Mpumelelo Mbobo v The Director of Public Prosecutions (C of A (CRI) 4 of 2013) [2013] LSCA 34 (18 October 2013)

IN THE COURT OF APPEAL OF LESOTHO Held at Maseru In the matter between:- C OF A (CRI) NO.4/2013 MPUMELELO MBOBO APPELLANT and THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT CORAM: HOWIE, JA FARLAM, JA THRING, JA HEARD : 11 OCTOBER, 2013 18 OCTOBER, 2013 SUMMARY Occupants of stationary motor vehicle shot, four of them fatally – Central issue at trial the identity of the killer – Identification by three eyewitnesses – Identity parade held-Defence an alibi – Sentence of imprisonment for life. JUDGMENT Thring, JA: [1] In the trial Court a quo the appellant was charged with four counts of murder and two of attempted murder. His plea of not guilty notwithstanding, he was convicted as charged on all six counts and sentenced to imprisonment for life. He now appeals against both his conviction and sentence. [2] At some time between about 10 am and noon on Sunday, 13 October, 2002 and at Morifi, in the district of Mohale’s Hoek, a minibus taxi was loading passengers. Already on board were the driver, the conductor and four passengers. Just as the taxi was pulling off, a man approached it on foot, held up his hand and shouted for the vehicle to stop, as he wished to board it. The taxi stopped. The man then produced a handgun and proceeded to shoot all six occupants of the taxi, four of whom succumbed to their wounds, whilst the other two survived. [3] At the trial of the appellant, which took place after he had been extradited from South Africa, the central issue was the identity of the man who had fired the shots. An identity parade was held at Sterkspruit, Eastern Cape by members of the Lesotho Police Force in collaboration with the South African Police Force on 24 December, 2003, some 14 months after the incident, at which the appellant was present. He was positively identified by three witnesses, two of whom testified for the prosecution; the third was not called. [4] The first identifying eyewitness was Tseliso Bolibe (PW1). He was 33 years old at the time. He was the complainant in charge 6, attempted murder. He was sitting in the front passenger seat of the taxi. He observed the man who later fired the shots approaching the vehicle from the other side of a river. This is apparently the Makhaleng River, a tributary of the Orange. At that point the Makhaleng forms the border between Lesotho and South Africa. He says that he saw this man approaching over a distance of some 200 to 300 metres, which it took him some four minutes to cover. When the man was about seven metres away he stopped the taxi. Shortly thereafter the witness heard shots being fired by this man. After firing the shots the man returned the way he had come. The witness says that he did not know the man. He described him as light in complexion and physically fit. He was wearing an off-white cap, a light blue shirt, off-white trousers and black-and-white training shoes. At the identity parade the witness positively identified the appellant as the culprit. He confirmed this identification in his evidence. He says that the incident took place at about noon. The sun was shining, but it was raining at the same time. [5] The second identifying eyewitness was a young man, Khotso Lerotholi (PW2), the complainant in charge 5, attempted murder. He was also a passenger in the taxi. He says that he saw the man who later fired the shots approaching from the direction of the river. The taxi stopped to wait for him. The witness alighted. He then saw the man produce a firearm with which he shot the witness in the chest. The witness ran away. He did not know the appellant, but he was able to identify him as the culprit at the subsequent identity parade. At the time of the incident he says that the appellant was wearing a light or sky-blue shirt [6] Another important identifying eyewitness was ‘Maretsepile Motlatsi (PW7). Her parents were both shot dead in the taxi. She was present near the vehicle when they were shot. She says that she saw the man who later fired the shots approaching the taxi from the direction of the river. She had a short conversation with him. He asked her if the taxi was public transport and she answered him in the affirmative. She heard a noise and, turning round, saw the appellant coming round from the front of the vehicle holding a firearm in his hand. She says that he was only about two-and-a-half metres away. She saw the appellant’s face. She says that the appellant was wearing a sky-blue shirt and a cap. According to the witness, the appellant pointed the firearm at the taxi and fired a shot. The witness then ran away. The appellant was a complete stranger to her. She did not attend the identity parade. [7] Puseletso Hlothoana (PW6) knew the appellant before the shooting incident. She deposed to a conversation which she had with him four days before the incident, on 9 October, 2002 at or near Zastron in the Free State. He complained to the witness and others that his property had been damaged on his farm and five of his goats and some sofas and bags of dagga had gone missing. He blamed people from Lesotho for these losses, and added that this had happened in spite of his allowing them to gather wood and vegetables from his farm, which is close to or on the international border across from Morifi. He also said, according to the witness, that when he “reached Lesotho doing whatever I could do people would say Mbobo, Mbobo, Mbobo” (his surname). The witness understood this latter statement to be a threat. [8] On 13 October, 2002 Hlothoana (PW6) says she was on the bank of the Makhaleng River picking vegetables near Morifi. She and another girl then went to the village. On the way there, she looked back and saw a man following them. She did not identify him. Just as they reached Morifi she heard shots and shortly thereafter the witness Lerotholi (PW2) came running towards them, covered with blood. They ran to a vehicle and found various persons there who had been shot. She also saw a person departing form the scene. He disappeared across the river onto a neighbouring farm where he went towards a motor vehicle. This was apparently one of two adjacent farms which are more or less opposite Morifi on the Free State side of the Makhaleng River: one belongs to a brother or uncle of the appellant, one Bethuel Mbobo, and the other to the appellant. The witness says that the shooting incident occurred opposite the appellant’s farm rather than Bethuel Mbobo’s, and that the farm to which the man went after the shooting incident was the appellant’s and not Bethuel Mbobo’s. [9] The Crown also called some six other witnesses, all members of the Lesotho Police Force, who gave evidence of a more or less formal nature regarding the scene of the crime, photographs, and the holding of the identify parade on 24 December, 2003. It is not necessary to set out their evidence here. [10] After the prosecution case had been closed an unsuccessful application was made for the discharge of the appellant. [11] The appellant then gave evidence in his defence. He said that he was resident at Sterkspruit, in the Eastern Cape, where he had two supermarkets and two café’s, but that he also had a farm in the district of Zastron in the Free State. This farm is on or near the Makhaleng River and it seems to be called Kornetspruit. There are also other farms nearby. The distance from his farm to Morifi is estimated by the appellant at approximately 5 kilometres. He says that on 13 October, 2002 he was at Sterkspruit, where he had spent the previous night with his wife. He went to his supermarket. During the course of the day (he does not indicate the time) he received a report that on the previous day, 12 October, 2002, three men had crossed the Makhaleng River from the Lesotho side and had stolen some goats, three of which they had slaughtered. Although he does not say so in so many words, these goats appear to have been his property, and to have been stolen from his farm. [12] The appellant says that he then asked one Thenjiwe Nkane to allow him to use her telephone. He telephoned the South African Police Service at Zastron and spoke to a man to whom the appellant refers in his evidence simply as “Stapelberg”. Subsequently it transpired that this was a Lt-Col. Stapelberg, who was then the station commander at Zastron. He and the appellant appear to know each other. The appellant proceeded to report the loss of his goats to Lt-Col. Stapelberg. The latter said to him that he had just received a telephonic report from the Mohale’s Hoek Police Station about a shooting incident at Morifi, in which the appellant was a suspect. This was the first the appellant heard of it. Later that day, he went to see Lt- Col. Stapelberg at Zastron. [13] He was subsequently arrested and extradited to Lesotho and he confirms that he attended an identity parade at Sterkspruit on 24 December, 2003 organised by the Lesotho Police, where he was positively identified by three persons. He denies that on 13 October, 2002 he crossed the river to Morifi, or that he was at the scene of the shooting incident on that day. His alibi is that he was at Sterkspruit on that day. [14] Lt-Col. Stapelberg was called as a witness by the appellant. As I have said, in October, 2002 he was the station commander, South African Police Service, Zastron. He confirmed that he knows the appellant. He said that on 13 October, 2002 he received a telephone call from Lesotho. He was informed that there had been a shooting incident near Morifi, that four persons had been killed, and that the alleged culprit was the appellant, who had allegedly fled to the Free State. He says that thereafter he telephoned the appellant on the latter’s cellphone number and asked him whether he knew anything about the incident. He denied that he knew anything about it, and said that he (the appellant) was then in Sterkspruit. The witness asked the appellant to come and see him. Later that day, at about 4 pm they met at Zastron, and the appellant again denied that he knew anything about the shooting incident. [15] The Crown’s case against the appellant is a formidable one. He was positively identified as the culprit by two eyewitnesses at an identity parade, viz. Bolibe (PW1) and Lerotholi (PW2), albeit only 14 months after the event. A third prosecution eyewitness Motlatsi (PW7) also placed the appellant on the scene, pointing a firearm. The description of the clothing worn by the appellant given by these three witnesses matches. The shooting incident took place in broad daylight and the identifying witnesses, especially Bolibe (PW1) and Lerotholi (PW2) appear to have had both opportunity and time to observe the culprit. The appellant had a motive to feel aggrieved at the inhabitants of Morifi and vicinity: on his own version, on the very day of the shooting incident he had received a report that three men had crossed the river from Lesotho on the previous day, had stolen some goats from his farm and had slaughtered three of them. There is also the evidence of Hlothoana (PW6), although it is denied by the appellant, that four days before the shooting incident the appellant had expressed his dissatisfaction about the theft of his goats and other property from his farm, which he had laid at the door of “you people from Lesotho”, and he had uttered a veiled threat against the latter. Also to be placed in the scale against the appellant is the uncontroverted evidence that the man who fired the shots was observed approaching the scene from the river, from the direction of the appellant’s farm, and was seen to return to the appellant’s “compound” after the incident. [16] Against this stands only the ipse dixit of the appellant, in the form of his alibi. There was no onus on the appellant but if, indeed, he was at Sterkspruit at the relevant time, one would expect him to have been able to call some evidence to corroborate this, for example, the woman, Thenjiwe Nkane, to whom the appellant says he spoke that day next door to his supermarket at Sterkspruit to ask her if he could use her telephone to contact Lt-Col. Stapelberg, or the wife of the appellant, with whom he says that he spent the night of 12-13 October, 2002, and who could have been expected to be able to vouch for his whereabouts on at least part of the fateful morning. In addition, there ought surely to have been someone who saw him that morning at his supermarket, who could have corroborated his presence there, such as the employee to whom he says that he spoke, and who made the report to him about the theft and slaughter of his goats. Yet no such supporting evidence was placed before the Court a quo. [17] The evidence of Lt-Col. Stapelberg does not really advance the appellant’s case. In the first place, he does not say how long it was after he had received the report of the shooting incident that he spoke to the appellant on the latter’s cellphone number: consequently, the appellant’s evidence that Lt-Col. Stapelberg said to him that is was only two minutes stands unconfirmed by Lt-Col. Stapelberg. In fact, it is a striking fact that, apart from Lt-Col. Stapelberg’s estimate of the time of their subsequent meeting as being about 4 pm, neither he nor the appellant made any effort in their evidence to put a time to any of the events of 13 October, 2002 which are described by them. Secondly, Lt-Col. Stapelberg conceded in his evidence that he was unable to say, of his own knowledge, where the appellant was when he spoke to him on the cellphone: it is obvious that he could have been anywhere. So, again, the appellant’s evidence that he was then at Sterkspruit stands alone and uncorroborated. [18] In a careful judgment the trial court (Chaka-Makhooane, J sitting with an assessor) criticized the identity parade because it had been held only a long time after the event, because photographs of the parade (which have not been shown to this Court) revealed that the other persons on the parade were dissimilar to the appellant in appearance and dress, and because the Court a quo found it difficult to accept the police evidence that the appellant, having been invited to do so, would have refused to have his legal representative present, or to change his position on the parade between witnesses. The trial court concluded that the identity parade failed in these respects to comply with the applicable rules for such parades, that it was consequently not fair to the appellant, and that the Court should not or could not “attach proper weight to it”. Whether or not these conclusions were correct I need not decide for the purposes of this appeal: in the appellant’s favour I shall assume, without deciding, that they were. [19] The trial court nevertheless proceeded to convict the appellant on the strength mainly of his identification by the eyewitnesses. In particular it made strongly positive findings of credibility and reliability in favour of Bolibe (PW1), Lerotholi (PW2) and Motlatsi (PW7). Of these witnesses the learned Judge a quo said in her judgment: “It is my opinion that from the evidence, the two (2) witnesses PW2 and PW7 were able to observe the accused and saw him long enough to be able to identify him as the shooter on that day… PW2 has no reason to forget the face of someone who shot him at such close range, on a sunny day, around 10h00-11h00, with nothing obstructing his view. In the same breath, PW7 has no reason to forget or even mistake the person who shot her parents for someone else. Two (2) to three (3) paces is a very short distance such that there is no reason not to believe her testimony when she said she had a good look at the accused. I am, therefore, persuaded by the evidence to accept that the identification of the accused by PW2 and PW7 is also reliably corroborated.” As to Bolibe (PW1), the Court a quo found: “There was no shaking this witness under cross- examination. He stood firm and insisted that he would never forget the person he saw, for the reason that his face was imprinted in his mind since that day. In my opinion PW1 saw the accused enough to identify him any other time after that day. There is no reason to doubt that he had ample time to observe him walk up the path from the river until he reached the taxi. Nothing obstructed his view on that sunny day, in the middle of the day. No other event interrupted his observation of the accused until he reached the taxi. There is also no reason to disbelieve that he saw how he was dressed, his complexion and weight since he actually saw him up to the time he arrived at the taxi … I am satisfied that the identification of the accused by PW1 is reliably corroborated.” As to the demeanour of these three eyewitnesses, the Court a quo said:- “The eyewitnesses, that is PW1, PW2 and PW7 created a good impression on the court. Their demeanour was confident and forthright and they remained unshaken during cross-examination.” [20] As for the evidence of the appellant, the Court a quo made unfavourable findings of credibility about him. It found him to a lying witness as regards his evidence that it was he who had telephoned Lt-Col. Stapelberg on the day in question, and not the other way round, as the latter testified. The appellant’s evidence that the Crown witnesses, or some of them, had conspired against him was rejected as false, as was his alibi defence. [21] I am unable to find fault with any of these credibility findings. The evidence of the prosecution witnesses concerned reads well and convincingly, whilst that of the appellant does not. He seems to have been an evasive witness who frequently feigned incomprehension of questions which he found it awkward to answer. [22] The risks of error in identification, even by an honest witness, are well-known: see S v Mthetwa, 1972 (3) SA 766 (A) at 768, per Holmes, JA. But the trial Court appears to have been well aware of them, and to have approached the evidence of identification with the requisite caution: hence its reluctance to place any or much weight on the identity parade. There were three eyewitnesses who all identified the same man as the culprit: the appellant. They corroborated each other as to his identity and as to a number of identifying features, such as his clothing and his conduct. Moreover, the Court a quo found several other corroboratory features in the evidence, such as the direction from which the culprit approached the scene (from the general direction of the appellant’s farm on the South African side of the river), and in which he returned after the incident, the fact that he had a motive to seek revenge for his losses, and that he had uttered a veiled threat a few days before the incident. [23] One of the principles which should guide an appellate court in an appeal purely upon fact, such as this is, is that where there has been no misdirection on fact by the trial Judge, the presumption is that his conclusion is correct: the appellate court will only reverse it where it is convinced that it is wrong: see R v Dhlumayo and Another, 1948 (2) SA 677 (AD) at 705- 706, approved by this Court in, inter alia, Pelea v R., LAC (2000-2004) 223 at 323 C-D. [24] In my view the conviction of the appellant is amply well- founded in the evidence, and the appeal against his conviction cannot succeed in the absence of any misdirection on the part of the trial Court. [25] As regards sentence, the trial Court found that there were extenuating circumstances present in the form of the prior thefts and damage to the appellant’s property. He was nevertheless sentenced to imprisonment for life on each of the four counts of murder and to six years’ imprisonment on each of the two counts of attempted murder. All the sentences were ordered to be served concurrently. [26] The appellant is 69 years of age, has no previous convictions and suffers from diabetes and gout. These are undoubtedly mitigating factors. [27] Nevertheless, the crimes of which he is guilty are particularly heinous. The shooting was premeditated and committed in cold blood. The six victims were all complete strangers to the appellant, none of whom had ever done him any harm. He simply decided to avenge his losses by taking the lives of a number of innocent people who were going about their ordinary daily business. With cold, calculated intent he put his victims off their guard by creating the impression that he wished to board the taxi as a fellow-passenger. Then, without warning, he produced a firearm and opened fire on them indiscriminately. After murdering four people and injuring another two he then left the scene and returned whence he had come, to his farm. There was nothing haphazard, spontaneous or impulsive about his modus operandi. The trial Court labelled his actions “brutal”. These crimes undoubtedly call out for a very heavy sentence. [28] In sentencing the appellant the Court a quo took all the relevant factors into proper consideration, and it did not misdirect itself in any way. In my view the sentence is appropriate in the circumstances. This being so, there is no acceptable basis on which this Court could interfere with it. [29] In the result, the appeal against both conviction and sentence is dismissed. _________________________ W. G. THRING JUSTICE OF APPEAL I agree _________________________ C. T. HOWIE JUSTICE OF APPEAL I agree ______________________ I. G. FARLAM JUSTICE OF APPEAL For Appellant : C. T. Lephuthing For Respondent: T. Mokuku