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THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION)

 

JUDGMENT

	Case No: CC 23/2018
In the matter between
THE STATE
and
HORATIO SOLOMON	ACCUSED   1
ISMAIL OCKERTS	ACCUSED   2
BRIAN [F]	ACCUSED   3
ISHMAEEL OCKERTS	ACCUSED   4
ELTON ELY	ACCUSED   5
BRENT CAMPBELL	ACCUSED   6
BRADLEY ROBERTS	ACCUSED   7
LEZAY BOOYSEN	ACCUSED   8
FABIAN CONSTABLE	ACCUSED   9
ZIYAAD SAFODIEN	ACCUSED 10
KEENAN KRUGER	ACCUSED 11
LUCIAN CONSUL	ACCUSED 12

Coram:              Rogers J

Heard:               2019: 12-15 & 26-29 August; 2-5, 10-12 & 18-19 September; 7-10, 16-17,             21-24 & 28-31 October; 4-6, 11-14, 18-19, 25, 26 & 28 November; 2-3 & 11-        12 December. 2020:  10-13, 17-19 & 24 February; 17-19 March; 5 & 13 May;          13-17, 20-24 & 27-30 July; 3 & 24-27 August.     

 

Delivered:          28-29 September 2020

 

JUDGMENT

 

Rogers J

Introduction

[Pursuant to s 153(2)(b) of the Criminal Procedure Act 51 of 1977 and s 18 of the Witness Protection Act 112 of 1998, the names of certain witnesses and other persons have been anonymised. In regard to counts 50-54, the name ‘Larry’ is not the victim’s real name. Various addresses have also been anonymised for the foregoing reasons and/or in the interests of justice.]

[1]                   There are 71 counts against various of the 12 accused persons. The State alleges that all the accused belonged to a gang called the Terrible Josters, and that No 1 and No 5 were leaders of the gang in Delft and Belhar respectively.

[2]                   Mr Menigo prosecuted; Mr Liddell represented No 1; Ms Webb represented No 2, No 8, No 11 and No 12; Mr Weeber represented No 3, No 4, No 6, No 7 and No 9; and Mr McKernan represented No 5 and No 10.

The charges

[3]                   Counts 1 and 2 are charges of contraventions of the Prevention of Organised Crime Act 121 of 1998 (‘POCA’). Count 1 alleges that No 1 and No 5 have contravened s 9(2)(b). Count 2 alleges that all the accused have contravened s 9(2)(a), alternatively s 9(1)(a). Whether the accused are guilty on these counts depends on the outcome on counts 3-71.

[4]                   Counts 3-71 comprise 17 sets of charges relating to 17 incidents, and follow a chronological order. Counts of murder or attempted murder are accompanied by counts alleging unlicensed possession of firearms and ammunition in contravention of the Firearms Control Act 60 of 2000 (‘FCA’). In some sets there are related counts of conspiracy or incitement to commit murder in contravention of s 18(2) of the Riotous Assemblies Act 17 of 1956 (‘RAA’).

[5]                   The sets of charges are as follows (identified with reference to the principal crime charged):

(a)  counts 3-4: murder of Jermaine Louw @ Joey (August 2009);

(b)  counts 5-8: attempted murder of the occupants of 18 Anreith Ave, Belhar (August 2012);

(c)  counts 9-13: murder of Levert Seekoei @ Sharkey (September 2012);

(d)  counts 14-17: attempted murder of Brandon Dickson @ Mablou (September 2012);

(e)  counts 18-20: murder of Brandon Dickson @ Mablou (January 2013);

(f)  counts 22-25: murder of Jermaine McKenzie @ Piggels (March 2013);

(g)  counts 26-34: murder of Leon Davids @ Leontjie (October 2013);

(h)  counts 35-38: murder of Vernon Botes (June 2014);

(i)  counts 39-42: murder of Neano Kleynhans (July 2014);

(j)  counts 43-46: murder of Aubrey Johannes (July 2014);

(k)  counts 47-49: murder of Wayne Lekeur @ Lonty (July 2014);

(l)  counts 50-54: murder of [Larry K] (October 2014);

(m)  counts 55-58: murder of George Stevens (February 2016);

(n)  counts 59-62: attempted murder at [ST] Cres, Delft (April 2016);

(o)  counts 63-66: attempted murder in Pokkiesdoring Cres, Delft (May 2016);

(p)  counts 67-70: murder of Victor Browers @ Fox (December 2016);

(q)  count 71: dealing in drugs, arising from a raid carried out in Durbanville (December 2016).

Section 174 discharges

[6]                   Upon the conclusion of the State’s case, all of the accused applied for their discharge on all the charges levelled against them. I upheld the application in respect of a few of the charges, but in the main the applications for discharge were refused. I furnished brief reasons at the time. In terms of my ruling, the discharge applications were successful to the following extent:

(a)  Counts 9-13 (murder of Levert Seekoei @ Sharkey): No 5 was discharged on counts 12 and 13 (possession of firearms and ammunition).

(b)  Counts 18-21 (murder of Brandon Dickson @ Mablou):

(i)  No 2 was discharged on count 18 (conspiracy to commit murder) and count 19 (murder).

(ii)  No 6 was discharged on count 19 (murder).

(c)  Counts 26-34 (murder of Leon Davids):

(i)  No 3 was discharged on counts 26 (the first of the two conspiracy counts).

(ii)  No 1 and No 4 were discharged on count 31 (the first of the two attempted murder charges, in regard to which the court has treated Stacey Afrikaner as the complainant).

(iii)  No 1, No 2, No 4 No 8 were discharged on count 32 (the second of the attempted murder counts, there being no identified complainant).

(iv)  No 4 was discharged on counts 33 and 34 (possession of firearms and ammunition).

(d)  Counts 35-38 (murder of Vernon Botes). No 1 and No 2 were discharged on counts 37 and 38 (possession of firearms and ammunition).

(e)  Counts 39-42 (murder of Neano Kleynhans): No 5 was discharged on count 40 (murder).

(f) Counts 43-46 (murder of Aubrey Johannes):

(i)  No 2 was discharged on count 44 (murder) and counts 45 and 46 (possession of a firearm and ammunition).  

(ii)  No 1 and No 5 were discharged on counts 45 and 46 (possession of a firearm and ammunition).

(g)  Counts 55-58 (murder of George Stevens): No 11 and No 12 were discharged on count 56 (robbery with aggravating circumstances).

(h)  Counts 59-62 (attempted murder in […]): No 2 was discharged on counts 59-62.

(i)  Counts 63-66 (attempted murder in Pokkiesdoring Cres): No 2 was discharged on counts 63-66.

The s 204 witnesses

[7]                   In respect of all counts other than (d), (n), (o) and (q), the State relies principally on the evidence of either [CF] (10 sets of charges) or [CS] (two sets). They testified in terms of s 204 of the Criminal Procedure Act 51 of 1977 (‘CPA’). [CF] alleged that he was at all material times a member of the Terrible Josters and closely allied with No 5. No 3 is his brother. [CS] was associated with the Terrible Josters but testified that he was not a member.

[CF]

[8]                   In his demeanour, [CF] made a favourable impression. He was methodical. He listened carefully to questions and sometimes asked for them to be clarified. Where necessary he took time to collect his thoughts before responding. Bearing in mind that he was testifying in the latter part of 2019 about 11 episodes over the period August 2009 to October 2014, he had a good grasp of the different sets of charges, of the persons allegedly involved in them, and of the details of the incidents. He was largely unemotional, one might almost say blunted, in the way he described horrific events. He gave the impression of intelligence.

[9]                   Because he was a single witness on the question of identification, and because he was an accomplice in some of the charges, caution is necessary in evaluating his evidence. He differs, however, from the usual accomplice/s 204 witness in that, at the time he began to cooperate with the police, neither he nor the persons he named were suspects, and there was no evidence against them. It thus cannot be said that he gave information – potentially fabricated – in order to deflect attention from himself or in the hope of clemency.

[10]               [CF]’s cooperation with the police began while he was an awaiting-trial prisoner in Goodwood in the latter part of 2015. The charge for which he was in custody – the theft of a motor vehicle – is unrelated to the present charges. On his version, the immediate catalyst for cooperation was that he feared for his life and was being required by members of the 28s (a prison gang to which he belonged) to stab an inmate. He reported this to the head of the prison, Mr H Hanekom, who arranged for him to be transferred to the hospital section as a safety precaution. [CF] testified that he had in any event been wanting to withdraw from the gang for some time. He told Hanekom that he had information about the criminal activities of the Terrible Josters.

[11]               The first police officer to interview [CF] was Lt-Col Ockhuis. On Hanekom’s evidence, this interview took place in his (Hanekom’s) office. Following [CF]’s release on bail on 6 November 2015, Capt Joubert was assigned to interview him again, which he did on 9 November 2015. Joubert did not initiate discussion on particular incidents; it was [CF] who identified the incidents of which he had knowledge.

[12]               Following this interview, [CF] made a s 204 statement on 10 November about the murder of Wayne Lekeur @Lonty.[1] Joubert did not have time to take down statements about the other incidents. He dealt with them – in some instances only in point form – in an information note dated 17 November 2015.[2]

[13]               Sgt Bonthuys, assisted by Const A van Wyk, was then assigned to the investigation. Bonthuys and Van Wyk interviewed [CF] over several days in the latter part of January 2016, by which time [CF] was in the witness protection programme. At this early stage Bonthuys had not traced dockets relating to the matters identified by [CF], though he was familiar with one of the incidents – the murder of [Larry K] – because he was the investigating officer in that case. During the course of the week they were able to identify the existence of another docket, the murder of Neano Kleynhans. In respect of these two matters, they took s 204 statements from [CF]. In respect of the other incidents, they took ordinary statements.

[14]               After these interviews, they tracked down dockets in the other incidents and met with [CF] again in September 2016, when the ordinary statements were converted into s 204 statements, largely as a cut-and-paste exercise. All in all, [CF] signed 26 statements over the period 10 November 2015 – 4 December 2018,[3] and was the source of information contained in Joubert’s information note. All of this material was available to the defence, and unsurprisingly it was deployed to the full in cross-examination.

[15]               The main criticism of [CF] is that in certain respects his evidence was shown, by other objective facts, to be wrong. It will be necessary to consider whether he was honestly mistaken or deliberately fabricating and in either event to assess how these inaccuracies bear on the rest of his evidence. The same applies to discrepancies between his written statements and oral evidence and to internal contradictions in his oral evidence.

[16]               [CF] was in the witness box for 21 days over a period of eight weeks spanning 13 August – 21 October 2019. He was closely questioned not only about the 11 sets of charges to which is evidence was directly relevant (events spanning the period August 2009 – October 2014) but also, collaterally, about his childhood, schooling, the various places he had lived in an unusually peripatetic life, his initiation into gangs and about other criminal activity in which he was involved. He was taxed on every inconsistency between his many written statements and his oral evidence and about the way in which the written statements were taken. It became evident that at times he was confusing the interviews of January and September 2016. That there were discrepancies and inaccuracies is unremarkable.

[CS]

[17]               [CS] testified about two sets of charges. In both sets, he is a single witness on identification, and in one of the sets he is also an accomplice. Once again, therefore, there is the need for caution.

[18]               [CS] testified that he was in a special class at school. His ability to read, write and count is very limited. His demeanour and performance in the witness box bore this out. He generally made a favourable impression, assisted by an evident lack of astuteness and guile. I never gained the impression that he was telling deliberate falsehoods. He struck me as a person of whom advantage could easily be taken. I do not believe that he had the mental acuity to absorb and sustain a complex fabrication.

The accused

[19]               All of the accused apart from No 3 testified in their own defence. No 4, No 8 and No 9 also called witnesses to support their alibis. They denied any involvement in the crimes alleged against them. They also denied being members of the Terrible Josters.

[20]               While some of them made a more favourable impression than others, I cannot say that there was anything materially adverse in their demeanour. My contemporaneous observations (ie upon the conclusion of each accused’s evidence) were the following:

(a)  No 1 @Vodie: He was a reasonably pleasant witness in chief but in cross-examination he became somewhat arrogant and at times argumentative.

(b)  No 2 @Issie: There was nothing in his demeanour to criticise.

(c)  No 4 @Eel:  He struck me as lacking in intelligence, but there was nothing negative in his demeanour.

(d)  No 5 @Guppy:  He was a garrulous witness, and at times non-responsive or evasive. 

(e)  No 6: He made a favourable impression, and struck me as being reasonably intelligent. He displayed greater candour than the accused who went before him.

(f)  No 7 @Kapadien:  He was an unimpressive witness.

(g)  No 8 @Kleintjie:  He cut a somewhat pathetic figure. He had clearly experienced a dysfunctional childhood.

(h)  No 9 @Fabba:  He exuded an air of arrogance.

(i)  No 10 @Ysters:  He gave short and stubborn answers. He often answered questions before they were completed, apparently already clear in his mind what he planned to say, almost as if he wanted quickly to get rid of awkward issues.

(j)  No 11 @ (Groot) Kapadien:  He had a pleasant demeanour, but he left an impression of being cocky and ultimately shifty.

(k)  No 12 @Lurkie:  He made an unfavourable impression.

The further structure of this judgment

[21]               I intend to deal first with those counts which do not depend exclusively or at all on the testimony of [CF] or [CS] in order to identify the accused as the perpetrators. These are counts 14-17 (the attempted murder of Mablou), 35-38 (the murder of Vernon Botes), counts 59-62 (the attempted murders in [ST] Cres) and count 71 (drug dealing).

[22]               I shall then deal with the counts which depend on [CS]’ testimony, namely counts 55-58 (the murder of George Stevens) and counts 67-70 (the murder of Victor Browers). I shall thereafter deal with the counts which depend on [CF]’s uncorroborated testimony, before finally considering counts 1 and 2 (the POCA charges).

Counts not dependent on [CF] and [CS]                            

Counts 14-17 (attempted murder of Brandon Dickson @ Mablou)

[23]               These counts charge No 9 with attempted murder and with the unlawful possession of a firearm and ammunition, allegedly committed on 18 September 2012.^[4]

[CF]’s evidence

[24]               [CF] testified that the TJ had information that Mablou was the person who had shot @Ginger (identified in other evidence as Hylton Adriaanse), a former leader of the TJs. On a particular day Tyrone and No 9 (who were cousins) and [CF] were at Tyrone’s grandmother’s house in [CT] Ave, Belhar. Tyrone got a telephone call, after which he told No 9 that the latter was to go to the Airport Mall on the Arterial Rd to shoot Mablou, because No 9 ‘het nog nie sy nommer vasgeslaan nie’ (ie had not yet proved himself by carrying out a shooting). Later in his evidence he also mentioned that No 9 was selected because both No 9 and Mablou were from Belhar (ie even though Ginger had been a Delft TJ).

[25]               When Tyrone received the call, the three of them were busy cleaning their firearms. After the instruction had been given to No 9, Tyrone and No 9 put one of their firearms in the bungalow and left with the other firearm. [CF] remained at the house. They returned about an hour and a half later and put the firearm in the bungalow. The three of them did not discuss what had happened. This was an instance of the practice of the gang members not to talk about shootings after the event.

[26]               The following day the police arrested Tyrone and No 9 for the attempted murder. [CF] was present at [CT] Ave when Const Stuurman arrived to make the arrest. Stuurman said that witnesses had seen them shooting.

[MT]’s evidence

[27]               [MT] testified that she was in a relationship with Brandon (Mablou) at the time of the attempted murder and at the time of his later murder. They had two children.

[28]               Mablou was a Belhar Junior Mafia. She knew Tyrone Constable from sight and was very familiar with No 9, having been at school with him. They had been in the same grade but not in the same class. She saw him every day at school though they were not friends. No 9, Tyrone and several others often stood at the corner of the park. When she and Brandon walked in that vicinity, Brandon used to tell her that they were TJs.

[29]               On the afternoon of the attempted murder, she, Brandon and their friend Nolan van Schalkwyk were walking back from the Airport Mall. Brandon suddenly dashed off, jumped over a fence onto the Arterial Rd verge, eventually re-joining them via a side road. She asked him why he had disappeared. He asked if she had not seen what he had seen – Tyrone giving No 9 gun with which to shoot him. Neither Van Schalkwyk nor [MT] had seen this.

[30]               They quickened their pace in case Tyrone and No 9 should drive their way in a car to shoot Brandon. They walked up De Mist Ave and right into Batavia Dr. About halfway between the De Mist Ave and Drommedaris Rd corners, Brandon gave her some money which he owed her mother. At this moment she looked up and saw No 9 coming round the corner of Drommedaris into Batavia with a pistol in his hand. At this point he was about 10 to 15 m from them (she pointed out the distance in court). She was standing between Brandon and Van Schalkwyk. No 9 was wearing a bandanna around his head. The vengeance (‘wraak’) she saw in his face shocked her. At that time his hair was long and braided.

[31]               No 9’s first shot in their direction hit the ground and went through her legs, leaving a mark on her leg. She was frozen to the spot in fright but was shouting and swearing at No 9. Van Schalkwyk, followed by Brandon, turned around and ran back into De Mist, Van Schalkwyk turning left, Brandon right. No 9 chased after Brandon, running directly past her. No 9 fired a second shot at Brandon from a distance of 3 to 5 m, at which point Brandon was at the corner of Batavia and De Mist. [MT] in the meanwhile was following behind No 9. After running up De Mist, Brandon turned right through the bollards at the entrance to an alley leading to Bergzicht Cres. No 9 followed Brandon into the alley. [MT] heard several further shots but could not see No 9 and Brandon because she was still in De Mist when the further shots began, and she stopped to keep out of harm’s way.

[32]               When she thought it safe, she walked through the alley. She saw a young boy limping into a house (this was [LA], whose mother was also a witness for the State). Another youngster told her that Brandon had gone into the house opposite the limping boy’s home. She knocked on the door, and Brandon eventually emerged.

[33]               A Detective Loos asked Brandon to make a statement but he did not want to open a case because both he and No 9 were 28s.

Derek Haupt

[34]               During the course of [CF]’s cross-examination, Mr Weeber put to him No 9’s alibi defence, viz that he was at work that day, his employer being Prestige Cleaners. [CF] replied that he was aware that No 9 had worked for the cleaning company on a contract it had with Consol but the contract had come to an end before Mablou’s attempted murder.

[35]               The State called Derek Haupt to rebut the alibi. Haupt is employed by Bidvest Prestige (‘Prestige’) as its General Manager: Industrial Relations. Haupt began employment with Prestige in June 2015 so was not part of the company at the time of Mablou’s attempted murder. He testified that he had examined the company’s records. These^[5] reflected that No 9 was a temporary employee who worked random hours over the five-month period 16 April – 15 September 2012 (the monthly wage report runs from the 16^th of one month to the 15^th of the next). No 9 did not record any hours in the two months preceding this period or in the five months postdating it.

[36]               In the first four cycles of the five-month period for which No 9 had recorded hours, his total monthly hours work ranged from 104 to 242. In the last cycle (16 August – 15 September 2012), he worked only 20 hours. The records did not enable Haupt to say when during the month, or for which client, those hours were worked, but the low number would be consistent with the Consol contract having come to an end early during that monthly cycle.

[37]               Haupt concluded, based on Prestige’s records, that No 9 had not worked for Prestige after 15 September 2012. Mr Weeber put to him that No 9 had indeed worked for Prestige on 18 September 2012 (the date of Mablou’s attempted murder), but that by that time he was no longer working on the Consol contract but on Prestige’s contract with the University of the Western Cape (‘UWC’). Haupt confirmed that Prestige did have a contract with UWC, but said that the records were inconsistent with No 9 having worked on that or any other contract on 18 September 2012. I add that no mention was made of UWC when Mr Weeber raised the alibi with [CF].

[38]               The hours in the monthly analysis were based on hours which the employee and site supervisor recorded and verified in the daily register. The register regularly went to the wage department for the information to be captured. It was put to Haupt that there may have been an oversight on the part of the person who entered the data on the system. Haupt replied that an employee’s wage packet was generated by a system calculation. Since the system recorded no hours for No 9 in the cycle beginning 16 September 2012, No 9 could not have been paid. There was no indication that a dispute had ever been raised (and it was not put to him that one had). The same would be true of the fact that he was only remunerated for 20 hours in respect of the preceding cycle.

Other State evidence

[39]               Ms [ZA] testified that very shortly after hearing two sharp reports which sounded to her like firecrackers, she discovered that her son [LA], who had been playing outside, had been shot in the foot. [LA] was six years old but had a mental age of three. [LA] was in Tygerberg Hospital for a few days but mercifully the injury had no lasting ill-effects, though for the first few days he suffered severe pain. [ZA] was inside the house when the shots were fired and could not give any information about the perpetrator.

[40]               It is not in dispute that the shooting took place on 18 September 2012. Brandon Dickson was in Tygerberg Hospital for three days with a gunshot wound to his right knee.^[6] [LA] was also in Tygerberg Hospital with a gunshot wound to his left foot. A surgical debridement was performed in theatre.^[7]

[41]               Sgt Abrahams began his photographic investigation of the crime scene at 16:17 on 18 September 2012.^[8] He collected four cartridge cases in the alley where the final shots were fired. They were all 9 mm Parabellum calibre cartridges: two of them fired, the other two unfired (ie still consisting of primer, case, bullet and propellant). The ballistics report^[9] states that the two fired cartridges were fired from the same firearm. Sgt Abrahams’s affidavit records that another police member picked up two cartridges near the corner of Batavia Dr and Drommedaris Rd, but there is no ballistics report about them.

[42]               A further ballistics report^[10] concluded that the fired cartridges found on the scene of Mablou’s attempted murder matched fired cartridges found on the scene of the murder on 13 September 2012 of Levert Seekoei @Sharkey (counts 9-13) and on the scene of the attempted murder of Toppie Salie, which took place on the day after Mablou’s attempted murder (where [CF] himself was the shooter). In other words, the same 9 mm pistol was used in all three incidents.

[43]               On 19 September 2012 Const Stuurman arrested No 9 and Tyrone at [… CT] Ave, Belhar. Charges against them were withdrawn after Dickson’s (Mablou’s) death on 21 January 2013.^[11]

[44]               Nolan Van Schalkwyk is serving a 10-year sentence in Goodwood prison. Const van Wyk arranged a prison consultation but Van Schalkwyk is not willing to testify and has refused to cooperate.

No 9’s evidence

[45]               No 9 denied being a TJ. He admitted that he was a member of the 28s, but he only joined the prison gang after his arrest for Mablou’s attempted murder. He joined the 28s because he had seen what happened to the unaffiliated prisoners, the so-called ‘Franse’.

[46]               He confirmed that he lived at his grandmother’s house in [CT] Ave, Belhar. He testified that Tyrone Constable (now deceased) was his cousin and they were good friends. Tyrone was in and out of prison. No 9 knew that Tyrone was a 28 but could not say whether he belonged to a street gang. He denied that Tyrone was a TJ.

[47]               No 9 was acquainted with Brandon Dickson whom he knew as Blou, not Mablou. Brandon lived in [LD Cres. In cross-examination he testified that he did not know whether or not Brandon was involved in the game. He denied having shot at Brandon on 18 September 2012.

[48]               He testified that for some time he had been employed by Prestige, which had a cleaning contract with Consol. The three-month Consol contract terminated at the end of July 2012, but Consol needed people to continue cleaning the site through to the end of August, and he continued working there for long hours.

[49]               As from September 2012 Prestige offered him work on its UWC cleaning contract. There was no break in his employment, save that whereas he had worked five days a week at Consol, he was only offered three days a week at UWC. His three days were Mondays, Tuesdays and Thursdays. He signed the register when he arrived and left work each day. He was thus at work on Monday and Tuesday 17-18 September 2012. His working hours were 08:30-16:00, and he never knocked off early.

[50]               He remembered Tuesday 18 September 2012 because it was his mother’s birthday. Before he left for work on the Tuesday morning, he and his mother discussed the plans for celebrating her birthday that evening.

[51]               He was arrested for Mablou’s attempted murder on Wednesday, 19 September 2012. (This was not one of his working days.) In his warning statement he said that he had been at work with Prestige at the time of the shooting.

[52]               It was put to him in cross-examination that on his version Prestige would have owed him money for the days he worked on 17 on 18 September. His reply was that when on 9 November 2012 he was released on bail, he discovered that Prestige had sent him a cheque for +R300 which could possibly have been for those two days. He admitted that receipt of the cheque was unusual, because hitherto Prestige had always paid his monthly wages directly into his bank account.

[53]               He confirmed that he and [MT] had been at school together. He said that this was in 2006 and part of 2007. He knew her from sight but did not know her name and they never spoke. He knew she lived in the Bloemendal area. There have never been any trouble between him and her. He agreed that in 2012 he wore his hair braided but said that a lot of people in Belhar have that hairstyle.

Carol Roberts

[54]               Mr Weeber called Ms Carol Roberts, No 9’s girlfriend, to confirm his alibi. She testified that their relationship started in May 2012, and they are still partners (they have a daughter born in January 2016).

[55]               They met through their work with Prestige. She never worked on the Consol job. They were both working at UWC by the time their relationship began. She had been in a relationship with him for two or three months by the time of his arrest. (If the latter statement is correct, the relationship could not have started as early as May 2012. Her evidence that their relationship only started when they both were working at UWC, and that the relationship was two or three years old by the time of his arrest, cannot be reconciled with No 9’s testimony.)

[56]               Unlike the men, the women at UWC worked five or six days per week. She could not remember what No 9’s working days were.

[57]               She learnt of No 9’s arrest from No 9’s mother as she was walking home. According to his mother, No 9 had been arrested earlier that day (this would be Wednesday 19 September 2012). She testified that No 9 had been at work the previous day. She also recalled having popped in at No 9’s place on the Tuesday evening, because they had been some sort of celebration there.

[58]               She said that Prestige always paid her wages directly into her bank account. She and a number of other casuals have left Prestige because of short- payment. She heard that somebody had been stealing from the company but she could not explain how this had resulted in short-payment to the casual workers.

[59]               In cross-examination she confirmed that she had first been approached to give evidence in this case the day before she testified. She had not previously been approached by any lawyer acting on behalf of No 9. During the period of slightly more than seven weeks that her boyfriend was in custody for the attempted murder, she did not approached the police to say that she could confirm that he had been at Prestige/UWC on the day of the shooting.

Discussion

[60]               [MT] made a favourable impression on me. She struck me as genuinely baffled by Mr Weeber’s close questioning on precisely where she was standing when various things happened. I do not consider that the discrepancies which emerged between her police statement^[12] and oral evidence were material or pointed to a lack of credibility or reliability. It is quite likely that Const Stuurman was imprecise in the way she recorded what the witness said, and that [MT] herself was not alive to the need for absolute precision. Stuurman may also have chosen to omit things which [MT] in fact told her. This applies, eg, to what (according to [MT]) Brandon had said about Tyrone handing a gun to No 9: Stuurman may have omitted this as hearsay, perhaps hoping to get a statement from Brandon himself.

[61]               On the crucial question of identification, [MT] was familiar with No 9’s appearance. She recognised him as soon as she saw him at the corner. And he ran right past where she was standing. She had no reason falsely to implicate him.

[62]               Mr Weeber pointed to a passage in the transcript where he put to [MT] that No 9 had been at work that day, to which she answered that he must then have been at work. This was not her whole answer, however. She stated that she did not know that No 9 was employed at that time because she and Mablou used to see him in the area during the day. And immediately after the passage on which Mr Weeber relied, she said that No 9 knew full well that he was present at the scene of the shooting. The way she answered this particular question was just her mannerism – it was similar to her response to an earlier proposition from Mr Weeber that she was lying. She replied that then she must be lying, but she knew what she knew and he (No 9) knew what he knew. She remained certain in her identification from beginning to end.

[63]               On this set of charges, [MT]’ evidence provides corroboration for [CF]’s account. There are no inherent improbabilities in [CF]’s version. This was one of the sets of charges in which he did not claim to have had an active role or to have been on the scene at the time of the shooting. If, when he was giving information to Bonthuys in 2016, he had wished to fabricate a case against any of the accused, he could have implicated No 9 (and perhaps others) more directly than he did. In respect of these charges, [CF] is neither a single witness nor an accomplice.

[64]               It was put to [CF] that it was unlikely that Tyrone and No 9 would not have discussed the shooting when they got back, particularly since this was meant to be No 9’s first hit. [CF] maintained that there had been no discussion. If he had wished to fabricate, he could easily have manufactured an incriminating statement by No 9. He had no reason to suppress it if such a statement was made.

[65]               He was cross-examined about the fact that in his police statement he said that Const Stuurman arrested Tyrone and No 9 on the day of the attempted murder, not the next day. He was asked when he had realised his mistake. His answer was that his statement had already been furnished to the defence by the time he realised his error. (When asked, on several different occasions, why he had not made corrections to his statements, he said that he was told by Bonthuys that, because the statements were already with the defence, he should just tell the correct facts to the court.)

[66]               He was taxed about the identical wording which appeared in his two statements about this incident signed in September 2016 and April 2017.^[13] It was put to him that he could not possibly have remembered the exact wording on these two occasions. Mr Weeber’s proposition was clearly correct, although the implication of some impropriety in the preparation of the second statement was not. Although some of [CF]’s answers to Mr Weeber’s questions on this aspect may have suggested a claim that he could have given the exact same wording on two occasions six months apart, one must make some allowance for the tendency of an unsophisticated witness to try to explain an apparent anomaly.

[67]               The true explanation is this. The September 2016 statement was a s 204 about the attempted murder of Toppie Salie (not one of the charges in the present case). The Salie attempted murder happened the day after Mablou’s attempted murder. As a prelude to his account of the Salie incident, [CF] spoke about the Mablou attempted murder. It may well be that [CF] had not hitherto identified the Mablou attempted murder as a distinct criminal episode, and Bonthuys evidently did not yet have the docket. By the time Bonthuys saw [CF] again in April 2017, he had located the docket for Mablou’s attempted murder. He cut-and-pasted the relevant part of the September 2016 statement to create a separate s 204 statement for the docket relating to Mablou’s attempted murder.

[68]               The  ballistics evidence is consistent with there having been a single shooter. The location of cartridges at the Batavia/Drommedaris corner and in the alley bears out [MT]’ account. One may infer, from the two unfired cartridges, that the shooter must have experienced a pistol jam in the alley (serendipitously, perhaps, for the intended victim).

[69]               The fact that the same firearm was used in the murder of Sharkey, the attempted murder of Mablou and the attempted murder of Toppie strongly suggests that the pistol was in circulation as part of the TJ’s arsenal, being issued as and when acts of violence were authorised.

[70]               As to No 9’s alibi, if the police had done their job properly, the allegation that he had been at work at Prestige should have been investigated straightaway. Nevertheless, the company records, generated from data fed into a computer system from registers, reflect that No 9 performed no work for Prestige after 15 September 2012 and that his last work for the company was probably well before that date. This is consistent with the evidence of [MT] and [CF] that No 9 was in Belhar that day.

[71]               It is most unlikely that Prestige, having consistently paid wages directly into bank accounts, would have delivered a cheque to No 9’s home address in respect of two days worked on 17 and 18 September 2012. No 9 testified that he cashed the cheque. This would mean not only that Prestige, contrary to its usual practice, issued a cheque for wages, but that it sent an uncrossed cheque. Haupt testified that the net amount payable to a casual worker was generated by the computer system. Prestige’s records show that no amount as wages could have been generated for No 9 in respect of the period after 15 September 2012.

[72]               What those records do reflect is that No 9’s net wages for the 20 hours he worked from 16 August-15 September 2012 totalled R337,75.^[14] This would perhaps explain the amount No 9 had in mind.

[73]               I have mentioned the respects in which Roberts’ evidence is inconsistent with No 9’s. Although she supported his alibi, she is not an impartial witness. Furthermore, since she was only approached recently to give her evidence, she would have had to retrieve her recollections about things which happened seven years earlier.

[74]               I am satisfied that the State’s evidence is true beyond reasonable doubt and that the contrary evidence by No 9 is false beyond reasonable doubt. I am similarly satisfied that Roberts’ recollections are beyond reasonable doubt incorrect. Although No 9’s direct intention was to kill Mablou, dolus eventualis in respect of [LA] has been established. The boy was in the road at the time he was struck. Even if No 9 did not see him, No 9 must have foreseen that a stray bullet could hit someone in the vicinity, and he was reckless as to whether or not that happened.

[75]               It follows that No 9 must be convicted on count 14 (the attempted murder of Brandon Dickson), count 15 (the attempted murder of [LA]) and counts 16 and 17 (unlicensed possession of a firearm and ammunition).

Counts 35-38 (murder of Vernon Botes)

[76]               In these counts No 1 and No 2 are charged with murder (count 35), attempted murder (count 36) and unlawful possession of firearms and ammunition (counts 37 and 38). The crimes were allegedly committed on 29 June 2014.^[15] At the conclusion of the State’s case I discharged No 1 and No 2 on counts 37 and 38.

The evidence

[77]               It is common cause that Vernon Botes was murdered in the late afternoon of Sunday 29 June 2014 in a park off Ukulele Rd in Belhar 7. Also injured in the shooting was his friend [HP].

[78]               Botes was admitted to Tygerberg Hospital with multiple gunshot wounds and passed away in the early hours of the next morning.^[16] There were 13 gunshot entry wounds. Four bullets were recovered from his body.

[79]               [HP] was admitted to Tygerberg Hospital on 30 June with multiple gunshot wounds to the right arm, right thigh and right buttock, but he refused hospital care and left that afternoon.^[17]

[80]               I did not find [HG], a lay witness, to be altogether satisfactory. I gained the impression that he knew more than he was willing to say. He testified that on the Sunday afternoon he was at the park with three friends, one of whom was Botes. The other two were Clayton and ‘[…]’ ([HP]). They were smoking dagga. Towards dusk, he and Clayton left the park. They had not got far when they heard shots. They ran back to the park. He saw two men running off in the direction of the Erica Dr/Symphony Way intersection. They were wearing black clothes and black hoodies. He and others gave chase. By the time he got into Serenade Cres the two fleeing men were in the vicinity of the intersection.

[81]               At this moment two marked police vehicles arrived in Serenade and he was told to get in, evidently to assist.^[18] The police van he got into was driven by Const Fortuin, with W/O Joseph as his passenger. Joseph testified that they received a radio call about the shooting at 17:45. Since they were quite close to the scene, it would only have been a few minutes later that they collected [HG].

[82]               [HP]’s written statement was received in lieu of his oral evidence.^[19] He was sitting with Botes when the shooting started. He described the perpetrators as two coloured men. Only one had a firearm. The shooter was wearing a black sweater with a pattern on it, black Nike tracksuit pants and black Nike takkies. He had a moustache. The other suspect was wearing a long-sleeved greyish top, blue jeans and black shoes.

[83]               The precise character of what happened after the police took [HG] on board is contentious, but the following is common cause. The two fleeing men were Nizaam Meniers and Effraim Presence @Iffie. They got into a grey Audi A3 in the vicinity of the Symphony/Erica intersection.^[20] No 2 was the driver of the Audi and No 1 was in the front passenger seat. The Audi turned left into Erica Dr. Fortuin drove his van over some open veld onto Erica Dr, and gave chase, activating his siren and flashing blue light. The van was a couple of hundred metres behind the Audi.

[84]               After driving a distance of 2,1 km along Erica Dr, the Audi turned right into Barberton Link. At the Amandal Rd intersection (a further distance of 300 m), the Audi turned left into Amandal, crossed over Akkerboom Ave into Arum Rd, and turned right into Boslelie Rd, a further distance of 370 m.

[85]               Boslelie Rd, which is in Belhar 2, leads into Acanthus Cir. At the Boslelie/Acanthus corner, the Audi stopped, and Meniers and Presence alighted and jumped over a wall into 11 Boslelie Rd.^[21] Meniers was found a short time later on this property, hiding in bushes. Presence fled towards the Arterial Rd and was also arrested.

[86]               After allowing Meniers and Presence to get out, the Audi turned right into Acanthus. Fortuin stopped to let Joseph alight (it was Joseph who arrested Meniers), then followed the Audi, his siren and flashing light still on. The Audi came to a halt halfway up the other side of Acanthus. Fortuin arrested No 1 and No 2.

[87]               When Joseph arrested Meniers at 11 Boslelie Rd, he found, in close proximity to where Meniers was hiding, a LEW model Z88 semi-automatic pistol.^[22] Const M G Morris began his photographic investigation at 11 Boslelie Rd at 19:05.^[23] He collected and sealed the pistol, a pistol magazine and four live rounds. Const Morris then made his way to the park on Ukulele Rd where he took photographs and collected one fired cartridge case.^[24]

[88]               Later that evening, the hands of Meniers, Presence, No 1 and No 2 were tested for gunshot residue (‘GSR’). The tests were positive for Meniers and Presence, negative for No 1 and No 2.^[25]

[89]               A ballistics examination^[26] established that three of the four bullets recovered from Botes’ body were fired from the pistol seized at 11 Boslelie Rd. It was not possible to say whether the fourth bullet was fired from that pistol or from another firearm.

[90]               A police photograph of Presence^[27] bear out [HP]’s description of the shooter, though if he has a moustache it is not as prominent as Meniers’ moustache. [HP]’s description of Meniers’ clothing is inaccurate if he was, at the time of the shooting, wearing only the clothes depicted in the police photographs.^[28] The police photographs show that he was wearing a lime Nike T-shirt, greyish blue tracksuit pants and dark (possibly black) running shoes. The police photograph also shows that he has the words ‘Terrible’ and ‘Joster’ tattooed down the length of his lower right and left arms respectively.

[91]               If [HP] is right that there was only one shooter, GSR must have got onto his comrades’s hands by virtue of his proximity when the shooting started.

The previous prosecution^[29]

[92]               The first appearance of No 1, No 2, Meniers and Presence was on 2 July 2014. The prosecutor took the view that there was insufficient evidence to proceed with the prosecution against No 1 and No 2, and directed that further investigation take place.

[93]               Charges were in the meanwhile pursued against Meniers and Presence. When the matter served before the Bellville Regional Court on 5 February 2016, Meniers pleaded guilty to the unlawful possession of the pistol and ammunition. In terms of a plea and sentence agreement negotiated in terms of s 105A of the CPA, he accepted a sentence of nine years’ imprisonment, four of which were to be suspended. On the same day charges were withdrawn against Presence who is now deceased.

[94]               Meniers’ version as recorded in the plea agreement^[30] stated the following:

‘The accused further states that he was with friends. His friend gave him the firearm and cartridges. The accused placed the firearm and magazine inside his pants and was on his way home when he noticed the police. He ran away, jumped over a wall and dropped the firearm and ran a bit further before he was caught by the police.’

[95]               An analysis of the ballistics reports reveals that at the time the plea bargain was reached in February 2016, the police had not undertaken the elementary exercise of determining whether any of the bullets recovered from Botes’ body were fired from the pistol which was for all practical purposes found in Meniers’ possession when he was arrested on the evening of the shooting.

[96]               At the time of the plea bargain, there were three ballistics reports. These established (a) that the cartridge found at the scene of the shooting was a fired 9 mm Parabellum calibre cartridge;^[31] (b) that the seized pistol was a semi-automatic pistol, and that the pistol and ammunition were functional;^[32] and (c) that two of the four bullets recovered from the body were fired from the same firearm, and that it was not possible to say whether the other two bullets had been fired from the same or a different firearm.^[33]

[97]               In the course of the ballistics examination giving rise to the second of these reports, W/O S K Rululu fired two test shots with the seized pistol. The two fired bullets and their cartridge cases were retained as exhibits. But, astonishingly, they were not compared with the four bullets recovered from the body. This was only done on 12 May 2017, more than a year after the plea bargain. The examination of May 2017^[34] showed that three of the four bullets recovered from Botes’ body were fired from the same pistol that fired the test shots. This proved conclusively that the firearm, the unlawful possession of which Meniers acknowledged in his plea bargain, was the firearm which had fired at least three shots into Botes’ body.

[98]               The conclusion of the plea bargain in the absence of the examination belatedly conducted in May 2017 resulted, in my view, in a gross miscarriage of justice. Furthermore, Meniers’ factual version as recorded in the plea bargain was manifestly false, a fact that could readily have been ascertained from W/O Joseph and Const Fortuin. Joseph testified the prosecuting authorities had only recently consulted with him. The record is silent as to whether Fortuin was consulted earlier. This apparent dereliction of duty on the part of the police and prosecuting authorities should, in my view, be investigated. Had the matter been properly handled, Meniers and Presence should have faced a charge of murder.

[99]               In No 1’s application for discharge, Mr Liddell submitted that it would be a violation of No 1’s right to a fair trial for him to have to face a charge of complicity in Botes’ murder when the State had, in its plea bargain with Meniers, accepted a version of the facts which was inconsistent with the case now mounted against No 1 and No 2. Ms Webb for No 2 associated herself with this contention.

[100]           As I explained in my discharge ruling, I disagreed with the foregoing contention. Mr Liddell disavowed any suggestion that No 1 and No 2 were parties, even tacitly, to the plea bargain. They were not represented when it was concluded and were not present in court when it was accepted. No authority was cited in support of the proposition that it would be a violation of their constitutional rights to pursue a murder charge against No 1 and No 2. I accept that the charge against them presupposes a finding that Meniers and Presence perpetrated the murder, and that this is contrary to the facts which the State accepted in the plea bargain, but that could only avail the accused if they were party to the plea bargain. It offends one’s notions of justice that No 1 and No 2, assuming they were complicit in the murder, should be able to take advantage of an earlier miscarriage of justice.

No 1’s evidence

[101]           No 1 testified that on the afternoon of 29 June 2014, which was a Sunday, he went to Symphony Park with his girlfriend to watch soccer. His younger brother was playing. After a while he decided to go and buy food, but he found that his VW Polo was parked in. He fortuitously encountered No 2, who was going to the Spar, and No 1 decided to go with him

[102]           No 2’s car (borrowed) was the Audi A3 previously mentioned. They drove up Symphony Way towards the Erica Dr intersection. Loud music with a pounding bass (belonging to a genre which the two accused described as gqom music) was playing through the car’s sound system.

[103]           They stopped at the Erica Dr intersection, intending to turn left into Erica. While they were waiting for the traffic lights to turn green, No 1 saw Iffie (Presence) standing near the taxi rank on the left-hand side of Erica just around the corner. After turning the corner, they stopped, and No 1 asked Iffie where he was going. He said he was waiting for a taxi. They offered him and his friend (whom No 1 did not know) a lift. Iffie said that they were going to Malawi Camp.

[104]           After the two passengers got in, the music was turned up again, and a drove off, following the route previously described. According to No 1, he had not seen Iffie and his friend running across Symphony Way, and they were not out of breath when they got into the car, and did not seem jittery. No 1 did not know that they had a firearm. They followed the route described by the police witnesses. No 1 testified that about half way along Erica Dr they stopped at Chestnut Way because the traffic lights were red for them.^[35]

[105]           Malawi Camp is situated to the south of the Arterial Rd and to the west of where Erica Dr intersects with the Arterial Rd.^[36] In cross-examination he was asked why, if this was their passengers’ destination, they turned right into Amandal; it would have made more sense to carry on along Erica to the Arterial Rd intersection. He replied that the route they followed was closer to the Spar, though he agreed that to reach the Spar one would turn right, not left, into Amandal. He testified that Iffie did not live in Malawi Camp but in Roosendal. He did not know where Meniers lived.

[106]           They dropped off their passengers at the point identified by the police witnesses. According to No 1, the two men got out and walked off normally. He did not see either of them jumping over a wall. They then turned right into Acanthus, not realising that it was a circle and that they could not get back onto Akkerboom. As they were going up the other side of Acanthus Cir they became aware of the police vehicle. They stopped and lent their cooperation. After the arrest of the four men, he called Meniers being called Pang; he still did not know the man’s proper name.

No 2’s evidence

[107]           No 2’s version was broadly consistent with No 1’s. He was at Symphony Park because his father ran a soccer club, and he went to games to support his dad. The Audi A3 belonged to Colin Williams @Menno. No 2 from time to time borrowed Williams’ car. On the Saturday evening of this particular weekend he had asked Menno, who was also a footballer, whether he could borrow the car in order to ferry players to the soccer field. Williams, who usually got a lift with a friend, agreed. (A statement by Williams, confirming the loan of the car for this purpose, was handed in by agreement.^[37] According to the statement, No 2 had made his request on the Saturday morning. Williams knew No 2 only as Issie.)

[108]           Towards sunset on the Sunday afternoon he wanted to get something to eat because it was the first day of the Ramadan fast. (Sunday, 29 June 2014 was indeed the first day of Ramadan.) He encountered No 1 as described by the latter. They picked up the two men at the place No 1 described. No 2 testified that he knew Iffie but not Meniers. Iffie said that they were waiting for a taxi, and asked if he could give them a lift to the Belhar cemetery.^[38] Something was said about going to Malawi Camp,^[39] but Iffie was talking to No 1, not to him, and he did not know exactly where they were going. He was unaware that one of them had a firearm. Had he known, he would not have given them a lift. They got into the car normally. They were not out of breath.

[109]           He testified that he did not hear a police siren or notice blue flashing lights behind him. He was asked in cross-examination whether he did not check his rear view mirror from time to time while driving, and while stopping at traffic lights and stop streets. He replied that his eyes were more on the road in front of him. The siren was probably drowned out, he said, by the loud music in the car. Like No 1, No 2 testified that the traffic lights at the Erica/Chestnut intersection were red for them,^[40] and that they stopped there until the lights turned green.

[110]           He had wanted to drop of the two passengers at the Barberton/Amandal intersection, but they asked him to take them a bit closer to their destination. The passengers directed them to the corner of Boslelie/Acanthus. They got out normally. He did not see either of them jumping over a wall.

[111]           It was put to him that the obvious way to the Belhar cemetery was to turn right from Amandal into Akkerboom, rather than crossing Akkerboom into Arum. He replied that he followed the directions given by his passengers. He also believed that the shortest route to get to the Spar would be by retracing his course along Amandal rather than turning right into Akkerboom and feeding into Robert Sobukwe Dr. Like No 1, he had thought that by turning right into Acanthus they could get back on to Akkerboom. By the time he was in this part of Belhar, he was actually lost.

Discussion

[112]           The case against No 1 and No 2 rest largely on inferences to be drawn from the presence of the Audi at the time Meniers and Presence needed to escape and from the subsequent behaviour of those in the Audi.

[113]           Mr Liddell submitted that it was common cause that No 1 attended a soccer tournament on the day of the incident, and that he and No 2 were there independently of each other. That is not correct. Both No 1 and No 2 testified that they were at the soccer field, but that they were there, and that they got there independently, cannot be said to be common cause between them and the State. Their movements in the hours before the critical time is not something of which the State could have been expected to have knowledge. However, it does not really matter, because what is important is why they were at the Symphony/Erica intersection just as Meniers and Presence needed a quick getaway.

[114]           I accept that No 2 obtained access to the Audi by borrowing it from Williams in accordance with the latter’s statement. Williams could confirm that the car was lent to No 2 for the professed purpose of transporting soccer players. Whether it was in fact used for that purpose, and only that purpose, is not something about which Williams did or could testify.

[115]           Both No 1 and No 2 testified that they knew Presence (Iffie) but not Meniers. Even if they would have preferred to deny knowing either of the men, they knew that this was impossible, given that the prosecution had social-media photographs showing No 1 and No 2 in Presence’s company.^[41] The TJ tattoos on Meniers’ arms shows that he was a member of the Terrible Josters. Since I find that No 1 and No 2 were both TJs and that No 1 occupied a leadership position, it is most implausible that Meniers was not known to them.

[116]           It is clear beyond reasonable doubt that very shortly before being picked up by the Audi, Presence and Meniers had perpetrated the shooting on Botes and [HP]. They had fled the scene, and members of the community, including [HG], were running after them. Although we do not know precisely how far ahead of the chasing group the perpetrators were, Google Earth technology indicates that the fleeing men would have had to run about 450 m from the crime scene to the place where (according to the accused) they picked them up,^[42] and that the distance from where the police van stopped for [HG] was about 200 m from where Presence and Meniers were allegedly standing.

[117]           Fortuin testified that he saw the two men getting into the Audi, and that at that stage the Audi was still in Symphony Dr, a little way before the intersection.^[43] [HG] testified that when he got into Serenade, the perpetrators were running in the vicinity of the Erica/Symphony intersection. He said he only saw the Audi once he was in the police van and it was chasing the Audi. [HG]’s version does not quite tally with Joseph’s evidence. Joseph testified that in Serenade Cres they came across a man who was running ([HG]), and that [HG] pointed in the direction of two people jumping into a vehicle – this was at the intersection.  [HG]’s report to Joseph is hearsay, and Joseph himself did not testify that he saw the men getting into the Audi (perhaps because at that stage his attention was on [HG]). Fortuin, however, gave direct evidence of having seen the men getting into the back of the Audi, and that the Audi at that time was in Symphony, not Erica.

[118]           It was not put to Fortuin that No 1 and No 2 would testify that the two men had got into the Audi in Erica Dr, not in Symphony Way. Indeed, when No 1 first described the incident, his evidence appeared to convey the same thing, though in cross-examination he settled upon the version I previously summarised.

[119]           Given the deed which Presence and Meniers had just perpetrated, that one of them had a firearm, that [HG] and other community members were chasing them, that they had run about 450 m, and that [HG] and others could not have been more than about 200 m behind them, it is simply not credible that they were calmly standing at a taxi rank on Erica Dr, not the least bit out of breath or perturbed.

[120]           It is furthermore a remarkable coincidence that these two persons, at least one of whom turned out to be an acquaintance of No 1 and No 2 and the other a TJ, should be at the Symphony/Erica Intersection, and in need of a hasty getaway, just as No 2’s Audi should be on hand.

[121]           The coincidence is made more remarkable by the fact that the only route to the Spar which took the accused to the Symphony/Erica intersection was the longest of the three possible routes. It can be accepted that one sensible route to the Spar would have required the accused to get to the Erica/Barberton junction. The route which the accused took from the soccer field went all the way up Symphony Dr to the Erica intersection and then left into Erica until they reached the Barberton turnoff, a total distance of 3,3 km.

[122]           If, from the soccer field, they had not turned left up Symphony, but right down Symphony, they could have turned right onto the Arterial Rd and right into Erica and up to the Barberton turnoff, a total distance of 2,3 km. And if, as No 2 testified (when this was put to him), he preferred to take back roads because law enforcement officials were wont to conduct roadblocks on the Arterial Rd, he could, after having turned left up Symphony Dr, have turned left into Accordion Rd and left into Erica. This route to the Barberton turnoff, which cuts out a significant part of the Symphony/Erica triangle, is 2,4 km.

[123]           When I initially directed No 2’s attention to the fact that it appeared, from exhibit DS, that the route via the Arterial Rd was significantly shorter, Ms Webb was inclined to demur. Having overnight obtained the above measurements generated by Google Earth, I communicated them to counsel, and Ms Webb and Mr Menigo subsequently acknowledged that they were correct.

[124]           Apart from the coincidence of the handy presence of the Audi, there is the fact that the accused agreed to give the two men a lift to an imprecise destination, even though one of the two men was unknown to them and that it would take them in the opposite direction to which they were supposedly headed.

[125]           One must then suppose that the two perpetrators, once in the car, were able to comport themselves in such a way as not to reveal that they had just been involved in a violent shooting, and that these perpetrators did not anxiously look behind them and notice the chasing police van.

[126]           As to the ‘chase’, [HG], Joseph and Fortuin were cross-examined with a view to leaving open, as a plausible possibility, that No 1 and No 2 were not aware that the police were chasing the Audi. The two police officers were cautious in the way they answered, perhaps having learned from experience to leave matters of inference to the court. The following aspects of their evidence may be noted. I record here that both Joseph and Fortuin were satisfactory witnesses.

[127]           The police van’s siren and flashing light were activated from the beginning. The Audi was a couple of hundred metres ahead of them when they began the chase. In chief, Joseph said that their van was travelling fast. There were other vehicles between the van and the Audi but those vehicles yielded. The Audi was travelling very fast. By the time the Audi turned left into Amandal, there were no cars between the Audi and the van.

[128]           Joseph testified that there were stop streets at the Barberton/Amandal and Amandal/Akkerboom intersections, but that the Audi did not stop. In cross-examination the force of this evidence was diluted, because Joseph acknowledged that the Audi was already turning left into Amandal when the police van rounded the bend in Barberton Link, so he could not positively assert that the Audi had not stopped. He also acknowledged as a possibility that, in view of the substantial distance between the Audi and the van in Amandal, the Audi may in fact have stopped at the Amandal/Akkerboom intersection. I observe, in this regard, that Joseph testified that the police van did not stop at these intersections. If the Audi did stop, it must have been going even faster over the intervening stretches to keep the distance it did between itself and the chasing van.

[129]           I may add that I do not believe the accused’s evidence that they stopped at the traffic lights at the Erica/Chestnut intersection. It is perfectly clear that if they had stopped there, the police would have caught up with them. Either those lights were green for the accused or the accused did not stop. (It was not put to either of the police witnesses that the accused would testify that they stopped at those traffic lights.)

[130]           In cross-examination it was put to Joseph that his police statement did not state that the Audi was driving fast. He was asked how he could remember this after five years. He replied that the Audi was travelling fast and that he just did remember it.

[131]           The distance from the Symphony Way/Erica Dr intersection to 11 Boslelie Rd is about 2,8 km. The police van had still not caught up with the Audi over that distance. Joseph testified that when they got to the corner of Arum/Boslelie, the Audi was already stationary at the Boslelie/Acanthus corner, and the two fugitives were getting out. Joseph testified that for most of the chase the Audi was about 150 m ahead of them.

[132]           It was put to Joseph that an Audi A3 is faster than a police van. He agreed. It was also put to him that if the Audi had wanted to throw off the police, No 2 need not have driven into Acanthus, where it was trapped (the only way in and out of Acanthus is via Boslelie); No 2 could have got onto the Arterial Rd by turning left at Akkerboom. Joseph acknowledged this to be so.

[133]           In regard to these propositions, the fact that an Audi is a faster car than a police van does not mean that No 2 could necessarily have eluded the police. First, one would need to take into account the relative skills of the drivers. Second, and perhaps more importantly, it is apparent from the accused’s evidence that they did not know, when they drove across Akkerboom into Arum, that they would be trapped in that part of Belhar. When I asked No 2 whether, when he crossed into Arum, he thought he could get onto the Arterial Rd, he said yes. Third, No 1 and No 2 may have had enough savvy to realise that Fortuin’s van would not be the only police vehicle on the lookout for them. If they realised this, their main aim would have been to get rid of Meniers and Presence before the police stopped them, rather than to get away completely from the police.

[134]           Fortuin, like Joseph, testified that on Erica Dr intervening traffic yielded to the police van. For about half the length of Erica on which the accused drove, the road is a dual carriageway before narrowing to a single lane. He testified in chief that the Audi was driving at a high speed, as if trying to get away. The speed limit in Erica Dr is 60 k/h but the Audi was driving much faster than that. It was about 200 m ahead of them when the chase began.

[135]           He testified that as the van reached the Amandal/Akkerboom intersection, the Audi was just turning right into Boslelie. It was put to him that this was a distance of 137 m, indicating that the police van had gained on the Audi. He agreed. To put matters in perspective, this would suggest that in a chase of about 2,8 km the police gained only 60 m on the Audi.

[136]           It was put to him that the Audi’s occupants could not have known that the police were following them at the time the police van drove across the veld onto Erica Dr. He agreed, but said the Audi was still visible when they got onto Erica Dr, and their siren and blue light were activated. There were some cars between the van and the Audi but not many, it was not peak traffic. (In fact it was a late Sunday afternoon.)

[137]           Like Joseph, he agreed that an Audi is faster than a police van and that the Audi might have escaped by turning left at Akkerboom, adding, though, that this would depend on the driver. I have already dealt with these points.

[138]           The accused’s evidence as to the speed at which they were travelling was equivocal. No 1 testified that after they picked up their passengers, No 2 ‘het hom weer gegoei’ (ie drove at speed). In cross-examination he said that they drove fast, not normally – they drove ‘normaalweg vinnig’, not recklessly fast. No 2 agreed that he had pulled off at speed: ‘Ek het lekker weggetrek’. He said in chief that he had driven at a reasonable speed. In cross-examination he said that he could have driven faster than 60 km/h (which was the speed limit), he was not sure whether he travelled faster than 100 km/h, but he had definitely not gone as fast as 120 km/h: ‘Ek het nie gejaag nie’, he did not drive recklessly.

[139]           Because it was dusk, the police van’s flashing blue light would have been more piercing than in ordinary daylight. Most experienced drivers instinctively check their rear view mirrors from time to time to keep aware of what is going on around them, the more so where certain manoeuvres have to be performed, such as – in the present case – pulling out into the road after picking up passengers, stopping at a red traffic light, navigating the narrowing of the road from a dual carriageway to a single lane, slowing down to turn right into Barberton, again to turn left into Amandal, and again before crossing Akkerboom into Arum.

[140]           The whole point of a siren and flashing light is to attract attention, and I cannot accept that, over a distance of 2,8 km, the presence of the police van could have gone undetected by the Audi’s driver. No 2 was, moreover, not alone in the car. Apart from No 1, Meniers and Presence would have had every reason to be concerned at the presence of a police van. Is a plausible that they would not at some stage have turned around to see whether there was anyone in pursuit? If they saw the police van, would they have said nothing to the men in the front seat, even though No 2 and Presence were acquainted?

[141]           Finally, the accused’s evidence that Meniers and Presence got out of the car normally is irreconcilable with the testimony of the two police witnesses. According to the latter, Meniers and Presence were men in a hurry. They had after all just shot two victims. Meniers was in fact found hiding in a property, which would have required him to go over a wall.

[142]           Mr Liddell emphasised that No 1 and No 2 cooperated when instructed to come to a halt, and that they did not try to flee. However, No 2 testified that when they alighted the Audi, Fortuin’s firearm was trained on them.

[143]           Mr Liddell criticised the police for not having investigated the matter properly by analysing the cellphones of the four suspects which were seized from them on the day in question. I do not think that there was evidence that cellphones were seized from the suspects. No mention of this is made in Const Morris’ report. No 1 testified that they were playing music in the Audi off his phone, but neither he nor No 2 testified that cellphones were confiscated from them or from Presence and Meniers.

[144]           However, assuming that the four occupants of the Audi still had cellphones with them when they were apprehended and assuming further that the cellphones were seized, I agree that it would have been unsatisfactory for the police not to analyse them. It was incompetent investigation which led to the plea bargain with Presence and Meniers. Be that as it may, the court must now reach a decision on the available evidence.

[145]           Based on the evidence I have analysed, I am satisfied beyond reasonable doubt that the accused’s version is false. I find it proved beyond reasonable doubt that they knew that they were picking up men who had just perpetrated a crime, that they were aware of the chasing police van and attempted to evade it, and that when escape for their Audi became impossible they decanted their passengers in an attempt to put distance between themselves and the actual perpetrators.

[146]           In my view, the known association between the accused and at least one of the two perpetrators,  the fact that the other was a TJ, the circumstance that they just happened to be on hand when the perpetrators needed a getaway car, the fact that the route they followed was the longest way of getting to where they were supposedly going, their behaviour subsequently in seeking to evade the police and then in distancing themselves from Meniers and Presence, and the fact that they have been shown to be lying witnesses in respect of the events of that afternoon and evening, justify the inference beyond reasonable doubt that they were at the Symphony/Erica intersection by prior arrangement in order to provide a getaway car for two who were to carry out a shooting.

[147]           There was some debate as to the distinctions between co-perpetration, common purpose arising from prior agreement, common purpose established by acts of association or joining-in, accomplice liability and accessory liability. If the facts are as I find them to have been proved beyond reasonable doubt, the accused are guilty of the crimes perpetrated by Presence and Meniers, both on the basis of co-perpetration (see Snyman Criminal Law 6 ed at 255) and on the basis of a common purpose having its source in a prior arrangement. Because of the prior arrangement, it is not necessary that the accused should have been at the scene of the actual shooting and for them to have committed acts of association or joining-in.

[148]           The murder falls within the scope of s 51(1) of Act 105 of 1997 because it was planned and premeditated and because it was committed by a group of people acting in the execution or furtherance of a common purpose.

[149]           As to the count of attempted murder, [HP]’s statement indicates that he himself was a direct target of the shooting. The number of gunshot wounds sustained by Botes justifies the conclusion that he, too, was an intended victim. No 1 and No 2 will thus be convicted on counts 35 and 36. (I discharged these accused on counts 37 and 38 because the State’s evidence did not provide a basis on which a reasonable court might conclude that No 1 and No 2 possessed the Z88 pistol jointly with Meniers and Presence. On the applicable principles of joint possession of weapons, see S v Ramoba [2017] ZASCA 74; 2017 (2) SACR 352 (SCA) paras 11-13 and S v Ndou [2019] ZASCA 85; 2019 (2) SACR 243 (SCA) para 19.)

Counts 59-62 (attempted murders in [ST] Cres)

[150]           These counts charge No 2 and No 10 with two attempted murders (counts 59 and 60) and unlawful possession of a firearm and ammunition (counts 61 and 62).^[44] The crimes are alleged to have been committed on Wednesday 13 April 2016. No 2 was discharged on all four counts at the close of the State’s case.

[151]           Four witnesses testified for the State on these counts: Const C Moerat, Const H Groenewald, Mrs [LK] and her son [TK]. For reasons I shall presently explain, no reliance can be placed on [TK]’s evidence. Const Moerat had a rather sullen demeanour. He seemed somewhat arrogant during cross-examination. I did not, however, get the impression that he was giving dishonest testimony. Const Groenewald made a favourable impression, and I did not at any stage think that he was trying to mislead the court. Ms [LK] also made a favourable impression. She has suffered repeated tragedy as a mother, having lost three of her four sons to violent deaths.

[152]           Moerat and Groenewald was stationed at Elsies River. Their presence in Delft at the time of this incident was fortuitous.

Groenewald’s evidence

[153]           Groenewald, who has 11 years’ service, is now a SAPS instructor. He testified that on the day in question, 13 April 2016, he had been in Parow Regional Court (Moerat said that both of them were witnesses in a case on the roll that day). Afterwards, Moerat drove him to see a friend. Their route took them along Roosendal Rd in Delft. While driving on that road, they heard shots. A pedestrian pointed them in the direction of a side street, [RT] Cres. They turned right into [RT] Cres. Groenewald saw a man (X) running out from the left ([ST] Cres) into [RT] Cres. X was being chased by a man with a firearm (‘the suspect’). The suspect was wearing a red top and black pants.

[154]           Groenewald saw the suspect’s face because, as he came out of [ST] Cres into [RT] Cres, he looked in their direction. Their vehicle was about 25 m from the suspect at this stage. The suspect was known to Groenewald by the nickname ‘Ysters’, because the latter had been present at a house during a search in which Groenewald had participated. At the time of that search, Groenewald already knew Ysters’ appearance from his criminal profile.

[155]           When the suspect saw their marked police van, he turned and ran back into [ST] Cres. They followed him in their van. While they were still in [RT] Cres, Groenewald saw a white taxi coming up [RT] Cres in their direction. He remembered this, because it was not a busy area where one would expect to find taxis. They turned left into [ST] Cres, following the suspect, of whom they never lost sight. There is a 90° bend in [ST] Cres just beyond [… ST] Cres, but the suspect was only about 10 m ahead of them and never went out of view. They maintained this distance because the suspect had a firearm and they were in civilian clothes without bullet vests.

[156]           At the other (far) end of [ST] Cres, where it leads into another part of [RT] Cres, the suspect threw his firearm into the corner house on the left and ran into a burnt-out house on the right-hand corner. Moerat parked the van and went to secure the firearm while Groenewald went after the suspect.

[157]           Groenewald first walked round the front of the burnt-out house (ie along the [RT] Cres side of the house) to see if the suspect had run out that way. Not seeing him in [RT] Cres, he entered the house and found the suspect pulling off the red top. The suspect was sweating and out of breath. Groenewald arrested him and took him back to the van. They put him and his red top into the back of the van.

[158]           They drove up [ST] Cres again. At the scene of the alleged shooting (… [ST] Cres), they were approached by members of the community who said there were cartridges in the road. A woman (Mrs [LK]) and a man ([TK]) came to the van. The man looked through the van’s grill and asked the suspect why he had shot at him. The suspect asked the man for a cigarette. Groenewald gained the impression that the man and the suspect knew each other. The woman also looked in the van.

[159]           They radioed Delft SAPS for assistance, and then took the suspect and the firearm to the Delft police station. It was there that he learnt the suspect’s proper name (Ziyaad Saafodien, No 10). He did not recall seeing the chased man, X, again on  the scene.

Moerat’s evidence

[160]           There were some discrepancies between Groenewald and Moerat. This is unsurprising. It was a mobile scene; Moerat was driving whereas Groenewald was a passenger; they were only there coincidently; and they were testifying more than three years after the relevant events.

[161]           These are some of the differences:

(a)  Moerat testified that when X ran into [RT] Cres, he tried to jump over a wall but fell. (Groenewald did not remember this.)

(b)   Moerat said that when the suspect looked in their direction after running into [RT] Cres, their van was parked. (Groenewald did not recall that they stopped in [RT] Cres.)

(c)  Moerat testified that when they turned left into [ST] Cres, they could not see the suspect because he was already beyond the bend. As they rounded the bend, they saw him again. They also lost sight of him momentarily when he went around another small bend at the far end of [ST] Cres. In cross-examination he said that he could not recall giving this latter piece of evidence. I reminded him that this was indeed his evidence, to which he said that if that was his earlier testimony it must be so. (Groenewald testified that the suspect was never out of their view.)

(d)  Moerat could not remember if he saw the red hoodie when Groenewald came back to the van with the suspect.

[162]           Other aspects of Moerat’s testimony were the following:

(a)  He retrieved the firearm just inside the perimeter wall of the house on the left corner of [ST] Cres. It was a pistol. He removed the magazine, locked the slide, and a 9 mm round came out of the chamber. He used a piece of paper from the van to handle the firearm so as to preserve any fingerprints. (He was asked in cross-examination to demonstrate this procedure, using an A4 piece of paper and his service pistol. Removing the magazine was fairly easy, cocking it slightly more difficult, but it was achieved. The paper was fairly mangled by the end.)

(b)  The suspect gave his name as Ziyaad Saafodien. Moerat had not seen him before.

(c)  As they were driving back up [ST] Cres, they were stopped outside [… ST] Cres by a teenager and an older woman. They got out and asked if the shooting had occurred there and got an affirmative answer. They asked whether their suspect was the shooter. The woman and younger man lifted the blue canvas covering the grill and confirmed this.

(d)  A lot of people were milling about outside No […]. He saw a few cartridges in the road, located in front of and near No […]. At first they tried to keep the people back but the crowd got too big so they left. As they were driving to the Delft police station, they saw Delft officers coming in the opposite direction.

(e)  At the Delft police station, he detained the suspect on a charge of attempted murder, and booked in the firearm, magazine and eight live rounds.

Evidence of Mrs [LK]

[163]           Mrs [LK] testified that the Dixie Boys operated in the area where she lived. The TJs, by contrast, were in the area behind the Score supermarket. When she walked in that area, she would see ‘TJ’ sprayed on the walls.

[164]           On the day of the shooting she and her son [TK] were standing in their front yard. There is a low wall between their yard and the street. [TK] was just on the outside of the wall, she on the inside. A young man (presumably X), a friend of theirs, was standing with them. They were talking about [Larry]. She did not want to give X’s name but told me that he was not involved in gangs though his brother was a TJ.

[165]           A taxi emerged out of [SB] Cres, a side road leading into [ST] Cres from the left, just beyond the bend, and drove past their house towards [RT] Cres. She did not know the people in the taxi. [TK] remarked that they looked suspicious.

[166]           She then noticed a man walking around the corner of [SB] Cres into [ST] Cres. He was wearing a red Nike hoodie. Although the hood was on his head, his face was visible. She immediately recognised him as ‘Ysters’ (she made a dock identification of No 10). She had seen him before at Vodie’s place. Vodie was Cheryl’s son. She did not know Vodie’s proper name, but Vodie and her son had gone to the same school and he had been in her house a lot. (She made a dock identification of No 1 as Vodie.)

[167]           Shortly after rounding the corner, the suspect drew a firearm and began shooting as he walked towards them. [TK] shouted to her to get inside, and grabbed her (she was frozen with shock). He pulled her inside and closed the door. Three shots were fired in their direction while they were outside, and another two were fired in the direction of their front door when they were inside. While lying on the floor inside, she lifted herself half up onto her knees and peeped through a window. At that time the suspect was at their main gate. (When probed about some minor differences in her narration of these events in chief and in cross-examination, she said that when she testified the previous day she was a bit nervous. She asked me whether she was allowed to tell me something. I said yes, and she then said she was scared of these people.)

[168]           Their friend, X, ran away when the shooting began. She saw him run and fall, this was before [TK] pulled her inside.

[169]           While huddled inside, they heard police sirens but [TK] said they must wait. (It was put to her that according to Moerat he had not activated the siren. She disputed that.) About five minutes later, she heard chatter from the community, and went outside, [TK] following. The police van stopped outside their house. One of the policemen asked if she knew the person in the back of the van. She replied, yes, his name is Ysters. She told the policemen that she knew Ysters, he always greeted her. He was no longer wearing the red hoodie, and she did not see it in the van.

[170]           [TK] also talked with Ysters, who asked him for a cigarette. [TK] sent a youngster to get cigarettes. It was put to her that No 10 would say that he knew [TK]. She replied that there had been tension between [TK] and No 10 from the time her oldest son was shot dead (this was in February 2013), and she never saw them talking. It was put to her that No 10 would say he was not a member of a street gang. She replied that she always saw him at Vodie’s place with Kapadien and the others. It was put to her that No 10 was not the person in the red hoodie. She replied that she could not understand how No 10 could say this, when [TK] himself had said that Ysters had not been right to shoot at him. It was put to her that she was making a mistake, that she thought No 10 was the shooter because she had seen him in the back of the police van. She denied this. She was not making any assumptions, it was No 10 that did the shooting.

[171]           She was asked about the security camera on her house’s roof. She said it did not record footage. [TK] had put in the camera because there were always shootings at her house, a bomb had even been detonated there. This was because they said [TK] was a Dixie Boy. She said [TK] was not in truth a Dixie Boy though he was a member of the 28s.

[172]           Mrs [LK] was cross-examined closely as to when and where she had seen No 10 in the past. My impression was that from time to time she must have been mis-apprehending the questions. My contemporaneous note was that she seemed particularly dense when being asked about these matters. It was not my impression that she was being dishonest.

[173]           She initially stated that prior to the date of the shooting she had only seen No 10 at Vodie’s place. After long thought, she said that she probably first seen him about five years before the shooting (ie around 2011), at a time when No 10 was no longer at school. (In 2011, No 10 would have been about 19 years old.) She would walk past Vodie’s place (ie [… VL] Cres) about three times a week on her way to the shop at the Caltex garage (which is at the northern junction of [VL] Cres with Delft Main Rd). No 10 was often standing outside Vodie’s place talking to people there. This would generally be after 18:00 when the other shops were closed. He would greet her. (One of her answers about when she saw him outside Vodie’s place was, ‘Net so een keer sien ek hom altyd’, the meaning of which was obscure, but she subsequently explained that she often saw him there.)

[174]           When asked when she had most recently seen No 10 before the date of the shooting, she replied that she could not remember. She then said, ‘Ek het hom nog nie gesien voor die – na die – voor die datum nie’. I attempted to clarify this, because it was apparent that she was misunderstanding, and she again confirmed that she had often seen him at Vodie’s place. She stated said that she had seen him outside Score at the time of [Larry]’s death (this was October 2014).

[175]           Asked whether she had seen him after [Larry]’s death but before April 2016. she replied not in her area ([ST] Cres) but at the ‘stalletjie’ near the Score on Delft Main Rd (which is at the southern junction of [VL] Cres with Delft Main Rd). Another of her answers suggested that she had not seen him between the date of [Larry]’s murder and the shooting at [ST] Cres though it remained unclear to me whether that is what she really meant or if she was attempting to convey that she had not seen him again after the shooting at [ST] Cres.

[176]           She was asked how she came to know him by the name Ysters. She replied that when she saw them at Vodie’s place and at Score, that was the name by which they used.

[TK’]s evidence

[177]           [TK] testified about these charges and about the attempted murder in Pokkiesdoring Cres (counts 63-66). His evidence can be divided into three parts. At first he gave a vague account which lacked the detail which the prosecutor was evidently expecting. Then he gave a full account which implicated the relevant accused and, in relation to the shooting in [ST] Cres, accorded more or less with his mother’s evidence. These two stages in his evidence took us to the end of the first day on which he testified.

[178]           At the start of the next day’s proceedings, he said he had a problem. I adjourned so that Mr Menigo could (with the consent of defence counsel) confer with [TK] to ascertain the nature of the problem. On resumption about 10 minutes later, Mr Menigo told me that he had ended the discussion with [TK] in the light of the latter’s communications and had told [TK] he should tell the court his problem.

[179]           [TK] then told me that he was troubled because the evidence he had given the previous day was not the truth. When Bonthuys had interviewed him three years previously, Bonthuys told him what to say. And the previous day, before the second stage of his evidence, Mr Menigo had told him that he had a chance to tell the truth but that maybe he was not scared of prison. That is why he had implicated the accused.

[180]           I tested him to some extent on his recanting. I asked him whether anything had happened overnight. He said no. I explained to him the crimes of statutory and common law perjury, and warned him that a person found guilty of those offences could receive a jail sentence. I told him I was only interested in the truth and suggested he take 5 to 10 minutes to think carefully about what I had said. He said he did not need further time, and he stuck to his recantation. That included an assertion that he had not even been present in [ST] Cres at the time of the shooting. His mother had phoned him about it afterwards. I asked him whether this meant that his mother was lying; he said yes.

[181]           I then granted defence counsel an opportunity to cross-examine [TK] further. In re-examination Mr Menigo put to [TK] four statements he had purportedly made to the police over the period 13 April 2016 – September 22 2017. He denied his signature on all of them. Midway through this exercise, [TK] slumped forward with his head on the witness box, complaining of a headache.

[182]           Mr Menigo indicated that he wished to consider the possibility of a trial within a trial with a view to impeaching the witness and proving the statements. I indicated my prima facie view that this was unnecessary, since [TK] had given three versions under oath, one of which appeared to be the version the prosecutor had expected. It was simply a case of a witness giving inconsistent evidence under oath; the court would need to decide, at the end of the case, what to make of the inconsistent versions. The next morning Mr Menigo said that he no longer intended to prove the statements.

[183]           In argument, Mr Menigo did not seek to place reliance on any of [TK]’s versions, though self-evidently the version he gave during the second stage of his evidence is the one that accords with the evidence of his mother and the two policemen. I will not speculate as to what caused [TK] to recant. He should, though, be prosecuted for statutory or common law perjury.

Other State evidence

[184]           Nobody was actually struck during the shooting.

[185]           Const V Mini began his photographic inspection at 12:31 on Wednesday, 13 April 2016.^[45] He collected five cartridge cases in the vicinity of [… [ST] Cres, their locations marked by him as A – E. If the cartridges were not moved by bystanders before the police’s arrival, cartridges A, B and C are likely to have been shots fired towards the group standing outside [… ST] Cres. Cartridge D could have been a shot fired back towards [… ST] Cres or at X as he was fleeing towards [RT] Cres. Cartridge E seems to be too far away from the De Kock house to have been one of the shots fired at them; more probably, it came from a shot fired at X. Mrs de Kock might, therefore, be mistaken when she said that three shots were fired at them while they were outside and another two at their front door.

[186]           Upon ballistics examination,^[46] the firearm retrieved by Moerat was identified as a functional 9 mm Parabellum calibre Glock model 17 semi-automatic pistol, designed to discharge centre-fire ammunition. The eight live rounds each consisted of a primer, cartridge case and bullet, designed to be fired by a centre-fire firearm. The expert fired two test shots with the firearm.

[187]           Upon ballistics examination,^[47] the five cartridge cases recovered at the scene were identified as 9 mm Parabellum calibre fired cartridge cases. A comparison between those cartridges and a cartridge from one of the test shots mentioned in the preceding paragraph revealed that the fired cartridges found at the crime scene were fired from the pistol retrieved by Moerat.

No 10’s evidence

[188]           No 10 went to primary and high School in Delft where he completed Grade 10. He lived with his mother in Eindhoven in Delft. He left school during Grade 11 and got work at an electrician firm. He was retrenched in 2014, and started doing private electrician work. In 2016 he entered employment with a transport company as a general worker, and was employed there for about a year until his arrest in the present case on 5 September 2017.

[189]           As previously mentioned, No 10 became acquainted with No 1 when he was introduced as a person who could do electrician work at No 1’s project house at [… VL] Cres. He said that this work spanned about two months in 2014 or 2015. In this way he met No 2, and also did some electrician work for the latter. Because of the work he did at [… VL] Cres, he became acquainted with No 7 and No 8.

[190]           He denied that he belonged to a street or prison gang. Regarding the police photograph, which shows the tattoo ‘TBL’ on his back,^[48] he said that it was an abbreviation of ‘Timberland’, which was a clothing brand he liked. He said that the letters were spaced across his chest, and he had intended to add the intervening letters in a different colour in order to spell out the full brand name, though he never got round to it. He denied having ever heard of again called Timberland. (Constable Arthur van Wyk, the investigating officer, testified that Timberland was a gang which had operated in the Voorbrug area of Delft and which was taken over by the Terrible Josters. No 10 was at Voorbrug High School for Grades 9-11.)

[191]           Regarding the [ST] Cres charges, he denied having ever previously met or seen Const Groenewald or Const Moerat. He denied ever having been at a house searched by the police.

[192]           [TK] was known to him as a rugby player, and he saw him a few times at the Bellville South sports fields and when playing pool in that area. He could not say whether or not [TK] had belonged to the Dixie Boys or Fancy Boys. As for Mrs de Kock, he saw her for the first time when she testified in court.

[193]           On the day of the incident, 13 April 2016, he visited a friend of his, Zakier Solomons, who lived in Roosendal. He was interested in buying a bed from his mother who worked at a furniture company. While at Zakier’s house, he decided to go and buy cigarettes. He was wearing red takkies, black tracksuit pants and a Redbat T-shirt with white and red stripes. It was a warm day. He was not working on that day.

[194]           This took him towards the exit of [ST] Cres with the burnt-out house on the corner, which he approached across a piece of open veld.^[49] he was heading towards a tuckshop located next to the burnt-out house on [RT] Cres.^[50] Between the burnt-out house and the tuckshop was an open piece of sandy ground. As he walked along [RT] Cres past the [ST] Cres junction, he did not notice any one running down [ST] Cres and did not notice any police van in [ST] Cres.

[195]           While he was still a few meters away from the shop, walking on the sandy ground, he was tackled from behind.^[51] He thought the man was going to rob him. He struggled but was overpowered. He then realised that the tackler was a police officer, because he noticed the man’s holster. He was handcuffed and taken back to the police van. He heard another officer shouting that he had found the firearm.

[196]           The police van made its way back up [ST] Cres. They stopped where there were a crowd of people will stop he noticed [TK] and asked him for a cigarette. [TK] gave him one.

[197]           He denied any involvement in the shooting. He said he was not wearing a red hoodie that day and did not see one anywhere in the vicinity.

Discussion

[198]           No 10 has been identified as the shooter by three witnesses. Minor discrepancies between the various accounts is unsurprising and form no basis for rejecting the common thread of No 10’s complicity. Despite Mrs de Kock’s somewhat dense display about when, where and how often she had seen No 10 prior to the shooting, I am satisfied that he was in fact a person known to her as Ysters and that she had seen him often enough to recognise him again in [ST] Cres. It should be remembered, in this regard, that evidence from a number of the accused (No 1, No 2, No 4, No 7, No 8 and No 10 himself) establishes that No 10 was acquainted with No 1, and it is very likely that he was from time to time present with other TJs outside Vodie’s place and at Score.

[199]           Mr Menigo in argument did not identify the victims of the two attempted murders. It seems likely that the shooter’s intended victim was [TK] and that he also deliberately shot at X. Given the proximity of Mrs de Kock, a charge of attempted murder in respect of her (on the basis of dolus eventualis) would also be maintainable.

[200]           From my observations concerning No 10 in the introduction to my judgment, it will be apparent that I did not find him a particularly impressive witness. Apart from the fact that I have evidence from three credible State witnesses, there are inherent improbabilities in No 10’s version. It is clear beyond reasonable doubt that the shooter ran down [ST] Cres in the direction towards which No 10 claimed to have been approaching [RT] Cres from the opposite side. The shooter was seen throwing a firearm to his left and darting into the burnt-out house on his right. The police van was following the suspect, about 10 m behind. It seems impossible to me, if No 10 was innocently approaching the [ST] Cres]/[RT] Cres intersection across the open ground, that he would not have seen the fleeing shooter and the police van more or less as he reached the junction.

[201]           The police evidence is that the shooter was wearing black tracksuit pants. No 10 was wearing black tracksuit pants. The police evidence is that the shooter was wearing a red hoodie. However the police work was shoddy, because if, as Groenewald testified, the hoodie accompanied No 10 into the back of the police van, it was not subsequently retained as an exhibit. Perhaps its significance at that time was not appreciated. If No 10 was in truth the shooter, this slackness on the police’s part would have allowed him to deny that he was wearing a red hoodie on that day.

[202]           But the important point, for present purposes, is that Groenewald, Moerat and Mrs de Kock all testified that the shooter was wearing a red hoodie. If the suspect whom Groenewald apprehended was not wearing, or in the process of trying to remove, a red hoodie, and was making no attempt to hide himself or flee, but was walking innocently and normally towards a tuckshop dressed in a very different top, what could possibly have induced Groenewald to tackle him? It would have been obvious to Groenewald that this was not his suspect, and that the suspect must be hiding somewhere very close by.

[203]           The non-retention of the red hoodie is not the only criticism of the police’s work on this case. There is no evidence that the firearm was tested for fingerprints. Whether this would have revealed anything is an open question; since the shooter knew that he was being chased by the police and intended discarding the firearm, he may well have taken the precaution of wiping it clean as he ran. Another criticism is that there is no evidence that No 10’s hands were tested for GSR. Although this is unacceptable, some excuse may be afforded by the fact that the officers who arrested No 10 were off duty and were not stationed at the Delft police station, under whose auspices the case fell.

[204]           Nevertheless, I do not consider that these criticisms of the police work are such as to create reasonable doubt. Having regard to the strength of the State eyewitnesses and the inherent implausibilities in No 10’s account, I am satisfied that the latter’s version is untrue beyond reasonable doubt, and I am satisfied beyond reasonable doubt that he was the shooter. It follows that he must be convicted on all counts comprising this set of charges.

Count 71 (drug dealing)

[205]           Count 71 charges No 1 and No 2 with dealing in, alternatively possession of, undesirable dependence-producing substances listed in Part III of Schedule 2 of the Drugs and Drug Trafficking Act 140 of 1992 (‘the Drugs Act’) in contravention of s 5(b), alternatively s 4(b) of the said Act. The drugs are specified to have been methaqualone (mandrax) as follows:

(a)  160 units of tablet pieces, individually wrapped in foil, with an estimated mass of 176 g;

(b)  401 units of tablet pieces, individually wrapped in foil, with an estimated mass of 653,63 g;

(c)  an estimated 308 tablets, or 463,3 g, contained in a plastic bag;

(d)  2,3 g of tablet pieces and powder;

(e)  86,62 g of tablet pieces packed into plastic bags;

(f)  44,46 g of tablet pieces and powder;

(g)  one tablet.   

[206]           These charges arise from a raid carried out on the afternoon of Wednesday 14 December 2016 at the home of No 1’s mother, Mrs Cheryl le Roux, situated at [… DS] Rd, Durbanville. (The raid took place on the day after Browers’ murder but the two events appear to be unconnected.) It has been formally admitted[52] that the persons listed in (a) – (g) below were at the house when the police arrived and that the person  identified in (h) arrived during the course of the raid:

(a)  No 1, who resided at [… VL] Cres, Roosendal, Delft;

(b)  No 2, who resided at […], Kalksteenfontein;

(c)  Zachary Wasserfall, a 22-year-old male residing at […] 18^th Ave, Elsies River;

(d)  No 1’s cousin, Lauren Wasserfall, a 13-year-old girl who resided at the same address as Zachary Wasserfall;

(e)  No 1’s mother, Cheryl, 56 years old, who resided at the raided premises;

(f)  No 1’s sister, Faye, 18 years old, who resided at the raided premises;

(g)  Magdalene Solomons, a 57-year-old female who resided in Ravensmead;

(h)  Christiaan Solomon, 60 years old, who resided at the raided premises.  

[207]           Although not formally admitted as such in the written admissions, Zachary Wasserfall, like Lauren, is No 1’s cousin. (This was the evidence of No 1 and several others.)

[208]           It has been formally admitted that the drugs specified in the indictment, as summarised above, were contained in evidence bags allegedly sealed at the premises during the raid.[53]

[209]           Two officers who participated in the raid testified, namely Col A J Jooste and Const F Murphy. Jooste was an excellent witness. Murphy was satisfactory though perhaps not as helpful with detail as one might have expected.

Jooste’s evidence

[210]           Jooste obtained information which made the raided premises a subject of interest. He was the senior officer in charge of the raid. He is a unit commander in the Narcotics Bureau of the Directorate: Priority Crime (Hawks). He has 32 years of service, of which 29 have been as a detective. He has attended many courses locally and abroad.

[211]           He procured support staff from the Durbanville police station, one of whom was Murphy. On arrival, he could observe that there were people in the house. He deployed the police officers around the property’s perimeter. Since there was no access to the front door, he shouted from an outer gate, identifying himself.[54] He could see females walking out of a room whose window was visible from the front gate. One of the officers at the back of the property told him that an occupant was throwing stuff over a garden wall. Jooste forced entry through the front gate and then through the front door. He immediately detected the sharp pungent smell distinctive of mandrax.

[212]           No 1, No 2 and a woman were in the lounge when they arrived. He gathered the remaining occupants into the lounge. Mrs le Roux identified herself as the owner. Although Jooste did not personally handle and bag all the exhibits, he was present when this was done because he and several other officers, including Murphy, moved systematically through the house and garden together. All evidence bags, he testified, were sealed in Mrs le Roux’s presence.

[213]           Just outside the back kitchen door they found mandrax in a drain where an attempt had evidently been made to flush it away. On the gravel between the backdoor and the grass they saw loose bits of foil which contained tablets and powder. On the lawn were two clear plastic bags, two branded plastic bread bags and two balls of newspaper.[55] The two bread bags contained folded pieces of foil inside of which were powder and tablets ready for distribution.[56] The two clear plastic bags were empty but he thought they might contain traces of powder.

[214]           In the larger (less tightly scrunched) ball of newspaper, he saw a teaspoon with what looked to be mandrax powder on it.[57] In the smaller (more tightly scrunched) ball of newspaper he saw what looked to him like mandrax tablets and a piece of foil.[58] Both balls of newspaper, together with the teaspoon and foil, were placed in exhibit bag PW4000675163 (‘bag 163’).[59] They were placed together in this bag because they were suitable for testing for fingerprints and touch DNA. The suspected drug material would go to a different laboratory for chemical analysis and was thus separately bagged.[60] He was not personally present when bag 163 was actually sealed, but he was present when the photographs were taken showing the spoon in the larger ball of newspaper and the foil in the smaller ball.

[215]           In a neighbouring property, they found more pieces of foil on the paving around the pool and a bread bag floating in the pool which he scooped out with the pool net.

[216]           In the garage they found whole tablets in a plastic bag. He guessed there were 150-200 tablets in the bag. The whole tablets, tablet pieces and powder were bagged during the search.

[217]           In one of the bedrooms they found strips of foil on the bed and floor.[61] Lying on the floor next to the desk was what looked like a whole mandrax tablet.[62] The strips of foil from this room were placed in an exhibit bag PW4000675162 (‘bag 162’).[63]

[218]           From a safe in Mrs le Roux’s bedroom, the police seized R39 400 in banknotes. The money was in a blue plastic bread bag contained in a larger yellow plastic bag.[64] The police also seized R4400 from the person of No 1.

[219]           On the kitchen counter they found a roll of foil, a ruler, a triangle and a teaspoon.[65] Jooste surmised that the ruler and triangle were used to tear the foil strips found elsewhere on the property.

[220]           Jooste testified that a drug dealer on the street would typically buy from his supplier in fixed quantities – a ‘volle brood’ was 1000 tablets, a ‘halwe brood’ 500 tablets. (This terminology is unrelated to the use of bread bags in the present case.) When mandrax tablets are transported, they sometimes break and crumble because of the poor binding agent used. Powder and broken pieces of this kind are typically packaged in a foil called a ‘sloepie’.[66] Foil strips such as were found in the bedroom are usually used to make rolls of whole tablets in such a way that the user can open the top of the roll and remove one tablet at a time. The sloepie, by contrast, is just twisted closed.

[221]           Jooste inferred that the mandrax tablets had come to the raided premises in larger quantities in order to be packed and distributed in smaller quantities.

[222]           Regarding the persons at the premises during the raid, a statement was taken from Magdalene Solomons who said she was staying overnight because she was going for medical treatment the next day. An older gentleman (presumably Christiaan Solomon) was also overnighting because of a shooting incident in his neighbourhood.

Murphy’s evidence

[223]           Murphy testified that when Jooste announced the police’s presence from the front gate, he (Murphy) saw someone peeping through a curtain and then heard gates and doors opening and closing, and saw bread bags and papers being thrown out of the house.

[224]           He gained entrance to the property. In the back garden he saw the balls of rolled up newspaper containing mandrax in powder form – he immediately knew it was mandrax from his 10 years’ of experience as a police officer. When he went into the back yard, the tap outside the kitchen door was running and he saw yellow tablets on the drain cover. The kitchen door was open.

[225]           He testified that he did not personally seal any of the evidence bags but was present when all of them were sealed, as was Mrs le Roux. He thought Jooste did the sealing. In his docket statement, Murphy regarded, as ‘his’ bags, those containing exhibits he had pointed out to Jooste. He personally placed the items from Christy’s room into bag 162 (though, so I understand his evidence, he did not himself seal the bag).

Raynard’s evidence

[226]           At 16:30 on the day of the raid, 20 exhibit bags from the raid, including bags 162 and 163, were entered into the Durbanville SAP13 register. The next day some of these evidence bags were booked out by Sgt Bonthuys. Those suitable for fingerprint and touch DNA analysis, including bags 162 and 163, were delivered to the Bellville LCRC.[67]

[227]           In January 2017 Capt Aretha Raynard of the Bellville LCRC unsealed and examined the evidence bags and used appropriate technology to develop fingerprints:

(a)  When she opened bag 162, she identified its individual contents as exhibits 5-7 (three long pieces of foil), 8-9 (two short pieces of foil) and 10 (small transparent plastic bag).[68]

(b)  When she opened bag 163, she identified its contents as exhibits 11 (newspaper), 11.1-11.33 (33 short pieces of foil), 11.34 (a long piece of foil), 11.35 (small plastic bag), 11.36-11.37 (two teaspoons), 12-14 (three plastic bags), and 15-17 (three further short pieces of foil).[69]

(c)  For present purposes it is unnecessary to deal with the other 10 bags which she opened and examined. She also received two bags which she did not open.

[228]           From bag 162 she identified the following fingerprints suitable for analysis: (a) on exhibit 5 (a long piece of foil), four prints; (b) on exhibit 7 (another long piece of foil), one print. From bag 163 she identified the following fingerprints suitable for analysis: one print on each of exhibits 11.1-11.5 (ie on five of the short pieces of foil). No prints could be recovered from any of the other exhibits.

[229]           She took photographic images of the fingerprints, and these were retained by the LCRC for use when comparison was in due course performed. The original exhibits were re-sealed and collected by Bonthuys.[70]

Fingerprint analysis

[230]           The images taken by Raynard were subsequently examined by Const S Gumede and compared with the fingerprints of No 1 and No 2. Gumede found the following:[71]

(a)  On exhibit 5 from bag 162 (containing the strips of foil bagged in the bedroom), two of the four fingerprints (images 3 and 4) belonged to No 2, being a left little finger and a left palm. These were on opposite sides of the same strip of foil.[72]

(b)  On exhibit 11.3 from bag 163 (the bag in which the smaller of the balls of newspaper was sealed), the fingerprint (image 8) belonged to No 1, being his right ring finger. On exhibit 11.5 from bag 163, the fingerprint (image 10) also belonged to No 1, being his right palm.[73]

[231]           The evidence does not reveal to whom the other eight fingerprints developed by Raynard belong.

No 1’s evidence

[232]           No 1 testified that his mother, Cheryl le Roux, lived at [… DS] Rd. He visited her up to five times a week, often having meals there. Cheryl’s brother, Christiaan @Christy, also lived there, as did No 1’s sister Faye.

[233]           On Wednesday 14 December 2016, No 2 was at No 1’s place in [VL] Cres. No 2 wanted to buy vehicle parts in Bellville. No 1 accompanied him in the white Polo. At the shop they were told that they would need to wait half an hour for the parts to arrive. They decided to pass the time at No 1’s mother’s house. Zachary Wasserfall and his sister Lauren were already there when they arrived. After greeting Zachary in the entertainment area, No 1 sat in the dining room area from where he could see the TV in the lounge.[74] His mother or sister was making him something to eat.

[234]           He had been in the house about 10 to 15 minutes when the police arrived. The police kicked in the front door. This was the first inkling he had of the police’s presence. The police instructed everyone to lie flat, and they were all brought together into the lounge.

[235]           He claimed not to have seen any frenetic activity in the house immediately before the police’s entry. He did not see any drugs in the house and did not notice anyone trying to get rid of drugs. He acknowledged that the police found drugs but he did not know whose they were. He did not know why there was a ruler and triangle in the kitchen.

[236]           He was asked how his fingerprints might have got on to the two pieces of foil. He said that he enjoyed smoking a hookah pipe, and there was a hookah pipe in the house. He had been at his mother’s place until late the previous evening and had definitely smoked a pipe. Foil is used to cover the top of the pipe’s bowl. He was asked to demonstrate, on a sheet of A4 paper, how one would tear the foil to make this covering. The result was a piece of paper 10 cm x 10 cm. He added that if one were using thin foil, one might use two or even three layers of foil. They had a plastic container for the pipe paraphernalia. Sometimes they had pre-prepared pieces of foil in the container; on other occasions they tore the foil when preparing the pipe.

[237]           He was shown photos of the pieces of foil extracted from bag 163 after they had been folded opened by Raynard – exhibit CV 27. He conceded that these were smaller than the 10 cm x 10 cm dimensions he had demonstrated. He was also shown the photographs of the foil pieces at CW 13, one of which contained his fingerprint. He said that these were similar to the foil one would prepare for a hookah pipe. In fact, however, the foil shown at CW 13 are the same small pieces that appear in CV 27, just from close-up. From the forensic centimetre-markers in CW 13 (image 8) and CW 14 (image 10), one can determine that the true sizes of these foils are 8 cm x 5,4 cm and 7,4 cm x 5,4 cm respectively.[75]

No 2’s evidence

[238]           No 2’s version of how No 1 and he came to be at the raided address accords with No 1’s version. He was also a frequent visitor at [… DS] Rd. He testified that he was smoking in the entertainment area with Zachary Wasserfall when the police arrived.

[239]           Regarding his fingerprints on a strip of foil, he said that on arrival at the house he went to the kitchen for a drink of water. As he was walking out of the kitchen, he saw pieces of foil on the passage floor. He picked them up and put them on the chest of drawers in Christy’s room, where there were already other pieces of foil. With reference to the photograph of Christy’s room at CR 13, he testified that the chest of drawers was out of view, between the photographer and the chair in the foreground. He was asked whether the pieces of foil he picked up were long or short. He said that he could not remember, but then demonstrated a size approximating to 10 cm x 10 cm, stating that the foils were blocks, not strips. He subsequently asserted that he had also found long strips on the floor in the entrance to the bedroom. It was put to him in cross-examination that he was adapting his evidence to account for the fact that his fingerprints were in fact found on a long strip.

[240]           With reference to the desk in Christy’s room,[76] he confirmed that the Polo’s key was a black device where the key snaps open when a button is pressed, but he could not confirm whether or not the black device lying underneath the mobile phone and remote control was the Polo’s key. He was also not sure whether the mobile phone was his. He confirmed that to the left of the empty glass on the desk was a pack of Peter Stuyvesant cigarettes. (He had earlier testified that his brand was Peter Stuyvesant.) He was not sure whether he had his cigarettes with him in the house. When asked whether the empty glass was from the water he had got in the kitchen, he said he had not gone that far into Christy’s room.

[241]           He denied having known of the presence of drugs on the premises. He did not see a mandrax tablet in Christy’s room. Like No 1, he did not see anyone trying to throw drugs outside.

Discussion

[242]           Counsel for No 1 and No 2 sought valiantly to undermine the fingerprint evidence by pursuing matters of the following kind:

(a)  that Jooste and Murphy could not say for how long the items found in the back garden had been there;

(b)  that the paper and strips of foil had not been tested for the presence of illegal substances;

(c)  that two teaspoons, rather than one, had been found in bag 163;

(d)  that whereas Jooste had spoken of there being a single piece of foil in the newspaper sealed in bag 163, Raynard had found 36 small strips of foil and one long strip of foil;

(e)  that there had been less than perfect compliance with standing orders as to how a crime scene should be processed and exhibits logged.

[243]           As to (a), Murphy testified that he saw items being thrown out of the back. This evidence, and common sense, makes it overwhelmingly likely that they were thrown there when the police’s presence became known.

[244]           As to (b), it appears to be correct that the newspaper and strips of foil which Raynard received for fingerprint testing were not tested for residue of illegal substances. It is known, however, that a great many pieces of foil had been used to prepare sloepies and it is common cause that these contained mandrax. It is an obvious, indeed irresistible, inference that strips of foil which had not yet been used to encase mandrax were intended for that purpose.

[245]           As to (c), it is correct that Jooste spoke of only one teaspoon in the exhibits which went into bag 163. At the time he testified, nobody seems to have noticed that Raynard had found two teaspoons in bag 163. However, it is wholly fanciful to imagine that a police officer at the crime scene added a second teaspoon to the items sealed in bag 163. This would have required the combined dishonesty of Jooste, Murphy and the other officers forming part of the search party. And no nefarious purpose could be achieved by such an extraordinary manoeuvre, because neither of the teaspoons has featured in the evidence against the accused.

[246]           The simple explanation must be that Jooste did not completely open up the balls of newspaper and thus failed to see the second teaspoon. When the ‘teaspoon controversy’ (truly a storm in a teacup) was pursued with Raynard, I said to defence counsel that I would be amenable to having Jooste recalled so that he could be cross-examined about it. The invitation was not taken up. The result is that it was not put to either Jooste or Murphy that they had acted dishonestly in placing items in the bag.

[247]           Similar considerations arise in relation to point (d). Jooste spoke of a ‘stukkie’ foil in the ball of newspaper that went into bag 163. It is perfectly clear, however, that he did not completely fold open the scrunched up newspaper and that he did not unfold the foil. According to Raynard, there were two ‘balls’ of foil in the newspaper,[77] and cumulatively they yielded the 37 strips she identified as separate exhibits. It appears likely that Jooste saw only the one ‘ball’ of foil, which he described as a ‘stukkie’ (Mr Liddell put it to him that it was an ‘opgefrommelde stuk folien’.) In a different context, when asked whether all the folded foils in the two bread bags contained sloepies, he said that he and his officers on the scene had only opened one of them, because tinfoil is a good surface for obtaining fingerprints. They thus left it to laboratory experts to open the rest.

[248]           As to (e), the principal line of attack was that each exhibit on the crime scene should have been particularised in the way Raynard subsequently did, and that each such item should have been entered into an exhibit log at the crime scene.[78] This was pursued with Raynard, whose main experience does not lie in crime scene processing. One can only speculate what Jooste, a very experienced officer, would have said if these matters had been raised with him. If an exhibit log should have been maintained at the crime scene, as standing orders indicate, it must be acknowledged that this was not done. The exhibits were, however, sealed in evidence bags and a photographic record was kept. The exhibits were entered into the SAP13 register.

[249]           The descriptions of the exhibits in the SAP13 register were, for obvious reasons, not as detailed as those later catalogued by Raynard. She seems to have been under the impression that the officers processing the crime scene should have unravelled every exhibit (carefully handling them with gloves) and separately catalogued exactly what they comprised. That strikes me as somewhat impractical. The police would have been on the scene a very long time indeed if they had had to unwrap and photograph every sloepie and count every tablet and tablet piece.

[250]           Jooste seemed to think it sufficient that there was a general description of the items in the exhibit bags to the extent that they could be observed without close examination. He testified that at no crime scene over which he has officiated have individual tablets ever been counted. Departures from model crime scene processing procedures do not result in collected evidence being rendered inadmissible. The non-compliance with national standing orders should have been taken up with Jooste as the officer in charge of the search operation, not with a laboratory expert. My intimation that I would receive favourably a request to have Jooste recalled for further cross-examination was not pursued.

[251]           Allied to the foregoing procedural argument is a submission by Mr Liddell about the sealing of bag 163. As I have said, Murphy testified that he did not personally seal any of the bags. Jooste’s evidence, as I understand it, is that he was present when all the bags other than bag 163 were sealed, and that he personally sealed the exhibits from the swimming pool and garage. Murphy, in his docket statement, spoke of placing ‘newspaper with loose mandrax and powder’ in the bag. Mr Liddell submitted that one thus did not know how the spoon and foil which Raynard analysed got into bag 163.

[252]           I reject the notion that the teaspoon and foil were not part of the exhibits as found in the back garden. Although Jooste was not present when bag 163 was sealed, he was personally present when the exhibits placed in that bag were viewed in their original condition and photographed in situ. He pointed out the teaspoon and foil in photographs taken in his presence, and the foil was still visible after the items had been sealed in bag 163.

[253]           Although the defence had access to all the documentary exhibits, including the photograph albums and Raynard’s analysis of bag 163, by the time Murphy testified, it was not put to Murphy that his generalised description of the items placed in bag 163 meant that no teaspoon or foil had been contained in the balls of newspaper. A direct challenge in that respect seems to have been carefully avoided by simply asking him to confirm that all that was placed in the bag were newspaper and loose mandrax and powder. He was not specifically asked about the teaspoon and foil, and was not shown the photographic exhibits in which the teaspoon and foil were visible.

[254]           Furthermore, both Murphy and Jooste testified that all evidence bags were sealed in Ms le Roux’s presence. That evidence was not placed in issue, and it militates strongly against the idea that something was smuggled into bag 163 before it was sealed. In fact, No 1’s counsel disavowed any suggestion of a deliberate perversion of justice.

[255]           In any event, one might ask if it really matters whether the two pieces of foil containing No 1’s fingerprints were part of the foil in the newspaper or were found elsewhere on the premises. The fact is that his fingerprints were found on two pieces of foil matching, in shape and size, many other pieces of foil found on the premises, and it is beyond doubt that those pieces of foil were associated with the packaging of drugs.

[256]            The versions of No 1 and No 2 are inherently implausible in multiple respects. No 2 said that he was smoking with Zachary Wasserfall when the police arrived. Since No 2 claimed not to have observed any drug-related activities, one has to infer on his version that Zachary was not part of the drug activities. Since No 1 also denied any involvement, and since Christy was not at home, this leaves, as the possible culprits, No 1’s mother (56 years old), Magdalene Solomons (57 years old), No 1’s sister (18 years old) and Lauren Wasserfall (13 years old). No 1 answered in the negative when asked if he knew whether any of these people were ever involved in drug dealing. There is other evidence (from [CF]) implicating No 1’s mother in drug dealing, but I would discount as wholly implausible the notion that the four females I have mentioned were engaged in the activity to the exclusion of the men in the house.

[257]           Jooste testified that on gaining access to the house he was immediately struck by the acrid smell of mandrax. Since I accept this evidence as true, one has to suppose that somehow No 1 and No 2 did not notice the smell.

[258]           Jooste said that he shouted from the gate to get the attention of the occupants of the house. Murphy saw someone peeping through the curtain and Jooste noticed females moving out of the room. Given where No 1 claimed to be sitting, he could not have failed to notice this activity.

[259]           On the police evidence, the announcement of their presence led to an frantic attempt by one or more the occupants to dispose of drugs. It was loud enough for Murphy, who was at that stage still outside the gate, to hear the opening and closing of doors. It is not credible that No 1 and No 2, who on their versions were fairly close to the front door, were not aware of the police’s presence, since on their version the persons who were rapidly disposing of the drugs (one or more of the women) must have been further back in the house, and those persons clearly had heard the police.

[260]           Then there is the fact that No 1 and No 2 claimed not to have seen anyone trying to dispose of drugs. The house is not so large that this frenetic activity could have escaped their notice.

[261]           The versions which No 1 and No 2 offered for the presence of their fingerprints are unconvincing. In the case of No 1, the two blocks of foil on which his fingerprints were found were too small to have served as the covering of a hookah pipe bowl. Furthermore, they were among 36 pieces of small blocks of foil contained in a scrunched up piece of newspaper which contained powder and broken tablets which Jooste believed to be mandrax. Somebody had tried to get rid of the contents of the newspaper, which were evidently regarded as incriminating. No 1’s evidence does not explain why his prints should have been on two out of 36 small blocks of foil, each of them too small for use with a hookah pipe. And of course there were a great many more pieces of foil when one takes into account those which already enclosed drugs.

[262]           No 2’s version is likewise implausible. He claims to have noticed pieces of foil lying on the floor between the kitchen and Christy’ rooms. But who would have dropped blocks and strips of foil there? If somebody was taking pieces of foil from the kitchen to the bedroom (or vice versa), it is not easy to imagine how such person could have dropped some of them or, if the person did, why he or she would not immediately have picked them up. If pieces of foil were dropped in haste as somebody was trying to remove evidence, No 2 would have seen those frantic efforts.

[263]           Then there is the fact that No 2’s prints on the piece of foil were his left little finger and his left palm. No 2 testified, in relation to another set of charges, that he is right-handed. Even if he picked up loose pieces of foil with his left hand, it would be most unnatural to grip the foil with a little finger, and I cannot see how a palm print could get onto the foil in this way. On the other hand, a person tearing a strip of foil with his right hand might well place his left hand facedown on the foil to steady it.

[264]           A further factor telling against No 2’s explanation is that according to him he placed the pieces of foil on a chest of drawers together with other pieces of foil. Murphy and Jooste spoke of pieces of foil on the bed and on the floor (and, in Murphy’s case, on the desk, though in that respect I think he must have been mistaken, because the photographs do not bear him out). Neither of them mentioned foil on a chest of drawers near the entrance to the room, and it was not put to them in cross-examination that there had been foil on a chest of drawers. Although we do not know whether the foil containing No 2’s prints were on the floor or bed, it is not consistent with the State’s evidence that they were on a chest of drawers not visible in the police photographs.

[265]           It was suggested in cross-examination that tinfoil is an ordinary household item and that there is nothing inherently suspicious about the presence of fingerprints on such foil. In my view, it all depends on the circumstances. Tinfoil, as a household item, is usually used to wrap food. Strips of the kind on which the accused’s fingerprints were found do not have any self-evident legitimate household function and were not, in dimension, consistent with hookah pipe use. One knows from the other exhibits that strips of foil of this kind were being used on these very premises to parcel up mandrax.

[266]           In my view, No 1 and No 2’s evidence is false beyond reasonable doubt. The only conclusion to be drawn from all the proven facts is that No 1 and No 2 were at the premises in order to parcel up drugs in foil as a step along the way to supplying them to street dealers.

[267]           Although the evidence I have already summarised is sufficient to justify this conclusion, there are other circumstances consistent with it:

(a)  Given the large quantity of drugs found inside and outside the premises, and the hasty steps taken to get rid of them when the police’s presence became known, it is plain that one or more persons in the house were knowingly involved in unlawful drug dealing.

(b)  The substantial amounts of cash found in Mrs le Roux’s safe and on No 1’s person are prima facie suspicious.

(c)  Of the seven persons who were present when the police arrived, Faye le Roux, Lauren Wasserfall and Magdalene Solomons do not strike one as likely candidates to have a material role in a drug operation, given their ages.

(d)  [CS] identified No 1 and No 2 as persons associated with the supply of drugs. He testified that Duwayne, who was a TJ and a 28 (he had tattoos of both gangs), got his drugs from No 1’s place, and that he ([CS]) had gone with Duwayne to No 1’s house in [VL] Cres on about three occasions. No 2 was there on two of these occasions. The first time [CS] went to [VL] Cres, No 2 went across the road to a flat house and upon their return to Clarke’s Estate Duwayne gave him 500 buttons to make into halves.

(e)  [CF] testified that they used to get drugs for distribution from Mrs le Roux’s house. The drugs which led to an arrest on 28 August 2012 (mentioned hereunder) had come from Mrs le Roux. He and No 5 had gone to the house in Durbanville and exchanged money for drugs in the sitting room, where 300 mandrax pills were retrieved from the fireplace in the lounge.

(f)  [CF] identified No 1 as the leader of the TJs in Delft. It is well known that street gangs have drug dealing as a principal source of revenue.

(g)  [CS] identified Zachary Wasserfall as a TJ and an associate of No 1 and No 2.

(h)  While Mrs le Roux may have been participated in drug dealing, it is unlikely, given her age, that she played an active role outside of her home.

[268]           The expression ‘deal in’ is defined in the Drugs Act as including performing ‘any act in connection with’ inter alia the ‘ collection’, ‘supply’, ‘administration’ ‘sale’ or ‘transmission’ of drugs. If No 1 and No 2 were at the premises to assist in parcelling up the drugs in foil, they performed acts which would make them guilty of dealing in the drugs. I did not understand there to be any dispute about this as a matter of law.

[269]           Counsel for the defence referred me to the Australian decision of R v Filippetti (1978) 13 A Crim R 335. The most recent Australian judgment dealing with the Filippetti line of authority is the judgment of the New South Wales Criminal Court of Appeal in Musa v R [2019] NSWCCA 279. I do not think that any material assistance can be obtained from the Australian decisions. They are concerned differently framed statutory provisions.

[270]           The Australian cases appear to have been concerned with the crime of drug supply and more particularly with deemed supply arising from the possession of a specified quantity of drugs. Where the drugs are not found on the accused’s person, it has been held that the prosecution must prove that the accused (and any persons with whom he was jointly acting) must have had control of the place where the drugs were found to the exclusion of all others. In Filippetti this was held not to have been proved where the accused was only one of several occupants of a house having access to a chair underneath which drugs were found. In Musa, as it so happens, the accused’s fingerprints on the box containing the drugs was regarded as a powerful factor in favour of finding the requisite possession.

[271]           But be all that as it may, we have our own statutory definition of ‘deal in’. The State did not rely on any presumptions relating to possession and/or dealing (ss 20 and 21), most of which have in any event been declared unconstitutional. And as I have said, I did not understand counsel to dispute that if No 1 and No 2 were packaging mandrax for distribution, their conduct amounted to ‘dealing in’ the drugs.

[272]           Mr Liddell also submitted that relevant to the question of possession in the present case are the decisions in S v Jacobs [1989 (1) SA 652 (A), S v Collett [1991] ZASCA 33; 1991 (2) SA 854 (A) and S v Francis & another 1992 (2) SACR 98 (C). The facts in those cases were entirely different, and I do not consider them to be at all applicable.

[273]           It was suggested in argument that even if the accused were involved in parcelling up the drugs, it did not follow that they were aware of the full quantity of drugs which the police found. Given the falsity of their evidence, I consider the inference to be fully justified that they were aware of the full quantity of drugs. But even if they were not, I am satisfied that they knew that there was a substantial quantity of mandrax on the premises and that they were involved in preparing it for distribution. They were guilty of dealing in the drugs, even if they did not know the precise quantity.

[274]           Although the indictment on this charge refers to s 51(2) of Act 105 of 1997, the State did not allege or prove the value of the drugs found at the premises, and Act 105 of 1997 is thus inapplicable.

Counts dependent on [CS]

[275]           I now turn to the counts which depend on [CS]’ evidence to identify No 11 and No 12 as the perpetrators of the crimes about which he testified.

[276]           [CS] was in a special class at school, and his education did not go beyond primary school. He has never had a permanent job but has done casual building and cleaning work. He knows how to drive a car.

[277]           [CS] regularly smoked mandrax and tik until he was arrested in January 2017 – twice, sometimes three times, a day. He began dealing in drugs shortly after George Stevens’ murder in February 2016. He got his drugs from Duwayne Arries (now deceased).

Counts 55-58 (murder of George Stevens @Georgie)     

[278]           These counts charge No 11 and No 12 with murder (count 55), robbery with aggravating circumstances (count 56) and unlawful possession of firearms and ammunition (counts 57 and 58). These crimes are alleged to have been committed on 4 February 2016.^[79] At the end of the State’s case these two accused were discharged on the robbery count.

[CS]’ evidence

[279]           [CS] knew ‘Georgie’ Stevens. As far as he was aware, Georgie was not a gangster but sold buttons and tik for Fox (real name Victor Browers). [CS] used to buy drugs from Georgie. [CS] knew Georgie’s mother as ‘Meisie’(real name Dorothy Hendricks.)

 

[280]           On the day of Georgie’s murder, [CS] and his girlfriend came back from work by train. Because he had been at work, he had not yet used drugs on that day. It was before 17:00 that they alighted at Bishop Lavis station. His girlfriend walked to her mother’s place while he walked towards his place up Adriaanse Ave. This took him past Georgie’s mother’s house,^[80] where he saw Georgie’s white bakkie parked outside.

[281]           Just before he reached the intersection of Adriaanse Ave and Old Stellenbosch Rd, Georgie came driving up Adriaanse in his bakkie. Georgie continued over the intersection up Adriaanse Ave. From the intersection, [CS] noticed a man (‘X1’) coming from an alley (‘A1’) between the Jacobsdal flats on the right-hand side of Adriaanse Ave (from [CS]’ perspective).^[81] X1 shouted abuse at Georgie. Georgie’s bakkie was just beyond A1 at this stage.^[82] Georgie stopped and began to reverse. As he was reversing, a second man (‘X2’)^[83] began shooting at the bakkie from in front. X1 then drew a firearm and also began shooting at Georgie.

[282]           [CS] testified that he saw X1’s face. It was the first time he had seen this face but he said he would never forget it, it was an ugly face. (He pointed him out as No 12, whom [CS] later came to know as ‘Lurkie’.) At this stage he could not really see X2 because he was too far away. (The parties formally admitted that the distance from the intersection where [CS] was standing to the exit of A1 was 52 m. The distance to the exit of A3 was admitted to be 112 m.)

[283]           As Georgie was reversing, his back wheel struck the curb. [CS] noticed that Georgie’s silver firearm was pointing out of the window. As Georgie’s bakkie mounted the pavement, [CS] ran left at the intersection and turned right onto a path running behind the flats/maisonettes on the left side of Adriaanse Ave. He paused^[84] on the far side of an alley (‘A2’) leading off Adriaanse between these flats/maisonettes.

[284]           As he was standing at this point, X1 and X2 came running through A2 from the Adriaanse side. He saw X2 putting his firearm away. This was when he saw X2’s face. He had not previously seen this man. (He later came to know him by the name of Kapadien, and pointed him out in court as No 11.) (It was formally admitted that the distance from the midpoint of A2 to the place where [CS] claimed to be standing was 23 m.)

[285]           Before X1 and X2 exited A2, [CS] had already started running further up the path and to his left across an open tarred square.  No 11 and No 12 also ran up this path but turned right into another alley (A3) leading back into Adriaanse. From the spot where he again paused at the far side of the square,^[85] [CS] saw X2 hand his firearm to a third man whom he knew by the name Boeta.

[286]           [CS] then went home. At around 19:00 he went back to the flats on Adriaanse. He saw police busy at the scene. He could see Georgie’s bakkie but could not see the victim himself. It was already darkish by this time. He did not tell anyone what he had seen.

[287]           After this incident, he saw No 11 twice more: (a) during an incident where No 11 and Sidwell were involved in what was referred to as the ‘wheelchair case’, a matter already concluded in court but about which I was not told more; and (b)  during the murder of Victor Browers aka Fox (this forms the subject of counts 67-70). [CS] saw No 12 once more, in connection with the Browers murder.

[288]           Browers was murdered in December 2016, and in June 2017 [CS] became a person of interest to the police in connection with Browers’ death. Having been questioned and shown certain video evidence, he ‘decided to come clean’. He then told the police what he knew about the murders of Stevens and Browers and about the wheelchair case. He made a s 204 statement about these matters to Sgt J M Witbooi on 4 July 2017 (though in relation to the Stevens case he was a witness, not an accomplice).

[289]           It is apparent that when Mr Menigo consulted with [CS] in preparation for his evidence, the Witbooi statement was found to be inadequate. Sgt Theo van Wyk (not to be confused with Const Arthur van Wyk, the officer who replaced Bonthuys as the investigating officer) took a further statement from [CS] on 12 October 2019, and this was made available to the defence. [CS] testified that when he consulted with Van Wyk in October 2019, he told him that his first statement to Witbooi was wrong. Van Wyk had not shown or read to him from the Witbooi statement and had not shown him any other documents or statements.

[290]           [CS] was cross-examined about inconsistencies and omissions arising from a comparison of the Witbooi statement^[86] and his oral evidence. (The Van Wyk statement seems to have been essentially in line with the oral evidence.) [CS] said that he was not ‘right’ (ie mentally) when he made the Witbooi statement. After going into the witness protection programme, facts had come back to him while he was asleep. The version he gave in court was the truth, even though, at the time he made the statement to Witbooi, he had believed those facts to be the truth.

[291]           In both statements he identified ‘Kapadien’ and ‘Lurkie’ as the shooters. Some of the discrepancies and omissions raised with him in cross-examination were the following:

(a)  The Witbooi statement recorded that he went home from the station before returning to Adriaanse Ave. (In his oral evidence, he said he was still on his way home when the shooting occurred.)

(b)  The Witbooi statement recorded that when he returned to Adriaanse Ave, he went to the ‘Jacobsdal entrance’ (ie A1), and was standing there when he heard the shots. (In his oral evidence, he said he was standing at the Adriaanse/Old Stellenbosch Rd intersection.)

(c)  He did not say in the Witbooi statement that, at the time the shooting was going on, he saw the shooters.

(d)  His Witbooi statement did not mention the swearing incident as the prelude to the shooting.

(e)  In the Witbooi statement he said that he saw Kapadien and Lurkie coming through the alley with guns in their hands. (In his oral evidence he said he only saw Kapadien putting his gun away in the alley, and he confirmed under cross-examination that this was the truth.)

(f)  In the Witbooi statement he said that after the shooting he ran down Adriaanse to the intersection and then went around and up the path previously mentioned.

(g)  In the Witbooi statement he said that when he went back to the scene later that evening, he saw Georgie in the bakkie. ([CS] replied that he did not tell Witbooi this but then said he could not remember what he had told Witbooi.)

Dorothy Hendrick evidence

[292]           This stoical witness, who made a favourable impression, was the deceased’s mother. Georgie visited her shortly before the shooting. Shortly after he left, she heard shots and rushed outside. She saw two men shooting at Georgie’s bakkie. She was running towards the bakkie and screaming. One man (X2) was shooting from in front of the bakkie, another from the middle of the road (X1).^[87]

[293]           Like [CS], she saw Georgie reversing. He swung to his left as he was reversing. She surmised that he was trying to make a three-point turn but he failed. One of the men (I think she meant X2) fired his last shot through Georgie’s front passenger window into Georgie’s head. They then walked off, leaving the scene through alley A3.

[294]           When she got to the bakkie,^[88] Georgie was still alive but could hardly speak. Her sister’s son took her to the doctor. They did not want her to return to the crime scene.

[295]           She testified that Georgie possessed a licensed firearm which he had had for more than 20 years. She had seen it in his holster when he visited her that day.

Sgt Theo van Wyk

[296]           Sgt Theo van Wyk testified that both George Stevens and Victor Browers were known to him. Browers was a leading figure in the 28s and the Horribles. Stevens was known to him as a friend of Browers and a drug dealer.

[297]           On 10 February 2016 (six days after Stevens’ murder), two people in a black BMW were arrested, and a firearm was found in the vehicle. The BMW belonged to John Piedt aka Jonas, a figure known to Van Wyk as a TJ and 28, though he was not in the vehicle at the time. The firearm turned out to be Stevens’ licensed firearm. Stevens’ firearm was sent for ballistics testing. It could not be determined whether he had discharged his firearm at the time of his murder.

Other State evidence

[298]           George Stevens was murdered in Adriaanse Ave, Elsies River, on Thursday 4 February 2016. He was certified dead at 16:59. The post-mortem^[89] revealed that he suffered three entry wounds. The first (A) entered the skull above his left eye. There was no exit wound, and the bullet was found inside the skull. The second (B) entered on the left lateral frontal aspect of the skull. Again there was no exit wound and the bullet was found inside the skull. The third (C) was on the anterior (front) aspect of the right shoulder, exiting through the lateral (outer) aspect.

[299]           Const S Gumede began his photographic investigation at 18:20.^[90] The photographs show Stevens’ vehicle to have been a white Nissan double-cab (enclosed back). The rear right corner of the bakkie had crashed into a wall on the left side of Adriaanse Ave (the wall separated a broad pavement from the adjacent flats). The bakkie was now facing more or less towards the Old Stellenbosch Rd, from which one can infer that Stevens, who had been driving in the opposite direction, had virtually completed his reversing turn before colliding with the wall. He was found slouched behind the steering wheel. The driver’s window was almost completely rolled down. The front passenger window was completely wound down. There was damage, seemingly bullet damage, to the driver’s door, the driver’s side mirror and front of the vehicle. The front windscreen does not seem to have been struck.

[300]           Const Gumede collected 10 cartridge cases and one bullet. On ballistics examination^[91] eight of the ten cartridges were found to be 9 mm Parabellum calibre cartridges. Six of the eight Parabellum cartridges were fired from one firearm, the other two from a second firearm. The remaining two cartridges were 9 mm short calibre cartridges, and were fired from a third firearm. The bullet was a 9 mm bullet. Surprisingly, there was no ballistics examination of the two bullets recovered from the body.

[301]           The locations of the 10 cartridge cases found on the scene by Const Gumede were marked by him as points C – K on his sketch plan.^[92] A comparison of his report and the ballistics report does not enable one to say where each of the cartridges discussed in the ballistics report was found on the crime scene. What one can say is that two of the cartridges (Gumede’s C and D) were found in the middle and on the right-hand side of Adriaanse St, more or less in line with where the bakkie landed up. The remaining eight cartridges (E –K) were clustered further up Adriaanse on the left curb and pavement.. The distance from cartridges C and D to the closest of the cartridges in the cluster was about 13 m – 20 m.^[93] It is thus a fair inference that cartridges C and D were ejected from one firearm while cartridges E – K were ejected from the other two firearms. Shots C and D may thus have been fired by the person I have referred to as X1. On this assumption, shots E – K were fired by X2 and either by a third assailant (X3) or by Stevens himself.

[302]           Although at least 10 shots were fired, only three hit the deceased. If, as Mrs Hendricks testified, one of the shooters fired a final shot through the open front passenger window, this was probably shot B, which entered on the left lateral aspect of deceased’s head. The shot to the right shoulder was probably fired by the person I have designated X1. Since Stevens’ head would have been moving as he tried to execute his turn, and since both front windows were open, shot B could have been fired by any of the shooters.

No 11’s evidence

[303]           No 11 grew up and spent most of his life at 14 Jason Road, Eureka Estate, Elsies River. He knew No 1, the latter having had a relationship with No 11’s god-sister, Stefanie. He also got to know No 2 through Stefanie. He met No 6 through Monray Jack @Warra because the latter often visited his cousins who lived near No 11 in Elsies River. He knew No 8 as someone who worked on the taxis. He alleged that he first met No 12 after his arrest in the present case.

[304]           He denied being a TJ, and said that he had not heard of the Terrible Josters before the evidence in the present trial.

[305]           He testified that he got the nickname Kapadien in Goodwood prison after he was arrested in November 2013 (on an unrelated charge) together with Warra and two others. He surmised that the nickname was attributable to the fact that he had fought back when some other prisoners tried to steal food and toiletries his mother had brought him.

[306]           He denied knowing a George Stevens, and he denied any involvement in Stevens’. As to [CS], he testified that he had not seen him before he testified in the present case. It was put to him that if he did not know [CS], there could have been no hard feelings between the two of them. He agreed, adding that this is why he could not understand [CS]’ claims.

[307]           He was familiar with Adriaanse Ave. It is close to the Holy Trinity creche which he attended as a child. He could see Holy Trinity from their house. (It is a short walk from his house in Jason Road across 35^th Ave (the M12 at that point) to Holy Trinity and a short walk further to Adriaanse Ave.)

No 12’s evidence

[308]           No 12 grew up at […],15^th Ave, Elsies River. He testified that Lurkie was not his nickname but the nickname of his father, a pastor. He knew No 1, because the latter’s father lived nearby in 16^th Ave/Bourne Rd. No 12 and No 1’s brother played soccer together. He also knew No 7, having gone to the same primary school. He testified that he did not know any of the other accused.

[309]           He denied being a member of any street gang but said that in prison he was a member of the 28s. He had heard of the TJs in Elsies River. Among the areas where they were active was at the flats near 15^th Ave. He saw their graffiti in the area and you several members of the gang. There was drug dealing in the area, and he heard shooting from time to time.

[310]           Police photographs^[94] show that he has various tattoos including tattoos of the 28s and the TJs. He got these tattoos, he said, while at Pollsmoor Juvenile. The first one was a dollar sign, which is associated with the 26s. He had intended to join the 26s but was not there long enough to do so.

[311]           The remaining tattoos he got during the second period of detention at Pollsmoor Juvenile. On this occasion he was there for two to three months. A fellow inmate, Draad who was a TJ, accused him of belonging to the Bad Boys. When No 12 denied this, Draad said that he wanted to put a TJ tattoo on him to show that he was not a Bad Boy. He thus got a ‘TJ’ initial on his upper left hand, followed by the words ‘Terrible’ and ‘Joster’ on his right and left wrists respectively. He claimed that he did not have a choice but he never regarded himself as a member of the TJs. It was during this period of detention that he became a member of the 28s. He has a ‘28’ tattoo on his upper right arm and on his right hand, and the 28s expression ‘Son Af’ on his right hand.

[312]           Like No 11, he denied knowing a George Stevens and denied any involvement in his murder. He testified that he had never seen [CS] in his life before the latter testified in the present case. He thus agreed when it was put to him that there could have been no bad blood between them.

Discussion

[313]           Neither [CS] nor Hendricks saw a third shooter. However, according to [CS], Boeta met up with No 11 and No 12 in alley A3. It is not impossible, therefore, that there were two shooters ahead of the bakkie but that [CS] and Hendricks, who were some distance away, only observed one. If there was a third shooter, it might have been Boeta. The alternative explanation for the cartridges from a third firearm is that Stevens himself discharged several shots..

[314]           Hendricks testified that X1 and X2 walked off through alley A3. [CS] testified that they came through alley A2 and returned to alley A3 by going behind the back of the flats/maisonettes where they met Boeta. If there was a third shooter in front of the bakkie, Hendricks may well have seen this person (X3) disappear into alley A3. Since the scene was mobile and since she was traumatised, it is quite plausible that the memory has formed in her mind of two shooters disappearing into alley A3.

[315]           Although there are material differences between [CS]’ statement to Witbooi and his later statement and oral evidence, my assessment of him is that he could not have maintained a complex fabrication. He may of course have had a faulty memory of precisely how events unfolded but his identification of No 11 and No 12 as the two shooters has been consistent. When he made his statement to Witbooi his mind may well have been in turmoil, since he had only just decided to cooperate with the police, and was telling them about three different murders. He had been a heavy drug user. I would not discount the possibility that, as his mind settled and after a long narcotic-free period, events may have come back to him more clearly, even in the unusual circumstances he narrated. His version in court is reasonably consistent with Hendricks’, save for the question of the alley into which X1 and X2 disappeared after the shooting.

[316]           In regard to the important question of identification, it is important to bear in mind that Stevens was not, on his version, a bystander to a single incident about which he was later called to testify. On his version, he saw No 11 and No 12 again later in the year. According to him, he was associated with No 11 and No 12 in the Browers murder, and he was in their company for some time on that occasion. He recognised them from the Stevens’ shooting. And in between these two events he had been associated in some way with No 11 in the wheelchair case.

[317]           Accordingly, and before reaching a final decision on the Stevens counts, I shall first deal with the evidence relating to the murder of Victor Browers. It will also be necessary to consider some other aspects bearing on his credibility.

[318]           However, I may mention here that I discharged No 11 and No 12 on the count of armed robbery because there was not evidence on which a reasonable court could find that the accused were guilty of that particular crime. Stevens’ firearm may have disappeared from the scene but there is no evidence that it was taken by No 11 and No 12. There were bystanders with opportunity to take it before the police arrived. The circumstances in which the firearm was subsequently found may point a finger of suspicion in the general direction of the TJs but not specifically at these accused. .

Counts 67-70 (murder of Victor Browers @Fox)

[319]            These counts charge No 11 and No 12 with murder (count 67), attempted murder (count 68) and the possession of firearms and ammunition (counts 69 and 70). The crimes are alleged to have been committed on 13 December 2016.

[CS]’ evidence

[320]           One morning during 2016 – he could not remember the date but it was a working day – he left his mother’s house to go to the flats in Adriaanse Ave where he sold drugs. Before he was out of their road, a white Quantum taxi driven by No 2 pulled up. Other passengers in the taxi were Duwayne Arries, Kapadien (No 11), Lurkie (No 12) and Darra (proper name Zachary Wasserfall). He was told to get in, he was not told why.

[321]           They drove to Kalksteen where one Taliep also got into the taxi. (Taliep was a person to whom Duwayne and [CS] had delivered drugs in the past.) No 2 drove a little further and stopped outside a flat-roofed house. Everyone except [CS] got out of the taxi and went into the house. When no one re-emerged after about five minutes, [CS] knocked on the door. An unknown woman answered. He asked where Duwayne was. She said there was nobody there. He went back to the taxi and waited. After a while the others came out of the house and got back into the taxi.

[322]           They then drove to another address in Kalksteen where a white Ford Bantam bakkie was parked in the road. This was the bakkie he had driven in the wheelchair case earlier in the same month. (From other evidence, it became clear that the vehicle was in fact a white Mazda Rustler bakkie.) Duwayne told him to drive the bakkie and follow them, which he did. They went to the street in which Taliep’s place was located, where Taliep, No 11, No 12 and another tall man who had not been in the taxi removed the bakkie’s canopy.

[323]           The convoy (this time without Taliep) left Kalksteen and drove to Elsies River. Duwayne gave [CS] R30 for petrol. [CS] drove to the Shell garage in Halt Rd near Elsies River High School and put in petrol. He then drove back to where No 2’s taxi was waiting for him on the corner of Halt Rd/18^th Ave.^[95] He followed the taxi down 18^th Ave to Darra’s double-story house.^[96] No 11 and No 12 got out, and the taxi drove on. The two accused stopped [CS], and No 11 got into the passenger seat while No 12 got on the back of the bakkie.

[324]           No 11 was wearing a white sweater with a blue pattern, blue jeans and nothing on his head. No 12 was wearing a blue cap and a black sleeveless jacket over a long-sleeved sweater.

[325]           No 11 stuck a firearm in [CS]’ side and told him, in crude language, that he should drive the bakkie properly today. (I did not get the impression that [CS] saw this as a real threat of violence. He was just being bullied by a man who saw him as a simpleton.) He made a U-turn, turned right into Halt Rd and drove past an establishment called Reo, which was opposite the BP garage.^[97] No 11 instructed him to make a U-turn and park. He remained in the bakkie^[98] while No 11 and No 12 got out and walked to the scrapyard located next to the garage.^[99]

[326]           He did not know what they did at the scrapyard but it was not long before they returned. No 11 said to No 12, ‘Jarra, ons mis nou vir Green Eyes’ and that the people from the scrapyard should phone Fox to come and talk with Green Eyes about taking stuff without paying for it. [CS] did not know who Green Eyes was.

[327]           [CS] and his passengers drove back to Darra’s place in 18^th Ave. No 11 told him to get out. The three of them waited outside the house. After a short while, No 11 received a phone call and walked away from the group. When he returned, he said to [CS] to hurry up, they now had to leave.

[328]           So they got back into the bakkie, No 11 again in front and No 12 on the back. They took the same route passed Reo. No 11 kept on telling him to drive faster. As they drove past Reo, [CS] saw Fox’s Jaguar standing at the traffic lights adjacent to the scrapyard. Halt Rd carries two lanes in each direction, and the Jaguar was parked in the outer lane (ie closest to the pavement and the scrapyard premises). The front passenger door of the Jaguar was open.

[329]           No 11 told [CS] to make a U-turn. As they neared the Jaguar, [CS] saw Fox in the driver’s seat and a white woman in the front passenger seat. The front passenger door was open, and the driver’s window was partly rolled down. As they reached the Jaguar, No 11 told him to stop alongside the Jaguar. As he did so, No 12 began firing on the Jaguar from the back of the bakkie. No 11 got out of the bakkie and shot through the opening of the driver’s window. [CS] said that No 11 held the firearm in his left hand.

[330]           During the shooting, the Jaguar started to roll forward. [CS], who was in the inside lane adjacent to the Jaguar, drove over the island in the middle of the road and stopped there with his left wheels on the island and his right wheels in the inner lane of the oncoming traffic. No 11 and No 12 got back into the bakkie. (He testified that No 12 had been standing on the back of the bakkie when he started shooting. He did not know whether No 12 had fallen off when [CS] began to move the car.) No 11 told him to get going. He drove up the wrong side of Halt Rd, switching to the correct side of the road when there was a break in the traffic island. No 11 kept on swearing at him for driving too slowly. No 11 told him what route to take: left off Halt Rd into 14^th Ave, right into Key Link and left into 15^th Ave. The two accused alighted at the flats at ‘Louw se Bos’ and told him to get lost.^[100]

[331]           He drove the bakkie and parked in the road behind a BP garage located on 36^th Ave in Clarke’s Estate. He opened the bonnet, removed the battery and walked home. Later he went to an acquaintance and sold the battery for R100 to buy tik. He did not go back to the bakkie again. He did not know to whom the bakkie belonged.

[332]           Since he had previously testified that he was afraid of these people, he was asked in cross-examination why he stole the battery. He replied that he did not know what to do. That evening he saw Duwayne at the Adriaanse flats, told him where the bakkie was parked, and gave him the keys. If the people had asked where the battery was, he would have said he did not know.

[333]           The cross-examination on discrepancies between his Witbooi statement and oral evidence included the following:

(a)  In the statement he did not mention that he had seen Fox and the Jaguar while driving past Reo before making the U-turn. (He said this was an omission but that his oral evidence was correct. However, when driving past Reo he did not yet know that No 11 and No 12 intended to shoot Fox.)

(b)  In the statement he did not mention that the two accused had got off/out of the bakkie when shooting at Fox. (He replied that he had indeed told Witbooi this.)

(c)  The statement suggested that No 11 and No 12 started firing simultaneously, whereas in his oral evidence he said that No 12 started shooting first.

[CS] becomes a State witness

[334]           It is convenient, here, to mention how [CS] became a State witness. The police had other evidence indicating that a white bakkie was connected with the shooting. The bakkie parked behind the BP garage attracted the police’s attention, and it was impounded and tested for fingerprints.^[101] A print on the exterior of the driver’s window was identified as belonging to [CS].

[335]           In July 2015 [CS] had been arrested on a charge of stealing a sound system out of a car. He was granted bail but a warrant for his arrest was issued when he failed to appear in court on 4 November 2016. He was arrested on this warrant on 28 January 2017. He remained in custody, and it appears that during June 2017 he was convicted and sentenced. He testified that he served 11 days of a three-month sentence before being released on parole.

[336]           The date of his scheduled release was 27 June 2017. At the parole office in Bellville, he was met by Capt Okkers and Sgt Theo van Wyk. They asked him to accompany them to the Elsies River police station and took him to an office. Okkers opened his laptop and showed him video material of a person removing a battery from the bakkie and walking away with it.^[102] Okkers told him that they had found his fingerprints on the bakkie. Although one would not have been able to identify [CS] from the video images, he took fright and ran out of the police station but was apprehended. Upon being brought back to the detectives’ office, he told them that he now wanted to tell the truth.

[337]           That night he slept in a single cell at the Elsies River police station. The next morning Van Wyk took him to the Mannenberg police station where (with Van Wyk present) Sgt Witbooi interviewed [CS]. On 3 July he was driven around in a police vehicle to point out various locations associated with his evidence. On 4 July he signed his s 204 statement and was taken into the witness protection programme.

[338]           In September 2017 [CS] was the witness in a photographic ID parade held in Beaufort West.^[103] He was shown an album containing 66 portraits and asked to identify persons he recognised. He correctly identified (among others) photo 16 as Kapadien (No 11), photo 40 as Lurkie (No 12), photo 56 as @Boeta (real name Alvin Davids), photo 44 as @Seg (No 2), photo 25 as @Darra (real name Zachary Wasserfall) and photo 18 as Duwayne Arries.

Written statements in lieu of oral evidence

[339]           Three statements from persons who worked at the ‘scrapyard’ were received in lieu of their oral evidence.

[340]           Shaakirah Undre^[104] stated that she and her husband, Ashlem, own the business, M & R Auto. At around 13:00 on the day of the murder she was in her office with her husband and Winston Erasmus. Two coloured men walked to the entrance of her office. The taller of the two men was wearing a red short-sleeved top. One of the men wanted to know where Ashlem was but before anyone could answer they turned around and exited the premises.

[341]           She left her office and stood at the front of the workshop. She saw the two men walking away from the premises and getting into a white bakkie. Her husband left the office to take Winston to Parow.

[342]           A little while later her employee, Heinie, came to the office and told her that Victor Browers (Fox) was outside. At the same time she got a call from her husband to say that she should give Victor R2000 he owed him for a car. She got into the front passenger seat to give Victor the money, and they chatted.

[343]           She was still in the car when the shooting began. She struggled from the car and collapsed in the road. Her son took her to hospital. She sustained three bullet wounds to the upper part of her right leg and hip. She was in hospital for more than three weeks, undergoing two emergency operations on the day of the shooting and another one in February 2017. She has suffered permanent damage to her leg and walks with a limp.

[344]           Her son, Raees, says in his statement^[105] that when the shooting began he rushed outside and saw a white bakkie alongside the Jaguar. He saw a person on the back of the bakkie and two men in front. He could not see if they had firearms.

[345]           Heinrich Damos says in his statement^[106] that at around 13:30 he saw Victor’s silver Jaguar stop outside the workshop. Victor asked him to call Shaakirah which he did. A few minutes later, while working on a car, he heard shots. He looked up and saw a white Mazda Rustler bakkie alongside the Jaguar. He saw a person on the back of the bakkie with a firearm shooting at Victor. He also observed two people in the front of the bakkie.

Other State evidence

[346]           It is common cause that Victor Browers @Fox was shot dead on Tuesday 13 December 2016. He was certified dead on the scene at 14:15. The post-mortem report^[107] recorded that the deceased had many tattoos on his body, among them ‘28’ tattoos. There were 13 gunshot entry wounds. Almost all the entry wounds were from shots that came from the deceased’s right. The only exception is shot K which entered the left side of his chest. (This must have been a ricochet.) Two of the shots (E and I) may have been fired from an elevated angle, to judge by the exit wounds / tracks. Three bullets and two bullet fragments were recovered from the body.

[347]           W/O H C Swart began his photographic investigation of the crime scene at 14:57 on the day of the shooting.^[108] He collected 14 cartridges cases, two cartridges and three bullets. These were found in the outer lane and island in the vicinity where the Jaguar was at the time of the shooting.

[348]           At 16:23 on the day of the shooting the police seized a white Mazda Rustler, CY 217-139, which was found in the place [CS] said he abandoned it.^[109] On the same day Const N Davids found a cartridge case in the back of the Rustler which he sealed in a forensic bag.^[110] The next day the Rustler was photographed at the Stikland pound^[111] and inspected for fingerprints.^[112] A print from [CS]’ left middle finger was found on the exterior of the  driver’s window.^[113]

[349]           Upon expert examination of the ballistics exhibits recovered at the crime scene,^[114] W/O Truebody found that the two cartridges were unfired 9 mm Parabellum calibre cartridges consisting of case, primer, propellant and bullet, designed to be fired by a centre-fire firearm. The 14 cartridge cases were 9 mm Parabellum calibre fired cartridges, and were all fired from the same firearm. One of the bullets was a 9 mm bullet. The other two bullets were of undetermined calibre. The expert could not determine whether these bullets were or were not fired from the same firearm.

[350]           In January 2017 another ballistics expert, W/O J B Bosser, inspected the Jaguar^[115] and located two more bullets, two bullet cores and a bullet jacket. He identified various bullet entrance holes in the car, indicating entry from the right-hand side of the vehicle at a downward trajectory.

[351]           He subsequently examined  (a) the ballistic exhibits found in the Jaguar; (b) the bullets and one of the fired cartridges found at the crime scene; and (c) the cartridge case found in the back of the Mazda Rustler.^[116] He concluded that one of the bullets he found in the car was fired from the same firearm that fired the bullet jacket he found in the car. He also concluded that the fired cartridge from the crime scene (a 9 mm Parabellum calibre cartridge) and the fired cartridge found on the back of the Rustler (a 7,65 mm calibre cartridge) were fired from different firearms. The remaining ballistics items were either unsuitable for microscopic comparison or inconclusive.

[352]           In April 2017 Bosser re-examined some of the above items and compared them with the ballistics exhibits retrieved from the deceased’s body.^[117] He concluded that three of the bullets retrieved from the body were fired from the same firearm that fired one of the bullets of unknown calibre recovered at the crime scene. The remaining ballistics items were either unsuitable for microscopic comparison or inconclusive.

[353]           In short, the ballistics reports confirm that there was a shooter who fired at least 14 shots from a 9 mm pistol. If the bullet found on the back of the Mazda Rustler got there during the shooting, this would confirm the presence of a second shooter and would be consistent with a person firing from the back of the bakkie. It is not possible, from the bullets found at the scene, in the car and in the body, to say whether they were fired from one or two (or more) firearms.

[354]           The fact that only one 7,65 mm cartridge was found is puzzling. If that shooter fired more than one shot, it is possible that other ejected cartridges also landed on the back of the bakkie and that the shooter collected them when alighting in order to remove evidence but overlooked the one found by the police.

[355]           A few days after the shooting, the police obtained surveillance footage from M & R Auto.^[118] Footage captured over a 15-second period at around 13:11 on the day of the shooting shows two men entering the workshop, standing at the entrance to the office, turning round and exiting the premises. The faces of the men are not identifiable. As to the clothing:

(a)  One of them is wearing a blue cap. The colours of the various still images are inconsistent. From one of the angles this person’s top seems to be red/maroon, in others bluish. He appears to be wearing blue jeans.

(b)  The other man has nothing on his head. In one of the angles his top seems to be pink. In the image of him standing in the doorway of the office, his top seems to be blue with a white pattern on the front. He too could be wearing blue jeans though this is unclear.

[356]           In the days following the shooting, Sgt Theo Van Wyk obtained surveillance footage from various establishments located on Halt Rd. These establishments included M & R Auto (mentioned above), JMC Liquor, Zaza Liquor and Wiempies Liquor Store. As one turns right out of 18^th Ave onto Halt Rd, JMC Liquor is on the left, about 100 m from 18^th Ave.^[119] After crossing over Avonwood Ave, Zaza Liquor is on the left, 150 m from the Avonwood intersection while Wiempies is another 100 m further up on the left. Shortly thereafter the 14^th Ave turnoff is on one’s right. (These distances are my rough estimates, based on the Google map images.^[120]) On the corner beyond 14^th Ave is a BP garage (not the one where [CS] abandoned the bakkie), and just beyond the BP garage is M & R Auto, part of which is a scrapyard. There is a zebra crossing across Halt Rd outside M & R’s premises.

[357]           Sgt Theo van Wyk in his evidence took the court through the various images. An analysis of still images extracted from the video footage^[121] reveals that the surveillance systems of JMC Liquor, Zaza and M & R were not exactly synchronised, though each individual system was likely to be internally consistent. The following reconstruction draws from Van Wyk’s testimony and is based on an assumption that the M & R and Wiempies time-stamps are correct and that the Zaza footage is three minutes slow and the JMC footage two minutes fast (ie I have adjusted their time-stamps accordingly). Minor differences in these assumptions do not materially affect the narrative. I record in parenthesis how the sequence of events would correlate with [CS]’ evidence:

(a)   12:54: A JMC camera captures a white bakkie travelling along Halt Rd in the direction of the Avonwood intersection. There is nobody on the back of the bakkie.^[122] ([CS] is in the vehicle alone, going to get petrol.)

(b)  13:06: Zaza cameras capture the white bakkie driving along Halt Rd in the direction of M & R after it has crossed Avonwood. There is a person on the back wearing a cap. One cannot see whether there is a passenger in front.^[123] ([CS], having followed No 2’s taxi to Darra’s place in 18^th Ave, is now driving No 11 and No 12 to the scrapyard/M & R.)

(c)  13:06:  A few seconds later a Wiempies camera captures the bakkie a little further along Halt Rd. A figure is crouched on the back of the bakkie, wearing a dark top and a cap that could be blue. There may be a figure in the front passenger seat though this is indistinct.^[124] ([CS] is still driving in the direction of Reo before making a U-turn.)

(d)  13:08:  A Zaza camera captures the white bakkie after it has apparently made a U-turn and reversed into the BP garage.^[125] ([CS] has parked while No 11 and No 12 go to the ‘scrapyard’.)

(e)  13:11:  The M & R surveillance cameras capture the two men entering and exiting the workshop.^[126]

(f)  13:15:  A JMC camera captures the bakkie after it has crossed over Avonwood and is driving past the Spar on its left hand side.^[127] ([CS] is driving No 11 and No 12 back to 18^th Ave.)

(g)  13:26:  A JMC camera captures a silver Jaguar driving up Halt Rd towards the Avonwood intersection.^[128] (Browers is making his way to M & R.)

(h)  13:31: JMC cameras capture the white bakkie turning right out of 18^th Ave into Halt Rd and driving in the direction of the Avonwood intersection. There is a man on the back of the bakkie wearing a cap which could be blue. In one of the images he could be wearing a light long-sleeved sweater underneath a sleeveless black jacket. In one of the images there appears to be a person in the front passenger seat though this is not plainly visible.^[129] ([CS], having returned to Darra’s house in 18^th Ave, has now been instructed to take No 11 and No 12 back in the direction of M & R.)

(i)  13:33: A Zaza camera captures the white bakkie driving back down Halt Rd on the wrong side of the road.^[130] A few seconds later it has crossed over to the correct side of the road.^[131] (The shooting has just happened, and [CS] is following No 11’s instructions as to the getaway route to follow.)

[358]           Sgt Theo van Wyk also collected surveillance footage from the BP garage in Clarke’s Estate where [CS] abandoned the white Mazda Rustler.^[132] This footage, which shows [CS] removing the battery from the bakkie and walking off with it, is time-stamped 19:50 – 19:52. This footage was only adduced as an exhibit during Van Wyk’s testimony, who testified after [CS]. [CS] was, however, cross-examined on the basis that this footage existed and on the assumption that the time-stamps were correct. If the time-stamps were correct, his account of when he removed the battery would obviously have been wrong. Since I expected the footage in due course to be produced, I warned him to think carefully about his answers, but he adhered to his version that he removed the battery immediately after abandoning the bakkie, and that he did not return to the bakkie later in the afternoon/evening.

[359]           Once the footage was produced by Van Wyk, it became clear to me that the time-stamps could not possibly be correct. The footage was taken in broad daylight, and the shadows indicated that the sun was more or less overhead. If the shooting happened at around 13:33, [CS] had probably abandoned the bakkie by not later than 13:50. The BP footage would be consistent with his version. Furthermore, the extract from Const Adendorf’s pocketbook^[133] shows that the bakkie was impounded at 16:23, which again shows the BP time-stamp to be wrong

No 2’s evidence

[360]           Although No 2 was not charged in connection with Browers’ murder, his name featured in the prelude as narrated by [CS]. He was asked about this by his counsel, and he said that he did not drive taxis on the road because No 1’s mother (the taxi owner) was very strict about this. For the rest, he could not remember whether he was with Duwayne Arries, Zachary Wasserfall or No 11 on the day of Browers’ murder. He testified that he did not know No 12. He said that he did not know anything about going to collect a Bantam bakkie.

No 11 evidence’s

[361]           No 11 denied any involvement in Browers’ murder. He did not know Browers though he had heard of Fox as a gang boss, a leader of the Horribles. He had also heard of Green Eyes – he was a gang member belonging to the G-Unit gang.

[362]           He knew Zachary Wasserfall as No 1’s cousin. He knew No 2. He said that he did not know Duwayne Arries. He denied ever having been in Kalksteen.

No 12’s evidence

[363]           like No 11, he denied any involvement in Browers’ murder. He testified that he had never travelled in a taxi with No 2, Arries and Wasserfall.

[364]           He had heard the name Fox as a gang boss and leader of the Terribilistics. He had not heard of the Horribles. Fox lived a few streets from him. He knew that Fox dealt in drugs. He saw Fox in the area but they never conversed. He had also heard of Green Eyes but professed ignorance of a gang connection.

[365]           He testified that he has often been in Halt Rd when doing shopping. He knows the BP garage there. He denied ever having visited the premises of him M & R Auto.

[366]           In cross-examination he confirmed that the place where [CS] claimed to have dropped him and No 11 off after the shooting was very close to where his house was at […],15^th Ave. ^[134]

[367]           No 12 testified that he did not know Duwayne Arries. It was put to him that Arries had been shot dead in Bourne Rd, very close to where he lived. No 12 replied that he had heard of Arries’ death but that he did not know him. He had gone to the scene of the shooting, and bystanders said that the victim was Duwayne Arries. Zachary Wasserfall (whom he did not know as Darra) lived at […] Bourne Rd, but Zachary’s Auntie Tussie lived at [… ],18^th Ave. (I mention in passing that in connection with count 71, No 1 and No 2 formally admitted that Wasserfall lived at […], 18^th Ave.^[135])

Discussion

[368]           There is strong objective evidence to support [CS]’ account of his movements on the day in question. I am satisfied beyond reasonable doubt that he drove the shooters to and from the murder scene along the routes he identified; that one of the shooters was in the front passenger seat, the other on the back of the bakkie; that the shooter on the back of the bakkie fired at least one shot from the back of the bakkie: and that the shooter who was in the front passenger seat got out of the bakkie (this is indicated by the location of the cartridges) and shot at least 14 rounds.

[369]           Although the objective evidence in support of the above conclusions does not in itself implicate No 11 and No 12, it is corroboration on matters that are not common cause, since defence counsel tested [CS] on all aspects of his account. There was no admission that he was the driver of the vehicle used in the shooting or that he abandoned it behind the BP garage or that he did so at the time he claimed.

[370]           As to the identification of the perpetrators, [CS] said that No 11 was wearing a white sweater with a blue pattern, blue jeans and nothing on his head. The M & R image of the two men standing in the doorway of the office reflects that one of those men did not have a cap and may well have been wearing blue jeans. As to his top, it appears to be a blue top with a white pattern rather than a white top with a blue pattern.

[371]           [CS] testified that No 12 was wearing a black sleeveless jacket, a long-sleeved sweater underneath and a blue cap. The M & R footage shows that one of the men who visited the premises was wearing a blue cap. Footage of the bakkie driving towards the scene of the shooting shows a person on the back wearing a cap which in some of the photographs appears to be blue. In several of the photographs this person appears to be wearing a dark top, and in one image it can be seen that it was a sleeveless top, underneath which was a light-coloured long-sleeved sweater.

[372]           No 12’s evidence establishes that the place where [CS] claimed to have been instructed by No 11 to drop them off was very close to where No 12 lived. No 12’s evidence also establishes a connection between Zachary Wasserfall and an address in 18^th Ave which [CS] identified as Wasserfall’s place, though according to No 12 Wasserfall did not actually live there – the house at […], 18^th Ave belonged to Wasserfall’s aunt.

[373]           Although it was put to [CF] that No 11 and No 12 would deny having been in No 2’s taxi earlier in the day, and that they would deny having been in the bakkie or having participated in the shooting, it was not put to [CS] that No 11 and No 12 were not acquainted with him or with No 2, Darra and Duwayne. In the event, though, No 11 and No 12 not only denied having ever seen [CS] before he testified in court but denied even knowing each other.

[374]           A social media photographs of a number of young men in bathing trunks, taken on a Camps Bay/Clifton beach,^[136] shows No 11 in the company of various other alleged TJs, including No 1, No 2, No 7 and No 10. Along with others in this photograph, he is displaying what [CF] alleged to be the TJ hand-sign (some of the others are displaying the 28s hand-sign). In another photograph, in which he appears with No 1 and No 2, he and No 1 are displaying the alleged TJ hand-sign.^[137]

[375]           Police photographs of No 12^[138] show that he has the words ‘Terrible’ and ‘Joster’ tattooed on his right and left wrists respectively and the abbreviation ‘TJ’ on the upper side of his left hand. On the outer aspect of his upper right arm he bears a tattoo of the 28s (‘2-V-III’).

[376]           It is all but impossible that [CS] could be honestly mistaken about the identity of the men he took to do the shooting. Accordingly, if the shooters were not No 11 and No 12, one would have to conclude that [CS], while otherwise giving an accurate account of the day’s events, falsely placed No 11 and No 12 on the scene. No motive for him to do so was put to him. Having decided to cooperate with the police, why would he not name the actual shooters? If he gave false names, he might easily be proved wrong, and what then would become of his own protection as an accomplice to the murder?

[377]           This is not a case where a person who might singly have perpetrated a murder is shifting blame to others. It is established by objective evidence that three people were involved – the driver of the bakkie and two others. There is nothing to indicate that [CS] himself was a shooter. Having taken his measure in the witness box, I do not believe he could have performed that role. His fingerprint on the driver’s window supports his version that he was a mere driver.

[378]           If [CS]’ evidence were accepted, it would support the charge against No 11 and No 12 of murdering Browers (count 67), the attempted murder of Shaakirah Undre on the basis of dolus eventualis (count 68) and possession of the firearms and ammunition they had with them during the attack (counts 69 and 70).

Miscellaneous credibility issues concerning [CS]

[379]           Before stating my final conclusions on the Stevens and Browers counts, I should deal with miscellaneous aspects bearing on [CS]’ credibility.

Drug use

[380]           He was questioned about his extensive use of drugs. He said that tik makes him feel high, energetic, as if he could work all day. When it wears off, he becomes sleepy. He was asked if it made him hallucinate. He said yes, it might make you think that you see a person when he is not actually there. Mandrax, he said, makes a person feel drowsy but one does not hallucinate.

[381]           When various side-effects of prolonged tik use were put to him, he acknowledged having insomnia, tooth decay and weight loss. On the other hand, he did not believe he had suffered memory loss, and he had not become violent or angry. As to the side-effects of mandrax, he did not frequently get sick, did not have breathing problems and had not noticed any mental or physical deterioration.

[382]           As to the possible effects of drugs on him during the events about which he was testifying, his evidence was that on the day of Stevens’ murder he had not used drugs before witnessing the relevant events. That was credible, given that he was at work that day. He would not have been suffering from hallucinations when the shooting occurred.

[383]           On the day of Browers’ murder, he acknowledged having smoked tik before he left the house that morning. He left the house (his rough estimate) between 08:00 –10:00. There was no further opportunity for him to use drugs until after the murder. He gave a detailed account of his movements. Those which took place after the convoy left Kalksteen are corroborated by CCTV footage, backed up by medical and ballistics evidence. There is no evidence as to who the owner of the bakkie was, but nobody suggested that it was [CS]’ car. It must have come from someone else, and he provided a plausible and credible explanation as to how he came to be driving it.

[384]           Whatever effects his morning dose of tik had on him, he was self-evidently able to drive the bakkie competently, to follow directions and to do what he was told. His conduct was not that of a man hallucinating. It is quite plain that he drove two shooters to the murder scene, so he was not hallucinating as to their presence. I do not think it remotely credible that he was hallucinating as to their identity.

[385]           By the time he testified in court, [CS] had been ‘clean’ for several years. He clearly manifested, and admitted, his below-average intellectual acumen, but I cannot say that I discerned any symptoms of mental impairment caused by sustained drug use.

Gang membership

[386]           In chief he denied having ever been a gang member. He acknowledged that he had a ‘JCY’ tattoo on his right shoulder, which he had got when he was 16 or 17. He claimed to have been under the influence of tik at the time. He did not know what the tattoo signified.

[387]           He disclosed a TJ tattoo on his right arm, which he confirmed stood for ‘Terrible Joster’. He denied, however, that he was a TJ. He explained the tattoo as follows. He was in Goodwood prison awaiting trial on a charge of theft. He was placed together with a number of TJs when a group of prisoners was being taken to the Goodwood court. These included Boeta, John Piedt and Kanebo. Piedt had apparently been arrested at some stage for Fox’s murder on suspicion of having driven the bakkie which [CS] in fact drove. Piedt wanted to stab [CS]. When [CS] got back to his own cell that evening, other TJs in the cell said that he either had to get the tattoo or they would stab him. So he got the tattoo to protect himself.

[388]           In cross-examination it was put to him that, in his statement to Witbooi, he claimed to have been a member of the TJs and previously a member of the JCYs. He was asked if he told Witbooi this. He replied in the negative; what he had told Witbooi was that he had the tattoos. A later passage in the same statement was put to him, where he claimed that the source of his knowledge about the various incidents came from the fact that he was part of the group which called itself the TJs, a group which in turn formed part of the 28s. He denied telling Witbooi that he was a member of the TJs.

[389]           It may well be so that [CS] deliberately downplayed his gang association. On the other hand, he was perfectly open about the persons with whom he associated and that he dealt in drugs. The precise point at which one becomes a member of a street gang seems to be shrouded in uncertainty. According to [CF], there is no formal process. He did not regard, as TJs, persons who merely dealt in drugs for the TJs. Some more violent activity was needed. What is clear is that, with his simple and pliable nature, [CS] would never have been anything more a lowly stooge.

The black Golf incident

[390]           [CS] testified that he stopped dealing in drugs in January 2017. It was put to him that the reason he stopped was that he was rearrested on the theft charge. He said this was not so, he had stopped before he was rearrested. In that connection, he described the following incident. He had received drugs from Duwayne. After keeping (ie stealing) some for his own use, he gave the rest to Kanebo, and decided to go and live with his family in Delft.

[391]           On his way, he was bundled into a black Golf driven by Duwayne Arries. The passengers in the car were No 2, No 11, No 12 and Darra (Zachary Wasserfall). They took him to a flat house (‘plathuis’) opposite No 1’s place. Duwayne said that [CS] had to be shot. No 2 told No 11 that the gun was in the taxi. No 11 went off to the taxi. [CS] managed to pull himself free from No 12 and ran away, eventually making his way to his mother’s house in Elsies River. She told him the police were looking for him, and this led to his rearrest.

[392]           It was put to him that he had previously testified about the occasions on which he saw No 11 and No 12 after the Stevens murder, and that he had not mentioned this one. He acknowledged this, but said he had dealt with it in his police statement. Since he was not challenged on this latter assertion, I think I can accept that his evidence about the black Golf incident was not a recent fabrication. Although defence counsel put to him that their clients would deny his version of the black Golf incident, they did not testify about it. I do not hold this against them. Mr Menigo himself did not cross-examine the relevant accused on this incident, presumably regarding it as a collateral matter going purely to credit. All I need say is that it has not been shown that [CS] was lying about this incident.

Final conclusions on counts 55-58 (Stevens) and 67-70 (Browers)

Evidential principles

[393]           In respect of Stevens’ murder, [CS] is a single witness and his evidence relates to identification. He is not an accomplice witness on those counts.

[394]           In respect of Browers’ murder, [CS] is again a single witness. Identification is less of an issue, because, for reasons I have explained, I do not see scope for an honest error. He may not strictly be an accomplice to Browers’ murder, because on his version he did not know that the men he was transporting to the scene intended to shoot anyone. He was, however, at least, an accomplice after the fact, in that he aided the shooters to escape the scene.

[395]           As to single witnesses, s 208 of the CPA, as explained in the cases, allows a court to convict an accused on the strength of the evidence of a single witness, provided the court exercises the necessary caution in so doing. A court may properly be satisfied beyond reasonable doubt that a single witness is telling the truth, even though there are some shortcomings or defects in his evidence. The exercise of caution must not be allowed to displace the exercise of common sense (S v Sauls & others 1981 (3) SA 172 (A) at 179-180).

[396]           As to accomplice witnesses, caution is again necessary, for the reasons stated by Leon J in S v Masuku & another 1969 (2) SA 375 (N) at 376-377 with reference to Appellate Division authority. Corroboration is not a legal requirement, though often a court may not be satisfied to the requisite degree without corroboration. An assurance that the accused is telling the truth may be found in the fact that an accused does not testify always found to be a lying witness or is a friend of the accomplice-witness. Even in the absence of one or other of these features, it is competent to convict on the accomplice’s evidence if the court (Masuku 377B-C)

‘understands the peculiar danger inherent in accomplice evidence and appreciates that acceptance of the accomplice and projection of the accused is only permissible where the merits of the accomplice as a witness, and that the merits of the accused as a witness, beyond question.’

[397]           Identificatory evidence needs to be assessed with due regard to the fallibility of human observation, bearing in mind that the witness’ honesty is not a substitute for reliability (S v Mthetwa 1972 (3) SA 766 (A) at 768).

The Browers murder

[398]           In regard to Browers’ murder, [CS] does not have corroboration, but his account of the day’s events, in respect of matters which were not common cause, has been found to be accurate with reference to objective evidence. As previously mentioned, I did not assess him as a man capable of sustaining a complex fabrication. I was impressed by the way, when he was initially challenged about the timing of the removal of the bakkie’s battery with reference to the incorrect time-stamp of the BP footage, he adhered to his version and did not attempt to adapt it with reference to what he might have perceived to be contradictory objective evidence. In the event, his version as to when he parked the bakkie and removed the battery was shown to be the truth.

[399]           I have explained why I do not think it plausible that he was honestly mistaken about the identity of the men he transported to and from the murder scene. I also accept it as proved beyond reasonable doubt that he was the driver, not a shooter. The question thus reduces itself to whether there is a reasonable possibility that he was lying about the identity of the two shooters. I have explained why there appears to have been no motive for him to do so. His own role in the events was no way diminished by identifying No 11 and No 12, rather than two other men, as the shooters.

[400]           There is an objective link between No 12’s residence and the place where [CS] was on his version instructed to drop off the shooters. There is an objective link between Zachary Wasserfall @Darra and the house at […],18^th Ave. No 11 and No 12 both knew Wasserfall. It is also common cause that No 11 and No 12 both knew No 2, who features in [CS]’ account of events earlier in the day. This would be a remarkable coincidence, if [CS] was falsely implicating No 11 and No 12, particularly in circumstances where according to the accused he is completely unknown to them.

[401]           Neither of these accused ultimately impressed me as witnesses. I do not believe either of their denials of membership of the Terrible Josters. Even if No 12 originally got his TJ tattoos in the circumstances he related, he did not subsequently have them removed, even though they are located on visible parts of his wrists and hands. No 11’s evidence that he had not heard of the Terrible Josters before the evidence in this case is ludicrous.

[402]           Bearing in mind the caution sounded in the cases to which I have referred, I am satisfied beyond reasonable doubt (a) that [CS] truthfully and reliably identified No 11 and No 12 as the men who shot Victor Browers and (b) that No 11 and No 12’s denials are dishonest. It follows that they must be convicted on counts 67-70. The murder count falls within the scope of s 51(1) of Act 105 of 1997 because it was planned and premeditated and because it was committed by at least two people acting in the execution or furtherance of a common purpose.

Stevens’ murder

[403]           The fact that I have found [CS] to be a truthful witness, and No 11 and No 12 to be lying witnesses, in relation to Browers’ murder, does not in itself mean that the same result must follow in respect of Stevens’ murder, though it nevertheless casts a backward shadow. My findings in respect of Browers’ murder entails a rejection of these two accused’s evidence (a) that they did not know each other; (b) that they did not know [CS]. On [CS]’ version, it is of course true that at the time of Stevens’ murder, No 11 and No 12 were not known to him, but it is established beyond reasonable doubt that they and [CS] were subsequently acquainted with each other.

[404]           In relation to Stevens’ murder, [CS] is not an accomplice witness. The circumstances in which he became a s 204 witness did not impel him to say anything about the Stevens murder. It would have sufficed for him to ‘come clean’ on the Browers murder, since that was the only crime in respect of which the police had evidence implicating him. I am satisfied beyond reasonable doubt that he was testifying honestly about what he observed on the day of Stevens’ murder.

[405]           I thus need to decide whether it is a reasonable possibility that he is honestly mistaken about the identity of the two shooters. I think that this would be a greater risk if [CS] had simply been an eyewitness testifying to this single incident several years after the event. However, later in that same year he saw No 11 and No 12 from close quarters and over an extended period in connection with the Browers murder, and not long before that he had seen No 11 in the wheelchair incident. He recognised them as the men who had perpetrated the Stevens shooting. And according to [CS], he also saw No 11 and No 12 again in the black Golf incident, which was not long after the Browers murder.

[406]           There is an objective link, albeit slight, between No 11 and the location of the shooting, in that it occurred in a road well-known to No 11 and not far from his home. The direction in which [CS] observed the men to flee was consistent with an hypothesis that they were making their way back to No 11’s residence.

[407]           According to Mrs Hendricks, Stevens sold drugs, although she says he had stopped by the time of his murder. Victor Browers @Fox, she testified, grew up as a child in her house. Stevens and Browers were friends, and remained so up to the time of Stevens’ death. Browers, at the time of his murder ten months later, was a gang boss, and I am satisfied that his murder was connected with gang rivalry. This makes it credible that No 11 and No 12, who were responsible for Browers’ murder, were also aware of Stevens’ activities and of his association with Browers.

[408]           Once again, and taking into account the necessary caution, I am satisfied beyond reasonable doubt that [CS]’ identification of Stevens’ shooters was not only honest but reliable. It follows that No 11 and No 12 must be convicted on counts 55, 57 and 58. The murder count falls within the scope of s 51(1) of Act 105 of 1997 because No 11, No 12 and Boeta were acting in the execution or furtherance of a common purpose.               

The uncorroborated [CF] charges

[409]           I now turn to the remaining counts (other than the POCA charges), all of which depend on [CF]’s uncorroborated evidence to identify the accused as the perpetrators. I take those charges in chronological order. At the end of each set of charges I discuss the strengths and weaknesses of the State case. After dealing with all the relevant sets of charges and miscellaneous matters bearing on [CF]’s credibility, I set out my final conclusions.

Background prior to August 2009

[410]           The first set of charges on which [CF]’s evidence is crucial is the murder of Joey Louw on 30 August 2009. I first summarise the following pre-2009 background given by [CF]. He was born in 1984 in Belhar Ext 13 and started primary school there. He lived with his grandfather in Valhalla Park during his high school years. When he left school in Grade 10 (1999/2000), he began courting a Muslim lady. He lived with her family in Wetton, and managed a garage they owned. He attended a Muslim school for religious instruction. He married their daughter and lived with her in Wynberg. After several years he left her and moved back to Valhalla Park, before returning, sometime between 2003 – 2005, to his family home at [… LD] Cres, Belhar Ext 13, where his mother lived.

[411]           When he was in Standard 5 or 6 he joined a gang, the TSWs, which was affiliated to The Firm. The TSWs only operated in the school and did not commit serious crime. He was not aware of any unlawful TSW activity outside of school. He had no gang involvement in Wetton or Wynberg. He said that The Firm was not a street gang but an organisation which engaged in legitimate business such as liquor wholesaling.

[412]           Upon his return to [LD] Cres, he sought out No 5, whose family lived next door and whom he had known since childhood. No 5 was a year younger than he. He was directed to a place in Belhar called the White House where drug dealing took place. There he found No 5 and certain others, including one Gregory Isaacs. Isaacs asked him to help sell mandrax and crystal meth (tik). At this stage Isaacs led a gang called the NWAs in Belhar Ext 13. Later Isaacs landed up in prison, and the operation at the White House was carried on by No 5 and [CF]. [CF] got drugs from No 5 who in turn got them in Old Belhar from Wendell Tarantaal’s mother, though later he mentioned the name of one @Suss as No 5’s supplier. They in turn, according to [CF], got their drugs from No’s uncle, Ernest Solomon. (Other evidence has identified Wendell’s de facto father as Elton Graaff @Saygo, who made a living inter alia as a DJ.)

[413]           When asked how the NWAs became the Terrible Josters (‘TJs’), [CF] said that they were really one group. The ‘Josters’, on his understanding, came from Johannesburg in the 1990s. The name ‘Terrible’ was added because the ultimate leader of the gang was No 1’s uncle, Ernest Solomon (‘Solomon’), whose nickname was ‘Lastig’. At a time when [CF] and No 5 were still living at the White House, the latter introduced [CF] to Solomon at the latter’s home in Melck St, Belhar. No 5 told Solomon that [CF] was his driver, which was a true description.

[414]           For some years as from 2004/2005 [CF] and No 5 were involved together in drug dealing for the TJs out of Belhar. Most of the charges in respect of which [CF] testified took place against this background.

Counts 3-4 (murder Jermaine Louw @Joey)

[415]           These counts, preferred only against No 5, comprise incitement to commit murder (count 3) and murder (count 4), allegedly committed on 30 August 2009.[139]

[CF]’s evidence

[416]           Joey Louw was a member of the 28s and the TJs. He was a shooter working under No 5. One Sunday afternoon, the date of which [CF] could not recall, he received a message to phone No 5 who was apparently looking for Joey. No 5 told [CF] that Solomon (to whom No 5 referred as ‘die Ou’) wanted Joey killed because he had used tik with Solomon’s daughter at Solomon’s house.

[417]           No 5, who by this time was living in [WG] Park, a security complex in Bellville, collected [CF] in his blue Toyota Corolla. They went to [LD] Cres, and walked to a nearby house where Jermaine McKenzie @Piggels resided. [CF] and Piggels had been childhood friends, but as adults they were alienated because Piggels belonged to the Junior Mafia. But Piggels was also a hitman for hire, and at that time there was a lull in hostilities between the two gangs. No 5 asked Piggels to shoot Joey, and said that [CF] would give him a firearm and 100 mandrax pills. Piggels agreed.

[418]           Joey, Piggels, [CF] and No 5 all believed in muti. According to [CF], the hit was to take place at 20:00 that night. When asked in cross-examination why that specific time, he said that perhaps No 5 had consulted his muti doctor and been told that 20:00 was propitious.

[419]           No 5 and [CF] walked back to the Corolla and fetched the 100 pills and a pistol. The latter was buried in a ‘channel’ (a gang word for a concealed hiding place) in [CF]’s backyard. [CF]’s initial testimony was that the pills were in a channel in the car but he later said that, before they walked to Piggels the first time, he had removed the pills from the car and hidden them in his backyard channel.

[420]           He testified that there were rounds in the pistol’s magazine but he could not say how many. He knew there were some rounds in the magazine because he used the firearm for No 5’s protection when the latter came to Belhar. [CF] returned to Piggels and gave him the firearm and drugs.

[421]           Later that evening one of [CF]’s friends, who lived in Adam Tas St, came running into [LD] Cres to tell [CF] that Joey had just been shot. The two of them walked back and saw people around the body, which was lying in the alley leading from Adam Tas St to De Gama Cres.  He could not say whether Joey was still alive but he peered through the people and could see it was Joey.

[422]           He was shown police photographs of the body lying in Adam Tas St. This was a little way from where he had seen the body earlier. He speculated that the body may have been carried. It was put to [CF] in cross-examination that there were witness statements to the effect that the body had indeed been carried, the cross-examiner’s implication being that [CF] had only offered his speculation because the police had told him what was in the witness statements. [CF] denied this. Be that as it may, it was not put to him that the body had not originally been in the place he claimed to have seen it

[423]           The victim of this hit, Joey, had been a friend of [CF] and No 5. They attended his funeral. In part, this was because their absence might have indicated that the TJs were responsible for the murder. On Solomon’s instructions, No 5 gave Joey’s mother a gift of R10 000.

[424]           At Solomon’s next birthday celebration in Hawston (where he was by then living), [CF] spoke with Solomon’s daughter, Deirdre, about Joey’s death, because he heard it was being said that he too had used tik in Solomon’s house with Deirdre, though this was untrue. She confirmed that this was being claimed.

Other State evidence

[425]           Joey Louw was shot dead on the evening of Sunday 30 August 2009. He died at 21:33. Insp J P Taljaard began his photographic inspection at the crime scene at 22:41.[140] Among other markings on Joey’s body was a ‘28’ tattoo. He died from a single gunshot wound which perforated his left lung. The bullet was retrieved from the body.[141] Its calibre was .38/.357.[142]

[426]           Jermaine McKenzie @Piggels was arrested for the crime on 1 November 2009. He was prosecuted but acquitted on 20 September 2010.[143] This suggests that there was some evidence of Piggels’ involvement but insufficient to secure a conviction. In 2009 / 2010 the authorities did not have [CF]’s information.

No 5’s evidence

[427]           No 5 denied any involvement in Joey’s murder. He denied having ever believed in muti. He knew Joey though they were not friends. He often sold fish to Joey’s mother. He denied attending Joey’s funeral or paying money to Joey’s mother. He knew Piggels, because they had grown up in the same street, [LD] Cres. They had been friendly as children.

[428]           Since the only evidence of No 5’s involvement was [CF]’s testimony, there was little scope for charge-specific cross-examination.

Discussion

[429]           [CF] described the firearm they gave to Piggels as a ‘9 mm pistol’. It was put to him that the fatal shot was in fact fired from a .38/.357 firearm. For two reasons, this is not a significant point:

(a)  First, it became clear during the course of [CF]’s evidence that he described all semi-automatic pistols as ‘9 mm pistols’. The distinction in his mind was between ‘9 mm pistols’ and revolvers. He did not know that ‘9 mm’ referred to calibre nor more generally did he have an understanding of calibres. So the pistol handed to Piggels could in fact have been a .38/.357 .

(b)  Second, the pistol was payment. It was not necessarily the firearm Piggels actually used.

[430]           I have mentioned the inconsistency as to where the mandrax pills were hidden. When tackled about his later evidence that he had fetched the pills from the backyard, he said that earlier he had perhaps spoken too quickly, but that the true position was that he had removed the pills from the car and hidden them in the backyard before they walked to Piggels for the first time.

[431]           It was put to him that the impression created by his police statement was that on arrival at [LD] Cres he took the pills out of the car and walked behind No 5 to Piggels. [CF] acknowledged that this was confusing, but gave the evidence I have previously mentioned, and said that he did not ‘follow’ No 5 but walked with him to Piggels.

[432]           It was put to him that his statement alleged that the gun was taken to Piggels at 18:00. He said that this time had not come from him. What he had told Bonthuys was that it was still daylight. (In general, [CF]’s evidence was that he did not know the dates or precise times of any of the events he described. And often he did not know the proper names of the role players, only their nicknames.)

[433]           It was put to him that his statement alleged that his friend had come running around the corner to report the shooting at 20:10. He denied having given this precise time to Bonthuys. What he told Bonthuys was that it was shortly after 20:00. As to the fact the there were witness statements indicating that the shooting occurred around 21:30, he said that his assumption, when talking to Bonthuys, had been that it was shortly after 20:00, because this is the time that had been arranged for the hit. He had not been following the time that evening.

[434]           The final point of criticism is that his police statement did not refer to the fact that Piggels would receive the mandrax pills and firearm as payment. He acknowledged that this statement did not say this in so many words, but he confirmed that they were in fact payment for the hit. He pointed out that his statement did record that both the pills and the firearm were given to Piggels and that there was no mention of Piggels having returned the firearm.

[435]           There are no inherent implausibilities in [CF]’s account. He furnished a realistic motive (a command from on high, rather than a personal desire by No 5 and [CF] to kill Joey). His evidence about the donation to Joey’s mother had an authentic ring. If [CF] were fabricating his whole account, there was no reason to add this detail, particularly since it might be thought unusual and might potentially have been refuted by Joey’s mother.

[436]           His evidence that Piggels was a hired gun is to some extent borne out by the fact that Joey was killed with a single shot. It might be said that if [CF] was fabricating, he could not have known that there were not two or more shooters. As against this, one must bear in mind the possibility that [CF] may have had sufficient knowledge of the killing (whether from personal involvement, street talk or the newspaper) to give an account consistent with objective police evidence, while nevertheless falsely implicating No 5.

[437]           [CF] provided his information about this crime in 2016, by which time Joey’s 2009 murder docket was a cold case. [CF] also implicated himself as an accomplice, despite the fact that until then the police had no information against him. In some counts [CF] disclosed participation as an accomplice, even as an actual shooter; in others, he claimed only to have heard and observed the planning of crimes. The fact that he made himself a participant in Joey’s murder is a factor which might be thought to lend credibility to his account, since if he were fabricating he could have relegated his role to that of a hearer and observer.

[438]           If, as [CF] testified, No 5 was the leader of the TJs in Belhar, it is unlikely that a hit would have occurred in Belhar without No 5’s approval. It is notorious that gangs have command structures, and it is inherently probable that TJ hits would only take place with the say-so of the gang leader in that area. However, the only evidence that No 5 was the Belhar leader of the TJs comes from [CF] himself.  

[439]           As to the murder itself, it is theoretically possible that Joey might coincidently have been shot dead by someone else in the couple of hours that intervened between the engagement and the shooting. However, if [CF]’s evidence were accepted and No 5’s denials rejected, it is a fair inference, in the absence of other evidence, that Piggels actually did what he had been incited to do. Clearly No 5 and [CF] believed this to be so, since they did not demand the return of the firearm and drugs. Alternatively, and if an acceptance of [CF]’s evidence does not exclude the reasonable possibility that the murder was coincidentally perpetrated by someone else, the charge of incitement under the RAA would be unaffected.

[440]           As to the possibility that [CF] was deliberately but falsely implicating No 5, there is the argument – common to all the accused – that because [CF] feared for his life in Goodwood prison in the latter part of 2015, he wanted the authorities’ protection. To achieve this (first within the prison itself and later in the witness protection programme), he had to convince the authorities that he had important inside information. This he might have achieved by falsely implicating people in crimes of which he had some knowledge, either from personal involvement, street talk or the newspaper.

[441]           More specifically in relation to No 5, the relationship between [CF] and No 5 had in all likelihood been far closer than No 5 cared to concede in the witness box. However, there is evidence – from [CF], No 5 and No 6 – that by the time [CF] began cooperating with the police, the relationship had soured. It is common cause that on 28 August 2012 the police raided No 5’s apartment at [WG] Park. Drugs and unlicensed firearms were found. No 5, [CF], Tyrone and Warra were arrested at the scene. No 5 testified that he had not known of the drugs and firearms. He was angry with [CF], whom he blamed for the trouble, and refused to allow him to return to [WG] Park after he was released on bail. This effectively terminated their friendship.

[442]           Although [CF] denied No 5’s version and claimed to have continued living at [WG] Park for several more years, by July 2014 [CF] had begun to suspect that No 5 wanted him dead. [CF] also blamed No 5 for Tyrone’s murder. The only time [CF] displayed any emotion in the witness box was in connection with Tyrone’s death.

Counts 5-8 (attempted murder at 11 Anreith Ave)

[443]           These counts comprise a charge against No 5 of incitement to commit murder (count 5); a charge against No 5 and No 6 of attempted murder (count 6); and charges against No 6 of unlawful possession of a firearm and ammunition (counts 7 and 8), all allegedly committed on 12 August 2012.[144]

[CF]’s evidence

[444]           In cross-examination, [CF] was asked about the three-year gap between Joey’s murder and this incident and whether he had been involved with the accused in any crimes during the intervening period. He said that perhaps Denzel’s murder and the attempted murder of Buya took place in that period but he could not be sure. Buya had declined to press charges. In his statement to the police, he implicated No 3, No 5 and Leroy van Wyk @Lollo in Denzel’s murder. (Denzel’s murder is not one of the charges against the accused in the present trial.)

[445]           By the date of the shooting at 11 Anreith Ave, [CF] was residing with No 5 at [WG] Park in Bellville. On the evening of the shooting, the date of which he could not recall, [CF] was at No 5’s family home in [LD] Cres. Also present were No 6, Monray Jack @Warra (a TJ, now deceased) and Keegan Walters (also a TJ, now deceased). They then went to Keegan’s place, also in Belhar. While they were there, No 5 got a call from another TJ, Michael Solomon @China (no relation of Ernest Solomon and No 1). Following this call, No 5 told [CF] and No 6 that they must go and meet Marvin (identified in other evidence as Marvin Pietersen) at a tuckshop in Matroosberg Cres. Marvin, who was also a TJ, was China’s right-hand man. Marvin would point out to them ([CF] and No 6) a house in Anreith Ave where members of the Junior Mafia, including one Leepie, were present. They had to shoot everyone in the house.

[446]           [CF] and No 6 smoked tik while they waited for Warra and Keegan to return to the house (they had gone to buy alcohol), and then left to meet Marvin. [CF] and No 6 were armed with pistols. Marvin accompanied them to a house in Anreith Ave, the arrangement being that he would knock at the door of the house at which they were to shoot.

[447]           Marvin knocked and ran off. [CF] and No 6 opened fire from the street-side of the low vibracrete wall in front of the house. They directed their fire at the windows of the house. When they were out of bullets, they made their way up Anreith Ave and back to Keegan’s place. At first they did not run because they did not want to attract attention. They paused at the Kerrie Flats, from where they could see the police and ambulance at the crime scene. Marvin was not with them.

[448]           The next day they heard that a female, Enna Kleynhans, had been shot in the foot. No other occupants at the address seem to have been injured. No 5 told [CF] and No 6 that they had shot badly (he used a cruder expression).

Other State evidence

[449]           The shooting took place on 13 August 2012. The police were on the scene by not later than 23:53, which is when Const Booysen began his photographic investigation.[145] He collected 10 fired cartridges, one unfired cartridge and two bullets. On ballistics examination, it was found that five of the fired cartridges came from one firearm, four from a second firearm and one from a third firearm.[146]

[450]           Enna Kleynhans is now deceased (unrelated to this shooting). She was shot in the foot during this incident.

[451]           Marvin Pietersen was arrested for the attempted murder on 31 July 2013. Charges were withdrawn on 8 August 2013.[147] At that time, the authorities did not have [CF]’s information. Pietersen’s arrest suggests that there was some evidence of his involvement. Const van Wyk, who succeeded Sgt Bonthuys as the investigating officer in the present case in December 2019 upon the latter’s emigration to New Zealand, testified that they did not reinvestigate Pietersen following the information supplied by [CF], because this was the only incident in which his name had cropped up.

No 5’s evidence

[452]           No 5 confirmed that [CF] was living with him at [WG] Park in August 2012. No 5 also knew No 6, though the latter was not yet living at [WG] Park. He testified that he got to know Warra through Tyrone Constable @Tai (‘Tyrone’). No 5, Tyrone and No 9 were cousins. No 5 was also acquainted with Keegan Walters.

[453]           No 5 denied, however, that he was involved in the shooting in Anreith Ave. He denied knowing people with the names Marvin Pietersen and Michael Solomon @China.

No 6’s evidence

[454]           No 6 said that he had become acquainted with [CF] around 2011/2012 through Uncle Dougie. No 6 often visited Dougie to drink with him. [CF] had a relationship with Dougie’s daughter, Franny. No 6 met No 5 through [CF], and they became friends. [CF] also introduced No 6 to Tyrone and No 9. No 6 got to know Warra through soccer.

[455]           No 6 acknowledged that he and [CF] often drank spirits and used tik together, but he denied having done so on an occasion which led to a shooting in Anreith Ave. He testified that he had never touched a gun in his life. (My contemporaneous note was that the statement was made quite convincingly.) He did not know people called Marvin Pietersen, Dorta or Leepie.

[456]           Since the only evidence of No 5 and No 6’ involvement in this incident was [CF]’s testimony, there was little scope for charge-specific cross-examination.

Discussion

[457]           Mr Weeber put to [CF] the contents of a police statement given by one Leroy Joshua. According to Mr Menigo, Joshua is now deceased. Mr Weeber said that he might bring an application to have Joshua’s statement received as hearsay evidence, but in the event no such application was brought. The content of the statement, to the extent that it was put to [CF], does not constitute evidence. Suffice to say that, in response to what was put to him, [CF] stated that Marvin was not one of the shooters and did not have a firearm with him that night.

[458]           Mr McKernan put to [CF] the content of the statement by a female witness who stated that she had been with Enna Kleynhans in a wendy-house on the property to the left of the main house. Once again, no application was brought to have the statement admitted as hearsay evidence. [CF] stated that neither he nor No 6 directed fire at the wendy-house.

[459]           [CF] was tackled about the fact that when they got back to Keegan’s place after the shooting, they discussed the incident. (In chief [CF] said that the discussion took place on the day following the shooting though in cross-examination he said the discussion took place on the evening of the shooting.) It was put to him that the alleged discussion was inconsistent with his earlier evidence that gangsters do not discuss shootings after the event. He said that although this was the general practice, in this case No 5 had sent them, and No 5 was at Keegan’s place when they got back.

[460]           The main criticism of [CF]’s testimony arises from the ballistics evidence. He testified that he and No 6 ‘emptied’ their magazines. [CF]’s pistol had a double magazine (which can hold 32 rounds) while No 6 had a single magazine (which can hold 16 rounds). It was put to him that this would indicate 48 shots. He agreed.

[461]           Since by this point in his evidence he had already testified that it was not his practice to check how many rounds were in a pistol’s magazine, I asked him how many rounds had been in his magazine on this occasion. He said that he and No 6 had not checked. I asked if he could remember how many shots he had fired. He replied, a lot. I asked if it could have been be more than 10, he said yes. I asked if it could have been more than 20, he said possibly. I asked whether he knew how many shots No 6 had fired. He replied that when one is shooting simultaneously with another person, one cannot hear how many shots the other person has fired. But he knew that they only stopped shooting when their magazines were empty, because of the clicking sound when they tried to carry on shooting.

[462]           It was put to him that he was fabricating his whole account, given that only 11 cartridges were found on the scene. He denied this. Although counsel did not pick up on this, one of the 11 cartridges came from a third firearm. This leads to the inference that there were two principal shooters, who fired five and four shots respectively, unless there were other fired cartridges which the police did not find.

[463]           In regard to the cartridge from a third firearm, there was evidence that this area of Anreith Ave was a known shooting area in the TJ/Junior Mafia war. If [CF]’s evidence is the truth, one possibility is that this cartridge was unconnected with the events of that night. Another possibility is that Marvin Pietersen had a firearm, even though [CF] did not see it, and that Pietersen at some stage took a pot-shot at the house.

[464]           In regard to the number of shots fired, [CF] and No 6 may not have had full magazines. Since the events occurred seven years before his testimony, it may be that in [CF]’s mind the episode had become magnified. He is more likely to have been mistaken about the number of shots fired than about the people involved. As with Joey’s murder, No 5’s involvement would accord with his alleged leadership position in Belhar.

[465]           If [CF] were fabricating this episode, he need not have identified himself as one of the shooters. It would have sufficed to say that he was with the others when the shooting was planned, and that No 6 had gone off with (say) Tyrone or Warra to execute the shooting.

[466]           [CF] was not challenged on his evidence that the TJs and Junior Mafia were hostile to each other and that the Junior Mafia were believed to occupy the house at 11 Anreith Ave.

[467]           Although the objective ballistics evidence shows [CF]’s account of the shooting to be (at the very least) exaggerated, it is consistent with his account of two primary shooters. If in truth there had been only one shooter, and the shooter had been using a revolver, no fired cartridges would have been found (a revolver does not eject cartridges). If there had been two shooters, one using a pistol and the other a revolver, only cartridges from a single pistol would have been found. If there had been three shooters, each of whom had fired a number of shots from pistols, there would have been multiple fired cartridges from three pistols. None of these scenarios could have been excluded by a fabricator who was not himself on the scene.

[468]           Again, however, one must bear in mind the possibility that [CF] had enough knowledge of the incident (from personal involvement, street talk or the newspaper) to give an account broadly consistent with crime-scene evidence. Such consistency does not go to show that No 5 and No 6 played the roles alleged by [CF].

[469]           As to a possible motive for [CF] falsely to implicate No 5, I refer to what I have said in connection with Joey’s murder. [CF] described his relationship with No 6 as good. No 6 testified that he and [CF] had an argument on the occasion of No 6’s birthday. They were at the house of Moeneeb van der Ross. No 6 thought that this was on 18 July 2012, and that at the time [CF] was no longer living at [WG] Park. I raised with No 6 that [CF] and No 5 agreed that as at July 2012 [CF] was definitely still living at [WG] Park. No 6 said that he might then be mistaken either about the year or about where [CF] was living. Either way, the argument broke out because [CF] learnt that No 6, who had previously had a romantic relationship with Franny, was still casually involved with her. No 6 alleged that he also wanted to distance himself from [CF] because Uncle Dougie was critical of [CF] for being ‘slordig’ and not taking responsibility for a child he had fathered with Franny.

[470]           I am inclined to agree with Mr Menigo that No 6’s evidence does not suggest a strong motive for [CF] to falsely implicate his former friend. On the other hand, on No 5’s version he effectively ejected [CF] from [WG] Park in late August/early September 2012, and it seems that No 6 then took [CF]’s place. This might have been a cause of resentment.

Counts 9-13 (murder of Levert Seekoei @Sharkey)

[471]           These counts charge No 1 and No 5 with incitement to commit Sharkey’s murder (count 9); No 1, No 2 and No 5 with Sharkey’s murder (count 10); the same accused with the attempted murder of Nashief Grootboom (count 11 – his name was withheld in the indictment); and the same accused with the possession of an unlicensed firearm and ammunition (counts 12 and 13). All the crimes are alleged to have been committed on 13 September 2012.[148] At the close of the State’s case No 5 was discharged on counts 12 and 13.

[CF]’s evidence

[472]           During the course of the particular day (he could not give the date, wavering as to whether it was in the morning or afternoon, though he was sure it was still daytime), he and No 5 were at the latter’s [WG] Park flat when No 5 received a call from No 1. [CF] knew it was No 1, because No 5 greeted him with, ‘Salute, Vodie’ (No 1’s nickname is Vodie). No 5 stepped out to speak privately with the caller.

[473]           Following this call, No 5 and [CF] drove to No 1’s house in [VL] Cres, Delft. The persons there were No 1, No 2, No 4, Worsie (now deceased), Pang and Iffie. (Worsie’s proper name was Brandon de Vos. [CF] did not know Pang or Iffie’s proper names, but a person with the nickname Iffie, Effraim Presence, features in a later set of counts.) Also at the house were No 1’s mother, Cheryl le Roux, and No 1’s stepfather and sisters.

[474]           Towards the end of his evidence in chief, it was pointed out to [CF] by Mr Menigo that No 4 had been in custody over the period 9 June 2012 to 28 February 2013. Since Sharkey was murdered on 13 September 2012, No 4 could not have been at No 1’s house at that time. [CF] did not seem crestfallen by this information. He replied that No 4’s car had been parked outside, and this had led him to assume that No 4 was one of the persons present. I should also mention that [CF] testified elsewhere that No 4 often stayed at No 1’s place.

[475]           The people were gathered at No 1’s house to plan the funeral of the TJ leader, Ginger (real name Hilton Adriaanse), for whose recent death the Junior Mafia were believed to be responsible. No 1 asked which of them was going to avenge Ginger’s death, using the expression: ‘Wie gaan Ginger se bloed optel?’. No 2 said he would go (in cross-examination, [CF] testified that No 1 nominated No 2), and No 5 said that [CF] should accompany No 2. Worsie collected two firearms, giving [CF] a .357 revolver and No 2 a 9 mm pistol with a double magazine.

[476]           No 1, No 2, No 5 and [CF] left [VL] Cres in No 1’s white Golf, with No 1 driving and No 5 in the front passenger seat. This Golf had a green ‘M’ (Monster) sticker on the back windscreen, a fact relevant to a later set of counts. No 2 and [CF] were dropped off on the Stellenbosch Arterial Rd. They walked towards the bollards (‘palletjies’) in Anreith Ave, No 5 having been told telephonically by China that members of the Junior Mafia were in Anreith Ave. When No 2 and [CF] got there, there was nobody about. They walked back to the Arterial Rd from where [CF] gave No 5 a telephonic report. No 5 told [CF] not to talk nonsense (using cruder language), because he had just spoken to China who said that there were Junior Mafias at the bollards.

[477]           [CF] and No 2 retraced their steps to the Anreith bollards. As they were nearing this place, they saw a man wheeling a shopping trolley, who told them he was going to the bollards to buy drugs. They accompanied him, feigning an intention to do likewise.

[478]           Sharkey was present at the bollards. [CF] knew him to be a Junior Mafia and a member of the 26s, but Sharkey did not know who he was. The trolley man gave Sharkey money from himself and [CF] for drugs. Sharkey went to retrieve the drugs from behind a green electricity box. As Sharkey was kneeling down, No 2 approached him from behind, pressed his firearm into Sharkey’s neck and pulled him up. However, No 2’s pistol jammed at the first attempt, and Sharkey began to struggle for the weapon. His back was to No 2, the struggle taking place over Sharkey’s shoulder.

[479]           While this tussle was going on, [CF] approached and fired a single shot into Sharkey’s chest. Sharkey fell backwards. No 2 picked him up, his left arm around Sharkey’s neck in a chokehold, cocked his pistol to get rid of the jam and fired shots into Sharkey’s neck and shoulders. (In [CF]’s demonstration, No 2 was holding the pistol in his right hand, and fired from close range.)

[480]           In the meanwhile, [CF]’s attention was distracted by Sharkey’s associate, Tomorrow (proper name Nashief Grootboom, like Sharkey a Junior Mafia), who emerged from a nearby yard. [CF] fired three shots at Grootboom, who fell and was lying between the bollards. [CF] approached to fire a headshot but his revolver was empty.

[481]           Although there were inconsistencies in [CF]’s oral testimony, and between such testimony and his written statement, he eventually testified that very shortly before he turned his attention to Grootboom, he saw No 2 firing shots into Sharkey’s neck. When he next gave attention to No 2, Sharkey was lying on the ground, and No 2 was retreating from the scene, still firing shots at Sharkey.

[482]           No 2 and [CF] made their way back to No 1’s house and gave their firearms to Worsie. No 5 and [CF] then returned to [WG] Park. As they drove back, they went past the scene of the shooting. The police were already there.

[483]           Ginger’s funeral took place in Hawston about two days after the shooting. The funeral was on a weekend. (On [CF]’s version, the funeral would thus have been on Saturday 15 or Sunday 16 September 2012.) No 5 told [CF] that Grootboom had survived. [CF] testified that Tyrone and China were arrested for this murder. Although he said that he learnt of this at Ginger’s funeral, it was pointed out to him in cross-examination that China was only arrested on 22 September 2012 and Tyrone on 18 September 2012, which would have been after Ginger’s funeral. [CF] responded that he had heard at the funeral that the police were looking for China and Tyrone; since he knew that neither of them had committed the crime, they would not run away, and he thus expected that they would be arrested.

Other State evidence

[484]           Sharkey was shot dead on 13 September 2012. W/O Snyman received notification of the incident at around 18:00. Sharkey was certified dead at 18:34. He was found in an alley leading off Anreith Avenue. Sgt Abrahams began his photographic investigation at 19:56.[149] The photographs show the victim lying on his back.[150] He seems to have been wearing a loose-fitting black jacket over a white T-shirt. Lying right next to his head is a striped beanie. His body was lying within a metre of an electricity box, behind which (according to [CF]) Sharkey’s drugs were hidden.

[485]           More detail about his clothing is found in the pathologist’s post-mortem report.[151] Reading that report together with the photographs, one can conclude that his upper body clothing was as follows (working from the inside outwards): a light brown vest underneath a white long-sleeved T-shirt, underneath a white zipped tracksuit jacket, underneath a black zipped tracksuit jacket. The police photographs reflect that neither of the jackets was zipped up. The pathologist does not say whether either of the tracksuit jackets had hoods. She does not mention the beanie, so I infer that it did not accompany the body.

[486]           Grootboom was admitted to Tygerberg Hospital that evening and underwent an operation on 16 September 2012. He sustained three gunshot wounds, with the entry wounds in the buttock (one) and upper thigh (two). The one thigh entry wound is described as ‘post(erior)’.[152] Since the related exit wounds were through the groin, it is likely that both thigh entry wounds were on the posterior aspect.

[487]           Snyman visited Grootboom in hospital on the evening of the shooting. According to Snyman’s investigation diary,[153] Grootboom told him that the suspect was an unknown coloured man he had never seen before. Snyman gained the impression that Grootboom did not want to cooperate with the police. On 22 September 2012 Grootboom made a statement to Const Stuurman.

[488]           The post-mortem report in respect of Sharkey[154] recorded seven gunshot wounds, all having entry and exit points:

(a)  There were three chest/lower shoulder wounds through the front of the trunk, exiting in corresponding positions posteriorly. None of these entry wounds showed signs of singeing, soot deposition or powder tattooing (ie the evidence did not suggest close-range shots).

(i)  The lowest of these three shots (A) went through the diaphragm and the fundus of the stomach.

(ii)  The middle shot (B) went through the pericardial sac, left ventricle of the heart and the left lung.

(iii)  The upper shot (C) perforated the left clavicle and the soft tissue structures in the base of the neck.

(b)  There were three head/neck wounds with entry wounds on the left side and exit wounds on the right:

(i)  One of these shots (D), described as ‘distant’, entered just to the front of the lower left ear with a corresponding exit wound on the other side of the head.

(ii)  Another of the shots (E), also described as ‘distant’, entered the upper neck below the left ear with a corresponding exit wound on the other side of the upper neck, partially transecting the spinal-cord.

(iii)  The third shot (F) entered the upper neck just below the front of the jaw, following a slightly upward trajectory and exiting through the edge of the right jaw. (The report does not say whether or not it was ‘distant’.)

(c)  The seventh wound (G) entered the back of the left hand, exiting on the front, described as an ‘intermediary distance’ shot.

[489]           With reference to the deceased’s clothing, the pathologist remarks as follows:

‘The gunshot wound defects in the garments correspond with the gunshot wound defects that are observed in the external aspect of the body. Smudge rings appear to be present surrounding the gunshot wound or circular defects in the left side of the front panel of the white, zipped jacket that the deceased is wearing.’

[490]           Twelve ballistics exhibits (eight cartridges, four bullets) were collected at the scene. The ballistics expert, W/O Truebody, reported thereon as follows:[155]

(a)  She examined seven 9 mm Parabellum fired cartridges. They were all fired from the same firearm.

(b) She examined an eighth 9 mm Parabellum cartridge case which had not been fired (it consisted of primer, case, bullet and propellant).

(c)  She examined three 9 mm fired bullets and one fired bullet core of unknown calibre. It was not possible to say whether the three 9 mm bullets were fired from the same firearm. She does not say whether the core of unknown calibre could have been fired by a different firearm.

[491]           Michael Solomon @China was arrested for this murder on 22 September 2012. On 31 October 2012 Tyrone Constable, who had already been arrested for another matter on 18 September 2012 (the attempted murder of Mablou – see later), was also arrested for Sharkey’s murder. Charges were withdrawn against both of them on 20 January 2014.[156] During the time that China and Tyrone were under suspicion and arrest, the authorities did not have [CF]’s information.

[492]           After becoming the investigating officer in the present matter, Bonthuys interviewed Grootboom in the presence of his mother and took a second statement. Grootboom gave a completely different version to the one he had given to Const Stuurman. In his statement to Bonthuys he did not implicate China or Tyrone. The State tried to secure Grootboom’s presence as a witness in the current trial. The police tried to reach him via his mother and grandmother but could not get an address, and do not know where he currently is.

No 1’s evidence

[493]           No 1 got to know [CF] through No 5. Although [CF] had been to his house at [… VL] Cres on a few occasions, he was not often there and they did not know each other well. No 5 and [CF] had never been at his house together.

[494]           No 1 and No 4 became friends through drag racing and pit-bull breeding. No 1 became acquainted with No 2 through No 4. He and No 2 became good friends. No 2 slept over at his house occasionally. No 2 was a mechanic who did work on No 1’s mother’s taxis.

[495]           No 1 knew Hylton Adriaanse @Ginger well. While No 1 was still a youngster, and at a time when his parents were still living in [VL] Cres, Ginger moved in with them. Ginger became like a brother to him. At a later time Ginger was sentenced to imprisonment. He was released on parole in about 2009, and his parole conditions required him to live at [… VL] Cres. According to No 1, Ginger was a member of the 28s in prison but did not belong to a street gang. Upon his release, Ginger became a taxi owner.

[496]           Ginger was shot dead in [VL] Cres behind the Score supermarket. This was on Friday 7 September 2012. About a week after the shooting, a ‘roudiens’ was held at No 1’s house in [VL] Cres. Those present were mainly close family, friends and fellow taxi owners. No 1 could not recall whether No 5 was there, but he denied that [CF] was present.

[497]           In cross-examination No 1 said that he was heartsore at Ginger’s death but did not harbour anger towards the perpetrators. He had heard from his mother that the shooters were ‘two Xhosa’, ie two dark-skinned men. He denied knowing of Levert Seekoei @Sharkey. He denied any involvement in the latter’s murder or in the shooting of Grootboom. He claimed not to know the meaning of the expression ‘om iemand se bloed op te tel’, inappropriately suggesting that if somebody had said this with reference to Ginger, they may have meant cleaning the blood off the street at the murder scene.

[498]           No 1 denied owning a white Golf. It is not in dispute, however, that Worsie had a white Golf, and according to [CF] this car belonged to No 1 who caused it to be registered in Worsie’s name.

[499]           No 1 denied that he belonged to the Terrible Josters or to any other gang, and testified that there was nothing to indicate to him that any of the other accused who were known to him belonged to the Terrible Josters.

No 2’s evidence

[500]           No 2 confirmed that he knew No 1 well. No 4 is No 2’s cousin. He was often at No 1’s place – three or four times per week. No 2 often saw No 5 at particular pub in Belhar. He did not remember ever seeing No 5 at [… VL] Cres. No 2 knew Worsie and was often in his company.

[501]           Ginger was known to him. He brought vehicles to No 2 for repair but they were not often in each other’s company. Ginger was already dead by the time No 2 became a frequent visitor at [… VL] Cres.

[502]           As to [CF], he knew him ‘by sight’ – he sometimes saw him at the barbershop near [VL] Cres and would greet him as ‘[…]’. They were not friends.

[503]           No 2 denied being a member of any gang. He did not know whether any of his co-accused were gang members but agreed that if No 1 was a gangster he would have known of it. He denied being present at any discussion about avenging Ginger’s murder, and denied any involvement in the Sharkey and Grootboom shootings.

No 5’s evidence

[504]           I have already mentioned the connection between No 1 and No 5. No 5 testified that he saw No 2 a few times at parties. No 2 did work on No 5’s maroon Toyota. As I have said, No 5 denied knowing Michael Solomon @China. He did not know Ginger. He saw a photo of Ginger in Die Son following Ginger’s murder. He was not at a ‘roudiens’ for Ginger.

[505]           No 5 denied having known anyone called Levert Seekoei @Sharkey. He denied being present at any discussion about avenging Ginger’s death, and denied involvement in the Sharkey and Grootboom shootings. He said that he had never been in a vehicle together with No 1, No 2 and [CF].

[506]           According to No 5, [CF] lived with him at [WG] Park from late 2011/early 2012 until late August 2012. Following their arrest in the police raid of 28 August 2012 (they got bail a few days later), he narrated [CF] for bringing contraband to the flat. [CF] allegedly responded, ‘You think you are better than me’. No 5 told him to pack his things and leave, which he did. It thus seems likely, on No 5’s version, that by 13 September 2012 (the date of Sharkey’s murder), [CF] was no longer living at [WG] Park and that at any rate there had been a falling out between the two of them.

Discussion

[507]           Some of the subjects on which [CF] was cross-examined were, in my view, inconsequential. His police statement identified the victim as having the surname Seekoei. [CF] testified that he did not know Sharkey’s proper name and that ‘Seekoei’ must have been added by the investigating officer. Although Joubert and Van Wyk denied that they supplied any of the information contained in [CF]’s statements, I am inclined to believe [CF] when he says that he did not know the proper names of some of the people or the dates and times of events. If he knew that Sharkey’s surname was Seekoei, he had had no reason to conceal it. The police would have had access to the names of deceased victims and the dates on which they were murdered. They may have thought these details to be uncontentious and that it was unproblematic to insert them into statements, though they should not have done so.

[508]           I have mentioned the inconsistency as to whether No 2 volunteered or was nominated by No 1. There was also inconsistency between [CF]’s police statement and oral evidence as to whether No 5 nominated [CF] before No 1 nominated No 2 (he testified that he was nominated after No 2 had been nominated).

[509]           In oral evidence [CF] said that he was about 1 m away from Sharkey when he fired the shot into his chest. It was put to him that in his statement he had said 10 m. He replied that he did not know the difference between 1 m and 10 m; he did not judge distances in metres. He had demonstrated a distance to the investigating officer. My own impression was that [CF] was likely to be more reliable when pointing out distances in court than when expressing them in units of measurement.

[510]           It was put to him that according to his statement, when he gave the firearms back to Worsie, No 5 said, ‘Kwaai ouens, kwaai”, whereas he had not said this during oral evidence. [CF] could not remember whether he previously told the court this (he had not), but confirmed that No 5 had said this.

[511]           [CF] testified that, in making their way back to No 1’s house, he and No 2 jumped over the back wall of a nearby house, rather than walking round on [VL] Cres and into the front entrance of No 1’s house. He said it was quicker than walking on the road. Although there were some inconsistencies in his evidence about this,[157] none of it is of any moment. If [CF] were fabricating his story, he had no reason to claim that he and No 2 jumped over a back wall if it was more plausible to say that they went back along [VL] Cres. It was not a detail which served to strengthen the case against any of the accused.

[512]           Turning to matters of greater significance, there is, first, the fact that [CF] identified No 4 as having been among those present at No 1’s house whereas this could not have been the case. It was put to him that it if he was mistaken about No 4, he could just as well be mistaken about No 1, No 2 or No 5. As I have said, [CF] acknowledged his error and gave an explanation, ie the presence of No 4’s car. When he gave this particular explanation, he did not identify the car, but in relation to the murder of Leon Davids, which took place on 9 October 2013, he identified No 4’s car as a blue Fiat Uno, and said that he had regularly seen this car parked outside No 1’s place for more than a year. It thus seems likely that [CF] had the blue Uno in mind in explaining his error. As will appear when I deal with Davids’ murder, there is evidence indicating that No 4 only acquired an Uno in October 2013, and that it was silver, not blue.

[513]           Although he was wrong to say that No 4 was present, he did not ascribe any role to No 4. The fact that he was mistaken as to No 4’s presence does not necessarily mean that there is a real risk of his being mistaken about the presence of No 1, No 2 and No 5. The location of the meeting was No 1’s house, and the crucial question about avenging Ginger’s death was (according to [CF]) posed by No 1. This was natural, since No 1 was, on [CF]’s version, the most senior leader of the TJs present, and the Delft leader. [CF] also remembered that the attack party went off in the white Golf and that No 1 was driving.

[514]           In regard to No 5, [CF] had on his version gone to No 1’s house in No 5’s company. It was No 5 that nominated [CF] as Belhar’s contribution to the shooting duo, the other shooter (No 2) being a Delft TJ. Again, since No 5 was (according to [CF]) the leader of the Belhar TJs, this was a natural role for No 5 to assume. [CF] also testified that he returned with No 5 to [WG] Park afterwards.

[515]           In regard to No 2, he was (on [CF]’s version) the man who actually accompanied him and participated in the shooting. An honest mistaken in regard to his identity does not seem likely.

[516]           There was some inconsistency in [CF]’s evidence about the telephonic communications between No 5 and China. In chief he said that No 5 had received telephonic information from China that Junior Mafias were in Anreith Ave. In cross-examination he said that this telephonic communication took place while they were still at [VL] Cres. It was put to him that his police statement made no mention of that telephone call, and instead recorded that [CF] had phoned China to ask if there were any Junior Mafias at the bollards, and that this was after they had been dropped off at the Arterial Rd.

[517]           [CF] replied that he had indeed phoned China after they had been dropped off, because as they neared the bollards on the first occasion they could not see whether Junior Mafias were present – their view was blocked by the houses. But before that, while they were all still at [VL] Cres, there had been a telephonic discussion between No 5 and China. It was put to him that China was unlikely to have phoned No 5 with this information. [CF] replied that it was No 5 who phoned China to get the information; China lived very near the Anreith bollards. And as they were driving towards the Arterial Rd, No 5 had said that according to China they were Junior Mafias at the bollards.

[518]           By far the most serious criticism of [CF]’s evidence on these counts arises from inconsistencies in his description of the shooting and from a comparison of the post-mortem report with that description. His initial evidence was that No 2 emptied his firearm into Sharkey’s neck. By the end of his evidence, he was saying that No 2 fired several parting shots at Sharkey as the latter was lying on the ground.

[519]           On the assumption that his initial description (that No 2 had ‘emptied’ his firearm) was exaggerated dramatism, No 2 on his version fired some shots from close range into Sharkey’s right neck and shoulders, and several further shots while Sharkey was lying on the ground.

[520]           On [CF]’s version, the first hit which Sharkey took was [CF]’s shot to his chest. This could have been shot A or shot B. If, as [CF] described, Sharkey was standing in front of, and with his back towards, No 2, a shot fired into Sharkey’s chest would have been at risk of passing through Sharkey’s body and hitting No 2. Since it was a mobile scene, and there was a vigorous tussle between Sharkey and No 2, it is possible that at some stage there was a moment where [CF] could have inflicted shot A or B without danger to No 2.

[521]           On [CF]’s final version, one would have to conclude that the other two frontal shots – shot C and shot A or B – were inflicted as No 2 was retreating and firing at Sharkey while the latter lay on the ground on his back. The police photographs do indeed show that Sharkey was lying on his back. However, retreating shots of the kind described by [CF] would, I think, have entered Sharkey’s body at an acute angle, whereas the actual exit wounds suggest shots fired at roughly 90° to the body, ie parallel to the ground if the victim was standing or from directly above if he was lying on the ground.

[522]           The hand wound (shot G) could have been inflicted while No 2 was lying on the ground.

[523]           The head/neck wounds (D, E and F) were on the left side, not the right, as [CF] demonstrated in court. [CF] himself is right-handed, and Mr Menigo submitted that [CF] had perhaps been guilty of right-handed bias in his court demonstration. That is possible, although [CF] was very emphatic when taxed about whether the shots had been to the right or the left of the victim’s neck. Mr Menigo also made the point that Ms Webb did not place on record whether No 2 was right-handed or left-handed, although if he were right-handed she had no reason to challenge [CF]’s demonstration on this ground. Importantly, No 2 testified that he was right-handed, and there was no cross-examination on that answer.

[524]           Also troubling is the pathologist’s statement that shots D and E were ‘distant’ shots. The pathologist did not specify the distance, but on [CF]’s account No 2 fired the shots from a closer range than the shortest plausible ‘distant’ range. It is not possible, from the post-mortem report, to know from what distance shot F was fired, since the pathologist has not mentioned a range; she simply describes the entrance wound as having ‘an irregular appearance’ with a ‘large irregular area of abrasion’ surrounding the wound.

[525]           What complicates an adverse finding against [CF] on range is that one does not know whether the bullets passed through clothing before entering the victim’s head/neck. If Sharkey was wearing the beanie when the shooting began, the beanie might have covered the part of his head at which shot D entered. The beanie is unlikely to have been as low over his head as shot E, but a hood or raised jacket collar might have covered the part of his neck where shots E and F entered. Unfortunately the beanie and jacket were not preserved as exhibits, and the pathologist’s remark that defects in the garments corresponded with wounds on the external aspect of the body is non-specific; her remark may have been confined to the front of the white jacket, and that seems the more natural reading of her report. The State could have called the pathologist to clarify these matters.

[526]           If one accepts No 5’s evidence about his fallout with [CF] following the arrest of 28 September 2012, this would raise a further difficulty for [CF]’s account, at least insofar as it implicates No 5. [CF]’s evidence about the duration of his stay at [WG] Park is not entirely satisfactory, as will emerge when I discuss the murders of Neano Kleynhans and Aubrey Johannes, which took place in the latter part of July 2014.

[527]           These are the main points against [CF]’s account. The following factors may be mentioned in his favour. As with Joey’s murder and the Anreith attempted murder, he gave himself an active role in the shooting, when he could have relegated himself to a hearer and observer. This case must have been cold by the time he supplied the police with information. They had no evidence against him or the other accused.

[528]           [CF] provided a cogent motive for the hit, viz Ginger’s recent death. If Ginger was to be avenged, and if No 1 and No 5 held the leadership positions [CF] ascribed to them, they were likely to be involved in mandating a revenge killing. The involvement of No 1 and No 5 matches the arming of a Delft man (No 2) and a Belhar man ([CF]) to do the shooting.

[529]           The ballistics evidence is consistent with his version that No 2 was armed with a pistol and that he had a revolver. Since a revolver does not eject cartridges, one would, on his version, expect the police to have found fired cartridges from a single pistol, and that is indeed the case. If he were fabricating, he could not have known that there were not two shooters, both using pistols. If cartridges from two different pistols had been recovered, his version would have been called into question.

[530]           Another point in his favour is that an unfired 9 mm cartridge was found at the scene. This would be consistent with No 2 having cleared the initial jam, leading to ejectment of the unfired round. Unless [CF] himself was present, he could not have known that the shooter experienced a jam.

[531]           It was put to [CF] in cross-examination that a pistol could not jam on the first shot, because pulling back and releasing the slide draws the first bullet from the magazine into the chamber. [CF] said that he did not know the technicalities, but what he described did in fact happen. The State called W/O Truebody as a ballistics expert, and my understanding of her testimony is that a pistol can jam on the first round if, after the cocking of the weapon, the slide does not spring back into a fully closed position.

[532]           The pistol used in Sharkey’s murder is linked, by ballistics evidence, to two other shootings allegedly involving the TJs, as appears from my earlier discussion of one of those other shootings, the attempted murder by No 9 of Mablou. There is strong corroboration for [CF]’s evidence about Mablou’s attempted murder. Although this does not serve to identify No 2 specifically as one of the shooters in Sharkey’s murder, it does at least tend to confirm that Sharkey’s murder was a TJ hit.

[533]            The wounds which Grootboom suffered were consistent with [CF]’s description of firing three shots at a retreating victim and with the report he claims to have received from No 5 at Ginger’s funeral that Grootboom had only been shot in the thigh (‘bout’).

[534]           Sharkey’s body was found at the location [CF] described. Sharkey was lying on his back, very close to an electricity box Although [CF] described the neck wounds as having been on the victim’s right side, the fact is that the victim did have three gunshot wounds in his neck, which were in close proximity to each other.

[535]           To the extent that [CF]’s version is consistent with objective evidence, one must bear in mind that he could have had sufficient knowledge of the incident to provide such an account. Such consistency is not in itself confirmation of the identity of the other persons he implicated in the crimes.

[536]            An acceptance of the essential details of [CF]’s version would make out the charges against the various accused under counts 9, 10 and 11 (incitement, murder and attempted murder), and against No 2 under counts 12 and 13 (possession of a firearm and ammunition). As against No 1, a finding might be well justified that he had possession of the firearms and ammunition through Worsie, who on this and other occasions acted (according to [CF]) as the guardian of the gang’s weapons, seemingly under No 1’s control as the Delft leader.

Counts 18-21 (murder of Brandon Dickson @Mablou)

[537]           I have already dealt with counts 14-17, where [CF] has strong corroboration from [MT]. It will be recalled that counts 14-17 charged No 9 with the attempted murder of Brandon Dickson @Mablou on 18 September 2012. [CF] implicated No 9 and Tyrone Constable in the attempted murder. [CF] testified that No 9 was mandated to do the shooting because he had not yet proved himself (he had ‘nog nie sy nommer vasgeslaan nie’). For reasons I have explained, No 9’s guilt on those charges has been proved beyond reasonable doubt, and his denial of involvement was false.

[538]           A ballistics report[158] concluded that the fired cartridges found on the scene of Mablou’s attempted murder matched fired cartridges found on the scene of Sharkey’s murder and on the scene of the attempted murder of one Toppie Salie, which took place on 19 September 2012 (the day after Mablou’s attempted murder), where [CF] himself was the shooter. In other words, the same 9 mm pistol was used in all three incidents.

[539]           Counts 18-21 comprise charges against No 1, No 2 and No 9 of conspiracy to commit murder (count 18), against the same accused and No 6 of murder (count 19), and charges against No 2, No 6 and No 9 of unlawful possession of a firearm and ammunition (counts 20 and 21). The crimes are alleged to have been committed on 21 January 2013.[159] At the end of the State’s case No 2 was discharged on count 18 (conspiracy to commit murder) and count 19 (murder), while  No 6 was discharged on count 19 (murder).

[CF]’s evidence

[540]           By way of further background to [CF]’s evidence on this set of charges, on 19 September 2012 Tyrone and No 9 were arrested for Mablou’s attempted murder, which had taken place the previous day. Also on 19 September, [CF], in the company of another TJ member, one Morné, shot at Toppie Salie in Navarra Cres, Belhar. Salie used to be at TJ but by this time had joined the Junior Mafia. [CF] was arrested later in the day for Toppie’s attempted murder. I have mentioned that one of the firearms used in the Toppie incident was also used in the murder of Sharkey and the attempted murder of Mablou.  

[541]           On 31 October 2012 Tyrone, who was already in custody for Mablou’s attempted murder, was arrested in connection with Sharkey’s murder as well. On 9 November 2012 he and No 9 appeared in court for Mablou’s attempted murder. No 9 was granted bail and released. Tyrone was not granted bail, and remained in custody for some months. The date of his release has not been proved, but he was still in custody on 4 March 2013.

[542]           [CF] also appeared in court on 9 November 2012, in connection with the attempted murder of Toppie. On 14 November 2012 the charge against him was withdrawn and he was released. He was arrested again on 8 January 2013 for allegedly pointing a firearm at one Roger Grove. His first appearance in that case was on 10 January 2013 and he was released from custody. The charge was withdrawn on 26 February 2013.

[543]           Turning to [CF]’s evidence about Mablou’s murder, he could not remember the date. He said he was still living at [WG] Park. He left in the white Tazz to deliver drugs to one Dorta in [ZB] Ave, Belhar, and then went to visit Tyrone and No 9 in [CT] Ave. They said they were bored and wanted to come back with him to [WG] Park, and so they set off.

[544]           Their route to [WG] Park took them past the traffic lights at the intersection of the Arterial Rd and Belhar Dr/Delft Main Rd. There is a KFC outlet on the corner of this intersection (on their left as they were driving). No 9 saw Mablou sitting on the back of a blue fruit and veg bakkie parked near KFC. By this time they were already over the intersection. Tyrone told [CF] to make a U-turn. [CF] did so, and they drove to No 1’s house in [VL] Cres.

[545]           On arrival there, Tyrone told No 1 where Mablou was and that No 9 wanted to shoot him. [CF] and No 9 were present when this was said. No 1 told No 2 (who was also there) to go and fetch a firearm. No 2 fetched a 9 mm pistol from a house diagonally opposite No 1’s place and handed it to No 9. (In cross-examination [CF] said that he thought it was Worsie who fetched the firearm and gave it to No 9.)

[546]           No 9 walked off with the firearm. It was in the afternoon. [CF] and others stood at the front gate, and saw No 9 walking across the open veld in the direction of the intersection. After a while, Tyrone told [CF] that they should get going. They drove to the nearby Caltex garage on Delft Main Rd, parked, and got out of the car.

[547]           After hearing a gunshot, Tyrone said that they should leave and collect No 9. At the Arterial Rd intersection they turned right. [CF] noticed that there were people running towards the Mall, and that Mablou was lying near the bakkie. They picked up No 9, who was walking along the Arterial Rd, and drove back to [WG] Park. No 9 gave the pistol to No 6, and Tyrone instructed No 6 to take the pistol back to No 1’s place. [CF] testified that they did not discuss the shooting.

Other State evidence

[548]           [MT] was not able to contribute much on these charges. By the time she arrived on the scene Mablou was already dead.

[549]           It is common cause that the murder took place on Monday 21 January 2013. Const Visagie began his photographic investigation at 19:23.[160] Mablou was certified dead at 19:41. His body was on the ground at the back of the bakkie. He was still wearing a black beanie which was pulled down about halfway over his ears. He was lying on his stomach.

[550]           The post-mortem report[161] revealed a single entry wound on Mablou’s right temple above the left eye towards the centre of the forehead. A deformed bullet and casing were retrieved inside the skull.

[551]           The ballistics report[162] described the ballistics exhibits as a single .38/357 fired bullet jacket and core. These were unsuitable for microscopic individualisation.

No 1’s evidence

[552]           No 1 testified that before his arrest in the present case he did not know either Tyrone or No 9. In cross-examination it was suggested to him that he had visited Tyrone when the latter was in custody. No 1 then volunteered that he might have given Tyrone’s name when visiting the prison, but that he was actually visiting No 5. Because a prisoner is only allowed to receive two visitors, visitors sometimes give the name of another prisoner in order to get them into the visiting area. He would have got Tyrone’s name from No 5.

[553]           No 1 testified that he knew No 6 through No 5.

[554]           He denied knowing of Brandon Dickson @Mablou. He had not heard of Mablou’s attempted murder for which Tyrone and No 9 were arrested. He denied any involvement in Mablou’s murder.

No 2’s evidence

[555]           No 2 denied knowing No 9 before their arrest in the present case. He was not asked whether he knew Tyrone. He denied handing a firearm to No 9. He did not know of Brandon Dickson @Mablou.

No 6’s evidence

[556]           No 6 testified that he got to know No 1 in about 2013. He met No 1 through No 5. He got to know No 2 at around the same time. He met No 9 and Tyrone Constable through [CF].

[557]           He denied that firearms had been handed to him by either Tyrone or No 9 on this or any other occasion. He had never received firearms from anyone. He was not involved in Mablou’s murder.

No 9’s evidence

[558]           No 9 testified that following his arrest for the attempted murder of Mablou, he became a member of the 28s.

[559]           No 9 testified that prior to his arrest in the present case he did not know No 1 or No 2. He knew No 6, because he was sometimes with [CF] when the latter visited Tyrone. No 9 said that Tyrone was in and out of prison. Tyrone was a member of the 28s, but No 9 could not say whether he belonged to a street gang.

[560]           In relation to this set of counts and the earlier set relating to Mablou’s attempted murder, No 9 testified that he knew Brandon as Blou not Mablou. Dixon lived in [LD] Cres, and No 9 saw him from time to time. He could not say whether Mablou belonged to the Junior Mafia.

[561]           He denied any involvement in Mablou’s murder. He testified that he had never driven in a car with [CF]. He said that after his release on bail for Mablou’s attempted murder (this was on 9 November 2012), he had gone to live with his father in Epping Forest. He continued living there until the attempted murder charge was withdrawn in March 2013. He was thus not living in [CT] Ave in January 2013, and Tyrone was still in prison (the implication being that there would have been no reason for him to have been in [CT] Ave, as claimed by [CF]).

Discussion

[562]           The most serious objection to [CF]’s version is the role he ascribes to Tyrone, who was in truth in custody. Before dealing with this aspect, I touch on other aspects of the cross-examination.

[563]           Mr Liddell tackled [CF] with reference to his police statement, in which he stated that No 4 was also among those present at No 1’s house on the day of Mablou’s killing. Mr Liddell put to him that if it were not now common cause that No 4 had been in custody, [CF] would still be maintaining that No 4 was present. [CF] acknowledged this. On the basis of his testimony that he regarded the other accused as his friends, it was put to him that they must have surely discussed No 4’s absence in prison. [CF] replied that No 4 was from Delft whereas he was from Belhar, and that there was some jealousy between No 5 and No 1.

[564]           As with Sharkey’s murder, [CF] did not ascribe any role to No 4 in Mablou’s murder. Since [CF] was not incriminating No 4 in the crime, he had no reason, when giving his police statement, to make a false claim about No 4’s presence. In itself, his error may bear on his reliability but does not necessarily point to dishonesty.

[565]           In chief, [CF] said that it was No 2 who fetched the firearm for No 9. In cross-examination he was asked who fetched the firearm, and he replied that he thought it was Worsie, though he seemed unsure. While this might be an unimportant detail in the case against No 1 and No 9, it is obviously critical in the case against No 2.

[566]           There were minor inconsistencies between [CF]’s police statement and oral evidence as to whether they were standing at No 1’s front gate or near the Caltex garage when they watched No 9 walking towards the intersection; and as to whether it was Tyrone or No 9 who handed the firearm to No 6 when they got back to [WG] Park. I do not regard these inconsistencies as substantial.

[567]           Mr Liddell asked him whether he was sure that the firearm No 2 gave to No 9 was a 9 mm pistol. He said yes. It was put to him that a 9 mm pistol could not shoot a .38/357 round. Again he agreed. It was during my questions in this part of the cross-examination that it became clear that [CF] regarded all semi-automatic pistols as ‘9 mm’ pistols, so I do not think much turns on this.

[568]           [CF]’s attention was directed to the fact that no fired cartridges were found at the crime scene. It was put to him that this indicated the use of a revolver rather than a pistol. He agreed. In my view, the fact that no fired cartridges were found does not mean that a pistol was not used. Mablou suffered a single fatal gunshot to the head, and it is possible that only one shot was fired. It is possible, too, that the cartridge was not found by the police. If the shot was fired from a distance, the police may not have known where to look. If the shot was fired from close range, it may have been picked up by one of the many bystanders who crowded round the body or been trampled into the sand. ([MT] testified that the KFC security guards had to clear a path for her to identify the body.) Another possibility is that the shooter himself picked up the cartridge to remove ballistics evidence.

[569]           It was put to [CF] that, according to the post-mortem report, there was an absence of soot deposition and tattooing around the entry wound, that this indicated that the shot was not from close range, and that such a shot must have been fired by a skilled hitman. This was not a matter on which [CF] could comment. Mr Menigo recorded that the absence of such marks might be explained by intervening clothing. My own study of the admitted exhibits had already raised this possibility in my mind, and I pointed this out to counsel. One of the photos[163] shows a small hole in the lower part of Mablou’s beanie, exactly adjacent to the entry wound depicted in the post-mortem report. (In this photograph, the hole is immediately to the left of the fold of Mablou’s black rucksack.) Unfortunately the beanie did not accompany the body to the mortuary and was not booked in as an exhibit.

[570]           It was put to [CF] that he would not have been able to identify Mablou as they drove into the intersection after the shooting, and that he could not have identified him if Mablou was lying face down (as shown in the police photographs) rather than face up (as [CF] testified). My own assessment, based on the photographic exhibits[164] as explicated in [CF]’s testimony, is that it would have been possible for a driver in the intersection to have seen the body lying on the ground but that identification would have been well-nigh impossible. Whether the body itself could be seen would depend on whether it was by then already surrounded by bystanders. If the body was visible, one can understand why [CF] on his version would unhesitatingly have assumed that the body was Mablou’s. As to whether, when he saw the body, it was face down or face up, one does not know whether the body was in the same position by the time the police took their photographs.

[571]           Turning to the Tyrone issue, [CF] was adamant that Tyrone had been present. When Mr Menigo led [CF]’s evidence, he (the prosecutor) was not aware that Tyrone had been in custody. He investigated the matter, and obtained documents which satisfied him that Tyrone had indeed been in custody. He placed this on record in [CF]’s presence. Under further cross-examination, [CF] remained unwilling to concede that his recollection was faulty. This is in contrast to his reaction to the information that No 4 had been in custody, where he was willing to concede his error. When Mr Weeber (the third of the defence lawyers to cross-examine [CF] on this aspect) asked whether he would not now concede that Tyrone had not been present, [CF] said that he had to accept that this was so but it remained his recollection that Tyrone was there.

[572]           I did not get the impression that [CF] was telling a deliberate untruth about Tyrone’s presence. Tyrone had been a close friend. By the time [CF] began cooperating with the authorities, Tyrone was dead, and it was neither here nor there (from the point of view of criminal implication) whether the role he attributed to Tyrone was played by Tyrone or someone else. If [CF] had wished falsely to implicate persons who were still capable of being charged, he could have given Tyrone’s part to one of the other accused or to another member of the TJs.

[573]           [CF] seemed so genuine in his recollection of Tyrone’s involvement that the thought even occurred to me that perhaps corruption on the part of one or more correctional services officers had enabled Tyrone to spend some time out of prison. I asked several subsequent police witnesses whether they were aware of irregularities of this kind but they were not.

[574]           The limited medical and ballistics evidence supports his account of a single shooter. In regard to motive, what I have said in relation to Mablou’s attempted murder applies to his actual murder as well. No 9’s guilt in Mablou’s attempted murder would lend credence to No 9’s involvement in the actual murder, since the hit on Mablou was intended to establish No 9’s gang credentials. I have already mentioned the relevance of No 1’s position as the Delft leader.

Counts 22-25 (murder of Jermaine McKenzie @Piggels)

[575]           These counts charge No 5 with incitement to commit murder (count 22), No 5 and No 11 with murder (count 23), and No 11 with possession of a firearm and ammunition (counts 24 and 25). The crimes are alleged to have been committed on 3 March 2013.[165] The victim in these counts is the person who, on the State’s case, perpetrated the murder of Joey Louw.

[CF]’s evidence

[576]           According to [CF], he was still living at [WG] Park at the time of Piggels’ murder. By the time of these events (March 2013) hostilities between the TJs and Junior Mafia (Piggels belonged to the latter) had resumed, and the TJs wanted Piggels dead.

[577]           On the morning of the day in question, [CF] was outside his family home on the corner of [LD] Cres/[ZB] Ave. He was waiting for Dorta to bring him money for drugs delivered. Piggels walked by, showing him the finger. Shortly afterwards [CF] heard from ‘Uncle Charles’ that Piggels had sent someone to get a firearm so that he could shoot [CF].

[578]           [CF] phoned No 5 to tell him what had happened. No 5 told him to come back to [WG] Park, which he did. From [WG] Park, No 5 phoned Warra, and told him that [CF] would come and pick him up. This was because Warra said he knew someone who would do the hit on Piggels.

[579]           [CF] left [WG] Park in the white Tazz, and drove to Old Belhar where he collected Warra. The two of them drove to Elsies River to fetch the man of whom Warra spoke. This person turned out to be No 11, who was collected from his grandmother’s house. The three of them drove back to Belhar. En route, No 5 phoned Warra and said that they must collect a youngster rejoicing in the name of Dagga Baas. ([CF] did not know the latter’s proper name but other evidence identifies him as Marshall van der Merwe. Like so many others, Dagga Baas was reportedly deceased by the time of the trial.) No 11 and Dagga Baas were to be the shooters, and were selected because Piggels did not know either of them and because Dagga Baas could recognise Piggels.

[580]           The party of four drove to [WG] Park. Warra alighted and disappeared behind a substation where he was handed two firearms. He returned to the car with a pistol and revolver. Warra stayed behind at [WG] Park while [CF] drove No 11 and Dagga Baas to Belhar. He dropped them off and handed them the firearms (Dagga Baas the revolver, No 11 the pistol), instructing them on the route they should take to [LD] Cres.

[581]           [CF] whiled away some time before driving to [LD] Cres, where he stood on the corner of [LD]/[ZB] (diagonally opposite the corner where he had stood earlier in the day). From his advantage point, [CF] could see Piggels in his front yard. At around the same time, No 11 and Dagga Baas came sauntering around the corner from the far side of [LD] Cres. They were kicking a stray foot ball. Piggels came out of the yard. They kicked the ball towards him and he kicked it back. [CF] did not believe that Piggels sensed danger; No 11 and Dagga Baas were young and unknown to him. It was still daylight.

[582]           From fairly close range (a couple of metres), Dagga Baas fired the first shot, and No 11 then started shooting. [CF] gave inconsistent evidence as to what precisely he saw. At first he said that No 11 emptied his gun on Piggels. In cross-examination he said that after hearing Dagga Baas’ shot, he got into the car and left, and so did not know exactly what No 11 did and did not hear further shots.  

[583]           At this point I urged [CF] to be careful with his answers. I told him that I realised he must be tired, because he was in his third week of testimony, but he had to think carefully about the questions and only say what he could actually remember. I asked him how far he had been from his car when Dagga Baas’ shot went off; he pointed out a distance of 15-20 meters. I said that it would have taken him a few seconds at least to get from the corner to his car; he said he did not know how long it had taken. Urging him to think carefully, I asked whether – during the time he was moving from the corner to the car – he had or had not heard further shots or whether he could not remember. After a long pause, he replied that other shots did go off. I reminded him that he was to think carefully, that he should not say something he could not remember, that I wanted to write down what he actually remembered. He repeated that other shots had indeed gone off.

[584]           The cross-examination continued, and he was asked why, just a few moments earlier, he had said he heard no further shots. No reason, he replied. I was left unsatisfied as to precisely how much of this [CF] actually remembered.

[585]           After leaving the scene, [CF] collected No 11 and Dagga Baas from the same place he had dropped them off. When No 11 handed back his firearm, there were no bullets left. [CF] drove him back to Elsies River and Dagga Baas to Old Belhar. [CF] returned to [WG] Park. No 5 was there.

[586]           On the day after the shooting, [CF] heard in Belhar that Piggels was alive, and was in Tygerberg Hospital. When, after a few days, there was no word as to whether Piggels had died, No 5 sent him to the hospital (this was in the evening) with instructions to pull out the tubes if Piggels was still alive. [CF] testified that when he got there, Piggels’ family were standing around the bed, and Piggels’ mother was crying. He could not see if Piggels was dead or alive, but because the mother was crying he inferred that Piggels was dead. He phoned No 5 and told him so. [CF] testified that he and No 5 were both very afraid of Piggels; if he was not dead, [CF] believed that the hit would be traced back to the them.

[587]           It was put to him in cross-examination that he had claimed in his police statement that he saw the family switching off the machines and that Piggels was dead. I asked him to tell me in his own words what he actually saw, not what he assumed. He replied that the family were standing around the bed, the mother was crying, and he thought that maybe they had turned off the machines. He had no comment when Mr Liddell asked why he told Bonthuys that he had seen that Piggels was dead. It was put to him that he could not have seen that Piggels was dead, because Piggels had only died three months after the shooting. He acknowledged this. It was put to him that his version to Bonthuys was a fabrication. He denied this, claiming that his version to Bonthuys was based on his assumption from what he had seen at the hospital.

Other State evidence

[588]           Piggels was murdered in [LD] Cres on Sunday 3 March 2013. Const Booysen began his photographic investigation at 18:20.[166] Piggels was admitted to Tygerberg Hospital with multiple gunshot injuries, still alive and fully conscious.[167] He died on 12 June 2013 from gunshot injuries and recurrent chest infections contracted during his prolonged hospital stay.[168]

[589]           The post-mortem report[169] does not catalogue the gunshot injuries. The report from Tygerberg Hospital states that Piggels suffered eight bullet injuries: one on the lateral aspect of the right shoulder (A), two on the right shoulder blade (B and C), two on the right buttock (D and E), two on the right thigh (F and G) and one at the base of the scrotum (H). Only A is expressly stated to be an entry wound, but they were probably all entry wounds, since none of them could plausibly be an exit wound from any of the other wounds.

[590]           The sparseness of the report, and the absence of an anatomical diagram, makes it impossible to draw reliable conclusions as to the victim’s body position when the various wounds were sustained. The report does not state what aspect of the right thigh was involved in wounds F and G, so one cannot say whether Piggels had his chest, back or side to the shooter when they were inflicted. Wound H was more probably sustained while he was facing the shooter. Wound A was sustained while his right side was facing the shooter. Wounds B, C, D and E would have been sustained with his back to the shooter.

[591]           Ten fired cartridges were collected at the crime scene.[170] They were all 9 mm Parabellum calibre cartridges, and were all fired from the same pistol.[171]

[592]           Marshall van der Merwe (Dagga Baas) was arrested for this crime on 6 March 2013.[172] The admissions do not record what became of the arrest, but from Const van Wyk’s evidence we know that at some stage he was released. Efforts to trace him have been unsuccessful. His parents told the police that he went to the Northern Cape, relocated to Gauteng, and is now dead, though the police have not seen a death certificate.

No 5’s evidence

[593]           No 5, as we know, was acquainted with Piggels. He denied knowing anyone with the name Marshall van der Merwe @Dagga Baas. He testified that he did not know No 11 before his arrest in the present case. Although he knew Warra, he was not so friendly with him that he could have asked him to hire a hitman.

[594]           He denied having anything to do with Piggels’ murder. On his version, [CF] was no longer residing at [WG] Park at this time. No 6 had taken his place there. Regarding [CF]’s evidence that Warra collected two firearms at [WG] Park from a gate behind the substation, he testified that to the best of his recollection there was never a gate there during the time that he resided at [WG] Park. He conceded that the [WG] Park’s vibracrete perimeter wall in that vicinity had panels of different types (ie consistent with work or catching having been done).

No 11’s evidence

[595]           No 11 grew up and spent most of his life at 14 Jason Road, Eureka Estate, Elsies River. He had become friends with Monray Jack @Warra because the latter often visited his cousins who lived nearby to No 11 in Elsies River.

[596]           He testified that he did not frequent Belhar or the Roosendal area of Delft. He agreed that this meant that people in Belhar would not recognise him.

[597]           He said that he got the nickname Kapadien in Goodwood prison after he was arrested in November 2013 (on an unrelated charge) together with Warra and two others. He surmised that the nickname was attributable to the fact that he had fought back when some other prisoners tried to steal food and toiletries his mother had brought him.

[598]           He confirmed No 5’s evidence that the two of them did not know each other prior to their arrest in the present case. He testified that he did not know [CF], and saw him for the first time when he testified in court. He did not know anyone with the name Marshall van der Merwe @Dagga Baas or with the name Jermaine McKenzie Piggels@. He denied having anything to do with Piggels’ murder.

Piggels’ police statement

[599]            Sgt Marlo Swart took a statement from Piggels in hospital on 7 March 2013. This was four days after the shooting and about three months before Piggels’ death. Ms Webb brought an application to have Piggels’ statement received as evidence in terms of s 3(1)(c) of the Law of Evidence Amendment Act. Mr Menigo foreshadowed that he would probably not object to the receipt of the statement, provided Swart first testified about the circumstances in which it was taken. Following Swart’s evidence, I ruled (without objection) that the statement could be admitted into evidence.[173]

[600]           From Swart’s evidence I was satisfied that there were no irregularities in the taking of the statement, and that Piggels had made it freely and voluntarily. Swart was accompanied by W/O Lewis, who witnessed the statement. Swart took this precaution because he knew that Piggels was paralysed and would have to ‘sign’ the statement by having his thumbprint placed on the document, which is what happened (Piggels had lost the use of his arms and hands).

[601]           Piggels confirmed that he was shot in [LD] Cres. He stated that a person known to him as Dagga Baas had come into [LD] Cres from the Nederberg St side (this direction is consistent with [CF]’s account). Dagga Baas then ran towards him. Piggels could see that he was holding a pistol, a Z88, the same as the police used. When Dagga Baas was close to him, he fired a shot which hit Piggels on the left cheek. Piggels turned and ran, after which Dagga Baas fired about seven shots at him. Piggels ran into the yard of his house at [… LD] Cres. He could feel that he was being hit in his back as he ran. He fell in the yard, and Dagga Baas fired one or two final shots at him but he could not say if those shots hit him because by then he could no longer feel his body.

[602]           He told Swart that he knew Dagga Baas from sight and would be able to recognise him again. Dagga Baas was, he said, a member of the Mal Boys and lived in the Kerrie Flats in Belhar. Dagga Baas and Fabian Malgas were friends and lived close to each other. Piggels told Swart that he himself was a 28 and a member of the Mafias.

[603]           Under cross-examination, Swart said that by the time he interviewed Piggels he had information that a person by the name of Dagga Baas was alleged to have been responsible for the shooting, and he acknowledged that when interviewing Piggels he was looking for confirmation of this fact. He denied having mentioned the name ‘Dagga Baas’ to Piggels. He had not pressed Piggels for a description of the shooter, because Piggels was able to identify and name him.

[604]           Mr Menigo asked Swart whether he had tested Piggels’ version. Had he not found it strange that according to Piggels he had only turned and fled after the first shot was fired? Swart replied that different people react in different ways. Although the medical report does not mention a gunshot wound on Piggels’ left cheek, Swart said that he would not have written this down without visually checking that there was a wound on the left cheek. Swart did not ask Piggels whether he had actually seen that Dagga Baas was the person who fired the further shots after he turned and fled.

[605]           Mr Menigo said that a reason to have tested Piggels’ identification of Dagga Baas was that victims sometimes identify perpetrators on the strength of what they have been told by others. Since one or more bystanders had apparently named Dagga Baas, persons who visited Piggels in hospital may have told him that Dagga Baas was the shooter. Swart acknowledged this possibility. Mr Menigo asked him why he had not then conducted a photographic ID parade. Swart replied that this could have been done, but then Piggels died. (This is not a satisfactory explanation, since Piggels lingered for three months more.)

Discussion

[606]           There was some inconsistency in [CF]’s evidence as to how the arrangement was made to pick up Dagga Baas. After wavering, [CF] was confident that No 5 phoned Warra with this instruction while they were in the car.

[607]           There was extensive cross-examination about the ‘Kapadien issue’. No 7 and No 11 both have the nickname Kapadien. According to [CF], the nickname conveys that one has blood on one’s hands. At the time of Piggels’ murder, [CF] had, so he claimed, not yet met No 7, Bradley Roberts. He first met No 11 in connection with Piggels’ murder. Later, No 11 was sometimes called ‘Groot Kapadien’ because he joined TJs before No 7. No 7 afterwards became known to [CF] as a hitman for No 1.

[608]           In his police statement about Piggels’ murder, the man [CF] collected in Elsies River was named as ‘Bradley Roberts aka Kapadien’. In chief, [CF] testified that the only name by which he then knew No 11 was Kapadien; he did not know his proper name. His police statement was put to him in cross-examination, and he said that this must have been inserted by Bonthuys. At some stage after making the statement, [CF] asked Bonthuys to show him a photograph of ‘Bradley Roberts’. Bonthuys returned at a later time with two photographs. [CF] identified the person he had in mind, and this person turned out to be No 11, not No 7.

[609]           I consider [CF]’s explanation to be plausible. Bonthuys, who had been investigating the Delft TJs for some time, probably had a criminal profile for No 7 and knew that his nickname was Kapadien. He may well have made the assumption that this was the person [CF] was referring to and have inserted it into the statement, viewing the proper name as uncontentious. The error was corrected in [CF]’s statement of January 2018.[174] It was not put to [CF] that No 7 had ever resided in Elsies River.

[610]           However, there is the following criticism of [CF]’s evidence on this aspect. He testified that he had not known No 7 at the time of Piggels’ murder (March 2013). He also testified, however, that he got to know No 7 after Ginger was released from prison but while Ginger was still alive. Ginger was murdered in September 2012. One of these statements by [CF] is thus incorrect. This does not, in my view, show that [CF] probably had No 7 rather than No 11 in mind as Dagga Baas’ co-shooter, but it does call his reliability into question.

[611]           With reference to photographic exhibits, Mr McKernan cross-examined [CF] about the supposed hand-over of the weapons ‘behind’ the substation. This was clarified by [CF] to my satisfaction. He did not mean that the gate at which the handover took place was behind the substation where it met the fence of the [WG] Park estate. What he meant was that, from where he was parked, Dagga Baas walked past the substation to the gate where the gardener had his office. The substation blocked [CF]’s view of what took place at the gate.

[612]           As I have mentioned, [CF]’s performance was distinctly patchy as to what exactly he saw of the shooting. In chief he said that Piggels spotted him standing on the corner and moved to the next-door house (which [CF] identified as Squirrel’s place). In cross-examination he said he was not sure if Piggels saw him.

[613]           As to the shooting itself, he testified that he knew Dagga Baas’ first shot hit Piggels because the latter’s arm fell from his face at the time of the first shot. He also testified that Piggels was still facing the shooters when No 11 began to fire. In cross-examination it was put to him that, according to his ([CF]’s) police statement, Piggels was lying on the ground by the time No 11 began to shoot. [CF] replied that this was correct, that after Dagga Baas’ shot, McKenzie had fallen to the ground, and No 11 started shooting down on him. He was asked why he was changing his version. He replied that he could not explain it, but his most recent answer is what happened. It was at this point that my questioning took place about what precisely he heard and saw after the first shot was fired. As previously remarked, I was not satisfied that [CF] was reliable as to his varying recollections.

[614]           Regarding what happened after the shooting, it was put to him that his police statement made no mention of the fact that he collected No 11 and Dagga Baas. The statement indicated that after the shooting [CF] got into his car and went on with his normal day. [CF] replied that he had forgotten to tell Bonthuys this detail. He had told Bonthuys later, but by that time the statements were already with the defence. He thought that this was at the last or second last consultation he had with Bonthuys (these were in January and December 2018). He was adamant that he collected No 11 and Dagga Baas after the shooting, because neither of them lived nearby.

[615]           From the medical evidence and ballistics report, we know that there was at least one shooter; that this shooter had a pistol; that he fired at least 10 shots; and that no more than eight shots hit Piggels. On [CF]’s version, No 11 was the shooter with the pistol. Since Dagga Baas fired one shot with a revolver, only seven of No 11’s shots struck Piggels. If Piggels saw the danger at the split-second before the shooting started, Dagga Baas’ shot could have hit him in the lateral aspect of his right shoulder as he raised his arm and began turning away instinctively from the attackers.

[616]           Because [CF]’s recollections about what he observed are unreliable, he may have been wrong to say that Piggels was still facing the shooters when No 11 began to fire. If Piggels was turning away to his left just as Dagga Baas’ shot was fired, it may be that some of No 11’s shots struck him as he was falling while others hit him when he was already on the ground. Because Piggels was presumably rushed to hospital, there are no police photographs showing how he fell and lay.

[617]           [CF]’s version that there were two shooters, that Dagga Baas fired only one shot, and that No 11 fired multiple shots, is consistent with the ballistics evidence. Although the medical and ballistics evidence does not prove that there was a second shooter armed with revolver, it does substantially exclude the possibility that they were two or more shooters armed with pistols.

[618]           [CF] gave a plausible reason as to why No 11 and Dagga Baas were selected for the mission. He testified that he had not known, when Bonthuys took his statements, that Dagga Baas had been arrested in connection with the case. It is common cause that No 11 was living in Elsies River at the time in question and that No 11 and Warra were acquainted. Although No 11 testified that he had never seen [CF] before he testified in court, [CF]’s evidence that they were acquainted was not challenged in the latter’s cross-examination. If No 11 and [CF] were in truth not acquainted, why would [CF] have falsely implicated him? How would [CF] even have known of his existence and his nickname? To this may be added that there is other evidence suggesting that No 11 is associated with the TJs, as I shall summarise later in this judgment.

[619]           As against this, Piggels’ statement strongly indicates that there was only one shooter. Although Piggels probably did not actually see who was shooting him in the back as he fled, on [CF]’s evidence Piggels would have seen that two men were approaching him, not one. One would at least have expected him to say that Dagga Baas was in the company of another person. Piggels’ statement also contradicts [CF]’s version on other aspects. According to [CF], Dagga Baas was armed with a revolver, yet Piggels (who on [CF]’s evidence was a hitman presumably acquainted with firearms) said that Dagga Baas shot at him with a Z88 pistol. If that is so, Dagga Baas must have fired a multitude of shots, given the cartridges found on the scene. Another contradiction is that on Piggels’ version he did not fall in the road but ran into his yard and collapsed.

[620]            [CF]’s evidence about his subsequent mission to Tygerberg Hospital is far from satisfactory. One may ask, however, why he would have fabricated the mission if something along these lines did not happen. If [CF] wished falsely to implicate No 5, it would have sufficed to say – as he did – that No 5 effectively arranged and authorised the hit. Why complicate the story with further falsehoods? It is not unknown for rival gang members to penetrate hospitals.

[621]           Because No 5 was the Belhar leader, it is plausible that he should have played the part [CF] ascribed to him. Mr McKernan put to [CF] that his evidence did not go as far as claiming that No 5 told him to shoot Piggels. [CF] agreed, but said that No 5 told him to collect the people who would shoot Piggels. No 5 himself told [CF] that Warra knew of a person who would shoot Piggels. [CF]’s evidence, if accepted, goes far enough to make out a case against No 5 of incitement to murder and of actually aiding and having a common purpose with [CF], Warra, No 11 and Dagga Baas in the perpetration of the murder.

Counts 26-34 (murder of Leon Davids aka Leontjie)

[622]           These counts falls into two parts: (a) a first conspiracy to murder Davids, which failed to come to fruition, a crime allegedly committed on or about 6 October 2013; (b) a second conspiracy which culminated in David’s murder, crimes allegedly committed on 9 October 2013. In the first part, No 3 and No 5 are charged with conspiracy to commit murder (count 26), and No 3 is charged with unlawful possession of a firearm and ammunition (counts 27 and 28). In the second part, No 1, No 2, No 4 and No 8 are charged with conspiracy to commit murder (count 29), murder (count 30) and two counts of attempted murder (counts 31 and 32 – this relates to unintended victims of the hit). No 2, No 4 and No 8 are charged with unlawfully possessing the two firearms and ammunition used on this occasion (counts 33 and 34).[175]

[623]           At the conclusion of the State’s case, No 3 was discharged on count 26; No 1 and No 4 were discharged on count 31; No 1, No 2, No 4 and No 8 were discharged on count 32; and No 4 was discharged on counts 33 and 34.

[CF]’s evidence on the first conspiracy

[624]           He was living at [WG] Park at the time of these events. He knew Davids as a member of the Belhar Sexy Boys. Davids lived in Kerrie Flats and was a hitman.

[625]           One evening [CF] was at his family home in [LD] Cres when No 5 phoned him and summoned him to Tyrone’s place in [CT] Ave. No 5 and a number of others with there, including Tyrone and No 3. No 5 called [CF] aside and told him that ‘Die Ou’ (Ernest Solomon) had issued an instruction for Davids’ assassination because Davids and one Faizel had shot Cyril Beeka, a well known figure in Cape Town’s criminal underworld.

[626]           No 5 sent two youngsters to see if Davids was at home. They reported back to No 5 that Davids was braaing in his garage. A person identified by [CF] only as Paul went to fetch guns. He gave [CF] a .45 pistol and No 3 a .38 revolver. [CF] and No 3 left on bicycles which belonged to the TJs, and cycled to Kerrie Flats, but when they got to Davids’ place the latter had closed his garage door. They cycled back to Tyrone’s place and gave a report. No 5 swore at [CF], accused him of lying, and said he would send others, that No 1 would now get the job done properly by paying somebody.

The second conspiracy and the murder

[627]           A few evenings later, No 5, No 6 and [CF] were together at [WG] Park. No 5 got a telephone call. Afterwards No 5 said that they must drive to No 1’s place in [VL] Cres. They went in the BMW 130. At No 1’s place were present No 1, No 2, No 4, No 7 and No 8.

[628]           No 1 announced that Davids’ ‘nommer gaan gepull word’ (a gangster expression conveying that Davids was to be killed). No 2, No 4 and No 8 then left in No 4’s blue Fiat Uno Turbo, with No 4 as the driver.

[629]           [CF] testified that this car was always parked in the yard of the house diagonally opposite No 1’s place – this was for more than a year before Davids’ murder. (It will be recalled that it was the car’s presence that, according to [CF], caused him to have mistakenly believed that No 4 was at No 1’s house on earlier occasions.) [CF] knew that the car belonged to No 4, both from discussion and from the fact that he always saw No 4 driving it.

[630]           It was put to him that No 4 had bought a Fiat Uno at around this time but that it was silver, not blue. [CF] replied that maybe it had later been sprayed, but at the time it was blue. It was also put to him that No 4 would testify that he only bought the Fiat on 2 October 2013 (a week before the murder), that on 3 October 2013 he had taken the car back to a mechanic for repairs, and that he only got it back again in December 2013. [CF] denied this.

[631]           About 45 to 60 minutes after they had left, No 2, No 4 and No 8 returned in the same car. No 2 reported to No 1 that they had done the deed. No 1’s response was that ‘our people don’t miss’. No 2 told them that he and No 8 had been dropped off by No 4 behind the Airport Mall and had walked towards the Sexy Boys’ ‘club’ and had shot Davids a couple of houses down from the club.

[632]           Asked as to when during the day this happened, [CF] replied that he did not know the time of the shooting but that it was dark. It was put to him that there were witness statements from people who said that they were sitting outside, and that it was a lovely day; one witness had spoken of 18:10, another 17:30.

[633]           Afterwards, No 5, No 6 and [CF] returned to [WG] Park. No 5 was berating [CF], alleging that he and No 3 had spoken nonsense about not being able to find Davids on the earlier occasion.

Other State evidence

[634]           There was no further evidence about the first conspiracy. Regarding the second conspiracy and the murder, it is common cause that Davids was shot dead on Wednesday 9 October 2013 at […] Bloemendal Ave, Belhar. He was certified dead at 18:43.[176] Sgt Abrahams began his photographic investigation of the crime scene at 19:20.[177]

[635]           The post-mortem report[178] noted various tattoos on Davids’ body. These,  particularly the stars tattooed on his shoulders, are consistent with Davids having been a member of a Numbers gang. There were five entry wounds in Davids’ posterior thigh, buttocks and lower back.

[636]           Also injured on this occasion was one Stacey Afrikaner, who sustained a single gunshot wound to her right foot. She was admitted for orthopaedic surgery.[179]

[637]           Found at the crime scene were 16 fired cartridge cases and one unfired cartridge.[180] Six of the fired cartridges were fired from one pistol and ten from a second pistol.[181]

[638]           The written statements of Aubrey Johannes, Norman Marthinus and Deborah Fortuin[182] were, by agreement, received in lieu of their oral evidence. Immediately after the shots were fired, Johannes saw two men running off down Bloemendal Ave. The one was tallish and wearing a grey top. The other was shortish with a  black top. The taller man turned around to fire at a dog that was chasing them, and Johannes observed that he was light-skinned. Marthinus described the shooters as two unknown coloured men. He also observed that the man who shot at the dog was light-skinned. Neither Johannes nor Marthinus believed that they would be able to identify the perpetrators.

Defence evidence – the first conspiracy

No 5’s evidence

[639]           According to No 5, [CF] had long since ceased to live at [WG] Park by the time of Davids’ murder. (In argument, his counsel drew attention to the fact that on [CF]’s version he was at his family home in [LD] Cres when summoned to [WG] Park by No 5.

[640]           No 5 testified that he did not know any person by the name of Leon Davids. He had heard talk in the community of a person called Leontjie, he was a man who drove nice cars. No 5 could not say whether Davids had been a Sexy Boy; this was not something he had heard. He denied sending [CF] and No 3 to shoot Davids.

Defence evidence – the second conspiracy

No 1’s evidence

[641]           No 1 testified that he did not know a Leon Davids, though he read the name in the newspaper following the murder. He denied involvement in the shooting, and denied uttering the words ‘our people don’t miss’.

No 2’s evidence

[642]           No 2 denied knowing a Leon Davids. He testified that there was never an occasion when he was at No 1’s house with [CF]. He denied any involvement in the murder.

No 4’s evidence

[643]           No 4 was friends with No 1. No 2 was No 4’s cousin. No 4 testified that No 3 was unknown to him; he first met him after his arrest in the present case. No 4 said that he knew No 5 from meeting him at a party, but they were not friends. No 4 denied belonging to a gang, and said that No 1 and No 2 were not gangsters either.

[644]           He testified that [CF] was unknown to him; he saw him for the first time when [CF] testified in court. He denied any involvement in or knowledge of a conspiracy to murder a Leon Davids.

[645]           It will be recalled that [CF] testified that the attack party left and returned in No 4’s blue Fiat Uno Turbo, with No 4 as the driver. No 4 testified that he never owned a blue Fiat Uno Turbo. On 2 October 2013 (ie a week before Davids’ murder) he bought a silver Fiat Uno Turbo from one Andre Kotzé. The sale agreement, together with photographs taken outside the seller’s home, was handed in as an exhibit.[183] The sale agreement listed certain mechanical defect from which the car suffered. Although the vehicle could be driven, it juddered. On the next day No 4 took the car to a mechanic, Henry Benting, and the car was with the mechanic for more than two months.

[646]           Henry Benting, who struck me as a pleasant and honest witness, confirmed No 4’s testimony. He already had a relationship with No 4 and the latter’s father, and had worked on other vehicles of theirs. By 9 October 2013 the Uno’s engine had been disassembled and the car not in a driveable condition. The vehicle was with him for so long because No 4 was supplying the new parts and only had money to do so in dribs and drabs.

[647]           No 4 testified that before the silver Uno he drove a white Nissan 1400 bakkie; before that, an old Datsun bakkie; and before that, a Golf. He has never had a blue Uno, and he never repainted the silver one. Benting confirmed that prior to October 2013 he had worked on bakkies for No 4 and the latter’s father. He could not say whether No 4 had ever had a blue Uno, but one can safely infer from his evidence that he never worked on such a vehicle for No 4.

No 8’s evidence

[648]           No 8 was acquainted with No 1, No 2 and No 4. For a period of time, which may well have included October 2013, No 8 resided in a house owned by No 1 at [… VL] Cres which No 1 was in the process of renovating.

[649]           No 8 denied being a TJ even though he had ‘Terrible’ and ‘TJ’ tattoos.

[650]           He denied knowing [CF] though said that when he saw him in court he looked familiar. He testified that he never saw [CF] at [… VL] Cres. He did not know Leon Davids, and denied any involvement in his murder. He testified that he had never driven in No 4’s Uno, the colour of which he described as ‘vaal’ (grey). He testified that No 4 also had a bakkie.

Discussion – first conspiracy

[651]           No 3 did not testify. At the close of the State’s case he was discharged on the count of conspiracy to murder Davids. This left, as the only charge against him, possession of the unlicensed revolver and ammunition which he allegedly had in his possession when he accompanied his brother [CF] to shoot Davids.

[652]           In closing argument Mr Menigo submitted that No 3 should be acquitted on the unlicensed possession charge since it was not proved that the revolver and ammunition complied with the definitions of ‘firearm’ and ‘ammunition’ in the FCA. (In this regard see S v Filani 2012 (1) SACR 508 (ECG) and S v Jordaan & others [2017] ZAWCHC 132; 2018 (1) SACR 522 (WCC) paras 95-106. As Binns-Ward J pointed out in Jordaan, where a firearm is actually discharged and causes significant injury, one can usually infer, despite the absence of expert ballistics evidence, that the firearm and its ammunition met the statutory definition.)

[653]           I raised with counsel the question whether, if [CF]’s evidence were accepted, No 3 might not be convicted of an attempt to possess an unlicensed firearm and ammunition. This possibility arises because our law generally adopts a subjective approach to the question of an attempt to commit a crime where the crime is, for reasons relating to the subject, object or means, impossible to commit (R v Davies 1956 (3) SA 52 (A); and see, in relation to statutory crimes of possession, S v Ndlovu 1982 (2) SA 202 (T)). Mr Menigo did not embrace this possibility. In principle I think a person can be convicted of an attempt to possess an unlicensed firearm if he genuinely but mistakenly thinks it is a firearm capable of discharging ammunition in accordance with the definition.

[654]           In regard to No 5, there is the question whether [CF] was in truth still living at [WG] Park at the time of Davids’ murder. For the rest, it is essentially a matter of [CF]’s word against No 5’s.

Discussion – the second conspiracy

[655]           The first criticism of [CF]’s evidence on these counts is that he said Davids’ murder occurred when it was dark. Davids was certified dead at 18:43. It was put to [CF] that according to a Google search, sunset in Cape Town on 9 October is at 18:55. (Mr Menigo for the State did not place this in issue.) It was put to [CF] that he had only testified that the shooting occurred when it was dark because he had seen police photographs, taken at a time when it was already dark. He denied this.

[656]           If Davids was certified dead at 18:43, it could not have been dark when the shooting occurred. Johannes was non-specific as to the time. Marthinus said that he was walking home at around 18:40 when he heard the shots, though it seems unlikely that the medical attendant who certified Davids dead would have got to the scene so quickly. There was evidently enough light for Johannes and Marthinus to notice that the taller of the two shooters was light-skinned.

[657]           However, one does not know how much time passed from the shooting until the attack party returned to [VL] Cres. If the sun had set by the time they returned, this may have led [CF] to say what he did about the time of the shooting.

[658]           The second and more telling criticism is [CF]’s evidence about No 4’s blue Uno. Although one cannot altogether exclude the possibility that No 4 may, contrary to his assertions, have driven a blue Uno, I must find, on the strength of the evidence adduced by and on behalf of No 4, that he probably never owned a blue Uno, and that his silver Uno was not in his possession or able to be driven as at 9 October 2013. If [CF]’s recollection was correct that No 2 and No 8 on an occasion left with No 4 in the latter’s Uno (even though he was mistaken as to the car’s colour), it must have been on an occasion having nothing to do with Davids’ murder.

[659]           It follows that in order to link these three accused to the crime, one would need to find that [CF] was right that they departed in a vehicle driven by No 4 but that he was altogether mistaken about the kind and colour of the vehicle. One would also have to find that he made the same mistake when wrongly inferring that No 4 was at No 1’s place on earlier occasions when he allegedly saw No 4’s car parked there.

[660]           According to [CF], No 2, upon their return in No 4’s car, made a ‘confession’ to No 1 in the presence of No 4 and No 8. Since the latter two did not refute it at the time, it could be regarded as a tacit confession by them of the correctness of what No 2 reported. According to that account, No 2 and No 8 were the shooters. The ballistics evidence supports the involvement of two shooters. ([CF] did not claim to have seen firearms at the time the attack party left, so he did not identify any firearms as pistols or revolvers.)

[661]           [CF] gave a plausible motive for the assassination. There was no challenge to his evidence that Davids was a Sexy Boys hitman and that he was believed to have been responsible for Cyril Beeka’s death. It was not put to him that the actual location of the shooting differed from the confession which [CF] attributed to No 2.

[662]           No 2 is tallish and No 8 shortish. Both are relatively light-skinned. (The only one of the accused who could be described as dark-skinned is No 5.) Johannes described a tallish and a shortish shooter. Both he and Marthinus described the taller shooter as light-skinned. They did not say that the other shooter was darker-skinned; they only saw the face of one of the shooters. These descriptions, admittedly general, could apply to No 2 and No 8.

[663]           There is other objective evidence of the association of No 4 and No 8 with the TJs,  as I shall summarise later in this judgment.

[664]           A question not explored in cross-examination is why No 5, No 6 and [CF] were summoned to [VL] Cres on the day of Davids’ murder, since none of them was given a role in the shooting. The answer may (on [CF]’s version) be that the instruction that Davids be shot had come from Ernest Solomon, and originally it was No 5 who was to have organised this. The fact that, on the way back to [WG] Park, No 5 allegedly berated [CF] about the latter’s failed mission may suggest that Solomon and No 1 had a point to prove, and that No 5 and [CF] were being ‘shown up’ for not doing the job.     

[665]           Although [CF]’s testimony as to what happened at [VL] Cres is terse, if it were accepted as true beyond reasonable doubt, it would go far enough, in my view, to make out a case of conspiracy (count 29) and of murder (count 30) against No 1, No 2, No 4 and No 8, though the conspiracy charge would not be of significance if those accused were convicted of murder.

[666]           As to the two counts of attempted murder, the only person apart from Davids who was injured was Stacey Afrikaner. Although the names of the victims in the attempted murder counts were withheld in the indictment, I treat count 31 as relating to the attempted murder of Afrikaner. On the basis of dolus eventualis, No 2 and No 8 would, on [CF]’s version, be guilty of Afrikaner’s attempted murder. There is, however, no evidence on which No 1 and No 4 could be convicted of her attempted murder. She was an unintended victim. The alleged conspiracy related to Davids alone. Only persons on the scene could have known, when they shot at Davids, that there were other persons who might be struck by the bullets. This was why I discharged No 1 and No 4 in respect of 31.

[667]           Since there was no identified victim in relation to count 32, I discharged No 1, No 2, No 4 and No 8 on that count.

[668]           In regard to the possession counts (counts 33 and 34), on [CF]’s version the case would be made out against No 2 and No 8. Although No 4 can be taken to have known that No 2 and No 8 were armed, and although the three of them (and No 1 too) had a common purpose that David should be killed with those firearms, this does not show that No 4 jointly possessed the firearms which were in the possession of his accomplices, any more than No 2 and No 8 could be said to have jointly possessed the car No 4 was driving just because it was one of the instrumentalities of the crime (see authorities previously cited). This is why I discharged No 4 on counts 33 and 34.

Counts 39-42 (murder of Neano Kleynhans)

[669]           Chronologically, the next set of counts conerns the murder of Vernon Botes (counts 35-88), which I have already dealt with. I thus turn to counts 39- 42. These charges, preferred against No 5 alone, comprise incitement to commit murder (count 39), murder (count 40) and unlawful possession of a firearm and ammunition (counts 41-42). They were allegedly committed on 22 July 2014.^[184] At the close of the State’s case I discharged No 5 on count 40.

[CF]’s evidence

[670]           [CF] knew Neano because Neano lived near [CF]’s son. He was not a gangster (though it was put to [CF] that according to a statement by Neano’s grandmother, Neano belonged to the Sexy Boys). At the time of Neano’s murder, [CF] was living at his family home, [… LD] Cres.

[671]           One afternoon No 5 arrived there in his BMW. No 5 told him that he had to shoot one of the Sexy Boys standing at the bollards near their club, and handed him a 9 mm ‘short’ (a pistol) for this purpose. (The bollards are at the junction of Batavia Dr and Bloemdendal Ave, the same place where Leon Davids was shot.) That evening [CF] sent two youngsters to check who was standing at the bollards. They reported back that Sadie and Neano were there. According to [CF], Sadie was a Sexy Boy but Neano was not. [CF] passed on the youngsters’ information to No 5 telephonically.

[672]           No 5 told him to shoot Neano because he was (so No 5 claimed) the son of one of the Booysen gangsters. [CF] testified that to his knowledge the Neano who was standing at the bollards was not the Booysen son, though there was a Neano Booysen. He was asked why he did not correct No 5. He replied that if he had done so, No 5 would have told him he was talking rubbish.

[673]           [CF] and Lily (a drug dealer who lived in his house and whose real name is Sellian Manuel) walked to the bollards. Although [CF] had the pistol with him, he instead warned Neano that the TJs wanted to kill him and showed him the pistol he had been given for that purpose. Neano asked why the TJs wanted him dead – he had done nothing to them. [CF] told him that he should leave Belhar. When asked why he gave this warning, he replied that he was starting to withdraw from the TJs.

[674]           He and Lily walked back to [LD] Cres. On their way they walked onto the fields of Perseverance Secondary School, where [CF] fired a shot into the air so that he could tell No 5 that he had shot at Neano and that the latter had run away. As he fired, the slide of the pistol shot off the back of the firearm past his head. Lily exclaimed that if the slide had struck him he would have been killed, and the TJs would have blamed her.

[675]           In cross-examination [CF] explained that as a result of this mishap the firearm was in two parts and that the slide landed a few feet behind him. At first he said he did not know why the slide came off, but then his police statement was put to him, where he told Bonthuys that he had noticed that the pistol’s pin was missing. He confirmed this. His statement continued that, after firing the shot into the air, he saw that there was an ordinary 9 mm cartridge in the 9 mm short pistol, rather than a Luger cartridge, which is what it should have been. He confirmed this, explaining that the shot had actually been fired but the cartridge, which should have been ejected, was standing skew in the chamber’s ejection aperture.

[676]           [CF] phoned No 5 and asked him what sort of gun he had given him. No 5 asked, what gun; [CF] replied, the one he had brought [CF] that afternoon. No 5 told him that he should not talk rubbish, that No 5 had shot with that gun before.

[677]           [CF] and Lily continued their walk home, which took them via the park (referred to in the evidence as the ‘parkie’ – the open area bounded by [ZB] Ave, [CT] Ave, [HB] Rd and [AD] Rd^[185]). When they were near the park they heard shots being fired. [CF] got a call from No 5 who said, ‘Look what Lollo does’. (Lollo is a reference to Elroy van Wyk, who was, according to [CF], a TJ and a member of the 26s.) [CF] replied that No 5 had given him a faulty firearm. No 5 said threateningly, ‘Wag jy’, and ended the call.

[678]           [CF] returned the pistol to No 5, still in two pieces. The next day he heard from the community that Neano had been shot dead the previous night.

W/O Natasha Truebody

[679]           Truebody, a ballistics expert, was called in response to cross-examination of [CF] to the effect that the mishap he described was impossible. She explained the workings of semi-automatic pistols.^[186] The slide, which moves along tracks, is kept in place by a take-down lever or slide-stop. When this is disengaged, the slide can be detached from the firearm by being moved forward off the end of the barrel or upwards, depending on the model of firearm. She was not aware of any model of firearm where the slide was detached by being moved backwards. (This makes sense, because the chamber, hammer and grip would present solid barriers.)

[680]           She testified that rounds of smaller calibre can be used in a larger-calibre firearm, but the rounds would need to be modified by wrapping a piece of wire around the groove at the base of the cartridge. The converse is not true; more particularly, it is not possible for a 9 mm round to be used in a smaller-calibre firearm, such as a 9 mm short. The 9 mm cartridge would fit into the short’s magazine, and would be taken into the short’s chamber, but because it is too big the slide would not fully close, and no shot could be fired. (When the slide is open or not properly closed, the firearm is said to be ‘out of battery’, which is contrasted with the ‘in battery’ position.)

[681]           This expert evidence militates against [CF]’s account of the firearm mishap. Truebody could not say what would happen if a shot were fired while the slide-stop/take-down lever were disengaged, missing or malfunctioning. A right-handed shooter might be able to hold the slide in place with his left hand while firing, but what would happen after that was a matter of speculation; it was too dangerous a scenario for her to test. If [CF]’s reference to the missing ‘pin’ was to the pistol’s slide-stop/take-down lever, it is perhaps possible that, after firing the shot, the slide could have come off more or less vertically. Given the angle at which he was holding his arm, the slide might have passed by his head.

[682]           However, on [CF]’s version, his pistol was a ‘short’, and he noticed an ordinary 9 mm cartridge which had not properly ejected after the shot was fired. According to Truebody, it would not have been possible for the short to have fired the 9 mm cartridge. If [CF] was telling the truth, he was either mistaken about the calibre of the firearm or about the calibre of the fired cartridge he saw in the chamber.

Other State evidence

[683]           Neano was murdered on the evening of Tuesday 22 July 2014 at the bollards at the Batavia/Bloemendal junction. He was certified dead at 18:37. There were three entry wounds: front left shoulder, middle of the left back and middle of the lower back.^[187]

[684]           Const N Mngqibisa began his photographic investigation on the scene at 19:13.^[188] The deceased was wearing a black patterned T-shirt, black trainers, black tracksuit pants, a black tracksuit top and a pink beanie with yellow, red and purple stripes. Mngqibisa collected 11 cartridges. The first ballistics report^[189] identified six of them as having been fired from one pistol, five from a second pistol (these were 9 mm and .45 ACP cartridges respectively). In a second report^[190] the expert examined two fired bullets, concluding that they were fired from separate firearms (one was a 9 mm bullet, the other a .45 bullet). The second report does not say where the two fired bullets came from (there is no reference to them in the post-mortem report or in Mngqibisa’s report).

[685]           Bonthuys obtained a statement from Sellian Manual aka Lily.^[191] She was not called by the State and was made available to the defence. During [CF]’s cross-examination it was put to him that in her statement Lily disavowed knowledge of the incident.

No 5’s evidence

[686]           It is clear from No 5’s evidence that he agreed that by July 2014 [CF] was living at [… LD] Cres (but any rate, not at [WG] Park). No 5 new Lily. He was not frequently in her company, but her father often bought fish from him.

[687]           No 5 denied any involvement in Kleynhans’ murder. He testified that he did not know anyone by the name Neano. He had read of Colin and Jerome Booysen in the newspapers but did not know them personally.

Discussion

[688]           [CF] could not remember what clothing Neano was wearing. It was put to him that he could not have forgotten Neano’s brightly coloured beanie. I do not think there is much in that point. [CF]’s first statement to the police about this incident was made about 18 months after the event. Whether he was asked about Neano’s clothing does not appear. He testified in court about five years after the incident.

[689]           From the undisputed evidence, Neano was shot dead at the same place where [CF] allegedly warned him. It was put to him that it was most unlikely, if [CF] had warned Neano as alleged, that Neano would have remained at the bollards, particularly since – according to [CF] – Neano had taken fright at the warning. There is some force in this criticism.

[690]           The most obvious difficulty with [CF]’s account is his version of the firearm mishap. Since he did not have a clear grasp of calibres, it is possible that he was mistaken about the calibre of the firearm or about the cartridge he saw in the chamber. One might ask why, if he were fabricating his entire account, he would add this unnecessary detail? It was unnecessary, because it did not make the case against No 5 any more incriminating; it was dangerous, because he testified that Lily was in his company when it happened. He must have known that the police would interview her.

[691]           [CF] was extensively cross-examined about his claim that he warned Neano and that he did so because he was starting to withdraw from the TJs. [CF] took no practical steps to withdraw from the gang until his incarceration in Goodwood in the latter part of 2015. Indeed, on his evidence he moved back into No 5’s apartment in [WG] Park shortly after Neano’s death. It is possible that [CF]’s thoughts had started turning towards an exit from the gang. That he did nothing about it for some time may be explicable by a justified fear that such action on his part would lead to his prompt demise. It was put to him that he could have gone to the police much earlier than he did. His answer was that his wish to withdraw from the gang was not accompanied by an intention to cooperate with the police.

[692]           He was taxed as to why, if he warned Neano, he did not similarly warn Tyrone. On [CF]’s version, he learnt (this would have been in early August 2014, a couple of weeks after Neano’s death) that No 5 was plotting to have Tyrone killed. Tyrone was, after all, a particular friend of his. [CF] gave quite a full account of the Tyrone incident. He claimed that No 5 was threatened by ‘Donkey’ Booysen, a leader of the Sexy Boys, that they would murder his mother. According to [CF], No 5 ‘sold out’ Tyrone to the Sexy Boys to appease them. [CF] was with No 5 at Jagger’s place in Kreefgat the day before Tyrone’s death. He learnt that a trap had been set for Tyrone. While at Kreefgat, [CF] got a call from Tyrone who was looking for a water bottle for a car. After this call, No 5 told [CF] to turn off his phone. He was in No 5’s company at Kreefgat and returned with him that night to [WG] Park. He learnt the next day that Tyrone had been shot dead. In Neano’s case he had an opportunity to warn him; in Tyrone’s case he had none.

[693]           If [CF]’s evidence on these counts were accepted, it would justify a conviction on the count of incitement to commit murder (count 39). A successful incitement conviction does not require that the murder should actually have been committed or that the inciter should have been successful in persuading the incitee (S v Nkosiyana & another 1966 (4) SA 655 (A) at 659A-B). So it matters not whether, when No 5 gave [CF] the instruction, the latter intended to comply with it. [CF]’s evidence would also justify a conviction on the counts of possession of a firearm and ammunition (counts 41 and 42).

[694]           In discharging No 5 on count 40, I considered that there was no evidence on which a reasonable court might convict No 5 of Neano’s murder. The question was whether, in the absence of an answer from No 5, a reasonable court might infer that No 5 engaged Lollo to kill Neano and that Lollo in fact killed Neano. This would have to be inferred from the following circumstances: (a) that No 5 wanted Neano killed (established by his incitement of [CF]); (b) that [CF] heard shots being fired as he was walking back to [LD] Cres; (c) that shortly after those shots were heard, No 5 phoned him and said, ‘Look what Lollo does’; and (d) that Neano was in fact shot dead that evening.

[695]           The circumstances I have listed warranted a strong suspicion but did not go far enough to provide an evidential foundation for an inference beyond reasonable doubt, based on the well-known passage from R v Blom 1939 AD 188 at 202-203. Since the park was fairly close to the school grounds, not much time could have passed between [CF]’s call to No 5 and the shots [CF] heard. It was only when [CF] called No 5 from the grounds that the latter would have learnt that [CF]’s mission had been unsuccessful. It is doubtful whether, in that short time, No 5 could have procured another hitman and whether the hitman could have got to the Batavia/Bloemendal bollards and executed the murder.

[696]           There was no evidence that Lollo in fact carried out the shooting. We know from the ballistics evidence that there were two shooters. Even if Lollo did shoot Neano, one does not know that he was incited to do so by No 5. The latter’s remark to [CF] might be explicable on the basis that No 5 had received a call from someone else to say that Neano had just been shot by Lollo.

Counts 43-46 (murder of Aubrey Johannes)

[697]           These counts charge No 1, No 5 and No 10 with conspiracy to commit murder, and charge those accused and No 2 with murder (count 44) and unlawful possession of a firearm and ammunition (counts 45 and 46). The crimes were allegedly committed on 24 July 2014.^[192] The victim of this murder is the same Johannes to whose sworn statement I made reference in relation to Leon Davids’ murder. Johannes’ murder took place two days after Neano’s.

[698]           At the conclusion of the State’s case No 2 was discharged on all counts levelled against him, and No 1 and No 5 were discharged on counts 45 and 46.

[CF]’s evidence

[699]           One morning during the week, No 5 and [CF] were at [WG] Park watching television. No 5 got a call and went into the bedroom to talk. Afterwards he told [CF] that they must wash and go to No 1’s place, which they did, [CF] driving the BMW 130. There were a number of people on No 1’s front stoep. No 10 was one of them; others were No 2, No 4 and Worsie.

[700]           No 1, who was in his lounge, called No 5 inside. When they came out, they summoned No 10, a TJ serving No 1. The three of them went upstairs to No 1’s room. After a while they came back and got into No 1’s white Golf 4 hatchback. The car had tinted windows and a green Monster sticker (a large green ‘M’^[193]) in the middle of the back windshield. No 1 drove, No 5 was in the front passenger seat, and No 10 behind. No 10 had been wearing a white hoodie when [CF] arrived, but he changed into a black hoodie before leaving with the other two accused. (This clothing detail he recalled after refreshing his memory with reference to his police statement.)

[701]           Before they left, No 5 said that [CF] must make a delivery of drugs to Dorta. The drugs were in a channel in the BMW. [CF] drove to Dorta in Belhar. He was there about 45-60 minutes. He then got a call from No 5 instructing him to fetch clothes for him from [WG] Park and return to No 1’s place. The clothes he fetched were a grey top with black dots (‘Guess’ or ‘Identity’ label), a black Puma sweater and blue ‘Guess’ jeans. These two labels were No 5’s preferred brands at this time.

[702]           About 10 minutes after he got back to No 1’s place with the clothes, No 1, No 5 and No 10 returned in the Golf. They got out, and Worsie – who had brought the car around before they left – took it away. The three accused went into the house. [CF], who was sitting on the stoep, saw the butt of a firearm in the front of No 10’s pants. No 1 went upstairs; No 10 went into a bedroom and changed his top; No 5 showered in the downstairs bathroom. (When asked, in re-examination, whether there was anything which made this particular day stick in his memory, he mentioned two things: (a) the way the three accused had jumped out of the Golf when they got back to No 1’s place and the way Worsie drove off immediately; and (b)  the fact that No 5 showered at No 1’s place, despite having washed earlier that morning at [WG] Park.)

[703]           No 5 and [CF] then drove back to [WG] Park. During this trip No 5 remarked that ‘Die Ou’ (Solomon) let them do wonderful things. Once they were back at [WG] Park, No 5 told [CF] what they had done. No 10 had shot Johannes because the Sexy Boys had used Johannes’ silver Toyota RunX in the shooting of Monray Jack @Warra. Johannes was shot at a vehicle testing station in Goodwood, and No 5 was worried in case the cameras there had picked up incriminating footage. [CF] read of Johannes’ death two days later in Die Son. (Although it was not formally established that Johannes owned a silver Toyota RunX, a vehicle matching that description was parked outside Leon Davids’ house when the latter was murdered and suffered some bullet damage.^[194] We know that Johannes was present at Davids’ house on that occasion.)

[704]           [CF] testified that Johannes resided at the Sexy Boys’ club. He did not know whether Johannes was a member of the Sexy Boys but his brother Herbie was. The talk was that Johannes was an accountant for ‘Donkey’ Booysen.

The evidence of Lee-Ann Jacobs

[705]           Jacobs is a relatively senior but apparently vigorous lady who is the owner of premises situated between Voortrekker Rd and Drukkery Rd, Goodwood, from where she conducts a business of building and repairing engines for all types of vehicles. The business next door to hers is HSVTS, a roadworthy testing enterprise. Johannes worked there. She knew him well because she often took vehicles to HSVTS for inspection.

[706]           On the day of Johannes’s murder, she was working on the open upper deck of her building – this is about 7 m above ground level. It was late morning. She heard two gunshots. From the parapet of the deck,^[195] she saw a person coming out of HSVTS.^[196] He was wearing a dark greyish hoodie over his head, dark denim jeans and white-rimmed takkies. At some point the hoodie was pushed back and she noticed an earring in the person’s right ear. He made his way in a northerly direction up Drukkery to the Zelda St intersection. After walking across the intersection, he turned back and walked in a westerly direction on the south side of Zelda St. He disappeared behind the brick perimeter wall of the Waltex building, which is on the south-western corner of Drukkery and Zelda.

[707]           The Waltex perimeter wall along Zelda is broken by a solid metal gate, fairly close to the Drukkery intersection.^[197] Through a gap between the wall and the gate (a gap of 0,4 m) she saw a car^[198] which, at the time, she believed to be a grey Ford Focus, though she could not be sure because there was bright sunlight reflecting off the car. She noticed that this car had a fluorescent green ‘M” on the back windscreen. She did not see the man in the hoodie getting into the car, but the car drove off, and she would have seen a pedestrian if he had walked further down Zelda, because the Waltex wall ends a bit further down the road.

[708]           In cross-examination she was taken to a statement she made to the police on the afternoon of the shooting. The statement described the car as a ‘grey Ford Focus hatchback’ with a ‘Monster’ sticker on the left side of the rear windscreen. She agreed that this is what she told the police, because that is how she interpreted what she saw. Her attention was also directed to a statement made about three years later, in which she claimed to be ‘very certain’ about the vehicle, because she knew cars and repaired engines for a living. It was put to her that in this statement she was one hundred percent sure that the vehicle was a grey Ford Focus. She agreed, that had been her impression, a greyish colour.

[709]           In re-examination Mr Menigo asked what gave her the ‘impression’ that the vehicle had been a Ford Focus. She replied that she had been visualising the car in her mind. She was sitting outside court during the lunch adjournment, looking at the passing vehicles. One of these was a white Ford Focus, and she was now sure, ‘without a shadow of doubt’, that the car she saw was a Ford Focus.

[710]           Another topic of questioning was her description of the man she saw leaving HSVTS. On 8 August 2014, about two weeks after the shooting, a police officer came to her premises and showed her a photograph of a man.^[199] She made a police statement stating that she was ‘80% sure’ that this was the man she saw leaving HSVTS. This man was Tyrone Constable. She often saw Tyrone, whom she knew by his nickname ‘Spyker’, at HSVTS’ premises.

[711]           Tyrone, it may be noted, was probably dead by 8 August, having been murdered in early August. The police presumably brought her this photograph because on the same day the police had obtained a statement from one Irvine Christians who said that Tyrone was a friend of his and that in late July Tyrone had boasted of having shot Johannes dead. (This statement was put to [CF] in cross-examination, who denied it, saying that Tyrone was not with them on the day in question. If someone was wanting to throw the police off the scent, it might have been convenient to claim that the perpetrator was someone who was now deceased.)

Written statements

[712]            The written statements of Christo van Zyl (the owner of HSVTS) and Elton September (an employee) were received in lieu of their oral evidence.^[200] Van Zyl heard but did not witness the shooting. September stated that about 11:21 an unknown coloured male, light in complexion with a thin body shape, entered the premises. The man was wearing a hooded top. He asked September how much a roadworthy test cost. September could not see his face because he was getting out of a vehicle. The man went into the reception and shortly afterwards September heard two gunshots.

Other State evidence

[713]           Johannes was murdered on Thursday 24 July 2014 at HSVTS’ premises situated at 7 Drukkery Rd, Goodwood. He was certified dead at 11:40. The post-mortem examination^[201] revealed two entry wounds, both to the head. One of the bullets was found in the brain.

[714]           W/O S B Msimango began his photographic inspection at 12:26.^[202] The deceased was lying in HSTVS’ reception office. Msimango collected two cartridges and one bullet, all inside the reception office. Ballistics examination revealed that the two fired cartridges and two fired bullets (including the one found in the deceased’s brain) were .45 ACP calibre and were fired from the same weapon.^[203]

[715]           On the afternoon of the shooting, Const R B Basson attended at the crime scene to download CCTV footage from Waltex. The footage in question^[204] is date-stamped 24 July 2014 and time-stamped between 11:26:06 – 11:28:37. A man wearing what appears to be a dark grey/black hoodie, blue jeans and white trainers can be seen in each of the four stills. This person was identified to Const Basson by the CCTV operator as ‘the suspect’. In the first two images, taken two seconds apart (11:26:06 – 11:26:08), the person is walking down Drukkery Rd from the middle of the Zelda intersection, ie in the direction of HSVTS. In the other two images, taken about two minutes later and a second apart (11:28:37 –11:28:38) he appears to be running in the opposite direction across the Zelda intersection.

[716]           One might infer from this that in the intervening period this man perpetrated the murder. The fact that after the shooting the perpetrator made his way across the Zelda intersection accords with Jacobs’ evidence. The images are too indistinct to allow one to gain any clear picture of the gate described by Jacobs. The getaway car is not visible in any of the images.

No 1’s evidence

[717]           No 1 denied any involvement in Johannes’ murder. He testified that he never possessed a Golf 4. It is not in dispute, though, that Worsie had a white Golf, and No 1 admitted that he sometimes drove it. He denied, however, that he, No 5 and No 10 ever drove together in the Golf. Although he has driven many cars, none of them had a Monster sticker on the rear windscreen. He has a Monster sticker on his cupboard in Delft. Monster is an energy drink, and one can get the stickers from garages and many other places.

[718]           No 1 testified that nobody lived upstairs in his house at [… VL] Cres. His mother’s sewing machine was there. There was no bath or basin upstairs.

[719]           No 1 testified that he was acquainted with No 10. An electrician had introduced No 10 to him as a man who could do electrical work for him. He and No 10 became good friends. As far as No 1 was aware, No 10 was not a gangster. In response to a question from Mr Menigo, he agreed that No 10 was lighter in colour than Tyrone Constable. He agreed that it would be surprising for someone to describe Tyrone as light-skinned.

[720]           Mr Menigo put to No 1 that Monray Jack @Warra was shot dead on 15 July 2014. No 1 replied that he knew Warra had been murdered but he could not remember the date. (The date of Warra’s murder was not formally proved.) No 1 was not asked whether he knew Johannes.

No 5’s evidence

[721]           No 5 denied any involvement in Johannes’ murder. He testified that he did not know anyone called Aubrey Johannes. It was true that Warra had been shot dead, but he denied having told [CF] that Johannes was killed because his RunX had been used in Warra’s murder. No 5 testified, further, that he had never been in a car together with No 1 and No 10. He did, however, know No 10 from having seen him at a pub in Belhar called The Building.

No 10’s evidence

[722]           No 10 confirmed that he had met No 1 in connection with electrical work. Together with a colleague, he did all the electrics at No 1’s house at [… VL] Cres – this was over a period of a month or two in 2014/2015. He testified that he was not acquainted with No 5 but that after their arrest in the present case No 5 looked familiar to him. He claimed never to have seen [CF] before the latter testified.

[723]           No 10 denied any involvement in this or any other shooting. He did not know Aubrey Johannes, and had never been in a car together with No 1 and No 5. He could not recall whether he ever saw No 1 driving a white Golf.

Discussion

[724]           It is clear that the shooter was the person whom Jacob saw leaving HSVTS and that the shooter got into the car she spied between the Waltex wall and gate. If that car was a grey Ford Focus, not a white Golf, the connection between [CF] and Jacobs’ evidence would be broken. In other words, one might believe [CF]’s evidence that on a date close in proximity to Johannes’ death No 1, No 5 and No 10 left [VL] Cres in the white Golf, but one would have to conclude that, whatever they did, it did not entail taking No 10 to HSVTS to shoot Johannes.

[725]           The distance from Jacobs’ advantage point to the car was not stated in evidence. To judge by a photograph of the scene, the rear end of the car she saw was about 40 m away from her.^[205] Her view though the gap was at an angle of about 45°. All she could see was the left rear of the car, not the rest of it. She could not see any of the car doors (she did not see the pedestrian getting into the car). The cross-examination did not detract from her evidence that there was bright sunlight reflecting off the car. The actual gap through which she saw the car’s rear was only 0,4 m, and at a distance of 40 m that must have been perceived as a very small gap indeed.

[726]           The similarities and differences between a Golf 4 hatchback and a Ford Focus hatchback would depend inter alia on their respective models. While I am sure that a person familiar with cars could readily tell them apart under optimal viewing conditions, those were not the conditions under which Jacobs viewed the car. I would not exclude the possibility that she is mistaken in her identification of the vehicle. As to its colour, a vehicle perceived to be a (metallic) grey/silver in bright sunshine might turn out to have been white.

[727]           My impression of Jacobs is that she enjoyed her time in the witness box, that she was anxious to be helpful, and that she wanted to come across as observant, knowledgeable and decisive. She may well, in general, be an observant and knowledgeable person, but I think she might have been inclined to be definite where she should have allowed for error.

[728]           She demonstrated this tendency in relation to the photograph she was shown of Tyrone Constable. She said in her statement of 8 August 2014 that she was ‘80%’ sure that the person she saw running away was Tyrone. Mr Menigo questioned her about this, asking whether she was in fact able to identify the person. She said no. When asked why, then, she had claimed to be 80% sure, she said by virtue of the man’s complexion, height and build, but then added that she was certain that the person she saw that day was not Tyrone

[729]           When she made her initial statement, she did not identify Tyrone as a possible suspect despite the fact that he was well known to her. She did so only in response to a photograph. That photograph was a blurred black and white portrait, from which one could not discern the person’s complexion and certainly not his height or build.^[206] Since she did not see the suspect’s face, this photograph could have been of no use in identifying him. I should add that in chief she said that she was not even sure that the person she saw was a man or a woman because the clothing was loose-fitting

[730]           It is not in dispute that Tyrone was dark-skinned. [CF] described him as stocky/muscular (‘vris’).^[207] September said that the perpetrator was light in complexion with a ‘thin body shape’. Asked to compare Tyrone with No 10, [CF] said that No 10 was much lighter in complexion than Tyrone, and Tyrone was also bulkier/stockier (‘vrisser’). If Tyrone, as Jacob testified, was often at HSVTS, September would surely have recognised him, and Tyrone would not have feigned to talk to September as if they were strangers.

[731]           The green Monster sticker clearly made an impression on Jacobs. Unless she was a dishonest witness, and I did never gained that impression, she must have seen the sticker on the rear windscreen. She mentioned it in the statement she made on the day of the shooting, long before the police had any information from [CF] that the car used in the murder might have had such a sticker.

[732]           [CF] was cross-examined about differences between his police statement and oral evidence as to the clothing he fetched for No 5. In the statement he said he fetched a black Puma sweater, a grey top with black stripes and blue jeans. It was put to him that if he had told Bonthuys that the top and jeans were ‘Identity’ or ‘Guess’, Bonthuys would have included this in the statement, given that he included ‘Puma’. It is unclear from the evidence whether [CF] did or did not mention these brands in the interview with Bonthuys, but I do not think anything turns on it. I am not sure that [CF] himself remembered the brand of the top; what he said was that it would have been ‘Identity’ or ‘Guess’ since these were the only two brands No 5 was wearing at the time. As to the description of the top as ‘striped’, [CF] testified that he told Bonthuys that the top had ‘sprikkeltjies’ and that Bonthuys may have misheard.

[733]            Mr Liddell put to him that he alleged in his police statement that upon the accused’s return, No 1 had gone upstairs to shower. It was put to [CF] that there was no shower upstairs. He replied that he had never been upstairs but that No 1 had gone upstairs and that No 5 had showered downstairs. (In other words, so I understood this evidence, he made the assumption that No 1 was showering or washing upstairs.)

[734]           It was put to [CF] that it was not No 1 but Worsie who owned a white Golf 4. [CF] replied that it was No 1’s car but that he put it in Worsie’s name, just as No 5 registered some of his cars in the names of others. It was also put to him that the Golf never had a Monster sticker, but he adhered to his version.

[735]           In re-examination [CF] confirmed that he told Capt Joubert about the Monster sticker. Since the defence had Joubert’s information note and [CF]’s statements to Bonthuys, he would have been tackled on the subject of the sticker if he had failed to mention it in his initial interviews with Joubert and Bonthuys. The importance of this is that when Joubert interviewed [CF] in November 2015, Joubert knew nothing of the cases [CF] was telling him about and had no dockets. In regard to the Johannes murder, that would also have been true when [CF] was interviewed by Bonthuys in January 2016. This eliminates the possibility that [CF] testified about the Monster sticker in response to information supplied to him by the police from the docket (and in particular from Jacobs’ statement).

[736]           However, the importance of the Monster sticker for present purposes must not be overemphasised. The fact that both [CF] and Jacobs mentioned a getaway vehicle with a Monster sticker on its back windscreen would show only that [CF] knew that such a vehicle was used as a getaway car. He might notionally have had such knowledge because he was personally involved in the crime or had heard reports from those who were involved.

[737]           Mr McKernan put to [CF] that his police statement did not record that No 5 had told him, afterwards, that it was No 10 that shot Johannes. As I understand it, the statement mentioned that No 10 was part of the group that left and returned in the Golf but did not record that No 5 subsequently identified No 10 as the shooter. [CF] could not remember whether he had told Bonthuys this part of No 5’s ‘confession’, but said that No 5 definitely did tell him this. I think it unlikely that Bonthuys would have failed to include this if it was said, so perhaps [CF] did fail to mention No 10’s specific role. However, in view of the leadership positions occupied by No 1 and No 5, and September’s description of the perpetrator, it is unlikely that either No 1 or No 5 did the actual shooting.

[738]           A peripheral but puzzling feature of [CF]’s evidence is that on his version he was residing at [LD] Cres at the time of Neano’s murder but was residing again at [WG] Park by the time of Johannes’ murder. These murders were only two days apart (22 and 24 July 2014). Apart from the coincidence that he should have changed his residence during this short period, one has to wonder why he would have moved back into No 5’s flat if he thought No 5 was trying to kill him. Of course, on No 5’s version, [CF] had not been living at [WG] Park since September 2012.

[739]           If [CF]’s evidence were accepted, and if one were to find that Jacobs was in error when she described the car as a Ford Focus rather than a Golf 4, the case against No 1, No 5 and No 10 would be strong. As against No 5, the case would be clinched by the ‘confession’ he subsequently made to [CF]. The evidence would justify the conclusion, as against No 5, that before the three accused left [VL] Cres in the Golf, they conspired to murder Johannes (count 43), and that they subsequently executed the conspiracy by murdering Johannes (count 44). The ballistics evidence points to a single shooter, which is consistent with the account No 5 allegedly gave [CF] shortly after the event. (The evidence does not, however, establish that No 5 had joint possession of the firearm and ammunition that No 10 used, which is why I discharged No 5 on counts 45 and 46.

[740]           The evidence against No 1 and No 10 is inferential. I say this because No 5’s ‘confession’ to [CF] is not admissible as against them. It is also not admissible as an executory statement made by one conspirator to another; it was an ex post facto narrative, and it was made to [CF] who is not alleged to have been part of the conspiracy. No 5 did not repeat this ‘confession’ when he testified.

[741]           Without No 5’s ‘confession’, the main elements of the case against No 1 and No 10 can be summarised thus:

(a) Two days before [CF] read of Johannes’ murder in Die Son, No 1, No 5 and No 10 conferred privately at No 1’s house.

(b)  After conferring, No 10 took off his white hoodie and put on a black hoodie.

(c) The three then left [VL] Cres in a white Golf 4 which had a green Monster sticker on its back windscreen.

(d)  They returned an hour or more later, on which occasion No 10 was seen to have a firearm tucked in his pants.

(e)  No 1 went upstairs, No 10 changed downstairs while No 5, who had instructed [CF] to fetch him a change of clothing, showered (his second wash of the day).

(f) A car, which cannot be positively identified as a Golf 4 but which had a green Monster sticker, was used as the getaway car of the perpetrators.

(g)  The events of that day occurred in the morning (or at any rate, No 5 and [CF] were summoned to [VL] Cres in the morning).

(h)  Johannes was murdered at around 11:21 on 24 July 2014.

(i)  The perpetrator’s skin colour and build match those of No 10, albeit that the physical characteristics are very general.

(j)  The perpetrator’s dark hoodie, as seen by Jacobs and in the CCTV footage, matches [CF]’s description of what No 10 was wearing when he left. 

(k)  According to [CF], Johannes was associated with the Sexy Boys though he may not have been a member. The TJs and Sexy Boys were in conflict at the time.

(l)  No 10 is known to have associated with the TJs, as will appear later in this judgment.  

[742]           This material may justify the conclusion that No 1 and No 10 must have gone to Drukkery Rd to perpetrate the murder. Johannes’ death was likely to have featured in Die Son a day or two after the actual murder. The events [CF] described were thus very likely to have occurred on the date of [CF]’s murder. It would be too coincidental to suppose that the three accused departed on that day but went somewhere else (for a purpose currently undisclosed), and that to their great misfortune the getaway car used in Johannes’ murder coincidently happened to have the same green Monster as the Golf.

[743]           Although on this basis the charges of incitement and murder would be made out against No 1, there is – as with No 5 – no evidence to conclude that No 10’s firearm and ammunition were jointly possessed by him and No 1, hence the fact that I discharged No 1 on counts 41 and 42.

Counts 47-49 (murder of Wayne Lekeur @Lonty)

[744]           These counts, preferred against No 5 alone, comprise charges of incitement to commit murder (count 47), conspiracy to commit murder (count 48) and murder (count 49). The crimes are alleged to have been committed on 30 July 2014.^[208]

[CF]’s evidence

[745]           This was the first incident about which [CF] made a s 204 statement. The statement was made on 10 November 2015 following his interview with Capt Joubert.

[746]           One afternoon [CF] received a call from No 5 while he ([CF]) was driving the Tazz to Bishop Lavis to buy mandrax. No 5 told him that once he had the drugs he should hurry back to [WG] Park because he ([CF]) had to drive to Wellington to fetch Tyrone and Lollo (Elroy van Wyk). [CF] did so.

[747]           Upon [CF]’s return from Wellington with Tyrone and Lollo, No 5 phoned No 1 and explained that Lonty (Wayne Lekeur) had to be killed because on a previous night Lonty had shot at [CF]’s brother in George Isaac’s yard. No 5 told No 1 that [CF] would be coming to fetch two firearms from Worsie. [CF] described Lonty as a Sexy Boy hitman. He resided in the street behind [LD] Cres.

[748]           [CF] drove to No 1’s place in [VL] Cres. In the road outside the house, Worsie handed [CF] two firearms which [CF] thought were both pistols. Back at [WG] Park, [CF] handed the firearms to Tyrone. No 5 phoned Tyrone’s brother, Dylan, and told him to keep an eye on Lonty’s whereabouts.

[749]           That evening Dylan phoned No 5 to say that Lonty had come out of his house and was standing on the corner of [ZB] Ave. No 5 told [CF] and the two shooters that they must go. [CF] dropped Tyrone and Lollo off at an Anreith Ave alley. They walked through the bollards while [CF] continued up Anreith and turned into [ZB] Ave. He saw Lonty standing on the corner of [ZB]/[AD]. He phoned Tyrone to tell him this, and then drove to No 1’s house to wait.

[750]           After quite a while, Tyrone and Van Wyk arrived at [VL] Cres on foot, and handed the firearms to Worsie. [CF] drove them back to [WG] Park. While they were driving, Tyrone and Van Wyk were arguing. Tyrone claimed that Van Wyk had shot badly – he had missed Lonty and almost hit Tyrone. This had allowed Lonty to flee into [LD] Cres and jump into Uncle Charles’ yard. They had followed him over the wall into the yard. Lollo, who had been wearing a balaclava, pulled it off. Lonty had asked Lollo why they wanted to shoot him, he had done nothing to them. Tyrone’s gun had jammed, and he had hit Lonty over the head with the back of his firearm. They had then shot him. (This was all as recounted by Tyrone.)

[751]           At [WG] Park, Tyrone got out with [CF] and went into the apartment. No 5 told [CF] that he must take Tyrone and Lollo back to Wellington, which he did.

[752]           A few days later No 5 phoned [CF], who was at [… LD] Cres, to say that the police wanted to see him (No 5) at the Belhar station. No 5 asked [CF] to accompany him. No 5 came to fetch [CF], at which point he told [CF] that this was not about Lonty’s murder but something else.

[753]           At the Belhar police station they were taken to the detectives’ offices. Three TRT officers took [CF] to one office, keeping No 5 in another. The officers began to assault [CF], asking about Tyrone and Lollo’s whereabouts, because they had information that those two were responsible for Lonty’s murder. [CF] did not give up any information about Tyrone and Lollo’s involvement. The officers also alleged that [CF] was involved but he denied it. Afterwards, No 5 told [CF] that he too had been beaten and that they must show the police where Tyrone and Lollo were.

[754]           The police took [CF] and No 5 to Wellington in a convoy of two Mercedes Vito vans, No 5 in the first van, [CF] in the second. In Hantamberg Rd, the police pulled off, and No 5 drew a sketch to show the police how to get to the place where Tyrone and Lollo were staying. One van left for the place indicated by No 5, while [CF] and No 5 were put in another van and taken to the Van Wyksvlei sports fields. [CF] heard over the police radio that they had arrested Lollo at the indicated address but that Tyrone had not been found.

[755]           The convoy returned to the Belhar police station, and No 5 and [CF] left for home. A day or two later [CF] went to the Bellville police station and laid a charge of assault against the police – this was on the second or third floor of the Commercial Court. No 5 had said he should lay a complaint, and he thought the two of them went together.

[756]           In cross-examination he was shown a statement purporting to have been made by him at 20:00 on 5 August 2014 at the Belhar police station.^[209] This affidavit complained of an ostensible assault. He confirmed that his signature was on the document. The statement purports to have been taken by Const Owen Lottering. [CF] said that he did not know a police officer with that name. The statement is in English. [CF] said that all the Belhar police officers knew that he spoke Afrikaans. He could not recall whether he ever read the statement or whether it was ever read to him.

[757]           The statement was to the following effect:

(a) He went to the Belhar police station to ask about an impounded BMW. ([CF] confirmed that he knew of a white BMW which the police had impounded because an occupant of the car had allegedly shot at a police dog from the car. This was a Belhar case, although the vehicle was kept at the Delft pound.)

(b)  While he was waiting inside the charge office, a policeman told him to wait outside in the rain. ([CF] had no recollection of this.)

(c)  While he was outside, he received a telephone call from his girlfriend. After the call was terminated, a policeman in a double-cab wanted to know who he was phoning, started hitting him and took away the phone. ([CF] had no recollection of this. He said he was assaulted inside the station, not outside, and his phone was never taken.)

(d)  He was instructed to get into the double-cab and show the police where Tyrone was. They continued to hit him as they travelled to Wellington. ([CF] denied telling the police this. Both he and No 5 were taken to Wellington, and this was in two Vitos, not a double-cab.)

[758]           [CF] was aware that Lollo (Elroy van Wyk) was brought before court in connection with Lonty’s murder. Tyrone was dead by that time.

Capt Joubert’s evidence

[759]           On 10 November 2015 Joubert took [CF]’s s 204 statement about Lonty’s murder. Joubert had conferred with the senior Bellville prosecutor and established that the Lonty murder case was at an advanced stage, and was on the roll for 12 November. The prosecutor put Joubert in touch with the investigating officer, from whom Joubert obtained the CAS number. Joubert did not have the docket when he took the statement. The date of the crime recorded in the statement, ‘July 2014’, was derived from the CAS number. (It follows that this detail came from Joubert, not [CF].) Joubert said that he and [CF] spoke Afrikaans. He never gained the impression that they were battling to understand each other.

[760]           In regard to the telephone call [CF] received while driving to Bishop Lavis, para 4 of the statement recorded the time as ‘07:30’. Joubert testified that he got this from [CF]. I think in this instance there must have been a misunderstanding, because I do not believe that [CF] would have told Joubert that this happened early in the morning. Although [CF] did not specify a time in his oral evidence, he may have said (in Afrikaans), ‘at around half past five’, which Joubert mistakenly recorded as 07:30 rather than 17:30.

[761]           In para 6 of the statement, [CF] said that the pistols he fetched from Worsie were 9 mm and .45 pistols. As noted, in oral evidence’s [CF]’s memory on this detail was vaguer.

[762]           I shall deal with other aspects of the statement when discussing the evidence more generally.

Other State evidence

[763]           Wayne Lekeur @Lonty was murdered on the night of Wednesday 30 July 2014 at [… LD] Cres. He was certified dead at 22:50. The post-mortem report^[210] recorded eight entry wounds on the deceased’s body . Two bullets were recovered from the body.

[764]           Const Morris began his photographic investigation of the crime scene in the early hours of the next morning.^[211] He collected 15 cartridges and three bullets.

[765]           A ballistics examination of the exhibits collected at the crime scene^[212] established that 11 of the 15 cartridges were fired and four unfired. Of the 11 fired cartridges, four were 9 mm Parabellum cartridges and seven were .45 ACP cartridges. Of the bullets, one was a 9 mm calibre, the other two .45 calibre. The seven .45 ACP cartridges were fired from the same firearm. It could not be determined whether the four 9 mm cartridges were fired from a single firearm.

[766]           A ballistics examination of the bullets recovered from the body, and a comparison of them with those found at the crime scene, established^[213] that one of the bullets recovered from the body was a 9 mm bullet, the other a .45 calibre bullet. The 9 mm bullet found at the crime scene and the 9 mm bullet found in the body were fired from a single firearm. The .45 bullet recovered from the body and the two .45 bullets found at the crime scene were fired from a single firearm.

[767]           Elroy van Wyk @Lollo was arrested for the murder. (Although this was not formally established, Mr McKernan put to [CF] that according to a police statement Lollo was arrested on 4 August 2014.) Lollo was acquitted on 31 August 2016.^[214]

No 5’s evidence

[768]           No 5 was acquainted with Elroy van Wyk. They and No 3 had previously been arrested for the murder of one Denzel Botha. He claimed not to know Van Wyk’s nickname Lollo. As previously mentioned, No 5 and Tyrone Constable were cousins

[769]           No 5 knew of a way whose nickname was Lonty. He lived in [AD] Rd, behind [LD] Cres. He sometimes delivered fish to Lonty’s mother’s place. He denied any involvement in Lonty’s death.

[770]           He confirmed that not long after Lonty’s murder there was an incident in which he and [CF] were taken by the police to Wellington, but his account differed materially from [CF]’s. According to No 5, a police officer had summoned him to the Belhar police station. He did not contact [CF] to accompany him, but [CF] was already at the police station when No 5 arrived. The police wanted to know from him if he knew where Tyrone was. No 5 replied that he did not, but that he had heard from Tyrone’s girlfriend that he was living in Wellington. No 5 denied that the police ever asked about Van Wyk/Lollo. He said that this was not the first time that the police had asked him about Tyrone’s whereabouts; the police would approach him because he was Tyrone’s cousin.

[771]           No 5 said that he was placed in a Veto while [CF] was put in a double-cab bakkie. The bakkie was in front. The officers in the Veto smacked him. They also took away his driver’s licence. The police stopped at a house in Wellington and searched. No 5 could not recall if they found anyone.

[772]           Upon their return to Belhar, [CF] told him that he had been assaulted and was going to lay a charge. No 5 also wanted to lay a charge of assault and of theft of his driver’s licence. He and [CF] went into the police station. They gave statements to different offices.

Discussion

[773]           It was put to [CF] that Lonty’s murder occurred one week after Neano’s, and that his role in Lonty’s murder was thus inconsistent with his professed intention of withdrawing from the TJs. I have already dealt with that issue.

[774]           I have also discussed the time of ‘07:30’ in [CF]’s statement which Joubert took on 10 November 2015. I am satisfied that this was due to a misunderstanding or incorrect recordal by Joubert. [CF] was consistent that the relevant events started in the afternoon; at one point he said ‘late afternoon’.

[775]           The Joubert statement recorded that [CF] was supposedly on his way to Bishop Lavis with mandrax and R13 500. [CF] said that Joubert must have misunderstood, because he told Joubert that he was going to buy the mandrax.

[776]           In oral evidence [CF] said that, upon receiving the two firearms from Worsie, he hid them in a channel underneath the gear lever. It was put to him that according to the Joubert statement he hid them in a channel in the door panel. [CF] replied that he possibly made a mistake when talking to Joubert, but the firearms were in fact hidden under the gear lever.

[777]           Regarding the argument between Tyrone and Lollo in the car after the shooting, certain omissions in his statement were put to him. In respect of one of these omissions, he could not recall whether he had mentioned the matter in question to Joubert but said he definitely did tell Bonthuys. By that stage, however, the statements were already with the defence. In regard to several other omissions, he could not recall whether he had told Joubert and Bonthuys about these matters.

[778]           I have already mentioned [CF]’s statement of 5 August 2014 in which he purported to lay a complaint of assault against the Belhar police. He acknowledged that the content of that statement, in regard to where and how he was assaulted, differed totally from his oral evidence. He denied telling the police the version recorded in the statement. Moreover, on his version he went to Bellville, not Belhar, to lay the complaint. A search by Mr Menigo has not uncovered the Bellville complaint, assuming it was made.

[779]           [CF]’s allegation, in the police statement, that he was placed in a double-cab bakkie accords with No 5’s version.

[780]           The inconsistent versions of the police assault are very puzzling. If, as Mr McKernan put to [CF], Lollo was arrested on 4 August 2014, one can infer that the assault (and on [CF]’s version, the police convoy to Wellington) happened on that day. It would fit in with [CF]’s version that he made a complaint to the police on 5 August 2014. (In oral evidence, he said he laid the complaint a day or two after the assault.) However, he testified that he laid the complaint in Bellville, not Belhar. He disavowed the information attributed to him in the statement of 5 August 2014. As I have mentioned, he claimed not to know the police officer who took the statement; the statement was not in the language he spoke; and, according to him, it was not read back to him and he did not read it. (The officer who took the statement was not called by either side as a witness.)

[781]           Again one has to wonder why, if there was an assault (and No 5’s testimony confirms that there was), [CF] would have told two diametrically opposed versions. If the version in the Belhar statement were correct, he would have had no reason to depart from it when giving oral evidence. Conversely, if the oral version were correct, he would have had no reason not to tell the police that version. Neither version is particularly incriminating against No 5, so neither version could be said to represent an attempt by [CF] to make the case against No 5 worse.

[782]           Turning to aspects which might be thought to favour [CF]’s account, it is common cause that Lonty was in fact murdered in [LD] Cres and that Lollo was arrested a few days later. The ballistics evidence confirms that there were two shooters, and even confirms [CF]’s claim in the Joubert statement that the two firearms entrusted to the shooters were a 9 mm and a .45 ACP. The ballistics evidence supports [CF]’s evidence about the discussion in the car, where Tyrone said that his gun had jammed – four unfired cartridges were found at the scene, consistent with a jam having been cleared.

[783]           Another aspect of the discussion in the car was Tyrone’s alleged statement that, because his gun jammed, he hit Lonty on the head with the back of his firearm. The post-mortem report recorded a linear laceration over the right parietal aspect of the scalp (marked ‘4.o’) and three linear lacerations (marked ‘4.p’) to the left of laceration 4.o.^[215] The linear lacerations can be seen in one of the photographs of the deceased,^[216] and these might well have been caused by a blow (or blows) from the back of a firearm.

[784]            In regard to the motive for Lonty’s murder, it was not put to [CF] that Lonty had not shot at No 3 or that he was not a hit man for the Sexy Boys, with whom the TJs were at that time in conflict. There is nothing inherently implausible in the motive or in any other aspect of [CF]’s account of the fatal day.

[785]           If [CF]’s evidence were accepted, it would establish one or both of the charges of incitement (count 47) and conspiracy (count 48) to commit murder, though the State would only ask for a conviction on one or the other, and then only if the murder conviction failed.

[786]           As to the murder conviction (count 48), one has the same issue of hearsay that arises in relation to Johannes’ murder, viz that what Tyrone and Lollo said to [CF] in the car after the shooting would have been admissible against them but is not admissible as against No 5. As against No 5, the admissible evidence can be summarised thus:

(a)  No 5 instructed [CF] to fetch Tyrone and Lollo from Wellington.

(b)  Once they returned to [WG] Park, No 5 incited [CF], Tyrone and Lollo to murder Lonty.

(c)  No 5 arranged for them to receive guns from No 1.

(d)  [CF] fetched two firearms from [VL] Cres, and at the time he made his statement to Joubert he recalled that they were 9 mm and .45 ACP pistols.

(e)  That same evening No 5 received a call as to where Lonty was.

(f)  No 5 then instructed [CF], Tyrone and Lollo to depart on their mission.

(g)  [CF] dropped off the two shooters, and phoned them a short while later to tell them where Lonty was standing.

(h)  [CF] then made his way to No 1’s place, where Tyrone and Lollo arrived about an hour later.

(i)  Tyrone and Lollo handed their firearms back to Worsie.

(k)  The ballistics evidence shows that there were two shooters, one armed with a 9 mm pistol, the other with a .45 ACP pistol.

(l)  The murder happened in the vicinity described by [CF].

(m)  It was a few days after these events that the police summoned him and No 5 to the police station and assaulted them for information about Lonty’s murder.

(n)  Lonty was murdered on 30 July 2014. Pursuant to the events described by [CF], Lollo was arrested on 4 August 2014, which is a ‘few days after’ the murder.

[787]           In the totality of these circumstances, I think it would be too far-fetched a coincidence to suppose that two other shooters, armed with the same types of pistols, murdered Lonty on the night of the events described by [CF].

Counts 50-54 (murder of [Larry K])

[788]           These are the final set of uncorroborated [CF] counts. They charge No 1 with incitement to commit murder (count 50), No 1, No 7 and No 8 with conspiracy to commit murder (count 51) and murder (count 52), and No 7 and No 8 with unlawful possession of firearms and ammunition (counts 53 and 54). These crimes are alleged to have been committed on 17 October 2014.^[217]

[CF]’s evidence.

[789]           Early one afternoon (later he was uncertain whether it was morning or afternoon) [CF] was at No 1’s house. No 2 was working on his white Golf. No 7, No 8 and Worsie were also there. Several weeks earlier the Dixie Boys had shot at No 7 and No 8 at the Score Supermarket. This is a location which, according to other evidence, was a favourite hangout of the Delft TJs. According to No 1, a youngster, whose brother was a Dixie Boy, had spied on the TJs in advance of this shooting. No 1 told No 7 that he must point the youngster out to No 8. Worsie fetched two firearms, and No 7 and No 8 left.

[790]           After about 10 – 20 minutes a girl came down the road and said someone had been shot. After another 10 minutes or so, No 7 and No 8 returned to the house. They said to No 1, ‘The deed has been done’. They handed the guns to Worsie, showered, and came back onto the stoep.

[791]           [CF] read about [LK]’s murder subsequently in Die Son. He did not know [LK] by name or appearance.

Other State evidence

[792]           [Larry]’s mother, Mrs [LK], did not witness the murder. She testified that he was shot on 17 October 2014, the day of his matric valedictory. He was not a gangster. [Larry] was the youngest of her four sons. By the time she testified, three of her sons had died violent deaths. Her only surviving son was [TK]. He was a member of the 28s but not, according to her, a Dixie Boy, though this was alleged by others.

[793]            Const Van Wyk testified that a Ms Jeanine Affiand was a potential witness in relation to these charges. She did not want to accept a subpoena and later said in consultation that she feared for her life and those of her children and parents. (Mr Menigo made her available to the defence.)

[794]           [Larry] was murdered on Friday 17 October 2014 in Roosendal Rd, Delft. He was certified dead at 16:13. According to the post-mortem report,^[218] he suffered three gunshot wounds. Two bullets were recovered from the body. A ballistics examination^[219] established that they were .45 calibre bullets and were fired from the same firearm.

[795]           W/O B L Xakwe began her photographic investigation of the crime scene at 13:30,^[220] so the shooting must have occurred around lunchtime. She collected three cartridge cases. A ballistics examination^[221] revealed that they were all .45 ACP fired cartridges but it could not be determined whether or not they were fired by the same firearm.

[796]           Bonthuys, who was the investigating officer in [Larry]’s case from the outset, arrested No 7 for this murder on 29 October 2014. The case was enrolled for trial but later sent for an inquest.

No 1’s evidence

[797]           No 1 knew [Larry]. He used to visit their family home in [ST] Cres. No 1 was friends with [Larry]’s older brother, [OK], and was also acquainted with the other older brothers, [FK] and [TK]. It was put to him that [Larry] was shot for spying for the Dixie Boys. He replied that that could not be true. He knew [Larry] (ie [Larry] was not that type of youngster). His older brother [TK], however, was involved with various gangs, including the Fancy Boys. [FK] was also in and out of jail.

[798]           No 1 denied any involvement in [Larry]’s murder. No 1’s cousin, Selino, had died shortly before this. His funeral was to be held in Hermanus on Saturday 18 October 2014, followed by a reception at Hawston. On Thursday 16 October there had been a roudiens in Hermanus, and the male members of the family had been instructed to wear black suits to the funeral. On Friday 17 October (the date of [Larry]’s murder), No 1 had been responsible for organising black suits for himself, for his son and for Selino’s boy.

[799]           He had left [… VL] Cres mid-morning on Friday 17 October, accompanied by his girlfriend Jade and the latter’s daughter. He was driving a blue Toyota Corolla. First he drove Jade to NI City where she was to collect her the W Polo which was there for repairs. From there he drove to his father’s house to collect his son. He was there quite a while. He then drove to Selino’s place to collect his son. He also waited there a while before driving to Durbanville to collect his sisters boy. He and the three youngsters went to a suit-hire shop, after which he took them for haircuts. After dropping off the children, he and his sister’s child went to No 1’s mother’s house in Durbanville where he spent the night.

[800]           No 1 testified that he saw No 7 in Delft on the Friday morning, in front of Score. This was mid-morning. As far as he knew, No 8 was in Kleinmond, because No 8 contacted him to ask whether a general bus was coming past Kleinmond.

No 7’s evidence

[801]           No 7, who started working on taxis at a young age, testified that he knew No 1 because the latter often came to taxi association meetings with his mother. No 7 got to know No 8 when he started working at the Elsies River taxi rank. When No 8 began sleeping over at No 1’s project house at [… VL] Cres, No 7 joined him after a while.

[802]           No 7 testified that he did not know [CF] and had not clapped eyes on him until he saw him in the witness box in the present case.

[803]           No 7 said that he knew [Larry] from sight, because he lived in the community. It was put to him that according to [Larry]’s mother, [Larry] and he used to chat. No 7 replied that he could not remember. They were not friends although they might shout greetings to each other. It was put to him that according to reports [Larry] was a spy for the Dixie Boys. No 7 replied that this was not true; [Larry] was an earnest scholar and attended church.

[804]           [Larry]’s murder occurred during the period in which No 7 was sleeping over at [… VL] Cres. In cross-examination he was asked whether on 17 September 2014 (a month before [Larry]’s murder) he had been shot in the thigh while in Delft. He confirmed that he had been shot, but could not recall the date. He was not sure whether it was before or after [Larry]’s murder but conceded that it could have been in September 2014.

[805]           No 7 denied involvement in [Larry]’s murder. He denied that he was at No 1’s house on that day. He testified that he was working that morning at the taxi rank outside the Score Supermarket on Delft Main Rd. His job was to collect fares from the passengers. He was standing with one Pang, the husband of a Mrs Samsodien who ran a takeaway business inside the supermarket. While they were standing there, they heard a shot. Pang said that they should go and look. They went in the direction in which people were running. As they were doing so, a woman, apparently returning from the scene of the shooting, said that [Larry] had been shot dead. They could see a crowd of people at the scene. He told Pang that there were too many people and that they should turn back.

[806]           No 7 testified that he had seen No 1 earlier in the day, before about 10:00. He saw him coming out of [VL] Cres at the exit closest to Score and turning right towards Belhar. No 1’s daughter was in the car. He did not know if Jade (whom he knew from sight) was also in the car. No 7 testified that as far as he knew No 8 was in Kleinmond that Friday, because he was visiting his little daughter there.

[807]           No 7 attended Selino’s funeral on the Saturday. He knew Selino; Selino, he and No 1 had been arrested together in a case that landed him (No 7) in the Bonnietown reformatory. The family organised funeral buses. He took the Delft bus. No 8 was at the funeral, but did not travel on the Delft bus.

No 8’s evidence

[808]           No 8 confirmed his acquaintance with No 1 and No 7. He knew that No 7 had been shot. He did not know [CF] but when he saw him in court [CF] looked familiar.

[809]           He denied involvement in [Larry]’s murder, and testified that he was in Kleinmond the whole of Friday 17 October 2014. The driver of the taxi on which he worked sometimes took passengers on day trips to Kleinmond. On one such occasion he met a Rastafarian (this was Christopher Galant, who No 8 called as an alibi witness). In this way No 8 met Galant’s daughter, Suné. They began a relationship, and Suné fell pregnant. Galant told him that No 8 would have to play his part as a father. No 8 asked Galant if he knew of a place where he could stay in Kleinmond. Galant directed him to a Mr Stuurman at 19 Nerina St, Kleinmond, where No 8 rented a room.

[810]           He testified that by the time of [Larry]’s murder he was living in Kleinmond. He recollected the date 17 October 2014, because the next day was Selino’s funeral. During the Friday morning he had asked Galant if he could give him a lift the next morning to the Hawston road junction, where he was to be collected by one of the funeral buses. Galant indeed gave him a lift. He attended the funeral in Hermanus and the function afterwards in Hawston. No 1’s girlfriend Jade gave him a lift back to Kleinmond after the reception.

[811]           No 8’s evidence about the circumstances in which he came to take up residence in Kleinmond was called into question when it emerged that his and Suné’s daughter was born on 7 August 2015. Suné was unlikely to have been pregnant as a 17 October 2014, and would probably only have known that she was pregnant several months after she conceived. The fact that No 7 testified that No 8 had been in Kleinmond to visit his baby daughter rather suggest some discussion between No 7 and No 8 about the latter’s alibi.

[812]           When confronted with the foregoing, No 8 said that even before Suné was pregnant he had been very much in love with her. Kleinmond was a nice place. He had started living there before she fell pregnant. He could not remember how long he had lived in Kleinmond before she became pregnant.

Christopher Galant

[813]           No 8 called Galant to support his alibi. It is common cause that Galant is an habitual dagga smoker, and he looked to me to be rather ‘spaced out’. He has lived in Kleinmond all his life. He confirmed that No 8 and his daughter had produced a child. By the time of the events Galant described, No 8 had, according to him, been living in Kleinmond for a few months. No 8 was a regular visitor to Galant’s house.

[814]           He could not recall the date 17 October 2014. He did, however, know that on a particular Friday No 8 had asked whether he could give him a lift to the Hawston junction the next morning because No 8 needed to attend a funeral. According to him, No 8 visited him twice on that Friday. He (Galant) worked until noon, and the first visit was at some stage after he had got back from work and eaten lunch. The second visit was late afternoon/early evening. It was on the second visit that No 8 had asked for the lift.

[815]           Asked in cross-examination about precisely when No 8 took up residence in Kleinmond, Galant confirmed that when his daughter became pregnant he told No 8 that he would have to play his part, that No 8 had asked him to help him find a place to stay, and that he had referred No 8 to Stuurman. He was asked where No 8 had lived before this. He replied that No 8 did visit Kleinmond on and off. In re-examination he was reminded of his evidence in chief that No 8 had been living in Kleinmond for several months by the time he asked for a lift to the Hawston junction. He agreed that this was so, but said he did not know when No 8 had lived before moving into 19 Nerina St. He did not know whether, once No 8 started to reside in Kleinmond, he had been employed.

Discussion

[816]           There are no inherent improbabilities in [CF]’s version. There is some evidence that No 7 was the victim of a shooting incident. [Larry]’s older brother was reputed to be a Dixie Boy and was later to become the target of an attempted murder perpetrated by No 10.

[817]           It was put to [CF] that, according to his police statement, the shooting occurred in ‘October 2014’. He said that the date must have been inserted by Bonthuys. This is very likely; Bonthuys, who had been the investigating officer in [Larry]’s case from the beginning, knew the CAS number out of his head, and this would have given him the month and year of the incident. One knows that Joubert inserted the month and year into [CF]’s statement on Lonty’s murder, and I am sure Bonthuys did likewise in relation to [Larry]’s murder.

[818]           It was put to [CF] that, according to his police statement, the car on which No 2 was working while [CF] was at No 1’s place had the registration number CA 773-984. [CF] answered that he had not given the registration number to Bonthuys and did not know where Bonthuys got it from. Again, I am inclined to believe [CF]. It is most unlikely that he would have carried this number around in his head for 16 months and been able to repeat it when Bonthuys interviewed him in January 2016.

[819]           [CF]’s statement referred to No 7 as Kapadien. The statement recorded this person’s name as ‘Bradley Roberts’ (ie No 7). [CF] denied giving this name to Bonthuys. I have already made reference to the ‘Kapadien issue’ in connection with Piggels’ murder. Although Piggels’ murder occurred earlier in time, [CF] made his statement about [Larry]’s murder before the statement about Piggels’ murder. At that stage he was not yet aware of the confusion about two Kapadiens. It turns out, though, that in this instance the person [CF] intended to identify by the name Kapadien was in fact Bradley Roberts, No 7.

[820]           Mr Liddell on behalf of No 1 put his client’s alibi to [CF]. [CF] replied that he knew Selino had died but could not remember the date of, and did not attend, the funeral. No 1 may have organised suits and haircuts on the Friday, but he was at [VL] Cres at the time of the events described by [CF].

[821]           Mr Weeber put to [CF] that No 7 would testify that he did not know him. [CF] replied that No 7 did not know him well, because [CF] was from Belhar whereas No 7 was from Delft, but they were nevertheless acquainted, and No 7 knew him as ‘[…]’.

[822]           When Mrs de Kock was asked about No 7’s alibi, she said that she was aware of a takeaway conducted by Mrs Samsodien at the Score Supermarket. She was asked in cross-examination if she knew Mrs Samsodien’s husband, ‘Pang’. She did not know the husband’s name. She did know a person ‘Pang’ with the surname Dreyer, but he did not work there. Pang’s mother, Tasnien, worked for another store owner, Suleiman, but Suleiman’s shop was not in existence at that time of [Larry]’s murder. She did not see Pang (ie Dreyer) that day.

[823]           Mr Weeber put No 8’s alibi to [CF] who replied that on 17 October 2014 No 8 was in Delft.

[824]           No 7 and No 8 have tattoos of the TJs and 28s.^[222] No 7 has the following words tattooed on one of his legs: ‘My aim was 2 be a rich man but my friend(s) made me a killer and my reward was behind bars’. On his other leg is a pistol image, the firearm name ‘Norinco’ and the words ‘Trigger Happy’. It is not in dispute that No 7 and No 8 have in the past given No 1’s house in Kleinmond as their residential address.

[825]           No 7 does not really offer an alibi defence. He was in the vicinity of the crime when it was committed. He did not call Pang to corroborate his alibi.

[826]           No 8’s alibi is suspect, given the inconsistency of his account about the circumstances in which he came to take up residence in Kleinmond. There are discrepancies between his and Galant’s version about when, during the course of the Friday, he asked for a lift to the Hawston junction. On the other hand, there is no reason to doubt that Selino’s funeral took place on Saturday 18 October 2014. Galant supports No 8’s version that, on a particular Friday, No 8 asked him for a lift to the Hawston junction in order to attend a funeral, and there is no evidence that No 7 attended any other funeral in that part of the world.

[827]           Mr Menigo argued that even if No 8 was in Kleinmond at some stage during the Friday, he could have been in Delft earlier in the day. We do not know precisely when [Larry] was shot, but police officers were on the scene by not later than 13:30. It is a fair inference that [Larry] was shot not more than half an hour before 13:30. The evidence is that it would take at least an hour to drive from Delft to Kleinmond. Based on my own knowledge of the routes from the Peninsular to Kleinmond, I think one and a half hours is closer to the mark. And unless No 8 had a vehicle at his disposal (and there is no evidence that he did), he would have needed to take a taxi, which would have added considerably to the delay.

[828]           In the circumstances, if one accepts Galant’s version as to when he first saw No 8 in Kleinmond on the Friday (shortly after lunchtime), it seems unlikely that No 8 could have been in Delft as late as 13:00.

[829]           There is nothing inherently implausible about No 1’s account of his movements on Friday 17 October 2014. They would fit in with a family funeral to be held the next day. Although No 1 was vague as to precisely when during the morning he left [VL] Cres, his version is inconsistent with his still being there at around 13:00.

[830]           Assuming for the moment, however, that [CF]’s evidence were accepted, it is clear, in context of all the facts, that the events he described took place on the day [Larry] was murdered, even though [CF] himself could not remember the date. The statement No 7 and No 8 made to No 1 upon their return is, in context, a ‘confession’, and No 1’s lack of protestation when he received the report amounts to incriminating silence.

[831]           On [CF]’s evidence, the charge of incitement (count 50) would be made out against No 1. The charges of conspiracy (count 51) and murder (count 52) would be made out against No 1, No 7 and No 8. The charges of possessing the firearms and ammunition (counts 53 and 54) presents a technical difficulty. Although [CF] testified that both No 7 and No 8 were handed firearms, the ballistics evidence does not establish that two firearms were actually used. If only one firearm was used, we do not know whether No 7 or No 8 was the shooter. It can safely be assumed, from the ballistics evidence and the fatal effects, that the firearm and ammunition used by the actual shooter complied with the statutory definitions of ‘firearm’ and ‘ammunition’, but we do not know that the same is true of the other firearm. (This is the same difficulty Mr Menigo pointed out in relation to No 3/ counts 27 and 28.) Since joint possession of both firearms would be difficult to infer, one might paradoxically have to convict both of them of murder by shooting while acquitting both of them of possession of unlicensed firearms and ammunition.

Miscellaneous matters bearing on [CF]’s credibility

[CF]’s upbring and places of abode

[832]           [CF] was extensively questioned about the various places he has lived since childhood and how he was initiated into the gang world. Little purpose would be served in trawling through the evidence. In chief he gave what he may have believed to be a sufficient overview. As this was probed during cross-examination, it emerged that at various stages along the way he had also resided for varying lengths of time in other places.

[833]           After a more detailed account had emerged during Mr Liddell’s cross-examination, Mr McKernan asked whether he had ever lived in Wetton and he replied in the negative. Later Mr McKernan confronted him with the statement he made to Joubert about Lonty’s murder, in which he said he grew up in Wetton. He confirmed that he told Joubert this.

[834]           It emerged that Wetton was the place where he stayed with the Muslim family whose daughter he was courting. He did not actually grow up there. He moved there from Valhalla Park when he left school in Grade 10. While living in Wetton, he went to a Muslim religious school in Ottery and (for about six months) to another Muslim school in Johannesburg.

[835]           He was challenged as to why, earlier, he had denied having lived in Wetton. He replied that he had asked me whether he needed to talk about the family at whose garage he had worked. It is correct that [CF] was reluctant to talk about this family because he did not want to embroil them in his troubles. When [CF] raised this with me, defence counsel did not try to persuade me that details about that family were relevant, and the subject was not further probed. Although [CF]’s interaction with me was not specifically in the context of whether he needed to answer questions about where he had lived, I think his failure to disclose Wetton earlier in his evidence was attributable to his desire to shield the Muslim family. It was not a detail the disclosure of which would have damaged him or benefited the accused.

[836]           He was also challenged with reference to an allegation in his statement to Joubert that he moved back to Belhar in 2002, whereas in his oral evidence he had placed this in 2004/2005. [CF] replied that he spent only one day with Joubert and had no later opportunity to correct the statement. He may have made a mistake with Joubert but the account he gave in court was true.

[837]           Once again, this is not a detail about which [CF] had any motive to be dishonest. Based on the timeline he provided, it seems that the version he gave in court was probably correct. He was born in 1984, and said that in around 1999/2000 he left school to live with the Wetton family (ie when he was 15 or 16). He spent several years in a Muslim school, then married the family’s daughter and lived with her in Wynberg for a time. It is thus unlikely that he left Wynberg as early as 2002. He testified that after he left his wife, he moved back to Valhalla Park where he stayed with Colin Stanfield’s nephew, before moving back to Belhar in around 2004.

[838]           The ‘mistake’ he made in the statement to Joubert is not a serious dent on his credibility. Given the many different places in which he has lived, I do not find it surprising that, when talking to Joubert about events that lay more than 10 years in the past, he fell into error or simply short-circuited a more detailed (though largely irrelevant) account of his early years.

[839]           Mr McKernan put to him that in the Joubert statement he claimed that when he moved back to Belhar, No 5 was the leader of the Belhar TJs, and that by that time he himself ([CF]) was already deeply involved with The Firm. He was asked whether he had told Joubert this. He replied that if it was in the statement, he did tell him. It was put to him that what he told Joubert was inconsistent with the picture he had sought to create of being inveigled into the gang world by No 5. [CF] replied that in school he had belonged to the TSWs, who were affiliated to The Firm, but the TSWs did nothing like the Belhar TJs. After he left his Muslim wife, he moved back to Valhalla Park and helped Stansfield’s nephew who ran ‘smokkel houses’ for Stansfield. This involved collecting liquor from lawful outlets and delivering it to clubs.

[WG] Park

[840]           Mr McKernan challenged [CF]’s evidence about the period for which he resided with No 5 at [WG] Park. I have already referred to No 5’s evidence in that regard. No 6 testified that he moved into [WG] Park after [CF] left, and that there was no stage when the two of them shared the flat with No 5. [CF]’s version that he was still residing at [WG] Park in October 2013 (when Davids was murdered), that he was no longer living there when Kleynhans was murdered (22 July 2014) but that he had moved back by the time of Johannes’ murder (24 July 2014), despite the fact that he suspected No 5 of wanting him dead, is dubious. Mr McKernan pointed out that in his bail application following his arrest on 19 September 2012, [CF] gave [… LD] Cres as his address, while in another matter following his arrest in March 2013 he gave an address in Brackenfell. Although [CF] testified that he and other gang members would not necessarily provide correct addresses in bail applications, the fact that he did not furnish [WG] Park as his address on these two occasions is consistent with No 5’s version.

[841]           In respect of the police raid of 28 August 2012, it is not in dispute that a substantial quantity of contraband was seized. [CF] testified that in a statement to Bonthuys he had incorrectly named Keegan Walters as one of the persons arrested whereas it was in fact Warra. There are significant differences between what [CF] told Bonthuys and what the relevant police docket identifies as the items seized. (In the statement he identified the contraband as 70 boxes of 9 mm rounds (about 840 rounds), R38 000 in cash, 1015 mandrax tablets and 350 g of tik. The docket indicates 60 rounds, R3400 in cash, 946 mandrax tablets and 184 packets of tik.) [CF] insisted in court that what he told Bonthuys was correct. Mr McKernan put to [CF] that No 5 had been unaware of the contraband’s presence. [CF] said that if he put the drugs in the stove, this would have been on No 5’s instructions. But in fact, he said, there was tik on the counter when the police arrived.

Miscellaneous peripheral matters

[842]           It would burden an already lengthy judgment if I were to go through all the cross-examination to which [CF] was subjected on collateral criminal activity (an alleged shooting by No 5 in Sonata Way, seemingly prior to 2008; [CF]’s first drug arrest in 2008/2009, where he was acquitted; his arrest in 11 October 2011 for possessing mandrax and tik and in which he implicated No 5; the August 2012 incident sketched above; the attempted murder of ‘Katjies’; the attempted murder of Toppie for which he was arrested on 19 September 2012 and in which again he implicated No 5; the alleged pointing of a firearm for which he was arrested on 8 January 2013 (the complainant being a person who used to deal in drugs for the TJs); his arrest on 8 March 2013 for dealing in tik and mandrax; and his arrest on 18 August 2015 for theft of a motorcar (it was during his incarceration following this arrest that he turned State witness).

[843]           He was asked whether he ever stayed in jail in order to become a gangster. After a significant pause, he said he could not remember. I was not confident that he was answering truthfully. One of his Bonthuys statements was then put to him in which it was said that in 2008 he had chosen to remain in jail to become a member of the 28s and was initiated as a probationer in the 28s’ Silver Line. He confirmed that this was so, but said it happened following the 2011 arrest, not the 2008 arrest. At that time, No 3, No 5 and Lollo were in custody for the murder of Denzel. No 5 had a high-powered legal team, and when he was released on bail he told [CF] that he could not afford to fund [CF]’s bail. [CF] had stayed in prison because No 5 could not pay his bail.

[844]           He was tackled about affidavits he made in support of bail, in which he gave false addresses or false information as to employment. Again, a lengthy discussion on these matters is not warranted. He testified that they only gave true addresses if they were arrested at the address in question; otherwise, if one gave a true address, the police would go and search it. (This does not, however, seem a very convincing reason not to give [WG] Park as his address, if it was where he was really residing, because that address was already well known to the police.) As to employment, he claimed that the lawyer told them that, to help with getting bail, they should give the name of an employer. The lawyer asked if they did not know someone with a company.

[845]           Given the serious criminal activity in which [CF] admittedly engaged over a number of years, one would not have expected him, during that period, to have been honest with the authorities. He did not hold himself out as having been a moral person during his years as a TJ. The question is whether, having decided to become a State witness, he has endeavoured to tell the truth.

The knife issue

[846]           The main attack on [CF]’s credibility, on matters not directly related to any of the counts, has to do with what happened in Goodwood prison after he was arrested on 18 August 2015 for the theft of a motor vehicle. He testified that he was not guilty of this offence. A taxi driver, Estiaan, had asked him to tow the vehicle for him. Anyway, he was deposited into the Goodwood prison.

[847]           Some weeks later a fellow TJ in his cell, one ‘Kaks’, warned him that No 5 was planning to have him killed: the plan was to use [CF]’s brother (No 3) to pay his bail, after which he would be lured to Wellington and shot. Kaks said that if he did not believe him, he should go to another section and ask Flowers and Pang, because the whole prison knew about it. A warden allowed [CF] to visit that section, and they confirmed the story.

[848]           Pang asked [CF], who was still a probationer in the 28s, what prison rank he wanted, [CF] replied that he would like to be an Mfako, the same rank Ginger had held. Pang later reported to [CF] that he had phoned No 1 who had approved the request. No 1’s approval was sought because he was the Mkoni. I asked [CF] why, if he was trying to extricate himself from the gang, he sought promotion in the 28s. He replied that he was ‘playing the game’. Up to this time he was still in contact with No 2, who sent him airtime in prison.

[849]           After being made an Mfako, [CF] was told by Flowers that he had to stab another prisoner to death (a person who had been caught with Gobie’s drugs). In [CF]’s words, he was instructed ‘dat ek moet my nommer gaan vasslaan’ (ie prove himself). [CF] decided to tell the warden about the instruction and that he feared for his life. He also told the warden where in the cell the knife for the attack was hidden. This was not, he said, a conventional knife but a blade melted into a toothbrush.

[850]           Following this report to the warden, Mr Jacobs (the prison’s Supervisor: Internal Security) took [CF] to the prison head, Mr Hanekom. By this stage, according to [CF], the knife had been found, and Jacobs took it with him when he accompanied [CF] to see Hanekom. Following this interview, [CF] was transferred to the hospital section, where he remained until he was released on bail.

[851]           [CF] testified that he was originally placed in ‘section G6D’ of the prison and that the warden allowed him to go to ‘section G6C’ to speak with Flowers and Pang. However, according to admissions made at the conclusion of the State’s case,^[223] it was recorded that from 20 August – 3 October 2015 [CF] was kept in ‘C2’, and that other inmates in C2 during that period were Kaks and Flowers. There is a disjunct between the mode of describing cells in [CF]’s evidence on the one hand and the admissions on the other. What can be said, however, is that if [CF] was taken to another section to speak with a prisoner, it might have been Pang but that he would not have needed to go elsewhere to speak with Flowers.

[852]           The point about the knife is this. Hanekom, who was called as a State witness, testified that there was no knife when Jacobs brought [CF] to see him. Hanekom ordered that there be a search for the knife. He subsequently got a report that no knife was found. It was formally admitted by the State that no knife or sharpened object was found over the period 20 August – 6 November 2015.^[224] The State also admitted^[225] (a) that designated Correctional Services officials perused the registers of searches and confiscations for that period and that no record of a knife being found is recorded in the registers; and (b) that Jacobs made a sworn statement indicating that he had received information as to where the knife was allegedly hidden by [CF] but that he never recovered it.

[853]           No 1’s counsel called Jacobs as a defence witness. Before his evidence began, I raised with counsel whether it was permissible to call a witness on what was arguably a collateral issue of credibility. Mr Menigo did not object to the evidence, on the basis that it was relevant to [CF]’s truthfulness on how became a State witness. I allowed Jacobs to testify. He was an unimpressive witness. It was unclear to me how much he actually remembered and how much was based on reconstruction.

[854]           Jacobs testified that he received a report about a hidden knife. He himself did not search for it. That would have been the job of the section officer, and such officer would not have made a report unless he had found a knife. Jacobs almost immediately contradicted himself by saying that no knife was found, and in cross-examination he stated that the section officer reported to him that there was no knife. He agreed that if the search was conducted, it should have been entered in the search register. When asked whether the register did record a search, his answer was that he assumed so. He testified that after receiving the report he took [CF] to Hanekom because [CF] believed his life was in danger and because of the knife. Despite the absence of the knife, they had to take [CF]’s allegation seriously.

[855]           Despite Jacobs’ unimpressive performance, I must conclude that [CF]’s evidence about the knife having accompanied them to the Hanekom interview is incorrect. What is beyond doubt is that he made a report to Hanekom about having been instructed to stab an inmate and that he feared for his life; that he tendered information about gang activity; and that on the strength of this information Hanekom caused him to be placed in the hospital section for his own protection.

[856]           Defence counsel naturally submitted that [CF]’s evidence about the knife, and indeed about the supposed instruction to stab an inmate, was a deliberate fabrication. One needs to distinguish, in this regard, between the truthfulness of what he told Jacobs and Hanekom and the truthfulness of what he told the court.

[857]           As to the former, one must assume that when [CF] was taken to Hanekom, no knife had yet been found by the authorities, ie one must assume that Hanekom’s version is correct as to what [CF] told him. When [CF] told Hanekom that there was a hidden knife, one possibility is that this was the truth, in which case the knife disappeared by the time the authorities searched for it.

[858]           The other possibility is that there never was a knife, in which case one would have to conclude that [CF] spun this story in order to enhance his prospects of getting protection from the prison authorities. What is puzzling about this alternative is that, unlike a version told in court some years after the event, the truthfulness of what he was telling the warden, Jacobs and Hanekom could immediately be checked. Indeed, it was. [CF] must have known that if he told them where the fictional knife was hidden, they would go and look for it and not find it. Defence counsel submitted that although this might seem improbable behaviour from a rational person, [CF] was the type of person who did not think through the consequences of his actions, instead believing that he could get away with things.

[859]           As to what [CF] told the court, it was factually wrong but was it deliberately so? Why would [CF], if he knew it was false, tell me that Jacobs had the knife in his hand when he took him to see Hanekom? He would have known that both Jacobs and Hanekom could refute it. If the true facts were that the knife was not in Jacob’s possession when they went to see Hanekom, and that he told Jacobs and Hanekom where the knife was hidden, he could have told me this. It was an entirely peripheral detail with no direct bearing on the trial or on his own position as a s 204 witness. Once again, though, defence counsel asked me to treat [CF] as a person who did not look ahead in this way.

[860]           At very least, [CF]’s evidence about the knife is a serious dent on his reliability on a matter which is admittedly peripheral. One cannot exclude as a reasonable possibility that his testimony on this issue was a fabrication.

History of drug use

[861]           Defence counsel submitted that [CF]’s long history of drug use may have affected his mind and memory, and may even have caused him to hallucinate. From my observation of him in the witness box, and his command of detail, I would discount that possibility.

[862]           A peripheral aspect I can mention in regard to drug use is this. [CF] testified that he started using tik in 2003 after he had stopped working at the Wetton family’s garage. However in a different part of his cross-examination, in dealing with his relationship with No 5, he testified that while he was still living in Wynberg (ie working at the garage) he and No 5 used to smoke tik with girls from Bokmakkerrie. I mentioned that I had a note of his earlier evidence to the effect that he had only started using tik after he left the garage. He said that was not correct. (I subsequently checked the transcript, and my note was correct.)

Overall assessment of [CF]’s performance on the ten sets of counts

[863]           Overall, [CF] fared fairly well on the counts relating to Joey Louw’s murder (counts 3-4), the Anreith attempted murder (counts 5-8), and the murders of Johannes (counts 43-46) and [Larry K] (50-54). The same is true of the evidence he gave in respect of Mablou’s attempted murder (counts 14-17), which I dealt with earlier. In respect of the Anreith attempted murder, I should mention, though, the fact that the ballistics evidence indicates that far fewer shots were fired than is suggested by [CF]’s evidence, though in this respect he may be guilty of no more than exaggeration.

[864]           He faired distinctly less well on Sharkey’s murder (count 9-13), where he erred in identifying No 4 (who was then in custody) as a person present at [VL] Cres, and where his description of the shooting is inconsistent with the medical evidence.

[865]           In regard to Mablou’s murder (counts 18-21), what tells in [CF]’s favour is that it represented a natural progression from No 9’s unsuccessful attempt on Mablou’s life three months earlier. The motive for the attempted murder and murder (to assassinate the person believed to be responsible for Ginger’s death) was plausible.

[866]           But there are also significant problems with [CF]’s version on the Sharkey counts. Again he wrongly identified No 4 as one of the persons present at [VL] Cres. More importantly, he placed Tyrone at the centre of the action. At no stage did [CF] offer as a possibility that some other acquaintance of his, who perhaps looked similar to Tyrone, may have been the person he was thinking of. If he genuinely recalled an occasion where Tyrone, having spotted an enemy whom the TJs wanted killed, directed him to drive to No 1’s place, it could not have been associated with Mablou’s murder.

[867]           In regard to the murder of Piggels (counts 22-25), there are three main criticisms of [CF]’s evidence. The first is that it is at odds with Piggels’ statement that there was only one shooter, and that this shooter was Dagga Baas, not No 11. Although the ballistics evidence does not rule out the presence of a second shooter armed with a revolver, such evidence is compatible with a single shooter armed with a pistol. The second criticism is that he chopped and changed as to precisely what he observed of the shooting itself. The third is his somewhat bizarre account of the Tygerberg Hospital incident.

[868]           As to Leon Davids’ murder (counts 26-34), the main criticism is his identification of a blue Fiat Uno as the vehicle driven by No 4 to convey the attack party to and from the murder scene. I must find on the evidence that although No 4 at that time owned a silver Uno, the car was with his mechanic and not in a driveable condition. I must also find that it is at least as likely as not that No 4 did not own or drive a blue Uno at this or any other time. If [CF] was recalling an actual incident where No 4 drove his silver Uno, it could not have been in connection with Davids’ killing.

[869]           In regard to Neano Kleynhans’ murder (counts 39-42), the main question-mark over his evidence is the firearm mishap, which is rendered unlikely by W/O Truebody’s testimony. There is also a concern associated with inherent probabilities: would Neano have remained at the bollards if he had taken fright at [CF]’s warning?

[870]           In regard to Lonty’s murder (counts 47-49), the most troubling aspect of his evidence is the discrepancy between his oral evidence about the police assault/Wellington convoy and the complaint affidavit he signed on 4 August 2014.

[871]           There are no established inaccuracies or inherent improbabilities in [CF]’s evidence relating to [Larry K]’s murder.

Consistency with objective facts

[872]           Of the 10 sets of counts now under consideration, eight involved ballistics evidence which could be compared with his testimony about the number of shooters and the kinds of firearms used. (The two counts where he did not give evidence touching on these matters were the murders of Kleynhans and De Kock.) In no instance did the ballistics evidence positively refute [CF]’s version, though it does show that in the case of the Anreith shooting his account as to how many shots he and No 6 fired was exaggerated.

[873]           Having regard to the range of permutations, the statistical likelihood that in all eight instances a fabricator’s evidence would coincidently accord with the ballistics evidence might be considered to be relatively low. A similar observation applies to the fact that [CF]’s evidence as to where the various incidents happened, and more or less when during the day or night they occurred, has been shown to accord with the objective facts. However, this is not a significant safeguard against false implication of the various accused. [CF] may have had sources of information – whether from personal involvement, gang talk, community chatter and newspapers – to give accounts which were broadly consistent with objective facts.

Circumstances in which he turned State witness

[874]           A general consideration which might be thought to be in [CF]’s favour is that on none of the sets of counts about which he testified was he the subject of suspicion when he first disclosed information about those crimes to the police. Most of the dockets were cold cases, and there do not seem to have been any current investigations against the accused whom he implicated. The police did not identify the matters on which they wanted information; it was [CF] who identified crimes on which he could provide information. Most of them became the subject of the present trial. Others have either not been pursued or are the subject of ongoing investigation.

[875]           When [CF] decided to cooperate with the authorities, he was under no compulsion to provide information about all these crimes. If he wanted protection, and if he only had personal knowledge about two or three crimes, it might have sufficed for him to give that information. If in truth he had no information to give but he wished to lie, it would have sufficed for him to fabricate information about two or three crimes. The fact that he identified 11 (and more) crimes does not strike one as the conduct of a person who was just making up stories.

[876]            What also lends some verisimilitude to his evidence, overall, is that his own role, as recounted by him, varied from case to case and that the extent to which he implicated others varied in intensity from case to case. In some cases he was himself a shooter; in other cases he was an accomplice; in yet others he merely heard and observed others planning crimes. Sometimes he saw one or more accused actually perpetrating the crimes. In others he only saw them departing on missions but did not see them executing the missions.

Overall assessment of the accused’s testimony

[877]           For reasons I have already explained, I will be convicting No 9 on counts 14-17; No 1 and No 2 on counts 35-38 and 71; No 10 on counts 59-62; and  No 11 and No 12 on counts 55-58 and 67-70. It follows that these accused gave dishonest evidence on these counts. However, and as Mr Menigo acknowledged, the fact that they were lying witnesses in respect of these counts is not in itself a basis for concluding that their denials of complicity in respect of the other counts are also dishonest. Except in relation to counts 14-17, the said accused’s dishonesty pertains to counts in respect of which [CF] did not testify.

[878]           Because the State had to rely exclusively on [CF]’s testimony to identify the various accused as the perpetrators of the crimes now under consideration, Mr Menigo had relatively little charge-specific ammunition when cross-examining the accused. Although generally the accused’s defences amounted to ‘bare denials’, if they were truly innocent one would not expect them to be able to remember, a number of years later, where they were on the dates on which the crimes were committed. They could thus do little more than deny involvement. One exception is [Larry K]’s murder, where the date of Selino’s funeral enabled No 1 and No 8 to give a more detailed account of their whereabouts at the time.

Other evidence of the accused’s gang associations

[879]           In regard to No 1’s position as the Delft kingpin, and No 2 as No 1’s close associate, [CF]’s evidence gains some support from [CS], who identified No 1 and No 2 as persons associated with the supply of drugs from No 1’s house in [VL] Cres.

[880]            [CF] was asked in chief to provide commentary on each of the accused. He identified all of them as belonging to the TJs though he prevaricated on whether No 3 was actually a member or simply a person who dealt in drugs for the TJs. He identified the areas in which the TJs operated and the leaders in each of those areas. He was not challenged on his evidence that he occasionally attended Ernest Solomon’s birthday parties in Hawston or that the latter’s nickname is ‘Lastig’(which can be translated as ‘Terrible’).

[881]           A further factor which lends credence to [CF]’s testimony about the accused’s TJ membership is thus. There is no doubt that [CF] himself was for about 10 years a member of the TJs. It must follow that he was acquainted with a number of other men who were also members of the gang. Even if his identification of specific accused as perpetrators of particular crimes were unreliable, it is wholly fanciful to imagine that, in his statements to the police, he would have identified, as perpetrators, persons who were not members of the gang when it was within his knowledge and power to name persons who were members.

[882]           There is evidence^[226] of Terrible Josters/TJ graffiti, often in association with graffiti of the 28s, in Delft, Belhar, Bishop Lavis, Paarl East, Ravensmead, Kleinmond (including on the wall of a property belonging to No 1 in Nerina St, Kleinmond^[227]) and in the vicinity of [WG] Park.^[228]

[883]           Social media images and police photographs provide further support for the existence of, and the accused’s association with, this gang. The social media images were downloaded by Bonthuys from phones and Facebook accounts of various accused. Const A van Wyk, who testified, was present when this was done, although he was vague or inaccurate as to the precise phones and accounts from which the images came. In my view, the social media images were admissible to the extent that a witness was able to identify the persons pictured therein.

[884]           The social media images show the accused and their associates displaying certain hand signs alleged to be those of the 28s and the TJs. The hand signs used by the 26s, 27s and 28s are not in issue (a fist with extended thumb, a fist with extended thumb and extended pointer finger, and a fist with extended thumb and extended pointed and index fingers, respectively). [CF] testified that the Delft TJs used a hand sign involving an extended thumb and index finger. When first interviewed by the police about gang hand signs, he told them that the TJs did not have a hand sign. However, at a later interview, when they showed him images of this particular hand sign, he said that he now remembered that the Delft TJs used it.

[885]            The accused denied that their display of the hand signs in question was gang-related. They were simply ‘posing’. As I mentioned previously, images of other persons displaying similar hand signs – rappers, soccer players, even the investigating officer, Const van Wyk – were handed up. While I accept that these hand signs may on occasion be used innocently, there is enough evidence of the accused’s association with the 28s and the TJs to justify the conclusion that they used these hand signs to show their gang affiliations.

[886]           As to the tattoos, the accused variously testified that they got the tattoos under duress, or in order to gain protection in prison, or simply to copy something they thought ‘cool’. When the evidence is viewed in its totality, these explanations seem spurious to me.

[887]           The evidence from the social media images and police photographs can be summarised thus:

(a)  No 1: In one photo,^[229] No 1 and No 2 appear in a larger group which includes Brandon de Vos (Worsie) and Effraim Presence (the person involved in Botes’ murder). In the beach photograph,^[230] No 1 is in the company of (among others) No 2, No 4, No 7, No 10 and No 11. He is displaying the TJ hand sign. Other members of the group are displaying TJ or 28s hand signs. In a third photograph,^[231] No 1 and No 7 are pictured together, each displaying the TJ hand-sign.

(b)  No 2:  As mentioned above, No 2 appears in a photograph together with No 1, Worsie and Presence. In the beach photograph, No 2 is displaying a TJ hand sign. In another photograph,^[232] No 2 is pictured at a campsite with Wendell Tarantaal and Presence. It will be recalled that according to [CF], Tarantaal’s mother supplied No 5 with drugs. In yet another photograph No 2 appears with Tarantaal’s de facto father, Elton Graaff @Saygo, who is displaying the 28s hand sign while No 2 is showing the TJ hand sign.

(c)  No 3: His arms have a ‘Sexy Boy’ tattoo but an attempt has been made to smudge out the word ‘Sexy’.^[233]         

(d)  No 4:  He appears in the beach photograph but his hands cannot be seen.

(e)  No 5:  No 5 has tattoos of the 28s, including their slogan ‘Sun Down’.^[234] There are photographs of Sergio Bruiners, whose family home is [… LD] Cres, next door to No 5’s family home. According to Van Wyk, No 5 was often seen in the company of Sergio Bruiners and Moeneeb van der Ross. According to Van Wyk, Bruiners has a ‘Terrible’ tattoo which he has tried to mask by having his name tattooed over it, though I confess that I find it difficult to make this out from the photo.^[235] Van der Ross aka Neepie has 28s tattoos,^[236] and according to Van Wyk he is also a TJ.

(f)  No 6:  He has 28s tattoos.^[237]       

(g)  No 7:  No 7 and No 8 appear together in a photograph, each displaying the 28s hand sign.^[238] In the beach photograph No 7 is displaying a TJ hand sign. In the photo with No 1 mentioned earlier, both of them are displaying the TJ hand sign. He has Terrible Joster and 28s tattoos.^[239] He has the following message tattooed on his leg: ‘My aim was 2 be a rich man but my friend(s) made me a killer and my reward was behind bars.’ On the other leg there is a tattooed pistol above which appears the firearm name ‘Norinco’ and beneath which are the words ‘Trigger Happy’ and further text which is hard to decipher. ^[240]

(h)  No 8:  There are photos of him displaying the 28s hand sign.^[241] He has the word ‘Terrible’ tattooed on his chest, ‘TJ’ on his right hand and ‘XXVIII’ on his arm.^[242]

(i)  No 9:  (Nothing.)

(j)  No 10:  In the beach photo, No 10 is displaying a hand sign though it is difficult to know which one it is. On his back are tattooed the letters ‘TBL’^[243] which, according to Van Wyk, stand for ‘Timberlands’, a Delft gang taken over by the TJs. No 10 testified that he got this tattoo because he liked the clothing brand Timberlands, an explanation I find wholly contrived.

(k)  No 11:  In the beach photograph, No 11 seems to be displaying the TJ hand sign. In another photo^[244] No 2 and he can be seen with Saygo displaying the TJ hand sign.

(l)  No 12:  He has the following tattoos: ‘Terrible Josters’, ‘TJ’,  ‘28’ and ‘2VIII’.^[245]

[888]           Other miscellaneous evidence of associations between the various accused include the following:^[246]

(a)  Lena de Kock’s evidence associates No 1, No 7, No 8 and No 10 as Delft TJs.

(b)  Const Moerat testified about an occasion (a crime scene in Matroosfontein where the victim was No 1’s girlfriend, Jade) where he observed No 1 talking with two well-known 28s, John Piedt @Jonas and Jaggers. It was in Piedt’s BMW that George Stevens’ licensed firearm was seized a week after his murder. Sgt Theo van Wyk testified that Piedt was well known to him as a TJ and 28. [CF] identified Jaggers as the TJ leader in Kreefgat and Bonteheuwel. According to [CF], he was with No 5 at Jaggers’ place in Kreefgat on the night before Tyrone was murdered.  

(c)  In an unrelated case in 2011, No 2 and No 4 were arrested together.

(d)  In an unrelated case in 2012, No 4 was arrested together, inter alia, with Jerome Douries @Kaks, the TJ who allegedly warned [CF] in Goodwood prison.

(e)  In August 2012 No 5, [CF], Tyrone and Monray Jack @Warra were arrested together at [WG] Park.

(f)  In unrelated cases, No 6 has previously been arrested in the company of Van der Ross, Keegan Walters and Bruiners.

(g)  No 7 and No 8 have both in the past given No 1’s house in Kleinmond as their residential address.

(h)  In an unrelated case, No 7, No 8 and others were arrested together.^[247]

(i)  [MT] identified No 9 as a TJ who was always in the company of his cousin Tyrone.

[889]           I thus find that there exists, on the Cape Flats and beyond, a gang called the Terrible Josters and that all the accused belong to it. I also find that No 1 occupied a leadership position in Delft. Not only does he live at [… VL] Cres, in a street identified as a TJ stronghold; he also owns two other houses in the same street. I am less confident as to No 5’s leadership position in Belhar which I do not think has been proved beyond reasonable doubt. What can be said is that when the accused denied their gang membership in the witness box, they were being dishonest.

[890]           The fact that they were dishonest about gang membership may, in a general sense, make it more likely that they were involved in crime. However, it does not in my view provide a significant safeguard against false incrimination by [CF].

Final conclusions on uncorroborated [CF] charges

[891]           In discussing [CS]’ evidence, I summarised the principles relating to single and accomplice witnesses. In all the counts now under consideration, [CF] was a single witness on the crucial question of identification. In five of the 10 sets of counts he was, on his own version, a direct accomplice while in the other five sets of counts he was, on his version, a person who was privy to information by virtue of his gang association with the alleged perpetrators.

[892]           In only one instance is there evidence which might be thought to constitute corroboration, namely Ms Jacobs’ evidence about the Green Monster sticker on the getaway vehicle used in Johannes’ murder, but such ‘corroboration’ has its own complications because of Ms Jacobs’ certainty that the vehicle was a Ford Focus which, shortly after the incident, she confidently described as grey, whereas [CF] said that the relevant accused were driving a white Golf 4.

[893]           The circumstances in which [CF] became a State witness are a factor in his favour when assessing his credibility. Beyond this, I would not attach much significance to the fact that he has offered testimony against persons who were his allies, and in some instances even his friends. In the case of No 5 and No 6 there are reasons why, by the time he was cooperating with the authorities, he may not have felt the same loyalties as before.

[894]           I have also explained how he might have acquired knowledge, from personal participation and otherwise, about the basic circumstances in which the various crimes were committed. Accordingly, and to the extent that his testimony is consistent with objective evidence, such consistency does not provide material assurance that on the crucial issue of identification his evidence is reliable.

[895]           Most importantly, in a number of sets of charges his evidence is bedevilled by serious inconsistencies with other proven facts, and in no set of charges is his evidence free from at least some criticism.

[896]           In order to convict the accused on any one set of charges, I need to be satisfied beyond reasonable doubt of the reliability of [CF]’s essential version on that set of charges, including his identification of the relevant accused. I think it unlikely that his evidence is unreliable and inaccurate across the board. However, it is not sufficient that his evidence is probably reliable on most or even all of the charges. If it is a reasonable possibility that his evidence is not reliable on at least some of the charges, I can only convict if satisfied beyond reasonable doubt that a particular set of counts falls into the reliable rather than the unreliable category. I cannot convict some of the accused on some of the counts on a purely statistical conclusion that [CF]’s version is likely in a high degree to be reliable on a particular proportion of the counts about which he testified.

[897]           Although a court is entitled to convict on the strength of the evidence of a single accomplice witness, even though such witness’ testimony is not satisfactory in all material respects, a court needs to be particularly cautious of doing so in the absence of corroboration or some other factor giving the court the necessary assurance of the truthfulness of the evidence. In the present case there are a number of serious criticisms of [CF]’s evidence; his evidence is certainly not satisfactory in all material respects. He has shown himself to be unreliable on a number of details, some important, others less so. If it is a reasonable possibility that he is mistaken in one or more sets of counts, it is impossible to be confident of correctly identifying the sets of counts where he has erred.

[898]           The fallibility of human memory needs to be borne in mind. Although the circumstances in which [CF] turned State witness may count in his favour, the events about which he unburdened himself to the authorities in late 2015/early 2016 had occurred some considerable time earlier. The most recent incident was the murder of [Larry K] in October 2014, which happened slightly more than a year before [CF]’s first police interview. Three of the incidents occurred in July 2014, three in 2013, two in 2012 and one as far back as 2009.

[899]           Moreover, it is likely that, once [CF] formed the view that he would cooperate (which may have been some days before the knife incident), he began to mull over his history with the Terrible Josters. In a sense, his life since November 2015, including a lengthy period in the witness protection programme and in the build-up to the present trial, has been consumed by an attempt to call to mind and remember this history. Constantly ‘remembering’ distant events comes with the danger that the witness develops a certainty and confidence which is not accompanied by reliability.

[900]            Although I do not think it probable that [CF] was being deliberately dishonest in his confident identification of any of the accused, I do not think I can be sure beyond reasonable doubt that this has not perhaps occurred here or there. For example, he may have had reason to bear ill-will towards No 5. If he was right (as I think he was) in identifying No 1 as the TJ leader in Delft, he may have felt the need to implicate No 1 directly in some of the crimes, since leadership without more would not be enough to convict No 1. Although I do not discount that a person with a criminal background may turn over a new leaf and ‘come clean’, I cannot ignore the fact that [CF] on his own version lived a violent and dishonest life for 10 or more years.

[901]           In all the circumstances, there is no set of charges in regard to which I can find [CF]’s version to be true and reliable beyond reasonable doubt. It follows that the relevant accused must all be acquitted on the uncorroborated [CF] charges.

Counts 1 and 2 (the POCA charges)

Count 1

[902]           Count 1 charges No 1 and No 5 with contravening s 9(2)(b) of POCA in that, over the period 30 August 2009 – 14 December 2016 they ‘incited, instigated, commanded, aided, advised, encourage or procured other persons to commit, bring about, perform or participate in a pattern of criminal gang activity’ as set out in counts 3-71. The words I have quoted replicate the language of the section.

[903]           The expression ‘pattern of criminal gang activity’ is defined as including the commission of two or more criminal offences referred to in Schedule 1. This is subject to the following qualifications: (a) that at least one of those offences occurred after the commencement of Chapter 4 ; (b) that the last of those offences occurred within three years of a prior offence; (c)  that the offences were either committed on separate occasions, or on the same occasion by two or more persons who were members of, or belonged to, the same criminal gang.

[904]           Although the definition of ‘pattern of criminal gang activity’ does not expressly state that if the crimes are committed on separate occasions they must have been committed by one or more members of the criminal gang, this must necessarily be implied, since otherwise two crimes committed within three years of each other by a person having nothing to do with a gang would fall within the definition.

[905]           Among the crimes specified in Schedule 1 are murder (item 1), conspiracy or incitement to commit murder (item 34), attempted murder (item 34) and drug dealing (item 22).

[906]           The expression ‘criminal gang’ is defined as including

‘any formal or informal ongoing organisation, association, or group of three or more persons, which has as one of its activities the commission of one or more criminal offences, which has an identifiable name or identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.’

[907]           Section 11 provides that in considering whether a person is a member of the criminal gang the court may have regard to the factors listed in the section. Those possibly relevant to the present case are that the person

‘resides in or frequents a particular criminal gang’s area and adopts their style of dress, their use of hand signs, language or their tattoos, and associates with known members of a criminal gang’

or that the person

‘has been arrested more than once in the company of identified members of a criminal gang for offences which are consistent with usual criminal gang activities.’

[908]           I have already found that the Terrible Josters existed at all material times, and that No 1 and No 5 were members of it. The Terrible Josters gang meets POCA’s definition of ‘criminal gang’.

No 5

[909]           I will be acquitting No 5 on all the charges where he features in count 3-71. Mr Menigo submitted that I might nevertheless convict No 5 on count 1 if I accepted [CF]’s evidence that No 5 was the leader of the TJs in Belhar Ext 13 and that he was in charge of the ongoing drug-dealing operations described by [CF]. I do not think that this is permissible. The indictment in respect of count 1 specifically identifies the relevant ‘pattern of criminal gang activity’ as being the activity constituted by count 3-71. This cannot be cured by reference to the summary of substantial facts which accompanied the indictment and which alleges inter alia that the criminal activities of the TJs focus on creating dominance in the sale of illegal drugs in Belhar Ext 13. This is one of a number of general allegations made about the TJs in paras 1-15 of the summary. Immediately thereunder is a heading, ‘The pattern of criminal gang activity and/or acts committed for the benefit of or at the direction or in association with the criminal gang’, which introduces the summary of substantial facts in relation to count 3-71. The summary thus did not put No 5 on notice that his conviction might be sought on count 1 with reference to generalised allegations of drug-dealing.

No 1

[910]           I will be convicting No 1 on counts 35 and 36 (the murder of Vernon Botes and the attempted murder of [HP]) and on count 71 (drug-dealing). I am satisfied beyond reasonable doubt that the drug-dealing was done for the benefit of the TJs. The drug-dealing offence was committed within three years of Botes’ murder. Was Botes’ murder itself part of the TJ’s pattern of criminal gang activity? There is no direct evidence of the motive for the murder. It is known, however, that Presence was an associate of No 1 and No 2, that Meniers had TJ tattoos, and I have found that No 1 was a TJ leader. I do not think it possible that No 1 would have participated in this crime unless it had something to do with the TJs.

[911]           In any event, I do not read the definition of ‘pattern of criminal gang activity’ as requiring the State to prove that the offences were aimed at advancing the interests of a criminal gang. What is required is that the two offences should have been committed by persons belonging to the same gang. Since No 1 and No 2 are to be found guilty of Botes’ murder and of the drug-dealing count, the definition is satisfied in relation to No 1.

[912]           The question is, however, whether No 1 performed an act the kind contemplated in s 9(2)(b). The State probably charged No 1 and No 5 with this POCA offence because of their role, as TJ leaders, in allegedly inciting and instigating various crimes (which is why the other accused were not charged under this particular section). I will be acquitting No 1 on all the counts where incitement and instigation were alleged to have been his role. The only act in s 9(2)(b) which might apply to his participation in Botes’ murder and in the drug-dealing is that of ‘aiding’ another person to commit or participate in a pattern of criminal gang activity.

[913]           In S v Jordaan supra Binns-Ward J held that ‘aids and abets’ in s 9(1)(a) cannot apply to the principal actor but only to one who assists the principal actor (para 134), following in this respect what he said in para 91 of his unreported judgment in  S v Peters & another Case SS 17/2013 . If that view is correct, and if it also applies to the word ‘aids’ in s 9(2)(b), it might lead to the conclusion that No 1 cannot be convicted of a contravention of s 9(2)(b), because one cannot be sure that his role, at least in the drug-dealing count, was that of a mere aider.

[914]           It is apparent from the penalties laid down in s 10 of POCA for gang-related offences that the crimes created by ss 9(1) and 9(2)(a) are regarded by the lawmaker as more serious than those created by ss 9(2)(b) and (c). It thus seems to me that where an accused is charged under both s 9(2)(a) and s 9(2)(b), and where the same proven conduct might, without doing violence to the statutory language, fall under each of those provisions, the correct course is to convict in terms of s 9(2)(a). To convict under both provisions in respect of exactly the same conduct would amount to a duplication of charges.

[915]           Since count 2 charges No 1 with a contravention of s 9(2)(a), and since his conduct in relation to the Botes murder and the drug-dealing falls more naturally within the scope of that section, I think he should be acquitted on count 1, on the basis that a conviction on count 1 would be a duplication of the conviction I intend to enter under count 2.

Count 2

[916]           Counts 2 charges all of the accused with contravening s 9(2)(a) of POCA in that, between 30 August 2009 – 14 December 2016, they performed acts ‘aimed at causing, bringing about, promoting or contributing towards a pattern of criminal gang activity’ as set out in counts 3-71. Count 2, in the alternative, charges the accused with contravening s 9(1)(a) of POCA in that, over the same period, they actively participated in or as members of the criminal gang, and ‘wilfully aided and abetted’ criminal activity committed for the benefit of, at the direction of, or in association with, a criminal gang, as set out in counts 3-71.

No 3 – No 8

[917]           For the reasons I have already stated in dealing with No 5’s position in relation to count 1, those accused who are to be acquitted on all the charges in which they are implicated by counts 3-71 must be acquitted on count 2.

No 1 and No 2

[918]           As I have explained when dealing with count 1, No 1’s conduct in relation to the Botes murder and the drug-dealing was conduct aimed at causing, bringing about, promoting or contributing towards a pattern of criminal gang activity as defined. He should thus be convicted on count 2.  The same applies to No 2.

No 9

[919]           No 9’s only conviction will be in respect of the attempted murder of Mablou. He thus has not been proved to have been personally involved in two or more crimes making up a ‘pattern of criminal gang activity’. It is not entirely clear to me whether, for a conviction under s 9(2)(a), it is necessary that a particular accused should himself have performed more than one of the criminal acts making up the pattern. It may be enough that he performed one of the acts, knowing and intending that such act would be one in a succession of criminal acts committed or to be committed by gang members.

[920]           In a general sense, No 9 knew that the Terrible Josters had already committed, and would in the future commit, crimes of the kind listed in Schedule 1. The murder of Botes and the drug-dealing were other crimes committed by members of the Terrible Josters, so that one might say that No 9’s attempted murder of Mablou was the first proven crime in a pattern of criminal activity committed by members of the Terrible Josters, even though he played no part in Botes’ murder and the drug-dealing.

[921]           However, this interpretation might unduly widen the scope of s 9(2)(a), and in the absence of full argument on the subject I intend to adopt a strict interpretation, which requires that the accused should himself have performed acts in relation to at least two of the crimes making up the pattern.

[922]            This leaves s 9(1)(a), for which I would need to find that the attempted murder was a criminal activity committed for the benefit of, at the direction of, or in association with the TJs. Given No 9’s known association with No 5, Tyrone Constable and [CF], and having regard to [CF]’s testimony which is corroborated in this respect by [MT], I am satisfied that this has been proved beyond reasonable doubt. I am also satisfied that Mablou would have been a target of the TJs for the reasons stated by [CF].

[923]           The difficulty in convicting No 9 on this count is Binns-Ward J’s finding in Peters and Jordaan that a principal actor cannot be convicted under s 9(1)(a). That view might be thought to give rise to an anomaly, since the secondary actor may receive a POCA conviction while the primary actor will not. Of course, the primary actor would be convicted of the predicate offence (here, attempted murder), but where there is a secondary actor who has ‘aided and abetted’ the predicate crime, the secondary actor would usually also be convicted of such crime on the principles of common purpose. The anomaly can only be avoided if s 9(1)(a) is strictly confined to conduct falling short of that giving rise to culpability for the predicate offence.

[924]           I can only depart from Peters and Jordaan if I am satisfied that they are clearly wrong in this respect. Although I have my reservations, there was no argument on this particular aspect of the judgments, and I do not think in the circumstances that I would be justified in departing from Binns-Ward J’s interpretation.

[925]           It follows that No 9 must be acquitted on this count.

No 10

[926]           For the same reasons, No 10 must also be acquitted on this count.

No 11 and No 12

[927]           No 11 and No 12 will be convicted on the counts relating to the murder of George Stevens and Victor Browers. It has been proved beyond reasonable doubt that they were both members of the TJs at the time. In tandem, the two sets of charges constitute a ‘pattern of criminal gang activity’. Their acts on the occasion of the two murders bring them within the scope of s 9(2)(a) of POCA.

Conclusion

[928]           In respect of the s 204 witnesses, it is my opinion that [CS] answered all questions put to him frankly and honestly, and he is thus entitled to be discharged from prosecution for the offences perpetrated in relation to Victor Browers’ murder. I intend to defer the question of [CF]’s discharge, a matter on which I shall hear Mr Menigo after he has had an opportunity to digest this judgment.

[929]           I thus make the following orders:

(a)  Count 1 (POCA):

No 1 and No 5 are acquitted.

(b)  Count 2 (POCA):

(i)  No 1 and No 2 are found guilty on the primary count by virtue of their convictions on counts 35, 36 and 71.

(ii)  No 11 and No 12 are found guilty on the primary count by virtue of their conviction on counts 55-58 and 67-70.

(iii)  No 3 – No 10 are acquitted on this count.

(c)  Counts 3-4 (murder of Jermaine Louw @Joey):

No 5 is acquitted on both counts.

(d)  counts 5-8 (attempted murder at Anreith Ave):

No 5 and No 6 are acquitted on all counts.

(e)  Counts 9-13 (murder of Levert Seekoei @Sharkey):

No 1, No 2 and No 5 are acquitted on all counts to the extent that they have not already been discharged.

(f)  Counts 14-17 (attempted murder of Brandon Dickson @Mablou):

No 9 is found guilty on all counts.

(g)  Counts 18-21 (murder of Brandon Dickson @Mablou):

No 1, No 2, No 6 and No 9 are acquitted on all counts to the extent that they have not already been discharged.

(h)  Counts 22-25 (murder of Jermaine McKenzie @Piggels):

No 5 and No 11 are acquitted on all counts.

(i)  Counts 26-34 (murder of Leon Davids @Leontjie):

No 1 – No 5 are acquitted on these counts to the extent that they have not already been discharged.

(j)  Counts 35-38 (murder of Vernon Botes):

No 1 and No 2 are convicted on counts 35 and 36 (murder and attempted murder).

(k)  Counts 39-42 (murder of Neano Kleynhans):

No 5 is acquitted on all counts to the extent that he has not already been discharged.

(l)  Counts 43-46 (murder of Aubrey Johannes):

No 1, No 2, No 5 and No 10 are acquitted on all counts to the extent that they have not already been discharged.

(m) Counts 47-49 (murder of Wayne Lekeur @Lonty):  

No 5 is acquitted on all counts.

(n)  Counts 50-54 (murder of [Larry K]):

No 1, No 7 and No 8 are acquitted on all counts.

(o) Counts 55-58 (murder of George Stevens):

No 11 and No 12 are found guilty on count 55 (murder) and counts 57 and 58 (possession of firearms and ammunition).

(p)  Counts 59-62 (attempted murders in [ST] Cres):

No 10 is found guilty on all counts.

(q)  Counts 67-70 (murder of Victor Browers @Fox):

No 11 and No 12 are found guilty on all counts.

(r)  Count 71 (drugs):

No 1 and No 2 are found guilty on the primary count.

 

 

O L Rogers

Judge of the High Court

Western Cape Division

 

APPEARANCES

 

For the State	Mr M N C Menigo
For accused No 1	Mr R Liddell
For accused Nos  2, 8, 11 & 12	Ms S Webb
For accused Nos 3, 4, 6, 7 & 9	Mr J Weeber
For accused Nos 5 & 10	Mr R McKernan

 

 

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