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[2012] ZANCHC 21
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S v Yaso (KAP 25/2011) [2012] ZANCHC 21 (3 April 2012)
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IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE HIGH
COURT, KIMBERLEY
CASE NO: KAP 25/2011
HEARD: 13-17/02/2012 &
2/04/2012
DELIVERED: 3 /04/2012
In the matter
between:
THE STATE
and
THOMAS SIMON YASO
….......................................................
ACCUSED
JUDGMENT
HUGHES-MADONDO, AJ
The accused THOMAS
SIMON YASO was arraigned in respect of the following charges: Count
1 Robbery with aggravating circumstances
and Count 2 Murder.
The State alleges that
on 12 February 2011 at ‘Lollitta Tuck Shop’ in Tshwene
Street, Galeshewe, Kimberley, Yaso,
robbed AlomgirHoosain andHadiul
Islam by gun point.
During the course of
the robbery Yaso shot Hadiul Islam. Islam was taken to the hospital
however he succumbed to his gunshot wounds
and died.
The following items
were taken from the tuck shop:
Cash to the tune of R
3000.00
Cellphone Airtime
valued at R 2000.00
Cigarette’s
valued at R 900.00
Nokia cellphone valued
at R 500.00
Passports of both
AlomgirHossain and Hadiul Islam.
Yaso pleaded not
guilty to both counts preferred. In his section 115 plea
explanation, he stated that he was not at Lollitta’s
on the
night in question. He was at a tavern by the name of ‘Take
Two’.
The State called a
number of witnesses. I propose to deal with the salient features
that emanate from their evidence.
Constable Matome Peter
Motokolo of the Kimberley flying squad was first on the scene. He
gave an account on his observation and
interviews conducted at the
scene. On his arrival at Lollitta’s, many people were milling
around, he was approached by
AlomgirHossain, who said he was the
brother of the injured person, Islam.
On entering the tuck
shop Islam was lying on the floor. There was blood where he laid. He
had been shot in the abdomen. He also
observed a live bullet and
cartridge on the floor, whilst a green Heineken Quart Bottle was at
the door of the tuck shop.
Senior Constable
Michael Modise Bogacwi of the detective branch Galeshewe conducted
the investigations in this case and arrested
Yaso.
At the scene through
inquiries he met Dennis Louw. Louw informed him that he had seen
Yaso jumping over a fence from the yard
of the deceased into his
yard. Louw said that it appeared as if Yaso was carrying a fire arm.
Louw informed him that he knew
Yaso very well. He accompanied
Bogacwito locate Yaso, who was eventually apprehended on the
following day.
Magdalene Marumollane
is Dennis Louw’s grandmother. They live in the same home. Both
knew the accused well and testified
on behalf of the State. They
said they saw the accused immediately after the incident. Magdalene
testified that she had sent
Dennis to check what had happened at her
neighbour’s tuck shop, who had come running into her yard
seeking help, after
a shot was fired.
She testified that on
Dennis return, he and the accused approached from different
directions. At her gate she had an altercation
with the accused who
uttered to Dennis “sonny jy spied”.
During
cross-examination Magdelene was confronted with a statement she had
made on the 13 February 2011, a day after the incident
took place.
In this statement it came to the fore that she had never made
mention that she had spoken to the accused at the gate.
In fact, she
said that two unknown men spoke to Dennis at the gate, when one of
them said to him“ sonnyjy spied”.
It also emerged during
cross-examination that at an identification parade, she could not
point out the accused.Instead she pointed
out two other persons.
TsholofeloPetoro, a
fourteen year old youth was in the tuck shop, just minutes before
the deceased was shot. She testified that
there were two men in the
store; one of them was short whilst the other was tall. These men
were trying to open the safety latch
on the gate in the tuck shop.
This gate separated the customers from the shop owners.
She explained that she
did not know these men. When she left the shop these two were still
in the shop. When a shot was fired,
she presumed that it must have
been these men who shot the deceased.When she heard the shot she
turned around and noticed the
taller one with a firearm in his hand
whilst the shorter one was standing behind thetall man.
Joy Anthony, a friend
of Dennis, explained to this court that he did not see the shooting.
He heard about it and curiously he
attended at the tuck shop where
the shooting had taken place.
His evidence is that
he sawthe accused just before the shooting in Stomper Street. He
said he had not known the accused name.
Thus before he attended the
identification parade, he made inquiries from Dennis as regards the
accused name. When asked how
he identified the accused, he explained
that he did so as he had seen him in the street on the day in
question.
AlomgirHoosain,
testified that four men entered the tuck shop while he and Islam
were attending tothe customers. Two stood by
the door whilst the
other two entered into the store. Those who were in the store, one
of the men were tall and the other was
short. The taller one was
busy trying to open the latch, whilst the shorter stood alongside
him.
At some stage the
taller man pulled out a revolver from his pocket. The witness said
that this is when he hid. A shot was fired
at Islam. Hoosain then
fled through the back entrance and went next door for assistance.
Hoosain had not seen
the assailants before the incident. He explained that he did not see
them after the incident as well. However
whilst the accused was in
the dock in court he pointed out the accused as being one of the
assailants.
At the identification
parade held two days after the incident, he failed to point out the
accused.
Ironically he and
Magdalene pointed out the same person,TsepoHetti and not the
accused. Joy Anthony point out the accused, however
he had made
inquiries from Dennis the previous day as regards Yaso.
Dennis Louw explained
that he went to the tuck shop after the shot was fired and Hoosain
had come running into their yard. He
testified that he did not enter
the tuck shop at all. He said that two men jumped over the wall
whilst he stood with Hoosain
in the back of his yard. One of those
men was Thomas Yaso. He testified that whilst his grandparents were
at the gate of their
yard and he was at the back with Hoosain, he
heard the accused say to his grandparents that he “sonny
jyspied”. He
further testified that he knew the accused very
well from as far back as his childhood days.
This is a case where
the State relies on circumstantial evidence. It is trite that the
leading case as regards this type of evidence
being accepted is
R
v BLOM1939 AD 188, Watermeyer JA held
“
The inference
sought be drawn must be consistent with the proven facts. If it is
not, then the inference cannot be drawn. The
proven facts should be
such that they exclude every reasonable inference from them save the
one sought to be drawn. If they do
not exclude other reasonable
inferences, then there must be a doubt whether the inference sought
to be drawn is correct.”
At the close of the
State’s case Adv. Van Tonder for the accused applied for a
discharge in terms of
section 174
of the
Criminal Procedure Act 51
of 1977
. The application was refused and I now turn to deal with my
reasons for the said refusal.
Section 174
of the
Criminal Procedure Act reads
as follows:
“
If,
at the close of the case for the prosecution at any trial, the court
is of the opinion that there is no evidence that the accused
committed the offence referred to in the charge or any offence of
which he may be convicted on the charge, it may return a verdict
of
not guilty.”
S v HUDSON AND
OTHERS
1998 (2) SACR 359
at page 360 G-I, Blieden J
said “
This
section of the
Criminal Procedure Act affords
the judicial officer a
discretion to discharge the accused or refuse to do so. This
discretion is of course to be exercised judicially
and not
arbitrarily or capriciously. In
S v Shuping and others
1983 (2) SA 119(B)
Hiemstra CJ
laid down the test as
follows. The first consideration is whether there is evidence on
which a reasonable man may convict. If
the answer is negative it
must be asked whether there is a reasonable possibility that the
defence evidence may supplement the
State case. If the answer is in
the positive a discharge should be refused.”
In this case the
witness Joy Anthony positively identified the accused in the
identification parade. TsholofeloPetoro and Hoosain
also
indentifiedthe accused in the dock as being one of the assailants.
An inference could be drawn which might not exclude the
accused,
more so,the section above clearly states that a discharge ‘may’
be granted and not ‘must’ be
granted on application. It
is for these reasons that I refused the application.
The accused then
closed his case, opting not to testify and or lead any evidence in
his defence.
The State and the
defence argued that the contradictions inthe witnesses’
evidence were material. The State, furtherargued
that these
contradictions were such that they created doubt and the benefit
thereof should be given to the accused.
The State contended
that there was a gap in the evidence that they had presented to the
court, and this gap rendered their case
floored. They could not with
certainty conclude that the only inference that could have been
drawn from the evidence presented
was that, the accused was the
person who committed the offences preferred against him
Zulman JA in
S v V
2000 (1) SACR 453
(SCA) at 455A-B
, “
It is trite that
there is no obligation upon an accused person, where the State bears
the onus, ‘to convince the court’.
If his version is
reasonably possibly true he is entitled to his acquittal even though
his explanation is improbable. A court
is not entitled to convict
unless it is satisfied not only that the explanation is improbable
but that beyond any reasonable
doubt it is false.”
From the outset the
accused placed identity in dispute. His version was simply that he
was not present at the tuck shop when the
incident took place as he
was at Take Two tavern.
If I examine all the
evidence in totality, in the face of the explanation advanced by the
accused, there is no evidence, standing
on its own that points
directly to the guilt of the accused. Further, even if an inference
is to be drawn there from, it cannot
be the only inference one could
draw, that the accused was one of the assailants on the day in
question.
Though Tsholofel
places the accused in the tuck shop, her dock identification puts a
spanner in the works. Throughout her evidence
she never stated what
the identifying features were of the accused that made her certain
that the assailant was indeed the accused
in the dock. This also
occurs with Joy Anthony, though he said he recognised the accusedby
his teeth. When questioned by the
defence as to whether the accused
was smiling at the identification parade or in court, he then
buckled and said that he had
made inquiries as of the accused from
Dennis.
Both Dennis and his
grandmother give an account of the utterance of the accused “sonny
jy spied”. As to when, where
and to whom this was said, their
versions are strikingly opposite.
In conclusion, when
the evidence is examined in totality, against the explanation of the
accused,it is not sufficiently strong
to outweigh the explanation of
the accused, as not being reasonably possible, that I can safely
reject it. See
S v LIEBENBERG
2005 2 SACR 355
SCA at paragraph
14, Jafta JA
remarked “The acceptance of the prosecution’s
evidence could not by itself alone, be a sufficient basis for
rejecting
the alibi evidence....The evidence must have been, when
considered in its totality, of the nature that proved the alibi to
be
false.”
In the result it
cannot be that both versions, that of the State and the accused, can
be reasonably possibly true.
The accused is
therefore entitled to the benefit of the doubt.
In the circumstances
the following order is made:
The accused is
accordingly found not guilty on count 1- robbery with aggravating
circumstances and count 2- murderand acquitted.
___________________________________
W
HUGHES-MADONDO
ACTING JUDGE
NORTHERN CAPE HIGH
COURT, KIMBERLEY
osts of such procee
On behalf of the STATE
:
Adv. MOKONO (OFFICE OF THE DPP)
On behalf of the ACCUSED
:
Adv.VAN TONDER (LEGAL AID OFFICE)