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[2024] ZAECQBHC 16
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S v Wentzel and Another (CC 23/2021) [2024] ZAECQBHC 16 (7 March 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
CASE
NO.: CC 23/2021
In the matter between:
THE
STATE
and
DARRYN WENTZEL
RIAAN BAARTMAN
JUDGMENT
GQAMANA
J
Introduction
[1]
On 7 November 2019, at or near Lawler Street, Schauderville,
Gqeberha, Mr
Leonardo Roberts
(hereinafter referred to as “the
deceased”), was shot and killed by an unknown person(s).
On the same day, approximately
at 21h40, Sergeant
Daniels
saw
a suspicious silver VW Polo, travelling in Helenvale and directed the
driver thereof to pull over. However, the Polo
sped off the
police pursued it until, it came to a standstill at the end of the
road at Chamois Street. Two male persons
alighted from it and
fired shots at the police. Constable
Njara
was shot in
the forehead and had to be rushed to hospital for treatment.
The State seeks to impute blame on both accused
for the
aforementioned incidents and it alleges that these two incidents were
committed in contravention of the Prevention of Organised
Crime Act
121 of 1998 (POCA).
[2]
The accused are now charged with 12 counts. Counts 1 and 2 are
the contravention of section 9(1)(a)
and 9(2)(a) of POCA. Count
3 is murder. Counts 4, 7-10 are for attempted murder.
Counts 5, 6, 11 and 12 are for
unlawful possession of firearms and
unlawful possession of ammunition. Both accused pleaded not
guilty on all the aforementioned
charges and neither of them tendered
a plea explanation. As the trial progressed, it became apparent
that their defence is
that of an
alibi
.
[3]
Although no plea explanation was tendered however, the accused made
admissions in terms of
section 220
of the
Criminal Procedure Act 51
of 1977
. The details of such admissions are set out in Exhibit
A1 and A2. Further the cause of deceased’s death
[1]
as recorded in the post mortem report (Exhibit B) was also admitted.
In addition, photographs of the scene at Lawler Street
and at Chamois
Street were also admitted. Further, the tracker information and
the report as to the movement of the Polo
vehicle mentioned in
paragraph 1 above were also admitted. Because of such
admissions the proceedings were curtailed to a
greater extent.
The State called 10 witnesses to prove its case and I shall deal with
the summary of their evidence as and
when necessary, below.
Issues and summary of
the State’s evidence
[4]
The issue in dispute in this case is the identification of the
perpetrators. The direct evidence
that links the accused to the
commission of counts 3-12 is that of Mr
Dimitri Guest
(“
Guest
”),
Daniels
and Sergeant
Manyati
.
[5]
In order to set out the overview of the State’s case, I intend
to deal with the evidence of
Guest
first. It is common
cause that
Guest
knew both accused even prior to the date of
the incidents herein. He knew both the accused as members of
the Kakdallers/Boomshakas,
a gang group operating in the area called
“Die Gaat”. He was also a member of the
Kakdallers/Boomshakas at some
stage prior to this incident.
[6]
Guest
’s evidence was that on the day in question, he was
with both the accused as well as one
Elton Booi
alias “
The
Bird
” at the park having some beers. During the
course of such social gathering, accused no. 1 suggested that, they
should
visit his girlfriend
Nay
in Schauderville. They
took a taxi to Schauderville. They were joined later by “
Tas
”.
They remained at
Nay
’s house until it became dark.
Guest
asked for money from accused no. 1 because he wanted to go home.
Accused no. 1 told him to wait as he would arrange a transport.
Accused no. 1 contacted
Andrias Masimla
alias “
Massie
”
who then arrived driving a silver VW Polo. When
Massie
arrived, they immediately left
Nay
’s house.
Accused no. 1 gave directions as to where “
Massie
”
must drive to. His evidence is that accused no. 1 suggested
that they must stop at a certain house to by drugs.
Massie
drove up to a certain street where both accused alighted and
proceeded towards house no. 1[…] L[…] Street.
Tas
warned the accused to be extra vigilant as they were in another
gang’s territory. Shortly after the accused alighted
from
the Polo,
Guest
heard gun shots. Both accused came back
and had firearms in their hands. Accused no. 1 jumped back to
the car next
to the driver in the front passenger seat and accused
no. 2 took seat on the rear passenger side behind the driver.
[7]
Guest
testified that accused no. 1 gave directions to
Massie
as to where to go. Inside the Polo, accused no. 1 mentioned
that they had shot someone. It is then that accused no. 2 said
that
his gun gave him problems. From Lawler Street, they drove
towards the direction of Helenvale and while they were driving,
he
saw a police car with blue lights on trying to stop them. Upon
instructions of accused no. 1,
Massie
, did not stop and he
proceeded driving following the directions given by accused no. 1.
They drove up to the end of the road
at Chamois Street where the Polo
came to a standstill.
[8]
Guest
saw that there were police cars behind them with their lights shining
straight on the Polo. Again, both accused alighted
from the
Polo and they were carrying guns. Accused no. 1 alighted from
the front passenger door while accused no. 2 got out
from the rear
passenger door behind the driver.
Guest
,
Massie
,
Tas
and
The
Bird
remained inside the Polo.
Guest
also saw both the accused pointing the guns towards the direction of
the police and thereafter he heard gunshots. He was
not certain
who fired shots.
[2]
It is then that he took cover and laid flat down on the backseat for
safety. When it became quiet, the police approached
the Polo
and instructed them to get out of the car. They were assaulted
by the police and were later taken from the scene
and detained at the
police cells.
[9]
The following day or so,
Guest
made a statement to the police
and disclosed all the information relevant herein.
Guest
was never charged for any of the offences herein and he was released
from custody on Monday, without appearing in court.
[10] Under
cross-examination by Mr Schoonraad (counsel for accused no. 2 then),
Guest
mentioned that, while they were at the park, the accused
left and came back and, on their return accused no. 1 mentioned that
they
now have protection, and they can then go to Schauderville.
Guest
understood him to mean that they had guns with them,
although he did not see the guns. Guest also testified that
accused
no. 2 was wearing a black and bright green jacket on top.
It was also put to
Guest
that he is falsely implicating the
accused because of the sour gripe he had against them relating to
drugs and guns that were allegedly
stolen from his house and that he
is hiding the real perpetrators who were gang members.
Guest
denied such proposition and maintained his version as given under
evidence-in-chief. Importantly, for the first time, the
accused
alibis
were raised under cross-examination of
Guest
.
[11] The
second witness relevant for identification purposes is
Daniels
.
He testified that he became suspicious when he saw the aforementioned
Polo as they were patrolling in the Helenvale area.
He decided
to pull it over, but instead of stopping, the driver sped off.
His blue lights and siren were activated, but the
Polo did not stop.
They followed the Polo until it came to a standstill at Chamois
Street. When the Polo came to a
standstill, two men jumped out
and they pointed guns at them, and he froze for a very short period.
He was together
with Constable
Njara
in his police
car and on the second car, it was
Manyati
and Sergeant
Mnqokoma.
The other police vehicle also stopped on the
other side and both vehicles’ lights were shining on the Polo
with their
blue lights on.
Daniels
managed to identify
accused no. 2 for a few seconds as the person who shot at him.
He also mentioned that accused no. 2 was
wearing a bright green
jacket. Although it was at night, but visibility was clear
because the lights of both police cars
were shining directly to where
the Polo had stopped as depicted in the photo album. The
accused fired shots at the police,
and they also retaliated.
The accused managed to flee down the slope into the area known as
“
Die Gaat
”.
[12] Despite
vigorous cross-examination,
Daniels
was unshaken. He
gave details of his previous encounters with the accused where he
searched them, few weeks before this incident.
Daniels
also testified that he knew that both accused were members of the
Kakdallers gang.
Daniels
became aware that
Njara
was shot in the forehead, and he called for help. Because there
was a delay for the ambulance to arrive, he decided to take
Njara
to hospital in his police vehicle. Later, he returned to the
scene and spoke to the investigating officer Sgt
Peta
and
reported to him that one of the perpetrators was accused no. 2 known
as “
Tikkie
”.
Daniels
also managed to
identify accused no. 2 at a formal photograph identification parade.
[13] The
third witness for identification purposes was
Manyati
.
His evidence on his observation from the moment they saw the Polo
while they were patrolling in the Helenvale area until
it got to a
standstill at Chamois Street, corroborated the evidence of
Daniels
.
He testified that
Daniels
’ car stopped parallel slightly
in front of his vehicle on the right and the Polo stopped
approximately 12/13 meters in front
of them.
Manyati
was
able to identify accused no. 1 as the person who alighted from the
front passenger side of the Polo carrying a gun in his hands.
He further confirmed that the visibility in the area was clear.
Accused no. 1 fired shots at them and he also saw that the
second
perpetrator was also shooting at them because he could see the mazle
flash. He also confirmed that both the perpetrators
ran down
the slope in the direction of “
Die Gaat
” and
disappeared.
[14] As
indicated above the photo album, the car tracker information and
report were admitted. The visibility
of the area at Chamois
Street where the Polo,
Daniels
’ and
Manyati
’s
vehicles were stationed can be seen from the photo album. In
addition, the legal team of the State and the defence,
accompanied by
the accused attended the crime scene to conduct an inspection
in
loco.
The report of such an inspection
in loco
was
also placed on record and recorded their agreements on their
observations on the visibility of the area. I must add that
the
parties attended the inspection
in
loco not because there was
doubt over any of the evidence given by
Manyati
and
Daniels
but to satisfy themselves for purposes of their respective client’s
interests. Furthermore, the tracker information
and report
shows the movement of the Polo during the relevant time herein.
That information about the movement of the Polo
corroborated the oral
evidence of
Guest
.
[15] There
were other witnesses called by the State but, for purposes of
identification, let me pause and consider the
accused’s alibi
defence and their evidence therein.
The accused’s
alibis
[16] Starting
with accused no. 1, his evidence was that a period before this
incident,
Guest
accused him and accused no. 2 of stealing
drugs and guns at his house. He testified that
Guest
was
a gang member with the allocated duties of hiding guns and drugs.
Their conflict could not be resolved by
Bosbyl
. Because
of this accusation,
Massie
suggested that they should approach
certain individuals at St Albans Prison to intervene and one of them
was “
Fresh
”.
[17] On 5
November 2019, both him and accused no. 2 together with
Massie
went to consult with the people at St Albans Prison. They were
advised on how to resolve their conflict. From St Albans
Prison, they went back to “
Die Gaat
” but they were
dropped off at old Stanford Road. As they were proceeding to
see
Bosbyl
, they met
Guest
and “
The Bird
”.
Guest
threatened them with a firearm which he took out of his
waist and pointed at them. They ran in different directions.
[18] On
arrival at his home he conveyed to his mother what had happened and
told her that he will seek refuge at his
girlfriend’s home in
Schauderville. He left his home the same day and went into
hiding at Schauderville where he remained
in exile until 4 January
2020, when he handed himself over to the police.
[19] On 7
November 2019, he contacted
Massie
to bring his clothing.
When
Massie
came, he was with other people inside his car, and
he fled through the backyard and hid himself in the neighbour’s
yard only
to return after
Massie
had left. He did not
call any
alibi
witness. He was arrested by Sergeant
Peta
on 4 January 2020 in the presence of his attorney Mr
Roelofse
.
He did not give any
alibi
at the time of his arrest.
[20] Accused
no. 2 testified and confirmed the alleged incident that happened on 5
November 2019 on their return from
St Albans Prison as per the
evidence of accused no. 1. After the alleged incident he went
to his uncle’s house and
slept over for the night.
Arrangements were made for him to hide himself in Mossel Bay at
Ryan
Wentzel
’s house. He left for Mossel Bay on 6 November
2019 by taxi. He remained in Mossel Bay until 3 January 2020,
when
he returned to Gqeberha and met accused no. 1 at his
girlfriend’s house. He called his uncle
Ryan
as
his
alibi
witness and also
Nicole
Hendricks
.
I deal in detail with their evidence at paragraphs 33-35 below.
Legal principles
[21]
As a point of departure, it is trite law that in criminal matters the
onus rests upon the prosecution to prove
its case beyond reasonable
doubt. When a court finds that the guilt of an accused has not
been proved beyond reasonable doubt,
even if there are suspicions
that the accused was indeed the perpetrator of the crime in question,
the accused is entitled to an
acquittal.
[3]
[22]
In
S
v Van der Meyden,
[4]
Nugent
J (then) said the following:
“
A
court does not base its conclusion, whether it be to convict or
acquit, on only part of the evidence. A conclusion which
is
arrived at must come from all the evidence… . The
proper test is that an accused is bound to be convicted
if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that, he must be acquitted if it is
reasonably
possible that he might be innocent. The process of reasoning
which is appropriate to the application of that test
in any
particular case will depend on the nature of the evidence which the
court has before it. What must be borne in mind,
however, is
that, the conclusion which is reached (whether it be to convict or to
acquit) must account for all evidence.
Some of the evidence
might be found to be false; some of it might found to be unreliable;
and some of it might be found to be only
possible false or
unreliable; but none of it may simply be ignored.”
[23]
Aligned to that, in evaluation of the evidence, the court must weigh
up all the elements of the evidence which point
to the guilt of the
accused against all those which are indicative of his innocence,
taking proper account of inherent strengths
and weaknesses,
probabilities and improbabilities on both sides. Once it has
done that it must decide whether the balance
weighs so heavily in
favour of the State to exclude any reasonable doubt about the
accused’s guilt.
[5]
[24]
As indicated above both the accused raised
alibi
defences. In
R
v Hlongwane
,
[6]
Holmes
JA stated the following:
“
The
legal position with regard to an alibi is that there is no onus on an
accused to establish it, and if it might reasonably be
true he must
be acquitted… But it is important to point out
that in applying this test, the
alibi
does not have to be considered in
isolation.
”
[25]
Also in
S
v Liebenberg,
[7]
it was said that:
“
Once
the trial court accepted that the
alibi
evidence could not be rejected as false, it was not entitled to
reject it on the basis that the prosecutions had placed before
it
strong evidence linking the appellant to the offences. The
acceptance of the prosecution’s evidence could not, by
itself
alone, be sufficient basis for rejecting the alibi evidence.
Something more was required. The evidence must
have been, when
considered in its totality of the nature that proved alibi evidence
to be false.
”
[26]
The identification of the accused is at the heart of the instant
matter and because of that, the approach to be
adopted is that which
is set out in
S
v Mthetwa
[8]
by
Holmes
JA namely, that:
“…
It is
not enough for the identifying witness to be honest. The
reliability of his observations must also be tested.
This
depends on various factors such as lighting, visibility, eyesight,
the proximity of the witnesses, 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 face, voice, built and dress, the result of
identification parade, 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 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.”
Evaluation and
discussion
[27] The main
witnesses that the State relied upon for purposes of identification
are
Guest
,
Daniels
and
Manyati
.
Daniels
knew both the accused even before this incident. On the night
in question, he managed to identify only accused no. 2.
His
evidence was that the visibility where the shooting occurred at
Chamois Street was clear because the lights of both police
cars were
shining on the Polo. He saw accused no. 2 jumping out of the
rear passenger door behind the driver. Accused
no. 2 was
wearing a bright green jacket. When accused no. 2 got out of
the Polo, he turned back facing
Daniels
before he fired shots
at them.
Daniels
was at a close proximity to him and
there was nothing between him and accused no. 2 that blocked his
observation. Although
he froze for a moment but that did not
interrupt his subjective observations of accused no. 2. He was
able to identify accused
no. 2 again at the formal photograph
identification parade.
Daniels
impressed me as an
honest, credible, and reliable witness. He was able to narrate
the sequence of events without hesitation.
His evidence on the
clothing and the shooting incident at Chamois Street was corroborated
by
Guest
.
[28]
Same with
Manyati
,
he was calm and consistent when he gave his evidence. He
narrated clearly how he identified accused no. 1, as the latter
alighted from the Polo from the passenger’s side on the front
and when he fired shots at them, before
Manyati
took cover. Although the opportunity to observe accused no. 1
was very short, but because of the visibility in the area,
he was
able to identify him. When
Peta
arrived at the scene the same night,
Manyati
told him that, he would be able to identify the accused if he could
see him again. Indeed, at the formal photograph identification
parade, he managed to identify accused no. 1. He refuted the
allegation that the accused’ photos were circulating on
the
social media.
Manyati
also impressed me as a reliable, credible, and honest witness.
[29] With
regard to
Guest
, he knew both accused very well from the area
and they were friends. There is not a slight chance that he
could have made
a mistake about their identification. The
attack against
Guest
was that, he is falsely implicating the
accused in order to protect the actual perpetrators who were gang
members. The fallacy
to that contention is that,
Guest
had to leave the area where he was residing immediately after he made
the statement to the police fearing for his life.
Guest
has not been residing in that area since then and had to find refuge
in Jansenville. Although
Guest
in his evidence-in-chief
and under cross-examination by Mr V
an der Spuy
did not testify
that the accused left the park and came back and, on their return
accused no. 1 said that they had a protection,
but that omission in
my view does not warrant the rejection of his entire evidence.
Besides that omission,
Guest
impressed me as an honest,
credible and reliable witness. If he was falsely implicating
the accused (who were in their version
not gang members), it would
have been unnecessary for him to leave his area and fear for his
life. In addition, if his motive
was to protect gang members,
his life would not have been threatened.
[30] Coming
to the
alibis
of the accused, the
alibis
were raised at
a very late stage of the proceedings.
[31]
In
S
v Thebus
,
[9]
Moseneke
J (then) said the following:
“
[67]
Firstly the late disclosure of an alibi is one of the factors to be
taken into account in evaluating the evidence of the alibi.
Standing alone it does not justify an inference of guilt.
Secondly, it is a factor which is only taken into consideration
in
determining the weight to be placed on the evidence of the alibi.
The absence of a prior warning is, in my view, a matter
which goes to
the weight to be placed upon the late disclosure of the alibi.
Where a prior warning that the late disclosure
of an alibi may be
taken into consideration is given, this may well justify greater
weight being placed on the alibi than would
be the case where there
was no prior warning. …
[68] The failure to
disclose an alibi timeously is therefore not a neutral factor.
It may have consequences and can
legitimately be taken into account
in evaluating the evidence as a whole. In deciding what, if
any, those consequences are,
it is relevant to have regard to the
evidence of the accused, taken together with any explanation offered
by him for failing to
disclose the alibi timeously within the factual
context and the evidence as the whole.
[32]
Starting with accused no. 1, he did not call any of his alibi
witnesses although both were available. Both
his girlfriend and
her mother even attended the trial proceedings albeit not daily.
No explanation was given why they were
not called, and, in that
regard, it would be fair to draw an adverse inference that he feared
that those potential witnesses would
not have corroborated his
case.
[10]
Accused no. 1 was a poor witness, he was evasive and he did not
answer crucial questions under cross-examination.
He denied
that he was a member of the Kakdallers/Boomshakas or any gang group,
but he had so much knowledge with gang leadership
and their
modus
operandi
.
His knowledge of gangs is extremely surprising for a novice.
[33] Coming
to accused no. 2, his
alibi
was that he was at Mossel Bay on 7
November 2019. He also called
Ryan
as his alibi
witness. There were several inconsistences and contradictions
between his evidence and that of
Ryan
when it comes to
details. For instance, the version put to
Guest
was
that, as a matter of fact he arrived at Mossel Bay on 6 November
2019. However,
Ryan
testified that accused no. 2 arrived
on 5 November 2019 and he recall that specifically, because it was
the day before their anniversary
with his girlfriend.
Confronted with this material contradiction under cross-examination,
Ryan
changed his version and aligned it with that of accused
no. 2. Further contradictions were exposed.
According
to accused no. 2, he travelled to Mossel Bay on a Friday,
but realizing the problem with that evidence, accused changed it and
said it was a Wednesday. Taking his first answer to its logical
conclusion if accused no. 2 had travelled to Mossel Bay on
a Friday,
it follows that it was the 8
th
of November 2019, i.e. the
day after the incidents relevant herein, if one has regard to the
calendar days in that particular year.
Accused no. 2 belatedly
realised the danger imbedded in his initial answer, hence he had to
make a quick somersault.
[34] There
were other contradictions between accused no. 2 and
Ryan
’s
evidence regarding their activities the following day after his
arrival at Mossel Bay. In his version, the following
morning,
he went with
Ryan
to meet
Ryan
’s friends in the
street. But
Ryan
testified that the following day, he
went to work and accused no. 2 stayed at home with his girlfriend.
Ryan
further testified that he works from Monday to Friday,
and he would have only visited his friends with accused no. 2 on a
Saturday.
The list of contradictions between their versions are
too many to scribe. As a final straw exposing his lies,
Ryan
testified that his flat is on the ground floor. But accused no.
2 testified that it was on the first floor.
[35] The
other witness called on behalf of accused no. 2 was Ms
Hendricks
.
Her evidence was riddled with contradictions and improbabilities.
She did not know when
Guest
left the area and moved to
Jansenville, even though she was in a relationship with him at the
time. She struggled to give
details of the dates when she was
allegedly stabbed by
Guest
. In the final analysis of her
as a witness, she was poor and dishonest witness.
[36] Having
regard to the totality of the evidence, the accused’s
alibi
defences are rejected as false. Both accused were pathetic
witnesses, they adapted their versions as the trial progresses.
They were economical with the truth. Their
alibi
defence
was a recent fabricated story. Because when
Peta
arrested them, he asked both of them in the presence of their
attorney whether they have an
alibi
and neither of them
disclose it.
Peta
only became aware of their
alibi
during this trial. In the circumstances, I am satisfied that
the State has proved that their
alibis
are false beyond
reasonable doubt.
[37] However,
that is not the end of the matter because the State relied on common
purpose, it must still prove that
as well.
[38]
In
S
v Mgedezi and Others
,
[11]
the Supreme Court of Appeal said that, where there is no prior
agreement, for an accused to be held criminally responsible for
the
actions of another accused on common purpose, the following
pre-requisites must be satisfied:
“
In
the first place he [the accused] must have been present at the scene
where the violence was committed. Secondly he must
have been
aware of the assault on the inmates. Thirdly he must have
intended to make common purpose with those who were actually
perpetrating the assault. Fourthly he must have manifested his
sharing of a common purpose with the perpetrators of the assault
by
himself performing some act of association with the conduct of
other. Fifthly he must have had the requisite
mens
rea
, as in respect of the killing of
the deceased, he must have intended them to be killed or he must have
foreseen the possibility
of their being killed and perform his own
act of association with reckless as to whether or not death was to
ensue
.
”
[39] From the
evidence of
Guest
, both accused alighted from the Polo at
Lawler Street. Both accused proceeded towards the
direction of house no. 127
Lawler Street. Shortly thereafter
Guest
heard gunshots in the direction that the accused went to
and thereafter, both accused came back each one carrying a gun in his
hands. When they got inside the Polo, accused no. 1 instructed
Massie
to drive off. Further accused no. 1 said that he
shot someone in that house. Accused no. 2 said that his gun
gave him
problems. On the totality of the evidence, I am
satisfied that the prerequisite set out in
Mgedezi
(
supra
)
have been satisfied, even if it was only accused no. 1 who shot and
killed the deceased, accused no. 2 must still attract liability
based
on common purpose.
[40] The
State has however an insurmountable hurdle when it comes to count 4.
The admissions made in terms
section 220
regarding photographs 20-24
and the statement therein does not assist the State. In the
circumstances, the State failed to
prove count 4 beyond reasonable
doubt.
[41]
Furthermore, regarding counts 11 and 12 the State conceded correctly
so, that those charges were a duplication.
The evidence of
Warrant Officer
Africa
from ballistic unit was that the spent
cartridges found at the crime scene at Lawler Street and Chamois
Street were fired from
the same firearm(s). The shooting
incident at Chamois Street happened approximately eight minutes later
from the first incident
at Lawler Street. The firearms that the
accused were in possession of at Lawler Street must be the same
firearms that they
had at Chamois Street. Therefore, they were
in continuous uninterrupted possession from the first scene until
they dissappeared
at the second scene. Under such
circumstances, the accused cannot be convicted on counts 11 and 12.
[42] Lastly,
counts 1 and 2 are the contravention of POCA legislation. Count
1 relates to contravention of
section 9(1)(a)
of POCA which reads:
“
Any
person who actively participates in or is a member of a criminal gang
and who willfully aids and abets any criminal activity
for the
benefit of, or in association with any criminal gang activity shall
be guilty of an offence
.”
[43] Count 2
refers to the contravention of
section 9(2)(a)
of POCA which reads:
“
Any
person who performs any act which is aimed at causing, bringing
about, promoting, or contributing towards a pattern of criminal
gang
activity shall be guilty of an offence
.
”
[44] I accept
the evidence of the State that both accused were members of the
Kakdallers/Boomshaka gang. Further
I accept fully the evidence
of Sergeant
Piet, Daniels
and
Guest
. In addition,
I accept that “
Fresh
” one of the persons that the
accused visited at St Albans Prison is on all probability “
Deillon
Makopha
”. However, there is no evidence that the
accused’s motive when they committed these offences was aimed
at causing,
bringing about, promoting or contributing towards a
pattern of criminal gang activity. The deceased in count 3 was
not a
member of a rival gang group nor was he a witness against the
accused or any other member of the gang.
[45] The two
unreported judgments (
S v Thomas
and
Maxwell Muller
CC01/2021 and
S v Walter Williams
CC22/2019) which counsel for
the State referred to are distinguishable on facts. For
instance, in the
Williams
case, the allegation by the State
was that the accused therein was a member of a gang called the Nice
Time Bozzas (NTBs) and that
he pursued
Bernito Bosch
who was a
witness in a murder charge against a gang member affiliated to the
NTBs.
[46] And in
Marshall Thomas
case, the motive of the shooting although it
was not gang related, but the handing of the firearm to accused to
shoot
Guest
was a gang related activity for the benefit of a
gang, the
Dondolozz
, which was a rival gang to the
Kakdallers
.
[47]
In the instant matter, I align myself with the principle articulated
in
S
v Davids,
[12]
that:
“
An
aider and abettor usually means an accomplice. In its technical
sense perpetrators, or co-perpetrators, that is persons
who comply in
all respects with the definition of the crime, are not included in
the definition of the concept accomplice.
To be an accomplice,
someone else must have been committed the crime. The liability
of the accomplice is dependent on someone
else’s liability as a
perpetrator. This implies that a person cannot be an accomplice
of his or her own crime, that
is, in respect of a crime committed by
him or her as a perpetrator. Apart from an accomplice’s
own act and culpability,
there must have been an unlawful act by
someone else.
In
order for the court to determine whether any of the accused have
committed the offence as defined in
section 9
(1)(a), it must first
determine the role each accused played in the commission of the
offence
.
”
[48] In this
case, the accused were the principal actors and not accomplices.
The expression “
to aid and abet
” in
section
9(1)(a)
of POCA means to assist in or facilitate in doing something.
[49]
Regarding count 2, i.e. the contravention of
section 9(2)(a)
of POCA,
Binns-Ward
J in
S
v Peters
[13]
said
the following regarding the meaning of a pattern of criminal
activity:
“
It
is clear that an offence in terms of
section 9(2)(a)
of POCA is
established only if it is proven that the act performed by the
accused is performed by him with the intention of causing,
bringing
about, promoting or contributing towards a pattern of criminal gang
activity.
The test is a subjective
one and not an objective. The fact that the conduct might
objectively be recognised as conduct that
caused, brought about,
contributed to or promoted a pattern of criminal gang activity does
not mean that it was necessary undertaken
by the accused with the
intention that it should have such effect
.
While there was evidence suggesting that the Mongrels gang was
engaged on an on-going basis in what might in ordinary language
be
described as a pattern of criminal activity, there was no evidence
that the acts performed by either of the accused were performed
with
the requisite … intention.
It
was not apparent on the evidence that either of the accused did
anything with a conscious view towards the effect thereof within
the
broader picture of gang related activity in the area
.
”
[My emphasis is underlined]
[50]
Similarly in the instant matter, there is no evidence that shows
subjectively the motive of the accused were to
bring about, cause,
promote or contribute towards a pattern of criminal gang activity,
when they committed the offences herein.
Even on
Guest
’s
evidence there was no discussion that crimes would be committed.
Their purpose of going to Schauderville was visit
accused no. 1’s
girlfriend. At Schauderville, they continued drinking alcohol.
Even at that stage there was no
discussion about committing any
offence.
[51] In the
circumstances, I am satisfied that the State has proved its case
beyond reasonable doubt against both accused
on the following
charges: Counts 3 (Murder), Count 5 (Unlawful possession of firearm),
Count 6 (Unlawful possession of ammunition),
and
Counts
7-10 (Attempted murder). The accused are accordingly found
guilty on the aforementioned counts. However, the
State failed
to prove its case beyond reasonable doubt in respect of counts 1, 2,
4, 11 and 12. Both accused are accordingly
acquitted and
discharged on those counts.
N GQAMANA
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel for the
State
:
Adv R Ahmed
Instructed
by
: Director of Public
Prosecutions
Gqeberha
Counsel Accused
1
:
Adv J van der
Spuy
Instructed
by
: Legal Aid South
Africa
Gqeberha
Counsel Accused
2
:
Adv
Vandayar
Instructed
by
: Legal Aid South
Africa
Gqeberha
Heard
on
: 12 April; 13 April;
14 April 2022, 19 April;
20 April; 21 April; 22 April 2022, 5
September
2022, 14 November 2022, 28
November
2022; 29 November; 30
November;
1 December 2022; 15 March
2023,
3 April 2023, 3 July; 4 July; 5 July; 6
July
2023, 10 July; 11 July; 12 July; 13 July;
14
July 2023, 25 July 2023, 4 September; 5
September;
6 September; 7 September; 8
September
2023, 5 October 2023, 23 January;
24 January 2024, 6
February 2024, 4 March 2024.
Judgment Delivered
on
:
7 March 2024
[1]
Multiple
gunshot wounds to the head and body with blood aspiration.
[2]
Mr
Guest
:
“Puppet and Tikkie upon getting out of the car, I saw them
with firearms and they did lift them. Witness was
demonstrating,
my Lord. But I do not know who among them fired
shots or was it the police who fired shots or did they fire shots at
each
other. That I do not know.”
[3]
See
S v T 2005(2) SACR 318 (E) para 37.
[4]
1991
(1) SACR 447
(W) at 449.
[5]
See
in this regard: S v Chabalala
2003 (1) SACR 134
(SCA) para 15.
[6]
1995
(3) SA 377
(A) at 340H.
[7]
2005
(2) SACR 355
(SCA) para 14.
[8]
1972
(3) SA 766
(A) at 768.
[9]
2003
(6) SA 505 (CC).
[10]
See
Elgin Fireclays Limited v Webb
1947 (4) SA 744
(A) at 749 to 750.
[11]
1989
(1) SA 687 (A).
[12]
(CC103/2019)
[2022] ZAWCHC 216
[31 October 2022].
[13]
[2013]
ZAWCHC 218
(4 November 2013)