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1988
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[1988] ZASCA 124
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S v Ramorafe (370/87) [1988] ZASCA 124 (30 September 1988)
CASE NO: 370/87 wlb
SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the appeal of:
LUCKY RAMORAFE
Appellant
and
THE
STATE
Respondent
CORAM: CORBETT, GROSSKOPF et MILNE JJA
DATE OF HEARING: 22 September 1988 DATE OF DELIVERY: 30 September 1988
JUDGMENT
MILNE JA/
-2-MILNE JA:
The appellant and three other young
men were charged in the Witwatersrand Local Division with the murder of one
Billy Modise. The
appellant was also charged with being in unlawful possession
of a 9mm pistol and an unknown quantity of 9mm bullets; it being alleged
that
such possession contravened sections 2 and 36 respectively of Act 75 of
1969.
The appellant and the other accused all pleaded not guilty. The other
accused were discharged at the close of the State case. The
appellant was
convicted on all three counts, and sentenced to 15 years' imprisonment on the
murder count and to imprisonment for
1 year on each of the other two counts, the
sentence on these two counts to run concurrently.
The appellant appeals
against his conviction of murder with the leave of this Court. No application
was made to the trial court or
to this Court for leave to appeal against his
conviction on the other two counts.
-3-There is no direct evidence that the
appellant killed the deceased, but the trial court found that it was an
irresistible inference
from the proved facts that he did. The appellant gave
evidence at the trial which differed in vital respects from the evidence of
the
two main witnesses. The respects in which it differed will appear from what
follows later. The trial court rejected the appellant's
evidence as false to the
extent that it so conflicted. It was not argued before us that the version of
the appellant might reasonably
be true , and such an argument would have been
bound to fail. It was, however, submitted that the evidence which was accepted
by
the trial court did not justify the finding that the appellant was guilty of
the murder of the deceased.
The appeal therefore, falls to be decided on the
basis of the evidence of the two main State witnesses, taken together with the
admissions
made by the appellant. The two main State witnesses were Anna Modise,
the sister of the deceased and her
-4-husband Leslie Madi. From their
evidence the following facts emerge. On the night of the 3rd-4th January 1986
what was called a
"night vigil" was held at a house in Naledi Extension in
Soweto for a young man named Tshepiso Molokeng who had died recently. It
was
believed that Tshepiso's death was the result of police action. The vigil was
attended by quite a number of people some of whom
sat in a house which was
apparently the house of Tshepiso's parents. As appears from the photograph of
the house, it is very small
and a number of the persons attending the vigil were
outside (apparently accommodated in tents). The number of persons present was
estimated as perhaps more than 60 and possibly even as many as 100. Anna Modise
and her husband Leslie Madi attended this vigil.
Billy Modise, the deceased in
this case, also attended the vigil. He arrived in a BMW motor car (thought to
belong to his employer),
accompanied by one Cedric. There is no exact evidence
as to the time of the
-5-deceased's arrival but on Anna's evidence it would
have been between 10 and 11 p.m. on the night of 3 January 1986. THe deceased
remained present for about an hour, and as he and Cedric were about to leave, a
youth called Lucas arrived, accompanied by approximately
10 other youths. Lucas
was apparently the leader of this group and he accused the deceased of being a
police informer. The deceased
denied this. Some of the youths attempted to pull
the deceased out of the house, but were prevented from doing so by older people
present. He was searched for a fire- arm by Lucas, but no fire-arm was found. It
was also suggested that the deceased had a portable
2-way radio in his car
(described as a walkie-talkie), but a search of the car apparently revealed
nothing of the sort.
Eventually the deceased was put into a bedroom and the
door locked. This was done by some adult women who were present and seems to
have been for the protection of the deceased. Some time later the appellant came
into the house. He had a fire-arm
-6-
in his hand and he said "I have heard that there is an
informer in this house and I have come for him". The appellant wanted to go
to
the bedroom where the deceased was, but was prevented from doing so by people in
the house. The appellant then went out of the
house. Shortly thereafter there
was the sound of a gun being fired. At some stage during that evening Anna saw
the appellant with
bullets in his hand and he appeared to be loading them into
the gun. Shortly after this shot had been fired, Lucas approached Anna
and
suggested that she should give him the keys of the BMW motor car in which the
deceased had arrived so that he could hide it,
allegedly because he believed
that the people there would burn the car after the vigil. This is, on the face
of it, a rather curious
piece of evidence because, in fact, Anna did not have
the keys on her and Lucas, in making this suggestion to Anna, spoke loudly
enough to be heard by other persons in the room - which one would have thought
might have defeated the alleged object of his communication
because those other
persons
-7-
would presumably have attempted to stop him from taking the
car away. This may have been a ruse on the part of Lucas. Be that as it
may, the
keys were handed to Anna by a person in the room and she then handed them to
Lucas who left with others. After some time
Lucas came back with the appellant
and about 7 other young men. These 7 young men were not the young men who had
originally come
in with Lucas when he first came to the house where the vigil
was being held, but a group who had not been there previously. Lucas
then said
"I am back. I have evidence that Billy (the deceased) is an informer. The people
with whom I have come , have come to decide."
He then said to Anna "Where is
Billy?" She said she did not know and someone present said "Give her a necklace
and she will tell
where Billy is". (The word "necklace" no doubt referring to
the obscenely cruel method of killing a person by placing a tyre filled
with
blazing petrol round that person's neck). Lucas then went to the bedroom where
the deceased was and Lucas, the appellant and
others who had
-8-arrived with
the two of them, took the deceased out of the bedroom and they were hitting him
with their fists whilst they did so.
They took the deceased away. As they did
so, they were singing "freedom songs". This was at about 2 a.m. on 4 January
1986 or even
later. Anna Modise did not hear the car drive away but Leslie Madi
said that he knew the deceased's car and that when "they" took
the deceased
outside he heard the BMW car being driven off.
This is as far as the direct
evidence takes us. For what occurred thereafter we are dependant upon certain
admissions made by the
appellant. The initial set of admissions were made in the
form of a document, exhibit A, but these were considerably amplified at
a later
stage. They were, unfortunately, not properly formulated in writing but emerge
from the record at p253-262. The effect of
these admissions is the
following:
(a) The deceased "left" the scene of the night vigil in the BMW motor car (in
which he had arrived), during the early hours of the
morning of 4 January
1986.
(b)(i) The deceased sustained the bullet
wounds mentioned in
-9-
the Post Mortem Report of Dr Berson at the place where the
BMW motor car was found at a time which must have been before 5.27 a.m.
on the
morning of 4 January. (ii) The shots causing the bullet wounds were fired from
the same weapon namely a 9mm fire-arm and in
all 3 shots were fired from that
weapon at that place.
(c) The place where the deceased was shot and the BMW (registration number DDL
701 T) was found, is approximately 2.5km from the
place where the night vigil
was held.
(d) Exhibit J contains photographs of the BMW and the blood which can be seen on
the vehicle is of the same blood group as that of
the deceased.
(e) The deceased had not yet died when he was found and he was conveyed by
ambulance to hospital to which he was admitted at 5.27
a.m. on the
4th.
(f)
He died in hospital some 18 minutes
later.
(g) The deceased died as a result of bullet wounds of the neck and "possible
blunt trauma to face".
It is also, I think, relevant
that the appellant was convicted of being unlawfully in possession of a fire-arm
and bullets of the
same calibre as that which was used to shoot the
deceased.
The version of the appellant, briefly summarised, was to the effect
that although he was present at the night vigil, he was, throughout
the period
of such presence, in one of the tents
-10-outside the house where the vigil
was being held, that he did not know and at no time saw or had anything to do
with the deceased
or Anna Modise or Leslie Madi, that he left the vigil between
10 p.m. and 1 a.m. and went straight home, and that apart from the
fact that
when he was about 200m away from the home where the vigil took place, he heard a
gunshot and dogs barking and saw some
people running about, he had no personal
knowledge of anything untoward having occurred that evening. He heard, so he
says, the next
day from a friend called Lucky that there had been talk that
there was an informer there and that people had forced this person outside
the
house. He also heard from another friend called Thomas, that "they" got hold of
Billy and that Lucas had a fire arm.
As already mentioned, however, this version was rejected as false by the
trial court.
The effect of all this
may be
summarised thus:
(a) On the night when the deceased met his death, the appellant entered the
premises where the deceased was,
-11-
in effect, being sheltered from hostile youths who regarded him as a police
informer.
(b) These premises were oocupied by the parents of another youth who was
believed to have been killed by police action, and a night
vigil was being held
in these premises to commemorate or mourn the death of the other youth.
(c) When the appellant entered the premises he was armed with a 9mm pistol which
was either already loaded or which he loaded there.
(It is also probable that he
fired the shot outside the house to which I referred earlier.)
(d) When the appellant entered the premises he said "I have heard that there is
an informer in this house and I have come for him".
At this stage he held the
pistol in his hand.
(e) The appellant at that stage wanted to go to the bedroom where the deceased
was being sheltered but was stopped from doing so
by others in the house. He
then went out of the house and it was then that the sound of a gun shot was
heard.
(f) Later that night, probably at about 2 a.m., early the next morning in fact,
the appellant, one Lucas and other youths went to
the bedroom where the deceased
was and pulled him out hitting him with their fists while so doing, the
appellant still having the
pistol in his hand.
(g) This group then left the house with the deceased, singing what were
described as "freedom songs" and the deceased was taken away
in the BMW motor
car he had arrived in.
(h) At some time between then and 5.27 a.m. the deceased was shot with a 9mm
pistol.
-12-
The trial court did not find that at the time
when the
deceased was abducted from the house there was a common purpose
to murder him on the part of hís abductors. In fact, counsel
for
the State conceded that the evidence would not have justified
any
finding. What the learned trial Judge said was that:
"... it seems to me clear that there was a common purpose among the members of
the group which abducted the deceased from the house
to obtain a confrontation
with the deceased. That confrontation, it seems reasonable on all the evidence,
would not have been a friendly
one. The obvious inference from the evidence that
the deceased was accused of being an 'impimpi' is that the group of people who
abducted the deceased from the house wanted to deal with him in some way. I do
not say, at this stage, that their intentions were
criminal, but there seems to
be no other explanation for their conduct."
He later
proceeds as follows:
"Having regard to all the circumstances testified to by Anna and Leslie, the
inference appears to me irresistible that the accused
set off with the deceased
to some place in order to have some sort of confrontation with him. The accused
having denied that he played
any part in that connection that night, no
explanation of the circumstances under which the deceased met his death emanated
from
the accused. There is no evidence on record which would justify
an
-13-
inference that anyone else might have shot the deceased that night because of
the existence of some personal motive and although
such a possibility exists it
pales into insignificance when it is weighed against the probability of a member
or members of a group
or organisation known as the 'Comrades' having confronted
the deceased that night in the early hours of the morning and having shot
him.
In the absence of an explanation by the accused of the events which took place
after he and his group led the deceased away
from the place of vigil the
inference appears to me to be irresistible that it is the accused who fired the
shot which killed the
deceased or that the accused handed the gun to someone
else for that purpose, thereby becoming a party to the deliberate shooting
of
the deceased. The inference that the accused was the person who was in that way
responsible for the death of the deceased appears
to me to be the only
reasonable inference consistent with the facts."
I agree that it is probable that a member or members
of
the group known as the Comrades confronted the
deceased that
night in the early hours of the morning and shot him.
The
question is whether it has been proved beyond reasonable doubt
that it
was the appellant who shot him. The correct approach in
matters of this
nature is set out in the judgment of SMALBERGER
AJA in
S v Mtsweni
1985(1) SA 590 (A) at 593D-594F where he deals
-14-with the weight to be
attached to the fact that an accused person has given false evidence where there
is. no direct evidence
linking the accused with any attack on the deceased.
Reference is there made,
inter alia
, to "Die beskuldigde se ouderdom,
ontwikkelingspeil, kulturele en maatskaplike agtergrond en stand in soverre
hulle 'n verduideliking
vir sy leuens kan bied". In this case the appellant was
17 years old at the time when he was alleged to have committed this offence
and
it appears that he had only passed standard 3 at school. A psychiatrist was
called to give evidence in mitigation and he was
of the opinion that the
appellant had an immature personality and was the kind of person who could be
easily influenced. These findings
were accepted by the trial court. Reference is
made in
Mtsweni
's case to the fact that there may be a tendency on the
part of some "... om die waarheid te ontken uit vrees dat hulle by 'n misdaad
betrek gaan word, of omdat hulle vrees dat erkenning van hulle betrokkenheid by
'n voorval of misdaad, hoe gering ook al, gevare
inhou van 'n
-15-
afleiding van deelname en skuld buite verhouding tot
die
waarheid." Taking into account the age and state of development
of the
appellant, it appears to me to be a very real possibility
that the appellant
lied about his involvement at the earlier
stages because, by the time he gave
evidence, he was aware of the
fact that the deceased had been shot and he
thought 'that an
admission of such involvement at the early stage would
result in
inferences being drawn that he had been more seriously
involved
at a later stage although this was not in fact the true
position.
The following words in
Mtsweni
's case seem to me
peculiarly
apposite:
"Voordat 'n skuldigbevinding aan moord kan geskied moet daar bewese feite wees
wat by wyse van afleiding die appellant aan die dood
van die oorledene koppel.
By ontstentenis daarvan bestaan daar nie 'n
prima facie
saak teen die
appellant nie, en kan sy leuenagtige getuienis, net soos in die geval waar hy
nie getuig nie, nie die leemtes in die
Staat se saak aanvul en 'n gevolgtrekking
van skuld regverdig nie (cf
S v Masia
1962(2) SA 541
(A)."
See also
S v Lujaba
1987(1) SA 226 (A)
at 236D-F.
-16-
One of the difficulties which faces the State is the fact
that there is no evidence whatsoever as to what happened between about 2
a.m.
when the deceased was abducted from the place where the night vigil was held and
the time when he was found (still alive), and
taken to hospital, other than the
rather sparse material provided in the form of the admissions to which I
have,referred above. There
is no proof:
(a) That the appellant was the only member of the group which abducted him who
was armed.
(b) That the bullet found in the body of the deceased was fired from the
appellant's fire
arm.
(c)
Of the time the appellant was shot.
The
doctor who performed the
post mortem
examination was, regrettably, not
called. This is unfortunate since he might conceivably have thrown some light on
the time when
the deceased was shot. Furthermore, the nature of his report is
such that I am by no means sure how many bullet wounds he found in
the body of
the deceased, nor am I sure of the extent to which "possible blunt trauma to the
face" was the cause of death. The deceased
-17-may, for all we know, have
been shot shortly before he was found. We do not even know at what time or by
whom he was found, but
it is reasonably possible that it was at about 5 a.m. The
State witnesses were not precise about the time when the deceased was abducted
but it seems at least reasonably possible that several hours elapsed between the
abduction and the shooting of the deceased. This
lapse of time is, in my view,
important. The longer the interval between the episode involving the appellant
with the deceased and
the latter's death, the weaker the . inference that it was
the appellant who caused that death; there is more room for some external
factor
or factors to have come into operation. Once it is accepted (as it was by the
trial court), that a group abducted the deceased
but that there was no common
purpose to murder at that time then it follows, not only that the State had to
prove that it was the
appellant who killed him, but also that the
"confrontation" envisaged by the trial Judge involved others who may have caused
the
death of the
-18-
deceased. He may have been "tried" by a "People's Court"
whose executioner was some person or persons other than the appellant. This
is,
of course, speculation but it is not, given the circumstances that the deceased
was belieyed to be a police informer who was
abducted by "Comrades", by any
means a fanciful one. There is nothing to connect the appellant with what
happened after the abduction
of the deceased and in my view, while it is
probable that it was he who shot the deceased, it has not been proved beyond
reasonable
doubt.
In my view the appeal succeeds and the appellant's
conviction and sentence on the charge of murder must be set aside.
A J MILNE
Judge of Appeal
CORBETT JA: CONCURS