Brief Summary

Criminal Law — Murder — Conviction and sentencing of appellants for murder and robbery — Appellants convicted of murdering Louwrens and Anna Vorster during a robbery on their farm — Evidence included eyewitness testimony and forensic links — Alibi defenses rejected as false — Appellants' admissions regarding their presence at the crime scene used against them — Court upheld convictions and death sentences as justified given the overwhelming evidence of guilt.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an appeal to the Supreme Court of Appeal against convictions and sentences arising from a farm murder and robbery. The appellants were Mlungisi David Lange (first appellant), Mahlomola Enoch Mokhoabane (second appellant), and Abraham Mosanyane Moshapane (third appellant). The respondent was the State.

The matter originated as a criminal trial before Jennett J (sitting with assessors) in the Eastern Cape Division, Grahamstown, where the three appellants were convicted of robbery with aggravating circumstances and, in addition, the first and second appellants were convicted of murder (with the second appellant convicted of the murder of Mr Vorster only). On the robbery count each appellant received 10 years’ imprisonment, and on the relevant murder counts the first and second appellants received death sentences (as did the third appellant on the murder count(s) applicable to him as convicted). The appeal to the SCA proceeded in terms of section 316A of the Criminal Procedure Act 51 of 1977 against the murder convictions and sentences, and (by leave of the trial court) against the robbery convictions (but not against the robbery sentences).

The general subject-matter of the dispute concerned whether the trial court correctly convicted the appellants on the murder and robbery counts, primarily on the strength of a key State witness (Mathimba) and corroborative evidence, and what the proper consequence was for the death sentences in light of the fact that the death penalty had been declared unconstitutional.

2. Material Facts

Mr Louwrens Vorster farmed on Dwaalfontein near Burgersdorp, and Mrs Anna Fransina Vorster operated a small shop, the Witkop Boerewinkel, some distance away. On Thursday 19 September 1991, Mrs Vorster left in the morning in a Toyota pick-up truck and was seen returning to the farm later that afternoon.

That evening, at about 18h30, a local farmer, Mr Peyper, saw a vehicle approaching at speed with its lights on. Approximately 500 metres ahead of him, the vehicle left the road and overturned. When he stopped, two men ran from the bushes and escaped. The overturned vehicle was identified as the Vorsters’ Toyota pick-up. The next morning, 20 September 1991, Mrs Vorster’s body was discovered near the farmstead. She had been shot in the back of the head and in the abdomen with a Springfield .22 rifle belonging to Mr Vorster, which was found in the house. Her hands had been tied above her head with plastic-coated wire.

Later that morning Mr Vorster’s body was found submerged in a farm dam, weighted down with heavy stones. The immediate cause of death was found to be strangulation, with plastic-coated wire tightly applied around his neck. There were also multiple wounds to his chest and abrasions on his forehead. The post-mortem findings supported that he had already been dead when his body was placed or dragged into the dam.

The three appellants were arrested in Aliwal North on Sunday 22 September 1991. The State’s main witness was Bhambushe Mathimba, who testified that on 17 September 1991 the first appellant, accompanied by the third appellant, asked him to transport them to Dwaalfontein, allegedly to fetch the third appellant’s clothing. They agreed on a fee of R60. Around midday the first and third appellants left with Mathimba in a truck, collected the second appellant along the way, and proceeded in accordance with the third appellant’s directions. At a point before reaching the farm, Mathimba was told to stop and wait because “his boss” did not want vehicles coming onto the farm. After waiting (during which he fell asleep), the three appellants returned carrying a bag with goods later identified as belonging to the deceased, and a video machine. Mathimba returned to Aliwal North with the second appellant, while the first and third appellants were to follow later.

The court also relied on corroborative evidence. A hair from Mrs Vorster’s head was forensically linked to a pair of swimming trunks (although the trial court did not rely on this because of uncertainty as to whether they belonged to the first or third appellant). In addition, the second appellant, while detained, drew attention to himself on 18 October 1991 by swallowing glass. When examined by Dr Groenewald later that day, he gave a spontaneous explanation recorded to the effect that the “oubaas en oumies wat hulle doodgemaak het” were haunting him, and that he ate the mirror glass to quiet pain.

The first and second appellants testified and relied on alibis; the third appellant did not testify. The trial court rejected the alibis and found the first and second appellants to be mendacious. In earlier section 119 proceedings, the third appellant had claimed that blood on a jacket in his possession was his own, but it was established to be of a different and relatively rare blood grouping that matched Mrs Vorster’s.

3. Legal Issues

The central legal questions were whether the trial court was correct to convict the appellants on the murder counts (and, insofar as leave was granted, on the robbery conviction), given the challenges raised to the reliability of the State’s evidence and the appellants’ versions. A major focus was the treatment of Mathimba’s evidence, which was attacked on the basis that he was said to be an accomplice and a single witness, and whether his evidence was sufficiently credible and corroborated to sustain the convictions.

A further issue concerned the evidential use of the second appellant’s statement to Dr Groenewald, including whether it was unfair to admit against him a spontaneous inculpatory statement made to a district surgeon. The appeal also touched on admissions made by the first and second appellants to a police constable about being occupants of the overturned vehicle, although the SCA regarded it unnecessary to decide the correctness of a prosecutorial concession that those admissions should be disregarded.

Finally, the appeal raised a sentencing consequence: since the death sentence had been declared unconstitutional, the question was what order should follow regarding the death sentences imposed for murder.

The dispute therefore involved a mix of factual assessment (credibility of witnesses; rejection of alibis; inferential evaluation of corroboration), application of legal principles to fact (single-witness/accomplice caution; admissibility and weight of statements), and a legal consequence flowing from the unconstitutionality of the death penalty.

4. Court’s Reasoning

The SCA accepted that the trial court had approached Mathimba’s evidence on the basis that he was, at least potentially, an accomplice and a single witness, and had evaluated his testimony accordingly. The appellate court noted that the trial court had described Mathimba as “a very good witness”, and, despite criticisms advanced on appeal, the criticisms ultimately did not displace that credibility assessment. The SCA emphasised that some of the attacks on Mathimba’s motives (such as that he falsely implicated the appellants to divert attention from his own involvement, or out of revenge because he had been incarcerated) were not persuasive on the record as summarised in the judgment, particularly because the link between Mathimba and the appellants’ presence at Dwaalfontein was reinforced by the appellants’ own conduct when later confronted.

The court considered that Mathimba’s evidence strongly supported the conclusion that the appellants were present on the farm at the relevant time. It further held that Mathimba was not the only evidential basis implicating them. The forensic hair evidence (even though not relied on by the trial court due to uncertainty about ownership of the garment) was treated as powerful corroboration of Mathimba’s account in the sense that, whichever appellant owned the swimming trunks, it tended to place at least one of them in contact with Mrs Vorster.

The SCA also dealt with the second appellant’s statement to Dr Groenewald after the glass-swallowing incident. An argument was raised that it would be unfair to use this statement because a district surgeon’s role is not to gather evidence for the State. The court rejected that submission on the basis that Dr Groenewald had not purported to gather evidence; the statement was described as a spontaneous response to a legitimate question about what the detainee had done. The SCA concluded that there were no proper grounds to exclude it, and that it both corroborated Mathimba’s evidence and implicated the second appellant.

As to the appellants’ defences, the SCA recorded that the first and second appellants’ alibis were rejected, and that counsel effectively conceded the correctness of that rejection on appeal. The appellate court endorsed the trial court’s conclusion that the first and second appellants were demonstrably untruthful witnesses. It also took into account that the third appellant had been shown to be untruthful in the section 119 proceedings regarding the blood on his jacket, and that his election not to testify, in the context of what the court regarded as compelling evidence, was treated as confirming the State’s case against him.

The trial court had additionally relied on admissions made by the first and second appellants to Constable September about being passengers in the overturned vehicle. The SCA recorded that there was no evidence suggesting police trickery or collaboration to procure those admissions in the murder investigation context, and that the murder investigation team only learnt of the statements later. However, the State conceded (after some prompting) that the statements should be disregarded because the appellants’ attention had not been directed to the full implications of the admissions in relation to the murders. The SCA regarded it unnecessary to decide whether that concession was properly made, because, in its view, the case against the appellants was conclusive even without that evidence.

On sentence, the SCA accepted that, because the death penalty had been declared unconstitutional, the appeals against the death sentences had to succeed. It referred to the current practice of remitting such matters to the trial court for reconsideration of sentence, and adopted that course.

5. Outcome and Relief

The Supreme Court of Appeal dismissed the appeals against conviction for all three appellants. The convictions for murder (as applicable to each appellant) and the convictions relating to robbery therefore remained intact. The sentences of ten years’ imprisonment on the robbery count were unaffected, as there was no appeal against those sentences.

The appeals against the death sentences imposed on the murder counts succeeded. The SCA set aside the death sentences and remitted the matter to the trial court for the imposition of competent sentences on the murder convictions. The judgment as provided does not reflect a separate costs order.

Cases Cited

No earlier cases are expressly cited by name and law report citation in the text of the judgment provided.

Legislation Cited

Criminal Procedure Act 51 of 1977 (section 316A; section 119).

Rules of Court Cited

No rules of court are expressly cited in the text of the judgment provided.

Held

The SCA held that the trial court was correct to convict the appellants on the relevant counts, accepting the credibility of the principal State witness as evaluated by the trial court and relying on corroborative evidence and the rejection of the appellants’ versions. It held further that the death sentences could not stand because the death penalty had been declared unconstitutional, and that the appropriate course was to remit the matter for resentencing on the murder counts.

LEGAL PRINCIPLES

The judgment applies the principle that the evidence of a witness who may be characterised as an accomplice and/or a single witness must be approached with caution, but that such evidence can sustain a conviction where, on an overall evaluation, the witness is credible and materially corroborated.

It also applies the principle that a spontaneous inculpatory statement made by an accused to a medical practitioner in the ordinary course of examination, in response to a legitimate inquiry into the accused’s condition or conduct, is not excluded merely because the practitioner is a district surgeon; the key consideration in the judgment’s reasoning is that the statement was not improperly elicited and was not the product of an attempt by the practitioner to gather evidence for the prosecution.

The judgment further reflects the approach that demonstrably false alibi evidence and proven untruthfulness on material aspects may properly be taken into account in assessing guilt, and that an accused’s election not to testify may, in context, leave the State’s case unrebutted where there is otherwise compelling evidence.

Finally, it applies the remedial consequence that where a death sentence has been rendered invalid because the death penalty is unconstitutional, the appellate court sets aside the death sentence and commonly remits the matter to the trial court for imposition of a lawful sentence on the murder conviction(s).

S v Lange and Others (406/95) [1997] ZASCA 74 (19 September 1997)