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1988
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[1988] ZASCA 162
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S v Dondashe and Others (363/87) [1988] ZASCA 162 (30 November 1988)
363/87
N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
NTSIKELELO DONDASH
E First
Appellant
MLUNGISI BLAAUW
Second Appellant
OUPA MFOBO
Third
Appellent
NKUNDLA KLA
AS Fourth Appellant
and
THE STATE
Respondent
CORAM
: RABIE ACJ, SMALBERGER, et MILNE, JJA
IIEARD
: 18 November 1988
DELIVERED
: 30 November 1988
JUDGMENT
SMALBERGER, JA :-
The four appellants, together with two other accused, Hotnot Blaauw and
Daniel Jonas, were arraigned before LUDORF, J, and two assessors
in the
South
/2
2 Eastern Cape Local Division on a charge of murdering one
Sandile Alfred Am (the deceased) on 14 September 1985 at Tlhaka Street,
Kwa
Nobuhle, Uitenhage. They initially all pleaded not guilty. Hotnot Blaauw and
Daniel Jonas were discharged at the end of the State
case for lack of evidence
against them. The four appellants were convicted at the conclusion of the trial
of murder with extenuating
circumstances (in the case of the fourth appellant,
on the strength of his having changed his plea during the State case to one of
guilty). The first, third and fourth appellants were each sentenced to 18 years
imprisonment; the second appellant was sentenced
to 15 years imprisonment. With
leave of the trial judge the first, second and third appellants now appeal
agalnst both their convictions
and sentences; the fourth appellant appeals
against his sentence only.
/3
3 In order properly to appreciate the issues which arise in
the present appeal it is necessary to outline briefly the events which
occurred
at the trial. The first witness for the State was the district surgeon who
conducted the post-mortem examination on the
body of the deceased. He testified
that the body was almost totally charred, and that the cause of death was
burning. He was unable
to establish any other cause of death, but because of the
condition of the body could not entirely rule out other possible,
unascertainable
causes of death. He was, however, adamant that no bones in the
deceased's body had been fractured. The next witness f or the State
was a 14
year old youth who claimed to have witnessed the killing of a person on 14
September 1985 by the so-called "necklace" method
- which involves placing a
tyre around the neck of the unfortunate victim, dousing it with petrol or a
similar inflammable substance,
and setting it alight. He
/4
4
purported to implicate certain of the appellants in the killing. In giving
evidence he deviated in material respects from his previous
police statement and
was completely discredited under cross-examination, so much so that the trial
court eventually found his evidence
to be "worthless" and ignored it in toto for
the purposes of its judgment. Evidence was then adduced, in a trial within a
trial,
relating to the contested admissibility of a statement made by the fourth
appellant to Lt Rautenbach of the South African police.
Before the evidence in
respect thereof was concluded, and a ruling given on the statement's
admissibility, the fourth appellant changed
his plea to one of guilty of murder
with extenuating circumstances. A written, signed statement was handed in on his
behalf setting
out the basis on which his plea of guilty was tendered. In view
of this development the State abandoned its attempts to prove the
admissibility
of
/5
5
the fourth appellant's earlier statement.
Counsel for the appellants thereafter proceeded
to
admit the following on their behalf (in terms
of
s 220
of the
Criminal
Procedure Act 51 of 1977
):-
(a) The identity of the deceased as well as the
fact that the body
collected by the police
received no further injuries until the time
the
post-mortem examination was performed
(the admission referred to "the body",
not
to "the deceased").
(b) The correctness of the plan and photographs
(and the keys thereto),
depicting the scene.
of the alleged crime (and which establish
that a
charred body was found in Tshaka
Street in close proximity to where a
tyre,
stones and half a brick with bloodstains on
it were lying).
(c) The admissibility of statements made by the
first, second and third
appellants on 20
September 1985 to three different
magistrates.
The State then closed its case. After a
successful application for the discharge of Hotnot Blaauw
and Daniel Jonas the defence case was closed without any
evidence being led. The trial court then returned a
/6
6 verdict of guilty of murder with extenuating circumstances
in respect of the fourth appellant before hearing argument in relation
to the
other three appellants. It was apparently contended in argument on their behalf
that no nexus had been proved between the
events referred to in their statements
and the death of the deceased. Counsel for the State thereupon informed the
court that he
had been under the impression that the concession as to the
admissibility of their statements had incorporated (albeit impliedly)
an
admission that the statements referred to the killing of the deceased, and
reflected each appellant's version of the events culminating
in the deceased's
death. He thereupon applied for the re-openlng of the State case, which was duly
granted.
The State then called Warrant Officer Oelofse as a witness. He testified that
on the afternoon of 14 September 1985 he went, in response
to certain
information
/7
7
received, to Tshaka Street where he found the charred
body
of the deceased. There was general unrest in the
particular township
at the time, but this was the only
incident involving the burning of a person
reported on that
day, more particularly in Tshaka Street. Had there
been
other reported incidents he would, because of the nature of
his
duties, have been aware therof. He conceded that
there was a possibility that
someone had been burnt and the
body buried without the police having been
informed (as had
happened in isolated previous instances) but
considered
this to be very unlikely. It was apparently the practice
at the
time to leave a body that had been burnt 1 y i n g in
the street for members
of the public to gaze upon,
presumably with a view to intimidating them.
Finally the State called the investigating officer Lt Rautenbach. He
testified to having personally arrested the first, second and
third appellants.
He
/8
8 interviewed them separately after their arrest. He informed
them that they were suspected of having participated in the murder of
the
deceased on 14 September 1985 at Tshaka Street, Kwa Nobuhle. Each of the three
appellants indicated that he understood the charge,
and elected to make a
statement before a magistrate. According to Rautenbach the deceased's identity
book was in the police docket.
In the course of his interview with each
appellant he showed them the deceased's identity book. Each one identified the
deceased
as being the person killed in Tshaka Street on the day in question.
Under cross-examination it came to light that the interviews
with the appellants
had been conducted through an interpreter, the three appellants having spoken
Xhosa. The interpreter was a policeman.
He was not called as a witness. No
reason for the failure to do so is apparent from the record. Rautenbach is not
conversant with
Xhosa - his
/9
9 knowledge of the language extends to no more than a few
words.
The triai court accepted the evidence of both Oelofse and Rautenbach.
On the strength of the latter's evidence it held that the admitted
statements of
the first, second and third appellants related to the events surrounding the
death of the deceased. It held, further,
that the failure to call the
interpreter was no bar to the acceptance of Rautenbach's evidence. It concluded
from the statements
that the first, second and third appellants had each
actively participated in the events giving rise to the deceased's death, and
that each was in law responsible for his death. Extenuating circumstances were
found to be present mainly because of the youth of
each appellant.
Mr Melunsky, who argued the appeal on behalf of the appellants, submitted
that on the assumption that the statements made by the first,
second and third
appellants
/10
10
amounted to confessions (whether to
murder or some lesser
offence on which it would be competent to convict on
a
charge of murder), the requirements of
s 209
of the
Criminal Procedure
Act had
not been satisfied as such
confessions had not been confirmed in a
material respect,
nor was there aliunde evidence of the commission of
the
offence charged. He submitted, further, that it had not
been
established that the events related in each of the
confessions pertained to
those surrounding the death of the
deceased, and that the required nexus
between such
confessions and the death of the deceased had accordingly
not
been proved. He also contended that the trial judge
erred in allowing the
State to re-open its case after
argument had revealed what the shortcomings
in the State
case were, as there was potential prejudice to the
appellants
arising from the possibility that perjured
evidence might be led to cure the
defects in the State
/11
11
case.
I shall deal with the latter contention first. A trial court has a
wide discretion, which must be judicially exercised, to allow the
calling of
evidence after the close of a party's case (
R v Gani
1958(1) SA 102 (A)
at 107-8). When the identity of the deceased was admitted by counsel f or the
appellants at the trial in the terms
set out above (counsel concerned not being
Mr Melunsky) this constituted an admission that the person on whose body the
post-mortem
examination was conducted was the deceased. An admission as to
identity would normally also include an admission that the deceased
was the
person named in the indictment as the person killed. The admission concerning
the admissibility of the statements by the
first, second and third appellants
was made generally. It was not confined to the question of whether the
statements were freely
and voluntarily made, or qualified in any other way.
Relevance is the basic
/12
12
criterion of admissibility. By not
contesting in any way
the admissibility of the three statements, or seeking
to
define or limit the basis on which their admissibility was
conceded, it
is arguable that counsel f or the
appellants, at least by implication,
accepted that the
statements were relevant. They could only have been
so
if they related to the circumstances surrounding the
death of the
deceased, which formed the basis of the
charge against the appellants. They
would not have
been relevant had they referred to a totally
unconnected
incident. The admission conceivably went further than
the
appellants' counsel intended, and this presumably is
the reason why the trial
judge did not hold the first,
second and third appellants bound by its
full
implications. At best for those appellants, however,
counsel for the
State was misled into reasonably believing
that they were conceding that the
statements related to the
killing of the deceased. Thus, when the question of an
/13
13
absence of nexus between the statements
and the killing of
the deceased arose, because counsel for the State
had
laboured under a reasonable misapprehension induced by the
conduct of
the appellants' counsel, the trial judge
understandably granted the State's
application to re-open
its case. There was never any real danger of
the
possibility of perjured evidence being given, and no
suggestion of
this kind was made to either Oelofse or
Rautenbach. All the State did was to
lead evidence which
had been available to it, and which it presumably
would
have led had counsel for the State not been under a
misapprehension
as to the ambit of the admissions made.
The appellants were offered the
opportunity to lead further
evidence after Oelofse and Rautenbach had
testified, but
did not avail themselves of it. No prejudice, in
the
accepted legal sense of that term, was caused to the first,
second and
third appellants by the granting of the
/14
14 application to re-open the State case. I am satisfied, in
all the circumstances, that in granting the application the trial judge
exercised his discretion judicially, and that no grounds exist for interference
with the exercise of such discretion. Regard may
therefore properly be had to
the evidenoe of Oelofse. That of Rautenbach is, however, on a different footing.
We know from his evidence
what he said to the first, second and third
appellants. In the absence of the interpreter's evidence, however, we do not
know whether
what Rautenbach said was correctly conveyed to those appellants,
nor whether their replies were correctly interpreted. It follows
that
Rautenbach's evidence concerning what the three appellants said is hearsay and
inadmissible (
R v Mutche
1946 AD 874).
Because Rautenbach only had, at
best, a smattering of Xhosa it would be dangerous to rely on any impression he
formed from questions
put to, and answers given by, the three
/15
15
appellants. To the extent therefore that it relied upon
anything said by
them to Rautenbach the trial court erred.
The statements made by the first, second and third appellants constitute the
only evidence implicating them in the killing of the
deceased. Their guilt or
innocence has to be determined primarily in relation to what is contained in
their individual statements.
I shall deal in turn with the statement of each
appellant, and the consequences flowing therefrom.
The statement of the first appellant is to
the
following effect:-
"Ek wil sê dat ons 'n persoon met 'n motorband verbrand het. Dit was ek
en Nkandla en Ouman en Teletele en Mabalama en Aianda
en Hotnot. Daar was nog
ander persone, maar ek kan nie hulle name onthou nie. Dit was verlede Saterdag
wa t dit gebeur het. Dit is
al."
In order to decide whether the first appellant's statement
amounts to a confession one may have regard not only to
what appears in the statement but also what may necessarily
/16
16
be implied therefrom (
S v Yende
1987(3) SA 367 (A) at 375
C). The
necessary implication which flows from the first
appellant's statement that "ons 'n persoon met 'n motorband
verbrand het" is that his conduct was unlawful and
intentional. Death was a subjectively forseeable
consequence of such conduct, and it may properly be
inferred from the evidence and the probabilities that the
first appellant was aware of his victim's death when he
made his statement. The statement therefore amounts to a
confession of murder.
The next question which arises is whether the
person to whose killing the first appellant has confessed
was the deceased? It is known from the first appellant's
confession that a tyre was used to burn his victim, and
that the incident occurred "verlede Saterdag". The first
appellant's confession was taken on 20 September 1985, and
"verlede Saterdag" would have been 14 September 1985. The
/17
17 deceased's body was found on that date. The deceased had
been burnt, and there was a tyre approximately a metre from where his
body was
lying. While there is no specific evldence to that effect, it may reasonably be
inferred that the tyre was a burnt out or
partly burnt out one. The cause of the
deceased's death was burning. In addition there is the evidence of Oelofse that
this was the
only incident involving the burning of a person reported on 14
September 1985. The possibility of there having been an unreported
incident of
that nature is remote. Viewed cumulatively the evidence established, in my view,
the required nexus between the killing
confessed to by the first appellant and
the deeth of the deceased. The first appellant's confession was therefore a
confesslon to
the killing of the deceased.
As the first appellant's confession constitutes the sole evidence that he
committed the crime of murder
/18
18 with which he was charged, the provisions of
s 209
of the
Criminal Procedure Act have
to be satisfied. In my view they have been despite
the submissions made to the contrary by Mr Melunsky. The evidence of Oelofse
establishes
that the body of the deceased was found in circumstances indicating
that he was burnt to death. It was argued that Oelofse's evidence
did not amount
to a positive identification of the body as that of the deceased, alternatively,
that if he purported positively to
identify the deceased his evldence was
unacceptable. There is no merit in this argument. The deceased was known to
Oelofse. According
to Oelofse he found the body of the deceased in Tshaka Street
at the point depicted on one of the photographs handed in as an exhibit.
The
clear implication in Oelofse's evidence is that he recognised it as such. His
evidence was never challenged. While the district
surgeon found that the
deceased's body was
/19
19
"feitlik heeltemal verkool", his
evidence does not go so
far as to suggest that it was totally beyond
recognition.
Furthermore, no cause of death other than burning could
be
found, although certain possibilitles could not be
excluded. As there
is no factual substratum on which to
base such possibilities they are purely
speculative. The
only reasonable inference to be drawn from the evidence
of
Oelofse and the district surgeon is that the deceased was
burnt to
death on 14 September 1985. Confirmation as
envisaged by
s 209
requires
evidence outside of the
confession which corroborates it in some material
respect
(
R v Blyth
1940 AD 355
at 364). It is, however,
not
necessary that the confirmatory evidence should implicate
the accused
in the offence (
R v Blyth
(
supra
)) . The
evidence of Oelofse
and the district surgeon provides the
necessary confirmation in a material
respect of the first
appellant's confession (cf
S v Letsedi
1963(2) SA
471 (A)).
/20
20
It will be convenient to turn next to the
statement
of the third appellant. It was to the following
effect:-
"Gedurende laas Saterdag was ek by my tante. Toe ek daar was sien ek mense 'n
persoon agternasit. Toe hulle hom agternasit haal hulle
hom in en vang hom en
slaan hom. Toe die mense die persoon agternasit het ek hulle geagtervolg. Nadat
hulle hom geslaan het los hulle
hom dear. Ek gaan toe weer na my tante se huis
toe en toe sien ek weer dieselfde mense jaag weer dieselfde persoon. Hulle roep
my
toe en ek gaan saam met hulle. Toe hulle persoon inhaal, het ek die persoon
ook met klippe gegooi, 2 klippe. Ek het hom raak gegooi
terwyl hy op die grond
lê. Met die kom die man met die naam van Molana met kan paraffien. Ek
besef toe hulle gaan die persoon
verbrand. Ek verkies toe om weg te loop, want
ek het nie daarna gekom te verbrand nie. Toe hulle hom verbrand loop ek weg. Ek
het
nie help verbrand nie.
Nadat hulle die paraffien
op hom gooi het Phumlile 'n vuurhoutjie getrek en die paraffien aan die brand
gesteek, ek het dit gesien
toe ek wegloop."
For basically the same reasons that applied in
the case of the first appellant, the third appellant's
statement must be taken to relate to the events surrounding
/21
21 the killing of the deceased. The third appellant admits
in his statement to assaulting the deceased; the question is whether his
statement justifies the finding that he participated in the killing of the
deceased. When an extra-curial statement by an accused
is tendered in evidence
by the State regard must be had to everything in the statement which relates to
the matter in issue, including
the exculpatory portions thereof. (
R v
Valachia and Another
1945 AD 826
at 835). A court is entitled to reject
exculpatory portions in such statement while
accepting parts thereof which incriminate the accused (S v
Khoza
1982(3) SA 1019 (A) at 1039 A). It should, however, only do so
if, after a proper consideration of the evidence as a whole, it is
satisfied
that the exculpatory portions lack cogency - either because they are
contradicted, directly or inferentially, by other
acceptable evidence, or
because of inherent
/22
22 improbabilities. In the present instance there is no
other evidence to gainsay what is contained in the third appellant's statement,
nor are there any inherent improbabilities thërein.
It appears from the third appellant's statement that he did not associate
himself with the initial assault
upon the deceased. He did, however, participate in the
second assault by throwing stones at the deceased while he
lay prostrate on the ground. It is not a necessary
inference that he realised at that stage that the group waa
intent on killing the deceased. They had been in a
position to kill him earlier, but had not done so. When
their intention became clear, he dissociated himself from
what was happening. As he put it: "Ek besef toe hulle
gaan die persoon verbrand. Ek verkies toe om weg te loop,
want ek het nie daarna gekom te verbrand nie". The trial
court erred, in my view, in holding that the third
/23
23
appellant's conduct was inconsistent with his avowed
dissociation. Nor was it entitled to draw an adverse
inference from the
third appellant's failure to testify.
In the absence of other evidence the
third appellant was
entitled to have his guilt or innocence determined on
the
basis of the statement he had made, which was proved and
relied upon
by the State as the sole evidence implicating
him. That statement does not
establish beyond all
reaonable doubt that the third appellant was
responsible
for, or participated in, the killing of the deceased.
There is
nothing to show that the stones thrown by the
third appellant contributed
causally to the deceased's
death. The statement is no more than a confession
to an
assault, albeit one of sufficiently serious proportions,
involving
as it did the use of stones, to justify the
inference, as the only reasonable
one, that the third
appellant had the necessary intent to do grievous bodily
/24
24
harm. In the case of the third appellant too there is
confirmation in a
material respect of the commission of the
offence confessed to in his
statement. In the
circumstances the third appellant should only have been
found guilty of assault with intent to do grievous bodily
harm.
I come now to the second appellant. His
statement reads as follows:-
Dit was op 'n Saterdag toe ons by 'n sokkerveld gewees het. Dis ek en my
vriende wat daar gewees het. Toe die wedstryd klaar was is
ons na ons huise. Ek
en my vriend is toe na 'n shebeen om musiek te gaan luister. Terwyl ons daar
was, het 'n seun Ntsiki en Nkundla
daar aangekom. Ntsiki vra ons hoekom ons daar
sit. Hy sê of ons nie kan sien daar is iemand wat gevang is. Ons vra
hoekom is
daar iemand gevang. Hy het gesê dis 'n witbroodjie wat gevang
is, ons moet hom aan die brand gaan steek. Ons het gesê
ons gaan dit nooit
doen nie. Hulle het ons toe met klippe gegooi. Ons loop toe saam met hulle. Ons
het gegaan na Tshakastraat toe.
Ons het daar iemand gesien in die straat
lê. Ntsiki het gesê ons moet die man ophelp. Ons het dit gedoen.
Ntsiki het
toe 'n motorbuiteband oor sy nek gehang. Die man het weer geval.
Ander mense
/25
25
tel hom weer op. Ntsikihet toe die buiteband aan die brand gesteek en hy het
gebrand. Ek het Ntsiki gesê daar is 'n verwantskap
tussen my en die man,
hy sê toe hy gaan my ook aan die brand steek, ek bly toe stil. Ons is toe
weg - dis al."
There can be no doubt that this
statement relates to the
events surrounding the killing of the deceased - even the
street where it
occurred, Tshaka Street, is mentioned.
The only question is whether the
second appellant on his
statement can be convicted of any offence. The principles
which govern the approach to a statement of this nature
have already been referred to. At the time of the events
in question the second appellant was 15 years of age. It
appears from his statement that he initially declined to
join the group responsible for the deceased's death.
Stones were then thrown at him, and he was coerced into
joining the group. The trial court refused to accept that
stones could have been thrown at him while he was at a
shebeen, which it held connoted "under a roof". I see no
/26
26
reason why such a connotation should
necessarily be
imported into the word. There is no evidence as to what
the
situation at the particular shebeen was, or where the
second appellant was
when the stones were thrown. There is
nothing incongruous in the notion of a
shebeen operating in
the open air, particularly in the daytime. As
appears
from his statement the second appellant did no more than
pick the
deceased up when told to do so. It is not clear
whether the second appellant
continued to hold the deceased
while a tyre was placed round his neck. When
the
deceased fell other people, not the second appellant,
picked him up
the second time. The question is not
whether the second appellant appreciated
what the likely
fate of the deceased was going to be, but whether
he
willingly participated in the events and actively
associated himself
with the killing of the deceased. The
failure of the second appellant to give
evldence was not a
/27
27
relevant consideration, and the trial
court erred in taking
it into account, for basically the same reasons
mentioned
in the case of the third appellant. It is apparent from
the
second appellant's statement that he did nothing to the
deceased except help
him up when told to do so. One
cannot from his statement infer that he was a
willing and
active participant in the events surrounding the
deceased's
death. The indications are to the contrary -
the more so if one has regard to
the penultimate sentence
of his statement where he speaks of his relationship
to the
deceased, and the threat of burning uttered against him
(the second
appellant). The reasonable possibility that he
was coerced into being
present, and was an unwilling
participant in the events relating to the death
of the
deceased, cannot be excluded. Had the trial court
approached the
matter properly it would in my view have
concluded that the guilt of the
second appellant was not
/28
28
established beyond all reasonable doubt. The second appellant's appeal
against his conviction therefore succeeds.
This brings me to the question of sentence. It is common cause that at the
time of the deceased's death the first and fourth appellants
were both 19 years
of age. They were treated on an equal footing and each sentenced to 18 years
imprisonment. The trial judge does
not appear to have considered whether there
were considerations which would have entitled him to distinguish between the two
in regard
to sentence. In my view there were. The first appellant never provided
any explanation for his conduct. There is no reason to believe
other than that
he partici = pated willingly in the events that occurred. The fourth appellant,
in the statement which forms the
basis on which his plea of guilty was tendered
and accepted, makes it clear that he was not party to any premeditated
killing;
/29
29 that he was drawn into the events that occurred because
of his presence at the scene; and that while he was not threatened in any
way to
participate in them he felt scared not to involve himself in the killing of the
deceased. In the circumstances the fourth
appellant in my view should have
received a somewhat lesser sentence than the first appellant.
There is no basis for interfering with the sentence imposed upon the first
appellant. The circumstances surrounding the death of the
deceased called for
the imposition of a severe sentence. It has not been shown that in his case the
trial judge misdirected himself
in regard to sentence. The sentence, although
undoubtedly severe, is not strikingly disparate from any sentence this Court
would
regard as appropriate. As far as the fourth appellant is concerned, I have
already stated why in my view he should have been given
a somewhat
/30
30 lesser sentence than the first appellant. In all the
circumstances an appropriate sentence in his case would be one of 15 years
imprisonment.
Turning next to the third appellant, having regard to all relevant
considerations pertaining to sentence, including the circumstances
in which he
assaulted the deceased, and the nature of such assault, an appropriate sentence
for assault with intent to do grievous
bodily harm in his case would be one of 3
years imprisonment. I do not, however, propose to impose such sentence. The
third appellant
has already served one and a half years imprisonment. I can do
no better than echo the words of BOTHA, JA, in the hitherto unreported
judgment
in the case of
The State v Mgedezi and Others
(case No 415/1987 -
judgment delivered on 30 September 1988), where faced with a similar situation
to that which pertains in the
case of the third appellant, he said :-
/31
31
"A sentence of imprisonment imposed by this Court for an offence other than the
one f or which the accused was sentenced by the Court
a
quo
cannot be
antedated in terms of
section 282
of the
Criminal Procedure Act 51 cf
1977; the
wording of the section does not permit of its application in the circumstances
of this case. This appears to me to be a
serious deficiency in the provisions of
the Act, which requlres the urgent attention of the Legislature. The Court has
no power to
antedate a sentence other than in accordance with the provisions of
the section (see
S v Hawthorne en 'n Ander
1980(1) SA 521 (A) at 524).
The result is that if this Court were now to impose a sentence of imprisonment
of 18 months, that sentence
would commence to run from the date of this
judgment, and no effect can be given to the time that the accused has already
spent in
prison. This is a result that I am not prepared to countenance. If the
time already spent in prison by the accused is taken into
account in the
sentence to be imposed now, by making a deduction from the period of
imprisonment to be fixed, the sentence will be
artificial and will create a
false impression on the accused's record of previous conviotions in the future.
In the interests of
justice, however, I cannot see how that undesirable result
can be avoided."
Having regard to the situation
which exists because of the
considerations mentioned by BOTHA, JA, the appropriate
/32
32 sentence to impose on the third appellant is one of
imprisonment for 18 months.
In the result the following order is
made:-
1)
The first appellant's appeal against his conviction and sentence is
dismissed.
2)
The second appellant's appeal is
allowed, and his conviction and sentence are set
aside.
3)
The third appellant's eppeal against
his conviction and sentence is allowed to the extent that his conviction of
murder and sentence
of 18 years imprisonment are set aside, and there is
substituted in their stead a conviction of assault with intent to do grievous
bodily harm, and a sentence of imprisonment of 18
months.
4)
The fourth appellant's appeal
against his sentence is allowed to the extent that his sentence is reduced to
one of 15 years imprisonment.
J W SMALBERGER JUDGE
OF APPEAL
RABIE, ACJ)
MILNE, JA) CONCUR