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Five years after a boy, 9, died following a drive-by shooting on the R25 country road leading to Kempton Park, one of the men accused of his murder was acquitted on Thursday. His brother was also cleared of murder, but convicted of culpable homicide.
The State claimed earlier that brothers Deon and Johan van der Walt acted on the doctrine of common purpose on the day when Gift Mokoena was shot dead. He was sleeping on the back seat of the vehicle driven by his uncle at the time.
Deon, a former Transnet security guard, and Johan, a former cash-in transit security guard, pleaded not guilty to the murder of Gift. They also pleaded not guilty to attempted murder of four of Gift’s family members who were in the car.
The Mokoena family had returned late on the night of June 2, 2007, to their Tembisa home after a visit to the boy’s granny.
His father, Jan Mokoena, testified earlier that his brother was driving the car. He was sleeping in the passenger seat and his son was asleep in the back.
Mokoena was woken by the flashing lights of a passing vehicle and he saw a man in the passenger seat of that vehicle firing shots at them.
The vehicle overtook them, but the passenger fired several more shots at their vehicle, Mokoena said. Only one shot hit their vehicle and smashed the rear window after hitting Gift. It appeared the shooter was aiming at his brother, who was driving the car, Mokoena said.
Johan van der Walt admitted that he had fired the shots, but said he never meant to hit the car. He had fired warning shots aimed at a field next to the vehicle, as he suspected that they were being hijacked.
Johan said the driver of the vehicle tried to push them off the road and because he had been in a hijacking a few days earlier during which his colleague was shot dead, he decided to fire warning shots at the vehicle.
The brothers also faced a charge of attempted murder after a pedestrian, Tsepho Molefi, said he was shot in the foot minutes before Gift was killed. Molefi testified that he was walking along the road when someone shot at him from a car.
The brothers, who were stopped by police minutes after Gift was shot, told the court they had no idea they had hit someone. They main-tained that none of the bullets had hit the car, so they drove on.
They also denied any knowledge of hitting the pedestrian, although Johan said he did at one stage fire shots at a rabbit running in the veld next to the road.
Deon testified that he was on duty that night and had to inspect the railway line for cable theft. He took his brother along, as it was a “lonely and dangerous task”.
Judge Ferdi Preller, who took over the trial from Judge Belinda Molamu, who had died, said he could not determine from the evidence exactly what had happened that night. There was no evidence that more than one shot was fired at the vehicle, which was hit at an angle.
Mokoena testified that several shots were fired at them at a short distance, but the judge said if this was true, more than one bullet would have hit the car. He could not reject as false the version of the brothers that they had fired warning shots.
The judge said while the State could not prove that Johan shot at the car with the intention to kill the passengers, he was definitely negligent as he hit the child.
Regarding the alleged shooting of the pedestrian, the judge said it could not be found that the bullet was fired by Johan. No bones were broken in his foot, which meant he was shot with a small-calibre firearm, while the brothers had large-calibre guns with them.
Deon was cleared of all charges, but Johan was convicted of culpable homicide. He will be sentenced on September 10.