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1993
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[1993] ZASCA 139
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S v Moropa (302/92) [1993] ZASCA 139 (27 September 1993)
Case No 302/92
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
MORRIS MOROPA
Appellant
and
THE STATE
Respondent
CORAM:
JOUBERT, EKSTEEN JJA et HOWIE, AJA
HEARD:
10 September 1993
DELIVERED:
27 September 1993
JUDGMENT
HOWIE, AJA
2
HOWIE, AJA
Appellant was convicted in the Witwatersrand Local
Division of murder and sentenced to a term of imprisonment partially suspended.
With the leave of the trial Judge he appeals against his conviction.
The
deceased, a man approximately 21 years of age, was fatally shot shortly after
midnight on 1 January 1991 in a street in Alexandra.
It is not in dispute
that whoever shot the deceased committed murder. The vital question is whether
appellant was the culprit. The
State relied in this regard on the evidence of
two brothers, Solomon and Michael Mbele, whose testimony was countered by that
of
appellant.
The relevant evidence, briefly summarised, was this. Solomon Mbele said that
he was outside his house in 9th Avenue when he saw the
deceased, a close family
friend,
3
walking along the street. The deceased was then set upon by a dog owned by
appellant, and bitten. He retaliated by throwing a brick
at it. Members of
appellant's household (appellant lived across the street at no.18) took offence
at this and an altercation ensued
between them and the deceased. Solomon
intervened and advised the deceased to go home. He observed that the deceased's
trousers were
torn and that he had a bleeding bite mark on one of his legs. He
accompanied the deceased to his house in 10th Avenue and then returned
to his
own home. He had not been back long when he heard two gunshots. The noise came
from a nearby- spot in 9th Avenue to which
he immediately proceeded. When he got
there he saw the deceased lying on the ground and appellant standing next to the
deceased holding
a firearm. Solomon asked who had shot the deceased. Appellant
admitted having done so and then without further ado walked off with
two
companions.
4
Solomon called Michael to the scene and they placed the deceased, who was
still alive, in Michael's motor vehicle. He was then taken
to the local clinic
and later to hospital where he eventually died.
Michael Mbele said that he
was seated in the yard of Solomon's house when he saw the deceased being bitten
by appellant's dog. The
deceased threw a brick at it and it ran off. After
coming over to speak to Michael, the deceased went back to his home with
Solomon.
After about 10 minutes the deceased came back with a stick, with which
he proceeded to hit the dog which had by then returned. Not
much later Michael
heard two gunshots. In due course Solomon called him to where the deceased was
lying. Michael said he saw appellant
nearby with a gun in his hand. After the
deceased had been placed in Michael's car the latter drove him to the
clinic.
Appellant testified that he was watching video
5
films in the house at No. 2 3 9 th Avenue when he was summoned by his son.
The latter said that someone was fighting with him and
his mother. Appellant and
his son then proceeded to no 18. At the main gate, which was in 9th Avenue,
stood a group of people. Among
them was the deceased who was unknown to him.
Appellant's son pointed out the deceased as the man who had been causing the
trouble.
When appellant asked the deceased what his son had done to him the
deceased swore and threatened to kill appellant.
Considering that there was
no point in speaking further to the deceased who appeared to be drunk, appellant
decided to go home with
his son and his wife, who by then was also on the scene.
As they traversed the yard of no.18 appellant heard gunfire. When they reached
his front door a passerby called to appellant that the man who had been
6
swearing at him was lying in the street. Appellant made his way back to the
street and found the deceased. Michael arrived at about
the same time and asked
appellant what had happened. When appellant replied that he did not know,
Michael said that the deceased
had recently been fighting in Solomon's yard and
had been warned to leave. Upon the deceased's removal to the clinic, Michael
told
appellant that they could discuss the matter the following morning.
After daybreak appellant was in his outside lavatory when he saw a throng of
armed people approaching. Soon afterwards he saw them
chasing his son. They
caught him and brought him towards the house. When appellant emerged, the crowd
turned on him, some saying
that it was he they were looking for. In fear of his
life, appellant left the township and said that he had not dared to go home
since.
7
Appellant denied having made the admission alleged by Solomon or having ever
possessed a firearm.
The pathologist who conducted the autopsy found bullet
wounds consistent with four shots. The fatal shot was through the head. The
others were flesh wounds of the left buttock, left thigh and right thigh
respectively. No record was made of any other wounds and
no test was conducted
to ascertain the presence of alcohol in the deceased's bloodstream.
The trial Court (SUTEJ J and assessors) found Solomon to be a good witness.
He was described as the best of the lay witnesses. His
evidence, said the Court,
had to be accepted. Appellant, on the other hand, was "the least reliable" of
the three and his evidence
was not acceptable. That appellant happened to have
been absent from the scene for the precise period in which the shots were fired,
sounded, in the Court's assessment, "too good
8
to be true". However, apart from criticism of appellant
for subsequent
conduct quite unrelated to the relevant
incident, the Court's reasoning was confined to a
discussion of the
evidence of Solomon and Michael.
Reference was made to certain contradictions
between
Solomon's evidence and that of his brother, which the Court
said warranted the exercise of caution, but it found that
these differences were such that they rendered it unlikely
that the State version had been concocted. The Court went
on to say that
although on the matter of appellant's
alleged admission Solomon was a single witness, and
"(w)e tend to find that Solomon fell short of requirements in R v Mokoena
1932
OPD 79"
,
Solomon was nonetheless corroborated in
material respects
by Michael.
Giving full weight to the advantage which the
trial Court had of hearing and observing the vital
witnesses, I am satisfied that its assessment of the
9
evidence lacked the searching critical analysis required of a proper
appraisal of criminal guilt. This caused it to overlook certain
important
features of the case.
It was not in dispute that the Mbele brothers knew
appellant well. There is no question, therefore, of their having been mistaken
as to the identity of the person who Solomon said made the crucial admission and
who, according to both of them, stood by with a
clearly visible firearm in his
hand on two separate occasions. Either that evidence was true or it was
deliberately fabricated.
It is unnecessary, I think, to discuss the various
contradictions that are to be found in the Mbele's evidence. Several are of no
moment but others are certainly material. This was readily conceded by counsel
for the State.
The question, however, whether there was a reasonable possibility of a
deliberate fabrication was not,
10
in my view, resoluble simply by reference to the discrepancies
involved.
Accepting that the deceased was attacked by appellant's dog and
that that led to the admitted argument between the deceased and various
members
of appellant's family, the situation was such as to render appellant a ready
suspect that night in the mind of anyone in
the neighbourhood who did not
actually see the shooting. Indeed by the following morning a substantial number
of the township's residents
had gone as far as to single him out as the killer.
Solomon testified that the police were not summoned until the mob had become
hostile towards appellant and his family the next day. Only thereafter did the
Mbele's lay a charge against appellant. The whole
situation would have
engendered the incentive in anyone in guest of a scapegoat to point a finger at
appellant.
11
In those circumstances the very real possibility existed that Solomon and
Michael succumbed to that incentive by reason of their very
close friendship
with the deceased and that they therefore falsely implicated appellant in order
to saddle someone with liability
for his murder. The possible motive for them to
give false evidence was not mentioned by the trial Court and was, by all
indications,
overlooked.
Apart from that motive and the material contradictions referred to, it seems
to me to be inherently unlikely that the culprit would
have remained on the
scene at all much less that he would have made a damaging admission and stood
around with a firearm in his hand
for all to see. There were many people in the
offing who must have seen this if the State version were true and it seems
strange
that if communal feeling against appellant was as strong the next day as
it appears to have been that it did
12
not erupt soon after the event when the public mood would have been
considerably more volatile.
Moreover, on Solomon's evidence appellant walked
away after admitting his guilt. It: is also common cause that appellant and
Michael
were on the scene contemporaneously. On the State case this was a later
occasion. This means that appellant was so brazen and uncaring
about what people
thought that he returned to the scene still with a gun in his hand. That is
another improbability in the prosecution
case.
Finally, as far as appellant's
evidence is concerned, it is significant that the trial Court appears to have
been unable to find it
false beyond reasonable doubt. The furthest the Court
went was to express the criticisms summarised earlier. Even then it did not
explain why it found appellant to be the least reliable witness. In my view a
study of the record reveals him to
13
have been in no material measure inferior to Solomon or Michael. And if it
was indeed improbable that the shooting occurred during
the very period that
appellant was proceeding to his house after speaking with the deceased, that was
no greater improbability than
those which detract, as I have said, from the
State's version. If the deceased was as truculent as appellant alleged, he could
well
have angered any number of people, not just appellant.
For all these
reasons I consider that the trial Court erred in convicting and the appeal must
succeed.
It remains to say that it was quite wrong for appellant's counsel in
the Court a quo to have asked that leave be granted to appeal
to this Court. It
was equally wrong for the trial Judge to have acceded to that request. It was
plainly an appeal that should have
been heard by the Full Bench.
14
The appeal is allowed. The conviction and sentence are set aside.
C T HOWIE, AJA
JOUBERT, JA ) concur EKSTEEN, JA )