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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN )
CASE NO: CC08/2018
In the matter between:
THE STATE
And
ELTON LENTING AND 19 OTHERS ACCUSED
JUDGMENT
LEKHULENI J
Introduction
[1] There are currently thirty separate applications pending before this Court for
the admission of statements from witnesses who have passed away before they
could testify and for those who are untraceable and fear for their lives to testify in this
case . The State submitted applications for the admission of these witnesses’
statements, some in terms of s 3(1)(c) of the Law of Evidence Amendment Act 45 of
1988, ("the Hearsay Act ”) and others in terms of s 222 of the Criminal Procedure Act
51 of 1977 ("the CPA") read with sections 33 to 38 of the Civil Proceedings Ev idence
Act 25 of 1965 (“the Civil Proceedings Evidence Act” ). Mr Badenhorst, Counsel for
accused 7, 9 and 12 and some of his colleagues submitted that it was erroneous for
the State to bring its application in terms of section 222 of the CPA. In addition t o the
assessment of whether the statements of these witnesses should be admitted as
evidence in these proceedings, this judgment would seek to harmonise s 3(1)(c) of
the Hearsay Act and s 222 of the CPA read with sections 33 to 38 of the Civil
Proceedings Evidence Act.
[2] As previously stated, the State's applications are divided into two categories.
There are those applications in which the witnesses are deceased, and in those
applications, the State relies primarily on s 3(1)(c) of the Hearsay Act . The second
category of t he State's application pertains to witnesses who are apprehensive of
testifying in this matter and who cannot be located despite diligent and reasonabl e
efforts. In both categories, the State applied that the witnesses' statements be
admitted as evidence a s an exception to the hearsay rule. To provide context and
emphasis, I will summarise the contents of each intended statement, the relevant
charges, and briefly the evidence led on those charges . Thereafter, I will determine
whether it is in the interest o f justice for such statements to be admitted or not.
The State’s application s 1, 3, 4, and 5
[3] The first application involves counts 55 to 59. This application i s intertwined
with applications 3 to 5. The accused implicated in these charges are accused 1, 2, 8
and 12. For convenience, I will deal with these applications jointly , albeit ad seriatim.
Count 55 involves a charge of Theft of a semi -automatic firearm, a Z88 9mm
parabellum. Counts 56 and 57 involve the attempted murder of two complainan ts. It
is alleged that on 14 January 2014 , and at or near Beto Close , Roosendal, Delft in
the district of Bellville, the accused unlawfully and intentionally attempted to kill two
complainants by shooting them with a firearm. The State refrained from discl osing
details of the complaints in the indictment due to safety concerns. Concerning counts
58 and 59, the State alleged that on 14 January 2014, the accused were found in
possession of a prohibited firearm and 14 x 9mm rounds of live ammunition,
respectiv ely, without holding a license, permit or authorisation issued in terms of the
Firearms Control Act to possess the said firearm.
[4] In its first application , the State applied to have the statement of one of the
attempted murder victims, Elijah Burger, be admitted as evidence in these
proceedings. Elijah Burger passed away on 13 June 2024. His death certificate was
handed in and marked as exhibit NNNN. To prov ide a comprehensive context for the
ruling I make hereunder, I find it necessary to summari se the statement that the
State intends to submit, along with the pertinent evidence relevant to these charges.
[5] In his statement, Mr Burger stated that on Tuesday, 14 February 2014, at
17h45, he was with his friend at Corner Bakkies Boom and B eto Close. A coloured
male came from B eto Close started firing shots at them. According to Mr Burger's
statement, the assailant shot him twice in the rear, and he (the witness) fled. The
assailant fired three shots behind him . His right arm was wound ed by the three
bullets discharged from behind. He continued to run for approximately 10 minutes
and stopped when the gunfire ceased. He sustained injuries in his arm and bu ttocks .
Subsequently, h e was taken to hospital, where police presented him with
photographs . He was able to identify the individual who shot him. His statement was
handed in and marked as exhibit NNNN1.
[6] Sergeant Enslin Johnson and his colleague Constable Volkwyn testified that
they heard a gunshot at Botterboom Street while patrolling in Silversand in the Delft
area and conducting crime prevention. They investigated the shooting and saw two
suspects fleeing through the field to wards Voorbrug Street. Constable Enslin
Johnson and his colleague pursued the two suspects, who entered a house on T[...]
Street. The police entered the house and found the two suspects sitting on a couch
in the dining room, both out of breath. According to the police, the suspects were
accused 8 and 12.
[7] The woman who owns the premises that the two suspects entered reported to
the police that she did not know the two suspects . The police search ed the two
suspects but found nothing. In the bedroom, which is located close to the dining
room, there was a bed. They searched the room, and on the bed, there was a
blanket. When they lifted it, they found a 9mm firearm. The suspects were
subsequently arrested for possessing an unlic ensed firearm . The police then went to
the hospital where the victim of the shooting was. The suspects were photographed,
and the ir images were presented to the victim, who identified accused 8 as the
individual who fired shots at them. The photos of accus ed 8, marked as exhibit
EEE2, were submitted in these proceedings as evidence .
[8] The evidence of Sergeant Volkwyn who was together with Sergeant Johnson
is consistent with that of Sergeant Johnson’s; however, he added that accused 8,
known to him as Kapadien, and accused 12, known as Blade, were the individuals
found at 2 [...] T[...] Street. Mr Q, who was present with the victim during the shooting,
provided testimony in addition to other supporting evidence for the State's case
regarding these charges. He identified the shooter, who was brought to the scene by
the police shortly after the incident.
[9] Regarding the State's third application , Mr Damon , counsel for the State,
sought to introduce the statement of Lynnette Geduld, marked as exhibit XXXX11,
as admissible evidence in this case since the witness cannot be located. The State
relied o n section 222 of the CPA read with section 34 to 38 of the Civil Proceedings
Amendmen t Act. In her deposition, Ms Lynette Geduld averred that she personally
collected the cartridges in front of her house in B[...] Street on the date of the
shooting of Elijah Burger and gave these exhibits to Sergeant Johnson on 14
January 2014. This w itness is currently unavailable and cannot be located. Sergeant
Van Wyk has provided evidence of his multiple attempts, both through phone calls
and personal visits, to secure the witness's attendance at court, none of which have
yielded any success.
[10] Regarding the fourth application the State primarily relied on s 3(1)(c) of the
Hearsay Act . The State requested that the Court admit the statement of Athene
Hefkie, the homeowner, in which accused 8 and 12 were found by Sergeants
Johnson and Volkwyn. The State asserted that this witness is currently untraceable.
In her statement, Ms Hefke reported that on 14 January 2014, she was at home
when she observed two men running past her and entering her house. The police
arrived, conducted a search of the re sidence, and discovered a firearm on the bed,
which they confiscated. Ms Hefk ie stated that she did not know either of the accused
and had not given anyone permission to place the firearm in her home.
[11] Regarding the State's fifth application , the State intended to hand in Roland
Jacobs' statement as evidence. Mr Jacob was with Elija Burger at the time the
shooting occurred. Mr Roland Jacobs's statement is consistent with Elija Burger's
statement summarised above. However, he clarif ied that he did not sustain any
gunshot wounds after they fled with Mr Elijah Burger during the attack. He confirmed
that Elija h Burger was shot and was taken to the hospital. According to him, the
shooting occurred in an instant, making it impossible to identify the person who shot
or the person who was with the shooter. The witness , (Roland Jacobs) is currently
untraceable and initially informed the investigatin g officer of his fear to testify in this
matter. On 27 July 2023, a warrant for his arrest was authorised.
[12] Mr Damon, on behalf of the State, primarily relied on section 34 of the Civil
Proceedings Amendment Act in respect of applications 1 and 3 . He submitted that
the State has complied with s 34(1)(a)(i) of the Civil Proceedings Evidence Act 25 of
1965, in that it has proven that Elijah Burger, a witness who is deceased and who
personally witnessed the attempted murder of himself , provided an affidavit to
establish the facts of the incident. Counsel argued th at Lynette Geduld cannot be
located due to concerns for her safety. Having complied with all the requirements of
s 34(1)(a)(i) and (b) of the Civil Proceedings Evidence Act, Mr Damon submitted that
the statements of these two witnesses are admissible as evidence, in terms of s 222
of the CPA read with section 34(1) of Act 25 of 1965 . Alternative ly, Mr Damon relied
on s 3(1)(c) of the Hearsay Act.
[13] Mr Johnson, Counsel for accused 8 did not oppose the State's application. Mr
Badenhorst, counsel for accu sed 12, opposed the State's application to admit Elija h
Burger's statement. Counsel submitted that the application sought by the State aims
solely to adduce corroboration for evidence already tendered . If it were to be
admitted, it would not be in the interest of justice and would infringe the accused
right to a fair trial . Specifically, the accused would be deprived of the right to resist
the admission of the evidence and to evaluate its probative value as stipulated in s
35(3) of the Constitution and confirmed in various case law.
[14] Mr Badenhorst submitted that the State relies on sections 222 of the CPA
read with s 34 of the Civil Proceedings Evidence Act , as the witness cannot be
located and is apprehensive of the accused. Mr Badenhorst contended that s 3(1)(c)
of the Hearsay Act supersedes the provisions of the Civil Proceedings Evidence Act
that came into force in 1965 . In counsel’s view, th is is due to the fact that the
introductory remarks of s 3 of the Hearsay Act render it peremptory that hearsay
evidence shall not be admitted as evidence in criminal proceedings, subject to the
provisions of any other law.
[15] It was Mr Badenhorst's submission that s 3(1)(c) of the Hearsay Act requires
the Court to consider the 7 factors before the Court can allow hearsay evidence
other than the exception stipulated in s 3(1)( a) and (b). Counsel submitted that the
State could not bring the above application s in terms of s 34 of the Civil Proceedings
Evidence Act since, if allowed, it would negate and subordinate the discretio nary
consideration of the 7 factors to permit hearsay evidence in terms of s 3(1)(c) of the
Hearsay Act.
[16] As explained earlier, the applications by the State summarised above and
those dealt with hereunder are grounded in either s 222 of the CPA read with s 34 of
the Civil Proceedings Evidence Act, or s 3(1)(c) of the Hearsay Act. All these
applications are primarily for the admission of hearsay evidence in the form of
statemen ts, photo identification parade documents and the relevant name list .
[17] For the sake of brevity and to avoid repetition in the subsequent applications, I
deem it wise to address the argument raised by Mr Badenhorst and some of his
colleagues about whether the State was bound to bring its application in terms of s
3(1)(c) of th e Hearsay Act and not in terms of s 222 of the CPA read with s 34 of the
Civil Proceedings Evidence Act. If I understood the argument correctly, it is argued
that an application in terms of s 222 of the CPA, if allowed, would negate and
subordinate the dis cretiona ry consideration of the 7 factors to allow hearsay
evidence in terms of s 3(1)(c) of the Hearsay Act. Accordingly, so the argument
went, the State must always bring its application in terms of s 3(1)(c) of the Hearsay
Act.
[18] For the reasons that follow , I do not agree with this proposition. In the interest
of thoroughness, s 3(4) of the Hearsay Act defines hearsay evidence as 'evidence,
whether oral or in writing, the probative value of which depends upon the credibility
of any person other than the person giving such evidence'. Hearsay evide nce is
inadmissible unless the Court is of the opinion that it is in the interests of justice for it
to be admitted, considering the factors referred to in s 3(1)(c)(i) to (vii). The Supreme
Court of Appeal in S v Ndhlovu ,1 held that s 3(1)(c)'s criteria, 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 unregulated admission of
hearsay evidence and thereby sufficiently guards the rights of accused.
[19] For convenience, s 3(1)(c) of the Hearsay Act provides as follows:
“(1) Subject to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings, unless —
(c) the court, having regard to —
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might
entail; and
(vii) any other factor which should in the opinion of the court be taken into
account,
is of the opinion that such evidence shou ld be admitted in the interests of
justice. (emphasis added) ”
1 2002 (2) SACR 325 (SCA) at para 16.
[20] On the other hand, s 222 of the CPA provides as follows:
“The provisions of sections 33 to 38 inclusive of the Civil Proceedings
Evidence Act, 1965 (Act 25 of 1965), shall mutatis mutandis apply with
reference to criminal proceedings .”
[21] Section 34 of the Civil Proceedings Evidence Act 25 of 1965 provides as
follows:
“34. A dmissibility of documentary evidence as to facts in issue
(1) In any civil proceedings where direct oral evidence of a fact would be
admissible, any statement made by a person in a document and tending to
establish that fact shall on production of the original document be admissible
as evidence of that fact, provided -
(a) the person who made the statement either -
(i) had personal knowledge of the matters dealt with in the statement ; or
(ii) where the document in question is or form s part of a record purporting to
be a continuous record, made the statement (in so far as the matters dealt
with the rein are not within his personal knowledge ) in the performance of a
duty to record information supplied to him by a person who had or might
reasonably have been supposed to have personal knowledge of those
matters ; and
(b) the person who made the statement is called as a witness in the
proceedings unless he is dead or unfit by reason of his bodily or mental
condition to attend as a witness or is outside the Republic , and it is not
reasonably practicable to secure his attendance or all reasonable efforts to
find him have been made without success. ”
[22] From a careful examination of t he Hearsay Act , it is evident that it did not
repeal existing legislative provisions governing the admission of hearsay except for
sections 216 and 223 of the CPA2 which referred to the common law in force on the
30 May 1961 . Section 3 (1)(c) of the Hearsay Act is subject to the provisions of any
other law . This facilitates alternate routes for the admission of hearsay evidence .3
The Legislature saw it fit to transplant the Civil Proceedings Evidence Act into
Criminal Proceedings. Section 34 of the Civil Proceedings Evidence Act has not
frequently been used in ou r criminal courts, but it is part of our law and an exception
to s 3(1)(c) of the Hearsay Act. To emphasise, s 3(1)(c) of the Hearsay Act is subject
to the provisions of any other laws. This suggests that the statutory exceptions that
were established prio r to 1988 remain in force, which includes the provisions of the
Civil Proceedings Amendment Act. The introductory phrase ‘subject to the provisions
of any other law ’ in s 3 of the Hearsay Act facilitates alternative avenues of
admissibility. In addition, the other laws referred to in s 3(1)(c) of the Hearsay Act do
not rule out the reception of evidence in the interest of justice under that section of
the Act.4
[23] The practical effect is this: if a party , in this case , the State , fails in getting
hearsay admitted under a legislative provision, for instance, under s 34 of the Civil
Proceedings Evidence Act, the State may then attempt to get that evidence under s
3(1)(c) of the Hearsay Act. In summary, when evidence is presented under an
existing statutory exception and is subsequently found to be inadmissible due to
noncompliance with one or more requirements of that statute, it may still be
admissible under s 3(1)(c) of the Hearsay Act. This inclusion is contingent upon the
Court's determination that the accept ance of such hearsay evidence under the
Hearsay Act serves the interest of justice.
[24] Therefore, even if a party fails to fully satisfy the requirements of a statute that
serves as an exception to the Hearsay Act, the Court may still consider the hearsay
2 Section 9 of Act 45 of 1988. Section 216 of the CPA provided that no hearsay evidence shall be
admissible “if such evidence would have been inadmissible on the thirtieth day of May 1961” and s
223 of the CPA contained a similar provision in respect of dying declarations .
3 See Schwikkard PJ and Van Der Merwe SE Principles of Evidence (2015) 4 edition at 279 .
4 Giesecke & De vrient Southern Africa (Pty) Ltd v Minister of Safety and Security 2012 (2) SA 137
(SCA) at para 28.
evidence under s 3(1)(c) if it is deemed to align with the interests of justice.5 There is
also no bar to relying solely on s 3(1)(c) of the Hearsay Act.
[25] This conclusion is fortified by the dictum in S v Ndhlovu ,6 in which the
Supreme Court of Appeal stated that the very purpose for the introduction of s
3(1)(c) was to supersede the excessive rigidity and inflexibility and occasional
absurdity of the common law position by creating another avenue for the admission
of hearsay evidence which turns on wha t the interest of justice requires. Section
3(1)(c) requires that the court should have regard to the collective and interrelated
effect of all the considerations in para (i) to (iv) of the section and any other factor
that should, in the opinion of the court, be taken into account. Section 3(1)(c)
introduced a high degree of flexibility to the admission of hearsay evidence with the
ultimate goal of doing what the interests of justice require.7
[26] Therefore, s 222 of the CPA read with s ection s 33 to 38 of the Civil
Proceedings Evidence Act provides a n alternative route for the State to apply for the
admission of hearsay evidence in the form of statements , provided that the State
complies with the requirements set out in the Act. If a document (statemen t) fulfils
the requirements set out in s 34 it is admissible as a matter of law. Consequently, the
State can bring its application for the admission of a hearsay statement in terms of s
34 of the Civil Proceedings Evidence Act or, in the alternative, in te rms of s 3(1)(c) of
the Hearsay Act. If, for any reason, the State fails to comply with the requirements of
s 34 of the Civil Proceedings Evidence Act, the State can invoke s 3(1)(c) based on
the inherent requirements of the interest of justice.
[27] In my opinion, the State has met the requirements outlined in s 34 of the Civil
Proceeding Evidence Act with respect to counts 1 and 3 . The application for the
admission of the statement s of these witnesses must be allowed. I will, however,
consider what evidential value to attach to these statements when the totality of the
evidence is considered. I acknowledge that the defence raised concerns about the
unavailability of witnesses who are apprehensive about testifying and could not be
5 See DT Zeffert, AP Paizes & A Q Skeen The South African Law of Evidence (2003) at 382.
6 2002 (60 SA 305 (SCA) at para 15.
7 Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of Safety and Security note 2 at para 31.
locate d by the investigating officer. In my view, the fear of these witnesses cannot be
overlooked or ignored . Some of the witnesses who are afraid to testify have allegedly
been shot and are complainants in this case. The truthfulness of their evidence will
be evaluated at the end of this trial.
[28] It is important to note that Mr A, a section 204 witness in this matter, was
subjected to threat s in court during the court sitting. Accused 8, through his legal
counsel, informed this Court on record that it is u ndesirable for Mr A to testify in his
presence, and that it would be preferable for him (accused 8) to be excused from
these proceedings when Mr A testifies. That request was rejected. Pursuant thereto,
Mr A testified through a closed -circuit television. The overriding factor is fear of the
accused. However, I want to stress that this judgment does not create or establish a
precedent permitting witnesses to evade court and allow the State to submit their
statements as evidence in criminal trials. It is the unique circumstances of this case
that distinguish it from others.
[29] Demonstrably, this matter stands on a distinc t basis. W itnesses were
threatened in this matter. Ms S, who was called by the State to counter the alibi of
accused 9 testified on 28 October 2024. After the matter was postponed to 11
November 2024 for her to give further evidence , she testified that accused 9 called
her from prison and informed her that she had until 11 November 2024 to inform the
court that the State threatened her to testify against him. The witness also testified
that accused 9 whilst in custody, sent her a What sApp message to this effect. The
Court was presented with the WhatsApp message. The message stated “ Maar jy het
tot die 11de toe om te sê jy het 'n fout gemaak” . The witness was troubled by this
encounter and was eager to bring this to the attention of the Court before she could
testify.
[30] The Court issued arrest warrants for several witnesses in response to the
State's application in terms of s 184 of the CPA , despite the circumstances. Several
of these witnesses were arrested and brought to Court. I had the opportunity to see
them, and I noticed the fear evident on their faces to testify in this case. The fear of
the witnesses in the circumstance of this case, in my view, cannot be lightly
overl ooked.
[31] The fourth and fifth applications by the State are based on s 3(1)(c) of the
Hearsay Act. Mr Klopper, the counsel for accused 14, 18, 19 and 20, submitted that
the decision in S v Kapa ,8 provides for holistic approach and has, to some extent
complicated the process. Counsel submitted that the provisional admission of
hearsay evidence is only allowed in an instance where s 3(1)(b) is applicable but the
holistic approach, in essence, creates a situation where the practical application of
the Kapa decision creates another scenario which may be seen as a provisional
admission of evidence . Mr Klopper further submitted that in the Kapa decisi on, the
Constitutional Court outlines the factors that must be considered. According to
counsel, this includes all the evidence, including evidence which may be led by the
defence and not just evidence led b y the State. Mr Klopper contended that it may
become necessary for the Legislature to extend the provisions relating to provisional
admissions to include all scenarios that may require a provisional order.
[32] I appreciate the argument raised by Mr Kloppe r. However, it bears emphasis
that the stance he postulates for the provisional admission of evidence in terms of s
3(1)(c) was rejected by the Constitutional Court in S v Molimi.9 In that case, the
Constitutional Court dealt with an appeal from the Supreme Court of Appeal (“the
SCA”) and observed that t he S CA correctly acknowledged that vague provisional
rulings may be prejudicial to an accused person , as they may conflate the
admi ssibility of the evidence with its weight , thereby leaving an accused person
unfairly in a state of uncertainty. The court further observed that a timeous and
unambiguous ruling on the admissibility of evidence in criminal proceedings is, a
procedural sa feguard .
[33] Notwithstanding, it is worth noting that the provisions of s 3(1)(c) of the
Hearsay Act conflate the admissibility of evidence with its reliability. Perhaps it is
apposite to remind ourselves that the admissibility of evidence and weight of
evidence should not be confused. There are no degrees of admissibility. Evidence is
either admissible or inadmissible. If what is adduced can in law properly be put
8 S v Kapa 2023 (1) SACR 583 (CC) at para 98.
9 2008 (2) SACR 76 (CC) at para 38.
before the court, it is admissible. In summary o nce evidence is admi tted, it may carry
more or less weight according to the particular circumstances of the case. The court
must then weigh or evaluate the evidence to determine whether the required
standard of proof has been attained. It is only after the evidence has been admitted
and at the end of the trial that the court will have to assess the final weight of the
evidence.
[34] To this end, I agree with the views expressed by T heophilopoulos &
Bellengère ,10 who argued that a t the initial stag e of a trial items of relevant evidence
are admitted individually in piecemeal fashion or in isolated groups. The probative
value of each individual item of evidence is typically assessed in isolation. At this
stage the court is concerned with making a rou gh estimate of the potential input that
each individual item of evidence might provide and whether it has sufficient probative
value to warrant admission. Whereas at the final proof stage of the trial , the
probative weight of all the admitted evidence is e valuated together in a structured
and coherent manner , and in relationship to one another to meet the required
standard of proof. In other words, evidence has (potential) probative value before or
during admission, but carries probative weight once evaluat ed and when relied upon
at the conclusion of the trial.
[35] The State contended that Ms Athene Hefkie was unaware of either of the two
accused in this case . According to her, the accused did not reside at her residence,
and she was not aware of the firearm until the police discover ed it in her house.
Counsel for the State further submitted that this witness had no knowledge of the
prior shooting, the victims , the accused , or the police pursuit of the accused. Her
only involvement was that she was at her home at 2 […] T[...] Street. Mr Badenhorst
opposed the application and submitted that the probative value of the evidence of Ms
Hefkie and Mr Roland Jacobs is insufficient to have the evidence admitted since the
firearm was not found in the immediate vicinity of the accused.
10 Theophilopoulos C & Bellengère A, ‘Relevance, Admissibility and Probative Value in a Rational
System of Evidence: A South African Perspective ’ PER / PELJ 2022 (25) at 19.
[36] I do not intend to delve into the merits of this case. However, I have
considered the original statements of the two witnesses , the ev idence led thus far,
any prejudice to the accused, and the degree of the hearsay evidence. I believe that
it is in the interest of justice that these statements be admitted as evidence in this
matter. It bears emphasis that this is an interlocutory finding . At the end of the trial,
when the totality of the evidence is considered, I will revisit these statements. In
evaluating the evidence, the Court will adopt a comprehensive or a holistic approach
and consider the evidence in its totality with the hearsay statements to determine
their evidential value and reliability .
The State’s 2nd and 24th applications
[37] The State's second application is intertwined with its twenty -fourth application .
As a result, I will deal with this application jointly, albeit ad seriatim. The second
application relates to the application for the admission of a witness statement
deposed to by S ethembile Hani, marked exhibit PP3, in respect of counts 40 to 42 of
the indictment. Accused 1, 2, 3 and are implicated in these counts . In count 40, the
State alleges that on 13 May 2013 , and at or near Melkhout Street in Delft South , in
the District of Bellville the accused unlawfully and intentionally attempted to kill
another male person by firing at him with a firearm. Out of fear for the witness ’
safety, the State did not mention the complainant’s name in the indictment. Counts
41 and 42 relate to the possession of unlicensed firearms and unlawful possession
of ammunition , respectively.
[38] The State requested the court to admit the statement made by Sithembile
Hani as evidence in these proceedings, alongside other evidence presented
regarding counts 40 to 42. The officer in charge of the investigation testified that,
despite diligent efforts, this witness could not be located. In the statement provided,
Ms. Hani detailed an incident involving a male visitor to her home who was attacked
and shot at with a firearm by an individual described as a certain c oloured male on
13 May 2013. The witness explained that s oon thereafter, the police arrived as they
were patrolling the area during the time of the shooting. The ambulance arrived as
well. She stated that she did not know the assailant who entered her hous e and fired
at the victim who was present with them. The witness stated further that she would
not be able to identify the assailant if she saw him again. She also does not know the
victim that was shot in her house. The victim came to her house accompanie d by Ms
Hani’s friends.
[39] The State led the evidence of the complainant, Mr Thurston Remmitz, who
was allegedly shot at Ms Hani house on 13 May 2023 . The State presented medical
records along with the photo album of the premises where the shooting took place.
These records were handed in and marked as exhibit PP . In addition, Sandile Patrick
Hlongwa, a Sergeant from the Delft Police Station, provided testimony that on 13
May 2013, while he was on duty, and patrolling Suikerbossie Street, he heard
gunshots. He stopped to check what was happening. As he was observing, he saw
two young men from Melkhout Street running. He pursued them, and they fled
towards the graveyard, but he lost sight of them. He then returned to the scene of
the crime, fo und the injured person, and called an ambulance.
[40] On 19 May 2013, whilst on duty, he was stopped by members of the public
who provided him with a report of the whereabouts of the person who had fired shots
the previous week at Melkhout Street. Following the report, Sergeant Hlongwa drove
to the hospital and inquired about the person who had been shot. The witness
identified that it was accused 3 who was shot, and he subsequently arrested him.
The witness ar ranged a hospital guard, and the accused was transferred to
Tygerberg Hospital.
[41] The State called Sergeant Andrews to testify on this count, and he testified
that he interacted with Thurston Remmitz, the complainant, regarding the attempted
murder charge, when he was released from Tygerberg Hospital. Thurston Remmitz
informed Sergeant Andrews that the person who shot him was accu sed 3, and he
was together with him at Tygerberg Hospital. Accused 3 admitted in his affidavit
opposing the application by the State for these proceedings to be held in camera that
he was present in the hospital with the complainant , Thurston Rem mitz, and that
they discussed this case.
[42] Sergeant Andrews testified that on 20 May 2013, Thurston Remmitz identified
accused 4 at an identification parade as the person who was with accused 3 at the
time he was shot. Th urston Remmitz also filed a statement th at is consistent with Ms
Hani's statement in substance. However, he added in his statement (exhibit RRRR)
that the person who shot him was accused 3 and that he was together with accused
4. He identified accused 4 in a photo identification parade, which wa s marked as
exhibit RRRR1 in these proceedings. Thurston Remmitz's statement underpins the
State's twenty fourth application . The application was submitted in terms of s 34 of
the Civil Proceedings Evidence Act .
[43] Mr Damon asserted that Thurston Remmitz was expected to testify in this
matter, providing oral evidence regarding the facts contained in the affidavit.
However, t he investigating officer, Detective Sergeant Van Wyk, testified that Mr
Remmitz was initially willing t o testify on behalf of the State, but after the accused
pleaded in 2020, Mr Remmitz was no longer willing to testify on behalf of the State .
An arrest warrant for Mr Remmitz was issued during 2023. Furthermore, the State
avers that the witness remains untraceable despite the diligent efforts of the
investigating officer to locate him.
[44] Mr De Villiers and Ms Straus s opposed the two applications. Mr De Villiers
submitted that since the application was made, this Court has not been informed o f
any efforts to trace Ms Hani. Concerning Mr Remmitz, Mr De Villiers submitted that
this witness' name appears on the list of potential State witnesses. According to Mr
De Villiers, this witness must have known that he would be called upon to testify on
behalf of the State. ln terms of s 183(1) of the CPA, a witness must keep the Police
informed at all times of his or her residential address where they can be found.
Counsel submitted that, in all probability, this witness did not comply with the
requiremen ts of s 183(1) of the CPA, and the State failed to enforce those
requirements. Counsel posits that the State cannot use s 34(1) of the Civil
Proceedings Evidence Act or s 3 of the Hearsay Act to have evidence admitted while
knowing that the State itself and their witness are to blame for not giving viva voce
evidence .
[45] On the other hand, Mr Strauss submitted that accused 4 has a right to a fair
trial, which includes the right to adduce and challenge evidence. It is difficult, if not
impossibl e, so the argument proceeded, to challenge hearsay evidence. According
to Mr Strauss, such evidence does not allow the Court to assess a witness'
demeanour and, therefore, the credibility of the person who alleged to have made
the statement. Mr Strauss further submitted that hearsay evidence does not allow
cross -examination to challenge and test the veracity of such evidence. Mr Strauss
implored the Court to rule the statement inadmissible as it would not be in the
interest of justice to rule oth erwise.
[46] In S v Ndhlovu (supra) , the SCA considered whether the admission of
hearsay evidence violates the constitutional right to challenge evidence as
entrenched in s 35(3)(i) of the Constitution and, consequently, the right to a fair trial.
The SCA held that the criteria in s 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 unregulated admission of hearsay evidence and
thereby sufficientl y guards the rights of an accused. Importantly, the SCA stated that
a just verdict, based on evidence admitted because the interest of justice requires it,
cannot constitute prejudice.
[47] In this case, I am of the view that the State has complied with s 34(1)(a)(i) of
Act 25 of 1965. The State has proven that the witness is untraceable for the purpose
of being subpoenaed because the witness has relocated and does not want to be
located out of fear of the accused. The State has also produced the original
statements and, therefore, complied with s 34(1) of Civil Proceedings Evidence Act
25 of 1965. I believe that the two statements are consistent with the prima facie
evidence that the State ha s led. I have considered the evidence led and the contents
of these statements, and I am of the view that the two statements of Ms Hani and Mr
Remmi tz, respectively, must be admitted as evidence in this matter. I will later
consider the evidential weight t o be attached to these statements when I evaluate
the evidence in its entirety at the end of this trial .
The State’s 6th application - Counts 55 to 59
[48] In its sixth application, the State implored the Court to accept the statement of
three witnesses, namely Linda Nomatyenge, Zukisani Nomatyenge and Mpumzi
Nomatyenge, in terms of s 3(1)(c) of the Hearsay Act , alternatively , in terms of s 34
of the Civil Pr oceedings Evidence Act. The statement for Zukisani Nomatyenge was
handed in and marked as exhibit XXXX19. In his statement, Mr Nomatyenge
explained how he was shot on his neck whilst at his house inside the toilet at 4[…]
A[...] Street, Delft -South, on 6 Aug ust 2016 and how h e was subsequently taken to
Delft Day Hospital. Zukisani's mother, Linda Nomatye nge, and Zukisani's friend,
Mpuzi Bandesi, filed statements in respect of this incident. Their statements are
aligned with Zukisani's statement. Their stateme nts were marked exhibit XXXX19
and XXXX18, respectively. The State applied in terms of s 3(1)(c) of the Hearsay
Act, alternatively in terms of s 222 of the CPA read with s 34 of the Civil Proceedings
Evidence Act for the admission of these statements as ev idence against the
accused.
[49] All 3 witnesses, although aware of the obligation to testify, have avoided
testifying because they are scared, as reported by the investigating officer. They fear
for their lives. The witness, Linda Nomatyenge, was arrested in 2023 and was
brought to Court and warned. According to the investigating officer , she has left the
given address and cannot be traced . I have considered this witness's statement. I
have also noted that the three statements are consistent with each other. I ha ve
considered that it had not been disputed that a shooting took place at 4 [...] A[...]
Street, Delft -South, on 6 August 2016 and that the victim, Zukisani Nomatyenge, w as
inside his residence, inside the toilet, when the shooting took place; I have
considered that the victim was injur ed on the neck during the shooting.
[50] I have considered the nature of the evidence and the fact that the statements
were obtained immediately following the alleged shooting incident . I have also
considered other evidence regarding this count, particularly the evidence of Mr N
regarding the shooting at 4 [...] A[...] Street on 6 August 2016. I have also considered
the evidence of Sergeant Mbono and the real evidence such as the ballistics, the
photos, the LCRC rep orts and the medical documentation confirming the injuries
suffered by the victim. I have also considered the question of prejudice to the
accused if these statements are admitted. I have considered the contemporaneity
and spontaneity of the hearsay statem ent particularly that the statement s were
obtained immediately after the shooting incident. Pursuant thereto, I am of the view
that it is in the interest of justice that these statements be admitted. Similarly, I will
later determine what evidential weight to be attached to th ese statement s during the
evaluation of the evidence.
The State’s 7th application – Count 52.
[51] In the seventh application , the State applied to have the statement of
Constable Edward Jacob admitted as evidence concerning count 52 of the
indictment. Count 52 involves a charge of possession of drugs. It implicated the
following accused: 1, 2, and 7. The Court was informed in these proceedings that
Constable Edward Josephs is medically unfit due to a brain tumour, and this renders
him incapable of testifying. In his statement marked exhibit XXXX 7, he stated that
whilst p atrolling with his colleague on 23 October 2013 in Tamarisk Street Delft, he
noticed a coloured male known to him as a drug merchant. He confronted and
searched him with his consent, and the merchant threw a plastic packet to the
ground. He picked it up an d noted that it was a packet of tik. He then arrested the
person known to him as Grashom Klassen and detained him at Delft Police Station.
[52] Mr Damon submitted that Mr Edward Josephs ’ documentary evidence be
admitted in terms of s 3(1)(c) of the Hearsay Act, alternative ly, in terms of s 222 of
the CPA read with s 34 of the Civil Proceedings Evidence Act. Mr Badenhorst
submitted that it will not be in the interest of justice if the evid ence is admitted and
will deprive the accused of their right to a fair trial, namely, to resist its admission and
scrutinise its probative value as stipulated in s 35(3) of the Constitution.
[53] I have considered the fact that the witness is unwell and unable to testify in
this case. I have also considered the nature of the evidence and the prejudice that
may be suffered by the accused in the admission of the statement. I have also
considered the purpose for which this statement is tendered, a nd I am of the view
that it must be allowed as evidence in these proceedings. I will, however, consider its
reliability and what weight is to be attached to it when the totality of the evidence is
evaluated. As correctly pointed out by Mr Damon, the admiss ion of hearsay
statements against the accused, like the admission of all evidence, irrespective of
the nature of the evidence, is not an automatic finding on the guilt of the accused.
[54] The admission of the statement does not imply a conviction of the accused.
The accused can apply for discharge at the end of the State’s case in terms s174 of
the CPA if they believe that there is no evidence against them or that insufficient
evidence has been presented to prove their guilt. The court may grant this
application if it finds that there is indeed no evidence against the accused.
Additionall y, the accused ha ve the right to testify and call witnesses in their defence,
or they may choose to remain silent. After all evidence has been presented, the
accused can also address the Court in accordance with s 175 of the CPA.
The State’s 8th and 9th application s – Counts 79 to 80 and Counts 88 to 90
[55] The State also applied to have the statement of Constable Petrus Muller
admitted as evidence concerning counts 79 and 80 of the indictment. Petrus Miller
had a stroke and is unable to testify. The two counts involve a charge of dealing in
drugs. In the alt ernative, the State preferred a charge of possession of drugs. These
counts implicate accused 1, 2, 6 and 19. In both counts, it is alleged that on 1
December 2014 and at or near Tamarisk Street, Delft South, in the district of Bellville
the accused unlawf ully dealt with undesirable dependence, to wit tik as listed in Part
III of Schedule 2 of the Drug Trafficking Act 140 of 1992. The State applied to hand
in the statement of Constable Muller, which was marked exhibit ZZZ 2 in these
proceedings.
[56] In summary , in his statement, he stated that on 1 December 2014, while he
was doing missing persons duties in Delft, two coloured males stopped him and
informed him that they had tik in their possession. He searched them and found tik in
their possession. The y further told him that they feared for their li ves as the other 28
gangsters in Delft wanted to shoot them. The two suspects were accused 6 and 19.
He then arrested them. On further investigation, he discovered that the leaders of
these suspects, accused 1, was detained, and the suspects wanted to be arrested
so that they could protect their leader from being attacked by other gangs in prison.
[57] The State implored the court to admit this evidence in terms of s 3(1)(c) of the
Hearsay Act, as Constable M uller suffered a stroke and was unable to testify. Mr
Klopper, on behalf of accused 19 submitted that the intention of accused 19 was not
to oppose the State's application, but accused 19 has recently raised a concern due
to information that he received fr om family members or friends that indicate d that
Sergeant Muller has perhaps recovered sufficiently to enable him to testify. Counsel
submitted that this is an aspect that should be clarified, particularly considering that
pursuant to the State's application, accused 19 has a limited scope in which to
challenge the evidence. Subsequ ent thereto, the State submitted a medical repor t
from Dr Geldenh uys the treating doctor of the witness, indicating that due to ill
health, Mr Muller is unfit to testify in court at this time .
[58] I have considered the two statements of the witness; I have considered that it
was made the same day of arrest. I have considered t he degree to which the
statement s are corroborated by other evidence . I have also considered the fact that
accused 19 admits that the drug was correctly sealed and analysed and that he
admits that the substance was prohibited methamphetamine, as per exhibit RRR3 . I
have also considered the degree of the hearsay particularly that t he statement was
made by the witness as an eyewitness to the offenses and that he had a first -hand
account of the offense. Pursuant thereto, I am of the view that exhibit ZZZ 2 and ZZZ
3 must be admitted as evidence herein in terms of s 3(1)(c) of the Hearsay Act.
Likewise , I will later determine what evidential weight is to be attached to th ese
statement s during the evaluation of the evidence.
[59] The State also applied to have the statement of Denver Hefke to be admitted
as evidence in respect of counts 88 and 90 of the indictment in terms of s 222 of the
CPA read together with sections 33 to 38 of the Civil Evidence Proceedings Act.
These counts implicate accused 1, 2, and 7. The three counts involve a cha rge of
murder in cou nt 88, possession of an unlicensed firearm in count 89 and unlawful
possession of ammunition in count 90. In count 88, it is alleged that on 16 February
2016, the accused wrongfully and intentionally killed S[...] M[...] , a female scholar, by
shooting her with a firearm. Concerning counts 89 and 90, it is alleged that on the
said date and place, the accused unlawfully and intentionally possessed a 9mm
semi -automatic firearm pistol and ammunition without a licence or permit issued in
terms of the Act to possess such firearm and ammunition.
[60] The State asserted that Mr Denver Hefke, a witness in these charges, is
untraceable and avoids testifying in court due to his fear of the accused. Mr Damon
submitted that the witness was pre viously subpoenaed to attend court, and he failed
to attend . Subsequent thereto, a warrant for his arrest was authorised. He has
previously been arrested as a witness in terms of s 184 of the CPA. In his statement,
which was marked exhibit XXXX10, Mr Hefke stated that on 16 February 2016,
around 15h20, he was with his friends standing at a Spaza S hop and smoking a
cigarette. Suddenly, he heard gun shots fired from Beethoven Street, and he and his
friend ran away. He did not see who was shooting, but he later discovered that a
school child had been shot.
[61] Mr Badenhorst opposed the application , arguing that it would not be in the
interest of justice to admit Mr Hefke’s statement as this would deprive the accused of
their right to a fair trial. Furthermore, Mr Bade nhorst submitted that the statement of
Mr Hefke contains double hearsay evidence , as Mr Hefke indicated that he was
informed that the person who fired the shot was accused 7. Counsel implored the
court not to accept this statement.
[62] Mr Damon submitted that from the evidence, at the time of the shooting, there
was a war between the Terrible Josters and the Thug Lifes over territory to sel l
drugs. Accused 7 went to shoot in Beethoven Street at members of the Thug Life
gang, including Denver Hefke, who was standing at the Spaza Shop. Counsel
submitted that S[...] M[...] was one of the members of the public at Beethoven Street
on her way home from school when accused 7 started to shoot from the Main Road
into Beethoven Street. The deceased was struck in the head by one of the bullets
that was aimed at Denver Hefke and the other Thug Lifes who were standing at the
Spaza Shop. Counsel implored the court to admit the statement as evidence.
[63] The statement of Denver Hefke, in my view, complies with the requirements
set out in s 34 of the Civil Proceedings Amendment Act. This witness is untraceable
and ostensibly avoids testif ying in court due to his fear of the accused. The witness
was previously arrested in terms of s 184 of the CPA. He was brought to court on 13
October 2023 and warned to appear on 29 January 2024. The investigating officer
indicated that he could not locate him despite diligent efforts. Without delving into the
merits of this matter, I have considered the nature of the evidence, the ballistic
evidence, photographs, the sketch plan, and the key thereto of the area where the
incident occurred.
[64] I have also considered the evidence from Sergeant Sandile Gwala, who was
in the taxi when he allegedly saw accused 7 in possession of a firearm at the time of
the alleged shooting of the deceased . I have also considered the purpose for which
the evidence i s tendered and the prejudice that may be suffered by the accused if
this statement is allowed . I am of the view that it is in the interests of justice that this
statement be admitted as evidence in these proceedings. As previously stated, the
statement of Denver Hefke complies with the requirements set out in s 34 of the Civil
Proceedings Evidence Act. Therefore, it must be admitted. Likewise, I will consider
the evidential weight of this statement when evaluating all the evidential material
admitted during the trial .
The State’s 11th application – Counts 108 to 110
[65] The State seeks to have the statement of Huston Christo ffel be admitted as
evidence in respect of counts 108 to 110 of the indictment in terms of s 3(1)(c) of the
Hearsay Act , alternatively, in terms of s 222 of the CPA, read together with s ections
33 to 38 of the Civil Proceedings Evidence Act. The witness passed away on 23
February 2017. His death certificate was handed in and marked exhibit YYY1 in
these proceedings. His statement was marked exhibit YYY2. The accused implicated
in these counts are accused 1, 2, and 3.
[66] Count 108 involve a charge of murder. Counts 109 and 110 comprise of
charges for possession of an unlicensed firearm and unlawful possession of
ammunition, respectively. In count 108, it is alleged that on 7/8 February 2016, the
accused intentionally killed Franklin Adams by shooting him with a firearm. In counts
108 and 110, it is alleged that on the said date and place , the accused unlawfully
and intentionally possessed a 9mm semi -automatic pistol and ammunition witho ut a
licence or permit issued in terms of the Act to possess such firearm and ammunition.
[67] In his statement, Mr Chrito ffels Huston reports on the shooting of the
deceased Franklin Adams. Mr Huston averred that on 7 February 2016 ; while
walking with the deceased Franklin Adams, he saw Lorenzo Coetzee with the
nickname Draad (accused 3) shooting at them. He knows Draad as they grew up in
the same area. The witness stated that as a result of the shooting, he ran and went
into his yard. Later, he went to look for his friend Franky Adams and saw him lying
on the ground in Lilly Street. He then called the police. According to the witness,
Franky was a member of the Thug Life gangster group, and Lorenzo Coetzee was a
member of the Terrible Josters.
[68] Mr Damon referred the court to several pieces of evidence which, according
to him, corroborated Huston Christoffel's statement. Furthermore, the State argued
that the unchallenged evidence of Ms J was that a war broke out between the
Terrible Josters and the Thug L ifes after the death of Gershwin and Lelle in 2013.
This war was in Delft -South. Mr Damon asserted that the shooting and killing of
Franklin Adams, a member of the rival gang, is consistent with the evidence of Mr A
as to how the Terrible Josters gang wage d wars on rival gangs to expand their drug
territory. Counsel submitted that the decisions and targets are taken by the leader
and executed by the members of the Terrible Josters as employees of the
organisation. Mr Damon implored the court to accept Mr Ch ristoffels Huston's
statement as evidence in this matter .
[69] I have considered the nature of the evidence, the degree of the hearsay
evidence, any interest in the outcome of the proceeding by the witness, the
identification of the accused 3 by the witn ess, the prejudice that will be suffered by
the accused if this statement is allowed . I have also considered the evidence of Ms J
and Mr A, and the fact that this witness is deceased. In my view, it is in the interest of
justice to allow this statement in these proceedings . I will however consider the
evidential weight to be attached to this statement and the reliability thereof when I
evaluate the entire evidence.
The State’s application s 12, 14 and 22 – Count s 30 to 32
[70] Mr Damon on behalf of t he State, also applied for the admission of the
statements made by Theodore Thurston De Kock (application 12) and Lena
Wilhemina De Kock (application 14 ) as evidence in these proceedings in respect of
counts 30 to 32 of the indictment. The a pplication in respect of the statement of
Thurston De Kock was brought in terms of s 222 of the CPA, read together with
sections 33 to 38 of the Civil Evidence Proceedings Act , alternatively, in terms of s
3(1)(c) of the Hearsay Act. The State relied on s 3(1)(c) of the Hearsay Act regarding
Ms Wilhemina De Kock's statement.
[71] The statements of Mr Thurston De Kock, marked exhibit C35, and that of Ms
Lena Wilhemina De Kock, marked exhibit C32, relate to counts 30 to 32. The
accused implicated in these c harges are accused 1, 2, 8, 16 and 17. The three
counts involve a charge of murder, possession of an unlicensed firearm , and
unlawful possession of ammunition, respectively. In count 30, it is alleged that on 17
February 2013 in 3 [...] R[...] Crescent Delft , the accused wrongfully and intentionally
killed Franklin Christopher Gabriels , an adult male , by shooting him with a firearm.
Concerning counts 31 and 32, it is alleged that on the said date , the accused
unlawfully and intentionally possess ed a 9mm semi -automatic pistol and
ammunitions without the necessary licences or permit s issued in terms of the Act to
possess such firearm and ammunitions.
[72] The two witnesses made multiple statements which underpin the State’s
application in terms of s 222 of the CPA read with s 3(1)(c) of the Hearsay Act. To
this end, the State applie d that their statements be admitted as evidence since they
have passed on. Mr Theodore Thurston De Kock passed away on 16 August 2020 of
unnatural causes, and as a result, he cannot testify in these proceedings. The State
also applied for the admission of t he photo identification parade, in which M r De
Kock identified the individuals who were allegedly involved in the death of his brother
as set out in count 30. This photo identification parade was marked exhibit C33, and
the accompanying photo album name li st, was marked exhibit C34.
[73] The State also applied in its fourteenth application that the statement of Ms
Lena Wilhemina De Kock, which was marked exhibit C32, be accepted as evidence
in these proceedings. Ms Lena De Kock passed away on 30 August 202 1. Her death
certificate formed part of these proceedings and was marked exhibit C22. She is the
mother of the deceased Christorpher Franklin Gabriels.
[74] In his statement, exhibit C35, Mr De Kock (application 12), in summary, stated
that on Friday, 02 December 2016, he met Sergeant Bonthuys at Bellville Court
where the latter handed him a photo album consisting of 27 colour photos of
coloured males and asked him to point out the suspect whom he saw shooting his
brother Franklin Gabriels. The witness pointed Kapadien (accused 8) in the
photograph, accused 17 (Nizaam), and accused 11 (Kleintjie) and Nathan (accused
16). The witness stated that accused 8 and 17 and one Nathan are the people he
saw shooting his brother Franklin Gabriels. Accused 11 was together with accused 8
and 17 when his brother Franklin Gabriels was shot.
[75] The photo album that was exhibited to this witness, in which he pointed out
accused 8, 11 and 17, was marked Exhibit C33, and the photo alb um name list was
marked Exhibit C34. The State applied that these exhibits be admitted as evidence
in these proceedings in terms of s 222 of the CPA and, alternatively, in terms of s
3(1)(c) of the Hearsay Act. Mr De Kock further made two additional statem ents,
which were marked exhibit C21 and C31, respectively. In its application 26, the State
applied that these statements (C21 and C31) be admitted as evidence in these
proceedings. In these statements, Mr De Kock further explained how Nathan,
accused 8 an d accused 17, allegedly shot his brother Franklin Gabriels. The witness
also stated that Nizaam pointed the firearm at him (the witness), and the witness ran
away.
[76] In relation to application 14, Ms Lena De Kock, the mother of the deceased
(Franklin Gabriels), briefly stated in her testament that on 17 February 2017, she
was home from work, and she discovered that one Faizel was murdered and was
lying on the field. This disturbed her, and she went home. Later, she sent her son,
the deceased Theodore Franklin, to buy bread at the shop. Her son went to buy
bread and never returned. Later, she was informed that h er son was shot. She went
out to investigate, and she saw accused 17, carrying a firearm a nd pointing it in all
directions. Ms De Kock also prepared another statement (C23), in which the State
also sought an order for it to be admitted as evidence in these proceedings. The said
statement (C23) is based on hearsay evidence, and I deem it unneces sary to
recount it in these proceedings.
[77] Mr John son, Counsel for accused 8 and 17, indicated that he does not
oppose the State’s applications , however, he aligned himself with the argument
proffered by Mr Van Zyl on these counts . Mr Van Zyl opposed the application on
behalf of accused 16 (Nathan) . He submitted that the version given by Mr De Kock
and the version of Ms E, the eyewitness of the shooting, were contradictory. Counsel
argued that Ms De Kock has a motive and, particularly in that her son was murdered.
Mr Van Zyl contended that it is not in the interest of justice to allow these statements.
[78] The two witnesses are deceased. They cannot testify in this matter. They
made their statements immediately after the death of the deceased. T he witnesses
had personal knowledge of the facts dealt with in the statement. In my view, Mr De
Kock's statement satisfies all the requirements set out in s 34 of the Civil
Proceedings Evidence Act and should be admitted as evidence in these
proceedings. T he statement of Ms De Kock, marked C23 (in application 14), is
based on hearsay evidence. From the reading of the statement, Ms De Kock did not
have personal knowledge of the information dealt with in her statement. She
deposed to information that was rela yed to her by her son – Thurston De Kock.
[79] I am of the view that it should not be allowed as it will be prejudicial to the
accused. However, I am of the view that her original statement - C32, quoted above,
should be admitted in these proceedings. Co nsequently, I have considered the
statements made by Thurston De Kock and Ms De Kock and the evidence led on
these counts, and I am of the view that their statements, as well as the photo album
(exhibit C33), the photo album name list (exhibit C 34) should form part of these
proceedings. I will consider the evidential value to be attached to these statements
and documents later when the totality of the evidence is evaluated.
The State’s applications 15 to 19 – Counts 71 to 7 3
[80] The State applied to hand in the statements of Brandon Davids in its sixteenth
application . Mr David is deceased. He passed away on 19 January 2021. He gave
two statements that were marked as exhibit DDD8 and DDD10. These two
statements relate to counts 71 to 73 of the indictment. These counts implicate
accused 1, 2 and 4. In count 71 of the indictment, it is alleged that on 13 September
2014, at Silverboom Street , Delft South, in the District of Bellville, the accused
wrongfully and intentionally kill ed Chad Clive Peterson, an adult male, by shooting
him with a firearm. In counts 72 and 73, respectively, the State preferred a charge of
possession of an unlicensed firearm and unlawful possession of ammunition.
[81] The State’s fifteenth application is based on the hearsay evidence of Brendon
Davids relayed to the arresting officer, Sergeant Lunga Mbo mvu. Sergeant Mbomvu
testified and filed a statement, which was handed in and marked as exhibit DDD1.
As explained earlier, this statement, a s well as the information related to the shooting
of Chad that Brendon David relayed to him, underpins the state’s fifteenth
application.
[82] Sergeant Mbomvu asserted in evidence and in his statement that when he
arrived at the scene of the crime, he spoke to the witness, Brandon David s, who told
him that he saw a coloured male known to him as Pang pointing a firearm at the
deceased . When they tried to ask what was going on, Pang pulled the trigger of the
firearm and shot the deceased in his head, and the deceased passed away. Mr
Davids also told him that Pang works for a Drug Lord by the name of Koffie (accused
1) and is from prison. He went to no 8 Walton Street Delft South looking for Pang,
and upon arrival, he found Pang sleeping. Pang took them to another Pang in Boyce
Court. The Pang in Boyce court told him (the witness) that he has nothing to do with
Koffie’s people. He then arr ested Pang whom he found at 8 Waltons Street.
[83] In the State’s sixteenth application , the State applied to hand in a statement of
Mr Brandon Davids. In his statement (exhibit DDD 8), Mr David s stated that he went
with his friend , Chad to the Spaza Shop to buy cigarettes. He went inside the shop
and left Chad outside. On his return, he saw a coloured person known as Pang
(accused 4) pointing a firearm at Chad’s face. The witness asked what was going on,
and Pang pulled the trigger and shot Chad on the forehead, and Chad fell to the
ground. After the shooting, Pang ran away and disappeared. He did not know the
cause of the shooting.
[84] In the seventeenth application, the State applied that the statement of
Brandon Davids dated 15 September 2014, whi ch was marked exhibit SSS33, and
the photo identification parade marked SSS32, be admitted as evidence. The
statement and the photo identification parade also relate to count 71 to 73. In that
statement (exhibit SSS33), Mr Davids explained that on Monday, 15 September
2014, at 16h20, he attended a photo identification parade at 11 Tamarisk Court, Delft
South, where Sergeant Bonthys with Constable Hagile, handed him a photo album.
Mr Davids stated that he looked through the photo album and pointed out photo 8 to
Sergeant Bonthys as that of Pang. He signed all the pages on the form and made an
X over the photo he pointed out. He stated that Pang was the person who shot Chad
because Pang thought Chad and Mr Davids were part of the Ghetto kid's gang.
[85] After consulting with the State Advocate, the witness later deposed to another
statement (exhibit DDD 10). The State applied in its eighteenth application for the
court to admit this statement as evidence in these proceedings. In that statement,
the witness indicated that the police officer who had taken the first statement from
him did not read it statement back to him. He wanted to correct that statement. The
correction in the statement was that he saw Pang holding Chad with his hand around
the neck. As Chad was bending to light a cigarette, Pang drew a firearm from his
front and shot Chad on the back of his head, and Pang ran away.
[86] Mr Damon applied for the admission of the statements detailed above and the
relevant identification documents in terms of s 3(1)(c) of the Hearsay Act ,
alternatively, in terms of s 34 of the Civil Proceedings Evidence Act. The State
referred to several pieces of evidence that were led, as well as several exhibits
contending that Mr David's statement is corroborated by other evidence on record.
Mr Damon asserted that the witness described the address where Pang could be
found to Sergeant Mbomvu, the arresting officer, to be 8 Walton Street, Delft South.
Upon arrival at 8 Walton Street, Sergeant Mbomvu enquired who the person was,
who is known as Pang (accused 4) and accused 4 confirmed he was Pang. He then
arrested him. Accused 4 was arrested the following day after the shoo ting.
[87] Mr De Villiers , counsel for accused 1, 2, and 3 opposed the State's
application. Counsel submitted that at the foundation of our criminal law, the premise
is that it is better that a guilty person goes free than an innocent person be
convicted. Counsel further contended that courts, in general, exhibit reluctance to
permit untested evidence to be used against an accused in a criminal case. Mr De
Villiers argued that at the time Brandon Davids made the statement, Mr Davids had
an interest in the outcome of the case pending anticipated proceedings. Accord ing to
counsel, exhibit DDD8 is a version of a single witness which should be approached
with the necessary caution. Counsel submitted that b efore it can be admitted as
evidence, it must be established if Brandon Davids's version is reliable.
[88] Mr Stra uss, the attorney for accused 4, opposed the application and asserted
that this is a murder charge. Mr Strauss argued that the State’s case would stand or
fall on this evidence. Mr Strauss submitted that the State seeks to have the accused
incarcerated in prison for life. The admissibility or not , of the tendered hearsay
evidence will play a crucial and decisive part in convicting the accused. It was Mr
Strauss’ submission that the crucial role of this evidence lies in the fact that without
this specific he arsay evidence, including the photo identification of accused 4, there
is no other evidence to implicate any person in the killing of the deceased. To this
end, Mr Strauss besought the court to rule this piece of hearsay evidence
inadmissible as it would n ot be in the interest of justice to admit it.
[89] There is a plethora of prima facie evidence led in respect of these counts
against accused 1, 2 and 4. The statement of Brendon David s was made
immediately after the shooting when the police arrived at the scene. The doctor who
performed the postmortem report testified in this matter and explained the trajectory
of the projectile that killed the deceased. According to the doctor, the dec eased was
shot from behind the head and was in a somewhat bending position when he was
shot. There were other exhibits, including the warning statement of accused 4 and
the statement of Austin Munnick, the person accused 4 stated , spent the whole
evening w ith on the day of the alleged murder.
[90] I have considered the nature of the evidence and the interest of the witnesses
in the outcome of the proceedings, and I have also considered the prejudice that
may be suffered by the accused if the statement and relevant exhibits are admitted . I
have also considered other evidence that supports the deceased statement, and I
am of the view that it is in the interest of justice that the statements and the relevant
exhibits in these counts be admitted as evidence. Similarly, I will, however,
determine the persuasiveness and evidential value to be attached to these
documen ts later during the evaluation of the whole evidence. To this end, the State’s
application for the admission of these documents succeeds.
The State’s 19th application – Counts 71 to 73
[91] The State’s nineteenth application also concerns counts 71 to 73. In this
application, the State seeks to introduce the hearsay evidence of Austin on what he
told his mother, Ms J, who testified in this matter. Mr Austin Munnick has since
passed away of unnatural causes on 02 January 2021. Ms J testified that she never
knew who shot her son in 2014, but h er son told her that the person responsible was
killed by the Terrible Josters by being shot in the head. Ms J also testified that her
son told her this on the same night that the deceased w as shot in the head and that
the perpetrator who shot Austin Munnick was a Ghetto Kid. Her evidence is that she
never knew the identity of the shooter, but her son never made a case because the
shooter had been killed. Ms J further testified that her son A ustin sold drugs
(mandrax, dagga and tik) for accused 1 at 8 Walton Street, Delft South.
[92] Without delving into the merits of the matter, which will be determined later in
these proceedings, in my opinion, her evidence is relevant in the just determination
of the outcome of this case. Ms J had no interest in this matter. Her son is deceased.
She does not know who killed her son. She has no interest in the matter. Her son
has no interest in the matter as he is deceased. I have considered the nature of her
evidence, the prejudice to the accused, the degree of the hearsay evidence . I have
also consi dered the evidence of other witnesses that is consistent with her evidence,
and the purpose for which the evidence was tendered, and I am of the view that it is
in the interest of justice that what her son communicated to her, be admitted as
evidence in th is matter. The strength and the weight of the hearsay evidence will be
dealt with later when I deal with the evaluation of the whole evidence.
The State’s 20th application – Counts 91 to 93
[93] Mr Damon applied for the statement deposed to by one Siphosetu Tsubata
Kaleni to be admitted in terms of s 3(1)(c) of the Hearsay Act as evidence in these
proceedings. M r Kaleni's statement was marked exhibit RRR14 in th is matter.
Siphosethu Kaleni is dece ased and can't testify in this matter. H is death certificate
was marked exhibit RRR5 in these proceedings. He died of unnatural causes. He
was the complainant in these counts. The accused implicated in these charges are
accused 1, 2 and 4.
[94] This application involves counts 91 to 93. Count 91 involves a charge of
Attempted Murder. It is alleged that on 12 April 2015 at Wallace Street Delf t South, in
the District of Bellville, the accused unlawfully and intentionally attempted to kill a
male pe rson by shooting h im with a firearm. The State did not want to disclose the
name of the complainant out of fear for his safety. In counts 92 and 93 respectively,
the State preferred a charge of possession of unlicensed firearms and unlawful
possession of a mmunition against the accused respectively . It is alleged that on the
said date and place, the accused unlawfully and intentionally possessed a 45 -calibre
pistol and had 45mm rounds of live ammunition in their possession without being in
lawful possession of a license or permit to possess such firearm and ammunition.
[95] In the said statement, M r Kaleni stated that on Sunday, 12 April 2015 , at
02h45, he was standing next to a house at 52 Wallace Street Delft South , when a
coloured male known to h im as Pang came and shot h im three times on h is body
without asking anything and ran away after the shooting. M r Kaleni also stated that
one shot struck h im in his right ribs, one on his left thigh and the other in his back.
After he was shot, he ran to h is house, where he stayed , in Wallace Street Delft, and
his clothes were covered in blood. H is brother called the police, who came and
arranged for an ambulance. He was taken to the Tygerberg hospital. M r Kaleni
stated that h is assailant, known as Pang, resid es at 3 [...] B[...] St Delft.
[96] The injuries of the complainant were not disputed. It was rather admitted by
the defence, specifically accused 4 in the formal admissions marked exhibit R.
Several witnesses testified in respect of these charges, includin g the police officers
who attended the scene immediately after the shooting and the original investigating
officer of the matter, Sergeant Hagile. Sergeant Hagile t estified that the complainant
did not know Pang's real name but indicated that Pang resided at 3 […] B[...] Street.
[97] According to Sergeant Hagile, the complainant sold drugs from 66 Wallace
Street, whose people were the rivals of the Terrible Josters. Sergeant Hagile stated
that the complainant, told h im that Pang shot h im because the complainant was
selling drugs at 66 Wallace Street, which was the rival of Pang's gang. Sergeant
Hagile followed up by going to 3 […] B[...] Street, where it was confirmed by a
coloured lady, claiming to be Pang's mother, that Pang stayed there, but he (Pang)
came and went. He stated that Pang is Moegamat Moeniers. Sergeant Hagile
identified accused 4 as the person he knows as Pang, who stays at 3 […] B[...]
Street.
[98] Constable Victoria Manengela's evidence was that when they arrived at the
crime scene, they found the discharged cartridges outside 52 Wallace Street
premises. She then took a statement from the complainant and made an entry in the
investigating diary of th e docket, marked as exhibit RRR15 in these proceedings.
She stated that the complainant could not sign the statement due to pain. Members
of the LCRC also came and did the necessary investigation. Ms F, who was with the
deceased when the shooting happened, also testified and identified accused 4 as
the person who shot the deceased. Ms F attended a photo identification parade,
which was marked exhibit RRR10, and identified accused 4 as the person who shot
the deceased.
[99] Mr Strauss , the attorne y for accused 4, opposed the application and
contended that an accused person has a right to a fair trial, which includes the right
to adduce and challenge evidence. Mr Strauss further submitted that it is difficult to
challenge hearsay evidence as such ev idence does not give the court an opportunity
to assess the demeanour of the witness and therefore the credibility of the person
who alleged to have made the statement. According to Mr Strauss, such evidence
does not allow for questions to the missing witn ess to obtain clarity as to what he is,
in fact, saying or what his suspicion(s) is based on. In particular, it does not allow for
cross -examination to challenge and test the veracity of such evidence.
[100] I do not intend to deal with the merits of this matter. I must however , mention
that the nature of the proceedings, as criminal proceedings self -evidently militate
against admission of hearsay evidence . However, the inquiry does not end there. It
cannot be disputed that M r Kaleni wanted to see just ice being done for the injuries
he sustained when he was shot. There is nothing wrong with this. Furthermore, t he
complainant’s statement must not be looked at in isolation. It should be considered in
light of other evidence that was led.
[101] I have co nsidered the nature of the evidence, the fact that the statement was
taken immediately after the shooting, and the degree of the hearsay evidence
relayed to Sergeant Hagile . I have also looked at other evidence particularly of Ms F
and the police officers who attended the scene after the shooting and other evidence
that is consistent with this statement . I have also considered the purpose for which
this statement is tendered as evidence, and I am of the view that it is in the interest
of justice that the st atement of the complainant M r Kaleni be allowed as evidence in
these proceedings. I am of the view that the hearsay evidence relayed to Sergeant
Hagile must also be provisionally admitted. Equally, I will consider the evidential
value of this evidence when the totality of the evidence is evaluated.
[102] Furthermore, I agree with the views expressed by Mr Damon that the
admission of this statement and the hearsay evidence relayed to Sergeant Hagile as
evidence does not violate any of the accused fair trial rights in terms of s 35(3) of the
Constitution. It cannot be said that the admission of the hearsay evidence caused
the accused to have an unfair trial because it prevented the accused from exercising
fair trial rights. This Court st ill retains the discretion after hearing all the evidence, at
a later stage of the trial, to decide that it will disallow the evidence that has been
admitted.
[103] As explained earlier, nothing prevents the accused from exercising their rights
in terms of the CPA. The admission of the evidence is not a conviction of the
accused. The accused may still apply for discharge in terms of s 174 of the CPA, if
they are of the view t hat no evidence has been adduced to prove their guilt. In the
result, the statement of Tshubata Kaleni and exhibit RRR15 are hereby accepted as
evidence in these proceedings.
The State's applications 21, 22, and 30 – Counts 25 t o 28.
[104] The State is al so applying to have the statements deposed to by one Anathi
Sinkwane (application 21) and the statement of Thurston Remmitz (application 22)
be admitted in terms of s 3(1)(c) of the Hearsay Act as evidence in these
proceedings. The accused implicated in these charges are accused 1, 2 and 3.
Count 25 involves a charge of attempted murder. It is alleged that on 15 August
2012, at 8 Walton Street Delft South, in the District of Bellville, the accused
unlawfully and intentionally attempted to kill a male person by shooting him with a
firearm. The State also preferred a charge of possession of an unlicensed firearm in
respect of count 26 and unlawful possession of ammunition in respect of count 27.
[105] In count 26, it is alleged that on the said date and place, the implicated
accused unlawfully and intentionally possessed a 9mm semi -automatic pistol without
holding a license, permit or authorisation issued in terms of the Act to possess the
said firearm. In count 27, the State alleged that on the said date and place, the
accused did unlawfully have in their possession ammunition, to wit, an unknown
quantity of 9mm live rounds ammunition, without being in lawful possession of a
license in respect of a firearm capable of detaching that ammunition or a permit to
possess such ammunition.
[106] Anathi Sinkwane, the complainant in these charges, and Thurston Remmitz,
the witness, are both stil l alive. Nevertheless, the investigating officer stated that
these witnesses could not be located. Thurston Remmitz’s statement underlies the
State’s twenty -second application brought in terms of s 3(1)(c) of the Hearsay Act.
Anathi Sinkwane's statement was handed in and marked as exhibit XXXX14. The
statement of Thurston Remmitz was also handed in and marked as exhibit XXXX13.
[107] In summary, in his statement, Mr Sinkwane indicated in his statement that on
Wednesday, 15 August 2012, at app roximately 9:30 AM, he was on duty in Delft
South. His responsibility involved reading water meters throughout the area. He
visited 8 Walton Street to check the meter. He opened the meter, and as he focused
on reading it, a colour ed male approached from ou tside the yard and enquired about
his presence there. He then informed him that he was reading the water meter. The
coloured male entered the house and returned with other two individuals. One of
them possessed a piece of wood, while the other held an empt y bottle. They struck
him with the wood and the bottle before seizing him.
[108] He decided not to leave it unresolved and, determined to read the meter, he
went inside the house to speak to the owner. When he knocked at the door, the first
coloured youn g man who opened the door had a firearm in his hand. The young man
fired one shot at the complainant, and the complainant fell to the ground, and the
coloured man closed the door. The complainant stated he was shot on his left hip.
He got up and walked to the opposite neighbours, who later took him to the hospital
for treatment.
[109] He later filed a statement relating to the photo identification parade which he
attended on 4 February 2017. The said statement was marked exhibit HHHH21. In
his second iden tification statement, he stated that he was handed the photo album
consisting of faces of coloured and black males. He was asked to identify the
suspect who shot him and those who assaulted him. He looked through the photo
album for a long time. According to Mr Sinkwane, he believes that it was suspect 24
on the photo album, which is accused 3 in this matter, who shot him. However, he
stated that he’s not sure because this happened a long time ago. He could not
identify the two suspects who assaulted him. T he photo album was handed in as
exhibit HHHH20 in these proceedings. The medical records confirming that the
witness suffered a gunshot wound on his pelvis were handed in and marked as
exhibit XXXX15.
[110] The State also applied for admission of Thursto n Remmitz's statement as
evidence in these proceedings. Th e statement of Thurston Remmitz underpins the
state’s twenty -second application brought in terms of s 3(1)(c) of the Hearsay Act.
This application is also based on counts 25 to 27. Mr Remmitz’s statement was
marked as exhibit XXXX16. The statement is also linked to the attempted murder
charge of Anathi Sinkwane.
[111] In summary, Mr Thursto n Remmitz stated that he had knowledge of the
shooting that took place which involved Lorenzo, (accused 3) a 28 Terrible Joster
gang member. The witnesses stated that on the day in question, he was at Delft
Main Road when he heard a gunshot in the directio n of Boyce Court in Delft South.
The gunshot was from the house of Koffi - accused 1. As he was standing, Lorenzo
came running past him with a firearm in his hands. As Lorenzo was running away
people shouted at him saying he has an evil mind for shooting a n innocent person
who was just doing his work. The witness then went to Boyce Court to see if any
person was shot and then upon arrival, he discovered that it was the person who
was reading the meter who was shot.
[112] Mr Damon applied for the admission of the statement of Johannes Sawyer,
the police officer who attended the scene of the shooting and arrested the young
men at 8 Walton Street for questioning. His statement was marked exhibit PPPP.
Warrant Officer Sawyers’ statement underlies the State’s t wenty -eight application on
these counts (counts 25 to 27). He was doing patrols and attended to a shooting
complaint at 8 Walton Street. The complainant reported to him that an unknown
suspect shot him as he was attending to read a water meter. He arrested six
suspects he found at 8 Walton Street for questioning.
[113] Mr Damon referred the court to the seven factors set out in s 3(1)(c) of the
Hearsay Act and submitted that Anathi Sinkwane has an interest in the person who
shot him being brought to book, which in principle adversely affects the reliability of
his evidence. Mr Damon argued further that the witness has no reason to be biased
against the accused, as from the statement, he does not know his attacker.
However, his evidence as to the identity of the shooter is corroborated by the
evidence of Thurston Remmitz. Mr Damon stated that the evidence indicates that the
witness was attacked during the execution of his duties of reading the water meter
and not any criminal activities related to any gang activity.
[114] As far as the admissibility of Thurston Remmitz’ statement is concerned, Mr
Damon submitted that Thurston Remmitz has no interest in the person who shot
Anathi Sinkwane bein g brought to book, which in principle does not affect the
reliability of his evidence. The witness has no reason to be biased, as from the
statement, he does not know the victim. His evidence regarding the identity of the
shooter is corroborated by the evi dence of Anathi Sinkwane. According to Mr
Damon, the evidence indicates that the victim was attacked during the execution of
his duties of reading the water meter and not related to any criminal activities or any
gang activity. To this end, Mr Damon implor ed the court to admit the two statements
as evidence in these proceedings.
[115] Mr De Villiers, on behalf of accused 3, submitted that the State cannot be
allowed to use s 3(1)(c) of the Hearsay Act to have evidence admitted while knowing
that the state itself and their witnesses are responsible for not giving viva voce
evidence. If permitted, Counsel argued that it would negate the provisions of s 161 of
the CPA and the basic principles of a fair trial . It would also open the door for the
State in t he future to simply hand up statements of witnesses without having their
evidence tested during cross -examination.
[116] In addition, Mr De Villiers contended that to determine the admissibility of the
statement of Anathi Sinkwane (exhibit XXXX14) the Co urt should consider the fact
that Mr Sinkwane did not identify the shooter in his statement and that it is doubtful if
Mr Sinkwane made the correct identification during the photo identification of
accused 3. According to Mr De Villiers, the statement of T hurston Remmits (exhibit
XXXX16) does not corroborate the version of An athi Sinkwane in exhibit XXXX14,
and that Mr Remmitz was not present at the crime scene. He was only provided with
secondary hearsay information from the public regarding the identity o f the shooter.
[117] As with the previous applications, I will not deal with the merits of the case.
However, it is not in dispute that the shooting of Mr Sinkwane happened in Delft -
South. It is further common cause that Mr Sinkwane was shot on his left h ip while he
was employed as a water meter reader in Delft -South. His medical record has not
been disputed. From the reading of his statement, it cannot be said he is biased
against any of the accused. According to Thurston Remmitz, the person who was
shot was a meter reader. He went to see him and discovered that he was shot. In my
view, the evidence from the two witnesses and the hospital records must be read
together and not disjointedly.
[118] Sergeant Van Wyk , the investigating officer , testified on the unavailability of
both Mr Sinkwane and Mr Remmitz. He testified that this witness cannot be traced.
Ostensibly , the overriding factor is fear of the accused. Both witnesses have been
shot, one in the stomach , and the other in his hip. In the circumstances, the fear of
testifying cannot be simply ignored. The investigating officer indicated that numerous
attempts have been made, including obtaining warrants to search and arrest these
witnesses. He obtained J50 warrants for both witnesses. H e traced these witnesses
since 2020. He stated that the witness Anathi Sinkwane changed address many
times. He tried to contact him on his cell phone however, the witness change d his
numbers. This court authorised warrants of arrest after the same was appl ied for by
the State for the arrest of these witnesses. Some of the witnesses were arrested and
brought to court. The evidence of the investigation officer was that he made a
concerted effort to trace these witnesses with no success.
[119] I have conside red the evidence on these counts, the statement of the
witnesses and the degree of the hearsay evidence contained in the statements, I
have also considered other evidence that matches with these statements, I have
also considered the prejudice that the acc used may suffer when the se statement s
are allowed, the purpose for which this application is brought . I am of the view that it
is in the interest of justice that the statements of these witnesses in the state’s
application 21, 22 and 30 be allowed as evidence in this matter. Notwithstanding, I
will consider the reliability and the evidential value to be a ttached to these
statements when the totality of the evidence is evaluated.
The State’s application s 23 and 27 – Counts 1 – 145
[120] The State applied for the third statement of Thurston Remmitz, deposed on 29
August 2020, and the hearsay evidence of E lton Eli to Mr A to be admitted as
evidence in this matter . The evidence of each witness relates to counts 1 – 145. Mr
Elton Ely is deceased, and he cannot testify in this matter. Thurston Remmitz ’s third
statement was marked exhibit XXXX 13 in these proceedings. According to the state
advocate, the third statement of Mr Remmitz applies to all the 145 charges levelled
against the accused.
[121] In brief, Mr Remmitz stated that he had lived in Delf t South for fiftee n years,
he grew up there and attended school in the area. The 28 Terrible Josters is a gang
that is known to him, and that has caused fear and terror in Delft under the
leadership of Koffie (accused 1) , who lived in Boyce Court Delft South. Koffie is
know n to him as the leader of the Terrible Josters and is a well -known drug lord in
Delft. Mr Thurston averred that Koffie had several gang members under his control
to whom he g ives instructions to sell drugs, to assault people, or to kill people who
sell dru gs in his area in competition with him or to attack rival gangs. Mr Thurston
stated that many people became the victims of Koffie and his gang members. He
observed as he was growing up in Delft how Koffie and his gang members sold
drugs for him. Mr Thursto n further stated that Koffie owns several houses in Delft
which are used for selling drugs.
[122] Thurston Remmitz also stated that Koffie owns several vehicles which are
used to transport and sell drugs. The vehicles are used for the transportation of
weapons, in particular firearms. The witness asserted that he has always seen how
Koffie or Muis (accused 2) distributed drugs to other gang members for the purpose
of selling. Mr Thurston further stated that he personally witnessed this firsthand when
the drugs were distributed to the various gang members to sell. Two of the gang
members are known to him because they went to school together. I t is Lorenzo and
Pang. He does not know Pang’s actual name, but he knows him because he had a
love relationship with Pang’s younger sister. According to Thurston, Koffie and his
gang members are known for shooting and selling drugs in Delft South. The
comm unity in Delft South fears the 28 Terrible Josters gang.
[123] Mr Damon, on behalf of the State, argued that the purpose of this evidence is
intended to prove that the Terrible Josters in Delft -South is a gang that sells drugs.
Secondly, the evidence prov es that accused 1 and 2 were the leaders of the gang,
and thirdly, the admission of the evidence proves how the Terrible Josters in Delft -
South operated for years. Mr Damon also submitted that the admission of the
evidence does not violate any of the accus ed's fair trial rights in s 35(3) of the
Constitution. The court itself, in terms of s 165 of the Constitution, still retains the
discretion, after hearing all the evidence, to, at a later stage of the trial, decide that it
will disallow the evidence that has been admitted .
[124] As discussed earlier in this judgment, the fear of witnesses to testify in this
case cannot be ignored or discounted . There are allegations made in this court that
Mr Remmitz was shot by accused 3 in the accompany of accused 4 at Melkhouts
Street in Delft. Those allegations are still to be tested or proven. This court must still
consider the evidence of Mr A as well as the hearsay evidence conveyed to him by
Elton Eli regardin g the plan to kill one , Donny Braskat , vis-à-vis other evidence that
has been led and some evidence that will be tendered by the accused if it becomes
necessary for them to testify. However, Mr A’ s evidence was that he was one of the
members of the Terrib le Josters. He understood their language. He explained the
structure of the gangs in prison and the street gangs. According to Mr A, the modus
operandi of the Terrible Josters is that they buy witnesses not to attend court or kill
them at times. The truthf ulness of Mr A’ s evidence will be considered by the court
when the totality of the evidence is evaluated.
[125] I am mindful of the provisions of sections 161(1), 183 and 184 of the CPA,11
but I am of the view that the fear of these witnesses to testify herein should be
viewed at least from this perspective. Moreover, the investigating officer indicated
that Mr Remmitz cannot be traced. A warrant of arrest was issued, but he could not
be taken into custody as he is untraceable. Based on the prima facie evidence led in
this case thus far , the purpose for which this evidence is tendered, the degree of the
hearsay evidence, any prejudice to the accused . I am of the view that it is in the
interest of justice that the statement of Thurston Remmitz must be admitted into
evidence.
11 Section 161(1) of the CPA provides that ‘a witness at criminal proceedings shall, except where this
Act or any other law expressly provides otherwise, give his evidence viva voce ’. Section 183(1)
provides that ‘any person who is advised in writing by any police official that he will be required a s a
witness in criminal proceedings, shall, until such criminal proceedings have been finally disposed of or
until he is officially advised that he will no longer be required as a witness, keep such police official
informed at all times of his full residen tial address or any other address where he may conveniently be
found ’.
[126] The reliability and evidential value of the statement will be determined when
the totality of the evidence is considered at the end of the trial. In my view, the
accused will suffer no prejudice if this statement is admit ted. As previously stated, i n
presenting their case, if it becomes necessary that they should testify, the accused
can still refute or challenge these allegations.
The State’s application 25 – Counts 4 to 6
[127] Mr Damon also applied for James Joseph Louw's statement to be admitted as
evidence in this matter. James Louw is deceased, and his death certificate was
marked exhibit KKKK in these proceedings. James Louw's statement relates to
counts 4 to 6 of the indictment. These counts implicate acc used 1 only. Count 4
involve a charge of pointing of anything which is likely to lead a person to believe it is
a firearm. Counts 5 and 6 involve a charge of intimidation and corruption,
respectively. In count 4, it is alleged that on 5 March 2002 at Bisho p Lavis, the
accused unlawfully pointed anything which is likely to lead a person to believe that it
is a firearm, an object resembling a firearm, at a witness without good reasons to do
so.
[128] In count 5, it is alleged that during March 2002 and June 2002 at Bishop Lavis
Magistrates Court, the accused did unlawfully with the intent to compel or induce the
complainant not to testify in court by threatening to kill the complainants' family
member by shooting him with a firearm. In count 6, the State alleged that on 25 April
2002, Bishop Lavis court in the district of Goodwood, the accused offered to give
gratification of R1000 for a benefit to a witness to withdraw a criminal charge levelled
against accused 1.
[129] The statement of James Louw is in respect of these counts. The State
brought an application in terms of s 3(1)(c) of the Hearsay Act to have the statement
of Mr James Louw admitted as evidence against the accused. In brief, in his
statement, Mr James Louw stated that the day when Elt on Lenting pointed the
witness' sister with a firearm . Elton Lenting called him and said he must quickly bring
that baby gun to him as the complainant was taking h im for a fool. The witness then
gave him a toy gun. Elton then pointed the said gun at the wi tness ’ sister, who was
with Pearl and Melissa . The witness’ sister and her friends , walked away. The
witness stated that he is not under the influence of Elton Lenting . Furthermore, Mr
Lenting does not force him to sell dagga. He also stated that Mr Lenting is not a
member of a gang. He only has a tattoo of 28 gang.
[130] Ms H, the complainant in respect of these counts, testified how accused 1
allegedly threatened and pointed a firearm at her. These allegations we re disputed
by accused 1 through cross -examination. The veracity of these allegations will be
determined when the entire evidence is evaluated. Mr Damon referred the court to
the seven factors set out in s 3(1)(c) and implored the court to allow the eviden ce
into the record. Mr De Villiers, submitted on behalf of accused 1, that Mr James
Louw was the brother of the victim (Miss H) and witnessed how a firearm was
pointed at his sister. Counsel submitted that Mr Louw had an interest in the outcome
of the pend ing or anticipated proceedings. Mr De Villiers also pointed out the
discrepancies and alleged contradictions between Ms H's evidence and Mr Louw's
statement. Mr De Villiers submitted that Mr Louw’s statement could not be viewed as
reliable evidence, and it would not be in the interest of justice to be admitted as
evidence.
[131] As previously stated, in evaluating the evidence at the end of the trial , the
court must adopt a holistic approach and consider the evidence in its totality,
including the evidence of the accused, together with the hearsay statement, to
determine the truthfulness, reliability of the statement. The statement of Mr Louw to
some degree exculpates accused 1 from the charges against him. C onsidering the
prima facie evidence led by the State thus far in respect of these counts, the nature
of the evidence led, any prejudice that may be suffered by the accused and all the
allegations m ade in respects of these counts, I would allow this statement to be
admitted into the record . However, this is an interlocutory finding. I will revisit the
truthfulness and the evidential weight of this statement while evaluating the
evidence.
The State ’s applications 28 and 29 – Count s 10 to 12 and Count 119
[132] Mr Damon also applied for the statements deposed to by Ernest Olivier to be
admitted in terms of s 34 of the Civil Proceedings Evidence Act as evidence in these
proceedings. The handwritten statement of the witness was marked exhibit VVVV 3,
and the typed statement was marked exhibit VVVV 2. This statement underpins the
State's application in respect of counts 10 to 12. The accused implicated in these
charges are accused 1 and 2. Count 10 involves a charge of attempted murder. It is
alleged that on 14 March 2004, at or near River Road, Bishop Lavis in the District of
Goodwood, the accused unlawfully and intentionally attempted to kill a male person
by shooting him with a firearm. The name of the person was not disclosed to protect
him. The State also preferred a char ge of possession of an unlicensed firearm in
respect of count 11 and unlawful possession of ammunition against the accused in
respect of count 12.
[133] In count 11, it is alleged that on the said date and place, the concerned
accused unlawfully and inte ntionally had in their possession two firearms, the further
details of which are unknown to the State, without holding a license, permit or
authorisation issued in terms of the Act to possess the said firearms. In count 12, the
State alleged that on the sa id date and place, the accused did unlawfully have live
ammunition in their possession without lawful possession of a license in respect of a
firearm capable of discharging that ammunition or a permit to possess such
ammunition.
[134] The complainant in these charges is Ernest Olivier. The medical report dated
10 June 2022, provided by Dr Abbas from Bishop Lavis Community Health Centre ,
shows that this witness is ill. The doctor noted that the witness struggles with his
speech and strug gles to understand and talk and becomes forgetful at times. The
State brought an application that his statement, which was marked exhibit VVVV1
and VVVV2 in respect of counts 10 to 12, be admitted as evidence in these
proceedings. In his statement, Mr Oliv ier explained how he was allegedly shot by the
accused.
[135] The State also brought an application regarding the statement of Shane
Hector, marked exhibit XXXX17, who allegedly arrested accused 2 for dealing in
drugs at Waltons Street, Delft South, to b e admitted as evidence in these
proceedings. Mr De Villiers argued on behalf of accused 1 that Mr Olivier's difficulty
in speaking does not prevent him from testifying in court. ln addition, it is the court
and not the State that should rule on the compete ncy of Mr Olivier to testify .
[136] The application of the State for the admission of these two statements is
made in terms of s 34 of the Civil Proceedings Evidence Act. The original statements
were submitted. The witnesses cannot testify in this matter due to ill health. The
statement dealt with facts falling within his personal knowledge. In my view, these
two statements comply with the requirements of s 34 and must be admitted. I am
mindful of s 193 of the CPA that the Court in which criminal proceedin gs are
conducted shall decide any question concerning the competency or compellability of
any witness to give evidence. However, the circumstances of this case are distinct.
[137] This Court has been furnished with medical evidence that Mr Olivier struggles
with his speech, struggles to understand and talk, and becomes forgetful. This is
caused by other illnesses that were highlighted in the medical report, which I deem
unnecessary to point out in this judgment. Similarly, the evidential value to be
attached to this statement and that of Shane Hector will be dealt with in due course
when the totality of the evidence is evaluated. The State's application for the
admission of these statements hereby succeeds. The State’s application in respect
of count s 10 and 13 raises complex legal issues and I will deal with those
applications separately.
___________________ ______
LEKHULENI JD
JUDGE OF THE HIGH COURT