IN
THE COURT OF APPEAL OF SWAZILAND
HELD
AT MBABANE Appeal Case No. 11/2001
In
the matter between
NHLANHLA
CHARLES MORATELE 1st
Appellant
PARTY
MERVIN DLAMINI 2nd
Appellant
And
REX Respondent
Coram LEON,
JP
TEBBUTT,
JA
BECK,
JA
For Appellant
For
Respondent
JUDGMENT
LEON,
JP
The
appellants were the first and second accused respectively in the High
Court and they will be referred to in this judgment as
accused Nos. 1
and 2 respectively.
The
two accused appeared in the High Court on a charge of murder it being
alleged that on 19 November 1998 and at or near Msunduza
Location,
Mbabane, the two accused, acting in common purpose did unlawfully and
intentionally kill Lucky Vilakati.
Despite
their pleas of not guilty the accused were found guilty as charged;
extenuating circumstances having been found, accused
No. 1 was
sentenced to nine years’ imprisonment and accused No. 2 to
seven years’ imprisonment.
The
appeal is brought both against the conviction as well as the
sentence.
No
medical evidence was led for the post-mortem report was handed in by
consent. According to that report the cause of death was
shock and
haemorrhage following upon a stab wound of the lung. This wound was
an incised wound to the left side of the chest.
The pathologist
found only one other injury, namely, a smaller incised wound over the
outer aspect of the left upper arm in its
upper third described in
the report as “defence wound” which I take to mean a
wound inflicted at a time when the deceased
was defending himself.
There
is no direct evidence as to who inflicted the fatal injury and the
case against the accused depends upon circumstantial evidence.
That
being so, it was contended both in the Court below and on appeal that
in a case of circumstantial evidence regard must be
had to what was
held in the oft-quoted case of R
v Blom 1939 AD 188 namely
that
in
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
1. The
inference sought to be drawn must be consistent with all the proved
facts otherwise it cannot be drawn.
2. The
proved facts must be such that they exclude every reasonable
inference save that which is sought to be drawn.
And,
as correctly pointed out by Mr. Sigwane on behalf of the accused, it
is necessary for a Court, in dealing with circumstantial
evidence, to
consider the cumulative effect of the evidence and decide whether on
the evidence as a whole the guilt of the accused
has been proved
beyond reasonable doubt.
With
that brief prelude I turn now to consider the evidence. In this
regard the learned trial judge has given an extremely lengthy
judgment in which all the facts are set out in great detail. I do
not intend to repeat the exercise. It is not necessary to do
so.
The
dramatis personae in
this case are: Mamakie Dlamini (PW1) who was the lover of the
deceased; the deceased Lucky Vilakati; Lorraine Bhila, PW2 who
is the
sister of PW1; Fikile Lukhele (PW3) who was the lover of accused No.
1; accused No. 1; accused No. 2, who is the son of
PW3, but not the
son of accused No. 1. The evidence reveals that he regarded accused
No. 1 as his step father.
PW3
owned a motor vehicle although there is some suggestion in the
evidence that she owned the motor vehicle jointly with accused
No. 1.
On
the fateful day it seems to be common cause that PW1, PW2, PW3 and
the two accused had all had a fair amount to drink. Indeed
PW3
declined to drive her car when it was required for a mission because
she had had too much to drink. This caused the deceased
to offer his
services but he did not have the keys of the car which were in the
possession of accused No. 1. Not deterred he managed
to start the
car without a key and the car drove off on the mission. The Crown
evidence was that accused No. 1 had refused to
part with the keys.
The party comprising the deceased, PW3 and one Mhlume then drove off
ultimately arriving at Gobholo. The
three of them entered a bedroom
and drank some beers. According to the evidence of PW3 while they
were drinking beers accused
No. 1 stormed in shouting at the deceased
for starting the vehicle without keys. This caused PW3 to move away
and it was the last
time that she saw the deceased alive. Later PW3
was slapped by accused No. 1 when he found her.
The
evidence on this part of the case by accused No. 1 is similar
although not precisely the same. He arrived at Gobholo to find
the
deceased and PW3 (his girlfriend) sitting on a bed in the bedroom and
drinking. This drinking annoyed him for he asked why
they were
drinking in the bedroom and not the sitting room. He also raised the
question as to how they had managed to drive the
motor vehicle
without keys. He confirmed that PW3 had run away and that it was
much later when he found her and slapped her.
The
background evidence, to which I have briefly alluded, shows that
accused No. 1 was angry with the deceased for having driven
the car
without keys and also for being in the bedroom with his girlfriend
PW3.
PW1
takes up the story from there. After meeting friends she returned to
her house later that evening to find that the deceased
was lying in
bed. Shortly after that accused No. 1, in the company of accused No.
2, pushed the door open asking for the deceased.
They went straight
to the bedroom. Accused No. 1 asked the deceased why he had started
the motor vehicle without him while accused
No. 2 asked “What
do you want from my mother?” PW1 asked them not to make a
noise which caused accused No. 1 to slap
her with an open hand. Both
the accused made feinting gestures towards the deceased, accused No.
1 with a bottle and accused No.
2 with his fist. This alarmed PW1
who told her sister PW2 that she was going to call the police. She
asked a neighbour to do
so. After that she returned to her house but
did not enter it as it was in darkness. She did enter it when the
police arrived.
On arrival the police lit a torch and found the
deceased lying behind the door. They shook him but he did not
respond. They
took the deceased to the hospital but on arrival there
he was pronounced dead. In her sitting room she found a bloodstained
knife
(Exhibit 1) and a bloodstained skipper (Exhibit 2) which, it is
common cause, was won by accused No. 2.
As
to the earlier events PW2 confirms the evidence of her sister. They
returned home together after visiting friends. Her room
is adjacent
to her sister’s house. She heard a noise coming from her
sister’s house; it sounded like a fight. She
entered the
bedroom and found the deceased lying in bed reading a book. Accused
No. 1 and accused No.2 were there. She heard
accused No. 1 say that
he found the deceased in bed with PW3 at Gobholo and he also stated
that the deceased had started the motor
vehicle without a key.
Accused No. 1 made feinting gestures at the deceased with a beer
bottle while both the accused punched
him but she admitted in cross
examination that she did not see any blows land. The deceased was
unarmed. PW2 confronted accused
No. 1 who slapped her causing her to
fall down.
PW1
then informed PW2 that she was going to call the police and left.
After that accused No. 2 took off his shirt saying to the
deceased,
“What do you want with my mother?” After that the light
went out and she heard a commotion; she heard the
noise of a breaking
bottle. Accused Nos. 1 and 2 came running out of the house. PW2
then went to look for the deceased. Although
her evidence in chief
on what happened then was inaudible it appears both from the
cross-examination and the re-examination that
in the dark she stepped
upon the hand of the deceased at the entrance to the bedroom but the
deceased did not move. It seems to
me to be highly likely that, at
that stage, the deceased was either dead or unconscious and that the
fatal wound must have been
inflicted which caused the deceased, who
had been lying in bed, to land on the floor. I mention this because
there was evidence
from PW2 that after she had stepped on the hand of
the deceased some unknown boys rushed into the house looking for the
deceased
but ran away when the police arrived. There was some
suggestion that the deceased may have been killed by these unknown
boys on
the evidence of PW2. I do not consider such a possibility to
be a reasonable one.
The
evidence of the accused was different. Accused No. 1 admitted being
annoyed to discover the deceased drinking in the bedroom
with his
girlfriend PW3. He further admitted slapping PW3 when he eventually
found her.
He
had earlier gone to PW1’s house to look for PW3. However, his
version of what happened thereafter differed sharply from
that of PW1
and PW2. He stated that a fight took place between PW1 and the
deceased after the former accused the latter of sleeping
with PW3.
Accused No. 2 tried to separate them. The deceased grabbed accused
No. 2 by his shirt, he heard the sound of a breaking
bottle and
accused No. 2 came out naked above the waist and covered in blood.
He saw that accused No. 2 had a cut above the eye
and they then left
the house of PW1. He agreed that the light had gone out but that was
when PW1 and the deceased were fighting.
The
evidence of accused No. 2 was substantially the same as that of
accused No. 1. He denied the Crown evidence that he had ever
threatened the deceased saying that he wanted to teach him a lesson.
In particular he confirmed the evidence that the fight was
between
the deceased and PW1, that he had entered and been injured near the
eye by the deceased the injury causing substantial
bleeding.
According to him his wound was stitched at the hospital. He also
claimed to have been throttled by the deceased. A
number of aspects
of his evidence and that of accused No. 1 were not put in
cross-examination. Both the accused admitted being
on good terms
with PW1 and PW2.
The
trial judge was impressed with the evidence of PW1 and PW2, not with
PW3 nor the accused. With regard to PW1 and PW2 I do not
consider
there to be any adequate grounds to disagree with that conclusion.
With regard to PW3, her evidence is not of much importance
and on her
own evidence she was clearly very drunk. I also consider that the
Court a quo was
correct in rejecting the evidence of the accused. If their story was
true why should PW1 rush off to call the police? Moreover
they
agreed that they were on good terms with PW1 and PW2. A number of
aspects of their evidence, as I have already noted, was
not put in
cross-examination.
I
am unpersuaded that the trial court erred in accepting the evidence
of the Crown witness and rejected that of the accused where
it
conflicted with the Crown case.
However
the above conclusion does not dispose of the matter because the Crown
faces a real difficulty. It may safely be inferred
that the
deceased was killed by one of the accused. But which one? Although
the shirt of accused No. 2 was bloodstained that
does not necessarily
prove that it was he who killed the deceased. The blood may have
come from a wound above his eye. The killing
took place in the dark
and there are no eye witnesses as to who inflicted the fatal injury.
All that one can conclude is that
one of the accused did so. This
difficulty would have been overcome if the Crown had been able to
prove that the accused who did
not kill the deceased had a common
purpose with the one who did. Here, too, the Crown must fail. There
is no evidence that either
of the accused was seen in possession of a
knife and on the evidence the knife was probably produced for the
first time in the
dark after the light had gone out. There is no
evidence that the accused who did not have the knife saw it before
it was produced
by the killer. Common purpose has not been
established.
Mr.
Ngarua who appeared for the Crown initially contended that common
purpose had been proved but later conceded that he was unable
to
overcome the difficulties in the way of the Crown and agreed that the
accused should only have been convicted of common assault..
I
agree. I should add that there is no proof that any of the
“feinting” blows landed.
The
accused have been in custody for 31/2
years. I consider
that the justice of the case will be met if the sentence is altered
in each case to one of 31/2
years imprisonment backdated to the date of the arrest of the accused
on 19 December, 1998.
In
my judgment the appeal must be allowed and the conviction of murder
set aside. It is ordered that the accused are both convicted
of
common assault. The sentences are set aside and are substituted in
each case by a sentence of 31/2
years imprisonment which is backdated to 19th
December, 1998.
LEON, JP
I
AGREE TEBBUTT, JA
I
AGREE BECK, JA
DATED
at Mbabane
this………..day of …………….2002
