Summary of Judgment

1. Introduction

This was a criminal appeal to the Eastern Cape Division of the High Court, Makhanda, against the appellant’s convictions in the Regional Court, Gqeberha. The appellant was Lee Roy Arin Mapoe, and the respondent was the State.

On 26 August 2022, the Regional Court convicted the appellant of murder (count 1), unlawful possession of a firearm (count 2), and unlawful possession of ammunition (count 3). It imposed sentences of 15 years’ imprisonment on count 1, 5 years’ imprisonment on count 2, and 3 years’ imprisonment on count 3, with the sentences on counts 2 and 3 ordered to run concurrently with the sentence on count 1.

The appeal proceeded only in relation to conviction on the three counts (and not sentence), with leave to appeal having been granted by the Regional Court. The general subject-matter of the dispute was whether the State had proved, beyond reasonable doubt, that the appellant was the perpetrator who shot and killed the deceased and that he unlawfully possessed the firearm and ammunition used.

2. Material Facts

The court relied on a core set of facts emerging from the trial record, including facts that were common cause by formal admission, as well as facts established through the testimony of three State witnesses, assessed against the appellant’s defence.

It was common cause, by admissions made under section 220 of the Criminal Procedure Act 51 of 1977, that the deceased died on 23 April 2017 as a result of a head injury caused by a gunshot, and that the post-mortem report was accurate and admissible without further proof. The post-mortem report recorded two gunshot wounds to the head, one of which was fatal.

On the evening of 23 April 2017 at approximately 21:00, one State witness (Jantjies) observed the appellant walking in the street in the company of another State witness (Campher). According to Jantjies, the appellant was visibly in possession of a firearm. Jantjies later heard gunfire, including a single shot and thereafter multiple shots, and observed the appellant running and discharging the firearm (including firing into the air). Jantjies then responded to cries that the deceased had been shot and encountered the deceased lying on the ground, having clearly been shot.

A second State witness (Jansen), the deceased’s girlfriend, testified that she was walking with the appellant that evening when they were joined by Campher. The deceased approached and chased her, causing her to flee into her aunt’s home and then into the backyard. In the backyard, the deceased assaulted her. Jansen testified that the appellant, who had a firearm, told the deceased to stop and threatened to shoot if he did not. Jansen described being struck by a stone thrown by the deceased, doubling over, then hearing a shot and seeing the deceased fall. She observed the appellant holding the firearm and understood from what she saw that the deceased had been shot in the head. She further testified that she attempted to take the firearm from the appellant but he resisted, and that he shot at the deceased again. She then fled and saw the appellant run away in the opposite direction.

Campher confirmed having seen the appellant enter the aunt’s premises behind Jansen and the deceased, confirmed that the appellant had a firearm, and testified that he heard shots after they entered.

The disputed facts centred on the appellant’s denial that he was present at the scene or in possession of a firearm. The appellant advanced an alibi, stating that although he previously lived in Gelvandale he had moved away in 2015 and was living with his father in Kuyga, where he claimed to have been on the night of the killing. He denied killing the deceased and denied possessing a firearm.

3. Legal Issues

The central legal question was whether, on the totality of the evidence, the State proved the appellant’s guilt on all three counts beyond reasonable doubt, particularly in light of the appellant’s alibi and denial of possession.

The appeal primarily concerned the application of legal standards to factual findings, namely the assessment of credibility and reliability of witnesses, corroboration between witnesses, and the proper approach to rejecting an accused’s version. It also involved the evaluative question whether the appellant’s version was reasonably possibly true, which would require acquittal, or whether it could properly be rejected as false beyond reasonable doubt.

4. Court’s Reasoning

The court approached the appeal on the basis of established principles concerning the State’s burden of proof and the treatment of an accused’s version. It drew these principles from the Supreme Court of Appeal decision in Tshiki v The State, emphasising that the onus remains on the State throughout to prove guilt beyond reasonable doubt and that an accused’s version cannot be rejected merely because it is improbable. The court treated the decisive question as whether the accused’s version could be rejected only once it had been found, on credible evidence, to be false beyond a reasonable doubt, and conversely that the accused is entitled to an acquittal if the version is reasonably possibly true.

Applying these principles, the court evaluated the State evidence witness by witness and placed significant weight on the extent to which the State witnesses’ evidence was not materially undermined in cross-examination. It found that the evidence of Jantjies and Campher was not upset in any material respect and could be accepted as credible. Their evidence was treated as corroborative of Jansen on material aspects, including that they knew the appellant well, that he was present at or near the location of the shooting, that he was visibly in possession of a firearm, and that shots were heard from the vicinity of the relevant location.

The court further treated Campher’s evidence as strengthening Jansen’s version because he observed the sequence of Jansen fleeing to her aunt’s home followed by the deceased and the appellant, and thereafter heard shots from that vicinity. In addition, the court considered that Jansen’s account of the shooting was corroborated by the post-mortem report, which confirmed gunshot injuries to the head consistent with her observations.

On the question of identity and the risk of mistake, the court accepted that Jansen knew the appellant well, and considered it improbable—given the corroboration by other witnesses and the broader context—that she was mistaken about the identity of the shooter. The court’s reasoning thus proceeded on the basis that the State presented mutually supportive evidence placing the appellant at the scene, in possession of a firearm, and firing shots at the relevant time, while the appellant’s alibi stood in conflict with that evidence.

Considering the evidence as a whole, the court concluded that the appellant’s version was not reasonably possibly true, that it was false beyond reasonable doubt, and that the State had proved guilt beyond reasonable doubt on all counts. The appeal therefore disclosed no proper basis to interfere with the convictions.

5. Outcome and Relief

The High Court dismissed the appeal. The effect of the order was that the appellant’s convictions on murder, unlawful possession of a firearm, and unlawful possession of ammunition remained intact.

The judgment records no separate order concerning costs.

Cases Cited

Tshiki v The State [2020] ZASCA 18 (18 August 2020)

Legislation Cited

Criminal Procedure Act 51 of 1977, section 220

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the State witnesses were credible and materially corroborated each other on the appellant’s presence at the scene, his possession of a firearm, and the timing and location of the gunfire, and that Jansen’s version was further supported by the post-mortem findings. Applying the beyond reasonable doubt standard and the approach to an accused’s version articulated in Tshiki v The State, the court found that the appellant’s alibi and denial were not reasonably possibly true and were false beyond reasonable doubt. The convictions on all three counts were accordingly confirmed and the appeal was dismissed.

LEGAL PRINCIPLES

The judgment applied the principle that in criminal proceedings the State bears the onus throughout to prove the accused’s guilt beyond reasonable doubt.

It applied the principle that an accused’s version may not be rejected merely because it is improbable; it may be rejected only where the court, on credible evidence, finds that the explanation is false beyond reasonable doubt.

It applied the corollary that where an accused’s version is reasonably possibly true, the accused is entitled to an acquittal, and that a conviction is sustainable only if, after considering all the evidence, the accused’s version is found to be false beyond reasonable doubt.