About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1992
>>
[1992] ZASCA 171
|
|
S v Morokoane (483/91) [1992] ZASCA 171 (25 September 1992)
483/91
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE
DIVISION
In the matter between:
S I MOROKOANE
APPELLANT
and
THE STATE
RESPONDENT
Coram
: E M GROSSKOPF, F H GROSSKOPF J J A et NICHOLAS A J A.
Date Heard
: 3 September 1992
Delivered
: 25 September 1992
2
JUDGMENT NICHOLAS
, A J A :
In 1990 Simon
Qhubu was a shopkeeper in Maokeng Township in Kroonstad. He also operated the
business of an itinerant trader. For this
purpose he had a Toyota bakkie and
employed a man named Mabutane Mguni to hawk merchandise in the district.
On
Saturday 23 June 1990, Mguni set out in the vehicle which was loaded with
groceries to the value of about Rl 000. He was assisted
by the 18 year old
Johannes Mokoena. A schoolboy of 12 years, Thobili Qhubu, who was Simon Qhubu's
nephew, went along with them.
They did not return to Kroonstad that evening as they should have done. On
the following day Simon Qhubu reported them as missing
to the police. On the
Monday he was summoned to the Steynsrus police station, where he saw his bakkie,
which was then in a damaged
condition. It had been found that morning by Sgt du
Plessis on the Kransdrif
3
gravel road near Steynsrus next to a sharp bend
where there were brake marks and signs that it had left the road. The roof was
stove
in, and it appeared that it had rolled at least once. On the ground next
to the vehicle was a heap of burnt goods which appeared
as if they had been
stock from a shop. The inside of the vehicle smelt sharply of an inflammable
liquid, which appeared to have been
poured over the interior of and around the
bakkie. The ground surrounding the bakkie had been burnt in a circle whose
radius was
about 10 m. The vehicle could still be driven and du Plessis
proceeded with it to Steynsrus police station.
On Wednesday 11 July 1990 Elias Motaung, a herd boy, chanced to climb upon a
wall of "'n ou murasie" on the farm Adalia where he was
employed. He looked down
on three bodies lying on the ground. The police were informed and Lieut Plater,
who was attached to the
C 1 D at Maokeng, arrived at the scene at about 5.30
p.m, and posted a
4
police guard for the night. He returned the following morning
together with W/O van Rensburg, an official police photographer. The
scene was
carefully examined and spent bullets were collected. Photographs were taken of
the general scene, of the bodies, and marks
on the wall of the murasie which had
apparently been caused by projectiles fired from a weapon. The bodies were then
removed to the
mortuary, where they were identified as those of Mguni, Mokoena
and the young Qhubu.
On
post mortem
examination it was ascertained that each of the men had
died as a result of penetrating gunshot wounds. Mguni was found to have
sustained
two contact wounds in the back of the head, and a third in the back of
the neck. In the case of Mokoena, there was a wound in the
right side of the
trunk penetrating through the abdominal wall, and a wound in the back of the
neck. Qhubu, had sustained a gunshot
wound at the back of the head, a second
through the right side of the thoracic cavity from the
5
back; and a third from the back through the left
side of the thoracic cavity.
On 14 July 1990 Plater went to the farm Malana,
about 5 kms from the scene of the murder. It was occupied by Mr Nico Lategan,
who
on 18 June 1989 had reported to the police that his ,38 Special Arminius
revolver and holster, which he had acquired only a month
before, had been stolen
from the farmhouse, together with a box containing 44 cartridges. Lategan
suspected that the thief was Samuel
Isak Morokoane, one of his labourers, who
had disappeared at the end of June 1989. On his arrival Plater spoke to Lategan
and was
shown a heap of sand into which Lategan had fired practice shots with
his .38 Special. From it Plater unearthed two spent bullets.
On 29 August 1990, as a result of information received from one Thys Mokoena,
Plater went to the farm Meriba, which is the next farm
but one to Malana. There
he encountered Samuel Isak Morokoane, who agreed to accompany
6
Plater to Kroonstad for questioning. Later on the
same day Piater returned to Meriba with Morokoane and three policemen (Det. Cst.
Ntaku, Det. Lance Sgt. Semela and Cst. Remot-shela). At the farm Morokoane
indicated as his room one of five adjoining rooms having
a common stoep. He
pointed out a spot on the stoep where Semela dug against the wall and extracted
from under a cement block a plastic
shopping bag containing a .357 Magnum
revolver and holster loaded with .38 special cartridges, and also found a
dark-coloured holster.
Piater thereupon arrested Morokoane on a charge of
unlawful possession of a firearm. Asked where the "other gun" was, Morokoane
said
that it was with his brother. Piater was told that Morokoane's brother had
been present before the police arrived, but had fled into
the bushes. Piater
handcuffed Morokoane to the seat of his Kombi vehicle and drove away from the
scene, leaving behind the three
policemen to lie in wait for the brother. He
proceed about 5 km in the direction of Kroonstad and, using the 2-way radio,
summoned
7
reinforcements to help look for the missing man.
On their arrival, he drove back with them towards the farm. When they were one
or
two kilometres away, he encountered Semela, who had been shot in the right
hand and who made a report to Piater. It appeared that
the brother did return,
but when the police tried to arrest him, a gunfight occurred. Plater immediately
went to the brother's room.
There he found Ntaku lying dead with a bullet wound
in the chin. The brother had run away again and could not be found. Plater took
possession of a bullet found at the scene, and later received another bullet
which was extracted from the body of Ntaku at the post
mortem examination.
On 1 November a human skeleton was found by a farm labourer at place on
Meriba 3 kms from Morokoane's room. It was fully clothed.
Next to it Plater
found a ,38 Special revolver, and in the skull Plater found a bullet. When at a
later stage Plater showed the clothing
to Morokoane, the latter identified it as
having belonged to his brother Joseph
8
(alias Oupa) Morokoane.
On 10 November 1990 Mr
J H Myburgh of the farm Fairfield identified as his property the revolver and
the dark holster which Morokoane
had pointed out. It had been stolen early in
February 1990.
On 14 June 1991 Morokoane was arraigned before a court
composed of VAN COLLER J and two assessors sitting at Kroonstad. He faced eight
charges, including three (counts 6, 7 and 8) of murdering respectively Mabutane
Mguni, Johannes Mokoena and Thobile Qhubu. He was
also charged with
housebreaking and theft arising out of the theft from Myburgh of a Taurus ,357
Magnum revolver in February 1990
(count 1); raping Pauline Taunyane on 17
February 1990 at the farm Welkom in the district of Kroonstad (count 2); robbing
Jorita
Moopelo at the same time and place (count 3); housebreaking and theft
arising out of the theft of a ,38 Special revolver from Lategan
on 18 June 1990
(count 4); and robbing Mguni, Mokoena and Qubu on 23 June 1990 of the
9
Toyota bakkie, groceries and R70,00 in cash (count
5). He pleaded not quilty on all counts but was found guilty of theft on count
l,and as charged on counts 2, 3, 6, 7 and 8. On each of counts 6, 7 and 8 he was
sentenced to death. He appealed in terms of S 316
A (1) of the
Criminal
Procedure Act 51 of 1977
, against the convictions and sentences on counts 6, 7,
8. He also purported to appeal against the convictions on counts 1, 2 and
3, but
as leave to appeal was not obtained in respect of those counts we cannot
consider them.
The case for the State rested in the main on the proof of the facts as
outlined above; on expert ballistic evidence; and on pointings
out by Morokoane
on 30 and 31 August 1990. The State also tendered evidence of a statement which
Morokoane made to a magistrate on
30 August 1990. The admissibility of this
statement was challenged and it was excluded after a trial of the question.
Plater gave evidence that he delivered to
10
Major Lubbe of the Ballistic Unit in Pretoria
:
(i) Six bullets marked A - F collected at the
scene of the murder; (ii) Two bullets marked G-H collected from the heap
of sand at Lategan's farm Meriba; (iii) Myburgh's revolver (exh 1) which was
pointed
out by Morokoane outside his room on the
farm; (iv) The bullet found lying next to Ntaku's body,
and the bullet extracted from his body on post
mortem examination; (v) The ,38 Special revolver (exh 4) found next to
Oupa Morokoane's body on 7 November 1990; (vi) The bullet extracted from the
skull of Oupa
Morokoane.
It was not possible to carry out ballistic tests on exh 4 because it was
badly rusted and covered with blood. However, on all the
evidence it was
established
11
beyond peradventure that exh 4 was Lategan's
revolver which had been stolen from him on 18 June 1990.
Lubbe's evidence was not challenged by the defence in any way. It established
that -
(a)
of the six bullets referred
to in (i) above, five were fired from exh 1, and one was fired from exhibit
4;
(b)
each of the bullets variously collected
from the sand heap, found lying next to Ntaku, extracted from his body at the
post mortem
and extracted from Oupa Morokoane's skull, was fired from exh
4.
The circumstances in which Morokoane came to
point out places on 30 and 31 August 1990, and to make a statement to a
magistrate on
30 August, appear largely from the evidence of Lieut De Ru, who
was attached to the C I D at Sasolburg. On 30 August 1990 he was
approached by
Lieut-Col Voigt, who was in charge of the C I D for the Kroonstad
12
district, for assistance in the investigation of
a charge of murder. He knew nothing of the case except what he had read and
heard
in the newspapers and on the radio. He arrived in Xroonstad at about 4 p m
and received Morokoane from Plater. De Ru interviewed
Morokoane in an office and
duly warned him. Morokoane said that he understood -he warning and that he still
wished to point out certain
places. Morokoane told De Ru that he had no fresh
injuries or scars on any part of his body, and an examination by De Ru revealed
none. They then set off. Lieut Symington was driving the vehicle in which De Ru
was the front seat passenger, and Det Cons Majaii
and Morokoane occupied the
back seat. A photographer, Cst Saunders, followed in a second vehicle.
They left Kroonstad at 16h55. Morokoane pointed out various places, and
photographs were taken by Saunders. At 18h00 it was decided
to break off the
operation because of fading light, and to meet again the
13
following day. De Ru, Symington, Majafi and
Morokoane set out on the return journey to Sasolburg. On the way Morokoane and
Majafi
conversed together, which prompted De Ru to ask Morokoane whether he
would like to make a statement to a magistrate. He replied that
he was prepared
to do so,
and De Ru made the necessary arrangements by radio for a magistrate to be
available. Arrived at Sasolburg, De Ru drove straight to
the magistrates' court
and handed over Morokoane to Mr Holtzhausen, the magistrate. Later De Ru
received a document from Holtzhausen
and lodged Morokoane in a single cell at
the Sasolburg police station. He said in his evidence that when he took
Morokoane to the
magistrate Morokoane had no injuries. His condition was exactly
the same as it had been when he received him. On the following day
they returned
to Kroonstad where the pointing out resumed. When this was finished he read to
Morokoane the notes he had made of the
pointing out. Morokoane was satisfied
with the notes and appended his signature on each
14
page. De Ru delivered Morokoane and the document
he had received from Holtzhausen to Capt Marx of the c I D unit at Kroonstad. He
did not see Morokoane again. The defence disputed that the statement to
Holtzhausen was made freely and voluntarily and a trial-within-a-trial
was held.
Morokoane alleged that he was assaulted in the C I D offices at Kroonstad during
the early evening of 30 August and by
this means was forced to agree to accept
as his own the account given to him by a police captain and to repeat it in a
statement.
The evidence of the policemen who gave evidence for the State was
that Morokoane was taken straight to Sasolburg when the pointing
out was
abandoned on 30th August, and that there was no detour to Kroonstad. VAN COLLER
J said in the judgment of the trial court
that the State witnesses gave their
evidence in a satisfactory manner, and although there were certain
contradictions between them,
these were not material. Morokoane on the other
hand could not be described as a good witness. Parts of his evidence
15
could not be accepted. However, this did not
necessarily mean that his account of the alleged assaults could not reasonably
be true.
The problem for the State lay in the fact that Holtzhausen's evidence
was that when he asked Morokoane whether he had injuries or
bruises of any kind,
the reply was that he had a swelling on the right eye, the result of the police
striking him "om my boetie te
gaan uit-haal", and Holtzhausen noted that his
right eye was slightly swollen. The trial judge said that De Ru's evidence was
that
when he examined Morokoane on the afternoon of 30 August, Morokoane did not
mention that he had been injured and De Ru did not see
fresh injuries on him,
and that unless De Ru made a mistake when he said he did not see the eye injury
(which was improbable) the
injury must have occurred after De Ru examined him.
It was accordingly found that the State had not proved beyond a reasonable doubt
that Morokoane's statement had been voluntarily made and it was ruled to be
inadmissible.
16
It was also the defence contention that although
there was no attack on the admissibility of the pointing-out on 30 August, the
pointing-out
on 31 August was not free and voluntary and was inadmissible in
terms of the judgment in
S v Sheehama
1991(2) SA 860 (A). The trial court
rejected as not reasonably true the evidence given by Morokoane that he believed
that if he did
not co-operate on 31 August he would be assaulted, or that a
police captain had told him that he had no choice but to continue with
the
pointing out. It found that the State had proved beyond reasonable doubt that
the pointing out on 31 August was voluntary and
that there was no improper
influence.
This decision was the target of the appellant's main attack on the
convictions for murder. I do not find it necessary to consider
the detailed
submissions made by Morokoane's counsel in this regard. I shall assume, without
deciding, that the evidence as to the
pointing out on 31 August was wrongly
admitted. The question then is
17
whether on the other, admissible, evidence,
Morokoane's guilt was proved beyond a reasonable doubt.
In the course of the evidence given in his own defence Morokoane said that he
had once lived on the farm Fairfield but he was not
there at the beginning of
February 1990. He did not enter the house at Fairfield and he did not steal the
revolver exh 1. In June
1990 he was living on the farm Malana. He did not enter
Lategan's house or steal the firearm exh 4. He denied that he participated
in
the robbery and murder of the three hawkers.
Morokoane acknowledged that on 29 August he was taken by the police to
Mariba, but said that at no time before Ntaku was killed did
he get out of the
vehicle. He denied that the police dug out a firearm in his presence or that he
pointed out the place. According
to him, Piater had already shown him a firearm
similar to exh 1 in his office earlier that day. In giving the credibility
findings
of the trial court, VAN COLLER J said that Piater
18
was a good witness, who was corroborated by
Semela in regard to the finding of exh 1. It was beyond question that the
revolver had
been stolen from Myburgh and there was no apparent way in which
Piater could have acquired earlier possession of it, or why he should
have
wished to falsely implicate Morokoane by evidence that the firearm was found at
the latter's room.
The accused, the trial court found, was a weak witness. He frequently tried
to evade questions. His explanation in regard to the reasons
which he said the
police gave him for going on the pointing-out operation on 31 August could not
be accepted. His evidence differed
in various respects from what was put by his
counsel to State witnesses. He contradicted himself. The trial court had no
hesitation
in rejecting Morokoane's evidence regarding the revolver, exh 1.
It is possible to construct the outline of a scenario which is consistent
with all the proved facts.
19
At some time during Saturday 23 June 1990, and
probably on or in the vicinity of the Kroonstad-Steynsrus road, the Toyota
bakkie was
hijacked. It was driven with its contents and its three occupants
(Mguni, Mokoena and the young Qhubu) to the murasie. There they
were made to
stand facing the wall and were murdered with gunshot wounds in the back of the
head and the back, shots being fired
from two firearms. The gunmen then drove
off in the bakkie, but when driven at speed round a sharp bend in the Kransdrif
road, it
went out of control, left the road and rolled at least once. The
hijackers selected the groceries which they wanted and left the
rest (e.g.
bottles of vaseline, noted by du Plessis). They tried to set fire to the vehicle
and the abandoned contents, and somehow
carried away the remaining
groceries.
The appellant's counsel disputed that on the evidence it was the
only reasonable inference that Morokoane was one of the gunmen. He
said that the
only evidence
20
evidence linking Morokoane to the murders was his
possession of exh 1. He pointed to the long interval between the 23 June 1990
and
Morokoane's pointing out of the revolver on 29 August. The suggestion was
that Morokoane might have acquired the revolver after 23
June. There is nothing
to support the suggestion. Counsel sought to rely on something which Morokoane
said under cross-examination,
namely, that at the first interview with Plater in
Kroonstad on 29 August, Thys Makoena, the police informer, had said that he had
borrowed the firearm from Morokoane. It was submitted that it appeared from this
that exh 1 was at times in the possession of persons
other than Morokoane. But
in fact Morokoane denied all knowledge of the revolver and this statement, if it
was made by Thys Makoena,
cannot help him. Then it was suggested that the
brother might have had access to the hiding place of exh 1. This was
theoretically
possible, but there was no evidence to support it. The
probabilities are against it. Oupa Morokoane himself had a
21
revolver (exh 4) which could fire bullets of the
same calibre as exh 1, and both revolvers were fired at the murasie on 23 June
1990.
There is no merit in the appeal against the conviction and it falls to
be dismissed.
I turn now to the apeal against sentence.
Under the new regime in regard
to the death sentence which was introduced by Act 107 of 1990, it is the duty of
this court to make
findings as to the existence of mitigating and aggravating
factors and then to consider in the light of those findings whether a
sentence
of death was the proper sentence.
Counsel for Morokoane submitted that there were a number of mitigating
factors.
The first was Morokoane's clean record, which, it was said, indicates that he
did not have a propensity for violence or crime. The
force of the submission is
diluted by the consideration that although no previous
22
convictions were proved at the trial, this was
not a case of a single fall from grace after what had theretofore been a
blameless
life. The convictions in this case on count 1 (theft of exh 1 from
Myburgh in early February 1990), and on counts 2 and 3 (rape and
robbery on 17
February 1990, in the course which a shot was fired from exh 1) show that
Morokoane had before the hijacking already
embarked upon a course of criminal
conduct.
Then it was submitted that since the trial court did not make a
finding on the extent of Morokoane's participation, this court cannot
find that
he had more than
dolus eventualis
. There is no problem in this regard.
The fact is that Morokoane fired five of the bullets which were collected at the
murasie. What
was done to the three hawkers was execution by firing squad.
Unquestionably the gunmen had a direct intention to kill and so to eliminate
those who could bear witness against them.
The third factor which is said to be
23
mitigating was that the minimum force necessary
was applied to the victims, indicating that Morokoane is not an unreformable man
of
violence. The point about minimum force is difficult to grasp when what was
done was to destroy the brains of the victims, and the
conclusion is a
non
sequitur
.
In my opinion there are no factors present which would serve to mitigate the
murders or punishment which they call for.
The aggravating factors are obvious. The executions which followed the
hijacking were part of a cold, calculated, ruthless scheme.
Morokoane had the
direct intention to kill. The object of the killing, it is clear, was to
eliminate witnesses. There must have been
severe psychic trauma to the helpless
victims who must have had at least a foreboding that they were being driven to
the slaughter.
There can be no doubt in my opinion that the
24
death sentence in this case is the proper
sentence. The facts show Morokoane to be a man without compassion or feelings of
remorse,
and indifferent to the suffering of his victims, two of whom were
young. The possibility of reformation would seem to be remote.
The case is one
which cries out for retribution and the ultimate deterrent.
The appeal against the convictions, and sentences are dismissed. The
sentences of death are confirmed.
H C NICHOLAS A J A
E M GROSSKOPF J A
F H GROSSKOPF J A Concur.