IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) CASE NO: CC107/15 9 & 10 November In the matter between: THE STATE.

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1 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 (GAUTENG DIVISION, PRETORIA) DELETE WHICHEVER IS NOT APPLICABLE (1) REPORTABLE: YES/NO (2) OF INTEREST TO OTHERS JUDGES: YES/NO (3) REVISED CASE NO: CC107/15 9 & 10 November DATE SIGNATURE In the matter between: THE STATE and SHELDON CLINT CHICCO ABRAHAMS JUDGMENT Baqwa J

2 [1] The accused herein has been charged with seven counts of murder, attempted murder, two counts of pointing of a firearm, kidnapping, possession of a firearm and possession of ammunition. [2] The accused pleaded not guilty to all the charges and his legal representative confirmed that the plea was in accordance with his instructions. [3] The accused tendered a plea explanation in terms of Section 115 of The Criminal Procedure Act of 1977 (CPA) which was to the following effect: 3.1 He denied all the allegations against him contained in the charges and stated that with effect from 10 February 2011 to 9 September 2011, which was the date of his grandmother s death, he was at 3 M.. Street, H., B. staying with one Mr Bramwell Dow. 3.2 He was not present during the commission of the offences charged. [4] The accused and his legal representative confirmed that he understood the provisions of Section 51 (1) of the Criminal Law Amendment Act, Act 105 of 1997 ( The Minimum Sentences Act ). [5] The State submitted exhibits A, B and C which were admissions made by the defence in terms of Section 220 of the Criminal Procedure Act. [6] In terms of exhibit A, the defence admitted that: 6.1 Dr F. Beccia conducted a post-mortem examination on the body of the deceased mentioned in the indictment, namely Jerry Martin Smith, on 29 June

3 6.2 The facts and findings noted in the post-mortem report, recorded during the post-mortem, are correct. 6.3 The cause of the deceased s death, as recorded in the post-mortem report is correct, namely, veelvuldige beserings meaning, multiple injuries. 6.4 The body of the deceased did not sustain any further injuries form the time the injuries were inflicted on or about 26 June 2011 until the postmortem was performed. [7] The correctness of photographs taken by Constable R. Struwig on 26 June 2011 and the key thereto was admitted and they were handed in as exhibit C. The Background [8] According to the summary of substantial facts in terms of Section 144 (3) (a) of Act 51 of 1977 it is alleged that during the evening of 26 June 2011 the deceased in count 1 went to a house where the accused was present. They quarrelled. After knocking the deceased down, the accused assaulted him by kicking him. [9] The complainant in counts 2 and 3 intervened to try and stop the assault. The accused pointed a firearm and fired a shot at or near him. [10] Due to the intervention of the complainant in counts 2 and 3 the deceased managed to run away. The accused and an unknown person chased after the deceased whilst firing shots at him. 3

4 [11] Upon his return to the house, the accused, pointed a firearm at the complainant referred to in counts 4 and 5 and forced him to drive the accused to a spot where the deceased lay. The accused and the unknown person loaded the deceased into the motor vehicle. The complainant in count 4 and 5 was forced to drive to a dumping site where the accused and the unknown person dragged the deceased into the veldt. The complainant saw flames emanate from that direction. [12] The body of the deceased was discovered later that day. The Evidence [13] The State called the evidence of Constable Mmatlou Christoph Nyaku who was the policeman who first received a report about the body of the deceased being discovered on 26 June He came upon the body of the deceased after it was pointed out to him. It was covered with stones and trees and it had been burnt with tyres. He summoned the assistance of a photographer and a Detective Constable Baloyi who was on standby from the Local Criminal Record Centre. [14] The next witness was Geronovin Buitendaght who was an installation foreman at Ebbeyware Components, Boksburg. He testified that on the day in question, a Saturday night, he and the deceased, Martin Smith went to a house in Square Hill Street. This happened after they had had a few drinks at Suki s Tavern. Both Suki s Tavern and Square Hill Street are in a township known as Geluksdal. The purpose of going to Square Hill Street was to procure drugs. [15] Upon arrival at the drug house he alighted from his vehicle and entered the premises to make a purchase. The transaction was made through a burglar guarded door in a house in which the lights were switched off. There were a number of other people in the immediate vicinity of the house. 4

5 [16] When Geronovin exited he noticed that there was a fight between the accused and the deceased. The accused was in possession of a 9mm handgun and the deceased was on the ground. The accused fired a shot towards Geronovin but he was not hit. He tried to speak to the accused to stop the fight but the accused told him to stay out of it as it was none of his business. [17] As they were exchanging words the deceased got up and ran down the street. The accused ran after him. Geronovin followed suit. The accused s friend who had an orange scarf and hooded top also ran after them. The deceased got to a fence but could not scale it. A few shots rang out and the deceased fell down. Thereafter the deceased limped towards the wall opposite the fence. Geronovin begged the accused and his friend not to do anything further to the deceased. At that stage Geronovin received a report that some people were trying to steal his father s bakkie in which he was travelling. He went back to the bakkie and drove to Suki s to search for help. [18] At Suki s he found the deceased s brother Sticks and they returned to where he had left the deceased. They drove around until they saw Randall Gameson s car, a white Tata at Labore. They gave chase and when they caught up with it, two shots were fired at them. They turned around and drove off. They could not see who fired the shots. Geronovin returned to Suki s where he dropped Sticks off. He then went to Kwa Tema where he stayed the night. He learnt the following day that the deceased had passed on when he was called by the deceased s mother who wanted to know where the deceased was. [19] The next witness was Randall Gameson who also lives in Geluksdal. He went to the same high school as the accused and at some stage they lived in the same street in Geluksdal. He had also seen the deceased in Square Hill when the latter arrived with Geronovin. He had witnessed the altercation between the accused and the deceased. He testified that he also witnessed the 5

6 accused and his unknown friend kicking the deceased whilst the latter was on the ground. He saw the deceased run away and the accused, Geronovin and the accused s unknown friend running after the deceased. They soon went out of his sight. [20] After a short while the accused returned and pointed at him with a firearm. He ordered him to drive and go to pick up the deceased as he could not leave evidence lying in the open. Gameson testified that he feared for his life and complied. They drove to where the deceased was lying. [21] At the spot, the accused and his friend picked up the deceased and put him at the back seat. At this stage he was still breathing heavily. Thereafter the accused got into the front seat and his friend got into the back seat. He was ordered to drive to Labore with the firearm pointed at him. [22] At Labore the deceased was taken out. They stamped/trampled on his head and then dragged him towards some trees. They came back and ordered him to drive to Rocky Rapids Street where they retrieved some tyres and then drove back to Labore. He was then ordered to face a different direction. They went out with the tyres and then came back and told him to drive again, when he checked in the rear view mirror he saw flames. They stopped at a Shell garage where the accused went out to buy airtime. Gameson then dropped the accused and his friend off and went home. [23] Later that morning Gameson went to church where the deceased s mother enquired about her son. Later that day Gameson made a report to the deceased s mother and they then proceeded to report the matter to the police. 6

7 [24] The State also called the evidence of Godlive Baloyi who was the investigating officer. He attended the retrieval of the body of the unknown person found in Labore. Whilst he was thinking of engaging the media for assistance, in came the witness Gameson together with some members of the deceased s family. That is how he got to know who the deceased was and how he had met his death. The Law [25] The nature of the evidence that has been led by the State has been both direct and circumstantial. Evidence that asks a trier of fact to consider the second tier of inferential reasoning in addition to the first is referred to as circumstantial evidence. Evidence that involves only the first tier is called direct evidence. Vide Zeffertt, Paizes & Skeen The South African Law of Evidence (Second Edition) p. 99 [26] The cardinal rules of logic were set out in R v Blom 1939 AD 188 at where Watermeyer JA stated as follows: [1] The inference sought to be drawn ought to be consistent with all the proven facts. If it is not, then the inference cannot be drawn. [2] The proved facts should be such that they exclude reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct. 7

8 Application of the Law to the Facts [27] In casu, when Gameson reported the case to the South African Police on Sunday 26 June 2011, the police, according to the investigating officer Detective Constable Baloyi (Baloyi), he had no idea who the deceased was. He had merely been informed of and retrieved a body from the veldt. The body was badly burnt and there was shrubbery, tyres and stones on what was left of the body. At the time of Gameson s report he was contemplating reporting the case to the media in order to obtain assistance from the public concerning the identity of the person and how he had been killed. [28] The subsequent conversation between Baloyi and Gameson gave Baloyi all the information he was anxious to find out. The information seemed to fit in with what he had discovered, including the identity of the deceased. This coincidence alone would seem to imbue the evidence given by Gameson with credibility which it might not have enjoyed standing alone. He had come to the police independently of their investigation. He made the report on the very day the body was discovered. He had already informed the deceased s family of how the deceased had been killed and who had killed him. [29] All the police had to do was to further verify what was already corroborated by objective facts. The police traced and obtained the statement of Geronovin Buitendaght who also gave the testimony of how the deceased was accosted, assaulted and shot at by the accused who was in the company of an unknown person whilst they were at or near a house in Square Hill. 8

9 [30] Gameson s evidence was largely corroborated by the evidence of Geronovin who arrived at Square Hill in the company of Martin Smith (the deceased). [31] The accused testified in his defence and confirmed the defence he had foreshadowed at the beginning of the trial, namely, an alibi. He testified that between February and September of 2011 he was in 37 Malva Street, Heyderdal, Bloemfontein and that he had only come back after the death of his grandmother on or about 9 September He handed in the death certificate of his grandmother as an exhibit. [32] The accused also presented the evidence of his cousin, O hagan Parsad to say that he (Parsad) had never been at Square Hill on the night in question. The accused also called Jody Jantjies to say that he (the accused) was not at Square Hill on the night in question. Jantjies was a temporary resident at the drug house and he testified how he saw the deceased being accosted by an unknown male person who pointed a gun at the deceased. He observed how shortly thereafter the deceased stood up and ran away after Geronovin (who he referred to as Butts) tried to intervene in the fight. He then closed the door of his house and does not know what happened thereafter. [33] What is significant about Jantjies is that he confirms the presence of the deceased, Gameson and Geronovin at Square Hill on the night in question. He confirms further that the attack on the deceased began at Square Hill near the drug house. He also confirms the presence of a handgun which was pointed at the deceased and that several shots were fired. He further confirms that the deceased was on his knees shortly before he stood up and ran. The person who pointed a gun at the deceased was wearing a hoody. All this evidence accords with the testimony of both Gameson and Geronovin. The main point of difference is that according to the latter, the main actor was the 9

10 accused whereas according to Jantjies the perpetrator was the unknown male with a hoody. The Issue of Identity [34] The locus classicus with regard to evidence of identification is S v Mtetwa 1972 (3) SA 706 (A) in which the following was stated: Because of the fallibility of human observation, evidence of identification is approached by the courts with some caution. It is not enough for the identifying witness to be honest. The reliability of his observation must also be tested. This depends on various factors, such a lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused s face, voice, build, gait and dress; the result of identification parades, if any; and, of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence and the probabilities. [35] In casu, the accused was well-known to the State witnesses Geronovin and Gameson. He had literally grown up with them in Geluksdal which is a small community. The area where the deceased was accosted was well lit by a flood light commonly referred to as an Apollo light, which was on. The incident took place in close proximity to the witnesses. According to Gameson, the incident took place on the pavement next to where his vehicle was parked. Later on, the accused was a front seat passenger in his vehicle. In these circumstances the possibility of mistaken identity does not arise. 10

11 Cogency of the Evidence [36] The accused has raised an alibi as a defence. Commenting on the issue, Zeffertt et al (supra) at p. 163 state as follows: If there is direct or circumstantial evidence which points to the accused as the criminal, the most satisfactory form of rebuttal is for him to show that he could not have committed the offence because he was somewhere else at the relevant time. This is called the defence of alibi, but it is essentially a straightforward denial of the prosecution s case on the issue of identity. I have already dealt with the issue of identity. [37] The State witnesses, Geronovin and Gameson were cross-examined at length by the defence counsel concerning the events leading to the deceased s murder. In my view they stuck to their version and I found them to be honest and credible witnesses. During the cross-examination and in closing address by counsel criticism was levelled at them regarding discrepancies between their testimony in court and the statements they made to police. What was notable in my view is that they readily conceded whatever omissions or discrepancies were pointed out to them. They did not become defensive or try to cover them up and to me this tended to give their version a ring of truth rather than discredit them as witnesses. [38] As far as the gap/contradictions are concerned, it is trite that: 11

12 There is no obligation upon the State to close every avenue of which may be said to be open to an accused. It is sufficient for the State to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. See S v Phallo and Others 1999 (2) SACR 558 at 559 a-b [39] The defence has made reference to the fact that with regard to the removal of the deceased from the spot where he had apparently fallen to an area where his body was eventually set alight and burnt, Gameson is a single witness. I accept that submission and I have had to apply the cautionary rule to his evidence as a single witness in that regard. In S v Jones 2004 (1) SACR 420 (C) Van Reenen J stated the law in this regard as follows: The cautionary rule does not however, require that evidence must be free of all criticism; it requires only that the evidence must either be substantially satisfactory in relation to material aspects or that it must be corroborated. Moreover, the rule should not be afforded mere lip service. It must appear form the way in which the evidence is assessed that the court indeed applied the rule (at 427 f-h) [40] Contradictions between testimony of a witness in court and a statement made to the police have been considered in our courts and in S v Govender and Others 2006 (1) SACR 322 (ECD) it was held that when a witness evidence in court differs from that in a police statement it should be borne in mind that the purpose of the statement is to obtain details of an offence to decide whether or not to institute prosecution. It is not intended to be the precursor to the witness testimony in court. At 324 I 325 a the court quoted with approval from S v Xaba 1983 (3) SA 717 (A) at 730 B C: 12

13 that police statements are, as a matter of common experience, frequently not taken with the degree of care, accuracy and completeness which is desirable [41] It is further stated in Govender at 325 b f: The statement, according to my experience, is also usually a summary of what the policeman was told by the witness and is expressed in language or in terms normally used by him and not necessarily the witness. That this is so, is apparent from what I shall refer to more fully later regarding witnesses who confirm that the statement correctly reflects what they said to the police, but do not know what the meaning is of a word or words appearing in the statement when they are asked about it.i am of the view that the fact that discrepancies occur between a witness evidence and the contents of that witness police statement is not unusual, nor surprising. [42] This in my considered view is the correct approach to police statements because if it were not so, it would be required of a witness to reproduce a verbatim regurgitation of the statement he or she made to the police and upon failing to do so be accused of mendacity. Objective Evidence [43] In casu, the evidence of Gameson is credible on its own despite the fact that he may be regarded as a single witness in some aspects of his testimony. It acquires that credibility from the fact that it is supported by objective evidence. Where a witness gives an account of events which he could not have known other than by directly, personally witnessing them to a police officer and the police officer, independently of that account has gathered facts which totally accord with the account given by the witness, that evidence can be correctly 13

14 described as objective evidence. Such was the account given by Gameson to Detective Constable Baloyi on 26 June This evidence was further corroborated by the evidence of Geronovin. This in turn is corroborated to a considerable extent by the evidence of Jody Jantjies who testified for the defence. Mutually Destructive Versions [44] The versions presented in the State and defence cases are mutually destructive. I accept however that the onus remains on the State to prove the guilt of the accused beyond reasonable doubt. The presumption of innocence operates in favour of the accused. The correct approach to evidence evaluation was enunciated in S v Hadebe and Others 1997 (2) SACR 641 (SAC) at 645 (i) 646 b where it was stated that a court is enjoined to step back a pace and consider the mosaic as a whole. If that is not done, one may fail to see the wood from the trees.. [45] Further, in this regard this basic principle was elaborated upon by Navsa JA in S v Trainor 2003 (1) SACR 35 SCA at 41 b c when he said the following: A conspectus of all evidence is required. Evidence that is reliable should be weighed alongside such as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of the evidence must necessity be evaluated, as must corroborative evidence, if any. Evidence, of course, must be evaluated against the onus on any particular issue or in respect of the case in its entirety [46] In evaluating the alibi of the accused I have considered particularly his evidence that even though he was not continuously resident in Geluksdal, he used to come and go from time to time. His defence therefore that from about February of 2011 to September of 2011 he was in Bloemfontein even if 14

15 accepted must be considered in this light. Further, even on his own version in which he is supported by his witness Bramwell Dow, there is a window period of about three to six weeks when he was not staying with Dow. Dow could not say where the accused was on 26 June [47] It was submitted by counsel for the State, Mr Maritz, that this defence of the accused when considering his evidence in the earlier bail application was built on a piecemeal basis and that details were added on that were not present during the bail application and the period of absence from Geluksdal altered. The accused seems for example to have remembered at this trial that he left Geluksdal around the date of his birthday and that he returned on the occasion of the death of his grandmother. When cross-examined in this regard his response was that he thought more clearly when he was in prison hence his amended version which was given at the trial. The fact is, he was facing the same charges during the bail application. He was called upon even then to truthfully disclose his response to the charges. I do not find his explanation to be adequate or satisfactory. Whilst there was no onus on him to prove his alibi he seemed to have a tendency to be mendacious or to think on his feet and create a version that would suit the circumstances. [48] Having regard to the complete picture that emerges from the tapestry of all the evidence I have no hesitation in coming to the conclusion not only that the version presented by the accused is not reasonably possibly true but that it is false. [49] Because of the nature of the defence, the issue of whether or not the two perpetrators referred to in the State evidence acted in furtherance of a common purpose was not ventilated. The evidence is to the effect that at all material times the two perpetrators acted in concert, be it in assaulting the deceased by kicking him, removing him to the spot where he was burnt or 15

16 collecting material with which to burn him. I therefore accept that their acts of association constituted common purpose. Vide S v Mgedezi 1989 (1) SA 688 B D. [50] No cartridges or projectiles were recovered by the Investigating officer nor were any bullets found on the burnt remains of the deceased. According to the medical evidence tendered and admitted, the deceased was still alive and breathing when he was set alight. This is evidenced by the cherry red colour of the deceased s internal organs. [51] In the circumstances I find that the State has discharged the onus of proving its case beyond reasonable doubt in regard to counts 1 to 6 but not in regard to count 7. [52] In the result, the accused is found guilty on counts 1to 6. He is found not guilty and discharged on count 7. Sentence [53] From the evidence that has been led before this court the murder of the deceased on count 1 would appear to be one of the most senseless crimes I have had to deal with. The motive for his killing shall however forever remain unknown. [54] Even the crimes committed in counts 2 to 6 appear to have been a wanton display of violence which not only took the victims by surprise but were totally unprovoked and equally senseless. The accused has testified that he neither uses drugs nor alcohol. If one accepts that that applied at the time of the 16

17 commission of the crimes, it makes it difficult to comprehend why they were committed at all. [55] Mr van Heerden has addressed the court on mitigation of sentence and made reference to the accused s personal circumstances. The accused is 30 years old. He is not married but is a father of 2 daughters aged 11 years and 1 year 9 months respectively. The children live with their mothers. The accused pays maintenance for them. The accused is self-employed buying and selling goods. He last saw his mother when he was 8 years old and has been brought up by his grandparents. He dropped out at 10 th grade to work at various places. He also gambles at times and had a fruit and vegetable business. He has not had a father figure in his life with his father having left when he was young. He has admitted a previous conviction of malicious injury to property where he was sentenced to 12 months imprisonment which was suspended for 5 years in the year He was declared unfit to possess a firearm. [56] His counsel submits that the court should consider that the crimes were committed in a drug and alcohol infested environment and that cumulatively with his personal circumstances that ought to constitute substantial and compelling circumstances. [57] I have considered the accused s personal circumstances and even weighed the possible cumulative effect thereof, but in my view these do not amount to substantial and compelling circumstances that could persuade me to deviate from the minimum sentences prescribed by law. [58] There is no disagreement between the State and the defence regarding the applicability of the provisions of Section 51 (1) of the Criminal Law 17

18 Amendment Act 105 of 1997, which provides for a minimum sentence where an accused is convicted of an offence referred to in Part 1 of Schedule 2. [59] The deceased was a defenceless victim of an attack of such a vicious nature that he never stood a chance from the very word go. According to the evidence he was literally on his knees and from there tried to flee his attackers. He was pursued with such chilling relentlessness; he had no chance whatsoever to survive. Even after he had fallen and was lying hapless the accused was heard by Gameson to say I cannot leave evidence lying in the open. Such was the ruthlessness displayed towards him, he was no longer human being but just evidence. [60] The cold blooded and deliberate manner in which the accused went about compelling Gameson to remove the body of the deceased at gunpoint to Labore and thereafter collecting tyres to go and burn him is spine-chilling. This is aggravated by the medical evidence to the effect that the deceased was still alive and breathing whilst being burnt. This must have been a most painful and gruesome death anyone could have suffered. The actions of the accused were not only heartless but totally inhumane. [61] Taking these factors into account, the court in passing sentence has to give effect to both the deterrent and retributive aspects of punishment in protecting the interests of society. [62] In S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 AllSA 220) at 470 d the court held: The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, 18

19 aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded. [63] I agree with counsel for the State that there exist factors that aggravate rather than mitigate sentence in this case such as the degree of violence and the cruelty that was meted out to the deceased. [64] Having considered the evidence and submissions by counsel, I have come to the conclusion that the appropriate sentence is as follows: 64.1 On count 1 of murder, the accused is sentenced to a term of life imprisonment On count 2 of attempted murder, the accused is sentenced to a term of five years imprisonment Counts 3 and 4 are taken as one for the purposes of sentence and the accused is sentenced to a term of five years imprisonment On count 5 of kidnapping, the accused is sentenced to a term of three years imprisonment On count 6 of possession of a firearm the accused is sentenced to a term of five years imprisonment It is further ordered that the sentences in counts 2, 3, 4, 5 and 6 will run concurrently with the sentence imposed in count 1. 19

20 S. A. M. BAQWA JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Heard on: 28 October November 2015 Delivered on: 09 & 10 November 2015 For the State: Instructed by: Adv. G. J. C. Maritz The State Attorney For the First Respondent: Instructed by: Adv. J. van Heerden Legal Aid 20