THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable

Case no: 134/2021

In the matter between:

WAYLAN ABDULLAH APPELLANT

and

THE STATE RESPONDENT

Neutral Citation: Abdullah v The State (Case no 134/21) [2022] ZASCA

33 (31 March 2022)
Coram: MOCUMIE, SCHIPPERS and NICHOLLS JJA and TSOKA
and MEYER AJJA
Heard: 16 March 2022
Delivered: This judgment was handed down electronically by circulation
to the parties’ legal representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be have been at 09h45 on 31 March 2022.

Summary: Criminal law and procedure – caution applied to single

witness evidence – whether the state witness’ identification was reliable
and credible – whether the appellant’s right to a fair trial was infringed by
 2

the high court’s refusal to recall the state witness after inspection in loco
was completed.
 3

___________________________________________________________

ORDER
___________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town
(Salie-Hlope J, sitting as court of first instance):
The appeal is dismissed.

__________________________________________________________

JUDGMENT
___________________________________________________________

Nicholls JA (Mocumie and Schippers JJA and Tsoka and Meyer AJJA
concurring):

[1] On 15 September 2020 the Western Cape Division of the High

Court, Cape Town (the high court) convicted the appellant, together with
his co-accused, of one count of murder; robbery with aggravating
circumstances; possession of an unlicensed firearm; and, unlawful
possession of ammunition. He was sentenced to an effective term of 29
years imprisonment. The appellant sought leave to appeal against his
conviction. It was refused by the high court (Salie-Hlope J) but was
granted by this Court.

[2] The central issue in this appeal is the identification of the appellant
as one of the persons who shot the decease. Aligned to this is the high
court’s refusal to grant an application to recall the sole eyewitness to the
shootings after an inspection in loco had been held, and after the appellant
had changed his legal representatives.
 4

[3] The facts are largely common cause. On 18 October 2018 between
17h00 and 18h00 two persons, Prezano Holland and Gregory Carelse were
shot and killed in Bishop Lavis, Cape Town by two gunmen acting with a
common purpose. Mr Holland was killed by a single gunshot wound
whereas Mr Carelse’s body was riddled with multiple gunshot wounds.
According to the pathologist ten shots were fired into his body, six of which
were to the head. Of the 14 cartridges found at the scene, seven were fired
from one 9 millimetre firearm, and the others from a .38 revolver. One of
the firearms used was linked to many other murder cases. Because there
were no witnesses to Mr Holland’s murder, both accused were acquitted of
his murder. The focus of this appeal is therefore the murder of Mr Carelse
(the deceased).

[4] Before dealing with the question of identification, it is necessary to

briefly sketch the milieu in which the murders took place. Gang violence
has long been rife in the areas on the outskirts of Cape Town, commonly
known as the Cape Flats. Gangs have their roots in the apartheid forced
removals where communities were moved from their old neighbourhoods,
in or near the city centre, to the wastelands which make up the Cape flats.1
Gang violence continues today, unabated, making everyday life a
hazardous business for the residents of those areas. Shootings and bullet-
ridden bodies have become a daily occurrence in the gang-ravaged areas.
The South African Police Service reported in 20192 that gang violence is
often related to clashes between rival gangs or between gangs and
residents. In 2018 the Western Cape Department of Community Safety
acknowledged that there is the added challenge of drug abuse as well as

1
D Pinnock Gang Town 1 ed (2016).
2
South African Police Service (SAPS). 2020. Annual report 2018-2019 at 24, available at
https://www.saps.gov.za/about/stratframework/annual_report/2018_2019/annual_crime_report2020.pdf
accessed on 2022/03/30.
 5

police officials who are being controlled by gangs and corrupt politicians
who have control of the drug trade in specific areas.3

[5] The deceased was employed as a senior security officer in the

Community Safety Department of the City of Cape Town. He was also a
police reservist for over 20 years and a community activist committed to
ridding the area where he lived of the scourge of drugs and gang-related
violence. The deceased was an eyewitness and prospective State witness in
a gang-related drive-by shooting that took place in 2017, in which three
persons were murdered. The accused in that case were members of the
notorious prison gang, the 28’s, whose members, when outside prison, are
mostly affiliated to a gang known as the ‘Firm’. Sergeant Lombard, the
investigating officer in the triple murder case, testified was that there were
leadership disputes among the 28’s which played themselves out amongst
members of the Firm. Valhalla Park which borders on Bishop Lavis, was
considered a safe territory for members of the Firm and the 28’s. Colonel
Charl Kinnear, a witness in this case and a senior member of the Anti-Gang
Unit, said that there were two factions of the 28’s in Valhalla Park. Their
respective territories were divided by Forel Street. Mr Carelse spoke of a
‘war’ between the gangs in Valhalla Park and Bishop Lavis.

[6] In the triple murder which was referred to as the ‘Forel Street
murders’, the deceased, after witnessing that shooting, gave chase and
managed to execute the arrest of an infamous gang member, Mr
Abraham Wilson. The deceased made a statement to the police and agreed
to be a State witness. Sergeant Lombard said that the victims in the Forel

3
Western Cape Department of Community Safety: Provincial Policing Needs and Priorities (PNP).
Report for the Western Cape on the Policing of Drugs 2018-2019 at 8, available at
https://www.westerncape.gov.za/assets/cover_page_-_pnp_on_drug_prevention_2018_and_19.pdf,
accessed on 2022/03/29.
 6

Street murder case were other known gang members, pointing to

internecine gang warfare. The deceased was well-known in the community
as a person who worked closely with the police in their crime prevention
efforts. It became widely known that the deceased was the person who had
arrested, and handed over, Mr Wilson to the police. Sergeant Lombard said
that notwithstanding the risks, the deceased had insisted on remaining in
the community where he lived despite it being known that he was working
with the police. Another State witness in the Forel Street murder case had
been murdered some months before the killing of the deceased, in March
2018.

[7] I now revert to the main issue in this appeal - whether the single
witness to the murder, Mr Dale Carelse, made a credible and reliable
identification of the appellant as being one of the two people who shot and
killed the deceased. Mr Carelse is the son of the deceased and was 27 years
old at the time of the murder. It is trite that as a single witness, his evidence
must be approached with due caution, and should be satisfactory in all
material respects.4 The principles relating to identification are equally well
established. It is not enough for the identifying witness to be honest. The
reliability of his identification must be tested against other factors such as
lighting, visibility, proximity of the witness and opportunity for
observation.5

[8] Mr Carelse’s version is briefly as follows. On 18 October 2018 he

was at home with his father in Bishop Lavis. At about 15h20 his father told
him that he was going to attend to an incident in Valhalla Park and left
armed with his .38 revolver in a waist holster. Later that afternoon between

4
R v Mokoena 1932 OPD 79 at 80; S v Sauls 1981(3) SA 172 (A); [1981] 4 All SA 182 (A) at 185.
5
S v Mthethwa 1972 (3) SA 766 (A) at 768A-C; see also the various cases where Mthethwa has been
cited with approval.
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17h00 and 18h00, as he was standing in the doorway of the house,

Mr Carelse saw his sister walk past heading for the bus stop on her way to
work. Two minutes after she had passed he heard a single shot and then a
series of shots. He jumped over the wall because he thought his sister was
in danger. He called to her to return to the house and kept on running in the
direction of the shots. He said that he was not trying to be a hero, rather
this was an automatic reaction to a high-pressure situation.

[9] As he was running Mr Carelse heard more shots. He saw two people
firing shots. They were on the same side of the road as he was. The shooting
stopped. He saw the one shooter bend down and ‘fiddle’ with the person
who was lying on the ground. The appellant was standing over the person,
pointing a firearm towards him, while the other shooter searched him. The
two assailants then ran in the direction of Valhalla Park. As Mr Carelse
approached the body lying on the pavement, he realised that the person
who had been shot was his father. When Mr Carelse reached his father, he
had already died as a result of the bullet wounds. His firearm was no longer
in his possession.

[10] Mr Carelse immediately identified the assailants as members of the

Firm who lived in Valhalla Park. He did not know their proper names, only
their nicknames, Krag and Wena. The appellant was known to him as
Wena. Mr Carelse had gone to school in Valhalla Park and while they were
not friends, he saw them both very regularly. In fact, he said that he saw
the appellant on a daily basis. The appellant used a gangster language
known as Sabela when conversing with his friends. He was antagonistic
towards Mr Carelse who thought the reason for this was his father’s anti-
gang sentiments.
 8

[11] Mr Carelse’s mother confirmed that the following day after the death
of her husband, in the morning, her son informed her that the persons who
had shot his father were known to him by their nicknames, Krag and Wena.
However, she did not tell the police what her son had shared with her. Her
husband had always told her not to trust people, especially the police at the
Bishop Lavis Police Station. She was therefore reluctant to volunteer any
information.

[12] It was only 19 days later, and having been persuaded to do so by his
uncle and a good friend of his father, that Mr Carelse agreed to make a
statement to the investigating officer, Colonel Kinnear. Mr Carelse said
that he was scared to come forward and only did so once he had been given
assurances by his uncle that he could trust Colonel Kinnear. Colonel
Kinnear had been in the police service for 31 years, was born in Bishop
Lavis and, like the deceased, had lived his entire life in the area. It is not
insignificant that in September 2020 Colonel Kinnear was murdered in a
hail of bullets outside his house in Bishop Lavis, while investigating
numerous cases of organised crime involving gangsters and high level
police officers.

[13] The appellant contends that Mr Carelse did not have the opportunity
to properly observe and identify the gunmen. Much was made of the fact
that Mr Carelse only had between 2-4 seconds in which to observe the
appellant. Had the appellant been a stranger to him, this could have been a
significant factor. However, when seeing a person who is known to you, it
is not a process of observation that takes place but rather one of
recognition. This is a different cognitive process which plays a vital role in
our everyday social interaction. The time necessary to recognise a known
face as opposed to identifying a person for the first time, is very different.
 9

It has been recognised by our courts that where a witness knows the person
sought to be identified, or has seen him frequently, the identification is
likely to be accurate.

[14] In Arendse v S6 this Court quoted with approval the trial court’s
comments in R v Dladla:7
‘There is a plethora of authorities dealing with the dangers of incorrect identification.
The locus classicus is S v Mthetwa 1972 (3) SA 766 (A) at 768A, where Holmes JA
warned that: “Because of the fallibility of human observation, evidence of identification
is approached by courts with some caution. In R v Dladla 1962 (1) SA 307 (A) at 310C-
E, Holmes JA, writing for the full court referred with approval to the remarks by James
J – delivering the judgment of the trial court when he observed that: ‘one of the factors
which in our view is of greatest importance in a case of identification, is the witness’
previous knowledge of the person sought to be identified. If the witness knows the
person well or has seen him frequently before, the probability that his identification will
be accurate is substantially increased … In a case where the witness has known the
person previously, questions of identification …, of facial characteristics, and of
clothing are in our view of much less importance than in cases where there was no
previous acquaintance with the person sought to be identified. What is important is to
test the degree of previous knowledge and the opportunity for a correct identification,
having regard to the circumstances in which it was made”.’

[15] This Court reaffirmed this principle more recently in Machi v The
State8 where the witnesses stated that they knew the appellant and he too
admitted that he knew them. The court said in these circumstances there is
no room for mistaken identity.

[16] Mr Carelse testified that he knows Valhalla Park well. He went to

school there. He knows the appellant because they frequented the same

6
Arendse v S [2015] ZASCA 131 para 10.
7
R v Dladla 1962 (1) SA 307 (A) at 310C-E.
8
Machi v The State [2021] ZASCA 106 para 27.
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places where Mr Carelse ‘would be hanging out with friends’. He said that
the appellant, and his co-accused, were members of the Firm and would
often be in the company of members of the Firm in Valhalla Park. Mr
Carelse named several members of the Firm within the appellant’s circle
of friends and said that he frequented the home of one Noah, where drugs
were sold. This evidence, which shows that the appellant was well-known
to Mr Carelse, was not challenged, nor controverted.

[17] It was argued on behalf of the appellant that in view of the chaos
while the shooting was in progress, Mr Carelse did not have an
unobstructed view of the scene. This would have inhibited his ability to
identify the perpetrators. It was further argued that Mr Carelse observed
the appellant’s firearm, not his face. Neither of these submissions have a
factual basis. The basis for the latter is Mr Carelse’s evidence on being
asked to describe the firearms. He said: ‘[The appellant] had a hand pistol,
he had a pistol in his possession. And accused 1, I did not focus on his
hands, I mostly focused on his face’. One cannot extrapolate from this
comment that Mr Carelse did not see the appellant’s face. He expressly
stated that as he moved closer to the scene ‘[the appellant] was busy aiming
with his firearm. I identified him by his face. . .’. Similarly, there is no
evidence, nor was it put to Mr Carelse, that other people obstructed his
view of the scene. He did not testify that people were running towards the
scene which might have impeded his view, but rather away from the scene.
The only people he saw on the scene, armed with firearms, were the
appellant and his co-accused. They then fled the scene.

[18] The appellant points to various other reasons why Mr Carelse’s

identification of him is unreliable. Firstly, the statement to Colonel Kinnear
was not made until 19 days after the incident. Mr Carelse explained why
 11

he was scared to come forward. This is hardly surprising in view of the fact
that his father had, in all probability, been murdered for his role in assisting
the police and because he was a State witness in the Forel Street murders.
Added to this was Mr Carelse’s belief that some of the police were
implicated in the gang-related crimes. Colonel Kinnear stated that other
people refused to give witness statements for fear of being killed in
retaliation. Under these circumstances, Mr Carelse’s reluctance to go the
police is quite understandable.

[19] Another complaint is that the description of the clothing that the
appellant was wearing on the day was not contained in the statement made
to Colonel Kinnear. Mr Carelse insisted that he had informed
Colonel Kinnear that the appellant was wearing grey tracksuit pants and a
maroonish coloured T-shirt while Colonel Kinnear insisted that he
recorded everything that the appellant had told him. This it was contended,
together with the lengthy interval before making the statement, is a factor
that should be considered in assessing whether Mr Carelse’s identification
of the appellant was reliable.

[20] The absence of a description of the clothing that the appellant was
wearing is hardly a reason to question the veracity of Mr Carelse’s
identification of the appellant. Moreover, this type of detail takes on far
less significance once the appellant was a person well known to Mr
Carelse. In any event, there is other corroboration of the appellant’s
identification. Photographs of the appellant show that he had his name
‘Wena’ tattooed on his body, as well as ‘28’ signifying his membership of
the 28 gang. Prior to the appellant’s arrest and the day after he made the
statement to the police, Mr Carelse identified the appellant in a photo
identification parade.
 12

[21] Mr Carelse described how the two shooters approached and shot the
deceased from different angles. That there were two of them is
corroborated by the fact that spent cartridges from 2 different firearms were
found on the scene. The angle that Mr Carelse said they approached from
explains why the corner house was damaged and why shrapnel was found
inside the house. Mr Carelse’s description of the shooting was in line with
the V-shaped pattern of the ejected cartridges found on the scene. This is
objective corroboration of his version.

[22] The high court held that, in view of the direct and credible evidence
against him, the appellant’s failure to testify in his own defence resulted in
the prima facie case against him becoming conclusive. It is correct that the
absence of any rebuttal in these circumstances was damning. Although an
accused person’s right to silence is guaranteed in the Constitution, this does
not absolve an accused of the need for an honest rebuttal, if the situation,
and evidence, demand it.9

[23] Apart from the question of identification, the second prong of the
appellant’s attack is that the high court erred in not granting the application
to recall Mr Carelse after an inspection in loco had been held. This, it is
contended, had an impact on his constitutional right to a fair trial which
includes the right to adduce evidence and challenge evidence.10

[24] An inspection in loco achieves two purposes, the first being to

enable the court to follow the oral evidence. The second is to enable the

9
Osman v Attorney General Transvaal 1998 (4) SA 1224 (CC); S v Boesak 2000 (3) SA 381 (SCA) at
396; S v Chabalala 2003 (1) SACR 143 (SCA) para 21.
10
Section 35(3)(i) of the Constitution of the Republic of South Africa provides that: Every accused person
has a right to a fair trial, which includes the right—to adduce and challenge evidence.
 13

court to observe real evidence which is additional to the oral evidence.11 In

this instance it was clearly held for the first purpose. At the pleading stage
the presiding judge mentioned the need for an inspection in loco to
orientate herself as to the layout of the area where the shootings had taken
place. It was then agreed with the State and defence counsel that this would
be more useful once Mr Carelse’s evidence in chief had been completed.

[25] The inspection in loco eventually took place after Mr Carelse’s

entire evidence had been completed. All parties were present, including the
two accused and their counsel. Various points were noted and the distance
between points measured. The following day a memorandum of agreed
facts was drawn up by counsel. It merely records the point where the
deceased was lying and the distances from various fixed points; the points
where Mr Carelse was when he identified the appellant and his co-accused;
the time it took him to run between various points. No objections were
raised during the inspection in loco. The memorandum was signed by the
state prosecutor and defence counsel for the appellant’s co-accused, but not
counsel for the appellant who by that stage had been replaced by new legal
representatives.

[26] After a postponement of several months, the new counsel of the

appellant commenced with an application to recall Mr Carelse for further
cross-examination. The application was premised on the appellant’s
constitutional right to a fair trial. The appellant set out the reasons why
Mr Carelse should be recalled. This was, inter alia, because Mr Carelse had
not been sufficiently cross-examined on: (a) his previous knowledge of the
appellant; (b) the time and opportunity he had to observe the scene; (c) the

11
P J Schwikkard et al Principles of Evidence 4 ed (2015) para 19.6. See also Newell v Cronje 1985(4)
SA 692 (E) at 697-698; Kruger v Ludick 1947(3) SA 23 (A) at 31; Bayer South Africa (Pty) Ltd and
Another v Viljoen 1990 (2) SA 647 (A) at 659-660.
 14

fact that Mr Carelse ran towards danger rather than away from danger; and
(d) what occurred at the inspection in loco. It was alleged that there were
material differences between Mr Carelse’s enactments at the inspection in
loco of how the murder occurred when compared to his viva voce evidence.
The discrepancy referred to was Mr Carelse’s oral evidence that he was
between 15-25 metres away when he identified the appellant. Whereas, the
place he pointed out at the inspection in loco was 38.9 metres away.

[27] The high court refused the application. In the appellant’s notice of
appeal, a somewhat different contention was advanced, namely that the
court had failed to place the observations on record and allow the parties
to comment thereon. In argument before this court the emphasis fell
squarely on the appellant’s constitutional fair trial rights and the alleged
gross infringement thereof by not allowing further cross-examination.

[28] On the facts of this case, I am not persuaded that there was any
justification for further cross-examining Mr Carelse. Concerning the
discrepancy in distances, he had already qualified his evidence prior to the
holding of the inspection in loco, saying he was very bad at estimating
distances. Mr Carelse had been cross-examined for two days by the
appellant’s previous counsel. All counsel including the appellant were on
the scene. The observations were noted by counsel for the respondent in
detail and confirmed by the trial judge to be correct, signed by both counsel
for the respondent and the appellant’s co-accused. The appellant’s counsel,
whose mandate was abruptly terminated the next day, did not raise any
objection. None of the parties indicated any interest in pursuing what was
noted at the scene.
 15

[29] The appellant’s counsel eschewed any reliance on the incompetence

of the appellant’s erstwhile counsel and was unable to point to other
additional evidence elicited by the inspection in loco, other than the
discrepancy in distances referred to above. This has no bearing on Mr
Carelse’s evidence as a whole which was credible and consistent.12 The
constitutional right to challenge evidence does not extend to the right to
have a witness recalled every time an accused person changes his legal
representatives. The courts have a duty to ensure justice is done, not only
to the accused, but towards witnesses as well.

[30] For all these reasons the high court cannot be faulted for accepting
Mr Carelse’s identification evidence of the appellant as one of the men who
shot the deceased, as credible and reliable. Nor did the high court err in
refusing to allow the application for the recall of Mr Carelse.

[31] In the result I make the following order;

The appeal is dismissed.

____________________
C H NICHOLLS
JUDGE OF APPEAL

12
S v Van Meyden 1999 (2) SA 79 (W) at 81-82; S v Heslop 2007 (4) SA 38 (SCA) at 45; Director of
Public Prosecutions, Gauteng v Pistorius 2016 (2) SA 317 (SCA) at 330.
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APPEARANCES:

For first appellant: R Liddell

Instructed by: Lidell Weeber & van der Merwe Inc.,
Wynberg
Webbers Attorneys, Bloemfontein

For respondent: L J Badenhorst

Instructed by: The Director of Public Prosecutions,
Cape Town
The Director of Public Prosecutions,
Bloemfontein