THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 488/10

KASHIEF NAUDE                                                                             First Appellant
GARRETH SOLOMONS

Second Appellant

and

THE STATE

Respondent

________________________________________________________________

Neutral citation:
Naude & another v S (488/10) [2010] ZASCA 138
(16 November 2010)

CORAM:

Navsa, Nugent JJA and K Pillay AJA

HEARD:

1 November 2010
DELIVERED:
16 November 2010

SUMMARY:
Approach to evaluation of evidence ─ totality of
evidence to be considered ─ failure by accused to testify in circumstances
calling for an answer ─ court unlikely to reject credible evidence which an
accused has chosen not to deny ─ in such instances an accused’s failure
to testify almost bound to strengthen the case of the prosecution.

________________________________________________________________

________________________________________________________________
ORDER
________________________________________________________________

On appeal from:
Western Cape High Court (Cape Town) (Donen AJ sitting as
court of first instance).
1.
The appeals by the appellants against their convictions are dismissed.
2.
The appeal by the first appellant against all the sentences imposed is
dismissed.
________________________________________________________________
JUDGMENT
________________________________________________________________

NAVSA JA (NUGENT JA and K PILLAY AJA concurring)

[1] At approximately 03h30 on the morning of 7 May 2004, 39 gunshots were
fired in a house situated at 58, 15th Street, Bishop Lavis, in the heart of the Cape
Flats. Four occupants of the house were killed. The fifth, Ms Liezel Van Heerden,
15 years old at the time and pregnant, despite sustaining 25 gunshot wounds,
miraculously survived. Her identification of one of the assailants, Mr Marco
Moosa, set in motion a sequence of events resulting in him being convicted in the
Cape High Court together with the two appellants, of four counts of murder and
one of attempted murder.

[2] The two appellants are Mr Kashief Naude and Mr Garreth Solomons.
Mr Moosa and Mr Solomons were also convicted on two counts of contravening
the Firearms Control Act 60 of 2000, on the basis that they had been in unlawful
possession of the firearms and ammunition that were used in the shooting
referred to above ─ the ballistics evidence adduced by the State showed that
three weapons had been discharged at the Van Heerden house. I shall refer to
the appellants as Kashief and Garreth respectively.

[3] The four people killed in the attack on the house were Liezel’s mother,
Ms Beverley Van Heerden, her brother Leon Van Heerden, her mother’s
boyfriend, Mr Henry Martin, and Leon’s friend, Mr Lucius McKenzie.

[4] In respect of each count of murder Mr Moosa was sentenced to life
imprisonment. He received the same sentence in respect of the count of
attempted murder. On each of the two remaining counts he was sentenced to
three years’ imprisonment. The sentences are to run concurrently. On each of the
counts of murder and on the count of attempted murder Kashief was sentenced
to 20 years’ imprisonment. All the sentences were ordered to run concurrently.
On each of the first five counts Garreth was sentenced to life imprisonment and
on each of the remaining counts he was sentenced to five years’ imprisonment.
Kashief and Garreth both appeal against their convictions on the basis of the
insufficiency of evidence. In addition, Kashief appeals against the effective
sentence of 20 years’ imprisonment. Their appeals are before us with the leave
of the court below (Donen AJ). Mr Moosa, for the reasons that appear hereafter,
understandably, did not appeal against his convictions and related sentences.

[5] In order to determine the correctness of the convictions and the sentence
imposed on Kashief it is necessary to have regard to the material parts of the
evidence adduced by the State and to the factors associated with sentencing. I
will, in due course, deal with the relevant submissions on behalf of the appellants.

[6] It is abundantly clear that the evidence implicating Mr Moosa was
overwhelming. First, there was the evidence of Liezel Van Heerden. According to
her Mr Moosa had until recently been good friends with Leon and had been a
frequent visitor to the house and sometimes stayed over. She testified that on the
morning in question Mr Moosa had gained entry to their house by telling her
mother that his motor vehicle had run out of petrol. After gaining entry she had
heard him wake Leon by announcing his presence and then heard shots being
fired. A shot passed through the door and struck her in her leg. Shortly thereafter
someone else who had accompanied Mr Moosa entered her room and shot her

24 times. From where she lay on the floor she saw Mr Moosa standing in the
living room. After the shooting she saw him flee with another man, whom she
could not identify. It was that vital information, imparted by Liezel whilst in an
ambulance at the scene shortly after the shooting, which led the police to
Mr Moosa and subsequently to the appellants and to all the women who had
been in their company in the hours before the shooting took place.

[7] Second, Mr Moosa had made a statement to the police admitting that he
went to the house armed but denied that he had shot anyone. In the statement
he said that he was surprised when Garreth started shooting, causing him to flee,
seemingly in horror. In short, he transferred the blame to Garreth.

[8] Third, the police testified that he had led them to a house at which they
found a firearm that was positively linked to the shooting.

[9] Fourth, the person at whose house the gun was found testified that he had
received a phone call from someone identifying himself as Marco at
approximately 04h00 on 7 May 2004.  That person requested him to keep an
item that would be thrown into his yard. That item was the firearm referred to in
the preceding paragraph, which the witness retrieved later that morning. The only
Marco known to the witness was Mr Moosa.

[10] It is necessary to record that a footprint track left in the blood on the floor
of the Van Heerden house was admittedly that of Mr Moosa and it pointed in the
direction of the front door. Furthermore, it was unchallenged that in the weeks
leading up to the shooting incident the relationship between Leon and Mr Moosa
had soured. Significantly, evidence was led by the State to the effect that
Mr Moosa had planted the idea in Garreth’s head that the latter’s girlfriend,
Ms Faranaaz Naude, Kashief’s sister, was having an affair with Leon Van
Heerden. I shall refer to Ms Naude as Faranaaz.

[11] An important part of the State’s case against Mr Moosa and the appellants
was the testimony of Ms Rugaya Solomons, who at the time of the shooting
incident was Kashief’s girlfriend. According to her, the appellants, Mr Moosa and
Faranaaz were all still together at her house in Retreat at approximately midnight
leading into the morning of 7 May 2004. She testified that excluding her, the rest
of the party then left together in Mr Moosa’s motor vehicle, ostensibly to take
Faranaaz home to Bridgetown where, it appears she had to do or collect
something. They also intended to drop Mr Moosa off at the airport where he
worked.

[12] Ms Solomons testified that she expected the appellants and Faranaaz to
return as arrangements had been made earlier for all of them to sleep at her
house. It was a matter of concern that a long time had passed without them
returning and without her hearing from Kashief. Consequently, at approximately
04h00, she called Garreth on his cellular telephone because Kashief did not own
one. Garreth answered and she asked him to hand the phone to Kashief. She
enquired about their whereabouts and was told that they were waiting for
Faranaaz. She was informed that they had just come from Mr Moosa’s house.
After ringing off she attempted almost immediately thereafter to once again reach
Garreth telephonically. When there was no answer she rang off.

[13] Importantly, Ms Solomons testified that the appellants and Faranaaz
returned to her home between 05h00 and 05h30 on the morning of 7 May 2004,
which was shortly after she had spoken to Kashief telephonically. Although she
did not look to see in which vehicle they arrived it is clear from her earlier
evidence, referred to above, that they had left her house in Mr Moosa’s vehicle. It
is equally clear that his vehicle was their sole means of transport during that night
leading into the next morning. Ms Solomons recalled that after the others had
returned Faranaaz had asked her for cigarettes. Ms Solomons then went to sleep
alongside Kashief whilst Faranaaz and Garreth went to another room. She and
Kashief were roused by the police at approximately noon on 7 May 2004.

Faranaaz and Garreth were no longer there nor was Mr Moosa’s motor vehicle.
In this she was corroborated by the evidence of the police.

[14] The evidence by the police that when they arrived at Ms Solomon’s house
on 7 May 2004 and explained the purpose of their visit she immediately turned to
Kashief and enquired what he had done that morning was unchallenged.

[15] It is significant that although Kashief’s legal representative, with reference
to a call log supplied by a cellular telephone operator, questioned the accuracy of
Ms Solomons’ recall of the time at which she made cellular telephone calls during
the morning of 7 May 2004, it was never disputed that the exchanges referred to
in para 10 involving her and the appellants took place. More importantly, it was
never put to Ms Solomons by Kashief’s legal representative that she was either
mistaken or lying about the time he arrived back at her home with Garreth and
Faranaaz on the morning of 7 May 2004, namely, between 05h00 and 05h30.

[16] When
Ms
Solomons
was
cross-examined
by
Garreth’s
legal
representative it was clear that she was unsure of cellular telephone numbers
and the exact times at which calls were made. Nonetheless, she repeated that
she had had the conversation with Garreth and Kashief referred to in para 10.
Whilst it was put to her that Garreth denied that he had returned to her house at
approximately 05h00 on 7 May 2004, she was never challenged on her evidence
that the telephone conversation referred to above had occurred. Put differently, it
was never put to her that Garreth denied that such a conversation had taken
place or that he had handed the cellular telephone to Kashief. It bears mentioning
that the call log produced by the relevant cellular telephone operator showed a
number of phone calls made on 7 May 2004 between 03h00 and 05h00 from
Ms Solomons’ cellular telephone.

[17] Shortly after the shooting incident Ms Solomons supplied the police with a
statement and it was never suggested that her evidence in court differed from

what she had told them. In short, her version of material events remained
consistent. Her responses to the police were spontaneous and unguarded.

[18] It was submitted on behalf of the appellants that Ms Solomons’ evidence
could not be accepted because it was contradicted by Faranaaz who was also a
witness for the prosecution. That submission will be dealt with later. At this stage
it is necessary to consider the material parts of Faranaaz’s evidence. She agreed
that the appellants had been together at Ms Solomons’ home during the night of
6 May 2004. She testified that, excepting Ms Solomons, they later all departed
from the house in Mr Moosa’s car and went to Bridgetown. When they arrived at
Faranaaz’s house she and Garreth went to sleep, whilst Mr Moosa and Kashief
went into another room. She awoke when Mr Moosa asked her to iron his shirt
and jacket for work. She did not know what he had done with the shoes he had
been wearing the night before but when he dressed for work he wore his work
shoes. When she went back to bed, after ironing the clothes, Mr Moosa and
Kashief were still there. Garreth remained sleeping. When she awoke later that
morning Mr Moosa’s vehicle was not on the premises and neither he nor Kashief
were on the premises. In essence Faranaaz provided an alibi for Garreth, the
father of her child. It is thus true that in material respects her evidence contradicts
Ms Solomons.

[19] It is common cause that Faranaaz made two statements to the police
which are contradictory. In the first, made on the day of the shooting, she stated
that Garreth had been with her from around 21h30 on the night of 6 May 2004
and had remained with her until the police brought them to the police station for
questioning. In the second, made on 8 May 2004, she stated that Mr Moosa and
the appellants had dropped her at her home in Bridgetown after midnight and
were away for a considerable length of time before they returned. According to
her, she made the second statement, which had negative implications for the
appellants because the police had threatened to have her jailed if she did not do
so. This, of course, was denied by the police.

[20] It is now necessary to look at other evidence involving the appellants. After
a-trial-within-a-trial a statement made to the police by Kashief was allowed into
evidence by the court below. In the statement Kashief admitted that during the
morning of 7 May 2004 he had driven Mr Moosa’s motor vehicle to a position
close to the Van Heerden house in Bishop Lavis, having been directed there by
the latter. Garreth was also in the motor vehicle. Acting on Mr Moosa’s
instructions Kashief had parked the motor vehicle on the pavement, alongside a
high wall. He remained in the motor vehicle whilst the other two got out. They
returned a while later and both appeared normal. He then drove to Bridgetown.
En route Ms Solomons phoned him twice on Garreth’s cellular telephone. She
asked about their whereabouts. He lied and told her that they had just been to
Mr Moosa’s house. He did this because he was afraid that she would suspect
that he was involved with other women. According to Kashief’s statement, after
they had arrived in Bridgetown, Mr Moosa asked Faranaaz to iron his clothes for
work, which she did. Kashief dropped Mr Moosa off at work and then fetched
Garreth and Faranaaz in Bridgetown, whereafter they drove to Ms Solomons’
house in Retreat.

[21] Mr Abdoel Karriem Orrie, whom it took the police years to trace, testified
that at approximately 08h00 on 7 May 2004, whilst he was at his house in
Newfields, he received a telephone call from Garreth. He was asked to meet
Garreth at a place nearby. He did so and encountered Garreth and Faranaaz in
Mr Moosa’s car. He was asked by Garreth to drop the two of them in Bridgetown
and to then leave the car at Ms Solomons’ house in Retreat. He did as he was
asked. On the way to Bridgetown he asked why they had come to him so early in
the morning, to which Garreth replied that he had just committed a ‘massacre’.
According to Mr Orrie, Faranaaz looked troubled, as if she had seen a ghost.

[22] Furthermore, Mr Orrie testified that he had been in the company of
Garreth and Mr Moosa when the latter engaged in a telephone conversation with
Leon Van Heerden. According to Mr Orrie, it was immediately after that
telephone conversation that Mr Moosa had planted the idea in Garreth’s head

that Leon was having an affair with Faranaaz. Linked to this is the further
testimony of Mr Orrie that Garreth had given him an expensive watch, which he
indicated Leon had handed him as a gift. Garreth explained that he wanted to get
rid of it because Leon was being sexually intimate with Faranaaz. Mr Orrie sold
the watch. This aspect of his evidence was unchallenged.

[23] A neighbour of the Van Heerdens, Ms Charlene Claassen, who at the
relevant time lived one house away from the T-junction between 15th Street and
Maitland Road, Bishop Lavis and whose erf borders on their backyard, testified in
support of the State’s case. According to her, she awoke shortly before the
shooting occurred because she was hungry. She was preparing something to eat
when she heard a motor vehicle playing loud music go past her house in
Maitland Street and travel beyond the T-junction. She then heard the motor
vehicle turn around and stop close to her house. The music was no longer
playing. A short while thereafter she heard shots being fired. She heard at least
two people jumping over the wall from the Van Heerden house into her property
and then heard two doors slam and the car drive away. A short while thereafter
Liezel Van Heerden screamed for help. All of the neighbours who testified that
they had become aware of the shooting did not hear any music in the vicinity
before or afterwards. According to one neighbour, the gunshot sounds were so
severe that his venetian blinds rattled at a distance of approximately 24 metres
from the Van Heerden house. None of the neighbours heard or saw a motor
vehicle in the immediate vicinity of Liezel’s house after the shooting, other than
motor vehicles connected with the household.

[24] The statement by Kashief, referred to above, and a subsequent pointing
out by him concerning the movement and position of Mr Moosa’s motor vehicle
during the morning in question, which was admitted into evidence, ties in neatly
with Ms Claassen’s description of what she had heard. It is necessary to record
that during the pointing out, Kashief, for the first time, stated that the music in the
motor vehicle had been blaring loudly in the time that he was parked in Maitland

Street, waiting for Garreth and Mr Moosa to return and that he had not heard any
shots been fired.

[25] A pair of Mr Moosa’s shoes, which it is admitted is linked to the footprint
track left in the blood on the floor of the Van Heerden house, was found by the
police in the house occupied by Faranaaz and Kashief in Bridgetown.

[26] In the face of all that is set out above Mr Moosa, Kashief and Garreth,
perilously, as it turns out, decided not to testify in their own defence.

[27] The court below considered Ms Solomons a credible witness and
accepted her evidence of what had occurred in the hours leading up to the
incident and thereafter. It rejected the evidence of Faranaaz. Unsurprisingly, it
considered the mosaic of evidence set out above to be such as to warrant a
response from the appellants and held it against them that they had not testified.
It consequently convicted them as described above.

[28] I now deal with the contention on behalf of the appellants that the
evidence in support of the State’s case was tenuous and ultimately unreliable. It
was submitted that since a number of state witnesses testified in terms of s 204
of the Criminal Procedure Act 51 of 19771 and given that a number of them were
single witnesses in respect of vital issues the court below ought to have
exercised greater caution in evaluating their evidence. As indicated above, an
important part of the appellants’ case is the conflict between Faranaaz and Ms
Solomons.

1 Section 204 provides that a competent witness called on behalf of the prosecution who will be
required to answer questions that may be incriminating has to be informed of that fact and of the
obligation to answer the question. It also provides that the court must inform such a witness that if
he or she answers all questions frankly and honestly he or she shall be discharged from
prosecution with regard to specified offences.

[29] In S v Van der Meyden 1999 (1) SACR 447 (W) at 449j-450b, the
following is stated:
‘The proper test is that an accused is bound to be convicted if the evidence establishes his guilt
beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning which is appropriate to the
application of that test in any particular case will depend on the nature of the evidence which the
court has before it. What must be borne in mind, however, is that the conclusion which is reached
(whether it be to convict or to acquit) must account for all the evidence. Some of the evidence
might be found to be false; some of it might be found to be unreliable; and some of it might be
found to be only possibly false or unreliable; but none of it may simply be ignored.’
Importantly, in that case Nugent J warned against separating evidence into
compartments and to examine either the defence or State case in isolation.2 See
also S v Van Aswegen 2001 (2) SACR 97 (SCA) at 101a-e, S v Trainor 2003 (1)
SACR 35 (SCA) at 40f-41c and S v Crossberg 2008 (2) SACR 317 (SCA) at
349f-i and 354b-g.

[30] In my view, the court below evaluated the evidence in terms of what is set
out in the preceding paragraph. It took care to consider the totality of evidence
and left none of the material evidence out of account. The court below rightly
rejected Faranaaz’s alibi evidence and correctly preferred the evidence of
Ms Solomons. Faranaaz had already made contradictory statements to the police
and her explanation that she was threatened with jail if she failed to implicate the
appellants causing her to change her version of events is unconvincing. The
court below considered her evidence that on the morning in question she ironed
a shirt for Mr Moosa, to be implausible. I agree. She testified that it was stained
and smelt of perspiration. It is inexplicable that Mr Moosa would have taken the
trouble to ensure he had work shoes available without at the same time ensuring
a clean shirt. The evidence about ironing the shirt was clearly designed to
persuade the court that the appellants and Mr Moosa were at her home at
material times. Faranaaz’s testimony that earlier during the night of 6 May 2004
Kashief and Ms Solomons accompanied Mr Moosa when he took his girlfriend
home to Hanover Park, leaving her and Garreth behind, makes no sense,

2 At 449g-i and see also D T Zeffertt, A P Paizes, A St Q Skeen The South African Law of
Evidence (2003) pp 151-152.

particularly when one takes her further evidence into account, namely, that later
that night the appellants departed once again accompanied by her and travelled
to her home in Bridgetown. It is not insignificant that Mr Moosa’s shoes that were
linked to the scene were found at her home. It should be borne in mind that she
is still in a relationship with Garreth and has a child by him and she is Kashief’s
sister. She is clearly an interested party with a motive to lie.

[31] Ms Solomons, on the other hand, was a credible witness. Her
spontaneous reaction when the police sought to question Kashief at her home on
7 May 2004, shortly after the shooting, has a ring of truth about it. It will be
recalled that she immediately enquired where he had been that morning. She
had been romantically involved with him for a year and had no cause to implicate
him. On the contrary, it was against her interests to do so. Ms Solomons was
corroborated in material respects by the police who did not find Mr Moosa’s
motor vehicle on the property. Mr Orrie testified that he drove the motor vehicle to
her home later that day. Ms Solomons was not challenged on her evidence that
she had engaged in a telephone conversation with Kashief during the time that
he and Garreth and Mr Moosa were away from her home during the early
morning hours of 7 May 2004. On the contrary, the statement made by Kashief to
the police confirms that such a conversation took place. She had ample cause to
remember the time at which the appellants returned to her home. She was
questioned by the police only hours after the event about murders that had been
committed. Ms Solomons was consistent in her version of events and the court
below rightly accepted her evidence.

[32] Indeed, counsel for Garreth found himself unable to submit that Ms
Solomons’ evidence was untruthful. He was constrained to argue only that it is
reasonably possible that she might have been mistaken. The possibility that she
might mistakenly have thought that she had made the phone calls, that she was
mistaken in thinking that Faranaaz, Kashief and Garreth returned to her house in
the early hours, and that she was mistaken when she said that she had thereafter

gone to sleep alongside Kashief while the other two went to another room, can
be rejected without more.

[33] Whilst it is true, as submitted by Garreth’s legal representative, that
Mr Orrie’s evidence was not impeccable, the material parts were credible and
partially corroborated. It is correct that the statements he made to the police
became more detailed and more incriminating over time, the most recent being a
day before he testified. His explanation for how this occurred was corroborated
by the police. It had taken them a long time to trace him. Mr Orrie had been good
friends with Garreth and was scared of him and feared for his life. He had been
unwilling to testify and on one occasion had fled a building where the prosecution
offices are housed. He ultimately responded to a subpoena and testified only
after he had been placed in a witness protection program. It is also true that his
evidence about the time at which he dropped the motor vehicle off at Ms
Solomons’ house on 7 May 2004 must be incorrect. On that limited aspect it
conflicts with her testimony and that of the police. The fact that the motor vehicle
was returned without any other explanation proferred by the appellants or anyone
else, supports the essence of his evidence in this regard, namely, that he
returned the motor vehicle as requested by Garreth who was accompanied by
Faranaaz. He had no cause to fabricate that evidence or that Garreth had told
him that he had committed a massacre. On the contrary, he was placing his life
at risk and it was against his interests to do so. In my view, the court below rightly
relied on the core of his evidence implicating Garreth.

[34] All the evidence set out earlier was considered by the court below and it
was careful in its detailed evaluation. The court below was very aware that it was
dealing with a number of witnesses who themselves were implicated in offences
in respect of which they were required to be warned in terms of s 204 of the
Criminal Procedure Act 51 of 1977. It must be mentioned that Ms Solomons was
not such a witness. The court below was conscious of the need to be cautious in
evaluating the evidence of a single witness, particularly one seeking indemnity.

[35] The court below correctly had regard to Kashief’s statement to the police
and to the related pointing out. Before us, his legal representative rightly
conceded that he had been an unsatisfactory witness during the trial-within-a-
trial. The court below justifiably took into account that Kashief at no time
explained to anyone the reason for going to the Van Heerden house other than
stating that he had been directed to go there.

[36] It was submitted on behalf of the appellants that because of the conflict in
the evidence of Faranaaz and Ms Solomons, both of whom were State
witnesses, a successful prosecution was precluded. The submission is fallacious.
It is not unknown that a witness sometimes gives evidence unfavourable to the
party who called him or her. There is nothing to prevent such a party from calling
other evidence to contradict the witness on matters relevant to the issue.3 In the
present case, counsel for the State rightly disclosed a previous inconsistent
statement. The approach to the evaluation of evidence at the end of the case
remains the same as set out in para 29 above. A court will consider the
unfavourable evidence alongside all the other evidence tendered. As stated
earlier, Faranaaz’s evidence was rightly rejected and the material contradictory
evidence adduced by the State was correctly accepted, more so, in the light of
the failure of Mr Moosa and the appellants to testify.

[37] The court below stated that the State produced ‘weighty’ evidence against
all of the accused which called for an answer. I agree. Two months ago this court
reiterated that a court is unlikely to reject credible evidence which an accused
has chosen not to deny.4 In such instances an accused’s failure to testify is
almost bound to strengthen the prosecution’s case. In S v Chabalala 2003 (1)
SACR 134 (SCA) para 21 the following was stated:
‘The appellant was faced with direct and apparently credible evidence which made him the prime
mover in the offence. He was also called on to answer evidence of a similar nature relating to the
parade. Both attacks were those of a single witness and capable of being neutralised by an
honest rebuttal. There can be no acceptable explanation for him not rising to the challenge. If he

3 D T Zeffertt et al op cit at pp 746-747.
4 Mapande v S (046/10) [2010] ZASCA 119 (29 September 2010).

was innocent appellant must have ascertained his own whereabouts and activities on 29 May and
be able to vouch for his non-participation. . . . To have remained silent in the face of the evidence
was damning. He thereby left the prima facie case to speak for itself. One is bound to conclude
that the totality of the evidence taken in conjunction with his silence excluded any reasonable
doubt about his guilt.’
See also S v Boesak 2001 (1) SACR 1 (CC) para 24.

[38] Mr Moosa’s guilt was clearly established and beyond debate. The
appellants were admittedly in his company shortly before the events in question.
On the evidence referred to above the inference is irresistible, in the absence of
an explanation from them, that they were with him at relevant times. On
Mr Orrie’s evidence Garreth had told him that he had perpetrated a ‘massacre’.
Garreth made plans to have Mr Moosa’s motor vehicle returned to Ms Solomons’
house by someone else shortly after the crimes had been committed, ostensibly
to put distance between him and the motor vehicle. Furthermore, he had a motive
to harm Leon. It is not necessary to repeat the evidence implicating Kashief.
Suffice it to say that the court below was correct to conclude that the loud music
he was allegedly listening to appear to be a late fabrication in an attempt to
dissociate himself from the dastardly deeds. The evidence against the appellants
established their association with Mr Moosa in the perpetration of the murders. It
undoubtedly called for an answer, which was not forthcoming. In the light of what
is set out above both appeals against convictions must fail.

[39] Insofar as sentence is concerned it was submitted that if Kashief had
indeed been the driver of the getaway vehicle, he played a lesser part than the
others to the extent that a more lenient sentence than that imposed was called
for. It was contended that a further consideration which lessened Kashief’s moral
culpability was the continuing influence of the drugs he and his cohorts had all
used during the night of 6 May 2004. I disagree.

[40] The court below was satisfied that substantial and compelling
circumstances existed in respect of Kashief, justifying a sentence less than the
prescribed minimum. It concluded that he must have been in the motor vehicle

and held in his favour that he must therefore have played a lesser role than the
others and thought that he might have been under their influence. In all of this the
court below might have been too generous. On the evidence presented by the
State there was nothing to suggest that Kashief had not fully associated himself
with the decimation of an entire family. Given the manner in which the car had
been parked and the surreptitious nature of the approach and return from the
Van Heerden household before and after the shooting it is hard to resist the
inference that all the participants were fully involved in the planning and
execution of what occurred in the house on that fateful morning. Kashief
maintained his innocence to the end. He chose not to testify and there is no basis
on which to conclude that he bore diminished responsibility. The murders were
brutal, bloody and heinous and deserving of the full force of the law. There is no
merit to the appeal against sentence.

[41] There are two remaining aspects that require brief attention. We were
required to read almost all of a record comprising 28 volumes and more than
2 500 pages. There were substantial parts of the record that were wholly
irrelevant and unnecessary to read. The appellants’ legal representatives
conceded as much. It is unfair to the court and unacceptable that this occurs.
Regrettably, this is a recurring trend. Practitioners are reminded once again to be
careful in their practice notes and to ensure that judges are advised to read only
such parts of the record as are necessary. In the event that this trend continues
serious thought will have to be given to engage professional associations to
consider appropriate sanctions. Consideration will also have to be given to court
imposed sanctions.

[42] The final issue that calls for comment is the extremely sloppy nature of the
police investigation in this matter. In the main, this relates to forensic tests that
were either badly conducted or not conducted at all. Counsel for the State rightly
conceded that there was no excuse for the shoddy police work in this case.
Whilst one appreciates the pressure the police are under and that they have
limited resources there really is no excuse for not collecting vital items and not

sending those that they have in their possession for proper testing which would
result in more efficient prosecutions.

[43] The following order is made:
1.
The appeals by the appellants against their convictions are dismissed.
2.
The appeal by the first appellant against all the sentences imposed is
dismissed.

_________________
M S NAVSA
JUDGE OF APPEAL

APPEARANCES:

For 1st Appellant:
C B Brand (Attorney)

For 2nd Appellant:
P Mihalik

Instructed by

Legal Aid Board, Cape Town

Legal Aid Board, Bloemfontein

For Respondent:
L Badenhorst

Instructed by

The Director of Public Prosecutions, Cape Town

The Director of Public Prosecutions, Bloemfontein