About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2019
>>
[2019] ZAWCHC 41
|
|
S v Wagner (CC22/18) [2019] ZAWCHC 41 (29 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
number CC 22/18
In
the matter between
THE
STATE
V
ASHLEY WAGNER
JUDGMENT DELIVERED 29
MARCH 2019
THULARE
AJ
[1]
The accused, known as Sonop, is indicted for two counts of murder,
one count of unlawful possession of a firearm and one count
of
unlawful possession of ammunition. The accused pleaded not guilty to
all charges.
[2]
Ashley (Ashley) Arendse and Claude Peters (Claude) were shot and
killed inside a garage at […] Court, Mannenberg, on
20
November 2016. This is Kasbar’s home, who is the father of
Claude. Claude had been in an intimate relationship with Stacey,
Sonop’s daughter. Colin Anthony (Colin), Lekewaan Adams
(Lekewaan), Connor Dean (Connor), Anastacia Godfrey (Stacey) and
Sonop were present inside the garage when the deceased were shot and
killed. It is common cause that Ashley Adams (Ellatjie)
entered
into a plea and sentence agreement in relation to the same incident
and was sentenced to 25 years imprisonment on each
of the two murder
charges in that he shot at and wounded the two deceased. The issue is
whether Sonop was also in possession of
a firearm and whether he also
shot at any of the deceased.
[3]
It is common cause that Kasbar is a member of the Jester gang and
that accused is a member of the Ghetto gang, and that the
two gangs
have a good relationship. Sonop used to visit Kasbar at Kasbar’s
home and both were involved in illegal activities.
On 19 November
2016, a Saturday evening, Claude assaulted Stacey at his home and
Stacey sustained bodily harm. Stacey fled from
Claude. Sonop
got a report of the assault and went to investigate. The State case
is that Stacey was with her father at the
time of that investigation
and the defence case is that she was not present then.
[4]
Sonop in his investigation found Claude, Colin, Lekewaan, Connor and
Rowan on the corner in Kasbar’s street and enquired
about
Kasbar’s whereabouts that evening. Rowan is one of Kasbar’s
sons. Sonop was told that Kasbar was not there. Sonop
did not do
anything to Claude or any other person he found at the corner. He
left and told Lekewaan to tell Kasbar that he, Sonop,
would return
the next day. Sonop’s version is that he wanted to meet with
Kasbar to discuss with Kasbar Claude’s assault
on his daughter.
[5]
The following day, Sonop arrived with Stacey, Ellatjie, Flam and
Zuku. Flam and Zuku stood outside, Ellatjie waited by the door
of the
garage when Sonop and Stacey entered the garage where the others were
present enjoying some drinks. Stacey stood next to
Claude. Sonop
enquired about the whereabouts of Kasbar. Ashley told Sonop that
Kasbar was there whilst Lekewaan told him that Kasbar
was not there.
[6]
Sonop spoke to Claude and Ashley, expressing his displeasure at the
assault on his daughter and his view that Claude kept doing
it and
got away with it. He then asked Ashley to look at Stacey’s face
and asked: “What would you do if I shot at this
laaitie”,
referring to Claude. Ashley replied: “If you shoot him you must
shoot me as well”. It was at that moment
that Ellatjie drew a
firearm. Flam looked at Ellatjie and shook his head, an indication
that he was not in agreement with Ellatjie’s
conduct. Ellatjie
shot at Claude and at Ashley.
[7]
The are some differences in the version of the State and that of the
defence on what actually happened inside that garage. Colin
said
after Ellatjie shot at Claude, the accused also drew a firearm and
shot at Claude. Colin said when others that were with him
fled, he
did not run out but fell to the floor, covered his face with his
hands and remained inside the garage. He saw how Stacey
blocked
Claude as he tried to run out. He saw when Sonop also shot at Ashley.
His version is that after shooting Ashley, Sonop
ran out but came
back, felt at Ashley around his neck and then shot him again in his
face before he ran out again. He said that
Sonop also shot towards
him and the bullet hit the floor next to where he lay.
[8]
Lekewaan said Sonop was angry when he came on the 20
th
.
It is for that reason that he told Sonop that Kasbar was not there.
After Ellatjie shot at Claude, he froze. He saw Sonop draw
out a
firearm and he ran out. He did not see Sonop shoot. He heard two
shots go off as he ran into the house.
[9]Connor
alleged that after Ellatjie shot at Claude, he saw Sonop draw a
firearm. Sonop then shot at Ashley, and then shot at Claude.
He and
others ran out. Stacey remained with Claude. He saw Sonop return to
the yard. He saw Sonop feeling Ashley’s neck and
then shot at
Ashley again in the face. He was at the corner of the street at that
stage, where he had ran for safety.
[10]
There is no evidence led in relation to cartridges, if any were found
on the scene, and whether it could be discerned from
the cartridges
as to whether there was more than one firearm used in the shooting
inside that garage. This is objective evidence
which would have been
of assistance to the court.
[11]
Sonop acknowledged that he is a member of the Ghetto gang. He was on
good terms with Kasbar although Kasbar was a member of
another gang,
the Jesters. The two gangs did not have a conflict and were on good
terms. He was aware of the relationship between
his daughter and
Claude and did not have any problems with that relationship. He also
knew Ashley very well. He and Ashley previously
dated cousins and
both have a child with each of those cousins. His relationship with
Ashley was a good one.
[12]
On 19 November Kasief and Spoel came to inform him about the assault
on his daughter, Stacey. The report was that Stacey had
been kicked
into the air by Claude. He was informed of the site of the assault
and went there immediately. When he arrived, he
saw the young men at
the corner. He approached them and asked Lekewaan where Stacey was.
Lekewaan informed him that Stacey had
run down the road. When he
asked Lekewaan why he did not intervene when the assault happened,
Lekewaan told him he could not involve
himself in the business of the
young lovers. When Sonop asked Claude why he assaulted Stacey, Claude
replied: “She is playing
me, making me like a doll in front of
my friends”. The implication was that Stacey cheated on Claude.
Sonop left, telling
Lekewaan to inform Kasbar that he would return
the following day. He wanted to discuss Claude’s conduct with
Kasbar.
[13]
The following morning, the 20
th
,
Stacey arrived at his home. He spoke with her but did not see her
injuries as he spoke with her with his eyes closed. They agreed
to go
and see Kasbar that afternoon. He saw Stacey’s injuries only
when Stacey arrived that afternoon. He saw the swollen
lip, the blue
eye and the swollen head.
[14]
On their way to Kasbar they met Ellatjie. Upon enquiry as to where
they were going, Ellatjie decided to join them, as he alleged
that a
Jester member gang had robbed him the previous day, and he wanted to
see Kasbar as Kasbar was the Jester gang leader. Sonop
was not aware
that Ellatjie was armed. They met his friends, Flam and Zuku who were
on their way to visit Sonop. Sonop’s
mother would not have
allowed them to go into his room at the backyard without him, so they
also joined and they all went to Kasbar’s
home.
[15]
As they approached, someone amongst them recognised Kasbar inside the
garage, but Kasbar rose up and went into the house. Sonop
and Stacey
went into the garage, Ellatjie stood by the door and Flam and Zuku
remained outside. When Ashley asked why there were
there, Sonop asked
Lekewaan whether he did tell the people of the house that he was
coming. Sonop told Stacey to go and stand next
to Claude and to
remove the scarf with which she covered her injuries. When Stacey
showed her injuries, he said to Ashley that
was the reason he was
there. Ashley then asked Claude: “What did you do”.
[16]
Sonop then asked Ashley: “What will you do if I shoot Claude.”
Ashley replied: “Then you have to shoot me
too.” Sonop
had asked this question rhetorically. Claude used abusive and
disrespectful language towards Sonop. Sonop heard
a gunshot after
Claude spoke to him in that manner. Sonop reached for Stacey to
provide her with cover. He then saw that it was
Ellatjie who shot at
Claude. Sonop then asked Ellatjie: “What are you doing? Why are
you shooting?”. Ellatjie responded:
“They don’t
respect us.” Sonop then told Ellatjie: “But that does not
give you reason to shoot this laaitie”.
Ellatjie then screamed
at him: “Duck”. He bent down, still facing Ellatjie. At
that time, Ashley was behind him and
he did not know why Ellatjie
screamed at him to duck. Ellatjie then shot at Ashley.
[17]
Sonop then told Ellatjie: “We are now in trouble and it no
longer looks like we were here to come and sort out the problem.”
He told Stacey that they should leave, because it will no longer be
safe for them. Stacey refused to leave Claude and stood by
Claude.
She was holding on to him and crying, trying to help him. Sonop ran
out and he and Ellatjie, Flam and Zuku ran away. He
then heard
gunshots and knew that it was members of the Jester gang who were in
the street. Kasbar is a gang leader and deals in
drugs. As a result
there are Jester gang members who he recognized as those who guarded
the territory of their boss. These gang
members, who were in the
street, were the ones shooting at him and his company as they fled.
[18]
Stacey was 16 years old at the time. She was in a relationship with
Claude. Claude was jealous arising out of her movements
earlier on
the 19
th
,
accused her of infidelity and assaulted her that evening when they
met. She escaped and ran away and spent that night with a friend
and
not at home. Besides the injuries that her father saw, her chin was
blue and six of her teeth were loose as a result of the
assault. She
did not see her father, Sonop, that evening and only went to visit
him the next morning. Sonop was already aware of
her assault but she
did not know how he knew about it when she arrived and they agreed to
go to Kasbar that afternoon.
[19]
They were inside the garage as all the other witnesses testified. Her
father asked her to remove her scarf and she showed those
present
what Claude had done. She saw Ellatjie shoot at Claude. Sonop was
upset at Ellatjie for shooting and also that Ellatjie
had shot
Ashley. Sonop did not have a firearm and did not shoot at all. She
could not remember everything that happened after the
shooting.
However, she can remember that there was nobody left in the garage
after the shooting.
[20]
Stacey was cross-examined. It was during cross-examination that she
became upset at the version presented to her by the State
Prosecutor,
which was in line with the State case and contrary to what she said.
She cried and ran out of the witness stand and
out of the courtroom.
The court had to adjourn. The State submits in its argument that it
had to take a talk by Sonop’s legal
representative with Stacey,
for her to return to the witness stand and finalise cross-examination
and the rest of her testimony.
The State submits that this conduct of
Stacey was as a result of the State pointing out the discrepancies
between her own evidence
and that of her father. This included that
Sonop said he told her to stand next to Claude whilst she said that
she chose to go
and stand next to him out of own volition. Sonop said
Claude used abusive and disrespectful language towards her whilst she
said
he did not say anything.
[21]
It was the State’s version that she had blocked Claude when he
attempted to flee after being shot that upset her the
most. This
suggested that she was complicit in the shooting and killing of her
boyfriend, for whom she had risked her life and
remained to help when
the rest fled after he was shot, which broke her down. She could not
deal with the impression in the State
case that she was angry at
Claude for assaulting her and had called her father and others to
come and sort him out, by killing
him, a boyfriend she clearly loved.
She cried and ran out of the courtroom when the State was adamant
that this was what happened.
She could not live inside the courtroom
where she was given as the reason that the confrontation happened
which led to the death
of two people, one of them a young man she
loved.
[22] In
S v Shackell
2001(2) SACR 185 (SCA) at para 30 the court said:
“
[30]
… It is a trite principle that in criminal proceedings the
prosecution must prove its case beyond reasonable doubt and
that a
mere preponderance of probabilities is not enough. Equally trite is
the observation that, in view of this standard of proof
in a criminal
case, a court does not have to be convinced that every detail of an
accused’s version is true. If the accused’s
version is
reasonably possibly true in substance the court must decide the
matter on the acceptance of that version. Of course
it is permissible
to test the accused’s version against inherent probabilities.
But it cannot be rejected merely because
it is improbable; it can
only be rejected on the basis of inherent probabilities if it can be
said to be so improbable that it
cannot reasonably possibly be true.”
[23]
It is natural that Sonop would have been angered by the nature of the
assault on his daughter as reported to him. Every father
would not
take it kindly if it is reported that your daughter was kicked into
the air. If the perpetrator has a history of assaulting
your
daughter, this may aggravate the situation. It makes sense to me,
that being on good terms with the father of the perpetrator,
Sonop
would have wanted that the elders attend to the continued assault of
his daughter by Kasbar’s son. It is logical that
he would have
wanted to talk to Kasbar.
[24]
I am unable to find that Sonop’s anger, although it was
occasioned by Claude, was misdirected. If it was, he had both
the
opportunity and the means to hurt Claude when he found him at the
corner in the street on the evening of the 19th. It is reasonably
possibly true, in my view, that Sonop wanted to discuss Claude’s
conduct towards Stacey with Kasbar. This, in my view, explains
why
Sonop did not attack Claude when Claude was vulnerable, but opted
instead to tell Lekewaan to inform Kasbar that he would return
the
next day, in the presence of all the witnesses present there.
[25]
According to Lekewaan and Connor, all those who were present in the
garage before Sonop and his company arrived, fled and ran
out of the
garage when Ashley fired the shots. This is consistent with the
defence version testified to by Sonop and Stacey , that
only the two
of them and the two deceased remained in the garage. The rest of
those who were in the garage at the time fled after
Ellatjie fired at
Claude. This is the first problem with Colin’s evidence as he
is the only one who said he remained. The
other is that he said he
went down and covered his face with his hands, yet he claimed to have
seen what was happening. His evidence
was full of inferences that he
drew, and not what he observed. He did not hesitate to say that Sonop
was a known killer, as a fact,
when he had never observed Sonop kill
anyone before. He was clearly prejudiced towards Sonop. Whereas in
court he testified about
Sonop shooting at him, this material fact
was not contained in his affidavit to the police and it is not
strange that the State
did not pursue a charge of attempted murder on
him against the accused.
[26]
Furthermore, even on Colin’s own version, Sonop did not have
any reason to shoot at Ashley. It is inconceivable, if Colin’s
version is correct, that Sonop who was an experienced killer, would
have simply left an eye-witness alive on the floor without
eliminating any possible link with him to the murders. Colin,
Lekewaan and Connor are involved in the drug trade of Kasbar. They
are self-confessed what is commonly referred to as runners. They
receive drugs from Kasbar to sell in the streets and the soccer
field. Kasbar is their employer and their leader in the Jesters gang
environment. They have reason to lie. It is not for this court
to
speculate as to whether they are doing this out of own volition to
appease Kasbar or under the influence of Kasbar. Kasbar,
their
employer and leader lost a son in their presence. They have reason to
seek to redeem themselves in Kasbar’s pain and
grief.
[27]
Besides the example already referred to in Colin’s testimony,
Connor’s version also demonstrate the extent to which
the three
State eye witnesses were prepared to stoop to appease Kasbar. Connor
ran out of the garage and stopped a few houses away
from the scene.
He was on the same side of the street as Kasbar’s house, in
line with the perimeter fences of the houses
lining up to Kasbar’s
house. It is humanly impossible, for someone at the position where he
said he was, to see what was
happening inside the garage. It is
common cause that the garage’s walls are concrete slabs and
that the rest of the houses’
perimeter fences are from
concrete. They blocked the range of view to the garage from where
Connor stood. Yet Connor said he saw
Sonop get back to the garage and
inside the garage he saw how Sonop shot at Ashley in the face. Connor
goes so far as to deny that
Stacey had facial injuries, which all
others confirm.
[28]
Lekewaan lied about the whereabouts of Kasbar. He knew that Kasbar
was in the house when Sonop asked and Ashley said he was
there, yet
he said Kasbar was not there. He is very loyal to Kasbar and even
Sonop seemed to know that as he chose to ask Lekewaan
to tell Kasbar
that he would return the next morning instead of Rowan who was
present and is Kasbar’s son. Lekewaan showed
a propensity to
tailor the facts to protect and advance the interests of Kasbar. He
is very calculating and can adjust the facts
to present a front that
favours Kasbar. It is against this background that his evidence that
he saw Sonop pull out a firearm before
he, Lekewaan, fled out of the
garage, deserve caution. When it comes to what he sees as being in
Kasbar’s interests, he cannot
be relied upon to tell the truth.
He is the only one amongst the state witnesses who said that the
Sonop shot at Ashley first and
then at Claude.
[29]
Having observed Stacey in court, against the background of her
conduct after Claude was shot at, I am unable to conclude that
beyond
reasonable doubt she reported Claude to his father, and ganged up
with his father and others to go and kill Claude. In my
view, it is
reasonably possibly true that, against the background that Claude
used to beat her up, and that she loved him, she
accompanied her
father for the father to speak to Claude’s father, Kasbar. Her
father’s intervention had the potential
to eliminate the
challenge to her relationship with Claude, to wit, the violence which
characterized it which was perpetrated by
Claude. Sonop’s
intervention was in her interest, that of Claude and their
relationship.
[30]
It is highly improbable, in my view, that Sonop, intent on going to
kill Claude and anyone who stood in his way, would have
taken his
daughter with him. Sonop knew that Kasbar’s home, as a gang
leader and drug dealer, was always guarded by armed
young men who
were loyal to Kasbar. Any shooting in Kasbar’s house would have
been met by a counter shooting. In my view,
it is reasonably possibly
true that Sonop took Stacey with her, for Kasbar to see for himself
the nature and extent of the injuries
suffered by Stacey as a result
of Claude’s assault. This in my view explains why, when Sonop
was told that Kasbar is not
available, he asked Stacey to remove the
scarf for Ashley to see the injuries, and to understand why Sonop was
there with Stacey.
[31]
Moreover, Sonop was aware that Stacey was standing next to Claude. He
is a gangster and is not a novice on the use of firearms.
The State
case is that he is used to shooting. Anything can happen in the sense
of the direction a projectile can take once it
is released at the
pulling of the trigger, especially within a closed environment like a
garage with concrete slabs. It seems to
me not to be a stretch too
far to say Sonop would have been aware of the danger of shooting at
Claude whilst Stacey was standing
next to Claude, especially if the
projectile were to hit the concrete and ricochet. In my view, it is
reasonably possibly true
that Sonop did not shoot at Claude whilst
Claude stood next to Stacey.
[32]
I am not inclined to agree with the State’s criticisms of Sonop
and his version. The time factor makes it impossible,
in my view, for
Sonop to have disarmed Alletjie before he fired the shots. The reason
that Sonop advances for running away and
not rendering assistance to
the injured persons, contextualized and placed under the prevailing
circumstances, seems to me to be
valid. On the State’s own
version by the investigating officer, Warrant Officer September,
Sonop was arrested whilst appearing
in court on another matter, and
therefore it cannot be said beyond reasonable doubt that the reason
that Sonop was arrested a month
after the incident was because he was
fleeing from the police.
[33]
In my view, the version of the accused is reasonably possibly true.
The State failed to prove that the version of the accused
is false
beyond reasonable doubt. The State did not prove beyond reasonable
doubt that the accused is guilty of the offences he
is charged for.
[34]
There is one issue which does not sit well with me and presents
heavily on my shoulders, on the conduct of Stacey, in relation
to her
being upset such that she cried, ran out of the witness stand and out
of the courtroom and refused to immediately return
to the witness
stand. In my judgment, it is clear that I do not agree with the State
as to the reasons that informed her conduct.
Her conduct is in my
view as a result of a greater mischief as to how our criminal justice
system treats its witnesses, especially
vulnerable women who are
victims of domestic violence when they appear in courts to give their
testimony. I am unable to remain
silent.
[35]
Accused persons enjoy the protection and benefit of the law through
having their rights and responsibilities explained to them
throughout
the legal process of a criminal trial from the police, the
prosecutors up to judicial officers. In my view, South Africa
is
unfairly discriminating against a class of persons, to wit,
witnesses. By law no one is required to generally orientate and
induct witnesses on their roles and responsibilities. In my view, it
is arising out of ignorance that Stacey did not know what
her role
was and what was expected of her by the court in the witness stand.
[36]
With the benefit of hindsight, there was an explanation which ought
to have been made to the young woman when she entered the
stand, to
appraise her of her rights and responsibilities. In my view, Stacey’s
storming out of the witness stand and out
of the court, in tears,
demonstrates that a witness at criminal proceedings should after the
administration of an oath or after
the making of an affirmation in
lieu of an oath or after a warning, be orientated and inducted
through an explanation of her rights
and responsibilities.
[37]
A witness should be informed that the State or the defence, as the
case may be, alleges that he or she has true and correct
knowledge of
facts which may assist the court to prove or disprove the allegations
placed in issue in the matter. That he or she
is required to
candidly, honestly and frankly disclose that information to the court
with forthrightness and sufficient particularity.
The witness should
further be informed that the other party other than the one that
called him or her may test their credibility
and truthfulness of
their version by asking questions and making statements to them. The
witness should be informed that to assist
the court in search for the
truth, he or she may kindly answer the questions to the best of their
ability and where statements
are made to them, that they are welcome
to comment thereon if they have any comment to make on the statement.
If they do not know
anything about what they are asked, they are
welcome to say so, and also to say that they have no comment to a
statement made to
them if that is the case. The witness should be
informed that they are not allowed to ask any questions, except to
indicate that
they seek clarity on any question or statement made to
them. A witness should be informed that at all times the court will
protect
them from any undue mental stress, insult or suffering, while
the true issues between the parties before the court are being
ventilated
through evidential material.
[38]
In my view, the orientation of witnesses will go a long way in making
sure that witnesses understand their true role in our
justice system.
In my view, there is a great risk that because the issues with which
Stacey as a witness was confronted with were
highly emotional, her
attitude to the court proceedings as a whole hardened because of the
absence of her orientation and induction,
which I highly regret.
Unless such orientation happens, parties and courts will struggle to
win the co-operation of material witnesses,
especially in highly
emotionally charged matters.
[39]
Not being properly informed makes one and means one is inadequate.
Judicial officers should not be the authors of the ill-informed
position of witnesses who appear before them as regards what is
expected of those witnesses. In my view, there is an obligation
on a judicial officer to give an orientation and induction to a
witness after the oath process before the evidence is led. This
in my
view will enhance the equality of witnesses before the courts, which
is currently lacking, for want of being adequately informed.
For these reasons, the
accused is acquitted of all charges.
……………………………………………
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
Counsel:
State: Advocate Stone
Accused:
Advocate Nel