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Yusuph v S (A513/2016) [2017] ZAGPPHC 377 (6 June 2017)

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HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case no.  A513/2016

Date: 6/6/17

In the matter between:

OMAR SALIM YUSUPH                                                                                        Appellant

and

THE STATE                                                                                                       Respondent

JUDGMENT

RABIE, J

1. The appellant was convicted in the High Court sitting at Ermelo on one count of murder and one count of robbery with aggravating circumstances and sentenced on 26 August 2014 to 18 years imprisonment in respect of the murder and 15 years imprisonment in respect of the robbery. It was ordered that 5 years of the sentence imposed in respect of the robbery shall be served concurrently with the sentence in respect of the murder charge. The appellant appeals to this court against both his conviction and sentence by leave of the trial court.

2. The charges against the appellant relate to the events of the night of 9 January 2013 in a suburb of the town of Piet Retief. On the night in question there was a home invasion at the house of Mr Ahmed Kara during which his mother was shot and killed and property robbed from the premises.

3. The prosecution presented the evidence of Mr Kara as well as a security officer Mr NG Swart and the investigating officer Sgt K Selembe. The appellant testified on his own behalf and his girlfriend, Me Noluthando, also testified on his behalf.

4. The trial court accepted the evidence of the prosecution witnesses as truthful and reliable and rejected the evidence of the appellant and his witness as false beyond a reasonable doubt.

5. The trial of the appellant turned mainly on the appellant's defence of an alibi. In this regard Mr Kara testified that he was in the house at the time of the robbery and that he saw the appellant inside the house. He came upon the appellant in the passage of the house and saw him for a period of two seconds before the appellant turned around, shouted a few words and ran out. The moment the words were shouted shots rang out inside the house.  Mr Kara decided to hide in his room until it was safe to come out. He found that his mother had been shot and killed.

6. A few days after this event, on 15 January 2013, another home invasion occurred a few hundred yards from the house of Mr Kara. He and his father went to inspect and on his arrival, which was soon after the occurrence of the incident, he was shown a passport photo of a person which he immediately recognised as the person that was involved in the incident that took place at his home on the 9 January 2013. He informed the person who had shown him the photograph, which was in all probability one of the police officers on the scene, that it was the same person who had been in his house before and who had worn the jacket with the red marking on it. At that point he had not yet seen the appellant himself who had by then already been detained in the back of the police van. When he approached the police van he could not see the face of the appellant clearly but immediately noted that he was wearing the same clothes that the appellant had been wearing on 9 January 2013, in particular the black jacket with a red logo on the left of the chest side of the jacket. He told the police person showing him the passport photo that if the person in the van was the one in the passport photo then he is the person he had identified at his home on 9 January 2013. In respect of his earlier identification of the person in his house on 9 January 2013 the appellant described the perpetrator as a plump person dark in complexion, short and round faced. Also that he was wearing black jeans and a black jacket with the red logo on the left chest area. This description was given by him to the police at the time. Mr Kara testified that the face of the appellant was implanted on his mind on 9 January 2013 and that he did not make a mistake when he identified the passport photo as that of the appellant. The other two state witnesses supported the evidence of Mr Kara in respect of the later events on 15 January 2013.

7. The evidence of the appellant was that he was not in Piet Retief at the time of the incident but in Johannesburg. His witness' evidence was presented in order to support this version.

8. The trial court analysed the evidence of the State as well as the appellant in  detail and found the appellant's identification of the appellant to be truthful and reliable. From the record it would seem that Mr Kara was indeed a strong and impressive witness. The evidence of the appellant and his witness, on the other hand, was found to be false beyond a reasonable doubt and rejected as such. The court referred to the material differences between the evidence of the appellant and his witness, the improbabilities in the evidence and the fact that their evidence was in conflict with certain crucial objective evidence.

9. This objective evidence related to telephone records of a cell phone found in the possession of the appellant when he was arrested on 15 January 2013. These records established that the user of the cell phone travelled from Johannesburg  to Piet Retief between the hours of 16:00 and 20:00 on 8 January 2013. Furthermore that the telephone was used in Johannesburg on 10 January 2013. This  totally  destroyed  the  evidence of the  appellant  and  his  witness  that she visited the appellant in Johannesburg on 9 January 2013 and returned to Piet Retief on the same day. Also her evidence that the telephone was with her in Piet Retief until 15 January 2013.

10. It should also be mentioned that the evidence of the appellant and his witness regarding their movements between Johannesburg and Piet Retief as well as where the cell phone was at any particular time, was totally conradicory in respect of crucial and material aspects and correctly rejected by the trial court as totally false. The court also found that the evidence of the appellant was in conflict with evidence he gave during his bail application. Furthermore, on his version during the trial, he lied to the police in respect of his whereabouts and movements on 15 January 2013. This issue is important because it not only destoys his alibi defence but also negatively affects the truthfulness of the evidence regarding his witness and her evidence as well.

11. On appeal it was submit.ted on behalf of the appellant, firstly, that despite the poor quality of the evidence of the appellant and his witness, which was conceded on behalf of the appellant, the court a quo erred in finding that the evidence of Mr Karam was reliable and thus that the state has proved its  case

beyond reasonable doubt. It was submitted that Mr Kara was a single witness in respect of the identification of the appellant and that his evidence should therefore be treated with caution. Furthermore that he only had a few seconds wherein he could identify the culprit and that this brief opportunity to make an identification weighs heavily against finding that his evidence was reliable.

12. It was further submitted that not much weight should be attached to the facial features as described by Mr Kara as he saw a photo of the appellant after his arrest on 15 January 2013.

13. The trial court applied a cautionary approach to the evidence of Mr Kara  but found on the evidence that despite being a single witness who testified  on  identity, Mr Kara was an honest and reliable witness whose evidence can be accepted as the truth. Furthermore that his evidence was corroborated by the objective evidence of the cellular phone records.

14. I agree with the approach to the evidence and the analysis of the evidence by the trial judge and his ultimate finding in respect of the identification of the appellant. He also, respectfully my view, correctly applied the required caution and considered   all  the  relevant  factors  in  deciding  the  issue  of   identity  in the circumstances of this case.

15. Apart from the factors mentioned by the trial court I wish to emphasise a few aspects. Firstly, if the appellant was in fact not in Piet Retief on the night of the murder, namely 9 January 2013, it would have presented no difficulty to him to give truthful evidence in regard to the whereabouts of his cell phone during the relevant times. Yet he told an elaborate lie  which his witness was supposed to support, but dismally failed to do.

16. Secondly, the submission that the identification of the appellant is tainted by the fact that a photograph of the appellant in his passport was shown to Mr Kara after the arrest of the appellant on 15 January 2013, is not correct. On his arrival at the scene on 15 January 2013 Mr Kara was shown the passport photo of the appellant which only depicted his face. Apart from immediately informing the police that he recognised the face, he also mentioned to them that it was the person who wore, inter alia, the black jacket with the red logo on the left chest area of the jacket. This statement was made by him prior to seeing the appellant in the back of the police van. According to the evidence accepted by the trial court, and correctly so in my view, the appellant was in fact wearing a black jacket with a red logo at the time he was detained in police van. Consequently, instead of the events of 15 January 2013 detracting from Mr Kara's evidence of his identification of the appellant, it corroborates his evidence that the appellant was in fact the person wearing the black jacket and the red logo on the night of 9 January 2013.

17. In the result the trial court's acceptance of Mr Cara's identification of the appellant on 9 January 2013 cannot be faulted.

18. It was lastly submitted on behalf of the appellant that the trial court erred in finding that the appellant acted with a common purpose with the other perpetrators. Although it is not known who exactly fired the shots that killed the deceased, the undeniable facts are that the appellant was in the presence of his co-perpetrators, that they had armed themselves with at least two firearms and that they had fired several shots in fulfilling their common purpose of robbing the household of Mr Kara and the deceased. I agree with the finding of the trial court that this robbery was perpetrated with weapons in order to neutralise resistance should it take place or to make good their escape. By their mere conduct  and actions the perpetrators had foreseen the possibility of shots being fired and somebody being killed in this very dangerous situation. Although the trial Judge considered the possibility that one of the residents may have fired a shot, I find this possibility so remote that it can safely be rejected. Many shots were fired inside the house with two pistols and there was never a suggestion that Mr Kara's mother used a firearm or even possessed a firearm.

19. An important factor is that Mr Kara also testified that although he could not understand the language used by the appellant as he moved from the passage to the room where his co-perpetrators were, he was convinced that it was an instruction which the appellant shouted to the other perpetrators which lead to the shooting.  To him it sounded like an instruction and it was immediately followed by the shooting in the next room where all the perpetrators were and which killed his mother. The finding of the trial court that the perpetrators acted with a common purpose can therefore, in my view, not be faulted.

20. In the result, the appeal in respect of the appellant's conviction should be dismissed.

21. In respect of sentence it was submitted that although the court correctly found that there are substantial and compelling circumstances present to deviate from the prescribed minimum sentence on count 1, the effective term of 28 years' imprisonment is  shockingly harsh  and  inappropriate  and  resulted from  the misdirection of not ordering the whole of the sentence of 15 years' on count 2 to run concurrently with the 18 years' imprisonment on count 1. It was submitted that the offences were committed at the same place and time and that the Court erred by ordering only 5 years of the sentence imposed in respect of count 1 to run concurrently with the sentence imposed in respect of count 2.

22. The personal circumstances of the appellant were, inter alia, the following. The appellant was 32 years old, not married but was living with a partner with whom he had one child of three months. He is of Tanzanian origin and has lived in Johannesburg for almost 10 years where he assisted his brother in his business selling Chinese clothing. His father and siblings are still in Tanzania and he assists with their maintenance.

23. The appellant was a first offender and had been in custody awaiting trial for approximately 19 months.

24. The trial court considered all the factors traditionally relevant to sentencing and analysed the provisions of Act 105 of 1997. The court considered the  aggravating circumstances relating to the crimes of murder and robbery  which the court found to be prevalent in the court's jurisdiction as well as the country as a whole. Also the fact that the appellant invaded the sanctity of the complainant's home where he was entitled to feel safe. Furthermore the appellant showed no sign of remorse.

25. The trial court found substantial and compelling circumstances justifying the imposition of sentences lesser than those prescribed and in this regard referred to the clean record of the appellant, that he is "rehabilitation material", that he had lived a stable life prior to his present brush with the law and that he was convicted in respect of the murder on the basis of dolus eventualis and not direct intent.

26. In my view the approach of the trial court and the ultimate findings cannot be faulted in any manner. The trial Judge exercised his discretion properly and judicially and there is no misdirection or irregularity in his reasoning. Moreover,  in my view, the effective sentence of 28 years' imprisonment is not shockingly harsh  or  inappropriate   having   regard  to  the  mitigating and aggravating circumstances and the facts of the case. There is consequently no room for this court to interfere with the sentences imposed by the court a quo and consequently the appellant’s appeal against the sentence should be dismissed.

27. In the result the following order is made:

1.            The appeals against both the conviction and sentence are dismissed.

_____________________________


C.P. RABIE

JUDGE OF THE HIGH COURT

 

I agree

 

_____________________________


M.F. LEGODI

 

JUDGE OF THE HIGH COURT

 

I agree

 

_____________________________


H.J. FABRICIUS

 

JUDGE OF THE HIGH COURT