Charges faced by three members of the Junior Cisco Yakkies (JCY) and other gang members constituted a pattern of criminal gangs and the trial will not be separated, the Western Cape High Court has found.
Three members of the JCY – one of Cape Town’s biggest gangs – had wanted the Western Cape High Court to hear their cases separately.
The names of Sadiq Williams, Moegamat Allie Smart and Shaline Naidoo appear on a combined indictment of 14 accused facing 101 charges, which include the contravention of provisions of section 9 of the Prevention Organised Crime Act 121 of 1998 (Poca), for crimes including murder, racketeering, possession of drugs and drug trafficking.
Their application was heard on 20 April 2021 in the Western Cape High Court. Further submissions were received from counsel on Wednesday, 4 August and on Thursday, 16 September, Judge Robert Henney delivered judgment via email to the parties’ legal representatives.
Henney found that the common denominator between the applicants and the other accused is that they all belonged to a criminal gang and were alleged to have committed the offences, either individually or together.
Dismissing the application, Henney said: “It is clear that Poca, as one of its purposes and aims, is to criminalise certain activities associated with gangs. The purpose of the legislation was aimed at dealing with gang members who were clearly involved in a pattern of criminal activity.
The gang’s crimes were committed between 22 March 2008 and 17 September 2019 in Lentegeur, Philippi, Kleinvlei, Nyanga and Mitchells Plain.
The State alleges that the trio actively participated in the JCY gang, had aided and abetted criminal activity, and committed violence.
Williams, on his own, faces one count of attempted murder relating to a shooting on 28 August 2018 in Lentegeur.
Along with Smart, the two face charges of attempted murder, possession of an unlicensed firearm and ammunition. The State alleges the two men shot and killed Tasriq Attwood on 20 September 2018 in Mitchells Plain.
Naidoo, on the other hand, faces two counts of murder, attempted murder and the unlawful possession of unlicensed firearms and ammunition.
The murder charges relate to Erwin Human’s murder on 4 October 2016 in Mitchells Plain. The second murder count emanates from a shooting on 2 November 2018, when Naidoo allegedly murdered Wazeem Abrahams.
The prosecution contends that the offences were part of a series of criminal gang activities in which the applicants and the other accused were involved, which is why the charges are joined in one indictment.
Naidoo is the only one charged with the 18 charges in the indictment which relate to him.
It was his submission that there was no reason, in terms of the provision of section 156 of the Criminal Procedure Act, why he should be charged with the other accused.
He contended that by holding a mass trial of 14 accused, where the charges were not related to each other, was “highly irregular” and that his trial should be separated from others.
But advocate Shareen Riley, the deputy director of public prosecution, argued that the applicants were members of a criminal gang and that the offences committed by each individual accused were connected with activities of the gang. It said requesting the court to separate the trials from the accused undermines the aims and purpose of Poca because the applicants did not want the full context of their offences to be placed before the court.
Henney pointed out that during these proceedings it was not disputed that the applicants and the other accused were part of a criminal gang, nor was it disputed that the offences emanated from the activities of the gang.
The court, therefore, found the applicants and the other accused were joined in the indictment on the basis of their involvement in gangs.
He could see “no difficulty” in joining all the gang members in one indictment where they all committed offences individually for the benefit of that gang.
The efficacy, impact and reach of the legislation to combat the proliferation of criminal gangs and gang activity would be rendered meaningless if the prosecution of the members of a gang were separated and staggered. This was especially so, where separate criminal conduct was committed in furtherance of the pattern of gang activity and for the benefit, existence and survival of the gang, said Henney.
Giving more weight to the State’s case was an affidavit by the investigating officer, Detective Sergeant Jamie Scholtz, who said the JCY gang had a strong presence in Mitchells Plain and the Town Centre taxi rank, which had spread to the suburbs of Lentegeur, Rocklands, Eastridge, Portlands and Westridge.
The gang was also operating in Hout Bay, Worcester, Philippi, Strandfontein and Macassar.
Scholtz said Naidoo was a hitman who had killed three members of the Americans gang as well as a fourth person, and seriously wounding a fifth victim. Naidoo was described as an important figure in the JCY and Scholtz set out in his affidavit how he became the leader of the JCY after three previous leaders of the gang were murdered by rival gangs.
Smart, he alleged, as well as three other members, drove hitmen to their destinations in order to commit hits.
Dismissing the trio’s application, Henney said: “It seems that based on the evidence of Scholtz, there is a practical necessity and would be convenient, for the accused and the applicants to be joined together in one indictment.
“The consistent link and golden thread that runs through all the individual charges committed by the different accused, where they acted either individually or as a group, is their gang membership and their allegiance to the JCY gang.” DM/MC