IN
THE COURT OF APPEAL OF SWAZILAND
HELD
AT MBABANE Appeal Case No. 20/99
In the matter between
MNCAYI HARRY
MTHETHWA Appellant
Vs
REX Respondent
CORAM LEON, JP
VAN DEN HEEVER, JA
BECK, JA
For Appellant In
Person
For the Crown Mr. M.
T. Nsibandze
JUDGMENT
LEON, JP
In this case the appellant was convicted of murder with extenuating
circumstances and sentenced to 15 years’ imprisonment.
The
appeal is brought against both the conviction as well as the
sentence.
When the appeal
was called the appellant’s counsel was not present. However
the court enquired from Mr. Nsibandze, who appeared
for the Crown,
whether he supported the conviction. After some discussion, counsel
for the Crown conceded that the Crown was not
able to support the
conviction. This concession was in accordance with the view
which the Court had formed
about this case. The Court made an
order allowing the appeal and setting aside the conviction and the
sentence stating that reasons
would be filed later. These now
follow.
At the commencement
of the case the court a quo held
a trial within a trial in order to determine whether a certain
statement made by the appellant to a police officer but not
recorded
before a Magistrate was admissible. It held that it was not because
it was a confession but nonetheless relied upon it
in its finding
that extenuating circumstances were present in this case. In this
regard the court said this:-
“Your victim may never have known that you suspected him to
be a witch.”
Apart from the confession which was excluded there was no evidence
whatsoever before the trial court that the appellant suspected
the
deceased “to be a witch”.
I turn now to deal
with the evidence which was led. The correctness of the post-mortem
report on the death of the deceased was
admitted by consent. It was
to the effect that the deceased, one Zephania Maraiza
Dlamini, aged 65 years, had died as a
result of liver laceration which was caused by a gunshot wound and
that the post-mortem examination
was carried out on the 22nd
June 1998 which was two days after the death of the deceased.
Having failed in its
attempt to secure the conviction of the appellant by reason of the
confession the Crown relied upon other
evidence to which I shall
briefly refer.
One of the investigating
officers in this case is PW8 Constable Sihlongonyane. After the
death of the deceased the appellant was
arrested and interviewed.
The appellant made a report to him. As a result of the report they
proceeded to Makholweni. There
the appellant, about 150 metres away
from his homestead in a field, pointed out a spot underneath some
grass. They dug up the
soil and they found a pistol loaded with five
rounds of ammunition and other ammunition which was not in the
magazine but wrapped
in plastic. They also found 20 12-bore live
rounds of ammunition for a shotgun which was red in colour. The son
of the appellant
was present.
They then went to the
alleged scene of the shooting together with the appellant to search
for an empty cartridge. One was subsequently
retrieved by some
school children but not in the presence of the appellant. It was
handed to Sergeant Magagula who is the scene
of crimes officer.
With regard to the
firearm which was exhibited, there was no ballistic evidence whatever
to show that it was the weapon which killed
the deceased nor was
there evidence that the empty cartridge (which was not produced in
evidence) was fired from the firearm.
Thus neither the firearm nor
the cartridge was proved to have been linked to the death of the
deceased.
PW8 denied a suggestion
in cross-examination that the spot where the firearm was retrieved
was pointed out by police officer Vilakazi.
He also denied that
before the pointing out the appellant was assaulted by himself and
other police officers.
He agreed that the
appellant and his son were both detained and in different police
cells.
It was suggested to him
that he said to the appellant that he was wasting his time and his
son had already told the police that
the firearm was hidden. The
witness said that the appellant’s son informed the appellant
that he had told the police that
the firearm was hidden at
Makholweni.
He denied that the
appellant’s son was crying and that his eyes were red.
The appellant was taken
to a magistrate to make a statement but was advised by his then
attorney not to do so and he did not make
any such statement.
Albert Dlamini was PW7.
He was asked by the police to accompany them to the scene of the
shooting and assist them in finding the
empty cartridge. He
travelled to the scene with the appellant.
The appellant said
to him not to worry and that the deceased was injured by him (the
appellant). One Maduna, who has since died,
was present. The
appellant said that he had injured the deceased because the latter
had killed his children. The appellant did
not say how he had killed
the deceased. There was no evidence that any of the appellant’s
children were killed. Indeed
in his evidence the appellant
said that they were alive.
In cross-examination it
was put to him that the appellant would deny having made any
admissions to him. The witness replied that
he had and that if
Maduna were still alive he would confirm that
He also denied that the
appellant had, under the “sisa” custom ever lent any
beasts to him or that the appellant had
retrieved one or that he was
very bitter about the matter or that he had ever gone to the royal
kraal and told lies against the
appellant.
The Crown then informed
the court that it had decided not to call the son of the appellant
presumably because it felt that it could
not rely upon his evidence.
However the court
decided to do so; and Makhosonke Robert Mthethwa who was to have
been the fifth prosecution witness, but had
been abandoned as such,
was nevertheless sworn in as PW5.
He did not witness the
shooting of the deceased but he said that he and his father had
buried a firearm. His father told him that
it was used in injuring
the deceased.
In cross-examination he
agreed that one of some ‘sisa’ cattle had been returned
to his father by Dlamini, the others
having died, which was in
conflict with Dlamini’s evidence.
He said that he was
assaulted by the police. His hands were tied together and he was
suffocated with a tube. He said that the
police also assaulted his
father.
He then contradicted his
earlier evidence by saying that his father had never told him that he
had injured the deceased. Then
when asked by the Judge he said again
that his father had told him so. A short while later he repeated to
defence counsel that
he and his father had never discussed the death
of the deceased.
Then he was asked again by
the Judge which version was true and he answered that his father had
told him that he had injured the
deceased.
With so many contradictions in evidence it is not possible to place
any reliance upon it at all. However in his judgment the
learned
Judge found that under cross-examination he maintained the position
he had taken and did not “budge”. That
in my view is a
clear misdirection on the facts.
There
is a further problem which relates to his evidence. At page 77 of
the record, and while counsel for the defence was cross-examining
PW5
the Court intervened as follows:-
“Judge: Let us not put leading questions. I am not
stopping you from asking leading questions because you are entitled
to cross
examine if you like but if you put question in that way,
suggest an answer. The answer you get is not worth much.”
Defence
Counsel then said:-
“ Let me rephrase the question. Fortunately he had not
answered it.”
The
intervention by the learned judge a
quo had the effect of inhibiting
the cross-examination. It was not justified and amounts to a
misdirection. Once a witness has been
called by a court counsel for
the Crown and the defence are free to cross-examine such witness for
he or she is not called by them:
he or she is not their witness.
They cannot, and should not be, deprived of such right nor should it
be restricted as it was in
this case; nor is it correct that answers
to leading questions “are not worth much.” The answers
may be invaluable
to destroy the credibility of the witness.
The appellant gave evidence under oath. He testified that he had
denied all knowledge of the gun to the police. The police then
assaulted him saying that he was wasting their time. His son told
the police that the firearm was at home. They then took him
to the
deceased’s homestead where they came out with a woman Ntshakala
(the sister-in-law of the deceased.).
A police officer, Vilakazi, pointed out a spot and asked the lady to
dig. They found a plastic bag containing a firearm. The
appellant
told the police he knew nothing about it.
He said that there was enmity between himself and Albert Dlamini
over cattle: he had sisaed three cattle to Dlamini, two of which
had
died and Albert did not want to return the third one to him. He
denied having said anything to Albert Dlamini about the deceased:
the
latter was a liar. He added that his children were not killed: they
were still alive.
With regard to his son’s evidence he said that his son had
been tortured by the police.
The appellant testified that he was a traditional healer who used
muti. He admitted in cross-examination that he used to give
the skin
and the head of the cattle to the Dlamini family and some of the meat
and at that time there was no bad blood between
them.
It was put to him that if the police had assaulted him he would have
reported to his chief but he did not. But the appellant
said that he
had already been detained by the police and never went home.
He assumed that the police went to dig at the spot in question
because of what Ntshakala must have told them.
He denied having a firearm and said that to the extent that his
son’s evidence implicated him his son had been tortured
by the
police.
The Court then, before the defence had closed its case, called
Elizabeth Ntshakala who was sworn in as PW10.
It appears from page 93 of the record that the first part of her
evidence was not recorded.
She confirmed other evidence that the appellant pointed out the spot
where the police were to dig. She did not know what the
police were
looking for. She gave the police a digging tool. She denied a
suggestion in cross-examination that she was lying.
The appellant’s
son was also present.
She was unaware of any trouble between the appellant and the
deceased or between the appellant and Albert Dlamini.
A witness Sikhumbuzo Mzikalifani was sworn in as DW1. He said that
he was the appellant’s uncle but it transpired that
they were
second cousins. He confirmed that the appellant had sisaed three
cattle to Mr. Dlamini a long time ago. Two had died
and an ox had
remained. It was he who had collected the remaining ox from Mr.
Dlamini. His evidence is thus in conflict with
that of the latter.
In
dealing with this conflict the court a
quo held that the defence
evidence on this point was not of such weight that it ought to find
that Mr. Dlamini was a liar and it was
difficult to see why an
honourable man such as Mr. Dlamini should falsely implicate a
neighbour because of a sisa transaction.
However, what weighed with the court was clearly the evidence of the
appellant’s son. The court said this “whatever
deficiencies there may be in the evidence, and I am not sure that
there are any, are completely outweighed by the fact that the
accused
admitted not to one person but to two persons one of them being his
own son that he was responsible for the wounding and
eventual death
of the deceased.”
It is clear from what I have set out above that the court a quo
relied heavily on the evidence of the appellant’s son but
it
should not in my view have relied upon it at all. As I have pointed
out his evidence was so full of contradictions that it
should have
been dismissed out of hand.
In view of the misdirections in this case, the conviction can only
be upheld if a trial court, properly directed, would inevitably
have
come to the same conclusion. It is quite impossible to arrive at
such a result. The case is a very slender one. At best
for the
Crown, all one has is a pointing out of a firearm not linked to the
murder. As for the admission to Albert Dlamini, there
was defence
evidence in conflict with his and there are no adequate grounds for
rejecting that defence testimony.
For these reasons the appeal was allowed and the conviction and
sentence were set aside.
_______________________________
LEON,
J.P.
I
AGREE _______________________________
VAN
DEN HEEVER, J.A.
I
AGREE _______________________________
BECK,
J.A.
DATED AT MBABANE THIS………………….DAY
OF MAY, 2000
