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[2011] ZASCA 98
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Mohammed v S (605/10) [2011] ZASCA 98 (31 May 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No 605/10
In the matter between:
SAID MOHAMMED
................................................................................
APPELLANT
and
THE STATE
........................................................................................
RESPONDENT
Neutral citation:
Mohammed
v State
(605/10)
[2011] ZASCA 98
(31 May
2011)
Coram:
HEHER, MAYA and MAJIEDT JJA
Heard:
25 May 2011
Delivered:
31 May 2011
Summary:
Criminal law ─ robbery with
aggravating circumstances ─ identification ─ proof of
beyond reasonable doubt ─
requirements restated ─ alibi
defence ─ effect of late disclosure ─ sentence ─ 15
years’ imprisonment
─ no appellate interference
warranted.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Western Cape High Court (Cape
Town) (Cleaver J and Brusser AJ sitting as court of appeal):
The appeal is dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
MAJIEDT JA (HEHER and MAYA JJA concurring):
[1] This is an appeal against the judgment of Brusser
AJ, with Cleaver J concurring, sitting as court of appeal in the
Western Cape
High Court, Cape Town, in terms of which the appellant's
appeal against his conviction in the regional court of robbery with
aggravating
circumstances and the sentence of 15 years’
imprisonment was dismissed. Leave to appeal was granted by the court
below.
[2] The appellant's conviction in the regional court
arose from the following set of facts:
2.1 The complainants, Ms Nomonde Patience Botha and her
boyfriend, Mr James Mecca, were accosted in the latter's flat by four
men,
brandishing firearms. They were tied up, Mecca was repeatedly
beaten up and dragged around the house, the flat was ransacked and
the robbers eventually made off with the complainants' goods valued
at approximately R22 000.
2.2 The ordeal lasted between half an hour (on Botha's
estimation) to over an hour (as estimated by Mecca). The flat's
lights were
on throughout and the obvious ringleader of the gang,
whom they both subsequently identified as the appellant, had his face
uncovered.
2.3 Botha encountered and recognized the appellant on at
least three subsequent occasions. On one such occasion, she sought to
engage
the assistance of the security guards at a shopping mall, the
Golden Acre, where she had seen the appellant, to have him arrested.
They declined to do so in the absence of a case number.
2.4 Mecca also recognized the appellant on two
subsequent occasions, namely at a Seven Eleven store and at the Cape
Town railway
station. After the first such occasion he furnished the
Milnerton police with the registration number of the motor vehicle in
which
he had seen the appellant. After the second occasion, he
alerted the police on patrol at the station, who arrested the
appellant.
Botha was asked to come to the police station where she
immediately positively identified the appellant as the lead robber,
even
before she was asked to do so.
2.5 The appellant denied having robbed the complainants.
His attorney raised an alibi on his behalf belatedly during the
trial,
namely when the State's second witness, Mecca, was being
cross-examined. No such alibi defence was put to the first State
witness,
Botha, by the appellant’s former attorney (he was
represented by another one when Mecca testified).
2.6 The appellant alleged in his testimony that he had
been in Pretoria at the time of the robbery. He had gone there at the
request
of his friend and compatriot (the appellant is a Tanzanian
citizen), one Mr Malik Ponza, to assist him in his business. Ponza
testified
in support of this alibi.
3. The regional magistrate accepted the State’s
version and rejected the appellant's alibi defence as false beyond
reasonable
doubt. She found the State witnesses' identification of
the appellant credible and reliable. She was satisfied that the
identification
occurred in circumstances where there was adequate
opportunity for a reliable identification.
4. The court below endorsed the regional magistrate's
aforementioned findings. I, too, can find no fault with her findings.
This
appeal turns on the reliability of the complainants’
identification. The appellant has in my view failed to establish that
the regional magistrate erred in finding the identifications to be
reliable. With regard to identification, Botha and Mecca had
ample
opportunity to observe the appellant who, as stated, directed
proceedings during the robbery. The appellant's face was uncovered
and the flat's lights were on throughout. Botha enumerated some of
the identifying features of the appellant, namely his hefty
build, a
big face, thick lips and what she described as 'sexy' eyes. Mecca was
adamant that he would never forget the appellant's
face and stated
that whenever he closed his eyes he could see the appellant's face.
Added to this of course, is the fact that the
appellant was in
command, thus the complainants focused most of their attention on
him. Moreover, the complainants recognized the
appellant on several
occasions thereafter and sought to have him arrested.
[5] The identification of the appellant unquestionably
passes muster when measured against the well-known cautionary
approach enunciated
in a long line of cases, most recently by this
court in
S v Ngcamu
2011 (1) SACR 1
(SCA) para 10, where
Mthiyane JA made reference to this court's earlier
locus classicus
on identification evidence,
S v Mthetwa
1972 (3) SA 766
(A) at
768A-C. The cumulative weight of the factors enumerated by Holmes JA
in
Mthetwa
such as 'lighting, visibility and eyesight; the
proximity of the witness[es] . . . opportunity for observation, both
as to time
and situation . . . the [appellant's] face, voice, build,
gait and dress' conduce to a reliable identification in the present
matter.
[6] The appellant’s counsel laid heavy emphasis on
the complainants’ lack of any description of their assailants,
particularly
of the appellant, to the police after the robbery. He
contended that this omission raises reasonable doubt about the
reliability
of their identification. It seems to me that the police,
rather than the complainants, are to blame for this omission. The
police
were told by the complainants that they would be able to
recognize the robbers in the event that the complainants see them
again.
But no descriptions of the robbers were sought from the
complainants. In any event, even if it can be said that the omission
is
attributable to the complainants, it must be considered on the
evidence as a whole. As stated above, the complainants had adequate
opportunity for a reliable identification and the conditions were
conducive to such reliability. As it turned out both complainants
did, on their version, see one of their assailants, the appellant,
again on more than one occasion and they took active steps to
have
the appellant arrested. The complainants’ lack of any
description of their assailants can therefore not detract from
the
reliability of their identification when all the facts and
circumstances are considered.
[7] Criticism was also levelled against Botha's
identification of the appellant at the police station after his
arrest. The submission
was made that it is tantamount to a 'dock
identification' on which no reliance can be placed. In
S v Tandwa
2008 (1) SACR 613
(SCA) para 129, this court reiterated that '. .
.[d]ock identification . . . may be relevant evidence, but generally,
unless it
is shown to be sourced in an independent preceding
identification . . . carries little weight'. The exception alluded to
in this
passage applies in this matter. Botha's identification at the
police station therefore serves as a further factor enhancing the
reliability of the identification, albeit to a very limited extent.
[8] Against this compelling identification evidence,
stands the appellant's belatedly raised alibi defence. On a
conspectus of the
evidence as a whole, that defence cannot be
reasonably possibly true. The regional magistrate correctly found
that there were material
contradictions between the versions
propounded by the appellant and his witness, Ponza, on inter alia the
precise reason for the
appellant’s visit to Pretoria and the
extent of the injuries sustained by Ponza and his girlfriend in a car
accident. She
also correctly found it to be riddled with
inconsistencies and improbabilities. The alibi defence simply lacked
credibility, a
fact which is exacerbated by its late introduction
into the case (compare in this regard, the facts and findings in
S
v Carolus
[2008] ZASCA 14
;
2008 (2) SACR 207
(SCA) para 29). The appellant’s
explanation that the alibi defence was raised late because of his
former attorney’s
neglect, lacks persuasion. It was the very
essence of his case and it strikes one as improbable that the
attorney would not have
referred to it in cross-examination; equally
unlikely is that the appellant would have failed to draw the
attorney’s attention
to this material omission.
[9] The appeal against conviction is devoid of merit and
must be dismissed. Short shrift can be made of the appeal against
sentence.
The offence carries a statutorily prescribed minimum
sentence of 15 years’ imprisonment, unless substantial and
compelling
circumstances exist to justify a departure from it. The
appellant and his confederates terrorised the complainants in Mecca's
residence,
his sanctuary where he and his visitors were supposed to
be safe. Mecca was repeatedly beaten up and both he and Botha were
threatened
with firearms. Only two factors were advanced at the trial
as substantial and compelling circumstances, warranting departure
from
the minimum sentence of 15 years prescribed in
s 51(3)(a)
of the
Criminal Law Amendment Act 105 of 1997
. These were the appellant's
lack of previous convictions and the fact that the appellant has
children to care for. The regional
magistrate rightly rejected these
factors. The aforementioned Act stipulates a sentence for first
offenders. And it was not the
appellant's case on sentence at the
trial, or on appeal in the court below, or before us, that he is the
sole breadwinner or primary
caregiver to the children. The sentence
fits the offender and the offence in my view.
[10] The appeal is dismissed.
___________
S A Majiedt
Judge of Appeal
APPEARANCES:
Counsel
for Appellant : Adv. J A du Plessis
Instructed
by : Liddell, Weeber & Van der Merwe Inc,
Wynberg
Ben van der Merwe
Bloemfontein
Counsel
for Respondent : Adv. S Vakele
Instructed
by : The Director of Public Prosecution,
Cape
Town
The
Director of Public Prosecution,
Bloemfontein