Rex v Sihlongonyane and Another (4/2010) [2019] SZHC 53 (20 March 2019);

 

 

IN THE HIGH COURT OF ESWATINI

JUDGMENT

CASE NO. 4/2010

HELD AT MBABANE

In the matter between:

REX

Versus

1.  SIFISO SIHLONGONYANE

2.  CEDIGUGU SIBHIMBI SIMELANE

Neutral Citation:          Rex vs Sifiso Sihlongonyane and Another [4/2010] SZHC 53                               [2019] (20 March, 2019)

Coram:                M. LANGWENYA J.

Heard:                 1 November 2017; 26 February 2019; 5 March 2019;

Delivered:            20 March 2019

Summary:           Criminal Procedure-Criminal law-accused charged with                                                attempted murder in main count and assault with intent to cause                         grievous bodily harm in the alternative-actus reus and mens rea                           essential elements of attempted murder-mens rea not proved-                                accused found guilty of assault with intent to cause grievous                                 bodily harm.

 

JUDGMENT

 

[1]     The accused persons are charged with the offence of attempted murder. It is           alleged that on or about 26 December 2009, and at or near Mbekelweni area     in the Manzini region, the said accused person acting jointly and in     furtherance of a common purpose did unlawfully and with intent to kill assault       and stab Mzamo Dlamini and did thereby commit the said offence.

 

[2]     The accused persons are also charged, in the alternative, with the crime of           assault with intent to do grievous bodily harm. In that upon or about 26 December 2009 and at or near Mbekelweni area in the Manzini region, the      said accused acting jointly and in furtherance of a common purpose did     unlawfully assault and stab Mzamo Dlamini with the intention of causing him grievous bodily harm.

 

[3]     The Crown led the evidence of four witnesses to prove its case. Each of the           accused led evidence on their own behalf.

 

[4]     PW Mzamo Dlamini is the complainant in this matter. This witness told the           Court that his parental home is at Mbekelweni in Soweto. PW1 knows both     the accused persons as they are his neighbours.  He also went to school with          the second accused.

 

[5]     On 26 December 2009 he was returning home from a drinking spree at a Gina           homestead at Mbekelweni. The accused persons came charging at him and he    fled and was chased by the accused. He fled and sought refuge at a Dlamini    homestead. It was while he was at the Dlamini homestead that both accused        persons caught up with him and assaulted him with sticks and kicked him until he bled. He then fled to a Gwebu homestead where he kicked the door and          entered the house unannounced. Make Gwebu was of no help to the complainant as she sent him away. When PW1 left the Gwebu homestead, he        was met by the accused as they were waiting outside the Gwebu homestead.        The accused continued to beat PW1 with sticks all over the body and dragged          him on the ground until his clothes got torn and he suffered injuries at his     back. When PW1 was dragged on the ground PW1 was facing up.

 

[6]     It was the evidence of PW1 that while he was dragged and assaulted with           sticks and kicked all over the body by the accused persons, he fainted and only           came to when he was at the theatre at the RFM-Nazarene Hospital. The police           arrived on the day the complainant was admitted in hospital but because he           could not speak, the police left and returned the following day to record a           statement.

 

[7]     PW1 was admitted in hospital for two weeks before he was discharged. It was the evidence of the complainant that he was subsequently admitted at the      Mbabane Government hospital and remained there for another two weeks as          a result of the injuries.

 

[8]     While he was at home, he was approached by the parents of the accused persons who implored him to withdraw the matter in exchange for payment.        PW1 and his parents declined to withdraw the matter.

 

[9]     The second accused approached PW1 and reminded him that he went to the           same school with this witness; that he did not commit the crime on purpose      but it was because he was drunk. The second accused asked to pay PW1       E1,000 (one thousand Emalangeni) for his injuries. The second accused gave     this witness E1,000 as a sign of being remorseful. PW1’s mother took the       money and thanked the accused and his family for repaying her hospital bills.

 

[10]   PW1 told the Court that while he was being treated in hospital, he had a pipe           inserted on the left hand side and below his armpit. The witness showed the           Court a mark on the left side of his armpit. PW1 said he does not recall   provoking the accused persons.

 

[11]   Under cross examination, PW1 conceded that he was drunk on the day of the           incident. He stated that even though he was drunk, he was not so drunk as to   be unable to see what went on around him. He said he started drinking at     around 10pm and was assaulted at around 1am. Before the altercation, PW1       had been with the accused persons at the Gina homestead and he did not           engage in a fight with the accused persons.

 

[12]   When questioned about the motive for the attack on his person, the           complainant stated that he thought he was assaulted because his assailants had           on a previous occasion accused him of committing a crime at a neighbour’s           homestead. It was the evidence of PW1 that while he was at the Gina       homestead he was seated with other people including Sunday Bhembe. The     accused persons were present but sat with another group of people.

 

[13]   PW1 denied that he and Sunday were the aggressors. PW1 agrees that     Wandile Dlamini was present at the Gina homestead. This witness does not          know Sithembile Mndzebele. The complainant did not witness any verbal        altercation between Sunday and Sithembile Mndzebele.

 

[14]   It was the evidence of the complainant that the accused persons’ families did    not bribe him in as much as they compensated him for money he had used to          pay his hospital bills.

 

[15]   But for the scar below his left armpit- where the tube was inserted in hospital, and a scar on the face above the left eye, the complainant recovered fully from         his injuries.

 

[16]   The Crown called PW2- Ndida Alice Dlamini who is a younger brother of           PW1. On the day of the incident, he received a phone call from his mother        and proceeded to the scene where he found the complainant injured, bleeding crying and groaning. PW1 was conscious when this witness arrived at the       scene but was in a bad state. PW1 was later taken to the hospital.

 

[17]   PW3 is Dr. Motum who works at the RFM hospital. He is not the doctor who           completed the RSP 88 being the medical report form from the police. The           medical report reflected that the complainant presented with blood stained           clothing; abrasions all over the body; two lacerations on the forehead, lips and           right foot as well as pneumothraxis. It is recorded that the patient claimed to           have been assaulted.

 

[18]   According to the doctor’s opinion, the patient’s condition could be fatal depending on the nature of the weapon used. If the weapon used was wooden,         the injury could be rectified. If the weapon used was long and sharp and was aimed particularly at the left hand side of the chest, the patient could bleed     and die. If the instrument was short and wooden, there is a chance the patient         might not die. The doctor handed in the medical report which was marked        Exhibit ‘A’.

[19]   Under cross examination, the doctor stated that the complainant had air in the           chest and that an injury pipe was inserted to rectify the injury. According to     the doctor, the complainant may have spent more days in hospital if he         developed complications as a result of his injuries. The doctor could not say   if the patient had complications arising from his injuries because they had        looked for his file but could not find it.

 

[20]   It was the doctor’s opinion that complications flowing from PW1’s head           injuries would necessitate that he be re-admitted in Mbabane Government           hospital. He could have been referred or transferred to Mbabane Government           hospital because the RFM hospital does not have a neuro-surgeon.

 

[21]   The air in PW1’s chest was a result of a stab injury as a result of a sharp object           used. It was the doctor’s opinion that the patient presented with injuries-           abrasions and lacerations and air in the lungs. He was of the view that there is           nothing that indicates serious injury. The injuries might seem light at the beginning but complications might lead to serious injury.

 

[22]   It is settled law that a Court is not bound by expert evidence[1]. It is the Court    that ultimately assesses the cogency of the expert’s evidence in the contextual          matrix of the case with which he is seized. In a case where expert evidence     has been introduced, presiding officers are therefore challenged to find means        of assessing the inferential force or weight of all the evidence before Court. As it currently stands, the admissibility of expert evidence hinges on fairly    simple rules of evidence that affords presiding officers broad discretionary        powers.

 

[23]   The evidence of the doctor is, in my view inconclusive. The doctor stated that   the injuries suffered by the complainant could be fatal depending on the        weapon used. According to PW3 if the weapon used was wooden, chances of       death were remote. If the weapon was long and sharp and was aimed particularly at the left hand side of the chest, the patient could bleed and die.

 

[24]   There is no evidence that the complainant was stabbed with any weapon.           There is evidence that he was kicked and assaulted with sticks cut from a           guava tree.

 

[25]   There is also no evidence that the complainant had complications resulting           from the injuries inflicted by the accused because, according to the doctor his    file was not found. The Crown has only been able to prove the assault with   sticks and not the stabbing of PW1.

 

[26]   PW4 3458 D/Sgt. Simon Mavuso stated that he is currently stationed at Mafutseni police station. In 2009 he was stationed at Matsapha police station.         He is the investigating officer in this matter. On 28 December 2009 he was   assigned an attempted murder docket. The victim was Mzamo Dlamini of       Nhlanhleni area. He together with 3848 Sgt. Mdvuba Dlamini went to Nhlanhleni where they obtained statements from witnesses. Their   investigations led them to the parental homes of the first and the second           accused but when they arrived there both accused persons were not at home.

 

[27]   On 29 December 2009 the first accused was brought to the police station at           Sigodvweni by his relatives. He was cautioned by this witness according to       the Judges’ rules.       The first accused then led the police to KaLaGwebu,    eNhlanhleni. On arrival at KaLaGwebu, the first accused was again       cautioned and he pointed out a           light cane guava stick and a 750ml castle milk     stout bottle. PW4 seized the items and handed them as exhibits in the   matter.

 

[28]   On 30 December 2009 the second accused was brought to the police station      by his relatives and was accordingly cautioned in terms of the Judges’ rules.          He was subsequently charged for the offence.

 

[29]   PW4 showed the Court a stick which was about 60cms long and of           approximately 0.5cm width. The stick was marked Exhibit ‘1’. The witness      also handed in an empty bottle of castle milk stout which was marked Exhibit          ‘2’. The bottle was not broken. I am none the wiser how a beer bottle used to       stab the complainant could have remained intact.

 

[30]   During cross examination, PW4 stated that there was a fight between the           victim and the accused persons during which the victim was injured. The           victim was beaten, kicked all over the body. PW4 went to the scene on 29           December 2009. On 28 December 2009 he collected statements.

 

Defence Case

[31]   The second accused was the first to give evidence as DW1. This witness told     the Court that on 25 December 2009 he was at a drinking place kaGina with          the first accused and the first accused’s sister drinking beer. It was while they       were drinking their alcoholic beverages when they saw Mzamo and Sunday          beating Wandile Dlamini. DW1 and DW2 and other people tried to help         Wandile who then escaped and Mzamo and Sunday pursued him but were   outpaced. On return from chasing Wandile, Mzamo manhandled DW1 while Sunday attacked DW2 and the reason they were attacked, they heard was         because they were from the same area as Wandile Dlamini.

 

[32]   DW1 and DW2 retaliated when Mzamo and Sunday picked a fight with them. The other people who were drinking at the Gina homestead tried to       intervene to stop the fight to no avail. The Gina family then threw the          warring parties out of their homestead.

 

[33]   Outside the Gina family compound and at the gate, the fighting intensified           resulting in Sunday fleeing the scene. The accused persons fought with    Mzamo who also subsequently fled the scene into a Simelane homestead     where he was thrown out. Both DW2 and DW1 were in hot pursuit of Mzamo       when he fled to the Simelane homestead where they waited for him outside     the gate. It was when Mzamo came out the gate that DW2 and DW1 pounced        on him again and went with him for a distance of about one hundred metres   all the while assaulting him with sticks. The accused persons were not      carrying beer bottles while the altercation between them and Mzamo           continued.

 

[34]   When they stopped assaulting the complainant, they left him in a sitting position and he was crying. According to DW1 the complainant was not      severely injured when they left him. According to the evidence of the accused          it was not their intention to kill the complainant. DW1 says their intention was      to assault PW1 and to inflict the pain PW1 had subjected them to when he manhandled and hit DW1 with an open hand at the Gina homestead.

 

[35]   DW2 is Sifiso Sihlongonyane. He told the Court that on 25 December 2009      he was at the Gina homestead with DW1 and Sithembile Mndzebele his older        sister. PW1 and Sunday Bhembe approached Sithembile and a confrontation     and commotion ensued. Wandile tried to protect Sithembile. For his troubles,          Wandile was assaulted by PW1 and Sunday Bhembe. Wandile fled the Gina    homestead and was pursued by PW1 and Sunday who were outpaced by   Wandile.

 

[36]   On return from chasing Wandile, PW1 and Sunday manhandled and assaulted both the accused person and enquired if they ‘knew lithayela’. This was           explained to the Court to be in reference to a knife. After the Gina family        failed to stop the fight, both the accused, PW1 and Sunday were thrown out of the Gina homestead. When the group was outside the gate of the Gina       homestead they continued with the fight which had, at that stage intensified until Sunday fled the scene. The accused continued to fight with PW1 who    was unarmed. PW1 then fled to kaSimelane and was pursued by both accused.           At the Simelane homestead, PW1 was thrown out by make LaGwebu. PW1      then fled in the direction where the accused were approaching and was   apprehended and assaulted further with sticks.

 

[37]   When the accused left the complainant he was in a sitting position and was           crying. PW1 was not in a bad state. DW2 says he only pointed out the sticks    and not the beer bottle to the police. Notably, this fact was not put to the       investigating officer.

 

[38]   DW2 was subsequently arrested by the police. His mother went to PW1’s           homestead to seek a way forward. DW2 does not know if his mother succeded in finding the way forward because she never gave this witness feedback.

 

Application of law to the facts

[39]   Attempted murder requires an actus reus and a mens rea. An accused person           must appreciate that the injury he intends to inflict on his victim may cause           death and regardless inflict that injury recklessly with no regard whether death           ensues or not[2].

 

[40]   In order to support a conviction for attempted murder it is sufficient if there is an appreciation that there is some risk to life involved in the action     contemplated, coupled with recklessness as to whether or not the risk is          fulfilled in death or not.

 

[41]   In casu, the accused persons kicked and assaulted the complainant all over the           body with sticks-this constitutes the actus reus. I am unable to hold that the           accused persons appreciated that the injuries they intended to inflict and did inflict on PW1 may have resulted in his death for the following reasons:   first, the accused           state that their intention was not so much to kill the     complainant as much as it was to inflict the same degree of pain as the        complainant had inflicted on them when he manhandled them and assaulted   them with open hands at the Gina homestead. Second, there was a fight   between the complainant and Sunday        Bhembe on the one hand and the     accused persons on the other hand-a fact that is corroborated by PW4     D/Sgt. Mavuso.

 

[42]   It appears that the complainant and Sunday Bhembe were the aggressors in      the larger scheme of the fracas that culminated in the fight involving the        accused persons.

 

[43]   For these reasons, I am unable to hold that the Crown has proved beyond           reasonable doubt the commission of the offence of attempted murder by the           accused.

 

Assault with intent to cause grievous bodily harm

[44]   The accused were charged in the alternative with the offence of assault with           intent to cause grievous bodily harm (Assault GBH).

 

[45]   Assault GBH consists in an assault which is accompanied by intent to do           grievous bodily harm. What is required is that the accused must have known,   or at least foreseen the possibility that his conduct might cause the         complainant grievous bodily harm[3].

 

[46]   To determine whether the necessary intent was present the Court needs to take           certain factors into consideration the following factors: a) the nature of the           weapon used and the manner it was used; b) the degree of force used and how such force was used; c) the part of the body aimed at; and d) the nature of       injury, if any, which was sustained.

 

[47]   The list is not numerus clausus[4].

 

[48]   Applying the above paragraphs to the present case, can it be said the accused           persons assaulted the complainant and also that they had the requisite intent?

 

[49]   The Crown submitted a medical report outlining the nature of the injuries           suffered by the complainant. The medical report indicated that the complainant sustained lacerations and multiple abrasions all over the body.       The evidence of the complainant also shows that he was dragged on the     ground while being kicked and assaulted with sticks until his clothes got   bloodied and torn.

 

[50]   The accused persons admit hitting, kicking and dragging the complainant on     the ground. The accused deny stabbing the complainant with a beer bottle or          at all. The fact that the accused assaulted PW1 multiple times with sticks over         an extended period of time while he tried to flee from them; the fact that the       complainant was not armed with any weapon and the fact that the accused   dragged the complainant on the ground with his back rubbing on the hard surface, the accused persons foresaw that the friction between the body and the ground would cause the complainant grievous bodily harm. Accordingly         the accused persons had the requisite mens rea in the form of dolus eventualis.

 

[51]   For the above reasons the accused are found guilty of the crime of assault with           intent to cause grievous bodily harm.

 

 

 

_____________________

M. LANGWENYA

JUDGE OF THE HIGH COURT

 

For the Crown:                          Mr. M. Dlamini

For the Defence:                        Mr. B. Phakathi