IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE CRIMINAL CASE NO. 441/02
In
the matter between;
REX
VERSUS
SIFISO
SIGWANE
CORAM
SHABANGU AJ
FOR
THE CROWN MR. MAKHANYA
FOR
DEFENCE MR. BEN SIMELANE
9th
November, 2004
The
accused is charged with murder it being alleged that he is guilty of
murder "in that upon or about the 27th January, 2002 and at or
near Mzilikazi location in the District of Lubombo the said accused
did unlawfully and intentionally kill one Photsiwe Dlamini by
stabbing him with a sharp instrument on the chest and thereby
committed the crime of murder,"
A
medical report on the nature of the injuries found on the body of the
deceased was handed in by consentof the parties in court. The medical
report described the cause of
2
death
of the deceased as "haemorhage as a result of penetrating injury
to the heart." The injury as observed by the investigating
police officer, a certain sergeant Thabo Kunene and the Police
Pathologist is that of a penetrating injury over the front of his
left chest above the left nipple.
The
only evidence which implicates the accused in the killing of the
deceased is the testimony of one Jackie Gamedze who says that he was
with the deceased during the early hours of Sunday 27th January, 2002
when the deceased was stabbed by another man.
This
witness testified that he was at his home asleep on the 27th January,
2002 when the deceased woke him up at about half past twelve after
midnight. The deceased asked the witness to accompany him to his
girlfriend. The witness reluctantly agreed following some efforts by
the deceased in persuading him to accompany him to his girlfriend.
The deceased also told the witness that he had been involved in a
quarrel with another men earlier that evening. The deceased did not
disclose the identity of the person he had quarreled with when he was
asked by this witness. Along the way, however, as the deceased and
the witness walked towards a place called KaBhila during the night, a
person who the witness describes as a stranger in his testimony came
running towards the two and confronted the deceased. The deceased and
the strange man are said to have begun fighting. The witness goes on
to say at this stage of his testimony that he did not know the man
who was fighting with the deceased and that he had never seen him
before this night. As the two were fighting the witness realised that
the other man had a sharp instrument or object with him. The witness
shouted to the deceased alerting him that he might be stabbed, to
which the deceased responded by saying the man could not stab him. At
that stage the other man stabbed the deceased and ran away.
Furthermore according to the said Jackie Gamedze's testimony the
source of light which was available was electricity light from a
nearby homestead. There were trees also which made vision difficult.
Gamedze says that he was about three metres from the deceased and the
man as they fought. He says he was unable because of the poor light
to see the nature of the sharp instrument which the other man had in
his possession. Later the witness says he
3
had
known the accused as a person he had seen at a distance in the Siteki
town. The accused and this witness were not close acquaintances
according to his testimony. Strangely, the witness says, later in his
testimony, that he was able to recognise the person who fought with
the deceased and stabbed him to be the accused person. He says he had
known the person he saw fighting the deceased as a track driver at
Dyson and Lincoln. This aspect of the testimony given by Mr. Gamedze
seems to contradict his testimony to the effect that he did not know
the person who fought with the deceased and that he had never seen
the person before this day. This apparent contradiction does not
inspire a conviction in my mind that his testimony on this aspect of
the matter can be relied upon. His evidence is clearly
unsatisfactory. His testimony in implicating the accused as the
person who stabbed and killed the deceased is for the above stated
reason open to serious doubt.
Furthermore
the surrounding circumstances during the fight and stabbing of the
deceased, namely the state of the light, the mobility of the scene,
and the degree of the prior acquaintance or knowledge the witness had
of the culprit does not eliminate the reasonable possibility of error
in the identification of the accused as the culprit. S V. MTHETHWA
1972 (3) SA 766(A), R V. MOKOENA, 1958 (2) SA 212 (T) @ 215, S V.
MEHLAPE 1963 (2) SA 29. In S V. MEHLAPE supra the court made the
following remarks in its analysis of the identification evidence in
that case which remarks are apposite in the present case;
"In
the circumstances of the present case there were three important
facets of the evidence of the single witness, the complainant, as to
the identity of the appellant as one of the three persons who robbed
him. In the first he said he had often seen the appellant before. The
value of this alleged prior knowledge of the man he subsequently
recognised at the robbery remained entirely uninvestigated. The court
did not know how often he had seen this man, or whether he had ever
seen him close by or had ever spoken to him or anything at all about
the opportunities of accurate observation of the appellants' face
afforded on the prior occassions; he said that he recognised him by
his face.
4
Similar
criticism can be made against the evidence of prior knowledge of the
accused by the said Jackie Gamedze. The result is that the value of
the evidence of prior knowledge of the accused alleged by the said
Jackie Gamedze is greatly diminished. This taken together with what
appears to be a contradiction in the testimony of Jackie Gamedze on
whether he had ever seen the man who fought the deceased prior to the
date of the alleged murder leads me to a conclusion where I cannot
say that the guilt of the accused has been established beyond a
reasonable doubt. In the premises I have no other alternative but to
find the accused to be not guilty of the crime of murder. He is
therefore acquitted and discharged.
ALEX
S, SHABANGU
ACTING
JUDGE
