Brief Summary

Criminal Law — Murder — Identification evidence — Accused charged with multiple offences including murder and gang-related activities — Witness identified Accused 1 and Accused 2 as perpetrators of the murders during a confrontation — Legal issue of the reliability of single witness identification — Court found identification credible and corroborated by circumstantial evidence, leading to conviction of both Accused on murder charges.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal trial on the merits in the High Court of South Africa, Eastern Cape Division, Gqeberha. The proceedings concerned a multi-count indictment arising from a fatal shooting incident and related gang-activity allegations, together with further possession offences alleged against one of the accused.

The parties were the State as prosecutor and two accused persons, namely Ashlyn Camphor (Accused 1) and Duwayne Williams (Accused 2). Both accused pleaded not guilty to all charges.

The matter proceeded to trial, during which the State led evidence from several witnesses addressing, among other things, identity, gang affiliation, ballistics, CCTV footage, and the execution of search and arrest warrants. The defence presented alibi evidence and challenged the reliability of the State’s identification evidence and, in respect of Accused 1, disputed that contraband had been found in his room. This judgment determined guilt or innocence on the counts (with sentence to follow separately).

The general subject-matter of the dispute was the identity and criminal liability of the accused for a double murder and related offences said to have been committed in the course of, and for the benefit of, alleged criminal gang activity associated with the Hondekoppe gang, as well as the lawfulness of possession of drugs, explosives, teargas, and ammunition allegedly found at Accused 1’s residence during the execution of search warrants.

2. Material Facts

It was common cause that on or about 26 January 2021 at or near 2[…]5 Harrington Street, Arcadia, Gqeberha, Jason Petersen and Zhane Peters were killed by being shot, and that the shooting occurred in circumstances involving a grey Ford panel van. The fact of the deaths and the general circumstances of the attack were not in dispute; the principal contested question on the murder-related counts was who the perpetrators were.

The State relied materially on the evidence of Winston Simon, who was the only witness who purported to identify the accused as being present and involved at the scene. Simon testified that he was at the Harrington Street address with the deceased and another person, that a grey Ford panel van with dark tinted windows approached, and that he spoke briefly with a masked passenger who asked where beers could be bought. Simon stated that during this interaction he identified Accused 1 as the driver and Accused 2 as seated in the back behind the passenger, and that he knew both accused from prior familiarity in the area. After Simon turned away, the (unidentified) passenger alighted with a firearm and shots were fired. Simon fled and, from a position near a container some distance away, observed the van still present while Accused 2 and the unidentified passenger went into the Harrington Street house, after which further gunshots were heard from inside.

The State also relied on CCTV footage from a nearby premises, interpreted in court through the evidence of Sergeant Peta, which depicted the van’s movements before and after the incident and reflected that the van stopped at or near the crime scene for approximately about one minute. In addition, the State led evidence from Warrant Officer Bekker (and Officer Bekker) who conducted a reconstruction demonstrating, on the version presented, that Simon would have been able to see and identify a person seated in the position attributed to Accused 2 in the van.

On the issue of firearms used, the State relied on the evidence of a ballistic expert, Warrant Officer Karen Africa, who concluded that two firearms were used at the scene based on the cartridges and a bullet recovered.

As to the gang-related counts, the State relied on evidence (including from Warrant Officer Piedt) concerning alleged gang activity in the relevant areas, the operation of rival gangs, and profiling information suggesting the accused were associated with the Hondekoppe. The State’s case included an asserted motive of retaliation connected to earlier violence involving Accused 2’s family.

Separate from the shooting incident, the State relied on evidence that on 24 February 2021, police executed search and arrest warrants at Accused 1’s home. During the search of a room associated with Accused 1, the police allegedly found drugs, explosives, teargas/pepper spray, ammunition, and related items. Sergeant Peta testified to the discovery of these items in Accused 1’s room and to Accused 1 providing an explanation that some drugs were for dog training, supported by a permit that had expired on 23 February 2021. Captain Franks, Accused 1’s commander, testified that Accused 1 had no permission to possess the items found at his residence. Warrant Officer Potgieter provided evidence about the nature and control of training-drug permits in the narcotics unit and the rule that such permits were not to be removed from official premises.

The accused persons placed material facts in dispute. Both accused denied participation in the shootings and relied on versions amounting to alibi explanations. Accused 1 denied that he was present at the crime scene and gave a detailed account of his movements with others during the day. Accused 2 also denied gang membership and involvement in the shootings and presented his own account of where he was and with whom he spent the day. The defence versions were not consistent with each other in several respects, particularly concerning movements and timings. In respect of the search, Accused 1 disputed that he possessed the contraband and disputed aspects of the police account of the search, while admitting certain lawful items and acknowledging the existence of the permit in his work-related materials.

3. Legal Issues

The central legal questions were whether the State proved beyond reasonable doubt that Accused 1 and Accused 2 were the perpetrators (or co-perpetrators) of the murders and related offences, given that identity was primarily established through the evidence of a single identifying witness.

A further legal question was whether, on the proved facts, the accused could be held liable on the basis of the doctrine of common purpose, including where the evidence (as presented) did not include direct observation of each accused personally firing shots. This required the court to determine the application of established legal criteria to the factual matrix, including inferential reasoning from circumstantial evidence.

In respect of Accused 1, additional legal questions concerned whether the State proved unlawful possession of the items found during the search and whether a belated challenge to the validity of the search warrant could affect the admissibility or weight of the evidence relating to the search and seizure.

The dispute therefore involved mixed issues of fact (identity, credibility, possession, alibi reliability), the application of law to fact (single-witness caution and common purpose requirements), and to a limited extent evaluative judgment in weighing credibility and drawing inferences from circumstantial evidence.

4. Court’s Reasoning

The court approached the murder-related counts on the basis that the State’s identification case depended materially on a single witness, Simon. It applied section 208 of the Criminal Procedure Act 51 of 1977, which permits conviction on the evidence of a single competent witness, while emphasising the need for caution in evaluating such testimony. In this context, the court referred to authority on the cautionary approach to single-witness evidence, highlighting that credibility assessment is not a mechanical “checklist” exercise, but a common-sense evaluation of whether the evidence is trustworthy when considered as a whole.

In assessing Simon’s reliability, the court emphasised his prior familiarity with both accused, his description of the interaction at close range when he leaned on the van door, the daylight conditions, and the absence of any immediate disturbance at the moment of identification (the court treated the identification as occurring before the gunfire began). The court considered that nothing in the circumstances described suggested an impediment to accurate observation at that moment. The court also noted that Simon’s evidence was not exaggerated in key respects: he did not claim to have seen Accused 1 alight and shoot, nor did he claim to have seen Accused 2 with a firearm at the initial stage outside the house. The court regarded this restraint as consistent with reliability rather than fabrication.

The court considered arguments directed at possible bias or motive, including the suggestion that Simon belonged to a rival group and might have reason to falsely implicate the accused, and the insinuation that Accused 1 might be implicated due to his status as a police officer. The court treated the mere possibility of bias as insufficient to discredit Simon without evidential support demonstrating that he was intent on false implication. It reasoned that accepting a general proposition that a self-confessed gangster’s evidence should be rejected would be untenable in principle and inconsistent with a proper credibility inquiry.

The court found that Simon’s identification evidence was supported by corroborative features. It referred to the reconstruction evidence indicating that a person in Simon’s position could see occupants seated as Simon described. It also considered the CCTV footage as consistent with the brief duration and movement of the van at the scene, which the court treated as aligning with Simon’s description that the incident unfolded rapidly.

Turning to the defence versions, the court placed weight on the fact that the alibi narratives of the accused and their supporting witnesses contained material contradictions on important aspects of the day’s movements and timing. The court treated these contradictions as undermining the credibility of the defence case. It further remarked on the desirability of putting an accused’s version to State witnesses during cross-examination and noted that Accused 1’s version had not been put to witnesses, which the court viewed as contributing to the impression that the defence account emerged as an afterthought.

On common purpose, the court applied the requirements stated in S v Mgedezi and endorsed in S v Thebus. It reasoned that the accused were together in the van at the scene, that Accused 2 and an unknown person were seen entering the house where the deceased were killed, and that the perpetrators left in the same van driven by Accused 1. The court treated Accused 1’s role as the driver who transported the assailants to the scene, waited, and removed them immediately after the killings as an act of association sufficient to ground liability on common purpose, given the overall circumstances as the court accepted them.

With respect to Accused 2, the court acknowledged that Simon did not testify to seeing Accused 2 with a firearm or firing shots. However, the court drew an inference from the ballistic evidence that two firearms were used and from Simon’s evidence that two persons entered the house, after which shots were fired. Applying the rules of circumstantial reasoning articulated in R v Blom, the court concluded that the inference that Accused 2 possessed and used a firearm in the killings was the only reasonable inference consistent with the proved facts as accepted by the court.

On the gang-related counts, the court accepted evidence that the accused were members of the Hondekoppe and that the killings were a retaliatory act in the context of gang conflict, thereby treating the offences as committed in the furtherance of gang activity. In doing so, it accepted the State’s evidence concerning gang dynamics and motive in the area, as well as the profiling evidence led by the State.

Regarding the search and seizure at Accused 1’s home, the court rejected a late challenge to the validity of the search warrant, noting that the warrant had been admitted by agreement and that the issue had not been properly raised in a manner that would have allowed the State to meet it. The court further reasoned that, on the evidence as accepted, Accused 1 had cooperated and consented to the search, and that the belated point did not establish prejudice in the circumstances described.

On the merits of the possession charges, the court preferred the evidence of Sergeant Peta (supported by Lieutenant Colonel Kriel and Captain Franks, and partially consistent with aspects of Accused 1’s own position regarding the permit and dog-unit context). The court considered it significant that Sergeant Peta phoned Accused 1’s commander to verify the permit explanation, which the court treated as consistent with the police having actually found the drugs and related items in Accused 1’s room and having received that explanation from him. The court rejected Accused 1’s denial that the items were found as described and accepted the State’s evidence that Accused 1 unlawfully possessed the contraband referred to in the relevant counts.

5. Outcome and Relief

The court found that the State proved guilt beyond reasonable doubt on the relevant counts.

Accused 1 was convicted on counts 1 to 12.

Accused 2 was convicted on counts 1 to 7.

The judgment (as provided) did not record any specific order as to costs, which is consistent with the ordinary position in criminal proceedings where costs orders are not typically made as between the parties in the manner common to civil litigation.

Cases Cited

R v Mokoena 1932 OPD 79.

R v Mokoena 1956 (3) SA 81 (AN) at 86.

S v Sauls 1981 (3) SA 172 (A) at 180E–G.

S v M 2006 (1) SACR 135 (SCA).

S v Webber 1971 (3) SA 754 (A).

S v Mgedezi 1989 (1) SA 687 (A).

S v Thebus [2003] ZACC 12; 2003 (2) SACR 319 (CC) para 49.

R v Blom 1939 AD 188 at 202–203.

Legislation Cited

Criminal Procedure Act 51 of 1977, section 208.

Prevention of Organised Crime Act (POCA) (as the statutory basis of the gang-related counts, as referenced in the charge formulation in the judgment).

Rules of Court Cited

No rules of court were cited in the judgment as provided.

Held

The court held that, despite Simon being a single witness on the events identifying the accused, his evidence was sufficiently reliable when assessed with caution and in light of corroborative features, including the reconstruction evidence concerning visibility into the van and the CCTV footage showing the van’s movements and brief stop at the scene.

The court further held that the proved facts supported convictions on the basis of common purpose, with Accused 1’s role as the driver who transported the assailants to and from the scene constituting an act of association, and with Accused 2’s participation being established by inference from the fact that two assailants entered the house and that ballistics demonstrated the use of two firearms.

In respect of the possession-related counts against Accused 1, the court held that the State’s evidence established that drugs, explosives, teargas/pepper spray, and ammunition were found in Accused 1’s room during execution of warrants, that Accused 1 had no lawful authority to possess them as claimed, and that the challenge to the validity of the search warrant was raised too late and without proper foundation in the proceedings.

LEGAL PRINCIPLES

The judgment applied the principle embodied in section 208 of the Criminal Procedure Act 51 of 1977, namely that a conviction may follow on the evidence of a single competent witness, provided that the court evaluates such evidence with appropriate caution. The assessment of single-witness testimony was treated as a matter of weighing merits and demerits and deciding whether, despite imperfections, the evidence is trustworthy when viewed holistically, consistent with the approach articulated in S v Sauls 1981 (3) SA 172 (A).

The judgment applied the doctrine of common purpose in accordance with S v Mgedezi 1989 (1) SA 687 (A) and S v Thebus [2003] ZACC 12; 2003 (2) SACR 319 (CC), including the requirement that the prosecution must prove beyond reasonable doubt that each accused had the requisite mens rea and actively associated with the unlawful conduct or outcome.

The judgment applied the rules governing circumstantial evidence and inferential reasoning as set out in R v Blom 1939 AD 188, requiring that the inference drawn must be consistent with all proved facts and must be the only reasonable inference excluding other reasonable possibilities, in order to ground guilt beyond reasonable doubt.

On procedural fairness in the conduct of trials, the judgment reflected the principle that it is generally desirable for an accused’s version to be put to State witnesses to enable response, and that a belated challenge to matters such as the validity of a warrant—particularly after admission of the warrant by agreement—requires proper foundational steps if it is to be entertained in a manner that allows the opposing party to address it within the trial process.

S v Camphor and Another - On Merits (CC02/2022) [2023] ZAECQBHC 44 (30 June 2023)