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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

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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

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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

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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

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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

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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."

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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

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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

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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

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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

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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

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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

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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

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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

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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

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16. on counts 2 and 4.

NESTADT, JA

HEFER, JA )
) CONCUR STEYN, JA )

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