Gaffoor v S (Appeal) (A200/25 ; SS48/2021) [2026] ZAWCHC 172 (15 April 2026)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy




IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)


Appeal Case Number: A200/25
WCHC Case Number: SS48/2021



In the matter between:

SHAKOOR GAFFOOR Appellant
and
THE STATE Respondent


Coram: Lekhuleni J, Ralarala J, Janisch AJ
Heard: 23 March 2026
Delivered: 15 April 2026

Appeal – Evidence on identification of the Appellant - State not proving the
identification of the Appellant as the alleged perpetrator beyond a reasonable
doubt – Appeal upheld.

ORDER



The Court makes the following order:
“(a) The appeal against the conviction of the Appellant succeeds.
(b) The conviction and sentence are set aside.”



JUDGMENT DELIVERED ON 15 APRIL 2026




THE COURT:

Introduction

[1] On 7 June 2024, the Appellant was convicted by the court a quo on three
charges, namely:
(a) One count of murder;
(b) One count of contravention of section 3 of the Firearms Control Act 60 of
2000 (“the Firearms Act ”) in that he had unlawfully in his possession a
firearm, the further details of which were unknown to the State, w ithout
holding a licence, permit or authorisation issued in terms of that Act to
possess that firearm; and

(c) One count of contravention of section 90 of the Firearms Act, in that he
had in his possession an unknown quantity of ammunition of unknown
calibre, without being the holder of a licence in respect of a firearm
capable of discharging that ammunition or any other relevant permit.
[2] The Appellant was acquitted on certain other charges, namely contraven ing
section 9(2)(a) of the Prevention of Organised Crime A ct 121 of 1998 (“POCA”)
and attempted murder.
[3] On 20 January 2025, the Appellant was sentenced as follows:
(a) On the count of murder read with the provisions of section 51 (1) of the
Criminal Law Amendment Act 105 of 1977, to life imprisonment;
(b) On the count of possession of a firearm, to five years’ imprisonment; and
(c) On the count of possession of ammunition, to five years’ imprisonment.
[4] The Appellant applied for leave to appeal to the Full Court against his
conviction on each of the three charges. The court a quo granted leave on 28
March 2025.
[5] The Appellant had been convicted together with two other persons found to
have been involved in the same incident, Mr Riedewaan Cedras (“Cedras”) and
Mr Grandall Solomons (“Solomons”). Cedras and Solomons received the same
sentences as the Appellant. They did not apply for leave to appeal.

The factual background
[6] The appeal arises out of a tragic incident which occurred o n Saturday 30 May
2020. A t ap proximately 09h30 that morning, Mr Achmat Gaffoor (“ the
deceased”) was brutally murdered by assailants who shot him multiple times in
broad daylight at the intersection of St Bernard Crescent and St Blaise Street in
Montague Village, Lavender Hill, Cape Town.
[7] The attack was captured by a closed circuit video camera installed at a property
on that intersection. The video footage was admitted into evidence. We discuss
its contents in more detail below. For present purposes, we record that it shows
a silver grey Volkswagen Polo vehicle driving in a northerly direction on St
Blaise Street and coming to a halt at the corner with St Bernard Crescent .
Three persons alight from the vehicle. They are wearing Covid-19 style face
masks over their noses and mouth s. Two appear to be wearing beanies and
the third has a blue hoodie covering his head. The deceased sprints away from
the vehicle and across St Blaise Street as the assailants shoot at him. He falls
against the opposite kerb. The three assailants continue to shoot at him on the
ground. It appears that a fourth person gets out of the passenger side of the
vehicle and also fires a shot from that side of the vehicle. The assailant wearing
the hoodie then points his firearm in an easterly direction along St Bernard
Crescent. He fires shots in that direction. All three assailants then get back into
the vehicle which speeds off. The deceased is left lying in the street.

[8] According to the time stamp on the video footage, approximately 19 seconds
passed from the time the vehicle stop ped at the intersection (09:32:57) to the
time that it drove away (09:33:16).
[9] The Appellant was arrested on 9 October 2020 , just over four months after the
date of the incident. He, together with Cedras and Solomons, w as charged with
the murder and other counts referred to above. The State contended that these
were the three assailants who chased after the deceased and fired the shots.
[10] When the matter came to trial before the court a quo, all three accused pleaded
not guilty. Each of them raised an alibi, contending that he was not present at
the crime scene and that the charges against him were a case of mistaken
identity.
[11] The Appellant said in this regard that at the time of the murder, he was staying
with his parents and some of their friends at a house in Melkbosstrand , far
away from the crime scene. He stated that he had arrived the previous evening,
and was still there on the Saturday morning when he received a telephone call
informing him of the shooting of the deceased.
[12] The deceased, it was common ca use, was the Appellant’s nephew. The
Appellant’s father, also called Achmat Gaffoor (“Gaffoor senior”), had children
from two marriages. Two daughters from his first marriage, Roegshana Gaffoor
(“Roegshana”) and Rihanna Gaffoor (“ Rihanna”), lived in Montagu e Village.
Roegshana was the mother of the deceased. Gaffoor senior had remarried, and
the Appellant was one of the children of that union. While Gaffoor senior had
originally lived in Montague Village and still owned properties there, he and his

immediate family (including the Appellant) had since settled in the more
upmarket suburb of Kirstenhof.
[13] Although the Appellant and the deceased were uncle and nephew to one
another, they were of similar age.
[14] Of direct relevance to the matter was an ongoing conflict at the time of the
murder between two criminal gangs operating in and around the Mont ague
Village area. There was evidence of a “ war” between the gangs known as the
Junky Funky Kids (“ JFKs”) and the Flakka Kids (“ Flakkas”). The Flakkas had
apparently been a breakaway group from the JFKs. The area where the murder
occurred was part of the territory of the Flakkas.
[15] The deceased was a member of the Flakkas. Cedras and Solomons were
known members of the JFKs. Gaffoor senior was said to have once been a
leader of the JFKs. The Appellant however denied that he was associated with
the JFKs. He did not have any gang insignia tattooed on his body.
[16] The incident on the morning of Saturday 30 May 2020 displays the hallmarks of
a gangland “hit” in which a member of one gang is targeted for assassination by
members of a rival gang. Such incidents are notorious in the gang-ravaged
areas of Cape Town . They, and the grip which gangs have over the se
communities, cause untold distress and upheaval amongst the inhabitants, who
are often caught, both literally and figuratively, in the crossfire.
[17] The trial before the court a quo was a lengthy affair . It commenced on 6
November 2023 , with the evidence being completed on 24 May 2024. Nine

witnesses testifi ed for the State . The prosecution’s case was shortened
considerably by the fact that the accused, consistent with their defences of alibi
and mistaken identity, made substantial formal admissions in relation to aspects
such as ballistic examination and the post-mortem examination of the
deceased. Each of the accused then testified in their own defence, and called
witnesses (two in the Appellant’s case) in support of their alibis.
[18] The court a quo concluded ultimately that the State had established the guilt of
all three accused beyond a reasonable doubt. Their alibis were rejected as
false.
The issues in the appeal
[19] The Appellant was granted leave to appeal against his conviction only. His legal
representatives properly approached the matter on the basis that if his
conviction is upheld, there would be no basis to upset the sentence imposed on
him.
[20] The core submission made by the Appellant is that the State failed to adduce
evidence on w hich it could properly be conclude d that he was one of the
assailants who shot the deceased. The Appellant contends that the court a quo
erred in accepting the eyewitness’ evidence identifying him. A central question
is whether the eyewitnesses had a proper opportunity to identify the Appellant
in the circumstances.
[21] In granting leave to appeal, the learned Judge a quo said the following:

“The only aspect on which another court could come to a different conclusion is tha t
the whole incident was of a short duration. This could have affected the reliability of the
two witnesses. For this reason, and this reason alone the [Appellant] is granted leave
to appeal to the Full Bench of this Division against his conviction.”
[22] The reliability of a p ositive identification of a perpetrator, and the validity of an
alibi defence, are essentially two sides of the same coin . For reasons that
follow, our primary focus is on the reliability of the State’s evidence pertaining to
the identification of the Appellant as a perpetrator of the incident itself. We deal
with the alibi evidence, to the extent necessary, thereafter.
The evidence of the State: the shooting incident
[23] The direct evidence presented by the State in support of the cha rges against
the Appellant comprised:
(a) The eyewitness accounts of two persons who were at the scene of the
murder, Mr Ethan Schoeman (“ Schoeman”) and Mr Waseem Wilson
(“Wilson”);
(b) The aforementioned video footage , whose authenticity was verified by
Captain C Louw of the South African Police Service (“Capt Louw”); and
(c) The evidence of Roegshana (the deceased’s mother) and Rihanna , who
were not at the scene but said that they had identified the Appellant as
one of the assailants from viewing the video footage.
[24] We proceed to deal in more detail with the evidence, starting with the manner in
which the video footage was obtained and admitted into evidence.

Evidence of Capt. Louw
[25] Capt. Louw specialis es in digital forensic investigations for the South African
Police Services (“SAPS”). She testified because counsel for Cedras and
Solomons did not admit the authenticity of the video footage . The Appellant did
not dispute its authenticity. The court a quo held a “ trial within a trial ” at the
conclusion of which it ruled that the footage was admissible.
[26] At the hearing of the trial within a trial, Capt. Louw testified that she was
requested by the investigating officer to assist with downloading CCTV footage
from an address at the corner of St Bernard and St Blaise Streets in Montague
Village. On 7 August 2020 she accompanied the investigating officer to this
address and was given access to the DV R (digital video recorder) hard drive
that stored video footage from the CCTV camera. She searched the DVR for
the specific date and time when the incident occurred. The investigating officer
confirmed what was of interest to hi s investigation , and she exported the
relevant footage to a USB flash drive. The downloaded footage covered the
time period from 9:00 am to 11:00 am on that day. The shooting incident
occurred just after 9 :32 am. Back at her office, she registered the footage and
copied it to a DVD which was handed to the investigating officer . This was the
source of the footage ultimately shown in court.
[27] The significance of the downloaded portion commencing at 9 :00 am is as
follows. As we discuss below, Schoeman testified that around half an hour
before the incident occurred, he (while walking with the deceased) had seen a
silver grey Polo vehicle travelling along St Blaise Street in the direction of the

intersection where the incident would later occur. His observation of this vehicle
at that time was central to his ultimate identification of the Appellant as one of
the assailants. However, the footage presented does not show any such
vehicle in the street from 9 :00 am onwards until the incident occurs some 32
minutes later. It also does not show Scho eman and the deceased arriving on
foot at the intersection, although they must have done so . Given Schoeman’s
evidence as to the timing of the incident , it may be that he and the deceased
arrived shortly before 9:00 am , with the vehicle passing shortly before that.
Therefore, had Capt. Louw downloaded earlier footage, even for a few minutes
before 9:00 am, there might have been corroboration of the evidence that the
same vehicle had been near the scene earlier that morning. There was
however no explanation for why footage from before 9 :00 am was not
requested. W e assume that by the time the matter came to tr ial, the earlier
footage was no longer available from its DVR source.
Evidence of Schoeman
[28] Schoeman was 18 years old at the time of the incident.
[29] He testified that on th at Saturday morning, he was at his house in St Blaise
Crescent, Montague Village . The deceased, who was his friend, arrived and
asked him for R5 to buy a “ dagga bag” for them to smoke. Schoeman did not
have the money , but the two decided to go and see if they could get money
from people on the street.
[30] They then walked together along St Blaise Crescent towards the intersection
with St Blaise Street which runs perpendicular to it. They were moving in an

easterly direction. As they neared St Blaise Street, they saw a silver grey VW
Polo driving past on that street. It was travelling from their right to their left (i.e.
in a northerly direction) and passed in front of them.
[31] Schoeman said that he saw four people in the vehicle, being a driver and three
male passengers in the back seat. There was no passenger in the front seat.
The driver had a face mask on (the event occurred during the time of the Covid-
19 pandemic). None of the three persons in the back seat had masks on. He
identified them as the three accused before the court a quo.
[32] The nickname by which Schoeman knew Cedras was “ Puffy.” He testified that
Cedras was a member of the JFKs. He knew him because he (Cedras) lived in
Sea Winds, a suburb next to Hillview where he (Schoeman) had grown up, and
the two had played soccer together.
[33] He knew Solomons by his nickname of “Triller”. He also lived in Hillview and
was known as a drug dealer and someone looked up to by members of the
JFKs.
[34] He knew the Appellant merely as Shakoor. He was the uncle of his friend, the
deceased, and had lived in a house in Montague Village. Schoeman had not
met the Appellant, but the deceased had pointed him out to him.
[35] Schoeman testified that the vehicle just drove on , and that he and the
deceased did not take note of anything or expect anything to come from it. He
confirmed that he saw Puffy (Cedras) sitting behind the passenger seat (i.e.

closest to him as the car drove past) with a blue top on. He could not provide
any further clothing descriptions of the other passengers.
[36] Schoeman sa id that he and the deceased then went and sat on the corner
where the incident would later occur. They were asking people for a Rand or
two towards their “dagga bag” but had not been successful . He identified some
other people who were sitting on the corner on the other side of the road.
[37] After about half an hour or so , he saw the same silver grey vehicle driving
towards the intersection , travelling in the same direction as when he had first
seen it. This time, he s aid, there was a passenger in the front seat as well. He
also noticed was that everyone in the car had masks on. He said that
“something doesn’t feel right now about the situation but the car is coming for
the second time around with five people and they had masks on”.
[38] Schoeman said that when he saw the car coming, he stood up and walked
slowly towards it. The car stopped right next to him and the deceased. H e saw
guns being held low on the lap s of the three back passengers. (He later also
suggested that he had seen a longer gun on the lap of the passenger in the
front seat.)
[39] He heard the car doors open and realised that he had to get away. He
remembered hearing someone shouting “ hier is julle pappas ” but he did not
know the significance of those words. He started running in the direction from
which he had come earlier, i.e. down St Blaise Street towards the intersection
with St Blaise Crescent, while the deceased ran in another direction.

[40] The video footage records Schoeman sprinting away fr om the scene of the
shooting. He had started running even before the vehicle came to a complete
stop. He disappears from the footage about 4 second s after the shooting
commences.
[41] Schoeman testified that he heard several shots going off. As he was about to
round the corner into St Blaise Crescent, his shoulder hit the side wall and he
fell. He turned his head and looked back towards where he had come from . He
said that “all I saw was three people, three guys shooting on Achmat. I heard
over ten shots”.
[42] He was asked to confirm who the occupants of the vehicle on the second
occasion were. In response, he stated that it was the same three passengers
that he saw when they drove past him the first time , namely, the Appellant,
Cedras and Solomons. When asked whether he had seen who was shooting at
the deceased, he said that they were the same three people.
[43] Schoeman also testified that the assailants were still shooting at the deceased,
but that the one who had the b lue top on, wh om he knew to be Puffy, went to
the corner and shot in the other direction. He could not see who he was
shooting at because everyone who had been on that side of the corner was
already gone.
[44] He viewed all of this while lying on the ground wh ere he had fallen. His uncle
came around the corner to pick him up from where he was lying down because
he did not want to stand up. His uncle took him home and that was all he saw

at the time . A few minutes later, he returned to the scene and saw the
deceased lying dead on the ground.
[45] In cross -examination on behalf of the Appellant, it was not denied that the
Appellant was known to Schoeman as a person who had lived in the area. The
focus of the questioning was however on Schoeman’s opportunity to identify
the Appellant as one of the people who shot the deceased. In this regard:
(a) In relation to his original view of the VW Polo, he testified that he was
approximately 4 metres away from the vehicle as it passed in front of
him. At the time, he and the deceased were just walking and talking. He
confirmed that the three passengers who m he saw in the back seat did
not have masks on, but he noticed the blue top of the person sitting
behind the front passenger seat. He was also asked whether he noticed
the colour of the driver’s eyes. He said yes. However, he immediately
after that said that he had not noticed the driver’s eye colour at that t ime.
The significance of this is that, in his later statement to the investigating
officer, Schoeman had stated that when he saw the driver of the VW
Polo, he noticed that he had green eyes.
(b) He said that when the vehicle passed him, it was driving less tha n 60
kilometres per hour. Nonetheless, he said he was able to see who was in
the back, even though his attention was not on the back seat exclusively.
(c) As regards what happened when the vehicle returned, he testified that
as the vehi cle drove up, he was squ atting on the pavement, and the
deceased was standing next to him. He repeated that when he saw the

car coming back a second time, “ we” (presumably meaning he and the
deceased) noticed something different about the car , because of the
extra passenger and t hat everyone had masks on. He said he stood up
and watch the car come towards him, and that when it stopped, he
started walking slowly away. When the doors opened , he and the
deceased started running in different directions.
(d) In response to the question as to how far he had run (i.e. before he fell),
he initially estimated 12 metres. It was just as he wanted to take the turn
into his street (where he could hide behind a wall) that he stopped
because his right arm hit the wall. The assailants were busy shooting at
the time.
(e) As regards his written statement regarding the green eyes of the driver,
Schoeman testified that he had noticed this when the vehicle stopped ,
and not on the first occasion when the vehicle drove by.
(f) In his written statement, he had said that when he had looked back after
falling, he saw the deceased lying on the ground, with all three
passengers that had been in the back seat now out of the car. He said
that he could “ still” recognise them because Puffy was “still” wearing a
blue hoodie with black pants, the Appellant was wearing a black jacket
and Triller was wearing light blue jeans. In his oral evidence, he however
did not mention any other clothing worn by the assailant s. His statement
also recorded that he had stood up and walked up towards his house,

whereas he had testified before the court that his uncle had had to pick
him up.
(g) When his cross-examination recommenced after the admission and
playing of the video footage, Schoeman confirmed that when he had
initially seen the VW Polo it was dirty, but that he could see through the
windows. It was put to him that the sun would have been shining directly
into his eyes at that early hour, as he was looking in an easterly
direction. He denied this, saying that the sun was already high in the sky.
He also stated that the driver had a “ number 1 haircut ”, but that at that
time he did not notice what colour his eyes were. Later he agreed that
the vehicle’s windows were tinted , but insisted that he could see the
people inside through the windows.
(h) As regards his running a way from the shooting incident, Schoeman
agreed that h e had fallen on his stomach facing away from where the
shooting was happening. He said that “it took me less than five seconds
to turn my head around to look what was going on behind me ”. He did
that as soon as possible “ because I did not know if somebody was
coming behind me”.
(i) There was further discussion as to how far he had run before he fell.
Based upon Google Maps, it appeared that the distance from the corner
where they had been sitting to the entrance to St Blaise Crescent was
approximately 50 metres . Schoeman testified that he had, the day

before, gone to measure the distance using a measuring wheel and had
found it to be 35 metres.
(j) He testified that when he turned and saw the persons sho oting, they
were wearing masks , and that he saw their clothes (apart from the blue
hoodie) at that point for the first time. In other words, he did not link the
persons shooting to those he had seen on the first occasion by reference
to their clothes, save for Cedras. He agreed that when he saw the blue
hoodie he knew who it belonged to, and that is why he could identify the
person wearing that item of clothing. It was put to him that he had just
assumed that the three people outside the vehicle were the same people
that he had seen in the first occasion. He denied that this was just an
assumption.
(k) Schoeman however did not testify as to any other objective points of
reference which enabled him to positively id entify the Appellant on the
scene, such as physical characteristics, behaviour or clothing.
(l) He admitted that he was a member of the Flakkas , as the deceased had
been. He however said that he had only joined the gang after the
incident.
(m) In cross -examination by counsel for Cedras, Schoeman agreed that
when the vehicle arrived for the second time, he could not see the faces
of any of the accused as they were wearing masks, but that he had
identified them the first time he had seen them. He also said that with
masks or without masks, he knew who they were.

(n) Finally, c ounsel for Solomons put to Schoeman that he had not seen
what the vehicle had done in the half hour between the two sightings ;
and that he could not say that it was the same people in the vehicle
when it returned , because they were all wearing masks at the time. His
response was “you can’t say but I can say because I know who it is”.
Evidence of Wilson
[46] Wilson was 20 years old at the time of the incident , in which he also was shot
and seriously wounded. He was sitting, together with his two -year-old son, on
the corner of St Blaise Street and St Bernard Crescent, directly opposite from
the corner where Schoeman and the deceased had been situated just before
the shooting. He is initially in full view in the video footage.
[47] Wilson confirmed that at the time he was a member of the Flakkas. He testified
that the main area of operation of the Flakkas is Montague Village (where the
incident occurred) and Hillview.
[48] He testified that he was sitting on the corner when a grey vehicle approached. It
stopped in front of the deceased and Schoeman. He said that Puffy got out of
the car and there was a shot. It was when he heard the shot that he jumped up
and ran away. Then he turned back because he realised that he had left his
child behind. He saw Puffy coming and shooting towards him and he turned
around again. Then he felt an impact and his left leg gave in. After he had
fallen, his son crawled into a yard to safety.

[49] He confirmed that he had known Puffy for a long time as a gangster belonging
to the JFKs. (In cross-examination he said that he identified him that day by his
body structure and “ fris” build. ) He saw him getting out of the car on the far
side. He saw the deceased running behind the car, with Puffy shooting at him.
He did not witness anyone else shooting. He however said that after he fell, he
saw the Appellant running back to the car at about the same time as he saw his
son crawling to safety. He said he knew the Appellant from childhood.
[50] Wilson also testified that he saw Schoeman running down St. Blaise Avenue.
[51] Wilson was cross-examined on three statements that he had made to the
police. The first was given just after he came out of surgery on the day of the
incident, when he was in great pain, and it is generally accepted that it is not a
reliable or helpful statement. However, in a later statement, he said that after he
had been shot, he looked to see where his son was, and he saw his son
running into the yard. Puffy was still shooting in his direction and he could not
see “wie die ander twee skieters was nie ”. He could however see that one was
slightly built and dressed in a black jack et and black trousers. He did not name
the Appellant as one of the gunmen: his statement reads “die drie skieters was
ook geklee in swart kleredrag, maar ek kon nie sê wie hulle was nie”.
[52] He confirmed that the three people depicted on the video were weari ng
headgear and masks. He also agreed that he must have run approximately 50
to 60 metres before turning to look for his son and being shot.
[53] He confirmed that while he was lying on his back and looking back toward the
incident, already having been shot, his focus was on his son who was just in

front of the shooters. He denied that he was unable to see the Appellant
despite his attention being on his son. He was adamant that he saw the
Appellant “and I know him since he was young”.
[54] It was put to him that he had not only failed to name the Appellant in his
statement but that he had expressly said that he did not know who the other
shooters were. His response was that when he made the statement, he was
only asked who the shooters were, and not who else he had seen at the scene.
The implication was that he had in fact identified the Appellant as the person
getting into the vehicle, but had not thought he was required to name him as he
did not know him as a gunman.
[55] Wilson had also made a third statement to the investigating officer in which he
stated that the deceased had begun running on the other side of the road, that
he had seen Puffy approximately two or three steps away shooting the
deceased three times, and that he had seen the deceased fall on the ground.
[56] This version of events is however not readily reconciled with what the video
footage reveals. Wilson is sitting on the kerb when the vehicle enters the frame.
He is focused on his son who has just walked across the intersection towards
him; thus, he is not looking towards the vehicle. As the deceased emerges from
behind the car with the shooter in a blue hoodie in pursuit, Wilson appears to
recoil from hearing a gunshot. He turns to look momentarily back towards the
shooter, while already bolting away. He then turns his head forward and sprints
away from the scene, leaving the frame at 09:33:00. The deceased may indeed
have started to fall by the time Wilson turn ed his head, and it is not impossible

that he was in Wilson’s frame of vision in that brief moment, but Wilson certainly
could not have seen the deceased actually fall on the ground , as the footage
shows that he was already looking and running in the other direction by that
time.
[57] It is also apparent from the video footage that Wilson could not have seen
Schoeman running down St Blaise Street. By the time he turned to look briefly
towards the source of the gunshots, Schoeman was already well out of
Wilson’s potential field of vision.
[58] Finally, given how Wilson’s attention was on his son until he first recoiled from
an apparent gunshot, it seems unlikely that he could have seen the blue -
hooded assailant getting out of the far side of the vehicle, as he had testified.
[59] The video footage does however corroborate Wilson’s evidence in the sense
that the assailant in the blue hoodie is seen walking back towards the vehicle,
then look ing down St Bernard Crescent (in the direction in which Wilson had
run) and firing shots in that direction, before running back to the car and getting
in on the far side. The other two assailants run back to the car at the same
time. One climbs into the rear door on the (near) driver’s side and the other on
the far side. The video also shows Wilson’s young son, abandoned when the
shooting began, running in the same direction as Wil son had run, and then
falling down and crawling into an entrance to a neighbouring property.

Evidence of Roegshana
[60] Roegshana, the mother of the deceased , was not present at the scene.
However, she testified that she was shown a copy of the video footage after the
incident. This was sent to her mother’s mobile phone.
[61] When she looked at the footage, she said she could not believe what she saw :
her brother (i.e. the Appellant) and Triller shooting her son.
[62] In response to the question as to how she knew that it was her brother on the
footage, she said “he is my brother. I know him all the years ”. She also testified
that she had given him the jacket he was wearing. Having been asked whether
there was anything that stood out in the video that helped her to know that this
was the Appellant, she simply said “I just know it is my brother”.
[63] Later she repeated that she knew it was the Appellant and Triller, that she
could see quickly that it was them, and that:
“I know their appearance. I know how – ek ken hulle lyftaal. Ek het gebly me t hulle.
Ek ken, daar is nie ‘n manier hoe ek nie vir hulle sal uitken nie.”
[64] In cross-examination, it was put to her that the cell phone screen on which she
saw the footage was too small for her to identify clearly the facial features and
the bodily features of the Appellant. She denied this. Again she simply said “ I
have nothing to say, but I know my brother”.
[65] In her statement to the police, Roegshana had said that the Appellant had JFK
tattoos on his back. It was put to her that this was wrong , which she accepted.

She explained that she had been told of the tattoo, rather than hav ing personal
knowledge of it.
[66] Roegshana gave further evidence as regards how she identified Solomons /
Triller ( particularly from his body language and gait) . However, she did not
provide any equivalent details in relation to recognising the Appellant.
Evidence of Rihanna
[67] Rihanna is the aunt of the deceased. She was at home during the incident, a
few minutes’ walk away from where it happened. She heard gunshots . Almost
immediately, people came running to her to say that the deceased had been
shot. She heard that there was a video of the incident which she and
Roegshana obtained and watched the next day.
[68] Rihanna testified that when they watched the video footage, she identified her
brother Shakoor (i.e. the Appellant) on the video. In response to the question as
to how she knew that it was the Appellant that she saw, she said the following:
“My broer, ek ken my broer; ek en my broer is baie close. Ek het vir h om, toe hy sy
hare geknip is, sy kleredrag en hoe hy loop en beweeg, daai is my broer.”
[69] She said she also recognised Triller by the way he walked and his bent back.
[70] In cross -examination, Rihanna was asked when she had recognised the
Appellant on the video footage. She said that she had been together with
Roegshana when they got the video footage for the first time. Although she
accepted that she had watched the video footage together with Roegshan a
while they were driving, she said that the first time she identified that it was the

Appellant on the video was when she saw it on her own phone. Her words were
as follows:
“Toe ek die video footage op my eie foon het en ek het oor en oor na die video
footage gekyk.”
[71] Thus, on her own evidence , she did not immediately recognise the Appellant
when first watching the video, but only did so after watching the video over and
over on her own.
Evidence of the State: the Appellant’s alibi
[72] As stated, the Appellant had indicated that he would rely on an alibi, namely
that he was present at a house in Melkbosstrand with his parents and some of
their friends at the time the incident occurred.
Evidence of Dzikici
[73] The State led the evidence of Mr Geamatswa Dzikici (“Dzikici”), who testified by
way of video link from Lusaka, Zambia where he was studying at the time.
[74] Dzikici had been the caretaker of the Melkbosstrand house . The witness
testified that he lived in this house for about four years, from 2019 to 2022. He
further testified that the house was occupied between 27 March and 20 July
2020 by three men whose names he recalled as Bule, Nazeer and Zaheer , with
a woman and children. This included the period of 29 and 30 May 2020 when
the Appellant said he was there. He had been shown a picture of the Appellant
and said that he did not know the person in the picture and never seen him at
the premises while he was working there. He stated that after those occupants

had left, one Javid and his wife Nabeelah had been there for a day, and after
that a man called Irefan had lived there until he (Dzikici) left. Jav id and
Nabeelah had come to visit from time to time when Irefan was staying there.
[75] In cross -examination, the Appellant’s alib i was put to Dzikici who denied the
material parts thereof. It was also put to him that Irefan, who was apparently a
business partner of the owner of the house, would come and testify that the
people that he spoke of were not there during the time period t hat he
mentioned. He disputed this.
Evidence of Sgt van Reenen
[76] The State led the evidence of Sgt van Reenen, the investigating officer from the
Hawks investigating unit of the SAPS . He confirmed that he had been tasked
with investigating the murder of the deceased after complaints from the
deceased’s family that the investigation through the Steenberg SAPS had
stalled. Following receipt of statements implicating the Appellant, he had
arrested him on 9 October 2020.
[77] Following the arrest, van Reenen was told by the Appellant’s attorneys of the
Appellant’s alibi, which he had investigated. He was presented with an affidavit
from Nabeelah Kola (“Kola”) to the effect that the Appellant was at the
Melkbosstrand house on the day of the incident. After various attempts to
speak to Kola, he had been able to do so telephonically. She had reiterated that
they had been in the house in May, contrary to what Mr Dzikici had said. Van
Reenen did not accept the veracity of her alibi evidence, and told her that it was

an offence to lie under oath, which had made her angry. They had not spoken
again after this. That concluded the State’s case.
Evidence for the Appellant
[78] The Appellant and his co-accused testified before the court a quo. However, for
the purposes of this judgment, we will not summarise the evidence of the other
accused. Instead, we will confine ourselves to the Appellant's defence
evidence, as the party who impugns the decision of the court a quo . The
Appellant testified and called two witnesses.
The evidence of the Appellant
[79] The Appellant testified in some detail as to his whereabouts on the weekend of
30 to 31 May 2020. He stated that on the evening of 30 May, after drinking
alcohol at his home with some friends, he had been taken to the Melkbosstrand
house together with some friends. He was inebriated when he arrived. There he
found his parents and their friends, Jav id and Kola. He had contacted Kola to
let her know that he was on his way and she had let them in . The driver and
two other persons stayed in the van. His friends stayed for more drinks before
leaving in the van. He said that he fell asleep and then woke up again around
23h00, and went to smoke marijuana on the beach . After that he continued to
socialise with the others (his father, Kola and Javid) until the early hours of the
morning when they went to bed . He could not sleep after that. T he next
morning, he went up to his parent’s room and was speaking to them . Kola was
also there. One of them asked him to make coffee for them . H e went
downstairs to the kitchen for that purpose. While he was there, he received a

call (from whom he could not recall) telling him that a shooting had occurred
and that the deceased had been killed. He went directly to his father to tell him
the news. His mother said that he should go and fetch his sisters from
Kirstenhof, which he did , borrowing Kola’s vehicle . He also fetched his
girlfriend, Chelsea, and their child . All of them came back to the house,
although Chelsea left soon afterwards. There was further “partying” during the
day and more alcohol arrived with a driver. At one point he went to the Melkbos
police station to try to help a friend of Javid who had been caught with alcohol
in his car , but then went back to the house . The Appellant left the
Melkbosstrand house the next d ay with the others . They had lunch at Kola’s
house in Blouberg before going home.
The evidence of Zaheer Smith
[80] The Appellant led the evidence of Mr Zaheer Smith who testified that he had
been staying at the Melbosstrand house with two of his friends, his sister and
her two children in the period up to April 2020, when they moved out. The
others were Nadeer Matah an d Rafeek Bule. He denied that they were staying
in the house on 29 and 30 May 2020.
[81] Smith did not deviate from his evidence in cross-examination.
The evidence of Kola
[82] Kola testified that she was at the house in Melkbos from the afternoon of 29
May 2020 until Sunday 31 May 2020. She confirmed that the Appellant had
arrived on the Friday evening when she and his parents were already there .

She also testified that the next morning she had seen him in his parents’
bedroom where he was playing on a treadmill. His mother had asked him to
make coffee for them. He had gone downstairs and when he returned he told
his farther the news about the shooting of the deceased. Everyone was
shocked. Kola lent the Appellant her vehicle to go and fetch his sisters, which
he did. After he returned they stayed in the house for the rest of the day and left
the next day, going to her house for lunch.
[83] Ms Kola’s evidence as to what exactly happened in the house over that
weekend differs in certain respects from the Appellant’s own rendition of
events. We address this further below.
The judgment of the court a quo
[84] We turn now to setting out the material aspects of the decis ion of the court a
quo in relation to the conviction of the Appellant.
[85] As already stated, the three accused were acquitted o n charges of attempted
murder and a contravention of POCA. We do not address these aspects here.
[86] Because only the Appellant has appealed, we need not address the convictions
of Cedras and Solomons. There is of course an overlap in relation to the events
that happened at the crime scene, but we refrain from analysing the evidence
(including alibi evidence) as it relates to them specifically.
[87] The court a quo stated at the outset that the main issue for determination was
whether the accused “ have been positively identified as the perpetrators of the
crimes which they have been charged with”.

[88] Having addressed the issue of the State’s onus of proof and case law regarding
identification evidence, the court a quo highlighted aspects of the factual
evidence. In particular:
(a) It recorded Schoeman’s evidence of his earlier sighting of a vehicle in
which the three accused were in the back seat; that the same vehicle
had approached them approximately 30 minutes later, with an additional
passenger sitting in the front passenger seat and all the occupants
masked; that as the shooting began, he fled the scene and fell as he was
trying to negotiate a corner; that from that position he looked back to see
the three accused shooting at the deceased; that he saw Cedras moving
to the corner and continuing to shoot ; that Schoeman knew all three of
the accused; and the basis for this knowledge of them.
(b) It recorded Wilson’s evidence that Cedras had emerged from the vehicle
and started shooting ; that he (Wilson) ran down the road, turned to look
for his son and then saw Cedras shooting at him; that h e felt an impact
and fell to the ground; and that he “only noticed Shakoor on the scene as
he was running back to the vehicle ”; that he had not named the
Appellant in his statement as one of the shooters, but this was because
he was asked who was shooting , and not who m he had seen on the
scene.
(c) In considering whether the identity of the accused had been established,
having been placed at the scene by two eyewitnesses and two
secondary witnesses (i.e. Roegshana and Rihanna) , the co urt a quo

concluded that there is no doubt on the evidence that the accused were
all well known to the witnesses.
(d) The question arose as to the circumstances in which they made the
identification of the accused. As regards t he evidence of Schoeman, it
held that he had two opportunities to make an identification, the first
being the time when the vehicle passed him and when he said he could
see into the vehicle and recognise the accused (including the Appellant).
The court held that “the criticism that [Schoeman] could not see into the
vehicle because the vehicle was dirty and its windows tinted is
unfounded.”
(e) The second identification opportunity was when the vehicle on the
second occasion stopped close to him and the decease d. The court
stated that “ although they were wearing masks at this stage, he
[Schoeman] was still able to identify them because these were people
that he knew very well. His description of the assailants was not based
solely on their faces, but their overa ll appearances. The same degree of
reliability can be found in the evidence of Wilson, who also knows the
accused very well”.
(f) The court then pointed out that it was necessary, in weighing up the
identification evidence, to have regard to the evidence for and on behalf
of the three accused, to determine whether it could accept the reliability
of the identification of the witnesses.

(g) It then turned to the alibi evidence. It recorded that the evidence of Kola,
when looked at in isolation, appears to have been without any blemish,
but when contrasted with the evidence of the Appellant himself, there
were serious and material discrepancies between the two.
(h) In relation to Kola’s evidence, the Court stated that the investigating
officer had testified that he had tried several times to contact her to
discuss the alibi issues. It was not clear why she did not make herself
available to the police at the earliest opportunity when the case was
being invest igated. The court also held that it was “ interesting and
remarkable that only Kola came to testify. Shakoor’s parents never
testified, never provided any corroborative evidence that Shakoor was
with them at No. 1[…] F[...] Road, Melkbosstrand”.
(i) Returning to the shooting event, the court dismissed the concern that the
video footage was not of sufficient clarity for the identification of the
accused beyond a reasonable doubt. It pointed out that the primary
sources were Wilson and Schoeman, being eyewitnesses who were on
the scene. It reiterated that Schoeman had two opportunities to identify
the accused, once when they drove past him and the second when they
jumped out of the vehicle and start ed shooting. He had ample
opportunity to make a positive identification, given that he was identifying
people that were known to him.

(j) It concluded that after observing the two witnesses, “the primary
identification of Shakoor on which this court can safely rely is that of
Schoeman and Wilson,” and in particular held that:
“Schoeman at one stage appeared to be hostile to counsel for Shakoor, but in
my view this was as a result of the acidic manner in which he was cross -
examined. On close scrutiny he has been a reliable witness upon wh om the
court can make a finding. Wilson was also a reliable witness.”
(k) Having dealt with the alibi evidence of the other accused, the court
concluded as follows:
“In the circumstances I am satisfied that the evidence of the three alibi
witnesses were false and therefore can be rejected as false.
The rejection of these alibi witnesses leaves the evidence of the identifying
witnesses, namely Wilson and Schoeman who were positive in their
identification of the accused intact. In the circumstances, the conclusion that I
have arrived at is that the state has proved beyond a reasonable doubt the
following charges: …”
[89] On that basis, the Appellant and the other two accused were convicted on the
charges of murder and illegal possession of a firearm and ammunition.
Legal principles
[90] While it is obviously desirable that incidents of wanton violence such as that
which led to the death of the deceased be thoroughly investigated and the
perpetrators brought to justice, a conviction can only follow if the State proves
the guilt of the accused by discharging the substantial onus which lies upon it,
namely to establish such guilt beyond a reasonable doubt.

[91] This standard was described in Monageng v S [2009] 1 All SA 237 (SCA) in
paragraph 14 as:
“evidence with such a high degree of probability that the ordinary reasonable man,
after mature consideration, comes to the conclusion that there exists no reasonable
doubt that the accused has committed the crime charged ( R v Mlambo 1957 (4) SA
727 (A) at 738A; S v Phallo 1999 (2) SACR 558 (SCA) paras 11 and 12). An
accused’s evidence therefore can be rejected on the basis of probabilities only if
found to be so improbable that it cannot reasona bly be true ( S v Shackell 2001 (2)
SACR 185 (SCA) para 30; S v V 2000 (1) SACR 453 (SCA) para 3."
[92] The relevant dictum in S v Shackell (also reported at 2001 (4) SA 1 (SCA)) in
paragraph 30 is as follows:
“It is a trite principle that in criminal proceeding s the prosecution must prove its case
beyond reasonable doubt and that a mere preponderance of probabilities is not
enough. Equally trite is the observation that, in view of this standard of proof in a
criminal case, a court does not have to be convinced that every detail of an accused’s
version is true. If the accused’s version is reasonably possibly true in substance, the
court must decide the matter on the acceptance of that version. Of course, it is
permissible to test the accused’s version against the inherent probabilities. But it
cannot be rejected merely because it is improbable; it can only be rejected on the
basis of inherent probabilities if it can be said to be so improbable that it cannot
reasonably possibly be true.”
[93] In Nkomo v S [2024] ZASCA 61 in paragraph 15, the following was stated:
“The fundamental principle of our law that cannot be overstated is the presumption of
innocence for the accused until proven guilty beyond reasonable doubt. If there
remains any reasonable doubt about the accused’s guilt after considering the
evidence, the accused must be acquitted. Reasonable doubt is based on reason,

evidence, the accused must be acquitted. Reasonable doubt is based on reason,
logic, and a common sense evaluation of the evidence presented, not on prejudices
or emotions. In my view, what is needed is a degree of cer tainty that falls between
absolute certainty and probable guilt.”

[94] In determining whether the onus has been discharged, the court does not
approach the questions of whether guilt has been proved beyond a reasonable
doubt and whether the accused’s version is reasonably possibly true in isolation
from one another. They are part of the same test, as stated in S v Sithole 1999
(1) SACR 585 (W) at 590g-i:
“There is only one test in a criminal case, and that is whether the evidence
establishes the guilt of the accused beyond reasonable doubt. The corollary is that an
accused is entitled to be acquitted if there is a reasonable possibility that an innocent
explanation which he has proffered might be true. These are not two independent
tests, but rather the statement of one test, viewed from two perspectives. In order to
convict, there must be no reasonable doubt that the evidence implicating the accused
is true, which can only be so if there is at the same time no reasonable possibility that
the evidence exculpating him is not true. The two conclusions go hand in hand, each
one being the corollary of the other. Thus in order for there to be a reasonable
possibility that an innocent explanation which has been proffered by the accused
might be true, there must at the same time be a reasonable possibility that the
evidence which implicates him might be false or mistaken.”
[95] An accused who raises an alibi defence does not attract an onus to prove that
alibi. An alibi essentially constitutes a denial of the State’s case on the issue of
identification or a denial of its evidence as to the accused’s involvement at the
crime scene, and if it is reasonably possibly true, it must be accepted (Carolus v
S [2025] ZAWCHC 362 in paragraphs 8 and 9; see also S v Gcam-Gcam 2015
(2) SACR 501 (SCA) in paragraph 61). If evidence of an alibi cannot be
rejected as false per se, this result cannot be reversed because the State has
put up strong evidence linking the accused to the offences (S v Liebenberg
2005 (1) SACR 335 (SCA) at 358h-i).

[96] Evidence identifying a person as the perpetrator of a crime must necessarily be
approached with caution . The well-known dictum of Holmes J in S v Mthethwa
1972 (3) SA 776 (A) at 768A -D sets out the various factors relevant to a
positive identification.
“Because of the fallibility of human observation, evidence of identification is
approached by the Courts with some caution. It is not enough for the identifying
witness to be honest : the reliability of his observation must also be tested. This
depends on various factors, such as lighting, visibility and eyesight; the proximity of the
witness; his opportunity for observation, both as to time and situation ; the extent of his
prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility,
the accused’s face, voice, build, gait and dress ; the result of identification parade s, if
any; and, of course , the evidence by or on behalf of the accused. The list is not
exhaustive. These factors, such of them as are applicable in a particular case , are not
individually decisive , but must be weighed one against the other , in the light of the
totality of the evid ence, and the probabilities ; ; see cases such as R. v
Masemang, 1950 (2) SA 488 (AD); R. v Dladla and Others, 1962 (1) SA 307 (AD) at p.
310C; S. v Mehlape, 1963 (2) SA 29 (AD).”
[97] One of the factors referred to in the above dictum is the extent of prior
knowledge of the accused. The aspects to be taken into consideration when an
eyewitness is identifying a person known to him or her may differ from those
applicable where the witness is identifying a person previously unknown.
[98] In R v Dl adla 1962 (1) SA 307 (A) at 310B-E, Holmes JA endorsed the
following dictum of the court a quo in that matter:
“One of the factors which in our view is of the greatest importance in a case of
identification, is the witness' previous knowledge of the person sought to be
identified. If the witness knows the person well or has seen him frequently before, the

identified. If the witness knows the person well or has seen him frequently before, the
probability that his identification will be accurate is substantially increased. Even in
the case when a witness has some difficulty in the witness -box in giving an accurate

description of the facial characteristics and clothes of the person whom he has
identified, the very fact that he knows him provides him with a picture of the person in
the round which is a summary of all his observations of the person's physiognomy,
physique and gait, and this fact will greatly heighten the probability of an accurate
identification . . .. In a case where the witness has known the person previously,
questions of identification marks, of facial characteristics, and of clothing are in our
view of much less importance than in cases where there was no previous
acquaintance with the person sought to be identified. What is important is to test the
degree of previous knowledge and the opportunity for a correct identification, having
regard to the circumstances in which it was made.' (our underlining)
[99] The distinction between the processes of observation and recognition was
described as follows in S v Abdullah [2022] ZASCA 33 in paragraph 13:
“The appellant contends that Mr. Car else did not have the opportunity to properly
observe and identify the gunmen. Much was made of the fact that Mr Car else only had
between 2 -4 seconds in which to observe the appellant. Had the appellant being a
stranger to him, this could have been a significa nt factor. However, when seeing a
person who is known to you, it is not a process of observation that takes place but
rather one of recognition. This is a different cognitive process which plays a vital role in
our everyday social interaction. The time nec essary to recognize a known face as
opposed to identifying a person for the first time, is very different. It has been
recognised by our courts that w here a witness knows the person sought to be
identified, or has seen him frequently, the identification is likely to be accurate.”
[100] In S v Sithole (supra) at 591e-g, the court pointed out that where a conviction
depends on identification alone, something more will be required than the mere

depends on identification alone, something more will be required than the mere
assertion that he recognises the offender. This could be the fact that the person
is known to the witness, or some other distinctive feature. A mere assertion of a
correct identification will usually not be enough.

[101] In considering an appeal based on fact, it must be remembered that the court a
quo had an opportunity to observe the witnesses and their demeanour in
person and to form a view as to their credibility and reliability.
[102] In S v Francis 1991 (1) SACR 198 (A) at 204c-e, the SCA stated as follows:
“in order to succeed on appeal [the accused] must … convince us on a dequate
grounds that the trial Court was wrong in accepting [the witness’s] evidence – a
reasonable doubt will not suffice to justify interference with its findings. … Bearing in
mind the advantage which a trial Court has of seeing, hearing and appraising a
witness, it is only in exceptional cases that this Court will be entitled to interfere with a
trial Court’s evaluation of oral testimony.”
[103] This is consistent with long-standing principles relevant to appeals on questions
of fact as set out as follows in the judgment of Davis AJA in R v Dhlumayo 1948
(2) SA 677 (A) at 705-706:
“1. An appellant is entitled as of right to a rehearing, but with the limitations
imposed by these principles; this right is a matter of law and must not be made
illusory.
2. Those principles are in the main matters of common sense, flexible and such
as not to hamper the appellate court in doing justice in the particular case
before it.
3. The trial Judge has advantages - which the appellate court cannot have - in
seeing and hearing the wit nesses and in being steeped in the atmosphere of
the trial. Not only has he had the opportunity of observing their demeanour, but
also their appearance and whole personality. This should never be overlooked.
4. Consequently the appellate court is very reluctant to upset the findings of the
trial Judge.
5. The mere fact that the trial Judge has not commented on the demeanour of the
witnesses can hardly ever place the appeal court in as good a position as he
was.
6. Even in drawing inferences the trial Judge may be in a better position than the

was.
6. Even in drawing inferences the trial Judge may be in a better position than the
appellate court, in that he may be more able to estimate what is probable or

improbable in relation to the particular people whom he has observed at the
trial.
7. Sometimes, however, the appellat e court may be in as good a position as the
trial Judge to draw inferences, where they are either drawn from admitted facts
or from the facts as found by him.
8. Where there has been no misdirection on fact by the trial Judge, the
presumption is that his conc lusion is correct; the appellate court will only
reverse it where it is convinced that it is wrong.
9. In such a case, if the appellate court is merely left in doubt as to the
correctness of the conclusion, then it will uphold it.
10. There may be a misdirection on fact by the trial Judge where the reasons are
either on their face unsatisfactory or where the record shows them to be such;
there may be such a misdirection also where, though the reasons as far as they
go are satisfactory, he is shown to have overlooked other facts or probabilities.
11. The appellate court is then at large to disregard his findings on fact, even
though based on credibility, in whole or in part according to the nature of the
misdirection and the circumstances of the particular case, and so come to its
own conclusion on the matter.
12. An appellate court should not seek anxiously to discover reasons adverse to
the conclusions of the trial Judge. No judgment can ever be perfect and all -
embracing, and it does not necessarily follow that, becaus e something has not
been mentioned, therefore it has not been considered.”
[104] Consistent with this dictum is what was said by the Constitutional Court in
Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC) in
paragraph 45:
“It is undesirable for this court to second guess the well -reasoned findings of the trial
court. Only under certain circumstances may an appellate court interfere with factual
findings of a trial court. What constitutes those circumstances are demonstrable and
material misdirection and a finding that is clearly wrong (S v Hadebe and Others 1998

material misdirection and a finding that is clearly wrong (S v Hadebe and Others 1998
(1) SACR 422 (SCA) at 426 …). Otherwise trial courts are best placed to make such
findings.”

[105] This however does not mean that an appeal court should approach the factual
findings of the trial court with kid gloves. The appeal court must closely
scrutinise the evidence and the reasoning process o f the court a quo in
deciding whether circumstances are present warranting deference to , or a
departure from, those findings.
[106] Against these legal principles, we turn to address the evidence on which the
Appellant was convicted.
Analysis: the eyewitness evidence
[107] As stated, the court a quo accepted the reliability of the eyewitness evidence of
Schoeman and Wilson placing the Appellant on the scene as a participant in
the attack. Although it referred to the secondary identification of the Appellant
by Roegshana and Rihanna from watching the video footage, it did not , in fact,
rely on that identification : it held that “ the primary identification of Shakoor on
which this Court can safely rely is that of Schoeman and Wilson”.
[108] There was no dispute that the Appellant was previously known to both
Schoeman and Wilson. The key question is however whether their identification
of him as an active perpetrator at the scene of the crime was sufficiently reliable
to justify the conviction.
[109] Even though different considerations come into play when one is dealing with
the recognition of a person known to one , this does not mean that the
circumstances in which the identification occurred are to be less thoroughly
scrutinised. As stated in the underlined dictum from Dladla cited above, what

remains important is “the opportunity for a correct identification having regard to
the circumstances in which it was made.”
The evidence of Schoeman
[110] The court a quo held that Schoeman had two opportunities to make an
identification, the first being when he saw the vehicle before the incident with its
unmasked occupants (including the Appellant), and the second being when the
vehicle stopped close to him and the assailants jumped out. The learned Judge
stated that “ although they were wearing masks at this stage, he [Schoeman]
was still able to identify them because the se were people he knew very well.
His description of the assailants was not based solely on their faces, but their
overall appearances.”
[111] With respect, the approach of the court a quo is open to material criticism.
[112] In the first instance, even if one accepts the evidence that the Appellant was
identified to have been in the back seat of the vehicle when it drove past
Schoeman earlier that morning, despite the fact that the vehicle was dirty , the
windows were tinted and the sun would clearly have been low in the eastern
sky directly above the vehicle, this does not mean that he was necessarily still a
passenger in the vehicle when it returned more than half an hour later. On
Schoeman’s own version, there was now a fifth person in the vehicle , and all
the occupants were now masked. Schoeman had obviously not had eyes on
the vehicle in the meantime. It must have stopped somewhere to take on
another passenger. He could not have known whether anyone had got out . In

the light of those facts, it is not safe to assume that the Appellant was one of
the persons still in the vehicle when it returned.
[113] Second, the court a quo reasoned that Schoeman independently recognised
the three occupants (including the Appellant) a second time when the ve hicle
came back. Although after relating his version , he confirmed that the three
people he had seen out of the vehicle and doing the shooting were the three
passengers, it is not clear from his evidence that he positively identif ied the
Appellant in the v ehicle when it came towards him on the second occasion. He
said that he saw guns on the laps of the persons in the back seat; he saw the
longer gun on the lap of the person on the front seat; he also said that he saw
the green eyes of the driver ; but he did not say that he independently
recognised the Appellant behind his mask as he sa t in the seat . On the
contrary, he accepted that he had not seen the occupants’ faces at that time.
Schoeman also did not at any stage describe the Appellant b y his overall
appearance (as opposed to his face), despite saying that he knew him whether
or not he had a mask on.
[114] Third, the video footage suggests that Schoeman would have had almost no
time to identify the occupants of the vehicle as it drove up the second time. The
footage shows him sprinting away even before the vehicle comes to a halt. It is
highly unlikely that he had a clear and adequate opportunity to carry out an
identification of the three masked passengers before running away.
[115] Fourth, in his police statement , Schoeman did not say that he identified the
assailants inside the vehicle on the second occasion. He said that he saw Puffy

emerging from the vehicle with a gun and that he ran away. He did not say that
he saw the others jumping out of th e vehicle, and the footage would seem to
confirm that this is unlikely as he is already running away when the other two
assailants come into view.
[116] On the contrary, Schoeman’s evidence of having identified the gunmen on the
second occasion appears to arise from his observation after he fell at the
corner and looked back towards the scene.
[117] The court a quo did not in any way analyse the circumstances of th is
observation opportunity. Had it done so, it would in ou r view have been obliged
to have regard to the following factors:
(a) The extremely short duration of the incident (19 seconds from start to
finish).
(b) The even shorter duration of the opportunity for Schoeman to identify the
Appellant. He had sp rinted between 35 and 50 metres away from the
scene before falling and looking back. This would probably have taken
up the least half of the active shooting period , leaving him with a very
short window to observe a complex and chaotic scene.
(c) The distance at which Schoeman was viewing the scene (35 to 50
metres away).
(d) The stressful conditions under which the observation was made.
Schoeman was lying on the ground, having run for his life from an armed

gunman or gunmen, having fallen while in flight, and having looked back
because he did not know whether someone was coming after him.
(e) Quite apart from the distance he was away from the scene, the fact that
the assailants were all wearing masks and headgear.
(f) The fact that the scene was fluid, with none of the assailants standing
still or facing Schoeman for any length of time.
[118] None of these factors makes for an ideal or even reasonable opportunity to
identify a perpetrator by a person in Schoeman’s position.
[119] Moreover, as alrea dy pointed out above, Schoeman did not testify as to any
particular physical characteristics that caused him to recognise the Appellant as
one of the gunmen actually carrying out the shooting. In his police statement,
he had said that he could “still” identify the Appellant because he was wearing
black clothing, but he conceded in evidence that he had not seen the clothes
worn by the Appellant on the first occasion ; so that he could not have identified
him by that means at the scene. In other words, he provided no real objective
basis for his identification of the Appellant as one of the gunmen other than the
fact that he had seen him in the vehicle on the first occasion the vehicle had
passed him, the difficulties with which we have already mentioned above.
[120] There is a further factor which appears to us to be relevant, albeit that it was
not addressed in the judgment or in argument. This is that , as was common
cause, video footage of the incident had been freely circulating on social media
in the days that followed it. It seems most probable that Schoeman would have

viewed this footage before making his statement, and he certainly did so before
testifying. Indeed, this is the only explanation for something that he said in his
police statement, to the effect that Puffy saw Wilson who was sitting with his
child and started shooting in his direction , and that Wilson just left his child on
the pavement and started running with his child following after him. Schoeman
could not have seen any of this , as the video footage shows him having run
away before Wilson himself turned and ran . This raises a legitimate concern as
to the degree to which Schoeman’s evidence was his own eyewitness account
and to what extent he was relating what he saw on the footage (including what
the accused were wearing).
[121] For all these reasons, while recogni sing the advantages that the court a quo
had in viewing Schoeman giving evidence, we consider with respect that the
court misdirected itself in its recordal and analysis of Schoeman’s eyewitness
identification of the Appellant. There is in our view material doubt as to whether
Schoeman had the opportunity to make such a n identification in the heat of the
moment, and accordingly as to whether his identification is correct. As stated in
R v Dhlumayo (supra), there may be a misdirection on fact by the trial Judge
where the reasons are either on their face unsatisfactory or where the record
shows them to be such; and there may be such a mi sdirection also where,
though the reasons as far as they go are satisfactory, the court a quo is shown
to have overlooked other facts or probabilities. It appears to us, with respect,
that both these criteria are met on the present facts.
The evidence of Wilson

[122] The court a quo did not subject the evidence of Wilson to any particular scrutiny
in relation to his opportunity to identify the Appellant. It simply held that “the
same degree of reliability can be found in the evidence of Wilson, who also
knows the accused very well”.
[123] We also have considerable difficulty with the finding of the court a quo in
relation to Wilson’s evidence.
[124] In the first instance, Wilson’s evidence was limited to a single identification
opportunity. He could not, like Schoeman, tie his observations to an earlier
sighting of the vehicle or its occupants. He would have had no prior expectation
as to who the gunmen might have been.
[125] Second, as with Schoeman, the court did not analyse the opportunity that he
had to identify the Appellant at the scene . If it had done so, the following
aspects (some similar to Schoeman’s opportunity) would have had to be noted:
(a) The extremely short duration of the incident.
(b) The even shorter duration of the opportunity for Wilson to identify the
Appellant. He had sp rinted some 50 metres away from the scene before
looking back to look for his son. By that time, the person he identified as
Puffy was already pointing his firearm at him. He turned, felt the shot hit
him and fell on the floor, again looking back. His view of the black -clad
assailant thereafter running to the vehicle could not have lasted more
than a few seconds.
(c) The distance at which Wilson was viewing the scene (50 metres away).

(d) The stressful conditions under which the observation was made. Wilson
was lying on the ground, having been shot, with the gunman still pointing
a gun in his direction and looking for his young son who had been left
behind in an active shooting scene . The prospect that at this crucial
moment he was able to pay proper attention to the identity of another
person running behind the one pointing the gun at him seems unlikely.
(e) Quite apart from the distance he was away from the scene, the fact that
the assailants were all wearing masks and headgear.
(f) The fact that the scene was fluid, with the person he identified as the
Appellant running to the vehicle.
[126] Wilson also did not provide any evidence of objective characteristics (e.g. build,
gait or other features) by which he identified the Appellant as one of the
masked assailants.
[127] Very importantly, the court a quo did not question the fact that Wilson, in his
written statement to the police, had not only not identified the Appellant, but had
positively said that he did not know who the other shooters were (apart from
Puffy). While care always has to be taken in drawing conclusions from police
statements, it would seem most improbable that if Wilson had actually
immediately recogni sed the Appellant as the person getting into the getaway
vehicle with “Puffy” (whom he did name) , he would not have mentioned this
when interviewed by the police. He also did not suggest that the reason he
failed to do was because of fear of reprisal, or a lack of trust in the po lice. His
explanation, i.e. that he was not asked to name persons he did not know to be

shooters, does not make sense, since his statement shows that he viewed the
persons getting out of and back into the car as the gunmen: indeed, his
statement reads that “[e]k sien hoe nadat alles stil geword het die drie (3)
skieters na dieselfde silwer Polo hardloop en inspring en wegry ” (our
underlining).
[128] Moreover, in Wilson’s case, the concern we expressed above about the extent
to which evidence was the product of his later viewing of the video footage
rather than an actual recollection of the event is even more pronounced.
[129] In Wilson's statement given on 8 July 202 0, he said that while he was sitting on
the corner, he noticed a silver Polo vehicle coming in his direction . He says he
saw how the vehicle came to a halt on the other side of the street , and saw that
there were 4 male persons in it. None of this seems likely given the video
footage, which shows Wilson not looking at the vehicle at all until his reflexive
glance towards the blue -clad gunman while already running away. The same
criticism can be made of h is statement that he saw three male people getting
out of the vehicle with weapons , that the deceased began running to the other
side of the road , that P uffy had fired two or three shots at the deceased, and
that he saw the deceased falling on the ground . At most, he might have viewed
the person identified as Puffy shooting at the deceased in the brief moment that
he turned, but as stated he probably could not see the deceased fall.
[130] As also stated, Wilson’s evidence at the trial that he had seen Schoeman
running away is inconsistent with the video footage.

[131] These discrepancies cast material doubt on the reliab ility of Wilson’s
identificatory evidence of the Appellant . In our view, the court a quo ought to
have engaged with these aspects. The fact that Wilson may have known the
Appellant well is not, with respect, an adequate counter to the se numerous
factors. We consider , with respect, that the court a quo ’s conclusion that
Wilson’s evidence was reliable amounts to a misdirection of fact on the basis
that the limited reasons given (more of a conclusion than reasons) were not
satisfactory, and that other material facts or probabilities were overlooked.
The evidence of Roegshana and Rihanna
[132] Although the court a quo did not rely on the secondary identification of the
Appellant by his half -sisters on viewing the video footage, we should for the
sake of completeness record that we do not consider that that evidence was of
particular value, and certainly could not compensate for the deficiencies in the
eyewitness accounts.
[133] In this regard:
(a) Although the video footage is very informative as to the events of the
shooting, it is not possible to make out distinguishing facial features of
the assailants. This is not only because of the fact that they are wearing
face masks an d beanies or a hoodie, but also because of the low
resolution of the images and the fact that the assailants were some
distance from the camera.

(b) While both sisters were adamant that they saw their brother, they were
not able to articulate what precisely it was about the person on film that
caused them to identify him.
(c) While Roegshana said that she recognized the black jacket as one that
she had given to the Appellant, it did not appear to us from the footage
that the jacket worn by the assailant was in a ny way distinctive or
unusual.
(d) Rihanna’s evidence, moreover, was that she only recognized the
Appellant when on a separate occasion, when she was alone, she
viewed the footage over and over again. This is not consistent with the
sort of identification proc ess that would be associated with recognizing
someone that one already knows well.
[134] In the circumstances, we do not think that there would be a proper basis for
basing a conviction on that evidence , independently of the evidence of the
eyewitnesses.
Conclusion on the eyewitness evidence
[135] For the above reasons, we believe that there are proper grounds in the
circumstances to depart from the decision of the court a quo that the evidence
reliably established that the Appellant was identified as one of the assailants
who carried out the murder. The court a quo granted leave to appeal on the
basis that it was possible that another court might regard the opportunity that
Schoeman and Wilson had to observe the Appellant as being so short as to

affect the reliability of their evidence. We conclude that that is the case. We
have also provid ed further reasons above as to why reasonable doubt must
exist as to whether the Appellant was properly identified , having regard to all
the evidence pertaining to the crime scene.
[136] In the words of S v Sithole (supra), there is therefore in our view a reasonable
possibility that the evidence which implicates the Appellant as a participant in
the shooting might be false or mistaken.
The alibi evidence
[137] As pointed out above, an alibi is essentially a denial of the State’s identification
evidence.
[138] In our view, where reasonable doubt already exists as to whether the accused
was the perpetrator because of material deficiencies in the direct evidence
pertaining to the incident , it is not ne cessary that the accused’s alibi should
necessarily be accepted as independently reliable for an acquittal to follow.
[139] Put differently, even if the accused’s alibi is subject to material criticism, that
fact in and of itself cannot necessarily eliminate the reasonable doubt that
arises as to whether the accused has been shown to have been at the scene.
[140] In the present case, the court a quo was very critical of the alibi evidence put up
by and on behalf of the Appellant. It referred to a number of discrepancies in
particular between the evidence of the Appellant himself and that of Kola.
[141] We agree that there were various discrepancies in the witnesses’ evidence as
to what actually happened in the Melkbosstrand house on the Friday and

Saturday. Some of the more material aspects involved whether the Appellant
had socialised with the others into the early hours of the Saturda y morning, as
he said, or whether he had gone to bed (as Kola said) ; and whether after news
of the murder the mood in the house was sombre for the rest of the day (as
Kola said), or whether the inhabitants continued to “party” (as the Appellant
testified).
[142] Despite these differences, what remained consistent was the evidence that the
Appellant had been present in or at the house on the morning of the murder .
Moreover, the evidence of Smith to the effect that he and the other persons
whom Dzikici mentioned had been living there at the end of May 2020 had in
fact moved out in April 2020 , and were not staying there on the weekend in
question, was not shaken in cross-examination.
[143] The court a quo cast doubt on the evidence of Kola by refer ence to the
evidence of van Reenen that he had had difficulty arranging an opportunity to
speak to her, and also by questioning why Kola had not made herself available
to the police at the earliest opportunity when the case was being investigated.
The fact is, however, that she had provided an affidavit (through the Appellant’s
attorneys) a mere 5 days after his arrest on 9 October 2020, and van Reenen
did say that Kola had spoken to him telephonically a fairly short time after he
had tried to set up a meeting. Those criticisms were therefore in our view not
properly justified.
[144] Moreover, the court a quo’s conclusion that it was “ interesting and remarkable”
that the Appellant’s parents were not called to testify in support of his alibi

seems to presuppose some heightened duty on him to prove his alibi, when (as
stated above) the onus remained on the State to disprove it. There was no
suggestion that his parents could not have been subpoenaed by the State to
testify.
[145] For these reasons, even recognising the material discrepancies between the
evidence of Kola and the Appellant , w e cannot conclude that it is not
reasonably possibly true that the Appellant was at the Melkbosstrand house at
the time of the shooting , or that the Appellant’s version is palpably false . In the
circumstances, the quality of the alibi evidence cannot dispel the reasonable
doubt that arises in relation to the direct evidence implicating him as being a
perpetrator.
Conclusion
[146] It is tragic that a young life was lost in the brutal manner described above.
However, the duty remains on the State to prove its case beyond a reasonable
doubt if an accused person is to be subjected to criminal sanction.
[147] This is a case in which the evidence put up by the State failed to meet the
required standard of proof. In short, it cannot be concluded that the Appellant’s
contention that it was not him who shot the deceased is not reasonably possibly
true.
[148] For the reasons set out above, w e consider that the decision taken to the
contrary by the court a quo cannot stand.

Order
[149] In the premises, we make the following orders:
(a) The appeal against the Appellant’s conviction succeeds.
(b) The conviction and sentence are set aside.


__________________
LEKHULENI J
JUDGE OF THE HIGH COURT


______________________
RALARALA N
JUDGE OF THE HIGH COURT


______________________

JANISCH M W
ACTING JUDGE OF THE HIGH COURT

Appearances:

For the Appellant: R Liddell
S Webb

For the Respondent L Williams (office of the DPP)