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[2013] ZAWCHC 218
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S v Peters and Another (SS17/2013) [2013] ZAWCHC 218 (4 November 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No:
SS17/2013
Before: The Hon. Mr Justice Binns-Ward
sitting with an assessor
In the matter between:
THE STATE
and
GARY
PETERS
Accused
No. 1
MOEGAMAT SHAFIEK
MINNIES
Accused No. 2
JUDGMENT
DELIVERED 4 NOVEMBER 2013
BINNS-WARD J:
[1]
This is the unanimous judgment of the court
comprised of myself, as the trial judge, and the learned assessor who
sat with me, Mr A.
Duraan.
[2]
The accused in this trial are Mr Gary
Peters (accused 1) and Mr Mogamat Shafiek Minnies (accused 2).
The accused were arraigned
on six charges. The charge on count
one was that the accused had contravened s 9(1)(a) of the
Prevention of Organised
Crime Act 121 of 1998 (POCA) in that they
allegedly wrongfully and unlawfully participated in or were members
of a criminal gang
and wilfully aided and abetted any criminal
activity committed for the benefit of, at the direction of, or in
association with
any criminal gang. Count two concerned an
alleged contravention of s 9(2)(a) of POCA, it being alleged
that the accused
had performed an act which was aimed at causing,
bringing about, promoting or contributing towards a pattern of
criminal gang activity.
The third count concerned a charge of
murder, in that it was alleged that the accused had murdered one
Junaid McKenzie by shooting
him with a firearm. The indictment
indiscriminately invoked
s 51
of the
Criminal Law Amendment Act
105 of 1997
, but it was contextually apparent from the summary of the
state’s case and the fact that both accused were charged with
the
offence that murder within the meaning of
Part I
of Schedule
2
Act 105
of 1997 was entailed. (On enquiry from the court before
judgment was delivered, the legal representatives for both accused
confirmed to the court that they had advised their clients of their
exposure to the prescribed sentence of life imprisonment for
murder
referred to in Part I of Schedule 2 to Act 105 of 1997.) The
fourth count concerned the attempted murder at the same
time and
place of Letecia Jacobs, also by shooting her with a firearm.
The fifth and sixth counts concerned the unlawful
possession of a
firearm and the unlawful possession of ammunition. The accused,
who were both legally represented, pleaded
not guilty to all of the
charges. They did not offer a plea explanation.
[3]
Formal admissions by each of the accused in
terms of s 220 of the Criminal Procedure Act by the accused
concerning the injuries
and cause of death of the deceased, Junaid
McKenzie, were admitted as exhs. F and H, respectively.
[4]
Shamiela McKenzie, the 24 year old sister
of the deceased, Junaid McKenzie, testified that on the evening of
26 June 2012 she
was at her parents’ home at 5 Melody
Square, Steenberg, at just before seven o’clock in the
evening. She
was busy dishing up food for the evening meal when
she heard shots ringing out outside the house. She thought
there were
two or three shots, but could not be certain of the
number. She and her father rushed out of the house to find out
what was
happening. She saw her young brother, a child of just
eight years of age, lying on the ground near a spot where she knew
that her boyfriend and some of her friends had been playing
dominoes. Junaid had been playing with his football in the
street
in the immediate vicinity of where the dominoes game was being
played.
[5]
The witness went up to her brother and saw
that he had been shot in the head. The boy was carried inside
the house while transport
was arranged to take him to the nearby day
hospital. She learned that a woman from the neighbourhood, whom
she knew only
by the name Letecia, had also been shot. The
woman had also been carried into the house. She heard about two
hours
later that Junaid had passed away at the Red Cross Children’s
Hospital.
[6]
Shamiela McKenzie testified that the area
in which she lived was plagued by gang activity. She said that
her brother, Ishmael,
was a gang member. He belonged to the
Junky Funky Kids, known by the acronym JFK. Her brother’s
gang membership
was confirmed by the JFK tattoo he bore on one of his
arms. Other gangs operating in the area were the Mongrels and
the Corner
Boys. The members of those gangs were recognisable
by the tattoo marks that were peculiar to each gang.
[7]
The witness confirmed that accused number 2
was known to her. She knew him as ‘Fikkie’.
She said that his
family had a house in Melody Square and said that
the accused had lived there for some months during the period
2009/10.
At that time he had been friendly with Ishmael.
[8]
Shamiela’s father, Mogamat Cassiem
McKenzie, also testified. His evidence essentially confirmed
that of his daughter.
He thought he heard three shots; although
he could not be sure. He said that the gunfire had been very
rapid. He said
that he had carried his son into the house from
the place where he had found him lying outside the house on the
pavement.
He said that he had seen the injured woman lying on
the sidewalk opposite the gate to his property. He and another
man had
carried the woman into his house and laid her on a sofa.
He confirmed the appearance and position of the sofa with reference
to the photographs in exh. A. He said that the woman had
been transported to hospital together with his son.
[9]
Warren Adams, the boyfriend of the first
witness, Shamiela McKenzie, testified that he had been playing
dominoes with friends outside
the McKenzies’ house. The
game had been played on top of an electrical substation, which is
visible as a green box
in the photographs put in as a part of exh C.
It is also visible in some of the photographs in exh A.
Junaid had
been playing with a foot ball nearby. At some stage,
round about 7:00 p.m., one of the persons at the dominoes game, one
Danville Williams, also known as ‘Eye’, who apparently
was a Rastafarian, asked who ‘those men’ were.
The
witness said that the persons to whom Danville had referred appeared
to be two persons standing behind a white bakkie on the
opposite side
of the street, across the road from the house of one, Trevor, who ran
a shebeen. The position of the bakkie
is evident on some of the
photographs in exh. A. It was parked on the side of the
road outside a partly constructed
building that stood across the road
from the place indicated as Trevor’s house. As he looked
up he heard shots rang
out and saw what appeared to him to be flashes
that he associated with the discharge of a firearm coming from the
place where the
two aforementioned individuals were standing.
Adams testified that there were two shots, but he could not say
whether both
were fired by the same weapon. It was put to him
in cross-examination by counsel for accused 1 that other witnesses
had made
statements suggesting that there had been three or four
shots. He was adamant that there had been just two shots.
[10]
When the shots were fired Adams ran for
cover into the McKenzie’s yard. As he did so he noticed
the two individuals
running away up Melody Square road towards
Piccolo Street. (The layout of the vicinity is evident from the
Google Map put
in without objection from the accused as exh. B.)
He was not able to identify either of these persons, or even say
whether
they were male or female. They were both wearing hoods
pulled low over their foreheads. As for the rest, Warren Adams
essentially corroborated the evidence of Shamiela and Mogamat
McKenzie. He had the same degree of knowledge or acquaintance
with accused 2 as did Shamiela.
[11]
The next witness called by the State was
one Wayne Joseph Samuels. He lives in Piccolo Street. On
the night in question
he had been standing by a bench in Woodwind
Crescent, which is a grassy area, rather like Melody Square. I
gathered that
Woodwind Crescent was about the same distance north of
Piccolo Street (i.e. to the right of Piccolo Street as shown on exh.
B)
as Melody Square is to the south of Piccolo Street. (This
impression was confirmed by the content of a further Google Map
put
in as exh. J.) He heard the sound of gunfire. He was
not sure from where it had come, but he proceeded towards
Piccolo
Street to find out what had happened. While he was proceeding
up the part of Woodwind Crescent that runs towards
the junction with
Piccolo Street three men ran past him. They had approached from
the opposite direction to that in which
he was headed; that is they
were running from the direction of Melody Square. All three of
them were wearing hooded tops
with the hoods drawn over their heads.
He would not be able to identify any of them. When he got to
Melody Square he
saw that there was something of a commotion.
He noticed Junaid McKenzie lying on the ground.
[12]
It was put to Samuels by counsel for
accused 1 that his client had been running in the direction described
with two other persons,
but that he had not been wearing a hood.
Accused 1’s presence at that stage as one of the three fleeing
persons was
thereby admitted.
[13]
The State then called Anwar Hendricks.
This witness was warned as an accomplice in terms of
s 204
of
the
Criminal Procedure Act 51 of 1977
. The evidence of
Hendricks was heard
in camera
because we were informed by the prosecutor that he might be placed in
danger if proceedings were held in open court.
[14]
Hendricks is a man of 35 years of age; a
bricklayer by trade. His evidence was difficult to follow at
times because he spoke
with a very raspy voice. He explained
that he was suffering from a throat infection.
[15]
Hendricks said that he had previously been
a member of the Mongrels gang. He had joined the gang in 1998
when he was about
20 years old, but had left it in 2000 or 2001.
He explained that he had joined the gang under the influence of his
peers.
[16]
Hendricks testified that one could join the
gang by approaching any gang member. On admission to membership
a person would
then be tattooed with the gang’s distinctive
marking. In his case, a so-called ‘Under Leader’ or
‘Sub-Leader’
of the gang, one Benny Du Plooy, had applied
his tattoo. He confirmed that the gang had a rank structure,
with a Leader,
Sub-Leaders and soldiers. (Under
cross-examination by accused 2’s legal representative,
Hendricks also described that
Du Plooy held the rank of ‘school
master’. He explained that this was a position of equivalent
standing to an under-leader.)
There was a system of discipline
in the gang. Members who failed to comply with instructions, or
breached the gang’s
code of conduct were liable to be
disciplined. This could take the form of a warning or of being
assaulted.
[17]
He further explained that the gangs engaged
in various activities, including the sale of liquor and illicit
drugs. These activities
were carried on in the area dominated
by the particular gang and one of the functions of soldiers in the
gang was to protect the
gang’s territory from being taken over
by rival gangs. He described how there were at times gang wars,
which were typified,
amongst other things, by drive-by shootings and
inter-gang shoot-outs.
[18]
Hendricks testified that on the evening of
27 June 2012 he was watching television in his apartment at
Keppelhof in Lavender
Hill when he heard shooting outside.
After first going to the window to try to see what was going on, he
then went outside
and discovered that someone by the name of
Kalokkies had been shot dead on one of the stairwells of the nearby
flats at Muirhof.
Hendricks estimated that he had stood around
at the scene of the shooting together with other people from the
nearby apartments
for about 20 minutes. He had then moved to go
back to his own apartment. On his way there, and while crossing
the small
grassy area that divided Muirhof from Keppelhof, he
encountered a group of about 10 to 15 men whom he knew to be members
of the
Mongrels gang. He recognised accused 2, who was known to
him as ‘Shaffie’, amongst them. Accused 2 resided
in the adjoining flats at De Waalhof and had a girlfriend who lived
at Keppelhof. He knew accused 2 to be a member of the
Mongrels
gang. He enquired of accused 2 where the group was going and
was told that they were on their way to Steenberg in
search of Junky
Funkies (this a reference to members of the JFK gang). He
inferred that that they intended to shoot at the
JFKs. He decided to
go with them. Hendricks explained under cross-examination that
he had accompanied them out of curiosity,
but one has to suspect that
he may have had a more direct interest in the apparent mission of the
group than mere curiosity for
he described having himself been chased
away from a place known as Montagu Village by members of the JFKs in
the previous week.
He said that it was a time of gang warfare.
Whereas Lavender Hill appears to have been Mongrels territory,
Montagu Village
and Steenberg appear to have been the turf of the
rival JFK gang.
[19]
Hendricks described that at some stage on
the walk towards Steenberg, and before they reached the canal that
marks the border between
Steenberg and Lavender Hill, somewhere in
the vicinity of that part of the M5 highway known as Prince George
Drive, accused 1,
who was not known to him at the time, joined the
group. He had been called to do so by accused 2. (The
position and
course of the canal is marked by a blue line on the
Google Map put in as exh. J2.) At some point Hendricks
broke away
from the group to approach a stranger on the street for a
match to light a cigarette. When he returned from that
diversion,
he found only accused 1 and 2 still present, the rest of
the group having gone off.
[20]
He said that he and accused 1 and 2 then
proceeded into Steenberg. They eventually arrived at the scene
of the shooting at
Melody Square. He was not familiar with the
area and did not know the names of the streets. Initially all
three of
them took up position behind the parked white bakkie
depicted in the photographs in exh. A. He said that
accused 2 said
that a Junky Funky lived in that circle (the witness
used the word ‘sirkel’ - which in Afrikaans denotes
‘crescent’
- to refer to a place where houses were
arranged around a square as is evidently the case in Melody Square,
as may be deduced from
the aerial photograph, exh. B).
[21]
The witness said that accused 2 had pulled
a handgun from his waistband and holding it pointed upwards had
peered around from the
edge of the rear of the bakkie. A group
of persons was visible on the corner ahead of the bakkie, on the
opposite side of
the road (that is outside the McKenzie’s
house). He indicated the group to have been in the position
where the earlier
state witnesses had described the playing of a game
of dominoes on the top of the electricity sub-station. He said
that he
then moved back up the road behind the bakkie in the
direction from which he and the accused had come and then crossed the
road
to take up a look-out position. He said that accused 1 had
done nothing active. He had merely stood next to accused
2
behind the white bakkie. He did state, however, that accused 1
knew why the three of them had come to Steenberg.
He did not
explain though on what basis he made this assertion and the question
was not explored by counsel. He denied the
proposition put to
him in cross-examination by counsel for accused 1 that accused 2 had
produced the firearm earlier in the evening
when they were at the
canal. He admitted, however, that he had been aware earlier
that accused 2 had a firearm. He
had deduced this from the
manner in which accused 2 had held it concealed at his waist.
He said that he did not see other
people walking in the street in
which the bakkie was parked.
[22]
Hendricks said that he heard a number of
shots being fired. He thought it was two or three, but could
not be sure. He
said the gunfire was very rapid. He
turned to look back towards the bakkie when the gunshots went off and
saw accused 1 and
2 running up the road towards him. Accused 2
tried to hand him the firearm, but he declined to take it.
Accused 2 then
handed the weapon to accused 1 who ran off with it in
a different direction from that taken by accused 2 and the witness.
He said that accused 2 said to him ‘Did you see how I mowed
down those dogs?’.
[23]
Hendricks said he could not remember how he
and the two accused had been dressed on the evening in question.
[24]
The witness stated that he had seen a
report of the killing of a child in the shooting at Melody Square on
the television news the
following evening. He recognised the
scene as the place that he had been with the accused the previous
night. He asked
accused 2 if he had seen the news item.
Accused 2 merely asked him whether he had spoken about it to anybody
else.
[25]
He learned later that accused 2 and one
Aboobaker Kamaar had been taken in by the police. At a later
stage he was also asked
to report to the police, where he was
interviewed by Detective Brown. During cross-examination by
counsel for accused 2,
the statements made by Hendricks to the police
were put in as exhibits D and E, respectively. The first was made as
a so-called
‘warning statement’ in September 2012.
The latter was a witness statement, or so-called ‘
section 204
statement’, made in February 2013. There were no material
conflicts between the statements and the oral evidence given
by
Hendricks in court. His evidence was not shaken in
cross-examination.
[26]
In cross-examination by accused 1’s
counsel the content of the statements of other witnesses in the
police docket were put
to Hendriks. It was put to him that a
statement by a person known as ‘Leggies’ (Hendricks
confessed to knowing
the person who went by that name) had suggested
that one ‘Oortjies’ and one Fahiem Block, both Mongrels
gang members,
had left his (i.e. Leggies’) house in Sullivan
Street, Steenberg, at about 7 pm that evening. It was also put
to Hendricks
that a witness by the name Jamie Lee Vorsatz (later
corrected to Jamie Joyce Vorsatz) had given a statement which
suggested that
she had seen two men matching the description of
Oortjies and Block walking towards Melody Square immediately before
the shooting.
The statement of Vorsatz indicated that she had
seen one of these men stopping to stand at the corner of Piccolo
Streets while
the other, who was wearing a black hood and a red cap
took up a position outside Trevor’s house, which, as observed
earlier,
was directly opposite where the white bakkie was parked. It
was put to Hendricks that Vorsatz’s statement suggested
that
she had seen these two men run across the grassy area of Melody
Square after the shots had been fired. Hendricks was
not able
to offer any comment. He said that he had seen no-one moving in
the part of Melody Square that ran from Piccolo
Street to the corner
on which the electricity sub-station stood while he was there.
[27]
Under further cross-examination by counsel
for accused 1, Hendricks agreed to the proposition that on the way to
the scene of the
shooting he had walked past a school. Counsel
pointed out the Sullivan Primary School which is shown on exh. B,
but
the witness was not familiar enough with the area to be able to
confirm that it was the school in question. He denied that
he
and his companions had communicated with each other using sign
language on their way to where the shooting occurred. (It
is
not apparent on what basis the proposition was put on behalf of
accused 1 because he did not testify to the use of sign language
by
anyone.) Hendricks also denied the proposition put to him, apparently
on the basis of the content of an extra-curial statement
by accused
2, that he, Hendricks, had told accused 2 to open fire. (That
accused 2 had made such an allegation in an extracurial
statement was
subsequently confirmed when the statement (exh. R) was later admitted
into evidence after a trial within a trial.)
[28]
Under cross-examination by the attorney for
accused 2 it was put to Hendricks that although accused 2 was a
member of the Mongrels
gang at the time he had not been on the scene
on the evening of 27 June 2012. It was also put to
Hendricks that accused
2 had often seen him in the company of members
of the Mongrels during the first part of 2012, so much so that he
considered him
to be a member of the gang. Hendricks denied the
proposition that he was regularly seen in the company of Mongrels
gang members
and insisted that he was not a member of the gang.
[29]
It was further put to Hendricks by accused
2’s representative that accused 2 had spent the afternoon and
evening at the flat
of his girlfriend, Edwina, at Keppelhof.
Accused 2 would say that he had heard the shooting at Muirhof and had
gone out to
see what had happened. After standing at that scene
for some minutes he had retuned to his girlfriend’s flat and
remained
there until about 9:30 p.m., when he had returned to his own
flat.
[30]
The following witness called by the
prosecution was Letecia Jacobs, the complainant on count 4. Her
evidence in chief was
to the effect that on the evening in question
just before seven o’clock she left her sister’s house in
Sullivan Street,
Steenberg, in the company of one of her daughters,
15-year old Jamie Joyce Vorsatz. They were on their way to pay
her account
with a storekeeper in Mandolin Square. Their route
would take them via Melody Square. As they proceeded down
Sullivan
St. to the corner with Piccolo St., her daughter pointed out
that two men had emerged from Leggies’ house. One of them
was wearing a hood. By the time she and her daughter reached
the corner of Piccolo St. they had overtaken the two men, who
were
then behind them. She noticed her daughter repeatedly looking
back but took no notice.
[31]
When they reached Melody Square, just after
she had walked past a game of dominoes being played outside the
McKenzies’ house,
the witness said she heard a gunshot.
She wanted to run, but could take only two paces before she felt
something burning
on her left side and fell to the ground. She
had noticed a blue Kombi and a white bakkie parked in the road.
She identified
the white bakkie depicted in exh. A as looking
like the one she remembered having seen. While she was lying on
the ground
she was conscious of persons running past her and voices.
She kept her head down frightened that someone might shoot her.
After a while people came to lift her up and carry her into the
McKenzie’s house. There she lost consciousness and
remembers nothing more until she woke up in the Groote Schuur
Hospital. She underwent surgery and had to wear a colostomy
bag
for a period of five months. It was apparent from what the
witness said that a bullet had passed through her lower abdominal
area with an entrance and an exit wound. She underwent further
surgery for the closure of her stoma in November 2012.
She
still suffers the after-effects of her injuries and has been told
that this is likely to persist for the rest of her life.
[32]
Mrs Jacobs testified to the traumatic
effect the shooting had had on her and her daughter. She said
that they had stayed locked
up in their house afraid to go out for
months after the incident. They were still fearful more than a
year later. They
had not received trauma counselling.
[33]
Under cross-examination by counsel for
accused 1 the witness pointed out that the witness statement in the
police docket signed
by her daughter under the name ‘Jamie-Lee’
was incorrect in that her daughter’s name was in fact ‘Jamie
Joyce’. She said that she had advised the prosecutor that
she did not want her daughter to testify at the trial because
she was
severely traumatised.
[34]
Various passages from her daughter’s
witness statement were put to her, but she was unable to confirm
them. Under cross-examination
she stated that she had heard two
gunshots fired rapidly in succession.
[35]
The impression given by this witness was
that she was unsophisticated, frank and honest, but had not been
particularly observant
or concerned about what was going on about her
before the shooting.
[36]
The State then called Constable Wesley
Twiggs, a police officer who, accompanied by his colleagues, attended
the scene of the shooting
shortly after the occurrence. He
arrived there after the two victims had already been removed to
hospital. This witness confirmed
his discovery of the bullet casings
and the bullet head depicted in exhs. A and D and that there had been
no disturbance of the
scene as depicted in the photographs from the
time of his arrival until the arrival of the police photographer.
[37]
Mr Martin Truter, a former warrant-officer
in the police force, was then called to confirm that he had taken the
photographs in
exh. A and drawn up the accompanying key.
He had also been responsible for the recovery of the ballistic
evidence at
the scene and its submission for forensic analysis.
[38]
The next witness for the prosecution was
Warrant Officer Desmond Lemmetjies. He testified as an expert
witness on the structure
and activities of gangs in the
Steenberg-Lavender Hill areas. He had been involved in
gang-policing for about 12 years and
had attended a number of subject
related training courses. He said that six gangs including the
Mongrels and the Junky Funky
Kids operated in the area. He was
able to identify the respective territories controlled by each gang
in these suburbs and
confirmed that gang activities included dealing
in drugs, housebreakings, robberies and murder and attempted murder..
[39]
He said that the apartment block, Muirhof,
was a Mongrels stronghold and that the gang’s leader, Roland
Jacobs, lived there.
The JFK’s had three leaders and that
gang’s headquarters were situated at 62 Robertson Street in the
nearby area of
Seawinds.
[40]
Lieutenant Willem Prinsloo then testified
to having recorded an extra-curial statement from accused 1.
The statement itself,
as well as a video-recording of the taking of
the statement was put in.
[41]
Captain Pieter Johan Brink was then called
to testify to having taken a statement from accused 2. Whereas
the attorney representing
accused 2 had earlier placed on record that
accused 2 admitted to having made the statement freely and
voluntarily, and would contest
only the veracity of the statement,
she later indicated that upon reconsideration it would be more
accurate to state that whereas
the accused did not suggest that he
had been threatened or induced by the police to make the statement he
had made it under duress
from fellow gang members. Counsel for
the state thereupon requested that a trial within a trial be held on
the admissibility
of the statement.
[42]
It was clear from the video-recording of
the taking of the statement that it was done with punctilious
compliance with the applicable
procedures by Capt. Brink. The
video recording also showed that the accused appeared confident and
relaxed when speaking
with Capt. Brink preparatory to making the
statement.
[43]
The ambit of the trial within a trial was
expanded to include the admissibility of pointings out made by
accused 2. In this
regard the basis for the accused’s
opposition to the admission of the evidence was that the pointing out
had proceeded against
his will from the stage when he had indicated
unease while out on the exercise with a certain Captain van Niekerk,
a female police
officer attached to the Family Violence Unit at
Mitchell’s Plain. Accused 2’s counsel also somewhat
belatedly
raised the issue that the Judges’ Rules had been
contravened by reason of the reading to accused 2 prior to his having
made
his extracurial statement of an extracurial statement made by
accused 1. It was suggested by counsel that this alleged
conduct
resulted in accused 2 having been unduly influenced into
making his extracurial statement.
[44]
The pointing out exercise, including prior
and subsequent interviews thereanent by the officer under whose
supervision the exercise
was conducted – the aforementioned
Capt. van Niekerk - was recorded on video. Capt. Van
Niekerk gave oral evidence
concerning the exercise. Her
evidence was confirmed by the content of the video which was shown to
the court and put in in
DVD format as exh. ‘O2’. It
was apparent that Capt. van Niekerk put accused 2 under no pressure
whatsoever.
On the contrary she was at pains to repeatedly
emphasise to him that he could bring the pointing out exercise to a
halt whenever
he chose. Indeed Capt. van Niekerk’s
attitude towards the accused during the time she was with him was a
notably humane
and caring one. It was apparent from the video
that accused 2 became concerned for his safety at a certain stage
when pointing
out while at the scene of the shooting at Melody
square. It was apparent that his concern had nothing to do with
his willingness
to cooperate with the police, but rather with his
apprehension for his personal safety when he noticed certain persons
whom he
apprehended to be potentially hostile approaching while he
was engaged in the pointing out. Capt. van Niekerk did not seem
to be immediately fully astute to the accused’s concern about
the persons approaching the pointing out party, but it is apparent
from the video evidence that that did not have the effect of putting
the accused under any undue influence to make any pointing
out that
he unwilling or reluctant to do. It was also apparent that as
soon as Capt. van Niekerk acceded to his request that
they should
drive away from the area the accused relaxed and continued to
participate cooperatively in the pointing out by taking
the police to
show the areas in which the various gangs operating in Lavender Hill
had their strongholds.
[45]
Lieutenant Brown, the investigating officer
in the case, gave evidence. He denied accused 2’s
allegation that he had
read out to him an extracurial statement made
by accused 1. He testified that when he had dealt with accused
2 in connection
with the latter’s preparedness to make an
extracurial statement, accused 1’s statement had been in the
docket, which
was kept in a separate office. Brown testified
that he had been present at accused 2’s arrest in the early
hours of
the morning of 4 September 2012. He said that the
accused had been detained at the Nyanga police station and then
brought
to the Steenberg police station after his first court
appearance on 5 September. Accused 2 had then indicated to
him
that he was willing to make an incriminatory statement.
Brown had then organised for Capt. Brink to take the statement
and for Capt. van Niekerk to be contacted to assist with the
supervision of a pointing out exercise.
[46]
Accused 2’s evidence in the trial
within a trial was to the effect that he had been threatened by two
fellow Mongrels gang
members, Andrew van Niekerk (Oortjies) and
Fahiem Block, who had both admitted to complicity in the shootings,
that if he said
anything to the police incriminating them his
girlfriend and members of his family would be placed at risk.
He said that
he had given into making a false statement to the police
incriminating himself only after having been put under pressure day
after
day by Lieut. Brown and Warrant Officer Chetty to do so.
It was evident that accused 2 had overlooked the fact that he made
the statement on the very next day after his arrest. He
conceded that he had made the statement and done the pointing out
on
the same day. His suggestion that Capt. Brink and Capt. van
Niekerk would have falsified the date on the documentation
completed
by them in connection with the taking of the statement and the
pointing out was fanciful. He was also unable to
explain why,
if he had been threatened by Andrew van Niekerk and Block, as
alleged, he should have agreed to make any statement
at all, instead
of just maintaining his silence. (It was in an attempt to
provide an explanation that he manufactured the
story that he had
been placed under pressure for days by Brown and Chetty to confess to
something.) In answer to a question
from the court as to the
significance of his allegation that Brown had read accused 1’s
statement to him, the accused stated
with reference to exh.K (the
extracurial statement made by accused 1) that only part of the
statement had been read to him.
He also stated that the reading
of the statement had not really had any effect on his decision to
make the statement that the state
wished to introduce.
[47]
In all the circumstances the court was
satisfied that the statement and the pointing out had been done
freely and voluntarily and
ruled that the statement and the content
of the pointing out would be admitted in evidence in the main trial.
[48]
Defence counsel agreed that the evidence
led on behalf of the state during the trial within a trial might
insofar as it was relevant
to the principal case be accepted as
evidence in the principal case. This was done to avert the
necessity to recall any of
the state witnesses.
[49]
In his extracurial statement accused 2
described that after a shooting incident at Muirhof he was provided
with a weapon by one
Andrew (also known as ‘Urkies’
(?Oortjies)). He was informed that Andrew would phone for more
ammunition for
his ‘team’, which consisted of Gary and
Anwar. There was another team, three of whose members he named,
and indicated
that there were others whose names he did not know.
He said that they – apparently referring to the two teams –
split and that in Steenberg his team came across a group of gangsters
standing at a corner smoking dagga. He said that he
stood
behind a bakkie. He felt very frustrated because ‘they’
could shoot anyone of the people in ‘the
courts’ (an
apparent reference to the complex of apartment buildings where the
other shooting had occurred earlier that evening).
He said that
he still had not had an intention to shoot. Anwar told him to
shoot. He said that he opened fire, but
he had not actually
wanted to open fire. He fired at the group of gangsters.
He said that he and his companions then
ran away from the scene.
Gary took the gun. He was not able to say what Gary had done
with the gun.
[50]
He described his arrest just over two
months after the incident and having been informed that he had shot
dead an eight year old
child. He said that he had not known of
the presence of a child. He said that if he had known there was
a child present
he would not have opened fire. His statement
closed with the following sentences: ‘
Ek
het seker gemaak en het geen kind daar gesien nie. Ek het nie
die hart om ’n kind dood te skiet nie
.’
[51]
In the pointing out exercise accused 2 took
the police to the place of the shooting and made indications
consistent with the evidence
of the state witnesses as to where the
bakkie had been parked on the evening in question and where the group
of persons had been
standing on the corner outside the McKenzie
House. He also showed the police the places in the area where
the various gangs
were based.
[52]
Dr Natshidengo, a surgical registrar at
Groote Schuur Hospital then gave evidence as to the nature of the
injuries sustained by
the complainant on the attempted murder charge
and the medical treatment she had received. The material
content of this evidence
is set out in the affidavit deposed to by
the witness on 16 August 2012, which was put in as exh. S.
It is not necessary
to set it out. The general nature of the
injuries sustained by Mrs Jacobs, as well as their
sequelae
,
have been adequately described in the context of the summary of her
evidence.
[53]
W/O Heinney Marsh of the Ballistics Section
of the SAPS Forensic Science Laboratory Western Cape then testified
in conformation
of the content of the affidavit that had been made by
him in terms of
s 212
of the
Criminal Procedure Act. The
most material part of his evidence, which was not challenged, was
that both of the cartridge casings recovered at the scene of
the
Melody Square shooting had been fired from the same firearm. He
described the casings as of 9mm Parabellum calibre.
The fired
bullet examined by him was also of 9mm calibre. The casings and
bullet in question were those recovered by Mr Martin
Truter, whose
evidence was mentioned earlier. W/O Marsh’s affidavit was
put in as exh. T.
[54]
The report on the post-mortem examination
of the deceased was put in terms of
s 212
of the
Criminal
Procedure Act as
exh. U under the affidavit of Dr Mfolozi, a
registrar in forensic pathology at the University of Cape Town.
The report confirmed
that the deceased had died as a result of a
perforating distant gunshot wound to the head.
[55]
The State then closed its case.
[56]
Counsel for accused 1 then made what he
described as an application in terms of
s 186
of the
Criminal
Procedure Act for
the calling by the court of two persons, Jamie
Joyce Vorsatz and Cyril Williams, as witnesses. (The statement
of Vorsatz
had been produced earlier as exh. G.)
(Section 186
does not envisage an application. It is a provision which
affords the court the discretionary power to call a witness if
the
interests of justice or the fair and proper adjudication of the case
appear to require it.) The court declined to accede
to
counsel’s request to call the witnesses, but assured him that
having heard his concerns it would keep them under advisement
for the
remainder of the trial.
[57]
Accused 1 gave evidence in his own
defence. He is 22 years of age and has limited education having
left school before completing
std. 4. He can barely read
or write.
[58]
He said that on the day in question,
27 June 2012, he had not been feeling himself because he
had been indulging in taking
‘tik’ (commonly known
locally to be a colloquial word for
methamphetamine)
and dagga. He said that he had not known
what he was doing. He did not know where he found himself.
Despite these
claims it soon became apparent from his evidence that
he had a clear recollection of events and was astute to right and
wrong and
to the danger presented by shooting towards a group of
people. I am satisfied that the accused’s claim to have
been
under the influence of drugs to an incapacitating degree (which
in any event was not put forward as a defence) may safely be rejected
as false.
[59]
He stated that at dusk that evening he had
been sitting on a corner in Grindel Avenue close to where he lived
when he was approached
by accused 2 and one Anwar. The accused
said he did not know who Anwar was at the time, but confirmed that
the person in
question was Anwar Hendricks, the accomplice witness
whose evidence was described earlier. He joined them not
knowing where
they were headed. He explained his action saying
that he thought that they would provide him with dagga. At a
passageway
to the M5 (Prince George Drive) they encountered a group
of persons, whom he said were members of the Mongrels gang.
Accused
2, who was a Mongrel, spoke with the persons in this group,
while he stood aside at a short distance. He explained that not
being a gang member he could not be involved in the discussion.
[60]
He and accused 2, together with Hendricks,
then proceeded to the canal where accused 2 produced a gun from the
waist of his trousers.
Accused 2 checked the firearm to see
that it was in good order. Accused 1 said he assumed that
accused 2 was carrying the
weapon for his personal safety as they
were entering Steenberg which was dangerous territory for him.
He noticed the others,
that is the members of the group they had
encountered earlier, following at the canal. He and his two
companions took a different
route thereafter, while the group went
off elsewhere.
[61]
Accused 1 described how he and his
companions arrived at a place in Steenberg which accused 2 identified
to Anwar Hendricks as a
place where Junky Funkies lived. (Under
cross-examination he contradicted himself on this point, saying at
that stage that
he could not remember accused 2 having said
this.) He said that accused 2 stood behind a bakkie parked on the
right hand side
of the road as seen from the direction in which they
had approached. He put himself a short distance behind where
accused
2 took up position behind the bakkie. He said Hendricks
took up a position at the corner behind them on the opposite side
of
the street. Accused 2 took out the gun. He said that he
had wanted to tell accused 2 not to shoot but that
he did not
have enough time to get the words out. It was apparent that the
witness’s professed concern was about the
apparent intention of
accused 2 to fire on a group of persons up ahead who appeared to be
involved in playing a game on a corner
some distance ahead of the
bakkie. He also said he saw a soccer ball being played with
where this group of people were gathered
at the corner.
[62]
He said that accused 2 fired two or three
shots. He and accused 2 had then run back up the road towards
where Anwar Hendricks
stood at the corner. Accused 2 tried to
hand the firearm to Hendricks who declined to accept it.
Accused 2 then gave
the weapon to accused 1. Accused 1 said
that he took the weapon because he felt intimidated. He said
the threesome
then fled the scene together for some distance before
he and accused 2 split from Hendricks and took a separate route back
to Lavender
Hill. When they reached Lavender Hill he handed the
gun back to accused 2. Under cross-examination by
accused 2’s
legal representative the witness said, in
contradiction of his evidence in chief (but consistently with Anwar
Hendricks’
evidence), that
he
had split from the other two while running from the scene of the
shooting and that they had all joined up again together later.
[63]
Accused 1 denied that he was a gang member
and denied that he in any way assisted the gangs in carrying out
their activities.
[64]
Accused 1 then called Jamie Joyce Vorsatz
to give evidence. She is currently 16 years of age and is the
daughter of the complainant
the attempted murder matter (count
four). Her evidence essentially confirmed that given earlier
during the state’s
case by her mother. Her evidence added
nothing to or against the case concerning accused 1 and the reason
for her being called
was baffling. It seems that counsel for
accused 1 sought on the basis of the evidence to construct some
hypothesis that someone
else may have been responsible for the
shooting. The foundation for this came from a passage in the
statement the witness
gave to the police within a week of the
shooting, in which she stated that she had seen one of the men who
had been following her
and her mother from Sullivan Str. down Piccolo
Str. running past her after the shooting with a gun in his hand.
She explained
in her oral evidence that she had not in fact seen this
and had been confused and traumatised when she made her statement.
She explained that this part of her statement had been predicated on
a confused reconstruction based on her having indeed seen
someone
running past her tucking something into his waistband. The long
and the short of matter is that the witness did not
see who had fired
the two shots she heard going off in Melody Square that evening.
Her evidence that she had heard two shots
was clear and consistent.
It tallied with the evidence of accused 1 himself. Accused 1
identified accused 2 as having
fired those shots and as having aimed
them at the group on the corner outside the McKenzie’s house.
[65]
Counsel for accused 1 then sought to call
one Cyril Williams as a witness. Williams who had attended
court in the morning,
disappeared not to return by the time counsel
wished to call him. He remained unavailable notwithstanding the
time afforded
by a luncheon adjournment and the interposing of
accused 2’s evidence out of order. Counsel had previously
applied
in terms of
s 179
of the
Criminal Procedure Act to
the
registrar for the issue of a subpoena for Williams on a costs-free
basis. The registrar had been reluctant to grant that
application apparently because it was considered that the Legal Aid
Board should cover the costs. In the context of the registrar’s
unwillingness to determine the application determinatively within the
time that the exigencies of the efficient conduct of the
trial
required accused 1’s counsel applied to the court for a
direction that a subpoena be issued and served on Williams
without
the accused being required to pay the usual fees. During the
argument of that application he contended that he would
not need to
persist with the application if the state were willing to agree to
the production of Williams’ witness statement
as evidence of
the content. Counsel for the state, while denying that the
evidence that Williams was expected to give consistently
with such
statement was necessary or material to accused 1’s defence,
agreed to the proposal. The statement was admitted
as exh. V on
that basis. Williams is the person referred to elsewhere in the
evidence as ‘Leggies’. He
lives at the address in
Sullivan Str. from which the two unsavoury looking characters
mentioned in the evidence of Leticia Jacobs
and her daughter, Jamie
Joyce Vorsatz, were seen emerging. His statement identifies the
two as having been Andrew van Niekerk
and Fahiem Block, both persons
described by accused 2 as ‘hit men’ for the Mongrels
gang.
[66]
It is convenient at this stage to deal with
the issue of the inconsistency in the evidence as to the number of
shots that were fired.
It was something that counsel for
accused 1 sought to make something. As I understood his
argument it was to the effect that
if there had been more than two
shots the injuries occasioned to the deceased and Mrs Jacobs could
quite feasibly have been caused
other than by the shooting which
accused 1 testified had been done by accused 2. In this regard
counsel for accused 1 appeared
to put great store on the evidence
that two persons identified as being Mongrels gang ‘hit men’
had been in the close
proximity at the time of the incident. I
do not think that there is anything in the point. Accused 1,
who was best
placed to see and hear the shooting, himself described
that accused 2 had fired two or three shots from behind the bakkie.
His evidence in that regard was borne out by that of Adams who not
only heard two shots but was looking towards the bakkie when
they
were fired and identified by the flashes he saw that they emanated
from where accused 1 and 2 had, according to accused 1
and Anwar
Hendricks, been standing. Accused 1 did not testify to having
seen or heard any other shooting in the vicinity
other than testified
to by himself and Adams. The point is the suggestion by accused
1’s counsel that persons other
than accused 2 might have been
involved in shooting at the group on the corner is entirely
speculative and unfounded in the context
of the evidence of accused 1
himself. The indications on the evidence considered as a whole
support the conclusion that there
were probably only two shots fired,
but in the absence of any evidence that anyone saw or heard shooting
other than that which
emanated from behind the parked white bakkie it
really makes no difference if there were in fact three or possibly
even four.
[67]
Accused 1 then closed his case.
[68]
When accused 2 testified he confirmed the
content of the evidence which he had given in the trial within a
trial concerning the
making of the extracurial statement he made
before Capt. Brink and the pointing out to Capt. van Niekerk.
He stated that
he was not able to say where he had come by the
information set out in his extracurial statement. He said he
had made it
up himself. (
Ek het
uit my eie uit gepraat.
’)
He explained his pointing out by saying that he was familiar with
Melody Square having lived there with a relative
for a while.
He said that he had seen coverage of the incident on television.
These explanations were thoroughly unsatisfactory.
Nothing
about the threats he described as having received from Andrew van
Niekerk and Fahiem Block would explain his making a
self-incriminatory statement. His evidence that he done so only
after being put under pressure by W/O Chetty and Lieut Brown
day
after day with promised incentive of ‘free bail’ was
nonsensical. The statement and pointing out was done
on the
very next day after his arrest. The nature of the pointing out,
in particular where he had stood behind a bakkie when
the shots were
fired, is not something he would have been able to tell only because
he had lived in the area or watched a television
report. It
is beyond coincidence that an allegedly fictitious account by accused
2, allegedly concocted from shreds
of information available to him,
should coincide so closely with the evidence of Anwar Hendricks and
accused 1 and the objective
observations of the police details who
attended the scene of the shooting shortly after it happened.
Added to this is the
improbability that he would in any event have
falsely incriminated himself; something he candidly admitted that he
was unable to
explain. He was also unable to venture any reason
why Anwar Hendricks or accused 1 should have falsely implicated him
as
the person who had fired the shots at Melody Square. He
admitted that he was a member of the Mongrels gang, but claimed not
to know whether Hendricks had been a member or not. He said
that his usual function in the gang was to hawk drugs.
[69]
Accused 2 stated, however, that on the
evening of the shooting at Melody Square he had been at the apartment
of his girlfriend,
Edwina Stevens, at 28 Keppelhof. He had
heard shots being fired at some stage and on investigation had
determined that one
Kaljokkies had been shot and killed on the
stairwell at a nearby block of flats known as Muirhof. After
spending about 20
minutes standing around with the other persons who
had gathered at that scene he returned to his girlfriend’s
flat, where
he remained until he went home to sleep at about quarter
past nine. He said that he had not mentioned his alibi defence
at
his bail application hearing because it had not occurred to him to
do so.
[70]
Accused 2 said that he had not known
accused 1 other than as a co-accused. He admitted to having
known him by sight as someone
who lived in the same neighbourhood,
but had not known his name. He denied accused 1’s
evidence that he (accused 2)
occasional gave small change or a
cigarette to accused 1.
[71]
Edwina Stevens was then called to testify
in support of accused 2’s alibi defence. She is accused
2’s girlfriend
and has two children by him. She said that
it was their wish to be married to each other one day. They had
known each
other since their time in primary school. With only
minor inconsistencies she bore out accused 2’s evidence as to
the
manner in which she and he had spent the evening of 27 June
2012 together at her apartment at 28 Keppelhof, apart from a short
period, which she estimated to have been about five minutes, when
accused 2 had gone outside to investigate the shooting at Muirhof
in
which Kallokies had been killed.
[72]
Ms Stevens cut an unimpressive figure
in the witness box, even allowing for her lack of sophistication and
understandable nervousness.
She was demonstrably dishonest in
certain respects, and probably so in others. She testified that
accused 2 was not a gang
member, when she knew the opposite to be
true. When the untenability of her evidence in this regard
became apparent to her,
she relented and confessed that she had
lied. She was not able to give any reason for having done so.
It can only have
been because she must have thought to admit to the
truth might prejudice accused 2. She testified that shootings
in the precinct
of Keppelhof, Muirhof and De Waalhof were common
occurrences, but professed not to know why. She also claimed to
be unaware
of wars or battles between gangs. As a longstanding
resident of the area involved in an intimate personal relationship
with
a member of a gang active in the area, her professed ignorance
in this regard is inherently highly improbable and detracted from
her
credibility. It was also improbable that she would have
remembered the fine points of detail to which she testified
as to
what she and accused 2 allegedly did together that evening when, if
the evidence they both gave was correct, neither of them
would have
any cause to have such inconsequentialities imprinted in their
memories. It was only on 4 September 2012,
more than two
months after the shooting at Melody Square that accused 2 was
arrested. Neither of them would, on their respective
versions,
have had any reason to consider that they would have any cause in
future to explain what they had been doing on that
evening. And
yet each of them purported independently to recall in pretty much the
same minute detail how they had spent
the evening of 27 June.
By contrast, Ms Stevens could not, however, say in what month it had
been that Kallokies had
been shot, or in what month her boyfriend had
been arrested. She wrongly guessed that it been earlier in
2013.
[73]
Whether or not the alibi evidence tendered
in accused 2’s case could reasonably possibly be true is, of
course, something
that has to be determined in the context of an
assessment of the evidence at the trial considered as a whole, and
the question
marks I have raised about the likelihood of accused 2
and Ms Stevens being able to recall the inconsequential details they
both
described are but part of that exercise. (Compare, for
example,
S v Liebenberg
2005 (2) SACR 355
(SCA) at para 14-15 and the other authority
cited there.)
[74]
The legal representative for accused 2 had
procured the issue and service of a subpoena on a certain Marshall
Burens so that he
could testify in accused 2’s case.
Burens did not comply with the subpoena and an application was made
for the adjournment
of the trial so that he could be arrested and
brought before court. That application was refused and the
reasons for its
refusal were provided
ex
tempore
. In short, after
considering the witness statement made by Burens to the police and
the fact that the indicated expectation
was that his evidence would
accord with the content thereof, it was concluded that the evidence
was not necessary or material for
the accused’s defence.
There is no need for me to go back over that ground again at this
stage.
[75]
When it comes to evaluating the evidence in
the case as a whole what is striking is how a broadly consistent
version of events has
been established in most material respects.
As to what happened in regard to the shooting at Melody Square, it is
evident
from the evidence of Warren Adams, Hendricks and accused 1
that the shots were fired by a person or persons standing behind the
parked white bakkie. Hendricks and accused 1 identified those
persons as having been accused 1 and 2. Hendricks and
accused 1
also testified that only a single firearm was possessed between the
three of them and that it was carried by accused
2. The
evidence of the aforementioned witnesses in this regard is supported
by the objective evidence arising from the police
investigation
immediately after the event. That evidence included the
recovery of the two bullet casings from the pavement
area in Melody
Square just behind the parked bakkie and the forensic analysis which
established that the same firearm had been
used to fire the bullets.
While the evidence obtained by the police from the scene does not by
itself exclude the possibility
of another weapon having been used, it
becomes highly unlikely that was so when that evidence is assessed in
the context of the
direct evidence by the three eye witnesses I have
named. (It is also supported by the content of accused 2’s
extracurial
statement, with which I shall deal presently.)
[76]
The court is mindful that the evidence of
Hendricks, as an accomplice in the shooting incident - on his own
version he kept a lookout
to protect the shooter when he knew that
the object of the expedition was for the Mongrels to wreak revenge by
shooting a person
or persons belonging to or associated with the
rival Junky Funky Kids gang – must be treated with caution, and
that the cautionary
rule also applies to the evidence of accused 1 to
the extent that regard is had to it for the purpose of determining
whether the
guilt of accused 2 has been established.
[77]
I have already mentioned that Hendricks was
not shaken in any material respect under cross-examination. He
made a reasonable
impression in the witness box. He impressed
as a candid witness. It also appeared from the material put to
him in cross-examination
that his version of the events has been
essentially consistent from the outset. More importantly, his
evidence was also supported
in all the material respects by the other
evidence, including the content of the extracurial statement (exh. R)
made by accused
2. In the context of their being well-known to
each other the possibility of a mistaken identification does not
arise.
Defence counsel drew attention to the improbability of
that part of his evidence in which he said he broke away from the
group
to approach a member of the public for a match for his
cigarette. It was argued that he could have obtained a light
from
the people he was with. Hendrick’s behaviour in this
respect was indeed curious, but no-one was able to suggest that
he
would have had any reason to invent the evidence. It did not
bear in any material way on the issues in the trial.
The only
evidence that contradicts Hendricks as to the involvement of accused
1 and 2 at Melody Square on the evening of 27 June
2012 is the alibi
evidence adduced in accused 2’s defence.
[78]
Accused 1 was a weaker witness than
Hendricks, but despite the weaknesses in his evidence, it bore
scrutiny in respect of how the
shooting happened for essentially the
same reasons that I have given in respect of the evidence of
Hendricks. He also knew
accused 2 beforehand. The nature
and extent of their acquaintance may not have been established with
certainty, but in this
case too there is no reasonable possibility in
the circumstances of there having been a mistaken identification.
[79]
As his legal representative reasonably
conceded during argument, it is impossible to reconcile accused 2’s
alibi evidence
with the content of his extracurial statement, which
is self-incriminatory. The accused explained the content of the
statement
as an invention. He did not claim that he had been
told what to say. He also could not have obtained much of the
detail
contained in the statement from anything that might have been
read to him from the extracurial statement of accused 1.
I
should record that, having regard to their performances as witnesses,
I would be inclined to prefer the evidence of Lieutenant
Brown that
accused 2 had not been exposed to accused 1’s statement over
accused 2’s claim to have had part of that
statement read to
him by Brown. But even assuming in favour of accused 2 that
part of accused 1’s statement was read
to him, nothing in the
content of that statement could explain the detail he gave in his own
statement. I have already
sketched, when dealing earlier
with the enquiry into the admissibility of accused 2’s
statement, the unsatisfactory nature
of the explanation that he gave
as to its making. In the judgment of this court there is no
doubt that the extracurial statement
made by accused 2 was predicated
on his actual involvement in the shooting at Melody Square on the
night in question. Its
content is supported by the much of the
other evidence in the case, which I have already summarised.
[80]
And then there is also the evidence of the
pointing out made by accused 2. The exercise was audio-visually
recorded and the
resultant DVD was admitted as exh. O2, with a
transcript of the audio admitted as exh. O3. It is clear from
that evidence
that the accused was able to give a clear and quite
detailed account of events. His account fitted in with the
evidence of
Adams, Hendricks and accused 1 as to where he had been
standing, where the white bakkie had stood, where the group of
persons outside
the McKenzie’s house had been standing.
He also described from where he had fired towards the group. It
is quite
clear from the recording that the accused was confident and
certain in his pointing out of the salient features of the event in
a
manner that might be expected only of someone who had been there.
[81]
In addition to all the other considerations
I have mentioned, which on their own are sufficient to reject the
alibi, there is also
the feature that the accused made no reference
to his alibi when he applied for bail in the lower court.
[82]
In the circumstances, having regard to the
evidence assessed as a whole, the alibi defence may safely be
dismissed as a latter day
concoction.
[83]
The finding of the court therefore is that
accused 1 and 2 proceeded together with Hendricks on the night in
question from Lavender
Hill to Steenberg and that there, in Melody
Square, accused 1 and 2 took up position behind the white bakkie
depicted in the photographs
in exh. A, from whence accused 2 fired at
least two shots in the direction of the group of persons gathered on
the corner outside
the McKenzies’ house. It is found that
the shooting caused the fatal injury sustained by Junaid McKenzie and
the life
threatening injury sustained by Mrs Leticia Jacobs.
The shooting occurred in the context of a mission by the Mongrels
gang
to wreak vengeance on the Junky Funky Kids gang. The court
holds that when he fired at the group of persons gathered on the
corner accused 2 believed them to be connected with the JFK gang.
In directing the shots at the group of persons accused
2 must have
intended to kill. If he had intended anything less, such as
merely to injure, one would have expected him to
say so. He did
not. I accept, however, that the accused, as he said in his
extracurial statement, probably did not
intend to kill the young
boy. He probably also did not intend to kill Mrs Jacobs who was
an innocent passer-by walking beyond
the group at which he fired.
This does not, in our judgment, detract from his direct intention to
kill, for his actions in
the circumstances evinced a general
intention to kill (a so-called
dolus
indeterminatus
); cf.
S v
Nhlapo
1981 (2) SA 744
(A) at 751.
[84]
In our judgment, the murder of Junaid
McKenzie was committed by accused 2 in the context of a conspiracy by
the members of the Mongrels
gang to kill a person or persons
belonging to or connect with the Junky Funky Kids gang in revenge for
the shooting or shootings
that had occurred in ‘the courts’
area of Lavender Hill in which the Mongrels were the dominant gang.
That this
was so is established by the evidence that accused 2
proceeded to Steenberg on the evening in question as part of a group
of Mongrels.
The object of the expedition had been clearly
established when the group set out. There were further
discussions between
the members of the group stopped on the Lavender
Hill side of Prince George Drive before splitting up and proceeding
in different
directions. Sufficient corroborative detail for
these conclusions is to be found in accused 2’s extracurial
statement
(exh. R), whence, amongst other matters, it appears
that he was issued with a firearm and ammunition for the purpose by a
fellow gang member, the abovementioned Andrew van Niekerk. The
murder was therefore one falling within that defined in paragraph
(d)
of the categories of murder set out in
Part I
of Schedule 2 to the
Criminal Law Amendment Act 105 of 1997
and thus subject to the
prescribed sentencing regime in
s 51(1)
of the said Act.
[85]
As far as accused 1 is concerned, we find
his evidence as to his state of mind or intention in accompanying
accused 2 and Hendricks
to the scene of the shooting improbable.
We consider the evidence of Hendricks that accused 1 knew what the
purpose of the
expedition was to be probably closer to the truth.
That does not mean, however, that he can be found guilty on the
counts
of murder and attempted murder. Counsel for the state
conceded that the state had not proven any prior agreement between
accused 1 and 2 concerning a joint enterprise to shoot on members of
the JFK’s. Counsel further conceded, correctly,
that in
order to secure a conviction on counts three and four the state thus
had to satisfy the requirements identified in
S
v Mgedezi
1989 (1) SA 687
(A) at 705-6;
viz (i) presence at the scene where the violence was committed;
(ii) awareness at the time of the commission
of the offences;
(iii) an intention to make common cause with the person who was
actually perpetrating the assault; (iv) a
manifestation of his
sharing of a common purpose with the perpetrator of the assault by
himself performing some act of association
with the conduct of the
perpetrator and (v) the requisite
mens
rea
.
[86]
We have not been satisfied on the evidence
that the state has succeeded in establishing all the aforementioned
requirements beyond
reasonable doubt. There is no suggestion
that accused 1 is or ever had been a gang member. His
involvement in the expedition
appears to have occurred incidentally
and, even rejecting his evidence that he accompanied accused 2 and
Hendricks only in the
expectation that he might procure some dagga,
there is nevertheless a reasonable possibility that he went with them
out of interest
and curiosity to witness a shooting rather than to
participate in it. Certainly his described conduct at the scene
of the
shooting makes that a reasonable possibility. Apart from
merely being in the company of accused 2 and Hendricks, the only
act
of association on which the prosecutor could rely was the taking of
the gun from accused 2 when they were running away after
the
shooting. That argument does not stand up. It is trite
that the act of association must precede or be contemporaneous
with
the carrying out of the offence. Merely standing next to
accused 2 when the latter took up position behind the bakkie
and
watching him shoot does not, in our judgment, constitute an act of
association.
[87]
It is convenient to deal next with counts
five and six. The evidence clearly established that accused 2
was in possession
of a firearm and that it must have been loaded with
at least two rounds of ammunition. It also established that
accused 1
subsequently accepted the firearm from accused 1 and
ensured its return from Steenberg to the Lavender Hill area. He
was
thus also in possession of the firearm. It is not apparent,
however, whether there was any ammunition in the firearm after
it had
been discharged by accused 2 in the circumstances discussed earlier.
The accused adduced no evidence to establish
the lawfulness of their
possession of a firearm or ammunition. In the result accused 1
stands to be convicted on count five,
but acquitted on count six,
while accused 2 stands to be convicted on both counts.
[88]
Turning next to deal with the statutory
offences of which the accused are charged in terms of counts one and
two in the indictment.
[89]
Section 9(1)(a) of POCA provides:
Any person
who actively participates in or is a member of a criminal gang and
who-
(a)
wilfully aids and abets any criminal
activity committed for the benefit of, at the direction of, or in
association with any criminal
gang
…
shall
be guilty of an offence.
[90]
Accused 1 is not a gang member and it has
not been established that he participated in a criminal gang.
Merely accompanying
accused 2 in the context discussed earlier, in
other words possibly as a mere spectator or curious onlooker, does
not constitute
participation in a gang. A conviction on count
one thus cannot be sustained against accused 1.
[91]
Accused 2 was confessedly a member of the
Mongrels gang at the time. The evidence established that the
Mongrels gang qualified
as a ‘criminal gang’ within the
definition of that term in s 1 of POCA. The ‘criminal
activity’
concerned in the current matter was the shooting and
the unlawful possession of a firearm and ammunition. Accused 2
was the
principal perpetrator of the shooting and he possessed the
firearm and ammunition. As explained in Claassen,
Dictionary
of Legal Words and Phrases
s.v. ‘Aid
and abet’ ‘If a person assists in or facilitates the
commission of a crime, if he gives counsel or encouragement,
if, in
short, there is any co-operation between him and the criminal, then
he “aids” the latter to commit the crime
(
R
v Van Niekerk
1944 EDL 202)
’.
Accused 2 therefore cannot competently be convicted of aiding and
abetting in the criminal activity in which he was
the principal
actor. A conviction on count one thus also cannot be brought in
against accused 2.
[92]
Section 9(2)(a) of POCA provides:
Any person
who-
(a)
performs
any act which is aimed at causing, bringing about, promoting or
contributing towards a pattern of criminal gang activity
…
shall
be guilty of an offence.
[93]
The term ‘
pattern
of criminal gang activity
’ is
defined in s 1 of the Act as follows: ‘
In
this Act, unless the context otherwise indicates – “pattern
of criminal gang activity” includes the commission
of two or
more criminal offences referred to in Schedule 1: Provided that at
least one of those offences occurred after the date
of commencement
of Chapter 4 and the last of those offences occurred within three
years after a prior offence and the offences
were committed - (a) on
separate occasions; or (b) on the same occasion, by two or more
persons who are members of, or
belong to, the same criminal gang’.
Counsel for the state conceded that the evidence did not establish
the existence
of a pattern of criminal activity within the defined
meaning, but relying on the word ‘includes’ in the
statutory definition
argued that the term also falls to be applied in
accordance with the tenor of the ordinary import of the words that
make it up.
He found support for this construction in an
article by Professor CR Snyman, ‘
Die
nuwe statut
êre midaad van
deelname in ’n kriminele bende
’
(SACJ
(1999) 12 213).
[94]
We find considerable difficulty with the
defined meaning of the term. The term is used only in s 9(2)(a)
of the Act.
The defined meaning would require the state to rely
on the past commission of certain offences within a certain period by
two or
more members of a particular gang acting together to establish
a pattern of criminal gang activity. It could relate only to
a
charge under the subsection that was predicated on the allegation
that the accused had done something aimed at promoting or
contributing towards the furtherance of an established pattern of
activity. However, the offence created in terms of s 9(2)(a)
of POCA also includes conduct aimed at causing or bringing about a
pattern of criminal gang activity. Conduct which causes
or
brings about something is clearly conduct that occurs before that
which it causes or brings about and thus must bear on criminal
gang
activity which has not yet occurred. The defined meaning can
have no application in the latter context and thus the
context can
require that the term is given its ordinary rather than its specially
defined meaning.
[95]
We do not consider it necessary, however,
to try to resolve the anomalous definition of the term. It is
clear than an offence
in terms of s 9(2)(a) of POCA is
established only if it is proven that the act performed by the
accused is performed by him
with the intention of causing, bringing
about, promoting or contributing towards a pattern of criminal gang
activity. The
test is a subjective one, not an objective one.
The fact that the conduct might objectively be recognised as conduct
that
caused, brought about, contributed to or promoted a pattern of
criminal gang activity does not mean that it was necessarily
undertaken
by the accused with the intention that it should have such
an effect. While there was evidence suggesting that the
Mongrels
gang was engaged on an on-going basis in what might in
ordinary language be described as a pattern of criminal activity,
there
was no evidence that the acts performed by either of the
accused were performed with the requisite intention. It was not
apparent on the evidence that either of the accused did anything with
a conscious view towards the effect thereof within the broader
picture of gang-related activity in the area. It was also not
suggested to either of them in cross-examination that they
had done
so. In our view a contravention of s 9(2)(a) of POCA has
not been established against either accused.
[96]
The accused are therefore entitled to be
acquitted and discharged on counts one and two.
[97]
The witness Anwar Hendricks is entitled to
be discharged in terms of
s 204(2)
of the
Criminal Procedure Act
from
prosecution for the murder of Junaid McKenzie, the attempted
murder of Leticia Jacobs, the unlawful possession of the firearm and
ammunition possessed by accused 2 at the time of the commission of
the aforementioned offences of murder and attempted murder,
and, in
respect of or in connection with any of the aforementioned offences,
for committing an offence in terms of
ss 9(1)(a)
or
9
(2)(a) of
the
Prevention of Organised Crime Act 121 of 1998
.
[98]
In the result the following verdicts are
returned:
In respect of Accused 1:
(a)
The
accused is found not guilty and is acquitted and discharged on counts
one, two, three, four and six.
(b)
The
accused is found guilty on count five, namely of having unlawfully
possessed a firearm without a licence.
In respect of accused 2:
(a)
The
accused is found not guilty and is acquitted and discharged on counts
one and two.
(b)
The
accused is found guilty on counts three, four, five and six.
[99]
An order is made in terms of
s 204(2)
of the
Criminal Procedure Act 51 of 1977
that the state witness,
Anwar Hendricks, is discharged
from
prosecution for the murder of Junaid McKenzie, the attempted murder
of Leticia Jacobs, the unlawful possession of the firearm
and
ammunition possessed by accused 2 at the time of the commission of
the aforementioned offences of murder and attempted murder,
and, in
respect of or in connection with any of the aforementioned criminal
activity, for committing an offence in terms of
ss 9(1)(a)
or
9
(2)(a) of the
Prevention of Organised Crime Act 121 of 1998
.
A.G.
BINNS-WARD
Judge of the
High Court