres. The accused was
then observed running into Niekerk
Street and the witness then went
to the body of the deceased to see if he was still alive. The
incident had lasted approximately
seven seconds. He then returned to
Garth to advise him that the deceased was lying dead in the street.
He did not return to the
scene as there were members of the Honde
Koppe there and it was a dangerous area, which is why he had been
accompanied by Gary
in the first place. A few weeks prior to this,
there was a shooting incident in the area of the Honde Koppe, and the
deceased had
been said to have been involved in shooting somebody
known as “Kakker”. When this occurred, revenge would be
the norm,
in the form of a retaliatory shooting.
14.
There were various shortcomings in the
testimony of Louw. During cross-examination he was somewhat hesitant
about whether the second
and third shots he had heard were fired by
the accused holding the gun in one hand or two. He initially
clarified that Garth had
asked him who the shooter was and that he
had advised Garth that it was the accused and that he had seen the
accused shooting the
deceased. He contradicted himself subsequently,
stating that he had told Garth about the shooting before being asked.
The witness
was vague as to whether Garth had called the police
himself, or whether he had requested him to do so. The witness also
insisted
that he had seen the police and made a statement the day
after the shooting on 27 May 2019. In fact, it is clear that the
statement
was only made on 4 June 2019 (Exh L). Part of this
statement is as follows:
“
Ek
sien dat @Baba (the accused) op @Tand (the deceased) skiet. Ek en
Gary het toe plat geval. @ Baba hardloop toe ‘n stukkie
weg
vanaf @ Tand. @ Tand was toe ook reeds op die grond gewees. Ek sien
toe dat @ Baba weer omdraai en weer op @ Tand skiet. @
Baba het toe
weggehardloop.” (own emphasis).
The
reference to the accused running away from the deceased before
turning and shooting the deceased again is different to Louw’s
testimony in Court.
15.
Captain Kriel was the final State witness. On 7 June 2019 he had been
in Rensburg Street tracing suspects. He confirmed much
of the
testimony of Sergeant Mclean that a witness travelling in the Renault
Duster they were driving in had identified the accused
and Sergeant
Uithaler had called him to confirm this. Captain Kriel had not seen
anybody walking with the accused immediately prior
to accosting him.
The accused had been between 20 to 30 metres away from him at that
time and had there been somebody else present
he would also have been
asked to make a statement, which was standard protocol whenever
somebody was arrested with a firearm in
the presence of somebody
else. He had secured the accused and arranged for a photographer,
Constable Ceasar, from the forensic
division to take photographs and
undertake the necessary tests.
16.
Under cross-examination, Constable Kriel was asked to comment on the
distances indicated by Louw during his testimony in relation
to Exh
K, as he was familiar with the area in question. His evidence
confirmed that the distance between where Louw had indicated
he was
standing in relation to the accused at the time of the shooting was
approximately 20 to 30 metres.
The
defence case
17.
Following the closure of the State’s case, the accused
testified that he was 17 years old at the time he was charged with
murder. He had finished grade 7 before leaving school in 2017 and
lived with his grandmother, mother and two nephews in Niekerk
Street,
Arcadia. He denied involvement in the deceased’s murder and
testified that although he was not a gang member, he
did associate
with and sit with gang members who were his soccer friends.
18.
On the day of his arrest, the accused had been in Rensburg Street
with a friend named Dwayne, who was a Honde Koppe gang member
and now
deceased. They were walking to the Department of Home Affairs to
collect an identification document. He was then asked
to keep a gun
for Dwayne and declined. Dwayne informed him that the police would
not search him as he was a minor. The manner in
which Dwayne
communicated, and his body language in particular, made the accused
scared and he took the firearm. Dwayne had spoken
to him in an
aggressive manner and he testified later that he had been forced to
take the firearm. It was at this point that the
police had arrived.
He was still conversing with Dwayne at the time and the police let
Dwayne go, without speaking to him. The
accused testified that he had
not first been apprehended by either Sergeant Mclean or Captain
Kriel, although these two officers
had searched him. He felt shocked
as he knew that he had done nothing wrong. A police officer grabbed
him, asked if his name was
Baba and told him that he was wanted for
attempted murder. He was taken across the road and the other police
officers then came
closer, searched him, found the firearm and asked
him if it was real. When he indicated that it was, he was handcuffed,
photographs
were taken of him and he was placed in custody.
19.
Regarding the NBA tattoo on his leg, the accused indicated that this
referred to the Young Boy rapper group and the fact that
he had this
tattoo was unconnected to the Honde Koppe gang. The accused had heard
about the murder on the day it occurred as the
story went around the
neighbourhood and he lived close to the scene of the crime.
20.
Under cross-examination, the accused could not explain why his
reference to the link between his tattoo and the Young Boy rapper
group was not put to Constable Piet. He indicated that he had not had
the opportunity to mention this to his counsel, despite admitting
that the Court had adjourned to afford him the opportunity to give
instructions immediately prior to Constable Piet’s
cross-examination.
21.
The accused admitted to looking up to the gang members but initially
denied that the NBA tattoo was associated with the Honde
Koppe gang
specifically. The accused had not copied the tattoo from this gang
despite this version having been put to Constable
Piet. The accused
later conceded that he may have copied the tattoo if this was the
version that had been put by his counsel, and
admitted that the
tattoo was used by the Honde Koppe gang.
22.
The accused testified that he had thought twice before deciding to
tattoo himself with the NBA letters, which is why the letters
had
been camouflaged, and had done so to impress his friends. He denied
that these were Honde Koppe associates and indicated that
his Honde
Koppe friends had never really seen his tattoo despite the accused
admitting to socialising with, visiting and smoking
with these gang
members. He initially denied having been with gang members at drug
posts and contradicted himself repeatedly as
to whether he had been
found by Constable Piet on various occasions at different Honde Koppe
drug posts. He could not provide a
satisfactory explanation as to why
this version had not been put to Constable Piet on his behalf.
23.
The accused was unable to provide any details about his time with
Dwayne on 7 June 2019. He had no recollection of where they
had met
each other that day. He indicated under cross-examination that
they were not really friends, but lived in the same
vicinity. At one
point he indicated that all Honde Koppe gang members living in his
area were his friends. He also testified, by
contrast, that he was
generally scared of Honde Koppe gang members because of what he heard
people say about them.
24.
The accused indicated that he had failed to think about the
consequences of keeping the gun at the time it was given to him.
He
had also never mentioned this to the police because of fear of the
repercussions. The accused could not offer any explanation
as to when
he had heard that Dwayne had passed away, although he recalled seeing
a photograph with “RIP” written on
it. He knew Louw since
Primary School days although he did not see him regularly. He would
recognise him immediately if he saw
him and there was no bad blood
between the two.
25.
On 26 May 2019, the accused had been in Aandblom Street standing in a
passage with civilians who were also soccer players. He
had been
drinking with these friends the previous night and had not slept. The
accused could not remember a single one of their
names and could not
recall if he was sober on 26 May 2019, when he had left Aandblom
Street, or where he had gone thereafter. He
could also not remember
when next he visited his home. He blamed this on being under the
influence of liquor and on the time subsequently
spent in prison but
was unable to comment on how drunk he had been at that time. He
testified that in any event these people were
minors and would not
come to Court to advise that he had not been involved in the
shooting. He had never informed the Investigating
Officer about the
possibility of this alibi.
26.
Elton Uithaler testified that he was a Sergeant working with the SAPS
Anti-Gang Unit in Port Elizabeth on 7 June 2019, but was
no longer in
police service. He had been on duty when the accused was arrested and
had travelled with a witness from Jenneker Street,
driving through
Arcadia. While in Rensburg Street, that witness had pointed out the
suspect who was walking with another unknown
person. Uithaler had
contacted Captain Kriel and parked his vehicle on open terrain in
front of Desai’s, approximately 100
metres from the suspect and
able to see him and his companion. The witness contacted Captain
Kriel again, who advised him that
he was a minute and approximately
400-500 metres away. Another SAPS vehicle then rode past the suspect
and Uithaler, which caused
him to believe that the suspect might have
seen this and would run away. As a result, Uithaler left his witness
in the vehicle
and ran across the road. The suspect had his back
towards him and could not see him approach until they were eight to
ten metres
apart. He told the suspect to stand still and again called
Captain Kriel to advise him of the situation. He took the suspect to
a SAPS vehicle he had observed across the road, and handed him to
Constable Mclean who searched him and found the firearm in his
pants.
Captain Kriel and other SAPS members had also stopped at that spot.
Uithaler left the suspect with them and went back
to his
vehicle to take the witness home. He had at some point mentioned to
the suspect that he was arresting him for attempted
murder. That
person’s nickname was Baba, a person he later came to know as
the accused.
27.
Under cross-examination, Uithaler admitted that his recollection of
the events in question was poor. He had been in a hurry
at the time
his statement was compiled and the process of arresting the accused
was more hurried than usual, in part because the
suspect was a minor
and the police were keen to process his arrest swiftly. Various
errors had been made in writing out the statement
and it was possible
that he had also erred in suggesting in his statement that he had
been travelling alone with the witness at
the time the accused had
been seen. He admitted to being confused about the events of 7 June
2019. Uithaler’s version of
events relating to the moment of
arrest corresponds with that of the accused and stands in contrast to
the evidence of Captain
Kriel and Sergeant Mclean. While Kriel was a
good witness, on his own version he had received the call from
Uithaler at the time
and may have been mistaken in thinking that
Mclean was travelling with him. In my view, this discrepancy is
ultimately not material
to the judgment in this matter and it may be
assumed to the benefit of the accused that he was first arrested by
Uithaler, who
was not travelling with Mclean at the time and who had
seen him walking with somebody else immediately prior to his arrest.
Analysis
28.
The
accused faces various charges emanating from the alleged murder of
Enrico Kasterivier on 26 May 2019. It is suggested that the
killing
was gang-related, and that the accused also contravened various
provisions of the
FCA
.
The test to be applied is whether the State has proved the guilt of
the accused beyond reasonable doubt.
[4]
29.
The eye-witness account of Levandre Louw
ultimately points directly to the accused being the perpetrator of
the crime of murder.
The accused denies the charge and these two
mutually destructive versions of events require resolution.
30.
The evidence of Louw, who was the single
witness to testify regarding the deceased’s death, must be
treated with caution and
its veracity subjected to scrutiny. This is
particularly because Louw would hold a natural bias against the
accused, because of
the alleged rival gang allegiance. He also had a
close relationship with the deceased, who lived with him. Special
consideration
also needs to be given to the issue of the
identification of the shooter, given that the accused’s defence
focused on this
and because Louw’s identification of the
accused was in dispute.
31.
Section
208 of the
CPA
provides that an accused may be convicted of any offence on the
single evidence of any competent witness. In
S
v Webber
,
[5]
it was held that although the evidence of a single witness should be
approached with caution, such evidence ought not necessarily
to be
rejected merely because the single witness happens to have an
interest or bias against the accused. The correct approach
is to
assess the intensity of the bias and to determine the importance
thereof in the light of the evidence as a whole.
[6]
32.
Where
the identity of the perpetrator of a crime depends on human
observation and is in dispute, the Court must exercise further
caution in carefully considering all the surrounding circumstances
before deciding whether the State has proved beyond reasonable
doubt
that the accused is the perpetrator. Reliability of observation is
also of fundamental importance. As the Court held in
S
v Mthetwa:
[7]
“
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…”
33.
Louw, although illiterate and suffering
from learning disabilities, was certainly a competent witness who
made a generally favourable
impression as a person speaking honestly.
He knew the accused well as they had grown up together and was able
to recognise him
immediately when entering the scene before the first
shot was fired. The accused himself confirmed that he knew Louw well
as they
were at school together. Louw was clear that he had seen the
accused shooting the deceased and denied that his testimony was a
form of retaliation as part of the ongoing gang warfare.
34.
The witness could not recall the
clothing worn by the deceased or Gary at the time of the incident and
freely admitted that he could
not remember such details. He was also
adamant that he had only heard three shots, even when it was
suggested to him that the police
investigation revealed four bullets
found in the body of the deceased. The witness only remembered
hearing three shots and did
not modify his version which appeared to
be drawn from his actual recollection of events. When asked why he
could remember the
accused’s clothing so well he said “Because
that’s what stuck in my mind and my ‘bra’ was shot
just
in front of me…he was wearing bright clothing and I could
see what he was wearing”.
35.
Louw
appeared to be a credible eye-witness to the shooting incident, and
his version of events was barely shaken in cross-examination.
Barring
the issue of date and time, the contradictions and omissions in his
testimony, detailed above, were minor and consistent
with honest
testimony based on his recollection of events.
[8]
It was clear that the witness did not have a proper concept of time,
and could not appreciate the difference between minutes and
seconds.
His recollection of the date on which he had made his statement to
the police was plainly wrong. While this may be attributed
to his
level of formal education and learning disabilities, these
shortcomings must be considered together with the totality of
the
merits and demerits of his testimony in order to determine whether
his evidence as a whole may be considered to be trustworthy.
36.
Louw’s demeanour was certainly
that of a person telling the truth and he displayed no malice or
resentment to the accused
while testifying, creating the impression
of a person who was genuinely sad about the passing of a friend and
who wanted to explain
to the Court what had occurred at the time of
his demise. Although he spoke softly at times, he was clear and
unequivocal in relation
to the accused and his actions on 26 May
2019. He stood firm in his description of the accused on the day of
the shooting, and
performed various demonstrations about the shooting
and his physical position at the time clearly to the Court. He was
also thoughtful
and appeared to weigh his words with appropriate
consideration before responding to any questions. His answers created
the overall
impression of honesty, particularly because there were
few material contradictions, inconsistencies or improbabilities in
his version
of events.
37.
Louw’s
evidence identifying the accused as the shooter also appears to be
reliable, particularly given his proximity to the
accused and
opportunity for observation (also bearing in mind the time of day of
the shooting and the time he had to observe the
scene), coupled with
his prior knowledge of the accused. As the Appellate Division noted
in
R
v Dladla and Others
:
[9]
“
One
of the factors which in our view is of the greatest importance in a
case of identification, is the witness’ previous knowledge
of
the person sought to be identified. If the witness knows the person
well or has seen him frequently before, the probability
that his
identification will be accurate is substantially increased…What
is important is to test the degree of previous
knowledge and the
opportunity for a correct identification, having regard to the
circumstances in which it was made.”
Despite
the shortcomings identified in his testimony, Louw’s version
that the accused was a member of the Honde Koppe gang
and had
intentionally shot and killed the deceased must be believed as
truthful, also when considered together with the assessment
of the
accused’s denials which follows, and the totality of evidence
presented.
38.
The accused’s version of the
material events, in contrast to the testimony of Louw, is such that
it cannot be reasonably possibly
true when properly tested. His
version was inherently improbable in many ways, including why Dwayne
would have given a firearm
to a non-gang member for safekeeping while
walking on a public street immediately prior to his arrest. His
version was also replete
with inconsistencies, omissions and lack of
candour, as is evident from the summary of his testimony that has
been included in
this judgment. His response even to seemingly
innocuous questions was constrained and his testimony was not that of
a person coming
forward to shed light on the truth of what had
occurred and his movements at the time.
39.
While
Mr Schoonraad rightly conceded that he was not a good witness, it
cannot be said that this was only because he may have wanted
to
protect other people. He appeared to be hesitant at times during his
testimony, looking down occasionally. He also appeared
to be
flustered when contradictions in his testimony were pointed out,
retorting with a sarcastic question at one point and seemingly
weighing up what would appear to be best for his case before
answering. The vagueness in his responses as to his whereabouts and
actions on 26 May 2019 was particularly notable, demonstrating an
apparent partial recollection of events and selective memory.
To the
extent that the accused relied on an alibi defence, this must be
considered in the light of the totality of the evidence
in the case
and the Court’s impression of the witnesses.
[10]
On all the evidence, particularly the absence of any credible
testimony regarding such an alibi, I find that there is no reasonable
possibility that this suggestion is true.
40.
The
shortcomings in the testimony of the accused appear to be caused by
dishonesty rather than anything else.
[11]
His denials relating to the shooting and gang membership are not
reasonably possibly true and must be rejected. He was caught in
the
act by Louw, a person who knew him well and could identify him
easily, and later found to be in possession of the firearm that
had
been used to shoot the deceased. His version that he had received the
firearm from Dwayne on 7 June 2019 must also be rejected
as false
given the totality of evidence available. Given the respective gang
affiliations and the recent shooting of a Honde Koppe
gang member,
there was also a motive for the shooting.
41.
In my judgment, the evidence adduced on
behalf of the State accordingly proves the accused’s guilt on
the charge of murder
(count 3) beyond a reasonable doubt.
42.
It
follows from the finding that the accused was the perpetrator of the
murder that he has also been proven to have been in possession
of a
firearm and an unknown number of live rounds of ammunition on 26 May
2019. No evidence has been offered that the accused was
licenced to
possess the firearm and ammunition either on 26 May or 7 June
2019,
[12]
and he must
accordingly also be found guilty on counts 4, 5, 6 and 7 in the
indictment.
43.
Finally, as to the gang-related charges,
the evidence of Constable Piet confirms clearly that the Honde Koppe
constitute a criminal
gang as defined by
POCA
.
The evidence, including the photographic evidence presented,
demonstrates that the accused frequents the Honde Koppe gang’s
area and has adopted a tattoo associated closely with this gang. He
admits to socialising and associating with known members of
the Honde
Koppe. The accused’s denials about his gang affiliation must be
rejected when the totality of evidence, including
Louw and Piet’s
testimonies, his tattoo and association with gang members and Honde
Koppe drug posts, is considered. When
considering the provisions of
section 11 of
POCA
,
it is clear that the accused must be found to be a member of the
Honde Koppe criminal gang at the time of the offences for which
he
was charged.
44.
To
secure a conviction for gang-related offences under POCA requires
more than merely proving the underlying predicate offences.
[13]
In
S
v Jordaan
and
others
,
[14]
the Court held that the expression ‘to aid and abet’
cannot apply to the principal actor, only to a person who assists
him.
[15]
As correctly
conceded by Ms Landman, there was no evidence that the accused
wilfully
aided and abetted
any criminal activity committed for the benefit of, at the direction
of, or in association with any criminal gang activity, and
the
accused must be found not guilty, acquitted and discharged on count
1.
45.
For the accused to be found guilty under
section 9(2)(a) he must have performed “any act which is aimed
at causing, bringing
about, promoting or contributing towards a
pattern of criminal gang activity.” This “pattern of
criminal gang activity”
is defined in section 1 of
POCA
to include “the commission of two or more criminal offences
referred to in Schedule 1: Provided that…the last of those
offences occurred within three years after a prior offence and the
offences were committed –
a.
on separate occasions…”
46.
Schedule 1 of
POCA
includes murder and “any offence the punishment whereof may be
a period of imprisonment exceeding one year without the option
of a
fine”. It is common cause that the
FCA
offences for which the accused are to be convicted are Schedule 1
offences, and the accused’s murder of a rival gang member
and
unlawful possession of a firearm and ammunition on at least two
separate occasions must be considered to be acts aimed at causing,
bringing about, promoting or contributing towards a pattern of
criminal gang activity which is the offence described in section
9(2)(a). The accused is accordingly found guilty of count 2.
Order
47.
I make the following order:
a.
The accused is found not guilty,
acquitted and discharged on count 1.
b.
The accused is found guilty on counts 2,
3, 4, 5, 6 and 7.
__________________________
A. GOVINDJEE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Obo the
State:
Adv L. Landman
National Director of
Public Prosecutions, Port Elizabeth
North End
Tel:
(012) 842 1400
Obo the Defence:
Mr P. Schoonraad
Legal
Aid South Africa
,
564
Govan Mbeki Ave, North End, Port Elizabeth
Tel:
(041) 408 2800
[1]
Act
121 of 1998.
[2]
Act
60 of 2000.
[3]
Act
51 of 1977.
[4]
See
S
v Van Aswegen
2001
(2) SACR 97 (SCA).
[5]
1971
(3) SA 754 (A).
[6]
PJ
Schwikkard and SE van der Merwe (eds)
Principles
of evidence
(Juta)
2016 595. Also see
Nhlapo
v Rex
(AD
10 November 1952) cited in
R
v Bellingham
1955 (2) SA 566
(A) at 569.
[7]
[1972]
3 All SA 568
(A);
1972 (3) SA 766
(A) at 768A-C.
[8]
On
the relationship between certain errors and contradictions on
credibility, see
S
v Mkohle
1990
(1) SACR 95
(A) at 98(f-g) and
S
v Bruiners en ‘n Ander
1998
(2) SACR 432
(SEC) at 437g.
[9]
1962
(1) SA 307
(A) at 310.
[10]
R
v Hlongwane
[1959]
3 All SA 308
(A) 311-312;
1959 (3) SA 337
(A) 340H-341B.
[11]
On
the risk of a wrong conviction being reduced where the accused turns
out to be a lying witness, see
Tshiki
v S
[2020]
ZASCA 92
par 42.
[12]
See
s 250(1) of the CPA.
[13]
See
De
Vries v The State
[2011]
ZASCA 162
at par 48.
[14]
[2017]
ZAWCHC 131
par 134.
[15]
See
S
v Solomon and others
[2020]
ZAWCHC 116
par 924. Also see SV Hoctor (ed)
South
African Criminal Law and Procedure Volume III: Statutory Offences
(Juta)
(2011) par B4-46 on this offence constituting an extension of the
doctrine of common purpose.