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

 

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: CC08/2018

 

In the matter between:

 

THE STATE

 

And

ELTON LENTING AND 19 OTHERS               ACCUSED

 

JUDGMENT

 

LEKHULENI J

 

Introduction

 

[1]        There are currently thirty separate applications pending before this Court for the admission of statements from witnesses who have passed away before they could testify and for those who are untraceable and fear for their lives to testify in this case. The State submitted applications for the admission of these witnesses’ statements, some in terms of s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, ("the Hearsay Act”) and others in terms of s 222 of the Criminal Procedure Act 51 of 1977 ("the CPA") read with sections 33 to 38 of the Civil Proceedings Evidence Act 25 of 1965 (“the Civil Proceedings Evidence Act”). Mr Badenhorst, Counsel for accused 7, 9 and 12 and some of his colleagues submitted that it was erroneous for the State to bring its application in terms of section 222 of the CPA. In addition to the assessment of whether the statements of these witnesses should be admitted as evidence in these proceedings, this judgment would seek to harmonise s 3(1)(c) of the Hearsay Act and s 222 of the CPA read with sections 33 to 38 of the Civil Proceedings Evidence Act.

 

[2]        As previously stated, the State's applications are divided into two categories. There are those applications in which the witnesses are deceased, and in those applications, the State relies primarily on s 3(1)(c) of the Hearsay Act. The second category of the State's application pertains to witnesses who are apprehensive of testifying in this matter and who cannot be located despite diligent and reasonable efforts. In both categories, the State applied that the witnesses' statements be admitted as evidence as an exception to the hearsay rule. To provide context and emphasis, I will summarise the contents of each intended statement, the relevant charges, and briefly the evidence led on those charges. Thereafter, I will determine whether it is in the interest of justice for such statements to be admitted or not.

 

The State’s applications 1, 3, 4, and 5

 

[3]        The first application involves counts 55 to 59. This application is intertwined with applications 3 to 5. The accused implicated in these charges are accused 1, 2, 8 and 12. For convenience, I will deal with these applications jointly, albeit ad seriatim. Count 55 involves a charge of Theft of a semi-automatic firearm, a Z88 9mm parabellum. Counts 56 and 57 involve the attempted murder of two complainants. It is alleged that on 14 January 2014, and at or near Beto Close, Roosendal, Delft in the district of Bellville, the accused unlawfully and intentionally attempted to kill two complainants by shooting them with a firearm. The State refrained from disclosing details of the complaints in the indictment due to safety concerns. Concerning counts 58 and 59, the State alleged that on 14 January 2014, the accused were found in possession of a prohibited firearm and 14 x 9mm rounds of live ammunition, respectively, without holding a license, permit or authorisation issued in terms of the Firearms Control Act to possess the said firearm.

 

[4]        In its first application, the State applied to have the statement of one of the attempted murder victims, Elijah Burger, be admitted as evidence in these proceedings. Elijah Burger passed away on 13 June 2024. His death certificate was handed in and marked as exhibit NNNN. To provide a comprehensive context for the ruling I make hereunder, I find it necessary to summarise the statement that the State intends to submit, along with the pertinent evidence relevant to these charges.

 

[5]        In his statement, Mr Burger stated that on Tuesday, 14 February 2014, at 17h45, he was with his friend at Corner Bakkies Boom and Beto Close. A coloured male came from Beto Close started firing shots at them. According to Mr Burger's statement, the assailant shot him twice in the rear, and he (the witness) fled. The assailant fired three shots behind him. His right arm was wounded by the three bullets discharged from behind. He continued to run for approximately 10 minutes and stopped when the gunfire ceased. He sustained injuries in his arm and buttocks. Subsequently, he was taken to hospital, where police presented him with photographs. He was able to identify the individual who shot him. His statement was handed in and marked as exhibit NNNN1.

 

[6]        Sergeant Enslin Johnson and his colleague Constable Volkwyn testified that they heard a gunshot at Botterboom Street while patrolling in Silversand in the Delft area and conducting crime prevention. They investigated the shooting and saw two suspects fleeing through the field towards Voorbrug Street. Constable Enslin Johnson and his colleague pursued the two suspects, who entered a house on T[...] Street. The police entered the house and found the two suspects sitting on a couch in the dining room, both out of breath. According to the police, the suspects were accused 8 and 12.

 

[7]        The woman who owns the premises that the two suspects entered reported to the police that she did not know the two suspects. The police searched the two suspects but found nothing. In the bedroom, which is located close to the dining room, there was a bed. They searched the room, and on the bed, there was a blanket. When they lifted it, they found a 9mm firearm. The suspects were subsequently arrested for possessing an unlicensed firearm. The police then went to the hospital where the victim of the shooting was. The suspects were photographed, and their images were presented to the victim, who identified accused 8 as the individual who fired shots at them. The photos of accused 8, marked as exhibit EEE2, were submitted in these proceedings as evidence.

 

[8]        The evidence of Sergeant Volkwyn who was together with Sergeant Johnson is consistent with that of Sergeant Johnson’s; however, he added that accused 8, known to him as Kapadien, and accused 12, known as Blade, were the individuals found at 2[...] T[...] Street. Mr Q, who was present with the victim during the shooting, provided testimony in addition to other supporting evidence for the State's case regarding these charges. He identified the shooter, who was brought to the scene by the police shortly after the incident.

 

[9]        Regarding the State's third application, Mr Damon, counsel for the State, sought to introduce the statement of Lynnette Geduld, marked as exhibit XXXX11, as admissible evidence in this case since the witness cannot be located. The State relied on section 222 of the CPA read with section 34 to 38 of the Civil Proceedings Amendment Act. In her deposition, Ms Lynette Geduld averred that she personally collected the cartridges in front of her house in B[...] Street on the date of the shooting of Elijah Burger and gave these exhibits to Sergeant Johnson on 14 January 2014. This witness is currently unavailable and cannot be located. Sergeant Van Wyk has provided evidence of his multiple attempts, both through phone calls and personal visits, to secure the witness's attendance at court, none of which have yielded any success.

 

[10]      Regarding the fourth application the State primarily relied on s 3(1)(c) of the Hearsay Act. The State requested that the Court admit the statement of Athene Hefkie, the homeowner, in which accused 8 and 12 were found by Sergeants Johnson and Volkwyn. The State asserted that this witness is currently untraceable. In her statement, Ms Hefke reported that on 14 January 2014, she was at home when she observed two men running past her and entering her house. The police arrived, conducted a search of the residence, and discovered a firearm on the bed, which they confiscated. Ms Hefkie stated that she did not know either of the accused and had not given anyone permission to place the firearm in her home.

 

[11]      Regarding the State's fifth application, the State intended to hand in Roland Jacobs' statement as evidence. Mr Jacob was with Elija Burger at the time the shooting occurred. Mr Roland Jacobs's statement is consistent with Elija Burger's statement summarised above. However, he clarified that he did not sustain any gunshot wounds after they fled with Mr Elijah Burger during the attack. He confirmed that Elijah Burger was shot and was taken to the hospital. According to him, the shooting occurred in an instant, making it impossible to identify the person who shot or the person who was with the shooter. The witness, (Roland Jacobs) is currently untraceable and initially informed the investigating officer of his fear to testify in this matter. On 27 July 2023, a warrant for his arrest was authorised.

 

[12]      Mr Damon, on behalf of the State, primarily relied on section 34 of the Civil Proceedings Amendment Act in respect of applications 1 and 3. He  submitted that the State has complied with s 34(1)(a)(i) of the Civil Proceedings Evidence Act 25 of 1965, in that it has proven that Elijah Burger, a witness who is deceased and who personally witnessed the attempted murder of himself, provided an affidavit to establish the facts of the incident. Counsel argued that Lynette Geduld cannot be located due to concerns for her safety. Having complied with all the requirements of s 34(1)(a)(i) and (b) of the Civil Proceedings Evidence Act, Mr Damon submitted that the statements of these two witnesses are admissible as evidence, in terms of s 222 of the CPA read with section 34(1) of Act 25 of 1965. Alternatively, Mr Damon relied on s 3(1)(c) of the Hearsay Act.

 

[13]      Mr Johnson, Counsel for accused 8 did not oppose the State's application. Mr Badenhorst, counsel for accused 12, opposed the State's application to admit Elijah Burger's statement. Counsel submitted that the application sought by the State aims solely to adduce corroboration for evidence already tendered. If it were to be admitted, it would not be in the interest of justice and would infringe the accused right to a fair trial. Specifically, the accused would be deprived of the right to resist the admission of the evidence and to evaluate its probative value as stipulated in s 35(3) of the Constitution and confirmed in various case law.

 

[14]      Mr Badenhorst submitted that the State relies on sections 222 of the CPA read with s 34 of the Civil Proceedings Evidence Act, as the witness cannot be located and is apprehensive of the accused. Mr Badenhorst contended that s 3(1)(c) of the Hearsay Act supersedes the provisions of the Civil Proceedings Evidence Act that came into force in 1965. In counsel’s view, this is due to the fact that the introductory remarks of s 3 of the Hearsay Act render it peremptory that hearsay evidence shall not be admitted as evidence in criminal proceedings, subject to the provisions of any other law.

 

[15]      It was Mr Badenhorst's submission that s 3(1)(c) of the Hearsay Act requires the Court to consider the 7 factors before the Court can allow hearsay evidence other than the exception stipulated in s 3(1)(a) and (b). Counsel submitted that the State could not bring the above applications in terms of s 34 of the Civil Proceedings Evidence Act since, if allowed, it would negate and subordinate the discretionary consideration of the 7 factors to permit hearsay evidence in terms of s 3(1)(c) of the Hearsay Act.

 

[16]      As explained earlier, the applications by the State summarised above and those dealt with hereunder are grounded in either s 222 of the CPA read with s 34 of the Civil Proceedings Evidence Act, or s 3(1)(c) of the Hearsay Act. All these applications are primarily for the admission of hearsay evidence in the form of statements, photo identification parade documents and the relevant name list.

 

[17]      For the sake of brevity and to avoid repetition in the subsequent applications, I deem it wise to address the argument raised by Mr Badenhorst and some of his colleagues about whether the State was bound to bring its application in terms of s 3(1)(c) of the Hearsay Act and not in terms of s 222 of the CPA read with s 34 of the Civil Proceedings Evidence Act. If I understood the argument correctly, it is argued that an application in terms of s 222 of the CPA, if allowed, would negate and subordinate the discretionary consideration of the 7 factors to allow hearsay evidence in terms of s 3(1)(c) of the Hearsay Act. Accordingly, so the argument went, the State must always bring its application in terms of s 3(1)(c) of the Hearsay Act.

 

[18]      For the reasons that follow, I do not agree with this proposition. In the interest of thoroughness, s 3(4) of the Hearsay Act defines hearsay evidence as 'evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence'. Hearsay evidence is inadmissible unless the Court is of the opinion that it is in the interests of justice for it to be admitted, considering the factors referred to in s 3(1)(c)(i) to (vii). The Supreme Court of Appeal in S v Ndhlovu,[1] held that s 3(1)(c)'s criteria, which must be interpreted in accordance with the values of the Constitution and the 'norms of the objective value system' it embodies, protects against the unregulated admission of hearsay evidence and thereby sufficiently guards the rights of accused.

 

[19]      For convenience, s 3(1)(c) of the Hearsay Act provides as follows:

 

“(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless—

(c)  the court, having regard to—

(i)   the nature of the proceedings;

(ii)  the nature of the evidence;

(iii)  the purpose for which the evidence is tendered;

(iv)  the probative value of the evidence;

(v)  the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;

(vi) any prejudice to a party which the admission of such evidence might entail; and

(vii)  any other factor which should in the opinion of the court be taken into account,

is of the opinion that such evidence should be admitted in the interests of justice. (emphasis added)”

 

[20]      On the other hand, s 222 of the CPA provides as follows:

 

“The provisions of sections 33 to 38 inclusive of the Civil Proceedings Evidence Act, 1965 (Act 25 of 1965), shall mutatis mutandis apply with reference to criminal proceedings.”

 

[21]      Section 34 of the Civil Proceedings Evidence Act 25 of 1965 provides as follows:

 

“34. Admissibility of documentary evidence as to facts in issue

(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall on production of the original document be admissible as evidence of that fact, provided-

(a) the person who made the statement either -

(i) had personal knowledge of the matters dealt with in the statement; or  

(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with therein are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had or might reasonably have been supposed to have personal knowledge of those matters; and

(b) the person who made the statement is called as a witness in the proceedings unless he is dead or unfit by reason of his bodily or mental condition to attend as a witness or is outside the Republic, and it is not reasonably practicable to secure his attendance or all reasonable efforts to find him have been made without success.”

 

[22]      From a careful examination of the Hearsay Act, it is evident that it did not repeal existing legislative provisions governing the admission of hearsay except for sections 216 and 223 of the CPA[2] which referred to the common law in force on the 30 May 1961. Section 3(1)(c) of the Hearsay Act is subject to the provisions of any other law. This facilitates alternate routes for the admission of hearsay evidence.[3] The Legislature saw it fit to transplant the Civil Proceedings Evidence Act into Criminal Proceedings. Section 34 of the Civil Proceedings Evidence Act has not frequently been used in our criminal courts, but it is part of our law and an exception to s 3(1)(c) of the Hearsay Act. To emphasise, s 3(1)(c) of the Hearsay Act is subject to the provisions of any other laws. This suggests that the statutory exceptions that were established prior to 1988 remain in force, which includes the provisions of the Civil Proceedings Amendment Act. The introductory phrase ‘subject to the provisions of any other law’ in s 3 of the Hearsay Act facilitates alternative avenues of admissibility. In addition, the other laws referred to in s 3(1)(c) of the Hearsay Act do not rule out the reception of evidence in the interest of justice under that section of the Act.[4]  

 

[23]      The practical effect is this: if a party, in this case, the State, fails in getting hearsay admitted under a legislative provision, for instance, under s 34 of the Civil Proceedings Evidence Act, the State may then attempt to get that evidence under s 3(1)(c) of the Hearsay Act. In summary, when evidence is presented under an existing statutory exception and is subsequently found to be inadmissible due to noncompliance with one or more requirements of that statute, it may still be admissible under s 3(1)(c) of the Hearsay Act. This inclusion is contingent upon the Court's determination that the acceptance of such hearsay evidence under the Hearsay Act serves the interest of justice.

 

[24]      Therefore, even if a party fails to fully satisfy the requirements of a statute that serves as an exception to the Hearsay Act, the Court may still consider the hearsay evidence under s 3(1)(c) if it is deemed to align with the interests of justice.[5] There is also no bar to relying solely on s 3(1)(c) of the Hearsay Act.

 

[25]      This conclusion is fortified by the dictum in S v Ndhlovu,[6] in which the Supreme Court of Appeal stated that the very purpose for the introduction of s 3(1)(c) was to supersede the excessive rigidity and inflexibility and occasional absurdity of the common law position by creating another avenue for the admission of hearsay evidence which turns on what the interest of justice requires. Section 3(1)(c) requires that the court should have regard to the collective and interrelated effect of all the considerations in para (i) to (iv) of the section and any other factor that should, in the opinion of the court, be taken into account. Section 3(1)(c) introduced a high degree of flexibility to the admission of hearsay evidence with the ultimate goal of doing what the interests of justice require.[7]

 

[26]      Therefore, s 222 of the CPA read with sections 33 to 38 of the Civil Proceedings Evidence Act provides an alternative route for the State to apply for the admission of hearsay evidence in the form of statements, provided that the State complies with the requirements set out in the Act. If a document (statement) fulfils the requirements set out in s 34 it is admissible as a matter of law. Consequently, the State can bring its application for the admission of a hearsay statement in terms of s 34 of the Civil Proceedings Evidence Act or, in the alternative, in terms of s 3(1)(c) of the Hearsay Act. If, for any reason, the State fails to comply with the requirements of s 34 of the Civil Proceedings Evidence Act, the State can invoke s 3(1)(c) based on the inherent requirements of the interest of justice.

 

[27]      In my opinion, the State has met the requirements outlined in s 34 of the Civil Proceeding Evidence Act with respect to counts 1 and 3. The application for the admission of the statements of these witnesses must be allowed. I will, however, consider what evidential value to attach to these statements when the totality of the evidence is considered. I acknowledge that the defence raised concerns about the unavailability of witnesses who are apprehensive about testifying and could not be located by the investigating officer. In my view, the fear of these witnesses cannot be overlooked or ignored. Some of the witnesses who are afraid to testify have allegedly been shot and are complainants in this case. The truthfulness of their evidence will be evaluated at the end of this trial.

 

[28]      It is important to note that Mr A, a section 204 witness in this matter, was subjected to threats in court during the court sitting. Accused 8, through his legal counsel, informed this Court on record that it is undesirable for Mr A to testify in his presence, and that it would be preferable for him (accused 8) to be excused from these proceedings when Mr A testifies. That request was rejected. Pursuant thereto, Mr A testified through a closed-circuit television. The overriding factor is fear of the accused. However, I want to stress that this judgment does not create or establish a precedent permitting witnesses to evade court and allow the State to submit their statements as evidence in criminal trials. It is the unique circumstances of this case that distinguish it from others.

 

[29]      Demonstrably, this matter stands on a distinct basis. Witnesses were threatened in this matter. Ms S, who was called by the State to counter the alibi of accused 9 testified on 28 October 2024. After the matter was postponed to 11 November 2024 for her to give further evidence, she testified that accused 9 called her from prison and informed her that she had until 11 November 2024 to inform the court that the State threatened her to testify against him. The witness also testified that accused 9 whilst in custody, sent her a WhatsApp message to this effect. The Court was presented with the WhatsApp message. The message stated “Maar jy het tot die 11de toe om te sê jy het 'n fout gemaak”. The witness was troubled by this encounter and was eager to bring this to the attention of the Court before she could testify.

 

[30]      The Court issued arrest warrants for several witnesses in response to the State's application in terms of s 184 of the CPA, despite the circumstances. Several of these witnesses were arrested and brought to Court. I had the opportunity to see them, and I noticed the fear evident on their faces to testify in this case. The fear of the witnesses in the circumstance of this case, in my view, cannot be lightly overlooked.

 

[31]      The fourth and fifth applications by the State are based on s 3(1)(c) of the Hearsay Act. Mr Klopper, the counsel for accused 14, 18, 19 and 20, submitted that the decision in S v Kapa,[8] provides for holistic approach and has, to some extent complicated the process. Counsel submitted that the provisional admission of hearsay evidence is only allowed in an instance where s 3(1)(b) is applicable but the holistic approach, in essence, creates a situation where the practical application of the Kapa decision creates another scenario which may be seen as a provisional admission of evidence. Mr Klopper further submitted that in the Kapa decision, the Constitutional Court outlines the factors that must be considered. According to counsel, this includes all the evidence, including evidence which may be led by the defence and not just evidence led by the State. Mr Klopper contended that it may become necessary for the Legislature to extend the provisions relating to provisional admissions to include all scenarios that may require a provisional order.

 

[32]      I appreciate the argument raised by Mr Klopper. However, it bears emphasis that the stance he postulates for the provisional admission of evidence in terms of s 3(1)(c) was rejected by the Constitutional Court in S v Molimi.[9] In that case, the Constitutional Court dealt with an appeal from the Supreme Court of Appeal (“the SCA”) and observed that the SCA correctly acknowledged that vague provisional rulings may be prejudicial to an accused person, as they may conflate the admissibility of the evidence with its weight, thereby  leaving  an accused person unfairly in a state of uncertainty. The court further observed that a timeous and unambiguous ruling on the admissibility of evidence in criminal proceedings is, a procedural safeguard.

 

[33]      Notwithstanding, it is worth noting that the provisions of s 3(1)(c) of the Hearsay Act conflate the admissibility of evidence with its reliability. Perhaps it is apposite to remind ourselves that the admissibility of evidence and weight of evidence should not be confused. There are no degrees of admissibility. Evidence is either admissible or inadmissible. If what is adduced can in law properly be put before the court, it is admissible. In summary once evidence is admitted, it may carry more or less weight according to the particular circumstances of the case. The court must then weigh or evaluate the evidence to determine whether the required standard of proof has been attained. It is only after the evidence has been admitted and at the end of the trial that the court will have to assess the final weight of the evidence.

 

[34]      To this end, I agree with the views expressed by Theophilopoulos & Bellengère,[10] who argued that at the initial stage of a trial items of relevant evidence are admitted individually in piecemeal fashion or in isolated groups. The probative value of each individual item of evidence is typically assessed in isolation. At this stage the court is concerned with making a rough estimate of the potential input that each individual item of evidence might provide and whether it has sufficient probative value to warrant admission. Whereas at the final proof stage of the trial, the probative weight of all the admitted evidence is evaluated together in a structured and coherent manner, and in relationship to one another to meet the required standard of proof. In other words, evidence has (potential) probative value before or during admission, but carries probative weight once evaluated and when relied upon at the conclusion of the trial.

 

[35]      The State contended that Ms Athene Hefkie was unaware of either of the two accused in this case. According to her, the accused did not reside at her residence, and she was not aware of the firearm until the police discovered it in her house. Counsel for the State further submitted that this witness had no knowledge of the prior shooting, the victims, the accused, or the police pursuit of the accused. Her only involvement was that she was at her home at 2[…] T[...] Street. Mr Badenhorst opposed the application and submitted that the probative value of the evidence of Ms Hefkie and Mr Roland Jacobs is insufficient to have the evidence admitted since the firearm was not found in the immediate vicinity of the accused.

 

[36]      I do not intend to delve into the merits of this case. However, I have considered the original statements of the two witnesses, the evidence led thus far, any prejudice to the accused, and the degree of the hearsay evidence. I believe that it is in the interest of justice that these statements be admitted as evidence in this matter. It bears emphasis that this is an interlocutory finding. At the end of the trial, when the totality of the evidence is considered, I will revisit these statements. In evaluating the evidence, the Court will adopt a comprehensive or a holistic approach and consider the evidence in its totality with the hearsay statements to determine their evidential value and reliability.

 

The State’s 2^nd and 24^th applications

 

[37]      The State's second application is intertwined with its twenty-fourth application. As a result, I will deal with this application jointly, albeit ad seriatim. The second application relates to the application for the admission of a witness statement deposed to by Sethembile Hani, marked exhibit PP3, in respect of counts 40 to 42 of the indictment. Accused 1, 2, 3 and are implicated in these counts. In count 40, the State alleges that on 13 May 2013, and at or near Melkhout Street in Delft South, in the District of Bellville the accused unlawfully and intentionally attempted to kill another male person by firing at him with a firearm. Out of fear for the witness’ safety, the State did not mention the complainant’s name in the indictment. Counts 41 and 42 relate to the possession of unlicensed firearms and unlawful possession of ammunition, respectively.

 

[38]      The State requested the court to admit the statement made by Sithembile Hani as evidence in these proceedings, alongside other evidence presented regarding counts 40 to 42. The officer in charge of the investigation testified that, despite diligent efforts, this witness could not be located. In the statement provided, Ms. Hani detailed an incident involving a male visitor to her home who was attacked and shot at with a firearm by an individual described as a certain coloured male on 13 May 2013. The witness explained that soon thereafter, the police arrived as they were patrolling the area during the time of the shooting. The ambulance arrived as well. She stated that she did not know the assailant who entered her house and fired at the victim who was present with them. The witness stated further that she would not be able to identify the assailant if she saw him again. She also does not know the victim that was shot in her house. The victim came to her house accompanied by Ms Hani’s friends.

 

[39]      The State led the evidence of the complainant, Mr Thurston Remmitz, who was allegedly shot at Ms Hani house on 13 May 2023. The State presented medical records along with the photo album of the premises where the shooting took place. These records were handed in and marked as exhibit PP. In addition, Sandile Patrick Hlongwa, a Sergeant from the Delft Police Station, provided testimony that on 13 May 2013, while he was on duty, and patrolling Suikerbossie Street, he heard gunshots. He stopped to check what was happening. As he was observing, he saw two young men from Melkhout Street running. He pursued them, and they fled towards the graveyard, but he lost sight of them. He then returned to the scene of the crime, found the injured person, and called an ambulance.

 

[40]      On 19 May 2013, whilst on duty, he was stopped by members of the public who provided him with a report of the whereabouts of the person who had fired shots the previous week at Melkhout Street. Following the report, Sergeant Hlongwa drove to the hospital and inquired about the person who had been shot. The witness identified that it was accused 3 who was shot, and he subsequently arrested him. The witness arranged a hospital guard, and the accused was transferred to Tygerberg Hospital.

 

[41]      The State called Sergeant Andrews to testify on this count, and he testified that he interacted with Thurston Remmitz, the complainant, regarding the attempted murder charge, when he was released from Tygerberg Hospital. Thurston Remmitz informed Sergeant Andrews that the person who shot him was accused 3, and he was together with him at Tygerberg Hospital. Accused 3 admitted in his affidavit opposing the application by the State for these proceedings to be held in camera that he was present in the hospital with the complainant, Thurston Remmitz, and that they discussed this case.

 

[42]      Sergeant Andrews testified that on 20 May 2013, Thurston Remmitz identified accused 4 at an identification parade as the person who was with accused 3 at the time he was shot. Thurston Remmitz also filed a statement that is consistent with Ms Hani's statement in substance. However, he added in his statement (exhibit RRRR) that the person who shot him was accused 3 and that he was together with accused 4. He identified accused 4 in a photo identification parade, which was marked as exhibit RRRR1 in these proceedings. Thurston Remmitz's statement underpins the State's twenty fourth application. The application was submitted in terms of s 34 of the Civil Proceedings Evidence Act.

 

[43]      Mr Damon asserted that Thurston Remmitz was expected to testify in this matter, providing oral evidence regarding the facts contained in the affidavit. However, the investigating officer, Detective Sergeant Van Wyk, testified that Mr Remmitz was initially willing to testify on behalf of the State, but after the accused pleaded in 2020, Mr Remmitz was no longer willing to testify on behalf of the State. An arrest warrant for Mr Remmitz was issued during 2023. Furthermore, the State avers that the witness remains untraceable despite the diligent efforts of the investigating officer to locate him.

 

[44]      Mr De Villiers and Ms Strauss opposed the two applications. Mr De Villiers submitted that since the application was made, this Court has not been informed of any efforts to trace Ms Hani. Concerning Mr Remmitz, Mr De Villiers submitted that this witness' name appears on the list of potential State witnesses. According to Mr De Villiers, this witness must have known that he would be called upon to testify on behalf of the State. ln terms of s 183(1) of the CPA, a witness must keep the Police informed at all times of his or her residential address where they can be found. Counsel submitted that, in all probability, this witness did not comply with the requirements of s 183(1) of the CPA, and the State failed to enforce those requirements. Counsel posits that the State cannot use s 34(1) of the Civil Proceedings Evidence Act or s 3 of the Hearsay Act to have evidence admitted while knowing that the State itself and their witness are to blame for not giving viva voce evidence.

 

[45]      On the other hand, Mr Strauss submitted that accused 4 has a right to a fair trial, which includes the right to adduce and challenge evidence. It is difficult, if not impossible, so the argument proceeded, to challenge hearsay evidence. According to Mr Strauss, such evidence does not allow the Court to assess a witness' demeanour and, therefore, the credibility of the person who alleged to have made the statement. Mr Strauss further submitted that hearsay evidence does not allow cross-examination to challenge and test the veracity of such evidence. Mr Strauss implored the Court to rule the statement inadmissible as it would not be in the interest of justice to rule otherwise.

 

[46]      In S v Ndhlovu (supra), the SCA considered whether the admission of hearsay evidence violates the constitutional right to challenge evidence as entrenched in s 35(3)(i) of the Constitution and, consequently, the right to a fair trial. The SCA held that the criteria in s 3(1)(c) which must be interpreted in accordance with the values of the Constitution and the 'norms of the objective value system it embodies protects against the unregulated admission of hearsay evidence and thereby sufficiently guards the rights of an accused. Importantly, the SCA stated that a just verdict, based on evidence admitted because the interest of justice requires it, cannot constitute prejudice.

 

[47]      In this case, I am of the view that the State has complied with s 34(1)(a)(i) of Act 25 of 1965. The State has proven that the witness is untraceable for the purpose of being subpoenaed because the witness has relocated and does not want to be located out of fear of the accused. The State has also produced the original statements and, therefore, complied with s 34(1) of Civil Proceedings Evidence Act 25 of 1965. I believe that the two statements are consistent with the prima facie evidence that the State has led. I have considered the evidence led and the contents of these statements, and I am of the view that the two statements of Ms Hani and Mr Remmitz, respectively, must be admitted as evidence in this matter. I will later consider the evidential weight to be attached to these statements when I evaluate the evidence in its entirety at the end of this trial.

 

The State’s 6^th application - Counts 55 to 59

 

[48]      In its sixth application, the State implored the Court to accept the statement of three witnesses, namely Linda Nomatyenge, Zukisani Nomatyenge and Mpumzi Nomatyenge, in terms of s 3(1)(c) of the Hearsay Act, alternatively, in terms of s 34 of the Civil Proceedings Evidence Act. The statement for Zukisani Nomatyenge was handed in and marked as exhibit XXXX19. In his statement, Mr Nomatyenge explained how he was shot on his neck whilst at his house inside the toilet at 4[…] A[...] Street, Delft-South, on 6 August 2016 and how he was subsequently taken to Delft Day Hospital. Zukisani's mother, Linda Nomatyenge, and Zukisani's friend, Mpuzi Bandesi, filed statements in respect of this incident. Their statements are aligned with Zukisani's statement. Their statements were marked exhibit XXXX19 and XXXX18, respectively. The State applied in terms of s 3(1)(c) of the Hearsay Act, alternatively in terms of s 222 of the CPA read with s 34 of the Civil Proceedings Evidence Act for the admission of these statements as evidence against the accused.        

 

[49]      All 3 witnesses, although aware of the obligation to testify, have avoided testifying because they are scared, as reported by the investigating officer. They fear for their lives. The witness, Linda Nomatyenge, was arrested in 2023 and was brought to Court and warned. According to the investigating officer, she has left the given address and cannot be traced. I have considered this witness's statement. I have also noted that the three statements are consistent with each other. I have considered that it had not been disputed that a shooting took place at 4[...] A[...] Street, Delft-South, on 6 August 2016 and that the victim, Zukisani Nomatyenge, was inside his residence, inside the toilet, when the shooting took place; I have considered that the victim was injured on the neck during the shooting.

 

[50]      I have considered the nature of the evidence and the fact that the statements were obtained immediately following the alleged shooting incident. I have also considered other evidence regarding this count, particularly the evidence of Mr N regarding the shooting at 4[...] A[...] Street on 6 August 2016. I have also considered the evidence of Sergeant Mbono and the real evidence such as the ballistics, the photos, the LCRC reports and the medical documentation confirming the injuries suffered by the victim. I have also considered the question of prejudice to the accused if these statements are admitted. I have considered the contemporaneity and spontaneity of the hearsay statement particularly that the statements were obtained immediately after the shooting incident. Pursuant thereto, I am of the view that it is in the interest of justice that these statements be admitted. Similarly, I will later determine what evidential weight to be attached to these statements during the evaluation of the evidence.

 

The State’s 7^th application – Count 52.

 

[51]      In the seventh application, the State applied to have the statement of Constable Edward Jacob admitted as evidence concerning count 52 of the indictment. Count 52 involves a charge of possession of drugs. It implicated the following accused: 1, 2, and 7. The Court was informed in these proceedings that Constable Edward Josephs is medically unfit due to a brain tumour, and this renders him incapable of testifying. In his statement marked exhibit XXXX 7, he stated that whilst patrolling with his colleague on 23 October 2013 in Tamarisk Street Delft, he noticed a coloured male known to him as a drug merchant. He confronted and searched him with his consent, and the merchant threw a plastic packet to the ground. He picked it up and noted that it was a packet of tik. He then arrested the person known to him as Grashom Klassen and detained him at Delft Police Station.

 

[52]      Mr Damon submitted that Mr Edward Josephs’ documentary evidence be admitted in terms of s 3(1)(c) of the Hearsay Act, alternatively, in terms of s 222 of the CPA read with s 34 of the Civil Proceedings Evidence Act. Mr Badenhorst submitted that it will not be in the interest of justice if the evidence is admitted and will deprive the accused of their right to a fair trial, namely, to resist its admission and scrutinise its probative value as stipulated in s 35(3) of the Constitution.

 

[53]      I have considered the fact that the witness is unwell and unable to testify in this case. I have also considered the nature of the evidence and the prejudice that may be suffered by the accused in the admission of the statement. I have also considered the purpose for which this statement is tendered, and I am of the view that it must be allowed as evidence in these proceedings. I will, however, consider its reliability and what weight is to be attached to it when the totality of the evidence is evaluated. As correctly pointed out by Mr Damon, the admission of hearsay statements against the accused, like the admission of all evidence, irrespective of the nature of the evidence, is not an automatic finding on the guilt of the accused.

 

[54]      The admission of the statement does not imply a conviction of the accused. The accused can apply for discharge at the end of the State’s case in terms s174 of the CPA if they believe that there is no evidence against them or that insufficient evidence has been presented to prove their guilt. The court may grant this application if it finds that there is indeed no evidence against the accused. Additionally, the accused have the right to testify and call witnesses in their defence, or they may choose to remain silent. After all evidence has been presented, the accused can also address the Court in accordance with s 175 of the CPA.

 

The State’s 8^th and 9^th applications – Counts 79 to 80 and Counts 88 to 90

 

[55]      The State also applied to have the statement of Constable Petrus Muller admitted as evidence concerning counts 79 and 80 of the indictment. Petrus Miller had a stroke and is unable to testify. The two counts involve a charge of dealing in drugs. In the alternative, the State preferred a charge of possession of drugs. These counts implicate accused 1, 2, 6 and 19. In both counts, it is alleged that on 1 December 2014 and at or near Tamarisk Street, Delft South, in the district of Bellville the accused unlawfully dealt with undesirable dependence, to wit tik as listed in Part III of Schedule 2 of the Drug Trafficking Act 140 of 1992. The State applied to hand in the statement of Constable Muller, which was marked exhibit ZZZ 2 in these proceedings.

 

[56]      In summary, in his statement, he stated that on 1 December 2014, while he was doing missing persons duties in Delft, two coloured males stopped him and informed him that they had tik in their possession. He searched them and found tik in their possession. They further told him that they feared for their lives as the other 28 gangsters in Delft wanted to shoot them. The two suspects were accused 6 and 19. He then arrested them. On further investigation, he discovered that the leaders of these suspects, accused 1, was detained, and the suspects wanted to be arrested so that they could protect their leader from being attacked by other gangs in prison.

 

[57]      The State implored the court to admit this evidence in terms of s 3(1)(c) of the Hearsay Act, as Constable Muller suffered a stroke and was unable to testify. Mr Klopper, on behalf of accused 19 submitted that the intention of accused 19 was not to oppose the State's application, but accused 19 has recently raised a concern due to information that he received from family members or friends that indicated that Sergeant Muller has perhaps recovered sufficiently to enable him to testify. Counsel submitted that this is an aspect that should be clarified, particularly considering that pursuant to the State's application, accused 19 has a limited scope in which to challenge the evidence. Subsequent thereto, the State submitted a medical report from Dr Geldenhuys the treating doctor of the witness, indicating that due to ill health, Mr Muller is unfit to testify in court at this time.

 

[58]      I have considered the two statements of the witness; I have considered that it was made the same day of arrest. I have considered the degree to which the statements are corroborated by other evidence. I have also considered the fact that accused 19 admits that the drug was correctly sealed and analysed and that he admits that the substance was prohibited methamphetamine, as per exhibit RRR3. I have also considered the degree of the hearsay particularly that the statement was made by the witness as an eyewitness to the offenses and that he had a first-hand account of the offense. Pursuant thereto, I am of the view that exhibit ZZZ 2 and ZZZ 3 must be admitted as evidence herein in terms of s 3(1)(c) of the Hearsay Act. Likewise, I will later determine what evidential weight is to be attached to these statements during the evaluation of the evidence.

 

[59]      The State also applied to have the statement of Denver Hefke to be admitted as evidence in respect of counts 88 and 90 of the indictment in terms of s 222 of the CPA read together with sections 33 to 38 of the Civil Evidence Proceedings Act. These counts implicate accused 1, 2, and 7. The three counts involve a charge of murder in count 88, possession of an unlicensed firearm in count 89 and unlawful possession of ammunition in count 90. In count 88, it is alleged that on 16 February 2016, the accused wrongfully and intentionally killed S[...] M[...], a female scholar, by shooting her with a firearm. Concerning counts 89 and 90, it is alleged that on the said date and place, the accused unlawfully and intentionally possessed a 9mm semi-automatic firearm pistol and ammunition without a licence or permit issued in terms of the Act to possess such firearm and ammunition. 

 

[60]      The State asserted that Mr Denver Hefke, a witness in these charges, is untraceable and avoids testifying in court due to his fear of the accused. Mr Damon submitted that the witness was previously subpoenaed to attend court, and he failed to attend. Subsequent thereto, a warrant for his arrest was authorised. He has previously been arrested as a witness in terms of s 184 of the CPA. In his statement, which was marked exhibit XXXX10, Mr Hefke stated that on 16 February 2016, around 15h20, he was with his friends standing at a Spaza Shop and smoking a cigarette. Suddenly, he heard gun shots fired from Beethoven Street, and he and his friend ran away. He did not see who was shooting, but he later discovered that a school child had been shot.

 

[61]      Mr Badenhorst opposed the application, arguing that it would not be in the interest of justice to admit Mr Hefke’s statement as this would deprive the accused of their right to a fair trial. Furthermore, Mr Badenhorst submitted that the statement of Mr Hefke contains double hearsay evidence, as Mr Hefke indicated that he was informed that the person who fired the shot was accused 7. Counsel implored the court not to accept this statement.

 

[62]      Mr Damon submitted that from the evidence, at the time of the shooting, there was a war between the Terrible Josters and the Thug Lifes over territory to sell drugs. Accused 7 went to shoot in Beethoven Street at members of the Thug Life gang, including Denver Hefke, who was standing at the Spaza Shop. Counsel submitted that S[...] M[...] was one of the members of the public at Beethoven Street on her way home from school when accused 7 started to shoot from the Main Road into Beethoven Street. The deceased was struck in the head by one of the bullets that was aimed at Denver Hefke and the other Thug Lifes who were standing at the Spaza Shop. Counsel implored the court to admit the statement as evidence.

 

[63]      The statement of Denver Hefke, in my view, complies with the requirements set out in s 34 of the Civil Proceedings Amendment Act. This witness is untraceable and ostensibly avoids testifying in court due to his fear of the accused. The witness was previously arrested in terms of s 184 of the CPA. He was brought to court on 13 October 2023 and warned to appear on 29 January 2024. The investigating officer indicated that he could not locate him despite diligent efforts. Without delving into the merits of this matter, I have considered the nature of the evidence, the ballistic evidence, photographs, the sketch plan, and the key thereto of the area where the incident occurred.

 

[64]      I have also considered the evidence from Sergeant Sandile Gwala, who was in the taxi when he allegedly saw accused 7 in possession of a firearm at the time of the alleged shooting of the deceased. I have also considered the purpose for which the evidence is tendered and the prejudice that may be suffered by the accused if this statement is allowed. I am of the view that it is in the interests of justice that this statement be admitted as evidence in these proceedings. As previously stated, the statement of Denver Hefke complies with the requirements set out in s 34 of the Civil Proceedings Evidence Act. Therefore, it must be admitted. Likewise, I will consider the evidential weight of this statement when evaluating all the evidential material admitted during the trial.

 

The State’s 11^th application – Counts 108 to 110

 

[65]      The State seeks to have the statement of Huston Christoffel be admitted as evidence in respect of counts 108 to 110 of the indictment in terms of s 3(1)(c) of the Hearsay Act, alternatively, in terms of s 222 of the CPA, read together with sections 33 to 38 of the Civil Proceedings Evidence Act. The witness passed away on 23 February 2017. His death certificate was handed in and marked exhibit YYY1 in these proceedings. His statement was marked exhibit YYY2. The accused implicated in these counts are accused 1, 2, and 3.

 

[66]      Count 108 involve a charge of murder. Counts 109 and 110 comprise of charges for possession of an unlicensed firearm and unlawful possession of ammunition, respectively. In count 108, it is alleged that on 7/8 February 2016, the accused intentionally killed Franklin Adams by shooting him with a firearm. In counts 108 and 110, it is alleged that on the said date and place, the accused unlawfully and intentionally possessed a 9mm semi-automatic pistol and ammunition without a licence or permit issued in terms of the Act to possess such firearm and ammunition.

 

[67]      In his statement, Mr Chritoffels Huston reports on the shooting of the deceased Franklin Adams. Mr Huston averred that on 7 February 2016; while walking with the deceased Franklin Adams, he saw Lorenzo Coetzee with the nickname Draad (accused 3) shooting at them. He knows Draad as they grew up in the same area. The witness stated that as a result of the shooting, he ran and went into his yard. Later, he went to look for his friend Franky Adams and saw him lying on the ground in Lilly Street. He then called the police. According to the witness, Franky was a member of the Thug Life gangster group, and Lorenzo Coetzee was a member of the Terrible Josters.

 

[68]      Mr Damon referred the court to several pieces of evidence which, according to him, corroborated Huston Christoffel's statement. Furthermore, the State argued that the unchallenged evidence of Ms J was that a war broke out between the Terrible Josters and the Thug Lifes after the death of Gershwin and Lelle in 2013. This war was in Delft-South. Mr Damon asserted that the shooting and killing of Franklin Adams, a member of the rival gang, is consistent with the evidence of Mr A as to how the Terrible Josters gang waged wars on rival gangs to expand their drug territory. Counsel submitted that the decisions and targets are taken by the leader and executed by the members of the Terrible Josters as employees of the organisation. Mr Damon implored the court to accept Mr Christoffels Huston's statement as evidence in this matter.

 

[69]      I have considered the nature of the evidence, the degree of the hearsay evidence, any interest in the outcome of the proceeding by the witness, the identification of the accused 3 by the witness, the prejudice that will be suffered by the accused if this statement is allowed. I have also considered the evidence of Ms J and Mr A, and the fact that this witness is deceased. In my view, it is in the interest of justice to allow this statement in these proceedings. I will however consider the evidential weight to be attached to this statement and the reliability thereof when I evaluate the entire evidence.

 

The State’s applications 12, 14 and 22 – Counts 30 to 32

 

[70]      Mr Damon on behalf of the State, also applied for the admission of the statements made by Theodore Thurston De Kock (application 12) and Lena Wilhemina De Kock (application 14) as evidence in these proceedings in respect of counts 30 to 32 of the indictment. The application in respect of the statement of Thurston De Kock was brought in terms of s 222 of the CPA, read together with sections 33 to 38 of the Civil Evidence Proceedings Act, alternatively, in terms of s 3(1)(c) of the Hearsay Act. The State relied on s 3(1)(c) of the Hearsay Act regarding Ms Wilhemina De Kock's statement.

 

[71]      The statements of Mr Thurston De Kock, marked exhibit C35, and that of Ms Lena Wilhemina De Kock, marked exhibit C32, relate to counts 30 to 32. The accused implicated in these charges are accused 1, 2, 8, 16 and 17. The three counts involve a charge of murder, possession of an unlicensed firearm, and unlawful possession of ammunition, respectively. In count 30, it is alleged that on 17 February 2013 in 3[...] R[...] Crescent Delft, the accused wrongfully and intentionally killed Franklin Christopher Gabriels, an adult male, by shooting him with a firearm. Concerning counts 31 and 32, it is alleged that on the said date, the accused unlawfully and intentionally possessed a 9mm semi-automatic pistol and ammunitions without the necessary licences or permits issued in terms of the Act to possess such firearm and ammunitions.

 

[72]      The two witnesses made multiple statements which underpin the State’s application in terms of s 222 of the CPA read with s 3(1)(c) of the Hearsay Act. To this end, the State applied that their statements be admitted as evidence since they have passed on. Mr Theodore Thurston De Kock passed away on 16 August 2020 of unnatural causes, and as a result, he cannot testify in these proceedings. The State also applied for the admission of the photo identification parade, in which Mr De Kock identified the individuals who were allegedly involved in the death of his brother as set out in count 30. This photo identification parade was marked exhibit C33, and the accompanying photo album name list, was marked exhibit C34.

 

[73]      The State also applied in its fourteenth application that the statement of Ms Lena Wilhemina De Kock, which was marked exhibit C32, be accepted as evidence in these proceedings. Ms Lena De Kock passed away on 30 August 2021. Her death certificate formed part of these proceedings and was marked exhibit C22. She is the mother of the deceased Christorpher Franklin Gabriels.

 

[74]      In his statement, exhibit C35, Mr De Kock (application 12), in summary, stated that on Friday, 02 December 2016, he met Sergeant Bonthuys at Bellville Court where the latter handed him a photo album consisting of 27 colour photos of coloured males and asked him to point out the suspect whom he saw shooting his brother Franklin Gabriels. The witness pointed Kapadien (accused 8) in the photograph, accused 17 (Nizaam), and accused 11 (Kleintjie) and Nathan (accused 16). The witness stated that accused 8 and 17 and one Nathan are the people he saw shooting his brother Franklin Gabriels. Accused 11 was together with accused 8 and 17 when his brother Franklin Gabriels was shot.

 

[75]      The photo album that was exhibited to this witness, in which he pointed out accused 8, 11 and 17, was marked Exhibit C33, and the photo album name list was marked Exhibit C34. The State applied that these exhibits be admitted as evidence in these proceedings in terms of s 222 of the CPA and, alternatively, in terms of s 3(1)(c) of the Hearsay Act. Mr De Kock further made two additional statements, which were marked exhibit C21 and C31, respectively. In its application 26, the State applied that these statements (C21 and C31) be admitted as evidence in these proceedings. In these statements, Mr De Kock further explained how Nathan, accused 8 and accused 17, allegedly shot his brother Franklin Gabriels. The witness also stated that Nizaam pointed the firearm at him (the witness), and the witness ran away.

 

[76]      In relation to application 14, Ms Lena De Kock, the mother of the deceased (Franklin Gabriels), briefly stated in her testament that on 17 February 2017, she was home from work, and she discovered that one Faizel was murdered and was lying on the field. This disturbed her, and she went home. Later, she sent her son, the deceased Theodore Franklin, to buy bread at the shop. Her son went to buy bread and never returned. Later, she was informed that her son was shot. She went out to investigate, and she saw accused 17, carrying a firearm and pointing it in all directions. Ms De Kock also prepared another statement (C23), in which the State also sought an order for it to be admitted as evidence in these proceedings. The said statement (C23) is based on hearsay evidence, and I deem it unnecessary to recount it in these proceedings.

 

[77]      Mr Johnson, Counsel for accused 8 and 17, indicated that he does not oppose the State’s applications, however, he aligned himself with the argument proffered by Mr Van Zyl on these counts. Mr Van Zyl opposed the application on behalf of accused 16 (Nathan). He submitted that the version given by Mr De Kock and the version of Ms E, the eyewitness of the shooting, were contradictory. Counsel argued that Ms De Kock has a motive and, particularly in that her son was murdered. Mr Van Zyl contended that it is not in the interest of justice to allow these statements.

 

[78]      The two witnesses are deceased. They cannot testify in this matter. They made their statements immediately after the death of the deceased. The witnesses had personal knowledge of the facts dealt with in the statement. In my view, Mr De Kock's statement satisfies all the requirements set out in s 34 of the Civil Proceedings Evidence Act and should be admitted as evidence in these proceedings. The statement of Ms De Kock, marked C23 (in application 14), is based on hearsay evidence. From the reading of the statement, Ms De Kock did not have personal knowledge of the information dealt with in her statement. She deposed to information that was relayed to her by her son – Thurston De Kock.

 

[79]      I am of the view that it should not be allowed as it will be prejudicial to the accused. However, I am of the view that her original statement - C32, quoted above, should be admitted in these proceedings. Consequently, I have considered the statements made by Thurston De Kock and Ms De Kock and the evidence led on these counts, and I am of the view that their statements, as well as the photo album (exhibit C33), the photo album name list (exhibit C 34) should form part of these proceedings. I will consider the evidential value to be attached to these statements and documents later when the totality of the evidence is evaluated.

 

The State’s applications 15 to 19 – Counts 71 to 73

 

[80]      The State applied to hand in the statements of Brandon Davids in its sixteenth application. Mr David is deceased. He passed away on 19 January 2021. He gave two statements that were marked as exhibit DDD8 and DDD10. These two statements relate to counts 71 to 73 of the indictment. These counts implicate accused 1, 2 and 4. In count 71 of the indictment, it is alleged that on 13 September 2014, at Silverboom Street, Delft South, in the District of Bellville, the accused wrongfully and intentionally killed Chad Clive Peterson, an adult male, by shooting him with a firearm. In counts 72 and 73, respectively, the State preferred a charge of possession of an unlicensed firearm and unlawful possession of ammunition.

 

[81]      The State’s fifteenth application is based on the hearsay evidence of Brendon Davids relayed to the arresting officer, Sergeant Lunga Mbomvu. Sergeant Mbomvu testified and filed a statement, which was handed in and marked as exhibit DDD1. As explained earlier, this statement, as well as the information related to the shooting of Chad that Brendon David relayed to him, underpins the state’s fifteenth application.

 

[82]      Sergeant Mbomvu asserted in evidence and in his statement that when he arrived at the scene of the crime, he spoke to the witness, Brandon Davids, who told him that he saw a coloured male known to him as Pang pointing a firearm at the deceased. When they tried to ask what was going on, Pang pulled the trigger of the firearm and shot the deceased in his head, and the deceased passed away. Mr Davids also told him that Pang works for a Drug Lord by the name of Koffie (accused 1) and is from prison. He went to no 8 Walton Street Delft South looking for Pang, and upon arrival, he found Pang sleeping. Pang took them to another Pang in Boyce Court. The Pang in Boyce court told him (the witness) that he has nothing to do with Koffie’s people. He then arrested Pang whom he found at 8 Waltons Street. 

 

[83]      In the State’s sixteenth application, the State applied to hand in a statement of Mr Brandon Davids. In his statement (exhibit DDD 8), Mr Davids stated that he went with his friend, Chad to the Spaza Shop to buy cigarettes. He went inside the shop and left Chad outside. On his return, he saw a coloured person known as Pang (accused 4) pointing a firearm at Chad’s face. The witness asked what was going on, and Pang pulled the trigger and shot Chad on the forehead, and Chad fell to the ground. After the shooting, Pang ran away and disappeared. He did not know the cause of the shooting.

 

[84]      In the seventeenth application, the State applied that the statement of Brandon Davids dated 15 September 2014, which was marked exhibit SSS33, and the photo identification parade marked SSS32, be admitted as evidence. The statement and the photo identification parade also relate to count 71 to 73. In that statement (exhibit SSS33), Mr Davids explained that on Monday, 15 September 2014, at 16h20, he attended a photo identification parade at 11 Tamarisk Court, Delft South, where Sergeant Bonthys with Constable Hagile, handed him a photo album. Mr Davids stated that he looked through the photo album and pointed out photo 8 to Sergeant Bonthys as that of Pang. He signed all the pages on the form and made an X over the photo he pointed out. He stated that Pang was the person who shot Chad because Pang thought Chad and Mr Davids were part of the Ghetto kid's gang.

 

[85]      After consulting with the State Advocate, the witness later deposed to another statement (exhibit DDD 10). The State applied in its eighteenth application for the court to admit this statement as evidence in these proceedings. In that statement, the witness indicated that the police officer who had taken the first statement from him did not read it statement back to him. He wanted to correct that statement. The correction in the statement was that he saw Pang holding Chad with his hand around the neck. As Chad was bending to light a cigarette, Pang drew a firearm from his front and shot Chad on the back of his head, and Pang ran away.

 

[86]      Mr Damon applied for the admission of the statements detailed above and the relevant identification documents in terms of s 3(1)(c) of the Hearsay Act, alternatively, in terms of s 34 of the Civil Proceedings Evidence Act. The State referred to several pieces of evidence that were led, as well as several exhibits contending that Mr David's statement is corroborated by other evidence on record. Mr Damon asserted that the witness described the address where Pang could be found to Sergeant Mbomvu, the arresting officer, to be 8 Walton Street, Delft South. Upon arrival at 8 Walton Street, Sergeant Mbomvu enquired who the person was, who is known as Pang (accused 4) and accused 4 confirmed he was Pang. He then arrested him. Accused 4 was arrested the following day after the shooting.

 

[87]      Mr De Villiers, counsel for accused 1, 2, and 3 opposed the State's application. Counsel submitted that at the foundation of our criminal law, the premise is that it is better that a guilty person goes free than an innocent person be convicted. Counsel further contended that courts, in general, exhibit reluctance to permit untested evidence to be used against an accused in a criminal case. Mr De Villiers argued that at the time Brandon Davids made the statement, Mr Davids had an interest in the outcome of the case pending anticipated proceedings. According to counsel, exhibit DDD8 is a version of a single witness which should be approached with the necessary caution. Counsel submitted that before it can be admitted as evidence, it must be established if Brandon Davids's version is reliable.

 

[88]      Mr Strauss, the attorney for accused 4, opposed the application and asserted that this is a murder charge. Mr Strauss argued that the State’s case would stand or fall on this evidence. Mr Strauss submitted that the State seeks to have the accused incarcerated in prison for life. The admissibility or not, of the tendered hearsay evidence will play a crucial and decisive part in convicting the accused. It was Mr Strauss’ submission that the crucial role of this evidence lies in the fact that without this specific hearsay evidence, including the photo identification of accused 4, there is no other evidence to implicate any person in the killing of the deceased. To this end, Mr Strauss besought the court to rule this piece of hearsay evidence inadmissible as it would not be in the interest of justice to admit it.

 

[89]      There is a plethora of prima facie evidence led in respect of these counts against accused 1, 2 and 4. The statement of Brendon Davids was made immediately after the shooting when the police arrived at the scene. The doctor who performed the postmortem report testified in this matter and explained the trajectory of the projectile that killed the deceased. According to the doctor, the deceased was shot from behind the head and was in a somewhat bending position when he was shot. There were other exhibits, including the warning statement of accused 4 and the statement of Austin Munnick, the person accused 4 stated, spent the whole evening with on the day of the alleged murder.

 

[90]      I have considered the nature of the evidence and the interest of the witnesses in the outcome of the proceedings, and I have also considered the prejudice that may be suffered by the accused if the statement and relevant exhibits are admitted. I have also considered other evidence that supports the deceased statement, and I am of the view that it is in the interest of justice that the statements and the relevant exhibits in these counts be admitted as evidence. Similarly, I will, however, determine the persuasiveness and evidential value to be attached to these documents later during the evaluation of the whole evidence. To this end, the State’s application for the admission of these documents succeeds.

 

The State’s 19^th application – Counts 71 to 73

 

[91]      The State’s nineteenth application also concerns counts 71 to 73. In this application, the State seeks to introduce the hearsay evidence of Austin on what he told his mother, Ms J, who testified in this matter. Mr Austin Munnick has since passed away of unnatural causes on 02 January 2021. Ms J testified that she never knew who shot her son in 2014, but her son told her that the person responsible was killed by the Terrible Josters by being shot in the head. Ms J also testified that her son told her this on the same night that the deceased was shot in the head and that the perpetrator who shot Austin Munnick was a Ghetto Kid. Her evidence is that she never knew the identity of the shooter, but her son never made a case because the shooter had been killed. Ms J further testified that her son Austin sold drugs (mandrax, dagga and tik) for accused 1 at 8 Walton Street, Delft South.

 

[92]      Without delving into the merits of the matter, which will be determined later in these proceedings, in my opinion, her evidence is relevant in the just determination of the outcome of this case. Ms J had no interest in this matter. Her son is deceased. She does not know who killed her son. She has no interest in the matter. Her son has no interest in the matter as he is deceased. I have considered the nature of her evidence, the prejudice to the accused, the degree of the hearsay evidence. I have also considered the evidence of other witnesses that is consistent with her evidence, and the purpose for which the evidence was tendered, and I am of the view that it is in the interest of justice that what her son communicated to her, be admitted as evidence in this matter. The strength and the weight of the hearsay evidence will be dealt with later when I deal with the evaluation of the whole evidence.

 

The State’s 20^th application – Counts 91 to 93

 

[93]      Mr Damon applied for the statement deposed to by one Siphosetu Tsubata Kaleni to be admitted in terms of s 3(1)(c) of the Hearsay Act as evidence in these proceedings. Mr Kaleni's statement was marked exhibit RRR14 in this matter. Siphosethu Kaleni is deceased and can't testify in this matter. His death certificate was marked exhibit RRR5 in these proceedings. He died of unnatural causes. He was the complainant in these counts. The accused implicated in these charges are accused 1, 2 and 4.

 

[94]      This application involves counts 91 to 93. Count 91 involves a charge of Attempted Murder. It is alleged that on 12 April 2015 at Wallace Street Delft South, in the District of Bellville, the accused unlawfully and intentionally attempted to kill a male person by shooting him with a firearm. The State did not want to disclose the name of the complainant out of fear for his safety. In counts 92 and 93 respectively, the State preferred a charge of possession of unlicensed firearms and unlawful possession of ammunition against the accused respectively. It is alleged that on the said date and place, the accused unlawfully and intentionally possessed a 45-calibre pistol and had 45mm rounds of live ammunition in their possession without being in lawful possession of a license or permit to possess such firearm and ammunition.

 

[95]      In the said statement, Mr Kaleni stated that on Sunday, 12 April 2015, at 02h45, he was standing next to a house at 52 Wallace Street Delft South, when a coloured male known to him as Pang came and shot him three times on his body without asking anything and ran away after the shooting. Mr Kaleni also stated that one shot struck him in his right ribs, one on his left thigh and the other in his back. After he was shot, he ran to his house, where he stayed, in Wallace Street Delft, and his clothes were covered in blood. His brother called the police, who came and arranged for an ambulance. He was taken to the Tygerberg hospital. Mr Kaleni stated that his assailant, known as Pang, resides at 3[...] B[...] St Delft.

 

[96]      The injuries of the complainant were not disputed. It was rather admitted by the defence, specifically accused 4 in the formal admissions marked exhibit R. Several witnesses testified in respect of these charges, including the police officers who attended the scene immediately after the shooting and the original investigating officer of the matter, Sergeant Hagile. Sergeant Hagile testified that the complainant did not know Pang's real name but indicated that Pang resided at 3[…] B[...] Street.

 

[97]      According to Sergeant Hagile, the complainant sold drugs from 66 Wallace Street, whose people were the rivals of the Terrible Josters. Sergeant Hagile stated that the complainant, told him that Pang shot him because the complainant was selling drugs at 66 Wallace Street, which was the rival of Pang's gang. Sergeant Hagile followed up by going to 3[…] B[...] Street, where it was confirmed by a coloured lady, claiming to be Pang's mother, that Pang stayed there, but he (Pang) came and went. He stated that Pang is Moegamat Moeniers. Sergeant Hagile identified accused 4 as the person he knows as Pang, who stays at 3[…] B[...] Street.

 

[98]      Constable Victoria Manengela's evidence was that when they arrived at the crime scene, they found the discharged cartridges outside 52 Wallace Street premises. She then took a statement from the complainant and made an entry in the investigating diary of the docket, marked as exhibit RRR15 in these proceedings. She stated that the complainant could not sign the statement due to pain. Members of the LCRC also came and did the necessary investigation. Ms F, who was with the deceased when the shooting happened, also testified and identified accused 4 as the person who shot the deceased. Ms F attended a photo identification parade, which was marked exhibit RRR10, and identified accused 4 as the person who shot the deceased.

 

[99]      Mr Strauss, the attorney for accused 4, opposed the application and contended that an accused person has a right to a fair trial, which includes the right to adduce and challenge evidence. Mr Strauss further submitted that it is difficult to challenge hearsay evidence as such evidence does not give the court an opportunity to assess the demeanour of the witness and therefore the credibility of the person who alleged to have made the statement. According to Mr Strauss, such evidence does not allow for questions to the missing witness to obtain clarity as to what he is, in fact, saying or what his suspicion(s) is based on. In particular, it does not allow for cross-examination to challenge and test the veracity of such evidence.

 

[100]   I do not intend to deal with the merits of this matter. I must however, mention that the nature of the proceedings, as criminal proceedings self-evidently militate against admission of hearsay evidence. However, the inquiry does not end there. It cannot be disputed that Mr Kaleni wanted to see justice being done for the injuries he sustained when he was shot. There is nothing wrong with this. Furthermore, the complainant’s statement must not be looked at in isolation. It should be considered in light of other evidence that was led.

 

[101]   I have considered the nature of the evidence, the fact that the statement was taken immediately after the shooting, and the degree of the hearsay evidence relayed to Sergeant Hagile. I have also looked at other evidence particularly of Ms F and the police officers who attended the scene after the shooting and other evidence that is consistent with this statement. I have also considered the purpose for which this statement is tendered as evidence, and I am of the view that it is in the interest of justice that the statement of the complainant Mr Kaleni be allowed as evidence in these proceedings. I am of the view that the hearsay evidence relayed to Sergeant Hagile must also be provisionally admitted. Equally, I will consider the evidential value of this evidence when the totality of the evidence is evaluated.

 

[102]   Furthermore, I agree with the views expressed by Mr Damon that the admission of this statement and the hearsay evidence relayed to Sergeant Hagile as evidence does not violate any of the accused fair trial rights in terms of s 35(3) of the Constitution. It cannot be said that the admission of the hearsay evidence caused the accused to have an unfair trial because it prevented the accused from exercising fair trial rights. This Court still retains the discretion after hearing all the evidence, at a later stage of the trial, to decide that it will disallow the evidence that has been admitted.

 

[103]   As explained earlier, nothing prevents the accused from exercising their rights in terms of the CPA. The admission of the evidence is not a conviction of the accused. The accused may still apply for discharge in terms of s 174 of the CPA, if they are of the view that no evidence has been adduced to prove their guilt. In the result, the statement of Tshubata Kaleni and exhibit RRR15 are hereby accepted as evidence in these proceedings.

 

The State's applications 21, 22, and 30 – Counts 25 to 28.

 

[104]   The State is also applying to have the statements deposed to by one Anathi Sinkwane (application 21) and the statement of Thurston Remmitz (application 22) be admitted in terms of s 3(1)(c) of the Hearsay Act as evidence in these proceedings. The accused implicated in these charges are accused 1, 2 and 3. Count 25 involves a charge of attempted murder. It is alleged that on 15 August 2012, at 8 Walton Street Delft South, in the District of Bellville, the accused unlawfully and intentionally attempted to kill a male person by shooting him with a firearm. The State also preferred a charge of possession of an unlicensed firearm in respect of count 26 and unlawful possession of ammunition in respect of count 27.

 

[105]   In count 26, it is alleged that on the said date and place, the implicated accused unlawfully and intentionally possessed a 9mm semi-automatic pistol without holding a license, permit or authorisation issued in terms of the Act to possess the said firearm. In count 27, the State alleged that on the said date and place, the accused did unlawfully have in their possession ammunition, to wit, an unknown quantity of 9mm live rounds ammunition, without being in lawful possession of a license in respect of a firearm capable of detaching that ammunition or a permit to possess such ammunition.

 

[106]   Anathi Sinkwane, the complainant in these charges, and Thurston Remmitz, the witness, are both still alive. Nevertheless, the investigating officer stated that these witnesses could not be located. Thurston Remmitz’s statement underlies the State’s twenty-second application brought in terms of s 3(1)(c) of the Hearsay Act. Anathi Sinkwane's statement was handed in and marked as exhibit XXXX14. The statement of Thurston Remmitz was also handed in and marked as exhibit XXXX13.

 

[107]   In summary, in his statement, Mr Sinkwane indicated in his statement that on Wednesday, 15 August 2012, at approximately 9:30 AM, he was on duty in Delft South. His responsibility involved reading water meters throughout the area. He visited 8 Walton Street to check the meter. He opened the meter, and as he focused on reading it, a coloured male approached from outside the yard and enquired about his presence there. He then informed him that he was reading the water meter. The coloured male entered the house and returned with other two individuals. One of them possessed a piece of wood, while the other held an empty bottle. They struck him with the wood and the bottle before seizing him.

 

[108]   He decided not to leave it unresolved and, determined to read the meter, he went inside the house to speak to the owner. When he knocked at the door, the first coloured young man who opened the door had a firearm in his hand. The young man fired one shot at the complainant, and the complainant fell to the ground, and the coloured man closed the door. The complainant stated he was shot on his left hip. He got up and walked to the opposite neighbours, who later took him to the hospital for treatment.

 

[109]   He later filed a statement relating to the photo identification parade which he attended on 4 February 2017. The said statement was marked exhibit HHHH21. In his second identification statement, he stated that he was handed the photo album consisting of faces of coloured and black males. He was asked to identify the suspect who shot him and those who assaulted him. He looked through the photo album for a long time. According to Mr Sinkwane, he believes that it was suspect 24 on the photo album, which is accused 3 in this matter, who shot him. However, he stated that he’s not sure because this happened a long time ago. He could not identify the two suspects who assaulted him. The photo album was handed in as exhibit HHHH20 in these proceedings. The medical records confirming that the witness suffered a gunshot wound on his pelvis were handed in and marked as exhibit XXXX15.

 

[110]   The State also applied for admission of Thurston Remmitz's statement as evidence in these proceedings. The statement of Thurston Remmitz underpins the state’s twenty-second application brought in terms of s 3(1)(c) of the Hearsay Act. This application is also based on counts 25 to 27. Mr Remmitz’s statement was marked as exhibit XXXX16. The statement is also linked to the attempted murder charge of Anathi Sinkwane.

 

[111]   In summary, Mr Thurston Remmitz stated that he had knowledge of the shooting that took place which involved Lorenzo, (accused 3) a 28 Terrible Joster gang member. The witnesses stated that on the day in question, he was at Delft Main Road when he heard a gunshot in the direction of Boyce Court in Delft South. The gunshot was from the house of Koffi - accused 1. As he was standing, Lorenzo came running past him with a firearm in his hands. As Lorenzo was running away people shouted at him saying he has an evil mind for shooting an innocent person who was just doing his work. The witness then went to Boyce Court to see if any person was shot and then upon arrival, he discovered that it was the person who was reading the meter who was shot.

 

[112]   Mr Damon applied for the admission of the statement of Johannes Sawyer, the police officer who attended the scene of the shooting and arrested the young men at 8 Walton Street for questioning. His statement was marked exhibit PPPP. Warrant Officer Sawyers’ statement underlies the State’s twenty-eight application on these counts (counts 25 to 27). He was doing patrols and attended to a shooting complaint at 8 Walton Street. The complainant reported to him that an unknown suspect shot him as he was attending to read a water meter. He arrested six suspects he found at 8 Walton Street for questioning.   

 

[113]   Mr Damon referred the court to the seven factors set out in s 3(1)(c) of the Hearsay Act and submitted that Anathi Sinkwane has an interest in the person who shot him being brought to book, which in principle adversely affects the reliability of his evidence. Mr Damon argued further that the witness has no reason to be biased against the accused, as from the statement, he does not know his attacker. However, his evidence as to the identity of the shooter is corroborated by the evidence of Thurston Remmitz. Mr Damon stated that the evidence indicates that the witness was attacked during the execution of his duties of reading the water meter and not any criminal activities related to any gang activity.

 

[114]   As far as the admissibility of Thurston Remmitz’ statement is concerned, Mr Damon submitted that Thurston Remmitz has no interest in the person who shot Anathi Sinkwane being brought to book, which in principle does not affect the reliability of his evidence. The witness has no reason to be biased, as from the statement, he does not know the victim. His evidence regarding the identity of the shooter is corroborated by the evidence of Anathi Sinkwane. According to Mr Damon, the evidence indicates that the victim was attacked during the execution of his duties of reading the water meter and not related to any criminal activities or any gang activity. To this end, Mr Damon implored the court to admit the two statements as evidence in these proceedings.

 

[115]   Mr De Villiers, on behalf of accused 3, submitted that the State cannot be allowed to use s 3(1)(c) of the Hearsay Act to have evidence admitted while knowing that the state itself and their witnesses are responsible for not giving viva voce evidence. If permitted, Counsel argued that it would negate the provisions of s 161 of the CPA and the basic principles of a fair trial. It would also open the door for the State in the future to simply hand up statements of witnesses without having their evidence tested during cross-examination.

 

[116]   In addition, Mr De Villiers contended that to determine the admissibility of the statement of Anathi Sinkwane (exhibit XXXX14) the Court should consider the fact that Mr Sinkwane did not identify the shooter in his statement and that it is doubtful if Mr Sinkwane made the correct identification during the photo identification of accused 3. According to Mr De Villiers, the statement of Thurston Remmits (exhibit XXXX16) does not corroborate the version of Anathi Sinkwane in exhibit XXXX14, and that Mr Remmitz was not present at the crime scene. He was only provided with secondary hearsay information from the public regarding the identity of the shooter.

 

[117]   As with the previous applications, I will not deal with the merits of the case. However, it is not in dispute that the shooting of Mr Sinkwane happened in Delft-South. It is further common cause that Mr Sinkwane was shot on his left hip while he was employed as a water meter reader in Delft-South. His medical record has not been disputed. From the reading of his statement, it cannot be said he is biased against any of the accused. According to Thurston Remmitz, the person who was shot was a meter reader. He went to see him and discovered that he was shot. In my view, the evidence from the two witnesses and the hospital records must be read together and not disjointedly.

 

[118]   Sergeant Van Wyk, the investigating officer, testified on the unavailability of both Mr Sinkwane and Mr Remmitz. He testified that this witness cannot be traced. Ostensibly, the overriding factor is fear of the accused. Both witnesses have been shot, one in the stomach, and the other in his hip. In the circumstances, the fear of testifying cannot be simply ignored. The investigating officer indicated that numerous attempts have been made, including obtaining warrants to search and arrest these witnesses. He obtained J50 warrants for both witnesses. He traced these witnesses since 2020. He stated that the witness Anathi Sinkwane changed address many times. He tried to contact him on his cell phone however, the witness changed his numbers. This court authorised warrants of arrest after the same was applied for by the State for the arrest of these witnesses. Some of the witnesses were arrested and brought to court. The evidence of the investigation officer was that he made a concerted effort to trace these witnesses with no success.

 

[119]   I have considered the evidence on these counts, the statement of the witnesses and the degree of the hearsay evidence contained in the statements, I have also considered other evidence that matches with these statements, I have also considered the prejudice that the accused may suffer when these statements are allowed, the purpose for which this application is brought. I am of the view that it is in the interest of justice that the statements of these witnesses in the state’s application 21, 22 and 30 be allowed as evidence in this matter. Notwithstanding, I will consider the reliability and the evidential value to be attached to these statements when the totality of the evidence is evaluated.

 

The State’s applications 23 and 27– Counts 1 – 145

 

[120]   The State applied for the third statement of Thurston Remmitz, deposed on 29 August 2020, and the hearsay evidence of Elton Eli to Mr A to be admitted as evidence in this matter. The evidence of each witness relates to counts 1 – 145. Mr Elton Ely is deceased, and he cannot testify in this matter. Thurston Remmitz’s third statement was marked exhibit XXXX 13 in these proceedings. According to the state advocate, the third statement of Mr Remmitz applies to all the 145 charges levelled against the accused.

 

[121]   In brief, Mr Remmitz stated that he had lived in Delft South for fifteen years, he grew up there and attended school in the area. The 28 Terrible Josters is a gang that is known to him, and that has caused fear and terror in Delft under the leadership of Koffie (accused 1), who lived in Boyce Court Delft South. Koffie is known to him as the leader of the Terrible Josters and is a well-known drug lord in Delft. Mr Thurston averred that Koffie had several gang members under his control to whom he gives instructions to sell drugs, to assault people, or to kill people who sell drugs in his area in competition with him or to attack rival gangs. Mr Thurston stated that many people became the victims of Koffie and his gang members. He observed as he was growing up in Delft how Koffie and his gang members sold drugs for him. Mr Thurston further stated that Koffie owns several houses in Delft which are used for selling drugs.

 

[122]   Thurston Remmitz also stated that Koffie owns several vehicles which are used to transport and sell drugs. The vehicles are used for the transportation of weapons, in particular firearms. The witness asserted that he has always seen how Koffie or Muis (accused 2) distributed drugs to other gang members for the purpose of selling. Mr Thurston further stated that he personally witnessed this firsthand when the drugs were distributed to the various gang members to sell. Two of the gang members are known to him because they went to school together. It is Lorenzo and Pang. He does not know Pang’s actual name, but he knows him because he had a love relationship with Pang’s younger sister. According to Thurston, Koffie and his gang members are known for shooting and selling drugs in Delft South. The community in Delft South fears the 28 Terrible Josters gang.

 

[123]   Mr Damon, on behalf of the State, argued that the purpose of this evidence is intended to prove that the Terrible Josters in Delft-South is a gang that sells drugs. Secondly, the evidence proves that accused 1 and 2 were the leaders of the gang, and thirdly, the admission of the evidence proves how the Terrible Josters in Delft-South operated for years. Mr Damon also submitted that the admission of the evidence does not violate any of the accused's fair trial rights in s 35(3) of the Constitution. The court itself, in terms of s 165 of the Constitution, still retains the discretion, after hearing all the evidence, to, at a later stage of the trial, decide that it will disallow the evidence that has been admitted.

 

[124]   As discussed earlier in this judgment, the fear of witnesses to testify in this case cannot be ignored or discounted. There are allegations made in this court that Mr Remmitz was shot by accused 3 in the accompany of accused 4 at Melkhouts Street in Delft. Those allegations are still to be tested or proven. This court must still consider the evidence of Mr A as well as the hearsay evidence conveyed to him by Elton Eli regarding the plan to kill one, Donny Braskat, vis-à-vis other evidence that has been led and some evidence that will be tendered by the accused if it becomes necessary for them to testify. However, Mr A’ s evidence was that he was one of the members of the Terrible Josters. He understood their language. He explained the structure of the gangs in prison and the street gangs. According to Mr A, the modus operandi of the Terrible Josters is that they buy witnesses not to attend court or kill them at times. The truthfulness of Mr A’ s evidence will be considered by the court when the totality of the evidence is evaluated.

 

[125]   I am mindful of the provisions of sections 161(1), 183 and 184 of the CPA,[11] but I am of the view that the fear of these witnesses to testify herein should be viewed at least from this perspective. Moreover, the investigating officer indicated that Mr Remmitz cannot be traced. A warrant of arrest was issued, but he could not be taken into custody as he is untraceable. Based on the prima facie evidence led in this case thus far, the purpose for which this evidence is tendered, the degree of the hearsay evidence, any prejudice to the accused. I am of the view that it is in the interest of justice that the statement of Thurston Remmitz must be admitted into evidence.

 

[126]   The reliability and evidential value of the statement will be determined when the totality of the evidence is considered at the end of the trial. In my view, the accused will suffer no prejudice if this statement is admitted. As previously stated, in presenting their case, if it becomes necessary that they should testify, the accused can still refute or challenge these allegations.

 

The State’s application 25 – Counts 4 to 6

 

[127]   Mr Damon also applied for James Joseph Louw's statement to be admitted as evidence in this matter. James Louw is deceased, and his death certificate was marked exhibit KKKK in these proceedings. James Louw's statement relates to counts 4 to 6 of the indictment. These counts implicate accused 1 only. Count 4 involve a charge of pointing of anything which is likely to lead a person to believe it is a firearm. Counts 5 and 6 involve a charge of intimidation and corruption, respectively. In count 4, it is alleged that on 5 March 2002 at Bishop Lavis, the accused unlawfully pointed anything which is likely to lead a person to believe that it is a firearm, an object resembling a firearm, at a witness without good reasons to do so.

 

[128]   In count 5, it is alleged that during March 2002 and June 2002 at Bishop Lavis Magistrates Court, the accused did unlawfully with the intent to compel or induce the complainant not to testify in court by threatening to kill the complainants' family member by shooting him with a firearm. In count 6, the State alleged that on 25 April 2002, Bishop Lavis court in the district of Goodwood, the accused offered to give gratification of R1000 for a benefit to a witness to withdraw a criminal charge levelled against accused 1.

 

[129]   The statement of James Louw is in respect of these counts. The State brought an application in terms of s 3(1)(c) of the Hearsay Act to have the statement of Mr James Louw admitted as evidence against the accused. In brief, in his statement, Mr James Louw stated that the day when Elton Lenting pointed the witness' sister with a firearm. Elton Lenting called him and said he must quickly bring that baby gun to him as the complainant was taking him for a fool. The witness then gave him a toy gun. Elton then pointed the said gun at the witness’ sister, who was with Pearl and Melissa. The witness’ sister and her friends, walked away. The witness stated that he is not under the influence of Elton Lenting. Furthermore, Mr Lenting does not force him to sell dagga. He also stated that Mr Lenting is not a member of a gang. He only has a tattoo of 28 gang.

 

[130]   Ms H, the complainant in respect of these counts, testified how accused 1 allegedly threatened and pointed a firearm at her. These allegations were disputed by accused 1 through cross-examination. The veracity of these allegations will be determined when the entire evidence is evaluated. Mr Damon referred the court to the seven factors set out in s 3(1)(c) and implored the court to allow the evidence into the record. Mr De Villiers, submitted on behalf of accused 1, that Mr James Louw was the brother of the victim (Miss H) and witnessed how a firearm was pointed at his sister. Counsel submitted that Mr Louw had an interest in the outcome of the pending or anticipated proceedings. Mr De Villiers also pointed out the discrepancies and alleged contradictions between Ms H's evidence and Mr Louw's statement. Mr De Villiers submitted that Mr Louw’s statement could not be viewed as reliable evidence, and it would not be in the interest of justice to be admitted as evidence.

 

[131]   As previously stated, in evaluating the evidence at the end of the trial, the court must adopt a holistic approach and consider the evidence in its totality, including the evidence of the accused, together with the hearsay statement, to determine the truthfulness, reliability of the statement. The statement of Mr Louw to some degree exculpates accused 1 from the charges against him. Considering the prima facie evidence led by the State thus far in respect of these counts, the nature of the evidence led, any prejudice that may be suffered by the accused and all the allegations made in respects of these counts, I would allow this statement to be admitted into the record. However, this is an interlocutory finding. I will revisit the truthfulness and the evidential weight of this statement while evaluating the evidence.

 

The State’s applications 28 and 29 – Counts 10 to 12 and Count 119

 

[132]   Mr Damon also applied for the statements deposed to by Ernest Olivier to be admitted in terms of s 34 of the Civil Proceedings Evidence Act as evidence in these proceedings. The handwritten statement of the witness was marked exhibit VVVV 3, and the typed statement was marked exhibit VVVV 2. This statement underpins the State's application in respect of counts 10 to 12. The accused implicated in these charges are accused 1 and 2. Count 10 involves a charge of attempted murder. It is alleged that on 14 March 2004, at or near River Road, Bishop Lavis in the District of Goodwood, the accused unlawfully and intentionally attempted to kill a male person by shooting him with a firearm. The name of the person was not disclosed to protect him. The State also preferred a charge of possession of an unlicensed firearm in respect of count 11 and unlawful possession of ammunition against the accused in respect of count 12.

 

[133]   In count 11, it is alleged that on the said date and place, the concerned accused unlawfully and intentionally had in their possession two firearms, the further details of which are unknown to the State, without holding a license, permit or authorisation issued in terms of the Act to possess the said firearms. In count 12, the State alleged that on the said date and place, the accused did unlawfully have live ammunition in their possession without lawful possession of a license in respect of a firearm capable of discharging that ammunition or a permit to possess such ammunition.

 

[134]   The complainant in these charges is Ernest Olivier. The medical report dated 10 June 2022, provided by Dr Abbas from Bishop Lavis Community Health Centre, shows that this witness is ill. The doctor noted that the witness struggles with his speech and struggles to understand and talk and becomes forgetful at times. The State brought an application that his statement, which was marked exhibit VVVV1 and VVVV2 in respect of counts 10 to 12, be admitted as evidence in these proceedings. In his statement, Mr Olivier explained how he was allegedly shot by the accused.

 

[135]   The State also brought an application regarding the statement of Shane Hector, marked exhibit XXXX17, who allegedly arrested accused 2 for dealing in drugs at Waltons Street, Delft South, to be admitted as evidence in these proceedings. Mr De Villiers argued on behalf of accused 1 that Mr Olivier's difficulty in speaking does not prevent him from testifying in court. ln addition, it is the court and not the State that should rule on the competency of Mr Olivier to testify.

 

[136]   The application of the State for the admission of these two statements is made in terms of s 34 of the Civil Proceedings Evidence Act. The original statements were submitted. The witnesses cannot testify in this matter due to ill health. The statement dealt with facts falling within his personal knowledge. In my view, these two statements comply with the requirements of s 34 and must be admitted. I am mindful of s 193 of the CPA that the Court in which criminal proceedings are conducted shall decide any question concerning the competency or compellability of any witness to give evidence. However, the circumstances of this case are distinct.

 

[137]   This Court has been furnished with medical evidence that Mr Olivier struggles with his speech, struggles to understand and talk, and becomes forgetful. This is caused by other illnesses that were highlighted in the medical report, which I deem unnecessary to point out in this judgment. Similarly, the evidential value to be attached to this statement and that of Shane Hector will be dealt with in due course when the totality of the evidence is evaluated. The State's application for the admission of these statements hereby succeeds. The State’s application in respect of counts 10 and 13 raises complex legal issues and I will deal with those applications separately.

 

 

LEKHULENI JD

JUDGE OF THE HIGH COURT

 

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