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[2017] ZANCHC 17
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Moss v S (CA&R138/2016) [2017] ZANCHC 17 (3 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges: YES
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
CASE
NO:
CA&R
138/2016
DATE
HEARD:
27/02/2017
DATE
DELIVERED:
03/03/2017
In
the matter between:
MOSS,
WAYNE
JOSEPH
Appellant
and
THE
STATE
Respondent
Coram:
Olivier
J
et
Snyders AJ
JUDGMENT
Olivier
J:
[1.]
The
appellant, Mr Wayne Joseph Moss, appeared in the Regional Court,
Kimberley, on charges of assault (count 1) and murder (count
2).
In count 1 it was alleged that the appellant had on 1 January 2013
assaulted Ms Simone Papier by pulling her and hitting
her with
fists. In count 2 it was alleged that the appellant had, on the
same date, murdered Mr David Verby, a 20 year old
male. The
appellant pleaded guilty on the first count, but on the second count
he pleaded not guilty and explained that he
had acted in
self-defense.
[2.]
The
appellant was convicted on both counts. On count 1 he was
sentenced to 12 months imprisonment, conditionally suspended
for a
period of 5 years. On count 2 he was sentenced to 15 years
imprisonment. This appeal is directed at the conviction
of
murder (count 2) and at the sentence of 15 years imprisonment on that
count.
[3.]
The
appellant and Ms Papier had been involved in a relationship.
One child had been born of it. Ms Papier was pregnant
with
their second child when they broke up. At the time of these
events Ms Papier was involved in a relationship with Mr
Michael Shan
Foster.
[4.]
On
New Year’s Eve the appellant confronted Ms Papier at a party
about leaving their child without proper care and forcibly
attempted
to take her away from the party. In the process he hit her with
his fist
[1]
. The appellant
was then confronted by Mr Foster and the deceased, Mr Verby, who was
at the time armed with a knife.
The appellant then left.
[5.]
Later
that same night the appellant and Mr Rivonne Christopher Douglas were
walking down a street. The appellant was at that
stage armed
with a 29cm long knife. The fixed blade of the knife was 15cm
long. The appellant at some stage crossed
the street to where
the deceased was. There the appellant stabbed the deceased
once, in his chest, and ran away. The
blade severed veins and
penetrated a lung, resulting in the death of the deceased.
[6.]
This
incident took place more or less outside the deceased’s
parental home, or close thereto, and when the deceased called
out his
father rushed to him. The deceased died on the scene.
[7.]
After
his body had been removed shortly thereafter his father, Mr van Wyk,
picked up a pocket knife of the deceased near the spot
where the
deceased was found by his father.
[8.]
The
version of the appellant, as put to witnesses in cross-examination
and as testified by the appellant, was that at some stage
after the
incident with Ms Papier, he and Douglas were walking to one “
China
”,
for whom he had from time to time done delivery work and where he
wanted to go to pick up a present which one Brenda had
called him
about. On the way there, and while Douglas was walking slightly
behind him, he heard the deceased swearing at
him from the opposite
side of the street. He crossed the street to the deceased to
find out why. He and the deceased
then got involved in an
altercation, swearing at one another, and both of them waving their
hands about in the process. According
to the appellant the
deceased then reached into his pocket and took out a knife and
started opening it. Believing that the
deceased was going to
attack him, the appellant took out his own knife and stabbed the
deceased once. According to the appellant
he fled after Mr
Douglas had called out to him and made him aware of six men who were
running up the street in his direction.
[9.]
The
evidence of Mr Douglas was that the appellant had, after the earlier
incident, found out from his cousin where the deceased
lived.
According to him the appellant had thereafter expressed the intention
to stab the deceased. He and the appellant
were walking down a
street when he noticed the deceased on the opposite side of the
street. The appellant then crossed the
street to the deceased.
According to the witness he kept on walking and did not accompany the
appellant, because he wanted
nothing to do with what was going to
happen. He looked back when he heard screaming. He saw
the appellant and the deceased
arguing and waving their hands, and
then he saw the appellant stabbing the deceased.
[10.]
The
only other eye-witness called by the prosecution was Mr Hershell
Vorster. According to him he had been sitting on a stone,
with
his nephew, Mr Jerome Vorster, when he saw the appellant and Mr
Douglas approaching. When the appellant crossed the
street
towards the deceased, who was at that stage busy opening the gate of
his parents’ premises, Mr Douglas started running
away.
When the appellant reached the deceased he called out the deceased’s
name and, when the deceased turned around
from where he was opening
the gate, the appellant stabbed him once and ran away.
According to Mr Vorster there had been no
quarrel or altercation
between the appellant and the deceased before the stabbing.
[11.]
The
following salient findings appear from the judgment of the Regional
Magistrate:
11.1
The evidence of Mr Douglas that the appellant had been looking for
the deceased with the
intention to stab him, was accepted.
11.2
It was found that, in view of the earlier events when he was
confronted by Foster and the
deceased, who as already mentioned was
armed with a knife, the appellant would at that stage have had reason
to foresee that the
deceased would again or still be armed, that the
confrontation would lead to a stabbing and that such a stabbing,
taking into account
the nature of at least the appellant’s own
knife, would probably be fatal.
11.3
It was found that the deceased’s knife had fallen out of his
pocket after he was
attacked and that it was still unopened.
11.4
Furthermore it was found that, because the deceased had not during
the first incident actually
attacked the appellant with the knife,
the appellant would during the later incident have had no reason to
think that the deceased
would do so then.
11.5
The Regional Magistrate rejected the appellant’s version that
he approached the deceased
to talk to him, and found that the
appellant had approached him to stab him.
11.6
It was also found that the fact that the appellant had after the
stabbing fled, hid away
his knife and hid himself from the police,
indicated a guilty conscience on his part and, apparently, that this
fortified the probability
that the appellant had not acted in
self-defence.
[12.]
It
is trite that a Court of appeal will not readily interfere with the
credibility findings of a trial Court
[2]
.
[13.]
The
Regional Magistrate found Mr Douglas to have made a poor impression
as a witness and decided to accept his evidence only insofar
as
corroborated. It was found that Mr Vorster, however, had made a
good impression and that his evidence had not been discredited
in any
respect.
[14.]
A
careful reading of the transcription of the evidence of Mr Vorster
reveals several unsatisfactory aspects and contradictions that
were
apparently not considered by the Regional Magistrate:
14.1
It is difficult to believe that Mr Vorster and his cousin would have
sat there on the stone
on New Year’s Eve, Mr Vorster stone
sober, for 5 hours.
14.2
Mr Vorster contradicts Mr Douglas about the formation that the
appellant and Mr Douglas
had been walking in before the appellant
approached the deceased. According to Mr Vorster they had been
walking next to each
other, while according to the appellant and Mr
Douglas, the latter had been walking slightly behind the appellant.
14.3
Mr Vorster initially said that the deceased had turned around when
the appellant called
his name. Later he indicated that the
deceased had stood up when the appellant called his name, and still
later Mr Vorster
reverted to the version that the deceased had turned
around when hearing the appellant’s voice.
14.4
Referring to the knife that Mr Van Wyk, the deceased’s father,
had according to him
found lying on the ground after the deceased had
been removed from the scene, Mr Vorster at first seemed to speculate
that the
knife could have fallen out of the deceased’s pocket.
Shortly thereafter he stated emphatically that the knife had indeed
fallen out of the deceased’s pocket, only immediately
thereafter to state that Mr Van Wyk had actually taken the knife out
of the deceased’s pocket. According to Mr Vorster Mr Van
Wyk saw the knife falling out of the deceased’s pocket,
which
was in complete contrast to the evidence of Mr Van Wyk. Later Mr
Vorster claimed that he did not know how the knife came
out of the
deceased’s pocket.
14.5
According to Mr Vorster he did not know Ms Papier. How is this
possible if Ms Papier
was the girlfriend of Mr Vorster’s
cousin, Mr Shan Foster, with whom Mr Vorster stayed?
14.6
Mr Vorster denied that he ever went to call Ms Papier and Mr Foster
and to tell them about
the stabbing, which was in complete contrast
with the evidence of especially Ms Papier.
[15.]
Credibility
findings of a trial court will be interfered with by a court of
appeal where it is clear, from the record, that they
are wrong
[3]
.
[16.]
As
already mentioned the Regional Magistrate in effect found Mr Douglas
to have been an unreliable witness, but he nevertheless
accepted the
evidence of Mr Douglas that the appellant had said that he wanted to
stab the deceased. The Regional Magistrate
motivated this
finding on the basis that there would have been no reason for Mr
Douglas to lie about this. It must be kept
in mind, however,
that Mr Douglas was a single witness on this aspect. A part of
Mr Douglas’ version in this regard
was that the appellant found
out from his cousin where the deceased stayed, but the evidence of Mr
Douglas in this regard was unsatisfactory-
16.1
In his police statement he said that the appellant asked his cousin
where Forster stayed.
In court he testified, however, that the
appellant found out from his cousin where the deceased stayed.
16.2
Mr Douglas testified that he had been unable to hear what the
appellant and his cousin
discussed, because they were “
talking
soft
”,
but went on to testify that the appellant had immediately thereafter
told him that his cousin told him where the deceased
stayed.
16.3
In his police statement Mr Douglas said that the appellant told him
that he was going to
stab both the deceased and his friend. In
his evidence Mr Douglas testified only that the appellant had said
that he was
going to stab the deceased.
16.4
In his police statement Mr Douglas said that he saw a knife in the
possession of the appellant,
but on his evidence in court he never
saw the knife on the appellant.
16.5
In his evidence Mr Douglas testified that the appellant had told him
that he was looking
for his girlfriend. Why would the appellant
have expected to find her where the deceased was? How would
looking for
his girlfriend fit in with being on a mission to stab the
deceased?
[17.]
It
may, however, be argued that there are other objective indications
that the appellant did not cross the street merely to ask
the
deceased why he had sworn at him. Whether Mr Douglas simply carried
on walking when the appellant crossed the street (as Mr
Douglas said)
or ran away (as Mr Vorster said), the fact is that he did not cross
the street with his friend and that he did not
wait for him. He
clearly expected trouble and his evidence that he did not hang around
because he wanted nothing to do with
what was going to happen, would
fit in with his evidence that the appellant had earlier expressed an
intention to stab the deceased.
[18.]
It
is in my view also possible, however, that the appellant had not told
Mr Douglas that he was going to stab the deceased and that
Mr Douglas
had simply, when the appellant crossed the street to the respondent,
expected trouble because of the events earlier
that evening.
[19.]
The
question could also be asked why the appellant would specifically
have wanted to kill the deceased, as intimated by Mr Douglas.
It seems unlikely that the fact that the deceased had been part of
the earlier confrontation, together with the new boyfriend of
Ms
Papier, would have motivated the appellant to target specifically the
deceased.
[20.]
That
the appellant fled and hid his knife does not, in my view, warrant
the inference, as the only reasonable one, that the appellant
did so
because he knew that he had gone to the deceased to stab him or
because he knew that the deceased had not attacked or threatened
the
appellant with his own knife.
[21.]
The
reasonable possibility that the appellant may indeed have been on his
way to collect a present, and not to confront the deceased,
was in my
view not ruled out. No evidence was, for example, presented
regarding the probable route that the appellant would
have had to
follow to where he was supposed to collect the present.
[22.]
The
question would then remain, however, what exactly had taken place
between the appellant and the deceased-
22.1
As already mentioned Mr Douglas testified that the appellant and the
deceased had been
screaming at each other, waving their hands about,
when he saw the appellant stabbing the deceased. Mr Douglas
testified
that he could not say whether the deceased at that stage
had a knife or tried to stab the appellant.
22.2
Mr Vorster, on the other hand, testified that the appellant called
out the name of the
deceased and then simply stabbed him.
According to Mr Vorster the stabbing was not preceded by any
screaming or a waving
of hands.
22.3
The appellant, as I have already mentioned, testified that they had
been swearing at each
other, that both of them had been moving their
hands around and that the deceased had taken out a knife and had
started opening
it.
[23.]
Whatever
may have led to the appellant crossing the street to the deceased,
the question would remain whether the reasonable possibility
that the
deceased had then attempted or threatened to stab the appellant, was
excluded. The knife of the deceased was found
at the scene of
the incident, and there are indications that it may have been open.
We know that the deceased had a knife
and that he had earlier that
evening not hesitated to take it out to threaten the appellant.
Was the reasonable possibility
excluded that this happened again when
he was later that evening confronted by the appellant? In my view it
was not.
[24.]
Mr
Vorster was a single witness on whether the deceased had attacked or
threatened the appellant, because Mr Douglas said that he
could not
even see if the deceased had a knife. Why was the nephew of Mr
Vorster, who according to Mr Vorster was present
and was therefore
also an eye-witness, not called? It appears from the record
that he was present at court.
[25.]
If
it is assumed that the appellant had crossed the street to confront
him, possibly about the earlier incident, the question would
be
whether, even on the appellant’s own version, the appellant had
not in effect provoked an attack by the deceased, as suggested
by the
prosecutor in cross-examination. The appellant would have had
reason to believe that the deceased would be armed with
a knife and
that he would take it out again.
[26.]
In
my view, however, simply confronting an armed person cannot
necessarily be said to be provoking a lawful attack. Even if
the appellant had crossed the street to confront the deceased, and
therefore as the aggressor, that would not necessarily mean
that the
deceased’s attack would have been lawful
[4]
.
Even if the appellant and the deceased had been screaming at each
other and had swung around their hands in that process,
that would
not in necessarily have necessitated or justified an attack by the
deceased, with a knife.
[27.]
The
Regional Magistrate found that the appellant had not been a good
witness and that he had presented blatant lies to the court
[5]
.
The only aspect specifically referred to by the Regional Magistrate,
however, was the improbability of the appellant’s
version that
he had only approached the deceased to talk to him. Mr
Rosenberg, counsel for the respondent, submitted that
the appellant
had lied about whether he and Ms Papier had at that stage still been
in a relationship. Even if he had I cannot
see what relevance
the existence or not of the relationship could have to the reason why
the appellant had crossed the street to
the deceased. There was
no suggestion of a relationship between the deceased and Ms Papier.
[28.]
Whatever
the intention of the appellant may have been at the time when he
approached the deceased, the fact would remain that it
was undisputed
that the appellant had not at that stage produced his knife.
The question therefore remains whether the deceased
had not, as
testified by the appellant, then first produced his knife and started
opening it with a clear intention of stabbing
the appellant.
The reasonable possibility that this may indeed have happened, was
not in my view excluded on the evidence
as a whole.
[29.]
It
follows that I am of the view that the conviction on count 2 should
be set aside, which makes it unnecessary to consider the
appeal
against the sentence on that count.
[30.]
The
following order is therefore made:
THE
APPEAL SUCCEEDS AND THE CONVICTION AND SENTENCE ON COUNT 2 (MURDER)
ARE SET ASIDE.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________
J
A SNYDERS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant:
MR A VAN TONDER
(Kimberley
Justice Centre)
For the
Respondent:
ADV J J ROSENBERG
(Office
of the Director of Public Prosecutions)
[1]
This was the assault on which count 1 was premised.
[2]
Compare
Karrim v S
[2012] 2 All SA 125
(SCA) para [65];
S v Dada
2004 JDR
0548 (SCA) para [6]
[3]
“
It is cause for concern to find laudatory epithets applied
by a trial court to witnesses when the record shows that their
performance,
judged by the written word, was obviously far from
satisfactory. In such a case an appeal Court will more readily
interfere
with the findings of the trial court as to the weight to
be attached to the witnesses' evidence and its ultimate conclusion
based
on such findings.
”-
S v Heslop
2007 (1) SACR
461 (SCA)
[4]
See
Strafreg
,
Snyman, 5
th
Edition, p 102;
South African
Criminal Law and Procedure
, Volume 1,
General Principles of Criminal Law, 3
rd
Edition, Burchell, page 74
[5]
“
Ek dink daar is aspekte in sy
getuienis, belangrike aspekte, waar die beskuldigde ooglopend leuns
aan die Hof voorgehou het
.” –
Record: Volume 3, page 290