In the High Court of South Africa Free State Division, Bloemfontein
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IN THE HIGH COURT OF SOUTH AFRICA FREE STATE DIVISION, BLOEMFONTEIN Reportable: YES/NO Of Interest to other Judges: YES/NO Circulate to Magistrates: YES/NO Case no. 4/2018 In the matter between: THE STATE and DITHABA PETRUS MAFAHLE & 12 OTHERS CORAM: I VAN RHYN, AJ HEARD ON: JUDGMENT BY: I VAN RHYN, AJ DELIVERED: 2 JULY 2019 & 5 July 2019 INTRODUCTION: 2 [1] The fifteen (15) Accused before Court have been indicted on seven (7) charges which include three (3) counts of murder read with the relevant provisions of Section 51(1) and Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (the “CPA”). The Accused are also charged with three (3) counts or robbery with aggravating circumstances and one (1) count of contravening Section 9(1)(a) of the Prevention of Organized Crime Act 121 of 1998 (“POCA”), alternatively contravention of Section 9(2)(a) of POCA also known as “gang-related offences”. [2] Counts 1 to 6 of the indictment relate to the attack, murder and robbery of three (3) minor males, the 19-year old Lefa Soaisa, the 16-year old Vuyani Jacobs Makhapela and Mojalefa Nathan Franse who was 17-years old at the time of his death. [3] The allegations as elaborated upon in the summary provided by the State, against the Accused are that upon or about 30-31 January 2017 and at or near Limo Mall, Bloemside, in the district of Bloemfontein, the Accused who are members of the Born to Kill gang, (the “BTK’s”) met with the three (3) deceased. The three (3) deceased were members of the Maroma gang. Under the false pretence that the Accused were also members of the Maroma Gang the three (3) deceased were lured to the “shack” of Accused no. 5 in the Pieter Swarts Settlement. [4] The deceased indicated that they were looking for a specific member of the BTK gang known as Dimeche. Under the false impression that the Accused 3 were also members of the Maroma gang, the three (3) deceased were informed by the accused that they should all go to Namibia Square to look for members of the BTK gang. [5] At Limo Mall the deceased were instructed to sit whereafter the Accuseds’ allegiance with the BTK’s were revealed. The Accused encircled the three (3) deceased and attacked them with knives. Some of the Accused removed shoes and a K-way beanie (hat) from the deceased’s bodies which were left at an open space behind Limo Mall where the bodies were later discovered. Counts 4, 5 and 6 deal with the three (3) charges of robbery with aggravating circumstances as defined in Section 1 of the (“CPA”) read with the provisions of Section 51(2) of the CPA in that on the 30th to 31st January 2017 and at or near Lima Mall the Accused did unlawfully and intentionally assault the deceased and with force took from Lefa Soaisa one (1) pair of shoes, from Vuyani Jacobs Makapela, one (1) pair of black and white Adidas shoes and a blue K-way hat and from Mojalefa Nathan Franse one (1) pair of shoes. Aggravating circumstances being present in that, during the commission of these offences the Accused were in possession of dangerous weapons. [6] The State alleged that the Accused acted in the execution of a common purpose when performing the acts described in Counts 1 to 7 of the indictment. The common purpose existed prior to and during the commission of the offences on which the Accused are arraigned. [7] All the Accused have been charged with Count 7. The basis of the crimes created by the POCA legislation have bearing on the criminal gang activities 4 and provides that any person who actively participates in or is a member of a criminal gang and who wilfully aids and abets any criminal activity committed for the benefit of, at the direction of, or in association with any criminal gang or who performs any act which is aimed at causing, bringing about, promoting or contributing towards a pattern of criminal gang activity, shall be guilty of an offence. [8] All the Accused pleaded not guilty to all the charges and elected not to provide plea explanations or to make any admissions. When the trial commenced Accused no. 14, who was still a minor at the time of his arrest and not held in custody awaiting trial, failed to appear at Court. A warrant for his arrest was issued upon request of the prosecutor. The Court was furthermore informed that the charges against Accused no. 2 are withdrawn. Due to Accused no. 14’s failure to appear an application for a separation of the charges in terms of the provisions of Section 157 of CPA of Accused no. 14, Karabo Kenneth Thita, to facilitate continuation of the case against the other Accused was granted. For the remainder of the trial only thirteen (13) of the original fifteen (15) Accused were involved. [9] Advocate Ferreira, who appeared for the State called more than fifty (50) witnesses, some of whom testified more than once during the trial. Counsel on behalf of the State furthermore led evidence in six (6) trials within a trial and exhibits “A” to “JJJ” were handed in as documentary evidence. The State also tendered exhibit “1” consisting of a pair of black and white Adidas Superstar shoes (“tekkies”) and exhibit “2” a blue K-way hat as evidence. 5 [10] All thirteen (13) Accused were legally represented contended that they are innocent. With the exception of one or two of the Accused, they are not acquainted with each other and only met while being in custody awaiting trial. Even though it is not denied that they used to be members of the BTK gang before their arrest, they, at least since their arrest, broke all ties with the BTK gang and have no knowledge of the three (3) young males whose bodies were found at Limo Mall. According to their evidence, anything they did or alleged to have done, whilst in custody, was done under duress due to the assaults perpetrated on them by members of the South African Police Service (“SAPS”) during their arrest up until their detention. Due to assaults and due to fear of further assaults some of the Accused caused to sign statements against their will which constitutes manufactured evidence against them. They furthermore aver that all the members of SAPS, for various reasons and with the intent to secure their conviction on the charges, told untruths to this Court. [11] During the course of the trial the Court gave rulings in six (6) trials within a trial and delivered judgment subsequent to application in terms of the provisions of Section 174 of the CPA launched by several of the Accused. My reasons for provisionally allowing the pointing outs and/or statements allegedly made by the Accused are contained in this judgment. [12] Prior to the charges being put to the Accused, the Court appraised the Accused that the provisions of Sections 51(1) and 51(2) of the CPA are applicable. At the outset of the trial it was pertinently brought to their attention that, in terms of the minimum sentence regime, a minimum 6 sentence of fifteen (15) years will be applicable with regard to the robbery charges and a minimum sentence of life imprisonment for the murder charges, unless compelling and substantial circumstances allows this Court to deviate from the prescribed minimum sentences. THE PREVALANCE OF GANG-RELATED ACTIVITIES IN THE DISTRICT OF BLOEMFONTEIN: [13] It is appropriate to elaborate on a factor, presented by the State, that has become a growing phenomenon not only on the so-called Cape Flats and Mannenburg, but apparently throughout our country. The offences in this case were manifestations of gang-related violence in the suburbs of Bloemfontein, where the accused and the deceased lived and had grown up. The State adduced evidence of Captain Mthunzi Dasheka (“Captain Dasheka”) and Warrant Officer Jacobus Cornelius Lombaard, regarding the prevalence of gang-related activities in the Free State Province. Captain Dasheka, who is stationed at the Crime Intelligence Cluster at Park Road Police Station in Bloemfontein explained, that a constant war between the rival gangs are fought on the streets and countless youngsters from the tender age of 11-years are engulfed in this battle. During the past eighteen (18) years he had gained extensive experience in the investigation of gang- related crimes and the prevalence of gangsterism in the Bloemfontein area. Relevant to this matter is the two (2) rival gangs namely the BTK’s and the Maroma gang also referred to as the “Romans”. 7 [14] Since 2014 the numbers of allegiance with the BTK’s grew tremendously and throughout this case, this Court became acutely conscious of the socio- economical challenges that so many children and young adults face. The constant pressure and enticement to become involved in gang membership and gang-related activities are factors that are real and therefore I take cognisance thereof. The reasons for their allegiance to certain gangs are due to unemployment, poverty and obviously also because of the prevailing social norms in the local suburbs, which seem to accept gang culture as part of the way of life. Since 2014 the incidents of gang-related activities and crimes in the Greater Bloemfontein area escalated each year and the membership of the two (2) rival gangs, the BTK’s and the Romans, grew in numbers. [15] Captain Dasheka explained that members of the BTK gang tend to be more mature than their counterparts, the Romans, who recruit young boys and girls from the age of 11.