SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
In the High Court of South Africa
(Western Cape Division, Cape Town)
Case No: A246/2023
In the matter between:
MARCO CANTERBURY First Appellant
HEINRICH POTGIETER Second Appellant
And
THE STATE Respondent
Heard: 17 May 2024
Delivered electronically: 22 July 2024
JUDGMENT
LEKHULENI J
1. Introduction
[1] This is an appeal against conviction and the resultant sentence imposed
against the two appellants by the Parow Regional Court. The appellant s were
charged in the Parow Regional Court as follows:
Count 1: Contravening section 9(1) (a) of the Prevention of Organised Crime Act 21
of 1998 (‘POCA’) – (wilfully aiding and abetting any criminal activity committed for the
benefit of, at the direction of, or in association with any criminal gang).
Count 2: Contravention of section 9(2)(a) of POCA – (performing any act which is
aimed at causing, bringing about, promoting or contributing towards a pattern of
criminal gang activity).
Count 4: Murder.
Count 5: Attempted Murder.
Count 6: Unlawful Possession of a Firearm, and
Count 7: Unlawful Possession of Ammunition.
[2] The allegations on the first count are that the appellants, who are purportedly
members of the criminal gang called the Terrible Jesters, wrongfully and unlawfully
aided and abetted in criminal activities conducted for the benefit of the Terrible
jesters gang in Bishop Lavis as set out in counts 4 to 7 of the chargesheet . In count
2, it was alleged that the two appellants made themselves guilty of the crime of
having contravened the provisions of section 9 (2)(a) of POCA in that they wrongfully
and unlawfully performed act s which w ere aimed at causing , promoting or
contributing towards a pattern of criminal gang activity by committing offences set
out in counts 4 to 7. Regarding count 3, the State preferred a charge of contravening
section 9(2)(b) of POCA; however, this count was withdrawn against the appellants
before they could plead to the charge.
[3] In count 4, the State preferred a charge of Murder read with the prov isions of
section 51(1) of Part 1 of Scheduled 2 of the Criminal Law Amendment Act 105 of
1997 (‘the Criminal Law Amendment Act’) against the appellants. It was alleged that
the appellants in the furtherance of a common purpose or conspi racy did unlawfully
and intentionally kill an adult male, Gavin Barnes, by shooting him with a firearm. As
far as count 5 is concerned , it was alleged that on 29 May 2019 and at or near V[…]
Street Kalksteenfontein in the regional division of the Western Cape the appellants
unlawfully and intentional ly attempted to kill Will Smith a male person by shooting
him with a firearm.
[4] In Count 6, it was alleged that on the same date and time as in Count 5, the
appellants unlawfully had in their possession a firearm capable of firing 9mm
ammunition without holding a license, permit or other authorisation issued in terms of
the Firearms C ontrol Act 60 of 2000 (‘the Firearm Control Act’) to possess such
firearm. Regarding count 7, it was alleged that on the day in question, as sta ted in
count 5, and in the regional division of the Western Cape, the appellants did
unlawfully have in their po ssession ammunition of an unknown amount of 9mm
parabellum Caliber rounds without being the holders of a license in respect of a
firearm capable of discharging that ammunition or a permit to possess such
ammunitions.
[5] The appellants who were legally represented throughout the trial proceedings,
pleaded not guilty to all the charges levelled against them on 31 January 2023 and
invoked their con stitutional right to remain silent. However, they made formal
admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977 (‘the
CPA’) in respect of count 4. In their formal admissions, they admitted the identity of
the deceased; they admitted that the deceased died because of gunshot wounds to
the chest and arm sustained in an incident that occurred on 29 May 2019. The
appellants also admitted that the deceased suffered no further injuries from the time
of the incident until a postmortem exa mination was carried out on his body. In
addition, the appellants admitted the accuracy of the findings stated in the
postmortem report, the ballistic report, and the medical report regarding the
complainant in the attempted murder charge.
[6] Before the trial could commence, the sentencing provisions prescribed in
section 51(1) and 51(2) of the Criminal La w Amendment Act were explained to the
appellants, and they understood . After evidence was led, the appellant s were
convicted on 31 January 2023 . The fir st appellant was convicted on counts 2 to 7
and was found not guilty in respect of count 1. The second appellant was convicted
of all the c harges levelled against him (counts 1 to 7). On 14 March 2023 , the first
appellant was sentenced to six ( 6) years imp risonment in respect of count 2; life
imprisonment in respect of count 4; Seven ( 7) years impris onment in respect of
count 5; Seven ( 7) years imprisonment in respect of count 6 and three ( 3) years
imprisonment in respect of count 7.
[7] The trial court o rdered that the sentences in respect of counts 2, 5, 6, and 7
would run concurrently with the life sentence in count 4. Similarly, the court a quo
imposed a similar sentence to th e second appellant in respect of counts 2, 4, 5, 6
and 7. In addition, th e court imposed a sentence of six ( 6) years imprisonment
against the second appellant in respect of count 1. The trial court also made ancillary
orders against the appellants in terms of section 103(1) of the Firearms Control Act
and ordered that the appellants were unfit to possess a firearm.
[8] The appellants now appeal against the conviction and sentence, leave to
appeal having been granted by the trial court.
Summary of Facts
[9] The State relied on several witnesses in its quest to prove its case against the
appellants beyond a reasonable doubt. The two appellants testified, and the first
appellant called a witness in support of his case. For the purposes of this judgment, I
will summarise the evidence of the witnesse s relevant to this appeal and I w ill not
repeat their evidence verbatim. The State called W[…] T[...] as its first witness. Ms
T[...] testified that the first appellant is known to her very well. They grew up in the
same area. It was her testimony that she had been residing in the area for about 38
years. According to her, the first appellant is known to her ever since she can
remember.
[10] The witness testified that on 29 May 2019, she was at her house at 1[…] v[…]
Street, Kalksteenfontein between 13h00 and 14h00 in the afternoon. She was
together with her brother and her ex-boyfriend. She was lying on her bed in her
bedroom and her brother was in the lounge. While lying on her bed, a person named
Morcom (‘the deceased’) and Will Smith entered her room and asked if they could
smoke tik there. Ms T[...] testified that the two gentlemen came into her bedroom,
and Will Smith lay behind her on the bed. The deceased sat on the corner of the bed
against the wall. Just before they could start smoking, the first appellant entered
through the front door. She mentioned that from the bedroom, one can see directly at
the front door.
[11] Her view of the first appellant was unobstructed. The witness testified that she
knew the first appellant for many years and that he belonged to the Terrible Josters
gang that was operating in the area. The witness observed that the first appellant
had a firearm in his hand and had pointed it to the room entrance. She then jumped
up and moved past the first appellant as he was entering the room. As the witness
was about to exit the front door, she had a gunshot coming from the room. She then
ran outside and went t o sit on a stone outside the property in the road which was
about s ix meters away. As she was approaching the gate , the witness heard the
second shot and after that she did not hear any further shots.
[12] While seated at the said stone outside her yard, she saw the first appellant
and Will Smith exiting her house. The two of them were wrestling for possession of
the firearm that the first appellant had i n his possession. Ms T[...] testified that when
they reached the gate, Will Smith managed to escape from the first appellant and ran
down the street, away from him. The first appellant pursued Will Smith and wanted to
shoot him, but the firearm jammed as nothing happened. Will Smith ran around the
corner, and the first appellant came to a standstill. At tha t moment, the witness
noticed the second appellant coming down the road from the direction where Will
Smith ran.
[13] The second appellant was approaching the direction of the witness. When the
second appellant reached the first appellant, she saw the first appellant handing the
firearm to the second appellant. The second appellant took the firearm and gave it
back to the first appellant. She then ran into her house and did not see anything
further. The witness testified that she had known the second appellant for a long time
and that he also lived on the same street as her. The witness knows the second
appellant by the nickname Hannes. According to her, t he second appellant belongs
to the Terrible Josters gang. It was her evidence that she had a clear v iew of both
appellants at the time of the incident and her sight of them was in no way obstructed.
[14] During c ross examination , it was put to hear that the first appellant was
nowhere near the house or in Kalksteenfontein on the day of the incident. In
response, Ms T[...] disputed this version and asserted that the first appellant was at
her house. When she was asked how she saw the first appellant entering her house
while she was lying on her bed in the bedroom, she explained that the door of her
bedroom was open, and from her vantage point on the bed, she had a clear view of
the front door. She further asserted that she had suff icient opportunity to identify the
first appellant as the person who entered her house with a firearm and the person
who chased Will Smith in the street.
[15] It was further her testimony that the lighting inside he r house was good
enough for her to identify the first appellant. During cross-examination, it was implied
that the second appellant was at his residence on the day of the incident and refuted
being present at the crime scene or receiving a firearm from the first appellant. In
response, Ms T[...] contradicted this assert ion. She testified that during the
altercation between the first appellant and Will Smith over the possession of the
firearm, the second appellant approached from the opposite direction, took the
firearm from the first appellant, and subsequently returned it to the first appellant
shortly thereafter. She was distraught and devastated to see th e deceased lying
dead in her house after the shooting and she questioned herself why the first
appellant would do such a thing in her house.
[16] Sergeant Tshabalala was the second witness to testify. His testimony was that
he was employed in the South African Police Services (‘SAPS’) since 2009. He is a
Sergeant, and he was stationed at the Provin cial Organized Crime Investigation Unit
until 2019 when he joined the An ti-gang Unit. On 29 May 2019, the day of the
incident, he was instructed to attend the scene at V […] Street Kalksteenfontein
where the deceased Gavin Barnes was shot and killed. At the scene, he met Captain
Myaiza who took him to the shack where the deceas ed was lying face down on the
ground.
[17] There was another male person being treated in the ambulance outside the
premises. This person became known to him as Will Smith. He spoke to this person
who told him he was shot by members of the Terrible Joste rs. The witness provided
hearsay evidence, which the trial court provisionally accepted, stating that Will Smith
informed him that he was shot by the first and second appellant. He later arrested
the first and second appellants with the assistance of Will Smith, who directed him to
the location of the appellants upon their arrest.
[18] The State also relied on the evidence of Warrant Officer Arendse. He has 21
years of experience in SAPS and is based in the Anti-gang unit. He went to the crime
scene on 19 May 2019, where one victim was declared dead, and the other victim
(Will Smith) was taken to Tygerberg Hospital. He went to the hospital, interviewed
and took a statement from Will Smith. At that stage, the victim was still in the
emergency section of the hospital but was in his full senses. He spoke to the witness
in Afrikaans.
[19] The relevant part of Will Smith's statement that Warrant Officer Arense took
was that while the deceased and Will Smith were in the room, the first appellant
came to the bedroom, kicked the door open and had a 9mm star black firearm in his
hand. The first appellant fired shot s at the deceased twice and the latter fell to the
ground. The first appellant turned to him (Will Smith) and shot him once in the left
side. The first app ellant shot for the second time and the firearm jammed. They
started fighting until they ended up in the street. The second appellant approached,
took the firearm from the first appellant, cocked it and one cartridge fell on the
ground. He then ran and he does not know why the appellants shot them as they all
belong to the Terrible 28 gang group.
[20] Sergeant Wayne Malcolm Leukes, the investigation officer of the matter who
took over from Sergeant Tshabalala, also came to testify. He retook Will Smith's
statement on 9 July 2020 as the prosecutors instructed him. When he too k the
statement, Will Smith spoke to him in Afrikaans, and he read the statement back to
him. According to the statement of Will Smith, the first appellant shot the deceased
and thereafter shot him (Will Smith) and then the firearm jammed, and they wrestle d
for the firearm. Will Smith further stated in his affidavit that he pointed the first
appellant to Sergeant Tshabalala. Sergeant Leukes accompanied Sergeant
Tshabalala to arrest both appellants.
[21] The State also called Clement Peterson who is a Sergeant employed in the
SAPS for 18 years. He is currently stationed at provincial Organised Crime Unit. He
previously worked at Bishop Lavis at the Serious and Violent Crime Unit for about 6
years. Sergeant Petersen testified that he knew both app ellants while he was
investigating gang related cases. He had interactions with them. According to
Sergeant Petersen , the appellants are part of the Terrible Josters gang that is
affiliated to the 28 gangs. He arrested one Marco Jansen who was involved in the
gang related murder of Cheslyn Ceaser at the premises of the first appellant .
According to him, the second appellant was the second in command to one Taliep
Isaac the leader of the Terrible Josters in Kal ksteenfontein. He testified that Taliep
Isaacs was also involved in the murder of Cheslyn Ceaser.
[22] He was part of a raid at the home of the second appellant where photos of the
second appellant and his tattoos were taken. He did not know if the first appellant
had tattoos. However, he testified that the second appellant had a tattoo of a joker on
his left upper arm. Sergeant Petersen also stated that the second appellant also had
a tattoo written “thug life” on his left arm. This is how he knows that the first and the
second appellant are members of the Terrible Josters gang. He also knew the
deceased Will Smith as a member of the Terrible Josters and aligned himself to the
28 gang of Bishop Lavis. That was in short, the evidence of the State.
[23] However, before the State could close its case, the state made an application
in terms of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 (‘the
Law of Evidence Amendment Act’) for the admission of the two statements of Will
Smith as evidence. It was established that Will Smith passed away before he could
testify. His death certificate was handed into th e record as an exhibit. The trial court
found that indeed the said witness is deceased and therefore unable to testify. The
court weighed the probative value of the statements and the prejudice that may be
suffered by the appellants if it should admit the two statements. After considering all
the factors listed in section 3(1)(c) of the Law of Evidence Amendment Act, the court
found that it was in the interest of justice to allow the said statements into the record
as evidence. The court eventually accepted the two statements of Will Smith.
[24] The two appellants also testified. The first appellant denied in his testimony
that he killed the deceased and that he attempted to kill Will Smith. The first
appellant denied that he was on the scene where the incident happened. Instead,
the first appellant told the court that on 29 May 2019, the day of the incident, he was
not in Kalksteen fontein but he resided with his brother Vernon Ca nterbury in
Parklands. He was released f rom the hospital on 01 May 2019, after being stabbed
with a knife. Following his discharge, he went directly to his brother's place in
Parkland. On 22 May 2019, he vis ited Du Noon hospital to have his stitches
removed.
[25] The first appellant denied that he chased Will Smith and that he gave a
firearm to the second appellant. The first appellant asserted that he knew the
deceased however, he does not know why the witn ess is implicating him falsely. He
also knows Ms T[...] and referred to her as “V[…]”. He is not aware of anything that
Ms T[...] has against him. According to him, Ms T […] thinks he is a member of a
gang because, in the past, he belonged to the “Bad Boys” gang, but that was years
ago. He decided to leave th e gang after meeting a woman and having children with
her. The first appellant asserted that he also had no idea why Will Smith would make
these allegations against him in his declaration of facts.
[26] He was not a friend with Will Smith, however when they saw each other, they
would greet each other and chat for approximately 10 minutes and then move on.
The first appellant denied that he shot the deceased. He asserted that he did not
point a firearm at anyone. The first appellant also refuted Ms T[...]’s evidence that he
handed a firearm to the second appellant. The first appellant called his brother,
Vernon Canterbury, to support his claim that on 29 May 2019, when the incident took
place, the first appellant was living with him in Parklands and was not involved in the
murder and attempted murder of the victims. Mr Vernon Canterbury indeed testified
that the first appellant was with him from 1 May 2019 until the 02 June 2019.
However, during cross -examination it was put to him that the first appellant was
arrested by the police on 01 June 2019. He could not give a plausible explanation of
this discrepancy.
[27] The second appellant also testified . His evidence in brief was that he was not
at the scene when the crime was committed. According to this witness, on the day of
the incident, 29 May 2019, he was all morning at home watching TV and waiting for
his children to return from school. At 12h00 in the afternoon, he washed and dressed
before his ch ildren came from school. It was then that his mother came in from
outside where she was busy with the laundry and told him that there was a shooting
up in the road. He finished dressing and went outside. He walked with other people
up to the corner and sto od there. He saw many people in the community walking up
the street to the scene.
[28] The witness indicated that he only knew Ms T[...] from seeing her when she
purchased goods at their tuck shop, and he does not know why she would say she
saw him receiv ing a firearm from the first appellant. There is no bad blood between
him and Ms T[...]. The second appellant confirmed that Ms T[...] knew him and that
he also knew her as they resided in the same area. He does not know why Will
Smith stated in his statem ent that he (the second appellant) chased him with a
firearm. It was his testimony that h e was not a member of a gang and that he had
never interacted with Detective Peterson before. The witness denied having a joker
tattoo on his left arm, as claimed by M r Pietersen. He stated that he has a tribal
tattoo like that of Dwayne Johnson. He denied that he belonged to or had been a
second in command of the Terrible Josters gang. He emphatically denied that he
was on the scene at all and asserted that the house o f Ms T[...] was a drug house.
He does not know why Ms T[...] is falsely implicating him. In summary, which was the
evidence presented before the trial court.
The findings of the trial court
[29] After considering the conspectus of the evidence, the court below made
favourable credibility findings regarding the evidence of Ms T[...] and the evidence of
Will Smith, which was presented through an affidavit. The court accepted that the
identification of these witnesses of the two appellants could be accepted as accurate
and reliable as both witnesses testified that they had previous knowledge of both
appellants. The court a quo found that their prior knowledge of both appellants
substantially increased the accuracy of their identification of the appellants. Th e trial
court was critical of the appellants, saying they did not disclose their alibi defences to
the police or the prosecution immediately. It only became apparent in court nearly
three years after the incident. The court noted that o nly during cross-examination of
the state witnesses was their alibi defence put to the witnesses as they remained
silent at the plea stage.
[30] The trial court found that the evidence of the appellants was not truthful and
was unreliable and rejected it in so far as it was inconsistent with that of the State.
The court a quo concluded that both appellants were at the crime scene and acted in
common purpose in shooting the deceased and at Will Smith with the intent to kill
him. The court below accepted that the deceased was shot by the first appellant,
who acted in common purpose with the second appellant. Concerning count 1, the
court found that the first appellant was the principal actor in respect of the murder of
the deceased and that the second appellant wrongfully and u nlawfully aided and
abetted the first appellant in such criminal activity.
[31] For this reason, the trial court acquitted th e first appellant on count 1 and
returned a guilty verdict against the second appellant, finding that the second
appellant assist ed the first appellant in committing the criminal activity. The court
concluded that, on the totality of the evidence, in the a ttempted murder of Will Smith
in court 5, both appellants performed an act aimed at causing or contributing to a
pattern of criminal gang activity. The court eventually returned a guilty verdict against
both appellants for all the remaining counts.
The grounds of appeal
[32] The applicants raised various grounds of appeal on conviction and sentence.
The grounds of appeal as discernible from the notice of appeal may, in a nutshell, be
summarised as follows: The trial court erred in finding that the State had proved the
appellants’ guilt beyond reasonable doubt. That the trial court erred in finding the
appellants guilty of the alle ged offences. The appellants also contend ed that the
court a quo erred in finding that there were no improbabilities in t he State’s version.
Further, that the trial court misdirected itself by failing to approach Ms T[...]’s
evidence with critical scrutiny when considering the application of the cautionary rule
for a single witness. The appellants contend ed that the trial co urt misdirected itself
by not considering that there was no corroboration of Ms T[...]’s evidence and that
the available witnesses were not called. The appellants also asserted that the court a
quo erred in not finding that the appellants’ version was reasonably possibly true.
[33] As far as sentence is concerned, the appellants contended that the trial court
erred in overemphasi sing th e degree of seriousness of the specific case. The
appellants also asserted that the court a quo erred in not finding substantial
compelling circumstances in the appellants’ personal circumstances to warrant the
imposition of a much lesser sentence.
Principal Submissions by the parties
[34] At the hearing of this appeal, M s De Jongh, who appeared for the appellants,
submitted that the court below had misdirected itself in finding that the appellants
acted in common purpose. According to Ms De Jongh, the State failed to prove
common purpose in respect of the appellants especially regard being had to the fact
that the appellants only met each other after the shooting. Counsel strongly argued
that it could not be characterised as aiding and abetting, as the evidence
unequivocally demonstrated that the second appellant did not provide any
assistance or cooperation to the first appellant.
[35] Ms De Jongh strongly argued that the trial court had disregarded the
appellants' defences. She contended that the court a quo had erred in admitting the
two statements of Will Smith as hea rsay evidence, which was prejudicial to the
appellants. Ms De Jongh further submitted that the appellants' version of events, as
presented in their evidence, was reasonably possibly true.
[36] On the other hand, the State advocate, Ms Stone, conceded at the hearing of
this appeal that common purpose was not established in this matter. However, Ms
Stone submitted that Ms T[...] clearly identified the appellants and that her evidence
in t his regard was unimpeachable. Ms Stone contended that the trial court was
correct in accepting the hearsay evidence as there was no prejudice against the
appellants and that it was in the interest of justice to admit the hearsay evidence.
Counsel further s ubmitted that the hearsay evidence of Will Smith that the court a
quo admitted corroborated Ms T[...]’s evidence as to the identity of the person who
shot the deceased and Mr Will Smith. Counsel implored the court to dismiss the
appeal.
Issues to be decided
[37] The key issue for determination in this appeal is whether the appellants ’ guilt
was established beyond reasonable doubt and, if so, whether the court a quo was
correct in finding that there were no substantial and compelling circumstances
warranting a deviation from the prescribed minimum sentence. Simply put, whether
the trial court was correct in imposing a life sentence against the appellants.
Applicable Legal Principles and Discussion
[38] It is settled law that in a matter such as the pre sent, this court's powers to
interfere on appeal with the trial court's findings of fact are limited in the absence of
demonstrable and material misdirection. Where there is no misdirection on the facts,
the presumption is that the trial court's findings a re correct, and that the appellate
court will only interfere with them if it is convinced that they are wrong.
[39] It is against this background that I turn to evaluate the merits of this appeal.
[40] It is well established in our law that the duty to p rove an accused's guilt rests
fairly and squarely on the sh oulders of the State. The accused need not assist the
State in any way in discharging this onus. 1 In assessing whether the State has
discharged the onus of proving its case against the accused beyo nd a reasonable
doubt, the court must consider all the evidence in concluding whether to convict or
acquit an accused. In other words, a court's conclusion must account for all the
evidence presented before it.2
1 S v Mathebula 1997 (1) SACR 10 (W).
2 S v Van der Meyden 1999 (1) SACR 447 (WLD) at 449h.
[41] It is common cause that Ms T[...] was a single witness, and thus, her evidence
had to be evaluated with utmost caution. Section 208 of the CPA provides that an
accused person may be convicted of any offence on the single evidence of any
competent witness. The testimony of a single witness shou ld be clear and
satisfactory in all material aspects. The exercise of caution must not be allowed to
displace the exercise of common sense. 3 In addition, i n matters involving a single
witness the court is enjoined to consider the merits and demerits of the witness’s
evidence, having done so, decide whether it is trustworthy and whether, despite the
fact that there are shortcomings or defects or contradictions in the testimony, the
court is satisfied that the truth has been told.4
[42] The appellant in this case refuted being present at the scene when the
shooting of the deceased took place, resulting in his death. Specifically, the first
appellant contested the testimony of Ms T[...], who claimed to have witnessed him
entering her bedroom while brandishing or pointing a firearm at them. This begs the
question of whether Ms T[...] correctly identified the person who entered her
bedroom and fired shots that killed the deceased.
[43] In considering this question, it is perhaps apposite to remind ourselves tha t
one of the elements of a crime that the State must prove is the identity of the
perpetrator. A court must always approach the evidence of identification with caution.
However honest and credible a witness may seem, his evi dence about the identity of
an a ccused may be unreliable. 5 In other words, a witness's honesty and own
conviction as to the correctness of his or her identification can never be allowed to
take the place of an independent enquiry into the reliability of the identification itself.6
[44] In the present matter, the State relied on the direct evidence of Ms T[...] to
prove that the appellants, particularly the first appellant, shot the deceased and Will
Smith. It is common cause that the appellants and Ms T[...] knew each other very
well. They grew up in the same area. Ms T[...] has been residing in the same area for
about 38 years. According to her, the first appellant has been known to her ever
3 S v Artman and Another 1968 (3) SA 339 (SCA).
4 S v Webber 1971 (3) SA 754 (A) at 758).
5 S v Ngcina 2007 (1) SACR 19 (SCA) at para 16.
6 S v Miggel 2007 (1) SACR 675 (C) at 678E.
since she can remember. The appellants also conceded that they are not strangers
to Ms T[...]. T hey had known each other for an exceptionally long time. The first
appellant admitted that Ms T[...] knew him very well and testified that he called her
V[…]. The first appellant took their relationship a step further in cross-examination
when he admitted that Ms T[...] knows him to such an extent that when she sees him
closer, she will not make a mistake of identifying him.
[45] The incident took place in the afternoon. The witness had ample opportunity
to observe the appellants. Ms T[...]’s evidence w as that she saw the first appellant
entering her bedroom where the deceased and Will Smith were with a firearm in a
pointing position. Significantly, at the time of the incident, Ms T[...] was very close to
the first appellant and had a clear view of him. She had ample time to identify the
first appellant. It was daytime, and the door of her bedroom was wide open. She
could see the first appellant’s entire body as he approached because he was facing
her.
[46] Ms T[...]’s view of the first appellant was u nobstructed. The witness saw the
first appellant when he proceeded towards her bedroom and took up a position in the
doorway of the bedroom, still pointing the firearm at the three of them. As these
events unfolded, she jumped up from her bed, moved past t he first appellant at the
door of her bedroom, and ran out of the house. It is worth noting that the incident
took place during the day, so visibility was good. The first appellant was two and a
half meters away from her when she got to the front door of h er house. She heard a
shot go off and then heard a second shot when she got to the gate leading to the
street.
[47] In my view, Ms T[...] had ample time to identify the first appellant. She
correctly identified the first appellant as the person who enter ed her house and fired
shots at the deceased. I am of the firm view that her evidence in this regard is
unimpeachable. Furthermore, what adds to the reliability of her observation is that
she observed the first appellant well before the shots were fired at the deceased. It
must be stressed that one of the factors which are of great importance in a case of
identification is the witness’ previous knowledge of the person sought to be identified.
If the witness is familiar with the person or has seen him freque ntly before, the
probability of accurate identification is significantly increased.7
[48] As previously stated, Ms T[...] knew the first appellant very well . In my view,
the court a quo was correct in finding that the first appellant entered Ms T[...]’s
bedroom and shot the deceased and Will Smith . The version of the first appellant
that he was not at th e scene is a sheer fabrication contrived by the first appellant to
avoid liability. In my view, it was correctly rejected by the trial court.
[49] The a ppellants also impugned the court’s acceptance of Will Smith's two
statements. The appellants’ Counsel argued that the interest of justice cannot
override the prejudice suffered by the appellants. It was further submitted that the
fact that the appellants could not cross-examine this witness on his two statements is
prejudicial to the appellants. Ms De Jongh argued in her written subm issions that it
was not in the interest of justice for the trial court to admit the two statements of Will
Smith. I do not agree with this argument.
[50] In my view, the trial court carefully considered all the factors listed in section
3(1)(c) of the Law of Evidence Amendment Act and concluded that the statements of
Will Smith w ere reliable. The court a quo found that Will Smi th’s statements were
corroborated by Ms T[...]’s evidence in material respect. I firmly believe that this
conclusion is unassailabl e and cannot be criticized. It is underpinned by sound
reasoning and objective facts. Will Smith’s two statements align with Ms T[...]’s
evidence, providing significant support regarding the sequence of events and the
identity of the person who shot the deceased and at Will Smith.
[51] Will Smith stated in his statement that he was with the deceased (Morsom),
and they went to Ms T[...]'s house and sat in her room. The first appellant came and
fired two shots at the deceased and, after that, shot him in his left side. The first
appellant tried to shoot him again, and the firearm jammed. They wrestled over the
firearm until they ended up in the street. While in the street, the second appellant
came, took the firearm from the first appellant, cocked it, and a cartridge fell on the
7 R v Dladla 1962 (1) SA 307 (A) at 310 C-E.
ground. Will Smith then ran away. In my view, this version corroborates Ms T[...]'s
version in a mater ial respect. Ms T[...] witnessed the first appellant entering the
bedroom where the deceased and Will Smith were, and she heard t wo shots being
fired while she was outside.
[52] Notably, the two statements of Will Smith accord in significant detail with t he
medical report on his injuries and the findings of the post-mortem report concerning
the body of the deceased . The post-mortem report undergirds, to a greater extent,
Will Smith’s version and lends credence to him being at the scene during the alleged
shooting of the deceased. The finding s of the post-mortem report regarding the
number of gunshot wounds observed on the body of the deceased is consistent with
the version of Will Smith. This lends credibility to Will Smith’s honesty and reliability
in witn essing who attacked him and who shot the deceased . The only instance in
which Will Smith’s stat ement is not directly supported by other evidence is the fact
that the second appellant allegedly chased Will Smith with a firearm after the second
appellant allegedly got the firearm from the first appellant. Ms T[...] did not observe
this. However, that piece of evidence is inconsequential in impeaching the trial
court’s finding.
[53] In my view, the trial court adopted a holistic approach in assessing whether
overall the two statements of Will Smith were of adequate probative value when they
were considered with all other evidence taken together. I am of the firm view that the
trial court was correct in its finding that the first appellant was guilty on the cha rge of
murder and of attempting to kill Will Smith. The argument that the appellants were
prejudiced because they could not cross -examine Will Smith is fundamentally flawed
and of no moment. In S v Kapa ,8 the Constitutional Court quoted with approval the
Supreme Court of Appeal (‘SCA’) case of S v Ndhlovu,9 in which the SCA considered
whether the admission of hearsay evidence violates the constitutional right to
challenge evidence as entrenched in section 35(3)(i) of the Constitution and,
consequently, the right to a fair trial. The SCA held that the criteria in section 3(1)(c)
– which must be interpreted in accordance with the values of the Constitution and
the norms of the objective value system it embodies – protects against the
8 2023 (1) SACR 583 (CC).
9 2002 (6) SA 305 (SCA).
unregulated admission of hearsay evidence and thereby sufficiently guards the rights
of an accused. To this end, Cameron JA, writing for the unanimous court stated:
‘[24] The Bill of Rights does not guarantee an entitlement to subject all
evidence to cross examination. What it cont ains is the right (subject to
limitation in terms of section 36) to ‘challenge evidence’. Where that evidence
is hearsay, the right entails that the accused is entitled to resist its admission
and to scrutinise its probative value, including its reliabili ty. The provisions
enshrine these entitlements. But where the interests of justice, constitutionally
measured, require that hearsay evidence be admitted, no constitutional right
is infringed.’ (my underlining)
[54] Significantly, the SCA stated that a just verdict, based on evidence admitted
because the interest of justice requires it, cannot constitute prejudice. The court
further observed that where the interests of justice require the admission of hearsay,
the resultant strengthenin g of the opposing case cannot count as prejudice for
statutory purposes, since in weighing the interests of justice the court must already
have concluded that the reliability of the evidence is such that its admission is
necessary and justified.
[55] From the conspectus of the evidence, I am of the view that the conviction of
the first appellant on the charge of murder and attempted murder is irreproachable.
The first appellant shot the deceased and Will Smith with a firearm. The ballistic
report, admitted by consent, described the cartridges found at the scene of crime as
9mm parabellum calibre, designed for a centre -fire firearm. It follows that the
conviction of the first appellant on unlawful possession of a firearm without a licence
and possession of am munition was corre ct and to the point. The trial court's finding
on these counts is precise and should not be altered, in my opinion.
[56] However, the second appellant's position on the counts discussed above
stands on a different footing. The court a quo relied on commo n purpose and found
the second appellant guilty of murder and attempted murder. In my view, the court a
quo erred in this regard. In S v Thebus,10 the Constitutional Court gave recognition to
the fact that common purpose ('a joint criminal enterprise') has two forms:
'The first arise[s] where there is a prior agreement, express or implied, to
commit a common offence. In the second category, no such prior agreement
exists or is proved. The liability arises from an active association and
participation in a common criminal design with the requisite blameworthy state
of mind.'
[57] In the instant matter , the second appellant was not there when the first
appellant entered Ms T[...]'s house. The second appellant was not present when the
first appellant fired two shots at the deceased and Will Smith in Ms T[...]'s bedroom.
The evidence does not support a co nclusion that the second appellant acted in
concert or in association with the first appellant when the latter fired shots at the
deceased an d Will Smith in his absence. It cannot be said that he knew what
happened inside Ms T[...]’s bedroom. There is no e vidence to confirm that he
conspired with the first appellant to shoot the deceased and Will Smith.
[58] Instead, the evidence suggests that the second appellant was not involved in
the crime committed by the first appellant. Ms T[...] asserted that the f irst and the
second appellant only met each other after the shooting took place outside the yard
and in the street. Ms T[...] further stated that the second appellant took the firearm
from the first appellant and immediately returned it. Based on the evide nce of Ms
T[...] and the two affidavits of Will Smith, the second appellant was not at the scene
when the shooting took place. Upon consideration of all the evidence, I am
unequivocally convinced that the trial court erred in finding the second appellant
guilty of murder and attempted murder.
[59] Equally, the same reasoning applies regarding the charge of unlawful
possession of a firearm and possession of ammunition. On the evidence of Ms T[...],
the second appellant took the firearm fr om the first appel lant, cocked it and gave it
back to the first appellant. From there, Ms T[...] did not see what happened further.
10 2003(2) SACR 319 (CC) at para 19.
The evidence of what happened thereafter, as presented by Will Smith, is not
corroborated by any independent evidence. In these circumstances, the State did not
prove the guilt of the second appellant beyond a reasonable doubt for the unlawful
possession of a firearm and ammunition. Thus, the court a quo was mistaken in
returning a guilty verdict against the second appellant on these counts.
[60] This leads me to the two gang -related counts based on POCA. The court a
quo found the second appellant guilty on count 1 (contravention of section 9(1)(a) of
POCA). In my opinion, the trial court's decision was predicated on an incorrect
interpretation of the law. The trial court found that a conviction in terms of section
9(1)(a) of POCA can only be established if it is proven that the accused did
wrongfully and unlawfully aid and abetted in any criminal activity committed for the
benefit of a gang. Ac cording to the court a quo, the proven facts, in this case,
indicated that the f irst appellant was the principal actor in respect of the murder of
the deceased and that the second appellant wilfully aided and abetted the first
appellant in that criminal ac tivity. To this end, the trial court found that the first
appellant could not be convicted on count 1 as he was the principal actor and that
the second appellant should be convicted because he aided the first appellant in
killing the deceased. In my opinio n, the trial court completely misunderstood the
issues.
[61] For completeness, Section 9(1)(a) of POCA provides as follows:
“Any person who actively participates in or is a member of a criminal gang
and who-
(a) willfully aided and abetted any criminal acti vity committed for the
benefit of at the direction of or in association with any criminal gang;
(b) threatens to commit, bring about or perform any act of violence or any
criminal activity by a criminal gang or with the assistance of a criminal gang;
(c) threatens any specific person or persons in general, with retaliation in
any manner or by any means whatsoever, in response to any act or allege act
of violence, shall be guilty of an offence.”
[62] Aiding and abetting envisaged in POCA in my view , refers to assisting in the
performance of a crime either before or during its commission and not after it has
been committed. Aiding typically involves providing tangible assistance, such as
supplying tools or resources for the commission of a crime. On the other hand,
abetting entails offering lesser assistance, such as acting as a lookout or driving a
car to the crime scene. Mere presence at a crime scene cannot be regarded as
aiding and abetting. It is unnecessary to have a criminal motive to be guilty of aiding
and ab etting. However, the knowledge that one is assisting the criminal is
sufficient.11
[63] Gang membership or active participation ar e essential elements in proving a
contravention in terms of chapter 4 of POCA.12 The determination of gang
membership is guided by section 11 of POCA. Among others, in considering whether
a person is a member of a criminal gang for purposes of POCA, the cour t may have
regard to the fact that such person admits to criminal gang membership or is
identified as a member of a criminal gang or resides in or frequents a particular
criminal gang area and adopts their style of dress, their use of hand signs, language
or their tattoos and associate with known members of a criminal gang.
[64] In my view, it was not proven beyond a reasonab le doubt that the appellants
were part of a gang. The evidence presented by the state was insufficient and
lacking. The evidence presented by Mr Petersen regarding the appellants' alleged
membership in the Terrible Jost ers gang was speculative. In fact, in his evidence he
stated that the second appellant had a “Thug life” tattoo on his left arm. The second
appellant contested these allegations, and when he testified, he stripped his upper
body in front of the court, and the alleged tattoo referred to by Mr Pieterson was not
found.
11 See Oxford Dictionary of Law (2001) at 22.
12 S v Davids and Others (CC103/2019) [2022] ZAWCHC 216 (31 October 2022) at para 128.
[65] Furthermore, based on the reasons provided above, it cannot be concluded
that the second appellant was aiding or abetting the first appellant, as he was not
present during the shooting of the deceased and Will Smith. The first appellant acted
alone when he shot and killed the deceased. The first appellant also acted alone
when he shot Will Smith and attempted to kill him. The second appellant did not
encourage, give counsel, or cooperate with the first appellant when the latt er shot at
the deceased and Will Smith. Upon a careful consideration of the evidence, it is
evident that the assertion that the second appellant abetted the first appellant in the
assault on the deceased is fundamentall y flawed. This claim is incompatible and
incongruent with the established objective facts. Thus, the court a quo misdirected
itself in returning a guilty verdict against the second appellant on count 1.
[66] This brings me to the last count based on section 9(2)(a) of POCA. Section
9(2)(a) of POCA provides that 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 o f an offence. The term ‘a pattern of criminal gang activity ’ is
defined in section 1 of POCA to include the commission of two or more criminal
offences referred to in Schedule 1 (mainly serious violent crimes) : Provided that at
least one of those offences occurred after the date of commencement of Chapter 4
and the last of tho se offences occurred within three years after a prior offence and
the offences were committed ( a) on separate occasions; or ( b) on the s ame
occasion, by two or more persons who are members of, or belong to, the same
criminal gang.
[67] In my view, the ph rase criminal gang activity must be given its ordinary
meaning. It involves a repeated or habitual pattern of criminal conduct (a gang
culture) committed within a certain period by two or more gang members acting in
concert, causing systemic fear and harm in a specific area. In the present matter,
based on the findings above, it is evident that the evidence did not establish the
existence of a pattern of criminal gang activity as defined.
[68] Simply put, it was not established that the two appellants we re acting in
concert or association. It was not conclusively proven that the two appellants were
part of the Terrible Josters gang. The court below relied heavily on the evidence of
Mr Petersen in finding that the two appellants were gang members. In my op inion,
Mr Pietersen’s testimony appeared to be more speculative than based on personal
knowledge. Consequently, the court a quo erred in its finding against the appellants
in this regard. Accordingly, the trial court should have acquitted the second appell ant
of all the char ges against him. I turn to deal with the sentence imposed on the first
appellant.
[69] Concerning the appeal on the sentence, it is trite law that sentencing is pre -
eminently a matter for the discretion of the trial court. The power of a court of appeal
to interfere with a sentence imposed by the trial court is circumscribed. Interference
with a sentence on appeal is not justified in the absence of a material misdirection or
irregularity or unless the sentence imposed is so startlingly inappropriate as to create
a sense of shock. 13 Thus, an appeal court will only interfere with a sentence on
appeal if it appears that the trial court has exercised its discretion improperly or
unreasonably.14
[70] Gleaning from the record of proceedings, t he trial c ourt conducted the
sentencing of the appellants in a perfunctory and desultory fashion. As previously
stated, the murder charge against the appellants attracted life imprisonment.
Although the trial court was presented with limited and incomplete evidence, the
court proceeded to sentence the appellants to life imprisonment. This decision was
taken even though the information provided to the court was scanty and did not
adequately support the decision to impose such a severe penalty. For completeness,
the following was placed on record as the personal circumstances of the first
appellant. The first appellant had one previous conviction of assault and possession
of a dependence -producing substance and one previous conviction of murder
committed on 07 February 2006. He was 34 years old at the time of sentencing and
was not married. He had five minor children who resided with their mothers at the
time of sentencing. He did not know the ages of his children. He informally
maintained his children.
13 S v Moosajee [1999] 2 All SA 353 (A) para 8.
14 S v Gerber [1998] 4 All SA 315 (NC).
[71] From the personal circumstances of the first appellant placed on record by his
legal representative, it is not known who his parents are and who raised him. It is
also not known where he went to school and how far he progressed with his
schooling. It is n ot known how he was brought up or socialised. Circumstances that
could have influenced his beh aviour were not placed before the court. The impact of
the deceased's death on his family remains unknown. Furthermore, a genuine
expression of remorse can be don e through evidence under oaths in mitigation of
sentence. I am mindful that the first appellant had a prior conviction for murder.
However, in my opinion, due to the paucity of information available to the court, there
was no factual basis to make an infor med decision on the presence or absence of
substantial and compelling circumstances.
[72] It must be stressed that the accused’s right to a fair trial in terms of section 35
of the Constitution does not take a leave of absence during sentencing proceeding s.
The court must be vigilant at all trial stages to ensure fairness and justice. During
sentencing proceedings, the trial court must not simply defer to the prosecution and
the defence attorney but must actively engage in the process. The trial court is
responsible for gathering all relevant information before sentencing, even if the legal
representatives have omitted to do so. Where an accused is unrepresented, the
court must question the accused thoroughly and objectively in connection with
possible mitigating circumstances.
[73] It is important to remember that sentencing proceedings are inquisitorial in
nature. At this stage of the trial, formalism and excessive adherence to prescribed
rules must take a back seat. A trial court must adopt an inquisito rial approach to
gather all the relevant information to enable it to impose a fair and just sentence.
Moreover, the trial court itself carries the responsibility of ensuring that legal
representatives fully and properly represent the best interests of thei r clients
especially at the stage of sentence. That responsibility applie s equally to the
interests of victims especially of sexual violence. In S v Oliver,15 the Supreme Court
of Appeal stated:
15 2010 (2) SACR 178 (SCA) at para 8.
‘It is trite that, during the sentencing phase, formalism takes a back seat and a
more inquisitorial approach, aimed at collating all relevant information, is
adopted. The object of the exercise is to place before the court as much
information as possible regarding the perpetrator, the circumstances of the
commission of the offence, and the victim's circumstances, including the
impact which the commission of the offence had on the victim. The
prosecutor, defence counsel and the presiding officer all have a duty to
complete the picture as far as possible at sentencing stage. Material factual
averments made during this phase of the trial ought, as a general proposition,
to be proved on oath.’ (footnotes omitted)
[74] I would state it as a matter of principle and precedent that in cases attracting
life or long -term impr isonment a thorough Probation Officers’ report must be
obtained with regard to the accused`s background and ps ycho-social circumstances
for consideration by the court. Such report may either be admitted into evidence with
the consent of the accused and the state, or the probation officer may be called to
testify in support of the report or to clear up any uncertainties. In my view, an
accused should not be sentenced unless and until all the facts and circumstances
necessary for the responsible exercise of s uch discretion have been placed before
the court. If there is insufficient evidence before the court to enable it to exercise a
proper judicial sentencing discretion, that court must call for such evidence.16
[75] My conclusion is unequivocally fortified by the statutory injunction in section
274 of the CPA, which firmly states:
‘(1) A court may, before passing sentence, receive such evidence as it thinks
fit in order to inform itself as to the proper sentence to be passed.
(2) The accused may address the cou rt on any evidence received under
subsection one, as well as on the matter of the sentence, and thereafter the
prosecution may likewise address the court.’
16 S v Siebert 1998 (1) SACR 554 (SCA) at 559A.
[76] It is quite clear from this provision that before a court can be addressed on
sentence; there is a duty upon the trial court to invite the parties, in terms of section
274(1) of the CPA, to present evidence to inform itself as to the proper sentence to
be passed. This intended invitation is consistent with the right to a fair trial envisaged
in section 35 of the Constitution. In ad dition to the viva v oce evidence that may be
adduced by the accused, such may include a Probation Officer’s report, Correctional
Officer’s report, Victim impact statement, etc. Unfortunately, in this case, the trial
court did not call for any evidence from the defence and the state as envisaged in
section 274(1). The fact that the appellants were legally represented did not absolve
the court from this judicial injunction.
[77] Evidently, t he trial court bypassed section 2 74(1) and directly proceeded to
invoke section 274(2). In my opinion, it is improper and irregular for a trial court to
deny an accused person the chance to present evidence under section 274(1) of the
CPA. I am further of the firm view that f ailing to con sider the application of section
274 of the CPA undermines the legislative intent of Parliament. It is crucial to uphold
the injunction for presenting evidence in all criminal cases where a sentence is to be
imposed. Perhaps it is apposite to remind oursel ves that the presentation of
evidence in terms of section 274(1) places the court in a better stead to weigh the
competing interests of the triad and to achieve a proper balance between the
aggravating and mitigating factors.
[78] While I appreciate that an accused person has the right to remain silent, the
court must diligently gather evidence and pertinent facts to ensure that a just and fair
sentence is imposed. Furthermore, the usage of the word ‘may’ in the section should
not be construed as a limitat ion on the right to call for evidence, which has been
established as the correct procedure through usage and judicial practice.17
Conclusion
17 S v Vukeya and Others (unreported case number A15/2015) [2015] (01 September 2015).
[79] In the circumstances, given the nature of the misdirection as described above,
I would propose that the matter be remitted to the trial court to receive the evidence
required to enable it to exercise its discretion properly and pass sentence afresh.
Order
[80] Given all these considerations, I would propose the following order:
80.1 The conviction of the first appellant on count 2 is hereby set aside.
80.2 The conviction of the first appellant on counts 4, 5, 6 and 7 is hereby
confirmed.
80.3 The sentence imposed on the first appellant on counts 4, 5, 6 and 7 is
hereby set aside.
80.4 The conviction of the second appellant on all the counts levelled
against him is hereby set aside.
80.5 The sentence of the first appellant is remitted to the trial court for
sentence proceedings to start afresh.
80.6 The trial court shall comply with section 274(1) and 274(2) of the CPA.
80.7 The State and the defence shall be invited to lead evidence in
aggravation (if any) and in mitigation of sentence.
80.8 The first appellant shall be brought before the trial court for sentencing
within fifteen days (15) from the date of this judgment.
_________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
I agree and it so ordered:
__________________________
SALDANHA V
JUDGE OF THE HIGH COURT
APPEARANCES
For the appellants: Ms De Jongh
Instructed by: Legal Aid South Africa
For the Respondent: Adv Stone
Instructed by: Office of the Director of Public Prosecutions:
Western Cape