S v Bailey

• Jurisdiction: South Africa
• Judge: Desai J, Griesel J and H J Erasmus J
• Judgment Date: 31 August 2000
• Citation: 2007 (2) SACR 1 (C)
• Docket Number: A215/2000
• Hearing Date: 31 July 2000
• Counsel: J L Vismer for the appellant. S M Galloway for the respondent.
• Court: Cape Provincial Division

Griesel J: I

[1] The appellant appeared before Prisman AJ and assessors on charges of murder, attempted murder, robbery with aggravating circumstances and illegal possession of a firearm and ammunition. He pleaded not guilty to all the charges, raising an alibi as a defence. After a protracted trial he was, however, convicted as charged and sentenced to an effective J

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term of imprisonment of 24 years. With leave of the Supreme Court of A Appeal he now appeals to this Court against his convictions and sentences.

[2] The incidents that gave rise to the prosecution occurred on the evening of Friday 17 January 1997, when the deceased, Mr Mohamed Allie Dhansay, was shot and killed outside his shop in Tafelsig, Mitchells B Plain. His wife, Mrs Mumtaz Dhansay, who was with him at the time, was also shot three times at close range, but was fortunate enough to survive the attack. I shall refer to her herein as the complainant. At the time of the attack there was an amount of some R1 500 in coins in a bank bag on the passenger seat of the deceased's vehicle. The deceased had C also been carrying a 7.65 mm pistol in a holster at his side. Both the firearm and the money were missing after the shooting.

[3] The complainant was the only eyewitness to the happenings of that night. She described to the Court that on the evening in question, after closing the business which she ran together with her husband, at D approximately 20:10 she, together with her husband and an assistant, cleared the shop, cleaned it and prepared it for trading the next day. Afterwards all three of them left the shop together. Her husband and the assistant locked the shop and she walked to the motor vehicle that was used by her husband and herself, a Toyota Venture, which was standing outside, about two metres from the front door of the shop. E

[4] Shortly after her husband started the vehicle he stopped and got out, as it was clear that there was something wrong with the vehicle's right front tyre, which was punctured. He came around to the passenger side, told her that they had a flat tyre and went to take out the jack and the F wheel brace from the car, from the passenger side. At that time, according to the complainant, she noticed on the opposite side of the road a male person who walked across the road, stood under a lamppost and urinated there. She saw that this person had a 'kofea' (skull cap) on his head, and that he wore a long, yellow Muslim top, that is, a form of dress usually worn by Muslims when going to the mosque. Over the G Muslim top he wore a woollen navy-blue jacket. By that time her husband had gone to the back of their vehicle in order to take out the spare wheel which was situated in a type of cage underneath the vehicle. She turned around and looked through the open boot door of the vehicle and noticed her husband standing there together with the man whom she H had seen earlier on, wearing the yellow Muslim top and navy jacket. She heard the man asking her husband for a lift to Westridge, which is a suburb in Mitchells Plain. However, her husband replied that they were not going to Westridge, whereupon the man offered his assistance in changing the tyre, but her husband did not reply. The man then asked I for a lift to Rocklands Mosque, which is situated in a different suburb of Mitchells Plain. She heard her husband advise the man to take a taxi, whereupon the man replied that there were no taxis at that time of the night. While these exchanges were taking place the complainant saw that this person was staring at her husband's firearm, which he carried in a holster on his right hip and which was visible because his sweater was J

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short and did not cover the holster. Then her husband came around the A vehicle to pick up the jack, which he had initially taken out, and placed it on the ground. The complainant said that at this stage she got out of the vehicle, went to her husband and warned him to be on the lookout, as the other person was looking at his firearm. B

[5] The other man, who was still standing at the back of the vehicle, then rolled the tyre to the front of the vehicle and her husband took the jack from the front at the passenger side and walked around to the right front of the vehicle. Her husband asked the man to lift up the vehicle so that he could put the jack under the crossbar under the vehicle, which is the place designed for this purpose. C

[6] The complainant was still standing at the passenger side as she noticed a second man walking past behind her on the pavement. He walked past the shop and then came back towards her and came up close to her as she was standing facing the open field on the opposite side of D the road. Her husband was standing at the front of the vehicle at the bonnet and the first man was standing at the punctured tyre, busy lifting the vehicle up in order to fit the jack underneath. Suddenly the second man drew out a firearm, shot once at her husband, whereupon the first man jumped up from behind, drew out another firearm from under his yellow Muslim top and shot her husband from the back. She estimated E that four shots altogether were fired at her husband. Thereupon the second man turned around and shot at her. She was struck three times: in her left hand, in her chest and below the knee. The assailants then left the scene and she summoned help from bystanders and the police.

[7] Central to the dispute between the State and the defence is the F question of identification. The complainant did not know either of the two assailants. She was, however, able to give a fairly detailed description of the first man, ie the one wearing the Muslim clothing. Shortly after the incident the complainant described the clothing of the first man to the police. In her police statement she said that he wore "n geel Moslem lang top met 'n navy (vloot-) blou wolbaadjie oor die top en het ook 'n Moslem G "kofea" op sy kop. Hy het ook 'n gewone glas bril op sy gesig gehad.' With regard to his general appearance she described him as 'lank, skraal en lig van gelaatskleur'. She also assisted the police in compiling an identikit of the suspect. This identikit was handed in as H exh B at the trial.

[8] Almost two months after the incident, on 13 March 1997, the appellant was apprehended by the police in connection with these charges. An identification parade was held at which the complainant positively identified the appellant as the first assailant, namely, the man I with the Muslim clothing. However, after a lengthy trial-within-a-trial, the trial Judge ruled all evidence relating to such parade identification to be inadmissible. I shall revert to this aspect later in this judgment.

[9] After his arrest the appellant made a statement to the investigating officer in which he denied that he was in Tafelsig at all on 17 January J

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1997. He stated that he had been in Westridge. He denied further that A he knew somebody called Dula who drives a blue Toyota.

[10] The complainant gave evidence at the trial and was extensively cross-examined. She explained that the scene of the happening was well lit. She also said that throughout the incident, which lasted for quite a B few minutes, she had been watching the accused very closely because his conduct had seemed suspicious to her. She had managed to get a good look at his face.

[11] The only other evidence connecting the appellant to the commission of the crimes was evidence of two extra-curial statements allegedly C made by the appellant to Mr Moegamat Tapie Davids (Davids) and Mr Jonathan Stephen Scheepers (Scheepers), respectively. Davids is the person with whom the appellant had been residing at the stage when these offences were committed. They often smoked dagga together. On the Wednesday after the shooting incident there was a report of the incident in a local newspaper called Plainsman which circulated in the D Mitchells Plain area. Having read about the incident in the paper the appellant admitted in the presence of Davids that it was he (appellant) and another person who had in fact shot the shopkeeper (that is, the deceased in this case).

[12] Scheepers was an awaiting-trial prisoner at Bellville South police station E at the time of the arrest of the appellant. They had been locked up together in the same cell for three or four days. It was during the course of this incarceration that the appellant allegedly told Scheepers that he (appellant) had been arrested for the murder of a shopkeeper. According to Scheepers the appellant told him in great detail how the F crime had been committed by himself and an accomplice called Dula.

[13] The State also called Mr Waldo Absolom (Absolom), who testified that he saw appellant in the company of one Dula on the night in question not too far from the scene of the crime. The clothing of the appellant matched the description given by the complainant. G

[14] In his evidence at the trial the appellant stuck to his alibi. He gave a detailed account of his movements on the date in question, stating that he was with Davids as well as a Mr Allistair for most of the evening. He also strenuously denied the incriminating evidence given by Davids, Scheepers and Absolom. H

[15] In a judgment extending over more than 200 pages of the record the trial Judge analysed the evidence in meticulous detail, bearing in...