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[2011] ZAFSHC 179
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Moroe v S (A143/2011) [2011] ZAFSHC 179 (24 November 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A143/2011
In
the matter between:
KENGKENG JEREMIA
MOROE
…...............................................
Appellant
and
THE STATE
…...........................................................................
Respondent
_______________________________________________________
CORAM:
EBRAHIM, J
et
MTHEMBU, AJ
_______________________________________________________
JUDGMENT:
MTHEMBU, AJ
______________________________________________________
_
HEARD ON:
17 OCTOBER 2011
_______________________________________________________
DELIVERED ON:
24 NOVEMBER 2011
_______________________________________________________
[1] The appellant was
convicted in the Kroonstad Regional Court of murder. On 31 January
2011 he was sentenced to twelve (12)
years imprisonment. He now
appeals against both the conviction and the sentence with leave of
the court
a quo
granted on 15 February 2011.
[2] Condonation for the
late filing of the appellant’s heads of argument was granted
at the commencement of the appeal hearing.
[3] In his heads of
argument and in oral argument Mr Swanepoel, counsel for the
appellant, attacked the findings of the court
a
quo on the
basis that the evidence adduced by the state was not sufficient to
have established the state’s case beyond reasonable
doubt. He
submitted that the presiding officer erred in finding that the state
had proved the element of unlawfulness, necessary
for a conviction
of murder, beyond reasonable doubt. More specifically, he argued
that the trial court had erred in finding that
the appellant should
have testified in his own defence and advanced an explanation
regarding his plea of self-defence or private
defence.
BACKGROUND
[4] The state called two
witnesses, namely, Warrant Officer Jeremia Radebe of the South
African Police Services who visited the
scene of the incident and
Sarah Moroe who was present at the scene minutes before the fatal
shots were fired by the appellant.
[5] Sarah Moroe
testitied that she was the estranged wife of the appellant and that
the deceased was her sister-in-law. During
the evening of 30 –
31 January 2009 she was at the premises of the deceased. At about 2
a.m. during the early hours of
31 January 2009 the appellant arrived
there. From the outset the appellant stated that he was there not to
fight but to speak
with her. The appellant had a quart of beer in
his hand which, upon his entering the premises, the deceased grabbed
from his
hand. The deceased poured the beer into a glass and threw
it at the appellant’s face injuring him on his left eye. The
deceased then took a beer bottle and wanted to hit the appellant
with it. The witness then intervened in the quarrel by holding
onto
the appellant. She discovered that the appellant was in possession
of a firearm. She decided to seek help and then left
the deceased’s
premises and went to a nearby house in order to phone the police. As
she reached that house she heard shots
being fired and saw the
appellant, coming out of the deceased’s premises shouting her
name. She later returned to the deceased’s
premises and found
her lying in the passage, dead.
[6] During
cross-examination she confirmed that the appellant sustained
injuries on his left eye caused by being hit with the
glass thrown
by the deceased and she also noticed an injury on the appellant’s
left cheek, the cause of which she did not
know. She also confirmed
that the deceased was aggressive.
[7] The defence then
closed its case without calling the appellant to testify but made an
admission that the two gunshot wounds
reflected in the post mortem
report were caused by the appellant and resulted in the deceased’s
death.
EVALUATION OF
EVIDENCE
[8] The submissions made
in the heads of argument and during oral argument on behalf of the
appellant have to be seen in the context
of the following common
cause facts:
8.1 That the appellant
had gone to the deceased’s premises to talk to his estranged
wife, Sarah.
8.2 That the appellant
said he did not want to fight and this was specifically brought to
the deceased’s attention.
8.3 The deceased
attacked the appellant without provocation.
8.4 The deceased was
under the influence of alcohol.
8.5 The appellant
sustained serious facial injuries.
[9] In convicting the
appellant, the trial court relied upon
S v MANONA
2001
(1) SA 426
TK, as authority for its finding that where it was not
disputed by the accused that he had shot and killed the deceased but
alleged
that he had done so in self defence, a
prima facie
case of unlawfulness had been established against the accused,
despite the absence of direct evidence and the presence only of
circumstantial evidence of the shooting, plasing an evidential
burden of rebuttal on the accused’ to show that he had killed
in self-defence. The failure to testify in his own defence, had the
effect of converting
prima facie
proof of unlawfulness into
proof beyond a reasonable doubt. The court
a quo
, following
this reasoning, convicted the appellant of murder.
[11] The trial court’s
reliance on
MANONA
supra
was erroneous. In
MANONA
, the court was dealing with an application for
the discharge of an accused at the close of the state’s case
in terms of
section 174
of the
Criminal Procedure Act, 51 of 1977
.
The test for such a discharge is the existence of a sufficiency of
evidence against the accused, decided on the application
of the
objective standard of the reasonable man..
S v HELLER
1964 (1) SA 524
W;
S v BOUWER
1964 (3) SA 800
(O);
S
v LUBAXA
2001 (4) SA 1251
(SCA). If the evidence is such
that a reasonable man might convict the accused must be placed on
his defence but in such a case
he is still entitled to close his
case without testifying.
[12] The appellant in
the court
a quo
, had taken the route of closing his case
without testifying or calling witnesses to testify in his defence.
He did not avail
himself of the opportunity of applying for his
discharge in terms of
section 174.
In such a case the trial court
was obliged, in determining the guilt or innocence of the appellant,
to assess the evidence adduced
in its totality in order to conclude
whether or not the state had proved its case against the appellant
beyond a reasonable doubt.
This it did not do. Instead it applied an
incorrect legal principal, as set out in
MANONA
(
supra
), in convicting the appellant.
[13] The principal
enunciated in
MANONA
(
supra
) is incorrect
because the only test to be applied in deciding whether or not to
place an accused person on his defence is that
already set out in
this judgment. The presumption of innocence, guaranteed by the
Constitution of the Republic of South Africa,
Act 108 of 1996 (“The
Constitution”) and underpinning an accused person’s
right to a fair trial requires that
the state first prove its case
before the accused can be expected to offer a defence. A conviction
based solely on self-incriminating
evidence in circumstances where
there is no possibility of a conviction at the close of the state’s
case is a breach of
the accused’s constitutional guarantee of
fairness (
LUBAXA
supra
).
[14] The only evidence
presented at the appellant’s trial as to the actual shooting
was that of the appellant’s wife,
Sarah. Her evidence was
purely circumstantial as to the actual shooting and exculpatory as
to the events preceding the shooting
Consequently in deciding
the essential issue in this appeal of whether or not the State had
succeeded in proving that the appellant
had shot and killed the
deceased unlawfully, the two cardinal rules of logic applicable when
dealing with circumstantial evidence,
enunciated by Watermeyer JA in
R v BLOM
1939 AD 188
at 202 and 203, must be
considered. They are:
(1) The inference sought
to be drawn must be consistent with all the proved facts. If it is
not, the inference cannot be drawn;
(2) The proved facts
should be such that they exclude every reasonable inference from
them save the one sought 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.
[15] This the learned
trial magistrate did not do. He did not apply the correct legal test
in assessing the weight of the evidence
against the appellant. He
was obliged to apply this test to the circumstantial case before
him. His failure to do so amounted
to a misdirection justifying the
setting aside of the conviction. In any event, had he applied the
rule in
BLOM
to the evidence before him, it would have
been plain that the only inference to be drawn therefrom is not that
the appellant
had shot and killed the deceased in unlawful
circumstances. Put differently, he ought to have found that a
reasonable possibility
existed that the appellant had acted in
self-defence or as a result of private defence. The appellant’s
conviction and
sentence is accordingly improper and unjustified.
[17] The order I
accordingly make is:
17.1 The appeal
succeeds.
17.2 The conviction and
sentence are set aside.
_________________
J. B. MTHEMBU, AJ
I concur.
______________
S. EBRAHIM, J
On behalf of the
appellant: Mr D. Swanepoel
Instructed by:
Du Randt & Louw Inc
KROONSTAD
On behalf of the
respondent: Adv. R. Hoffman
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/eb