THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 475/2023
In the matter between:
DINESH MOODLEY FIRST APPELLANT
UGRESEN PERUMAL SECOND APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Moodley and Another v The State (475/2023) [2024] ZASCA 102
(20 June 2024)
Coram: HUGHES and MABINDLA-BOQWANA JJA and SMITH AJA
Heard: This appeal was, by consent between the parties, disposed of without an
oral hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013.
Delivered: This judgment was handed down elect ronically by circulation to the
parties’ representatives by email; publication on the Supreme Court of Appeal website
and released to SAFLII. The time and date for han d-down is deemed to be 11h00 on
20 June 2024.
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Summary: Criminal Law and Procedure – identification – witnesses’ previous
knowledge of the appellants – appellants identified by witnesses on the strength of
their prior knowledge – whether the state witness es’ identification was reliable and
credible.
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___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg (Van Veenendaal
AJ, sitting as court of first instance):
The appeal is dismissed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Hughes JA (Mabindla-Boqwana JA and Smith AJA concurring):
[1] This appeal is against the judgment of Van Veene ndaal AJ of the Gauteng
Division of the High Court, Johannesburg (the high court) regarding conviction only.
On 6 September 2019, t he appellants, Dinesh Moodley and Ugresen Perumal, were
convicted of murder and subsequently sentenced to twenty-five years’ imprisonment.
The high court granted leave to appeal to this Court.
[2] The fundamental issue in the appeal is whether the State proved the identity of
the assailants who shot and killed the deceased, Avinash Manjanu , beyond a
reasonable doubt. Critical, is the reliability of the evidence of the state witnesses and
the strength of the witnesses’ prior knowledge of the assailants . At the trial, the first
appellant was accused 1 and the second appellant accused 2, respectively.
[3] The evidence led is briefly as follows. On the evening of 4 November 2017, Mr
Vinay Choonie, one of the s tate witnesses, hosted a party at his home in Lenasia
South. The first appellant, Dinesh Moodley and the deceased were amongst the guests
in attendance. An altercation broke out involving the first appellant and a brother of the
deceased. The deceased’s brother was accused of touching the first appellant’s sister,
Ms Nerisha Moodley, inappropriately. This altercation escalated to a physical fight,
which caused Mr Choonie to end the celebrations. He requested all the guests to leave
his home. The first appellant left the venue with his family and the deceased also left.
his home. The first appellant left the venue with his family and the deceased also left.
The deceased returned at a later stage and enquired about the assault on his brother.
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[4] On his arrival, the deceased parked his vehicle close to the pavement by Mr
Choonie’s house. He alighted from the vehicle and stood by the driver’s door,
conversing with Mr Choonie, Ms Prenisha Moodley, Mr Simeshan Naidoo, and Ms
Lorraine Moodley (the group). The individuals in the group all testified that the area
was well lit by the streetlights situated on the road. Whilst they were still conversing
about the first appellant assaulting the deceased’s brother, the second appellant ,
Ugresen Perumal, arrived in a grey Hyundai i20 motor vehicle, with the first appellant
in the passenger seat. This vehicle made a U-turn on Hibiscus Crescent and came to
park behind the deceased’s vehicle. The second appellant alighted from the vehicle,
proceeded straight towards the deceased with a firearm in his hand, and started
shooting directly at the deceased. He was spurred on by the first appellant to shoot the
deceased. When the shots were fired, the deceased was facing the second appellant.
After the shooting, the deceased got into his vehicle and drove off. The appellants also
got into their vehicle and sped off following the deceased’s vehicle.
[5] The group with whom the deceased was conversing sought safe refuge when
the gunshots were being fired. After the appellants had sped off , following the
deceased’s vehicle, Mr Choonie together with the others of the group, climbed into his
vehicle and followed the appellant’s vehicle. They drove for about 220 metres and saw
the deceased’s vehicle, which had driven into and collided with a wall of one of the
resident’s houses. The y found the deceased slumped in the driver’s seat . The
post- mortem found that he had succumbed to the fatal gunshot wound to his chest.
[6] At the trial, the State presented eyewitness evidence to confirm the identity of
the shooter and his co-perpetrator. One of the witnesses, Prenisha testified that the
first appellant was her stepbrother. She grew up with him in the same home. The first
first appellant was her stepbrother. She grew up with him in the same home. The first
appellant was known to the majority of the state witnesses. Mr Choonie was Prenisha’s
husband and Lorraine was Prenisha’s mother. As regards the second appellant’s
identification, both Lorraine and Prenisha knew him well as he was the first appellant’s
uncle. First names are used for convenience as the witnesses concerned share a
surname.
[7] At the trial, Mr Naidoo testified that he encountered the first appellant for the
first time at the party. Earlier that evening, Prenisha introduced the first appellant to
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him, as her brother. Regarding the second appellant, he was adamant that he was the
shooter and he had seen him clearly. His testimony was: ‘…I saw him, clean and clear,
he climbed out and he started shooting like he was crazy’. He further reaffirmed this
whilst being cross -examined. His testimony was ‘…I can say for sure . . . , I saw
Accused 2 climb out and shoot our friend. It is all I can explain that, you can ask m e
[a] hundred times over and I will tell you the same thing’. His evidence was that Lorraine
confronted the second appellant saying, ‘shoot me instead of Avenash’, the deceased.
[8] When it was put to him, that the first appellant would say that he was not present
when the shooting occurred, he responded, ‘It is a lie though, because everyone was
around, saw him climb out and say, “shoot him, fucken kill him”. He described what the
appellants wore that night. Mr Naidoo’s evidence was further that during the party and
whilst the first appellant and the deceased’s brother were fighting, he witnessed that
the deceased had tried ‘continuously’ to stop the fight between the two.
[9] Lorraine confirmed in her evidence that the first appellant was her daughter ’s
(Prenisha) brother, and her stepson. Her testimony was that the first appellant refers
to her as ‘Aunty Lorraine’. She further testified that it was the first appellant’s fight with
the deceased ’s brother that led to Mr Choonie requesting the guest s to go to their
respective homes. At some stage, after he arrived on the scene with the second
appellant, the first appellant spoke to her directly and instructed her to go inside. In
cross-examination she was asked ‘how did you identify Accused 2’. Her response was
that he was the first appellant’s uncle. Th at was followed up with another question: ‘I
am referring to that evening; how did you recognise him?’. Her response was: ‘I know
him, he is sitting right there . . . His face I recognised immediately’.
him, he is sitting right there . . . His face I recognised immediately’.
[10] Prenisha corroborated Mr Naidoo’s evidence that the second appellant drove a
Hyundai i20 and arrived with the first appellant after the guests had gone home, whilst
the group was conversing with the deceased. Further, that after the shooting , the
appellants got back into their vehicle and chased after the deceased’s vehicle.
[11] Mr Choonie’s testimony was that whilst he was being interviewed at the police
station, he saw the second appellant through an open door and pointed him out to the
investigating officer. Captain Israel, who also testified, corroborated this and explained
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that while he was busy taking Mr Choonie’s statement , the two appellants arrived at
the police station , having been called by another police officer . This was when Mr
Choonie pointed at them as being the ones involved in the shooting of the deceased.
[12] The appellants’ testimonies amounted to a bare denial. Both were adamant that
they were not present at Mr Choonie’ s home when the shooting of the deceased
occurred. They both relied on alibi evidence. The first appellant testified that he was
nowhere near the vicinity of the shooting at Mr Choonie’s home. He had been at the
party earlier, had a fight with the deceased’s brother, and when the guests were told
to leave, he left for his home with his family. He only became aware of the shooting
when he went to the police station the following day to assist his sister, Nerisha, to
open a case.
[13] The second appellant confirmed that he owned a silver grey Hyundai i20. He
testified that on the night of the shooting, he was at home. He passed out on the couch
watching television. He woke up at 23h00 to prepare for the prayer he was going to
have for his late brother the following day. The only time he left his home was to collect
his sister in Lenasia South, between 3h00 and 3h30, the following morning.
[14] The trial court found that the eyewitnesses all identified the second appellant as
the shooter and ‘accused 1 as being with him, even goading accused 2 on’. Further,
that the witnesses corroborated each other in relation to the manner in which the
shooting of the deceased unfolded, and that they were not shaken, even though they
were subjected to thorough cross -examination. The trial court was conscious of the
fact that the critical issue in this case was identification. It was also mindful of the trite
approach to be followed when deal ing with evidence of identification , which is ‘the
opportunity, the lighting, the length of time [and] the acquaintance between the
opportunity, the lighting, the length of time [and] the acquaintance between the
witnesses’. The trial court concluded that the eyewitnesses had ample time to identify
the appellants, knew the appellants pers onally, and the visibility was good , even
though the shooting occurred at night.
[15] It is trite that the state bears the onus to prove the identity of the appellants and
to dispel their alibi defence beyond reasonable doubt. In the circumstances, it is not
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sufficient for the witness to be honest , as the reliability of the witness must also be
tested against opportunity of observation, lighting, visibility and the witnesses ’
proximity to the appellant. 1 The alibi defence raised, must be considered with other
evidence in totality, together with the impression of the witnesses. 2 In S v Liebenberg
this Court stated:
‘. . . Once the trial court accepted that the alibi evidence could not be rejected as false, it was
not entitled to reject it on the basis that the prosecution had placed before it strong evidence
linking the appellant to the offences. The acceptance of the prosecution’s evidence could not,
by itself alone, be a sufficient basis for rejecting the alibi evidence. Something more was
required. The evide nce must have been, when considered in its totality, of the nature that
proved the alibi evidence to be false. . . ’3
[16] Still on the topic of the law relevant to identification, especially in relation to
witnesses having prior knowledge of the identity of the person sought to be identified,
I refer to a judgment of this Court in Abdullah v The State,4 where Nicholls JA quoted
the following:
‘In Arendse v S this Court quoted with approval the trial court’s comments in R v Dladla: “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 b e 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”.
1 S v Mthethwa 1972 (3) SA 766 (A) at 768A -C. See also, but not limited to S v Nango [1990] ZASCA
123;1990 (2) SACR 450 (A) at 10 and S v Charzen and Another [2006] ZASCA 147; [2006] 2 All SA 371
(SCA); 2006 (2) SACR 143 (SCA) para 11.
2 R v Hlongwane 1959 (3) SA 337 (A) at 340H-341A.
3 S v Liebenberg [2005] ZASCA 56; 2005 (2) SACR 355 (SCA) para 14.
4 Abdullah v The State [2022] ZASCA 33 paras 14 and 15.
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This Court reaffirmed this principle more recently in Machi v The State 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.’
[17] The trial court was correct to reject the alibi defence, albeit partially on a wrong
principle, when it stated that the alibi version of the appellants was not disclosed for
the state to disprove. It was , however, correct in its examination of the evidence
regarding the alibi defence as well as the other evidence, and correctly declared it as
false.
[18] In addition, t he trial court recognised that this case was not one of mistaken
identity, as the witnesses knew the appellants . T hey were close relatives ; the first
appellant was the brother to Prenisha, and they grew up together; he referred to
Lorraine as ‘aunty Lorraine’. She was his stepmother with whom he had lived . The
second appellant was known t o both Lorraine and Prenisha as the first appellant ’s
uncle.
[19] In his heads of argument, the appellants' counsel criticised the evidence of the
eyewitnesses, submitting that the witnesses and the first appellant were family
members who evidently had some personal issues amongst themselves. The
appellants' evidence, however, does not support this. They both testified that there
were no family issues between them and the witnesses. There could be no reason the
appellants would be implicated by the eyewitnesses , much so the second appellant.
Furthermore, the appellants were also identified by Mr Naidoo who had no prior
involvement with them. The defence of false or mistaken identity does not withstand
scrutiny. In any event, the evidence is so overwhelming against the appellants.
[20] Both appellants confirmed that the second appellant drove a grey Hyundai i20.
A vehicle of the same make was identified by the state witnesses as the one the
A vehicle of the same make was identified by the state witnesses as the one the
appellants arrived in, before the shooting took place and that which chased after the
deceased’s vehicle, after the shooting.
[21] Crucially, the distance between the scene where the shooting first occurred and
the scene where the deceased vehicle knocked into the wall was said to be only 220
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metres apart. The witnesses testified that the deceased was driving his vehicle fast,
clearly, in an attempt to get away from the appellants after being shot at. Shortly after
the crash at the second scene , the eyewitnesses and the people from the
neighbourhood arrived. Thus, there is little room for speculation that there might have
been another shooter at the second scene , where the crash occurred. This, too,
negates the probability of mistaken or false identification.
[22] The appellant's alibi defence that they were at their respective homes when the
shooting occurred is also negated by cellphone evidence adduced by the S tate. Both
appellants’ cellphones were cited at 23 :19:45 as being near the Parkside Primary
Tower. There is therefore corroboration as regards the cellphone tower evidence that
the appellants were in the same vicinity at the same time. Both appellants live at
different addresses in Lenasia South. The first appellant lived at Brandberg Place,
while the second appellant live d at Shaba Crescent . The nearest tower for the first
appellant was Lenasia South Tower with Parkside and Cosmos Street Towers to his
north and Madiba Primary to the south. The second appellants’ closest towers were
Apex Tower with Spoonhill, Saliheen Masjidus, Shari Crest Primary. Therefore, the
appellants could not have been at their respective homes.
[23] I now turn to the ballistics evidence, which was accepted in part and rejected in
part by the trial court . A comparison of the bullets recovered from the deceased’s
vehicle was conducted by Captain Blignaut. The trial court found this evidence to be
inconclusive and problematic with significant discrepancies. Bearing in mind that
ballistic evidence is expert evidence, the principles associated with the acceptance or
the rejection of such evidence are applicable. Captain Blignaut conceded that the
bullets recovered from the deceased’s vehicle could not have been fired from the
bullets recovered from the deceased’s vehicle could not have been fired from the
second appellant’ s personal licenced firearm, a 9mm Parabellum semi-automatic
pistol. No cartridges were recovered from the first scene outside Mr Choonie ’s home.
The eyewitnesses ’ evidence was to the effect that some wom an by the name of
‘Cynthia’ had picked up all the spent cartridges at the first scene. For some reason ,
which was not explained, the State failed to investigate this issue or call this witness.
The appellants’ counsel submitted in his heads of argument that all these shortcomings
pointed to a possibility that there was no shooting at the first scene , and that the
deceased was not struck by bullets fired from the second appellant’s firearm. This
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submission is, however, not sustainable. The manner in which the shooting occurred
and the proximity between the first and the second scene leave no room for
speculation.
[24] The expert evidence was accepted in part as being as such and rejected as the
trial court was of the view ‘that [Blignaut] corrected [her] finding after consultation with
the state, not to exclude evidence but rather to implicate the [9mm firearm], appears
highly suspect.’ An expert witness is not retained to give a favourable opinion on behalf
of the party who hired him or her. An expert is not a ‘hired gun’. The expert’s prime
duty is to assist the court in coming to a reasonable conclusion on matters which
require expert evidence. Thus, a judge would be favourably impressed by an expert’s
impartiality who is willing to make reasonable concessions which might be detrimental
to the client’s case, provided the concessions are justif ied in the circumstances. 5
Hence, the rejection by the trial court was correct, as it was not bound to accept the
expert evidence, if it was not satisfied that the finding of the expert witness was not
corroborated by the rest of the evidence.
[25] Both the State and the defence conceded that there were discrepancies in the
evidence adduced by the eyewitnesses. The trial court also acknowledged this factor.
It, however, concluded that ‘ although the ir evidence [of the eyewitnesses] can be
criticised as not exactly coinciding, it is also indicative of their independence’. In my
view the discrepancies were not material . It is trite that contradictions are to be
evaluated in the context of the evidence as a whole. The eyewitnesses were steadfast
and unshaken as regards the identity of the appellants as the perpetrators. They may
have given different accounts in relation to some aspects of how the incident unfolded,
their evidence in relation to the main events was, however, consistent.
their evidence in relation to the main events was, however, consistent.
[26] For these reasons, there is no justification for interfering with the factual findings
of the high court and its decision to convict the appellants. The following order is made:
The appeal is dismissed.
5 Schneider NO v AA [2010] ZAWCHC 3; 2010 (5) SA 203 (WCC); [2010] 3 All SA 332 at 14-15.
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__________________
W HUGHES
JUDGE OF APPEAL
APPEARANCES
For the Appellants: Heads of argument prepared by J Muir
Instructed by: AVDM Attorneys, Johannesburg
Peyper and Botha Attorneys, Bloemfontein.
For the Respondent: Heads of argument prepared by J M K Joubert
Instructed by: The Director of Public Prosecutions, Johannesburg
The Director of Public Prosecutions, Bloemfontein.