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 (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
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL
31 May 2011

STATUS: Immediate

SAID MOHAMMED v THE STATE (605/2010)

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal (the SCA) today dismissed an appeal against
conviction and sentence in this matter. The appellant, Mr. Mohammed, was
convicted in the Regional Court on robbery with aggravating circumstances. He was
sentenced to 15 years imprisonment.  An appeal to the Western Cape High Court
against conviction and sentence was unsuccessful.

The SCA upheld the findings of the Regional Court Magistrate that the complainants’
identification was reliable.  The complainants were accosted in a flat by five men
brandishing firearms.  They described the appellant as the ringleader.  The flat was
ransacked and one complainant was repeatedly beaten.  The SCA endorsed the
Regional Court’s findings that the conditions were conducive to a reliable
identification and that the complainants had sufficient opportunity to observe and
identify the appellant.

The SCA found that there were no grounds to interfere with the sentence and
consequently dismissed the appeal against conviction and sentence.

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