S v Mbunye and Another

• Jurisdiction: South Africa
• Judge: Hofmeyr JA, Fannin JA and Van Coller AJA
• Judgment Date: 18 June 1980
• Citation: 1980 (4) SA 70 (TkA)
• Hearing Date: 08 May 1980
• Court: Transkei Appellate Division

Hofmeyr JA:

These appeals, with the necessary leave in terms of s 363 of Act 56 of 1955, are against the death sentence pronounced by the CHIEF H JUSTICE against each of the two appellants in the General Division of the Supreme Court of the Republic of Transkei on 18 September 1979. The appellants were charged, together with a third accused, on one count of housebreaking with intent to commit murder and robbery in contravention of s 215 of Act 24 of 1886 read with s 1 of Act 56 of 1955; two counts of murder and a further count of robbery in contravention of s 211 of the abovementioned Act read with s 1 of Act 56 of 1955. All the counts other than the murder counts were thus alleged to have been committed with aggravating circumstances with the result that the accused were liable to be sentenced to death also on these counts. They were all

Hofmeyr JA

acquitted on the two counts of murder and on the housebreaking in so far as it involved an intent to commit murder. They were all convicted on the count of housebreaking with intent to commit robbery and on the count of A robbery, in each case with aggravating circumstances as defined in s 1 of Act 56 of 1955.

The two appellants were sentenced to death on the robbery charge, their sentence on the housebreaking charge was postponed to be pronounced later if necessary. The third accused was sentenced to 20 years' imprisonment on B each of these counts, the two sentences to run concurrently. This accused has not noted any appeal.

This judgment should be read with the findings of fact formulated by the CHIEF JUSTICE. These findings are comprehensive enough for the purposes of C this judgment. They are furthermore fair and remain unchallenged by the appellants.

Without, therefore, repeating the full account of these crimes as described in the judgment of the CHIEF JUSTICE, I should state a few crucial matters which are common cause. On the night of 20 August 1979 Mr Lucwaba, the proprietor of the Tsitsa Bridge Store in the district of Tsolo, and his wife were killed. Their death was caused by a number of D blows inflicted with blunt instruments, inter alia, fracturing in each case four-fifths of the skull. There could be no doubt that whoever struck those blows intended to kill them or alternatively "struck recklessly caring not whether these people lived or died". The murders took place after the assailants kicked open the door of the room adjacent to the E store in which the victims and their son Pila, 16 years of age, were sleeping. It may be added in passing that the son escaped the notice of the two appellants although it is accepted that the third participant in the crime saw him where he was hiding under the table in the room. His deliberate decision not to betray the presence of the boy, thus probably saving his life, was credited to the third accused as an extenuating circumstance and led to his escaping the death sentence.

F For reasons stated in the judgment it was

'impossible to say with certainty who struck the fatal blows in that room and who did not'.

Unless the State could prove a common purpose of all the three accused to G murder the deceased, the State could not succeed on the murder charges against any one of them. The Court in fact found that the State had failed to prove any such common purpose and had...