South Africa: Supreme Court of Appeal

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

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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

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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

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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,

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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.

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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

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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

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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.

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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

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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