IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN

Case No: A292/09

In the matter between:

and

MINORITY JUDGMENT DELIVERED ON 26 APRIL 2010

INTRODUCTION

[1]    The appellant, Mr Moegamat Yusuf Abader, together with his co-accused in the lower court, Mr Abdulatief Abrahams, were charged with murder in the Regional Court, Cape Town. Mr Abrahams was acquitted and Appellant was convicted of murder. Appellant was referred to this Court for sentencing in terms of Section 52 of Act 105 of 1997. On 13 March 2008, Motala J confirmed the conviction and sentenced Appellant to 18 (eighteen) years imprisonment. He now appeals against his conviction.

FACTUAL BACKGROUND
[2] For purposes of easy reference, Appellant will be referred to as the accused ("the accused") in this judgment. The undisputed facts are that on 1 October 1999, Mr Ebrahim Satardien (the deceased) and his friend, Ms Majal, had been sitting in the deceased's motor vehicle in front of Ms Majal's house in Grassy Park. At approximately 22h00, two unidentified men approached the vehicle and asked to borrow a cigarette lighter from the deceased. The deceased obliged. Shortly thereafter, the deceased was killed by gunshots fired by the two men. Ms Majal could not identify any of them.

[3] The police collected a total of fourteen items during the post-mortem and at the scene of the crime respectively. Ten bullet heads and metal fragments were recovered from the deceased's body and three spent cartridges and the deceased's cigarette lighter were collected at the crime scene.

[5] The accused maintained that he locked his fire-arm in the safe at his father-in-law's house, because he did not want to attend the public function with the firearm visible to the public. It is further his case that he remained at the function from 18h30 until after midnight that evening. During cross-examination in the Regional Court, the accused conceded that it was possible for him to leave the function and to return within a period of approximately 23 minutes.

[6] It was submitted on behalf of the accused that the police tampered with the evidence, contaminated the scene, and in general tried to frame him in order to get to his father.

[7] In confirming the conviction, Motala, J found that the magistrate did not misdirect herself in any respect and that the proceedings of the magistrate's court were in accordance with justice.

[8] The grounds of appeal are that the Court ought to have rejected the forensic evidence, which was irreconcilable with the direct evidence provided by the defence. On behalf of the appellant it was also submitted that the Court ought to have accepted the appellant's alibi evidence as reasonably possible true. It was submitted further that he could not absent himself unnoticed for a period of 23 minutes from the function at which he officiated. It was further submitted, on behalf of the appellant, that the court ought to have drawn an adverse inference from the state's failure to call the five alibi witnesses.

[9]    Accordingly the issues to be determined are as follows:
9.1 Whether the ballistics expert's opinion linking the spent cartridges to the accused's firearm, a 9mm C2 pistol with serial number V7933, was correct;
9.2 Whether the accused's alibi evidence is reasonably possibly true; and
9.3 Whether the accused's guilt is the only reasonable inference to be drawn from the circumstantial evidence.

"Deskundige getuienis behoort hul ondersoeke met die grootste mate van noukeurigheid en sorgsaamheid te verrig veral in strafsake waar die skuld aldan nie van 'n beskuldigde dikwels grootliks en soms uitsluitlik afhanklik is van die getuienis van so 'n deskundige."

"The correct approach is to consider the alibi in the light of the totality of the evidence in the case, and the Court's impressions of the witnesses."

"(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn. (2) The proved facts should be such that they exclude every reasonable inference from them save the one 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."

"...one shall be careful to guard against the intrusion of any idea that a

"A conspectus of all the evidence is required. Evidence that is reliable should be weighed alongside such evidence as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of that evidence must of necessity be evaluated, as must corroborative evidence, if any."

"A court does not base its conclusion, whether it be to convict or to acquit, on only part of the evidence. The conclusion which it arrives at must account for all the evidence ... The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored."

APPLICATION TO THE FACTS EXPERT EVIDENCE
[17] An overview of the ballistic evidence is as follows: Constable Wayne Petersen ("Petersen"), the first policeman at the scene, picked up a 9mm cartridge shell near the deceased's car and handed it to Captain Tolmay ("Tolmay"), the first investigating officer at the scene. Tolmay confirmed that the cartridge shell was handed to him by Petersen. He further testified that he found two more shells, one outside and one inside the car, and two bullet points, also inside the car. All these items were photographed before he took possession of them.

[18] He took all the exhibits to his office and locked them in a steel cabinet for safekeeping over the weekend. On Monday, 4 October 1999, he booked the exhibits into the SAP13 register at Bellville Police Station. He immediately thereafter retrieved the items, packaged, sealed and marked them and hand delivered them to the ballistic unit.

[21] I now turn to the evidence of the ballistics expert, Inspector Gerber ("Gerber"). Gerber has been attached to the ballistics unit since 1994. He testified that one of the shells found on the scene was fired from the accused's firearm. He came to this conclusion by comparing the impressions made by the firing pin in the slide of the firearm with markings on the test bullet. He could not determine whether the shell was fired from the barrel of the accused's firearm. The serial number on the barrel differed in appearance from the serial number on other parts of the firearm. He was of the opinion that the barrel was modified after the shooting of the deceased. His opinion was supported by a handwriting expert, Yvette Palm.
ALIBI

CIRCUMSTANTIAL EVIDENCE
[26] An independent evaluation of all the surrounding circumstances in the present case shows the following:

LYING WITNESS
c. If this court accepts the ballistic evidence, it must follow that both the accused and his witness lied about the whereabouts of the firearm. The question that then has to be answered is why they lied. A few possibilities were mooted by Mr van der Berg, i.e. that they lied to protect Mr. Abrahams, they lied to protect a possible third person or they lied to protect the accused. However, if they had to protect a third person, it is improbable that they would continue lying, even when this lie implicated the accused. Many opportunities were created for both of them to give the name of a possible third person, if indeed there was someone else. They never availed themselves of this opportunity, and, in fact, they never even raised this possibility in evidence. This leaves me with the following plausible conclusion: they lied to protect the accused, or they lied to protect Mr. Abrahams. It should be borne in mind that on their own versions, they are the only two persons who had access to the firearm. During evidence Mr. Abrahams maintained that the firearm was under his control at all material times. As stated earlier, if this court accepts the ballistic evidence, it must follow that Mr. Abrahams also lied. The fact that the accused lied, however, does not mean that he fired the shots that killed the deceased.

THE TEST IN CRIMINAL CASES

AJA said as follows:
"... It is a trite principle that in criminal proceedings the prosecution must prove its case beyond reasonable doubt and that a mere preponderance of probabilities is not enough. Equally trite is the observation that, in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail if an accused's version is true. If the accused's version is reasonably possibly true in substance, the court must decide the matter on the acceptance of that version. Of course it is permissible to test the accused's version against the inherent probabilities. But it cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true. ..."

CONCLUSION
[34] I am satisfied that the experts in this matter performed their investigation to a large extent with precision and carefulness. I am in agreement with Motala J's finding that the accused's gun was used in the shooting of the deceased. There is no plausible evidence, nor argument to gainsay this conclusion. Whether the accused fired the shots is, however, in my view, a different issue. The fact that it was his gun does not in itself justify the conclusion that he fired the shots. Whether he was the one who fired the shots should also be proved beyond reasonable doubt.

[36] In my view, the cumulative effect of all the circumstantial evidence constitutes sufficient proof that the accused's version is reasonably possibly true and that the accused's guilt was not proved beyond reasonable doubt.
[37] In the circumstances, the appeal is granted and the conviction and sentence is set aside.
FORTUIN, AJ