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 184
|
|
S v Cakasayo and Others (SS01/2016) [2019] ZAWCHC 184 (30 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.
SS01/2016
In
the matter between:
THE
STATE
and
ANDILE
CAKASAYO
Accused No. 1
MELIKHAYA
CAKASAYO
Accused No. 2
NKOSITHANDILE
CAKASAYO
Accused No. 3
NYAMEKO
DAKI
Accused No. 4
JUDGMENT
DELIVERED ON 30 JULY 2019
SIEVERS,
AJ
INTRODUCTION
[1]
On 25 July 2013, at around lunch time, a shooting incident occurred
at the Nyanga Taxi Terminus. Two men died as a result of
the incident
and two men were injured.
[2]
Arising from the incident the four accused were arraigned on two
counts of murder,; two counts of attempted murder; together
with
charges of being in unlawful possession of firearms and ammunition
read with the provisions of section 51 (1) of the Criminal
Law
Amendment Act, 105 of 1997.
[3]
The State adduced the evidence of an eye witness Celani Twazi
("Twazi"), the ballistic evidence of Warrant Officer
Engelbrecht ("Engelbrecht") and Warrant Officer Daniels
("Daniels") together with a plan of the scene of the
shooting prepared by Constable N Tshali ("Tshali"). The
four accused all testified that they had not been present at
the
scene of the shooting.
EYE
WITNESS: CELANI TWAZI
[4]
Twazi testified as follows: Twazi owned and operated taxis in Nyanga
and was part of the Kiki Murray Taxi Association affiliated
to CATA.
[5]
Twazi had prior knowledge of Andile Cakasayo ("Andile"),
Accused 1 as they both frequented the taxi rank in Nyanga
and he
would also see him when he visited his brother Zola Cakasayo ("Zola")
who lived close to Twazi in Philippi. Andile
had been a taxi owner
since around 2012.
[6]
Twazi knew Melikaya Cakasayo, Accused 2 by the nickname "Sgidi"
They had worked together at the rank since 2012 and
attended meetings
together. Sgidi was also a taxi owner.
[7]
Nkosithandile Cakasayo, Accused 3 was known to Twazi as "Diesel".
He too was a taxi owner, a member of Kiki Murray
and they had worked
together at the rank since 2012.
[8]
Nyameko Daki, ("Daki") Accused 4 was also known to Twazi.
He did not see him much at the taxi rank but would see him
along the
road and at Phumlani's car wash. Twazi frequented this car wash and
Phumlani also drove taxis.
[9]
On the morning of 25 July 2013 Twazi travelled with Zithulele Luthuli
("Luthuli") to the taxi rank where they were
advised to
attend Wynberg Magistrates' Court where one of their members was to
appear for a bail application. They arrived at court
before 9h00 and
found other members present. Andile arrived with Zola who Twazi
overheard saying that he felt as if his
"body is pumped full
of bullets".
After the member had been granted bail, Twazi
and the other occupants of Luthuli's vehicle drove to Khayalitsha
where they ate lunch.
They thereafter drove to the taxi rank to
attend a meeting.
[10]
Luthuli drove the vehicle, Twazi was seated in the front left
passenger seat, Bongani Mququ ("Mququ") sat behind
him in
the rear left passenger seat and Sikhumbule Silwana ("Silwana")
sat behind the driver Luthuli in the right rear
passenger seat.
[11]
Having entered the taxi rank and turning towards the parking area
Twazi observed Zola and Daki standing next to a vehicle which
he
identified as belonging to Daki. Luthuli reversed and parked his
vehicle parallel to Daki's vehicle. Twazi observed Andile ahead
of
the vehicle in front of the Kiki Murray office.
[12]
As Luthuli turned off the ignition Twazi heard shots from where Zola
and Daki were standing. Twazi leant forward and could
see them from
the waistline upwards. They were approximately 1.5 metres from the
driver's door and they both had a firearm in each
hand.
[13]
When he lifted his head Twazi saw Andile approaching the vehicle from
the front and firing a firearm at them. At the same time
he noticed
Pumlani, who was to the right of Andile, approach and fire a firearm
at them.
[14]
Twazi exited the vehicle and ran towards a passage exiting the taxi
rank which was roughly at nine'o clock to the direction
in which the
vehicle was facing. At this time he saw Sgidi and Diesel eight to ten
metres ahead of him. They each had a firearm
and were shooting at him
but he was able to run between them.
[15]
Twazi had heard something falling as he got out the vehicle and when
he looked back he saw that Mququ had fallen to the ground.
[16]
Twazi caught a taxi home to Phillippi and did not report the incident
to the police whom he believed had connections with the
accused. A
few days later, after his vehicles were removed from the rank, he
left for the Eastern Cape.
[17]
Six months to a year later an investigating officer Constable Wilson
("Wilson") visited him in the Eastern Cape.
A police
officer Mathenthana accompanied Wilson and translated Xhosa to
English and
vice
versa.
They wrote down
what he said. He met up with Wilson on a later occasion in Cape Town
when further information was written down.
[18]
Under cross examination Twazi's first statement, which reflects that
it was taken in Cape Town on 11 May 2014, was read back
to him. It
was pointed out that ii makes no mention of Sgidi and Diesel carrying
firearms or shooting at him. He stated that he
had told the police
this and did not know why it was not in the statement. Wilson denied
this.
[19]
While Twazi stated that Wilson had phoned him to meet at Medeira
Police Station in the Eastern Cape, where the statement was
made,
Wilson said that Twazi had merely arrived at the police station with
Mququ and that he had not been phoned.
[20]
Twazi's second statement, purportedly deposed to in Cape Town on 23
August 2014, was read to him and ii was pointed out that
ii makes no
mention of Andile. Twazi stated that he had given the statement in
Cape Town, Wilson said that this had occurred in
East London.
[21]
With regard to the statements it is to be noted that the state
advocate's heads of argument quite correctly stated:
"At this juncture
it may be appropriate to mention that there were deficiencies in the
manner in which the police conducted
the investigation which ranged
from ineptitude, to dereliction of duty, to blatant carelessness when
handling and recording of
the
handling of exhibits and
to
a
clear lack of understanding or gravitas when taking and
commissioning the sworn statements which formed the basis of the
state's
prosecution of the accused."
[22]
It became clear from the evidence that the police regularly dated and
commissioned statements in the absence of the witness,
on a different
date and at a different location to where the statements had been
made.
[23]
It was further put to Twazi that the state's amended summary of
substantial facts alleged that on his arrival at the Nyanga
taxi
terminus he saw Zola, Phumlani, the four accused and Anele Nyameli
armed with firearms. That all of the aforementioned had
pointed their
firearms at the vehicle in which he was seated and fired numerous
shots at its occupants. Twazi replied that he had
not seen Anele.
[24]
Twazi testified under cross-examination that on returning to Cape
Town from the Eastern Cape same time after the incident,
Diesel and
another man had tried to shoot him. He clearly never told Wilson this
as this incident would have had serious implications
for the
accused's bail and would have led to further charges being brought.
This second shooting was not referred to at all in
Twazi's
statements.
[25]
The State did not lead the evidence of several witnesses that were
placed on the scene of the incident by the summary of substantial
facts. They include Bongani Mququ, Anele Nyameli and Thamsanqa
Nkungwana, alleged to be a bystander wounded during the shooting.
[26]
It was submitted on behalf of the accused that in the light of the
above the evidence of Twazi, a single witness, is not sufficiently
credible or reliable to justify a factual finding that any of the
four accused were involved in the shooting of Nyanga terminus
on 25
July 2013.
SINGLE
OR IDENTIFYING WITNESS
[27]
Section 208
of the
Criminal Procedure Act, 51 of 1977
provides that
an accused may be convicted of any offence on the single evidence of
any competent witness.
[28]
In
R v Mokena
1932 OPD 79
it was held that the evidence of a
single witness should be clear and satisfactory in every material
respect, the witness should
have no interest or prejudice, his
evidence should not contain contradictions, he should not have
previous convictions for dishonesty
and should have had a proper
opportunity for observation.
[29]
This explanation of the cautionary rule serves as a guideline and
must not be applied as a rigid rule of thumb test or formula
in
considering the credibility of a single witness. See
S v Sauls
1981 (3) SA 172
(A) at 179-180.
[30]
In
S v Teixera
1980 (3) SA 755
(A) at 763 D - 764 8 ii was
held that when the name of a witness, who should be able to cast
light on an important issue in the
case, is on the list of state
witnesses and the State does not call that witness an inference may
be drawn that the witness would
contradict the evidence of the single
witness.
[31]
Evidence of the identity of an offender is also to be treated with
caution. In
R v Masemang
1950 (2) SA 488
(A) at 493 ii was
stated that even an honest witness quite often makes a positive
identification of the wrong person.
[32]
In the case where the witness has known the person previously it is
important to test the degree of previous knowledge and
the
opportunity for a correct identification, with regard being had to
the circumstances in which ii was made. See
R
v
Dlala
1962 (1) SA 307
(A) at 310C-D.
[33]
In this regard it is to be noted that Accused 1 testified that he
barely knew Twazi prior to the trial. Accused 2 said that
he did not
know Twazi, had never seen him and was not familiar with the nickname
Sgidi. Accused 3 stated that he had only seen
Twazi at the taxi rank,
that he did not know him and that he was, not familiar with the
nickname Diesel. Similarly Accused 4 stated
that he did not know
Twazi.
[34]
In
S v Mthetwa
1972 (3) SA 766
(A) at 768A the court held:
"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 this 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 the particular
case,
are not individually
decisive, but must weighed one against the other, in the light of the
totality of the evidence, and the probabilities."
[35]
In Hiemstra's Criminal Procedure at page 3-8 it is stated that
substantial errors in identification occur in connection with
an
event that is highly personal and very stressful. There is said to be
no significant relationship between the confidence with
which it is
made and the accuracy of the identification in a highly stressful
setting.
[36]
The State submitted that the evidence on the identity of the accused
by Twazi, was independently corroborated by the ballistic
evidence,
viewed together with the plan prepared by Tshali.
THE
BALLISTIC EVIDENCE
[37]
The ballistic evidence adduced by the state accordingly falls to be
considered. The accused submitted that there was insufficient
scientific basis for admitting the evidence seeking to link a
particular component of spent ammunition to a particular firearm,
and
that the court should therefore exclude all of the ballistic evidence
tendered by the state as being inadmissible.
[38]
In the alternative, it was submitted that the state's ballistic
witnesses, Engelbrecht and Daniels were insufficiently qualified
to
express the opinions that they did; that they alternatively failed to
give adequate evidence as to their ability to express
such opinions;
that they failed to demonstrate their reasons for forming the
conclusions to which they testified, and in carrying
out their
investigations had failed to apply themselves properly to making the
identifications that they purported to make.
[39]
The evidence of the opinion of a witness in relation to an
issue before the court is, generally speaking, inadmissible in our
law
in both civil and criminal matters. It is inadmissible because it
is irrelevant. The opinion of the presiding judicial officer,
based
on facts found proved, is decisive of the issue concerned.
[40]
An exception to this rule is the evidence of an expert. Such
an expert may
"assist the court to reach a conclusion on
matters on which the court itself does not have the necessary
knowledge to decide.
It is not the mere opinion of/he
witness which is decisive but his ability to satisfy the court that,
because of his special
skill, training or experience,
the
reasons
for the opinions he expresses are
acceptable."
(emphasis
supplied).
Erasmus
Superior Court Practice
,
2
nd
Edition,
D1-490-491.
[41]
A review of the approach to be adopted to this sort of
evidence and the safeguards that a court should consider before
placing reliance
on expert evidence was undertaken by Vally J in
Twine and Ano v Naidoo and Ano. [2017) ZAGPJHC 288
(17 October
2017).
[42]
The principles set out in
Twine
included the following:
(a) The admission
of expert evidence should be guarded, as it is open to abuse.
(b) Expert
witnesses are allowed to explain their opinions, but are not the ones
that determine the fact or facts in issue.
That determination resides
within the exclusive province of the judicial officer. An expert
witness is not allowed to usurp this
function, nor is a judicial
officer allowed to abdicate this responsibility.
(c) The experts'
evidence must be capable of being tested. It must be verifiable.
(d) A court is not
bound by, nor obligated to accept, the evidence of an expert witness.
(e) The court must
actively evaluate the evidence. There is no need for the court to be
persuaded with the competing opinions
of more than one expert witness
in order to reject the evidence of that witness.
[43]
Boruchowitz J in
S v Mkhize and Others
,
1999 (1) SACR 256
(WLD), analysed the manner in which
ballistic evidence ought to be presented and why, in that instance,
he found himself unable
to rely on the evidence of the official of
the SAPS Ballistics Laboratory. In Mkhize, the witness was unable to
produce photographic
evidence in support of the conclusions that he
drew of matches between particular firearms and spent ammunition
components, because
the exhibits concerned had been lost. The learned
judge found that without such photographic evidence, a statement of
the opinion
of the expert, that he had observed a match, could not be
accepted. In relation to certain other evidence in respect of which
photographs
were produced, he found that, on consideration of the
reasoning of the witness, it was not possible for the court to accept
his
evidence that there was in fact a match demonstrated by the
photographs.
[44]
It is accepted that when ammunition is fired by a firearm,
components of that ammunition, in particular the bullet and the
cartridge
case, acquire marks from their contact with the barrel,
breech face, chamber, and firing pin and, in the case of automatic
weapons,
the cartridge ejector.
[45]
It is stated by proponents of forensic ballistics that these
marks can be used to identify ammunition components that have been
fired by the same firearm and to identify the particular firearm that
fired the ammunition component by comparing that component
to test
ammunition fired by the firearm in question.
[46]
Evidence relating to such purported identification has been
admitted by courts of law in this country and elsewhere over a
considerable
period of time and, in numerous instances, a conviction
of accused persons has resulted where such evidence is used as
corroborative
or even as principal evidence to found the conviction.
[47]
The following fundamental propositions are not in dispute:
47.1 fired ammunition
components can be used to ascertain certain gross, or class,
characteristics of the weapon which fired them,
thus:
47.1.1 a bullet of a
particular calibre can only have been fired by a firearm using or
permitting the use of that calibre of ammunition;
47.1.2 a rifled barrel of
a firearm will impart grooves to a bullet fired through it that will
establish the number of lands in
that barrel and also the direction
of that rifling;
47.1.3 a spent cartridge
with a central primer has been fired by a firearm using a firing pin,
but a rim fire cartridge case has
been fired in a different type of
firearm;
47.1.4 a cartridge case
bearing an ejector mark has been fired by an automatic weapon;
47.1.5 ammunition fired
by weapons from a particular manufacturer may bear marks that enable
an examiner to determine the identity
of that manufacturer;
47.1.6 these
characteristics can usually be detected by a macroscopic, rather than
a microscopic, examination;
47.1.7 these
characteristics, as a whole, are known as class characteristics and
therefore cannot be used to link fired ammunition
components to an
individual firearm;
47.1.8 imperfections in
the firearm that come into contact with the ammunition in the firing
process impart marks, often microscopic,
to the ammunition
components;
47.1.9 imperfections that
caused such marks can, in the manufacturing process of the firearm,
be common to a series of such firearms
made in the same manufacturing
plant, but will not necessarily be found in all firearms made by that
manufacturer. These are known
as sub class characteristics and
therefore can also not be used to link fired ammunition to an
individual firearm;
47.1.10 due to a number
of variable factors, identical marks will not be made on all
ammunition fired by the same firearm;
47.1.11 ammunition
components fired by different firearms may well bear certain matching
marks. Research has shown that up to 25%
of such random matching
marks may occur;
47.1.12 marks made by
imperfections occurring only in a particular firearm are referred to
as individual characteristics.
[48]
Practitioners in the field of firearm identification state
that it is possible, by examining the marks on ammunition components
to determine that sufficient individual characteristics are present
to identify ammunition components as having been fired by the
same
firearm and, if a questioned firearm is available, to compare the
ammunition components to fired test ammunition and thereby
to
establish that the questioned components were fired by the questioned
firearm. In order to do so, the examination must take
account of the
fundamental propositions set out above and, in particular, must allow
for the occurrence of sub-class characteristics
and for the
possibility of the ammunition compared having been fired by different
firearms, but bearing random matching marks.
[49]
Use is made of a comparison macroscope to examine the
components for matching characteristics. A comparison macroscope
enables the
examiner to superimpose and to juxtapose portions of the
image of two components to ascertain whether marks appear on the
components
in the same relative positions. If there is sufficient
correspondence, the examiner will declare the components to have been
fired
by the same firearm.
[50]
An American organisation, the Association of Firearms and
Toolmark Examiners ("AFTE") was formed in 1969 in an effort
to standardise the practice of identification of
(inter alia)
firearms in this way. It publishes a journal to which its members
contribute articles on the subject. Although not members of the
association, Engelbrecht testified that the ballistics arm of the
South African Police Service Forensic Laboratory subscribes to
its
principles.
[51]
AFTE is
"Theory of Identification"
reads as
follows:
"1. The theory of
identification as it pertains to the comparison of too/marks enables
opinions of common origin to be made
when the unique surface contours
of two too/marks are in "sufficient agreement".
2. This "sufficient
agreement" is related to the significant duplication of random
too/marks as evidence by the correspondence
of a pattern or
combination of patterns of surface contours. Significance is
determined by the comparative examination of two or
more sets of
surface contour patterns comprised of individual peaks, ridges and
furrows. Specifically, the relative height or depth,
width, curvature
and spatial relationship of the individual peaks, ridges and furrows
within one set of surface contours are defined
and compared to the
corresponding features in the second set of surface contours.
Agreement is significant when the agreement in
individual
characteristics exceeds the best agreement demonstrated between
too/marks known to have been produced by different tools
and is
consistent with agreement demonstrated by too/marks known to have
been produced by the same tool. The statement that "sufficient
agreement" exists between two too/marks means that the agreement
of individual characteristics is of a quantity and quality
that the
likelihood another tool could have made the mark is so remote as to
be considered a practical impossibility.
3.
Currently the interpretation of
individualization/identification
is
subjective in nature,
founded on
scientific principles and
based
on
the
examiner's training and
experience".
[52]
The definition of
"sufficient agreement
is
circuitous. It states the proposition that an examination must be
made of the striation pattern of the two samples which are
being
compared. It accepts that tool marks produced by different tools may
demonstrate some agreement, and stipulates that the
extent of the
agreement must exceed the
"best agreement demonstrated"
in tool marks made by different tools. This would appear to imply
that there is some objectively ascertainable measure of this
"best
agreement'.
This is not so, as appeared from the evidence of
Engelbrecht and Daniels in this case. In fact, each examiner of tool
marks and
firearms is expected to form his or her own mental picture
of a
"best known non-match"
(as it was referred to
in the evidence) as a standard against which the correspondence
between the examined components is measured.
[53]
It follows that the
"best known non-match"
of each examiner will differ and therefore that the threshold
against which the
"sufficient agreement'
is measured will
differ.
[54]
As appears from the authorities cited above, expert evidence
is intended to assist a court in coming to a conclusion in cases
where
the expert is better qualified than the presiding judicial
officer to interpret certain facts or to conduct certain analyses. It
is, however, essential that the expert should be able to explain to
the presiding officer how the conclusion is arrived at, or
how the
analysis was undertaken, as well as the principles underlining the
process. In the case of pattern-matching disciplines,
the expert must
be capable of explaining and illustrating why the conclusion of a
match is, in his opinion, justified.
[55]
If this is not, or cannot be, done, the judicial officer has
no way of assessing the weight to be attached to the opinion.
[56]
This is the problem with the firearm identification in the
present matter. The examiner can show photographs of the two objects
being compared. But the conclusion that the striations on the two
photographs are a match is a result of a process taking place
in the
mind of the examiner that is opaque to the presiding judicial officer
because the examiner cannot explain or demonstrate
the best known
non-match that he or she used. This was confirmed by Engelbrecht and
Daniels. It is also opaque to the examiner
because he or she cannot
say which of the apparently matching striations are random. The
sub-class characteristics could not be
meaningfully differentiated
from individual characteristics. For the same reason the presiding
officer cannot assess the sub-class
characteristics.
[57]
For these reasons, it was submitted on behalf of the accused
that the evidence of both Engelbrecht and Daniels ought to be ruled
inadmissible.
[58]
Alternatively, it was submitted that the evidence adduced from
Engelbrecht and Daniels is inadequate to support a finding, beyond
reasonable doubt, that their identification of ammunition components
and firearms is correct. Their evidence will now be considered
in
detail.
[59]
The 62 individual evidence bags collected at the scene of the
shooting by Tshali, containing ammunition components, being cartridge
cases, spent bullets and bullet fragments, were examined by
Engelbrecht between 29 August 2013 and 9 September 2013. He expressed
the opinion that the cartridge cases had been fired from six
different firearms and grouped the cartridge cases in accordance with
the weapons that he said had fired them.
[60]
Engelbrecht accepted that he had made an error in that he
placed the cartridge case, which he marked A24, in the group of
cartridge
cases fired by the third firearm, as well as in the group
of cartridge cases fired by the fifth firearm. He said that this
cartridge
case in fact belonged with those that he identified as
having been fired from the latter firearm.
[61]
Engelbrecht kept no detailed notes of how he arrived at this
classification, nor did he keep photographs of each of the matches
and, other than his word, no supporting evidence can be tested
objectively in relation to his findings. In this regard the purported
confirmation of his findings by Warrant Officer Gerber is of no
value. It emerged during the evidence that the confirmation pages
contain exactly the same error in relation to cartridge case A24,
they confirm the results in exactly the same order, and this
was
apparently done on the same day, using the same comparison
macroscope, notwithstanding that Engelbrecht testified that this
examination had taken a full day of his time. Engelbrecht conceded
that the situation in the laboratory at the time was not satisfactory
and that steps had been taken to improve matters
'met die verloop
van hierdie saak.'
Daniels confirmed that things have now changed
and systems improved.
[62]
The three bullets extracted from the body of the deceased in
the post-mortem by Dr Alli, were examined by Engelbrecht between 7
and 8 October 2013. These three bullets could not be linked to any of
the other five bullets or bullet fragments found at the scene
of the
shooting.
[63]
On 15 January 2014 Engelbrecht received a Norinco
semiautomatic pistol with serial number 603931. This firearm was
licenced to Zola
Cakasayo (since deceased and originally accused
number 1 in this case). According to his affidavit and as he
testified in the witness
box, Engelbrecht fired two test rounds
through this firearm and identified cartridge case A32 found at the
scene of the crime with
test cartridge case 1 (TC1) fired through
this weapon. In support of his evidence, he produced exhibits with
photographs of the
primers and part of the sides of the two cartridge
cases taken with the use of a comparison macroscope.
[64]
During cross-examination, Engelbrecht was shown enlarged
photographs by the defence.
[65]
Engelbrecht's evidence regarding these photographs fell short
of proof that the two cartridge cases were fired by the same firearm.
The following aspects of his evidence militated against such a
finding:
65.1
Engelbrecht confirmed that the two cartridge cases were of
different manufacture. He accepted that there may be differences
between
such cartridges that cause marks made during the firing
process to be imprinted on the cartridge cases differently, due to
harder
or softer materials, coatings and the like;
65.2
Engelbrecht conceded the importance of the angle of the light
directed at the surface being examined, because the image seen
through
the viewfinder of the macroscope is one of shadows cast by
ridges and valleys of the striation marks on the surface. He conceded
that the macroscopes used in the forensic laboratory do not have the
means of calibrating the angle of the light and thus the light
source
of each of the exhibit stages is separately adjusted by hand and
judged by eye. He also conceded that on the photographs
the lighting
was not the same on both sides of the macroscope;
65.3
Engelbrecht accepted that research has shown that up to 25% of
apparently matching striations, on two exhibits, may be random,
having
been made by different firearms;
65.4
Engelbrecht accepted that subclass characteristics may be
present on the exhibits examined by him yet stated that he was unable
to identify any subclass characteristics on the two exhibits
photographed by him, not because he was able to state that there were
none, but because he was unable to distinguish a subclass
characteristic from an individual characteristic. This was also the
evidence of Daniels;
65.5
When asked to mark, on a photostatted copy of the exhibit what
he considered to be the correspondences which (ex
hypothesi
exceeding his best-known non-match) were such as to satisfy him
that there was sufficient agreement between the two exhibits, he
first drew a series of outlines which bore no relation to the
striation marks appearing on each side of the dividing line of the
comparison macroscope. Engelbrecht stated confidently that these were
the
"patterns"
which enable him to make the
identification. The training material to which the court had access
which is used in training the examiners
who testified, shows that it
is the existence of striations which appear in the same relative
position on the two exhibits being
examined, and which are shown by
comparison macroscopy to be identical on both sides of the dividing
line of the macroscope, which
enable the ammunition to be identified
as having a common origin (according to the AFTE theory);
65.6
The literature to which reference was made in the trial also
suggests that recent research proposes that the use of a standard
based
on a number of continuous matching striations (CMS) is probably
a more reliable way of establishing a match, because such continuous
matching striations are less likely to be caused randomly and,
provided a sufficient number is stipulated as a baseline, less likely
to be affected by possible subclass characteristics. Both Engelbrecht
and Daniels testified that the use of CMS was not part of
their
curriculum.
65.7
Engelbrecht in a second attempt sought to identify matching
striations on a photostat copy of the exhibit. A close examination of
the striations which he stated were matching, revealed that they did
not exhibit the sort of correspondence of striations that
would be
expected if these two exhibits had been produced by the same firearm.
An example of the sort of correspondence that might
be expected in
this situation is to be found in the extracts from
Heard,
Handbook
of Firearms and Ballistics, 1997, which was submitted as an exhibit,
that handbook being part of the training material
that the SAPS
examiners are required to study. It was clear, that neither of the
images produced by Engelbrecht and submitted to
the court as evidence
supporting his opinion, bear the slightest resemblance to these
figures.
65.8
Engelbrecht confidently, asserted that his error rate was
zero, and that there was no possible doubt that his identified
matches
were correct.
[66]
The court was thus left with the
ipse dixit
of a
witness the extent of whose training is unclear, whose knowledge of
error rates, and in particular his own error rate is poor
at best and
who showed no understanding at all of the dangers of bias that, in
his discipline particularly, can lead to erroneous
identification.
[67]
With regard to bias, as appeared from the covering letter from
the investigating officer Wilson, when the Norinco pistol was
submitted
to the forensics laboratory for examination, Engelbrecht
was advised that the weapon concerned had been seized from a person
who
was a suspect in relation to the case. The danger of
confirmational bias is thus clear and real.
[68]
Precautions which might be taken to minimise the risk of such
bias were not taken. The safety-measure of an independent
confirmation
of examination results is lacking. A fellow examiner,
who is told that his colleague has made a particular match, is likely
to
seek confirmation rather than to differ from the conclusion. The
second examiner has the comfort of knowing that the first examiner
has made an identification, and his confirmation in turn strengthens
the conviction of the first examiner that a correct match
has been
made.
[69]
The court can thus not find that a match has been established
between the firearm of Zola Cakasayo and any of the ammunition
components
found at the scene of crime.
[70]
On 12 May 2014, Engelbrecht received three evidence bags
containing fired bullets and bullet fragments. The bags, he said,
contained
11 bullets and fragments. These evidence bags emanated from
the post-mortem examination conducted by Dr Alli on 26 July 2013.
According
to Dr Alli's affidavit, the post-mortem was conducted on 31
July 2014, but this date, as he conceded during cross-examination is
clearly incorrect. In this regard there is a further unexplained
discrepancy in the evidence. Dr Alli testified that seven pieces
of
metal were extracted from the body of the deceased and placed in the
aforesaid evidence bags.
[71]
On the same date, Engelbrecht received a further fired bullet
which he marked C9. He also received two fired bullets marked B47 and
B49.
[72]
After completing his examination, Engelbrecht concluded that
the exhibits that were removed from the body of the deceased, the
bullet
marked C9 and the bullet fragment, B47 recovered at the scene
of the shooting, were fired by the same firearm. This would mean that
seven shots were fired at the scene by this firearm. Again, in the
absence of detailed notes and/or photographic confirmation,
the
accuracy of his conclusions cannot be tested.
[73]
On 20 August 2014, Engelbrecht received a 9mm Parabellum Star
semiautomatic pistol bearing serial number 1999287. This firearm was
licenced to Melikhaya Cakasayo, Accused 2. It was recovered by the
Police from his possession.
[74]
Engelbrecht fired two test rounds through this weapon and
compared the fired test ammunition with the evidence components
recovered
from the scene of the shooting. He concluded, after
examination, that cartridge case marked A15, recovered from the scene
of the
shooting, was fired from the firearm of accused number two.
His report was submitted as an exhibit.
[75]
In order to illustrate his findings, Engelbrecht submitted two
court charts admitted in evidence, showing the primer of test
cartridge
2 and the primer of cartridge A15, and also a portion on
the side of the two cartridges. As in the case of the court charts
referred
to above, the defence produced enlarged photographs of the
digital images, which were submitted into evidence.
[76]
An examination of the enlarged photographs shows a limited
number of apparently matching striations, but also shows clear
evidence
of areas where there is no similarity at all between the
striations on two cartridge cases. Given the uncertainty regarding
the
lighting angles, the limited number of matches, the possibility
of random matching striations and subclass characteristics,
Engelbrecht's
identification of these two cartridge cases as having
been fired by the same firearm cannot be accepted. Engelbrecht
conceded,
in the course of his evidence, that the photographs
submitted to court represented the best matches that he had found.
The inference,
is that the similarities between the other cartridges
that he placed into the same group as cartridge case A15, which
totalled
nine in all, did not exhibit sufficiently close matches to
either test cartridge one or test cartridge two which he fired
through
the Star semiautomatic pistol.
[77]
There is thus insufficient evidence to establish, beyond
reasonable doubt that the weapon licenced to accused number two was
used
in the shooting.
[78]
In regard to this examination, a letter from the investigating
officer accompanied the pistol, which gives rise to the same concerns
regarding conformational bias as existed in relation to his previous
identification. Similarly, the reliability of the confirmation
by
Captain Jones, reflected on the exhibit is questionable for the
reasons set out above.
[79]
On 9 September 2014, Engelbrecht received a 9mm Parabellum
Norinco semiautomatic pistol bearing serial number 400747. He also
received
the other exhibits which have been collected in the course
of the investigation. Engelbrecht fired two test rounds through this
firearm and compared the cartridge cases and bullets with the other
exhibits. He concluded, after examination, that the firearm
had fired
the bullets and bullet fragments taken from the body of the deceased,
as well as the bullet marked C9 and the bullet
fragment marked B47.
His report in this regard was handed in.
[80]
The firearm was recovered from accused number one and was
licenced to him. This firearm was sent to Engelbrecht with a covering
letter by the investigating officer stating that the weapon had been
seized from a suspect who had been arrested in connection with
the
shooting. In support of his conclusion that the firearm had been used
to fire bullet C8, Engelbrecht submitted two court charts.
[81]
The risk of confirmational bias, together with the limited
number of striations on two bullets that match and the criticisms of
the evidence of Engelbrecht previously, apply to his identification
in this regard too. He also confirmed that the court charts
represented the best match that he had been able to find, and
accordingly the inference must be that the matches between the other
test bullet and any of the other bullets, 11 in number, which he said
had been fired from the same firearm, are less clear.
[82]
There is however a further reason to doubt the correctness of
this identification. Engelbrecht was unable to match any of the
cartridge
cases collected at the scene of the shooting with the test
cartridge cases that he fired through this weapon. Taking account of
the fact that, if his identification is correct, the firearm
concerned fired 11 rounds at the scene and, being a semiautomatic
pistol, ejected 11 cartridge cases, ii is surprising that not one of
these cartridge cases appears to have been recovered. No rational
explanation can be advanced for this, and for this reason as well,
Engelbrecht's identification cannot be accepted as an identification
beyond reasonable doubt.
[83]
Daniels' evidence was no more acceptable than that of
Engelbrecht.
[84]
Daniels was confused about whether she had examined the
exhibits using 3D or 2D imaging. The criteria for each is different.
[85]
Daniels was adamant that there is no possible doubt about the
correctness of the matches that she found.
[86]
Daniels' evidence related to a firearm that was, according to
the State's case, recovered from a vehicle being driven by Daki,
Accused
4 when the vehicle was stopped at a roadblock in Beaufort
West. Two test rounds were fired by Warrant Officer Stals using this
weapon, and one of the test cartridge cases was used to place an
image on the SAPS IBIS system.
[87]
Daniels testified that she was asked to examine various
cartridge cases from the scenes of various shooting incidents in the
Western
Cape which had been identified by the IBIS system as possible
matches with test cartridge case 2 that emanated from the test firing
by Stals. She explained that the IBIS system is a computer matching
system that selects possible matches with other ammunition
components
whose images have been loaded onto the system, using an algorithm.
From a number of possible matches, a member of the
SAPS Forensic
Laboratory selects those that he or she considers reasonable
possibilities, by visually comparing the digital images
which are
provided by the IBIS system. The physical exhibits concerned are then
collected and handed to one of the examiners at
the SAPS forensic
laboratory for visual examination under the comparison macroscope.
[88]
As appeared from her evidence, and as confirmed in her report
Daniels concluded that each one of the 20 questioned exhibits,
including
the fired cartridge case A48 collected at the scene of the
shooting with which the accused are charged, had been fired by the
firearm
concerned.
[89]
In support of this conclusion, Daniels submitted two court
charts. An enlargement of the digital image used to prepare the first
court chart was handed in. As appears from the enlarged photograph,
and as Daniels conceded in her evidence, the two cartridge
cases were
not aligned in the same relative position when the striations, which
purport to show a match, were photographed. Accordingly,
this court
chart does not assist Daniels in providing material on the basis of
which the court is able to determine whether her
statement, that the
two exhibits matched, is correct or not. A match may be thought to
exist because a number of striations can
be made to align with each
other under the comparison macroscope. If care is not taken to ensure
that the exhibits are properly
aligned and that the lighting angle is
the same on both exhibits, mistaken identification can occur.
[90]
Because both witnesses accepted that for there to be a match,
the examiner needs to find a second set of marks on an exhibit which
show the same degree of correlation, ii was a strictly speaking
unnecessary to examine the second chart. However, when this exhibit
is examined closely, ii suffers from the same defect as the exhibits
produced by Engelbrecht. Although it is so that certain of
the
striations do match up, there are a number of non-matching striations
and, taking account of the possibility of random matching
striations
and unrecognised subclass characteristics, no weight can be attached
to this court chart either.
[91]
Daniels confirmed that she adjusts the light sources by hand
to be able to see all the marks and simply judges by her eye whether
they are striking the two exhibits at the same angle. Daniels adjusts
continuously throughout the examination. This can cause problems
and
care must be taken not to rely too heavily on apparent matches which
might result from the incorrect angle of lighting.
[92]
Daniels also exhibited a lack of proper understanding of the
concept of confirmational bias, despite having studied the same
materials
as did Engelbrecht. The danger of confirmational bias is
particularly strong in her case because not only had the computer
algorithm
apparently identified a match, but her colleague who
selected the 20 examples from the IBIS matches, had concluded that
there is
a strong possibility that the ammunition components have a
common origin. In addition, the person who confirmed her findings had
access to her findings in advance of confirmation.
[93]
It was submitted on behalf of the accused that it is highly
improbable that the same firearm was used at each of the 20 different
crimes scenes over a period of time by apparently different
perpetrators. Some of the incidents are separated by a matter of days
only.
[94]
Al the request of the prosecution, Daniels submitted two
further court charts at the end of her evidence in chief. As appears
from
her evidence, a semi-circular pattern of striations shown to the
right of the firing pin impression on each of the cartridges are
characteristic of this particular model of Norinco pistol, and
therefore do not of themselves assist in identifying a common origin
from a single firearm of the cartridges concerned.
[95]
The ballistic evidence adduced by the State suffers from a
number of glaring weaknesses. The calibre of the two witnesses,
Engelbrecht
and Daniels, is not such that the court can place any
degree of reliance on the accuracy of their opinions. It is neither
probative
in itself, nor corroborative of any other evidence.
[96]
Accordingly the ballistic evidence did not satisfy the
requirements set out in
Twine
and
Mkhize
above.
[97]
In
R v Ndlovu
1945 (SA) 369 (A) at 386 it was stated:
"I may sum up
the law as follows: In all criminal cases it is for the crown
to
establish the guilt of the accused, not for the accused
to
establish his innocence It can discharge the onus either by
direct evidence
or
by proof of facts from which
a necessary inference can be drawn. One such fact, from which
(together with all the other facts) such
an inference may be drawn,
is the lack of an acceptable explanation by the accused.
Notwithstanding
the absence of such an
explanation, if on review of all the evidence, whether led by the
Crown
or
the accused, the jury are in doubt
whether the killing was unlawful
or
intentional,
the accused is entitled to the benefit of the
doubt."
[98]
The State urged the court to take a step back and consider the
mosaic of all the evidence as a whole. See
S v Hadebe & Others
1988 (1) SACR 422
(SCA). In doing so regard is had to the
evidence of the accused.
THE
ACCUSEDS' EVIDENCE
[99]
Andile, Accused 1 testified as follows:
99.1 On the relevant day
Andile attended Wynberg Magistrates' Court with his brother Zola.
Andile left his firearm in the cubbyhole
of Zola's vehicle in order
to enter the court building. Thereafter he went back to Zola's house,
from where he left in his own
vehicle for Nyanga terminus. He had
left his firearm in the cubbyhole of Zola's vehicle.
99.2 Thus, Andile was at
Nyanga terminus on the day in question. He was waiting for his food
at a food outlet housed in a shipping
container when he heard shots
being fired. He observed a chaotic scene of people in the parking
area of the terminus. He ran away,
behind the container, in the
direction of the police station. He stopped a taxi and took a lift to
his brother's house.
99.3 Andile had left his
Hilux bakkie at the rank, with his keys in an office housed in
another shipping container. His brother
arrived later, bringing
Andile's Hilux with the assistance of another man. Andile had left
his licensed firearm in the cubbyhole
of his brother's vehicle. When
he got his firearm back it was not missing any cartridges. He denied
being involved in the shooting.
His firearm was handed over to the
police by his lawyer, while he was in custody after his arrest.
[100]
Melikhaya, Accused 2 testified that he was at home on the day
of the incident. He heard about the incident later that evening when
he went to a shebeen which he attends each night to collect money
from his staff. His firearm was under his control on the day
in
question. He denied being involved in the shooting. He stated he knew
one of the deceased, but not the other and that he had
no problem
with either of them. He said he didn't know Twazi.
[101]
Nkosithandile, Accused 3 testified that he was not at Nyanga
terminus on the day of the shooting. He stated he had travelled to
Vredendal along with two other men to view a vehicle. His firearm was
locked in his safe at home, and he had the only key. He knew
the one
of the deceased but not the other; and that he had no problem with
either of them. He denied any involvement in the shooting.
Jalisile
Magadlelana also testified for the defence. He stated he was present
with Accused 3, and another man, Xolilizwe Cupiso,
when they drove to
Vredendal on the day of the incident. The State, in terms of
Section
236
, handed in the bank statement of Xolilizwe Cupiso for the day of
the incident which reflected a purchase in Vredendal.
[102]
Daki, Accused 4 testified as follows:
102.1 On the day of the
Nyanga incident he was at home in Delft. He stated he didn't know
either of the deceased or Twazi. He denied
being involved in the
shooting. He stated he couldn't confirm that the VW caddy present at
the scene was his without seeing the
registration number. He stated
he wasn't driving it that day.
102.2 With regard to his
being stopped and searched outside Beaufort West on 24 May 2014, he
stated he had no knowledge of a firearm
being in his vehicle whilst
he was driving it. He explained that his employee had driven the
vehicle the day before his arrest,
returning ii late the previous
evening to his house in Delft. He didn't search the vehicle before he
left Cape Town early that
morning. He also stated his vehicle was
opened and searched whilst he was face down in handcuffs on the road.
[103]
II is to be noted that the four accused were arrested 13
months, 12 months, 27 months and 10 months respectively after the
shooting
incident. This delay could be expected an impact on the
evidence of each accused in respect of their recollection of what
they
were doing on the day of the incident.
POSSESSION-ACCUSED
4
[104]
With regard to the firearm found in Daki's motor vehicle at
Beaufort West the State failed to established that it was in his
possession.
[105]
The concept of 'possession', when found in a penal statute,
comprises two elements, a physical element (corpus) and mental
element
(animus). Corpus consists either in direct physical control
over the article in question or mediate control through another. The
element of
animus
may be broadly described as the intention to
have
corpus.
In
S v Adams
[1986] ZASCA 82
;
[1986] 2 ALL SA 602
(A), the
Appellate Division held;
"As a basic
minimum there must be this mental element. Moreover, under
sec.
2(1)
the onus is clearly on the State to prove that the accused
person was in possession of a dangerous weapon, and this onus would
include the burden of establishing beyond a reasonable doubt the
existence at the relevant time of this mental element.
[106]
The presumption in
Section 117
(2) for such
animus
to
be presumed on the basis of pure physical control is conditional on
the taking of reasonable steps. In
Zumani and others v S
[2015]
JOL 32872
(GJ) the court stated that:
"A logical and
necessary step in the investigation of this case would have included
examination of possible fingerprints. It
is neither necessary nor
appropriate to speculate as to what the outcome of such
a
procedure would have been. Fact of the matter is that this was not
done and it accordingly cannot be said that the State has taken
sufficient steps necessary to fulfil the condition in order for the
presumption to apply."
[107]
In this matter the firearm was not dusted for fingerprints.
The presumption can thus not apply.
CONCLUSION:
[108]
The evidence of the State does thus not sustain a conviction
of Accused 4 on an amended version of count 9.
[109]
Adopting a holistic approach to all of the evidence placed
before the court a reasonable doubt with regard to the guilt of the
accused
remains. The forensic evidence cannot be used to corroborate
Twazi's evidence. As Twazi's evidence cannot be accepted as
sufficiently
reliable and satisfactory on its own it follows that the
State has not established the guilt of the Accused, on any of the
charges,
beyond a reasonable doubt.
[109]
It is ordered that:
The
four accused are acquitted on all charges.
______________________
SIEVERS,
AJ
Acting
Judge of the High Court