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[1991] ZASCA 47
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S v Patrick (321/90) [1991] ZASCA 47 (6 May 1991)
Case No 321/90
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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
RAMMY
PATRICK
DOMBENI APPELLANT
and
THE STATE
RESPONDENT
CORAM
: HEFER, NESTADT et STEYN JJA
DATE
HEARD
: 12 MARCH 1991
DATE DELIVERED
: 6 MAY 1991
JUDGMENT NESTADT, JA
Appellant was found guilty on three counts of murder and one of attempted
murder. No extenuating circumstances having been found,
he was sentenced to
death
2/
2.
on the three counts of murder. In respect of the conviction for attempted
murder, he was sentenced to 15 years' imprisonment. This
appeal, which is before
us with leave of the trial judge, is against his convictions for murder as well
as against sentence. There
is no appeal against the conviction for attempted
murder.
The first question is whether there was an irregularity in the
proceedings. This arises from the fact that the trial judge (CURLEWIS
J) did not
sit with assessors. In terms of the proviso to
sec 145(2)
of the
Criminal
Procedure Act 51 of 1977
, he was obliged to do so if he was of the opinion that
in the event of a conviction and having regard to the circumstances of the
case,
the death sentence may be imposed. CURLEWIS J has furnished us with a report to
the effect that he thought a death sentence
was unlikely. I do not propose to go
into the question of what led him to believe this and why matters
3/
3. turned out differently. Suffice it to say that I am
satisfied that there is no basis on which the formation of the learned judge's
opinion can successfully be challenged. In my opinion no irregularity took
place.
I turn to the merits of the appeal. The crimes were committed on the
night of 24 December 1988. They took place in the rural district
of Mhala in the
Eastern Transvaal. The first victims were a certain Alfred Ngonyana and his wife
Eliza Ubusi. As they lay asleep
in their hut, they were attacked by a group of
persons under the leadership of a certain Mfana Shilubane. He was accused 1 at
the
trial. Ngonyana was seriously injured. He suffered lacerations of the face
and head and severe brain damage. But he did not die.
The attack on him gave
rise to the charge of attempted murder. The assault on Eliza Ubusi proved fatal.
She died, according to the
post-mortem report, as a result of severe head
injuries
4/
4. caused by a sharp object. The group then proceeded some
400 metres to the hut of Andries and Lina Zwane. They too were attacked
and
killed as they lay sleeping outside their hut. The husband died from a blow to
the forehead with a sharp object with resultant
brain injury and subarachnoid
bleeding. The cause of the wife's death was a fractured skull with subarachnoid
bleeding.
Four persons stood trial before CURLEWIS J. At an early stage of
the proceedings, accused 4 wás referred for observation in
terms of
secs
78
and
79
of the Code. So the trial never proceeded against him. Accused 2 was
acquitted. Accused 1 and of course appellant (who was accused
3) were convicted.
In the case of accused 1, extenuating circumstances were found. He was sentenced
to 15 years' imprisonment on
each of the four. counts. They were ordered to run
concurrently.
The case against appellant rested on a
5/
5.
confession which it was proved he freely and voluntarily
made to a
magistrate on 28 December 1988. It is
necessary to guote it in full. It
reads:
"On Saturday evening the 24th of December 1988 I was called by Mfana Shilubane
to his home. He told us that there is a certain one
Ngonyana who owes him. He
said we should go to that Ngonyana. We proceeded there being four. He took a 9MM
firearm and placed it
back. Thereafter he took a panga and a garden fork. We
then proceeded to that man's kraal. We looked for them but we could not find
them. We lastly found them in a hut which was under construction. He was
together with his wife. Solly Sedibe and Mfana Shilubane
entered where Ngonyana
and his wife were asleep. Solly took a stamping block at that kraal. Solly
struck Ngonyana's wife with that
stamping block. Mfana stabbed Ngonyana with a
fork spade. We left when we realised that they were finished. Frank Ngwenya had
a stone
but he did not use it. I was holding a panga but I did not use it. Solly
Sedibe entered in the hut and took two dresses.
We then left and proceeded to Zwane's kraal. We then entered Zwane's kraal. On
arrival at Zwane's kraal we found them asleep outside
the man and his wife.
Mfana Shilubane stabbed Zwane below the ear with that garden fork. Solly Sedibe
struck the woman on the neck
with a stamping block he had picked from
Ngonyana's
6/
6.
kraal.
Mfana Shilubane snatched the panga from me and
chopped that woman. I also struck Zwane with a
stick. Frank Ngwenya threw
a stone at that
woman.
Mfana Shilubane smeared the stone with the
blood
of these people. He said he wanted to make his
mouth with that
blood.
Mfana Shilubane placed the garden fork and the
stamping block next to their heads and covered
them with
blankets.
Myself and Frank Ngwenya ran and stood under a
tree. Solly and
Mfana entered the house. Solly
came out with a plastic bag containing
some
clothes which seemed to be new. Mfana Shilubane
came up with an
amount of about R2 800. He also
took the panga which was under the mat on which
Zwane and his wife were sleeping.
We then proceeded to Shilubane's kraal
but
before we reached there he placed the stone he
was holding under a
marula tree. We requested
him to give us money and clothing but he said
he
will give us in the morning. The clothing were
taken away by Solly
Sedibe.
We parted and the following day we did not meet
in time. On Sunday
they got arrested by the
police before I was arrested. I was arrested
at
09:00. Shilubane had hired us to kill Ngonyana
because he owes him.
With Zwane he said they
were fighting at work since Zwane was appointed
as a supervisor."
7/
7.
Ngonyana is the complainant in respect of the attempted murder charge. Mfana
Shilubane is accused 1. Solly Sedibe was accused 2. Frank
Ngwenya was accused
4.
It is apparent from the statement that appellant was a member of the group
that attacked the three deceased and Ngonyana. And clearly
he was a party to a
common purpose to murder Ngonyana. As appears from the confession, he and the
others referred to were hired by
accused 1 to kill Ngonyana. The issue that
arises is whether the confession also proves his complicity in the three
murders. The
answer turns on a proper interpretation of the confession. Though
fairly detailed, it lacks particularity in a number of respects.
It was this
lack of particularity that formed the basis of the submission by Mr
Schutte
, on behalf of appellant, that appellant's guilt on the three
murder charges had not been proved. In summary, the argument was that
whilst
the
8/
8.
confession established a common purpose to kill Ngonyana, this was not so in
respect of the three deceased. As regards Andries Zwane,
it was said that the
confession was open to the construction that appellant had hit him with the
stick before the others attacked
him; in these circumstances it could not be
inferred that appellant was a party to a common purpose to kill him; he was
therefore
only guilty of an assault with intent to do grievous bodily harm. As
regards the murders of the two women, the submission was that
the mere presence
of appellant at the scenes did not suffice; he had not admitted to having
participated in or associated himself
with the attack cm either of these two
deceased; so he should have been found not guilty on these charges.
The argument is not without merit. But I have come to the conclusion that in
relation to Eliza Ubisi (count 4), it cannot prevail.
Appellant admits to
having
9/
9.
gone to Ngonyana's kraal and looked for "them". That can only refer to
Ngonyana himself and his wife Eliza Ubisi. And after the two
of them had been
attacked appellant says that he and the others left "when we realised that they
were finished". It seems to me that
in the absence of an explanation by
appellant, the only reasonable inference is that he was a
socius criminis
to the attempted murder of the husband and the murder of the wife. On this basis
it matters not that he did not himself participate
in the attack on her.
Appellant gave no explanation. He did not testify in his defence. In my opinion
he was rightly found guilty
of the murder of Eliza Ubusi.
The same applies to the murder of Andries Zwane (count 2). Reading the
confession as a whole, it seems to me that appellant admits
to having
béen employed to kill him as well. Moreover, and even if it be assumed in
favour of appellant that he struck Andries
Zwane before
10/
10. the others attacked him, it is to be inferred that
appellant was a party to a common purpose to kill him. Appellant went to the
Zwanes' hut with the rest of the group; he saw they were armed; he himself
carried a panga (and it would seem a stick); he knew that
Ngonyana and his wife
had just been attacked; he himself assaulted Andries Zwane (with a stick); he
was present when the others killed
him. So even if appellant was not a party to
a previous agreement to kill Andries Zwane, it is to be inferred that a common
purpose,
involving appellant, to kill him arose at the scene. In these
circumstances it matters not that appellant may have struck Andries
Zwane before
the rest of the group attacked him.
This leaves for consideration appellant's conviction of murdering Lina Zwane
(count 1). Here I think the appeal must succeed. Appellant's
statement does not
admit to him having done anything to her. Nor
11/
11.
is the only reasonable inference that he was a party to a common purpose to
kill her. The conduct of appellant referred to in the
previous paragraph goes no
further than to show that he was associated in a fatal attack on her husband. It
could have been for this
reason only that he accompanied accused 1 to the
Zwanes' hut and that he afterwards asked accused 1 for payment. I cannot say
with
the necessary confidence that he foresaw the possibility of Lina Zwane's
death. Let us assume that he anticipated her presence at
the hut. Even so, there
is no evidence that he realised or feared that she would be able to identify her
husband's murderers and
that he therefore must have known or f oreseen that she
might have to be killed. It must be borne in mind that the murders took place
when it was dark.
This brings me to sentence. By reason of Act
12/
12. 107 of 1990, this has to be detennined in the light of
the principles referred to by this Court in cases such as
S vs Masina and
Others
1990(4) SA 709(A),
S vs Sehonohi
[1990] ZASCA 93
;
1990 (4) SA 727(A)
and
S
vs Nkwanyana and Others
[1990] ZASCA 95
;
1990 (4) SA 735(A).
There are clearly aggravating
factors present. The deceased were brutally attacked and killed as they were
sleeping. So they were
quite helpless. Appellant must be taken to have been in
his sound and sober senses. There is no merit in the submission that he was
intoxicated. Accused 1 had a motive to kill them, namely, revenge. The evidence
against him discloses that he believed that the deceased
had been instrumental
in poisoning his mother. It was because of this that the trial court found
extenuating circumstances in his
case. These considerations do not apply to
appellant. He acted purely from a mercenary motive. This appears clearly from
his confession.
He is a mature man of 29 years of
13/
13. age. He has two relevant previous convictions. One was
in 1979 for housebreaking (for which he was sentenced to six strokes).
The other
was in 1987 for assault with intent to do grievous bodily harm (the sentence
being 8 months imprisonment).
These considerations notwithstanding, I have
come to the conclusion that the death sentence is not the only proper sentence.
It would
seem that appellant's decision to go along with the group was made
somewhat impulsively. According to his statement, accused 1 recruited
him the
same evening that the crimes were committed. Moreover, this was not a case of
the hired assassin himself killing the victim
in the absence of his employer.
Appellant's actual participatión in the murders was minor. His confession
only admits, to
him having struck Andries Zwane with a stick. Accused would seem
to have planned the murders and, with the other
14/
14. persons referred to, played the leading role in carrying them
out. In these special circumstances, and despite appellant having
acted from a
more base motive than accused 1, it would, in my view, be wrong for the death
sentence to be imposed on appellant when
accused 1 received a period of
imprisonment. The principle is that where a number of persons are convicted of
the same crime there
ought, if justice is to be done, to be reasonable
uniformity between the sentences imposed on each of them, due regard being paid
to mitigating and aggravating circumstances (
S vs Z
1972(3) SA 214
(RAD)). Applying it, I propose to alter appellant's sentence so that it is the
same as that of accused 1.
As already indicated, appellant also appeals
against his sentence of 15 years' imprisonment on the attempted murder charge
(count
five). Though it will have no practical effect, I think that it must
be
15/
15. interfered with. It ought to be less than the sentences to be
imposed in respect of appellant's convictions for murder.
The following order is
made:
(1)
The appeal against the conviction of murdering Lina Zwane succeeds.
Accordingly, the conviction and death sentence on count 1 are
set
aside.
(2)
The appeal against the death
sentences imposed for the convictions on counts 2 and 4 also succeeds. Such
death sentences are set aside.
In their stead there is substituted a sentence of
15 years' imprisonment on each of these counts. These sentences are to run
concurrently.
(3)
The appeal against the 15
years' sentence imposed on count 5 also succeeds. It is set aside. A sentence of
10 years' imprisonment
is substituted. It is to run concurrently with the
sentences imposed
16/
16. on counts 2 and 4.
NESTADT, JA
HEFER, JA )
) CONCUR STEYN, JA )