IN
THE COURT OF APPEAL OF SWAZILAND
APPEAL
CASE NO. 18/00
In
the matter between:
MARWICK
ABRAHAM SIBANDZE
VS
THE
KING
CORAM
:
BROWDE J A
:
VAN DEN HEEVER JA
:
SHEARER JA
FOR
APPELLANT :
FOR
RESPONDENT :
JUDGMENT
VAN
DEN HEEVER JA:
The
appellant was despite his plea of "not guilty" convicted in
the High Court of murder, and of assault with intent to do grievous
bodily harm. He belatedly lodged an appeal against both conviction
and sentence, explained the reasons for his delay, and asked that
that be condoned. The Crown did not oppose and it was granted.
2
The
charges are based on the events of the 10th April 1998, first at the
homestead of Simiso Mkhonta and thereafter at the homestead of the
appellant himself, in the District of Shiselweni.
The
appellant has two brothers who were involved with him n the events of
that day. Undisputed facts are that the appellant and a brother - a
reasonable inference is that it was Maguma - left home at about ten
that morning to go to a soccer match. When it was over, they went to
Mkhonta's homestead where they and a number of others had drinks.
Mkhonta reported to the appellant that his (appellant's) epileptic
brother Habula was in the throes of a seizure and needed attention.
The appellant's attitude was that it was Mkhonta's responsibility to
cope with Habula's seizure, since Habula worked for Mkhonta (The
precise nature of that relationship is in dispute but also
irrelevant) Mkhonta made arrangements with the owner of a vehicle,
Ngwavuza Malinga, to convey Mkhonta to the latter's own homestead.
Mkhonta and a number of others put Habula into the vehicle, and
accompanied him to his homestead and deposited him there. The
appellant stayed behind, still drinking, until Maguma said they had
better leave and report at home that Habula had suffered an attack.
The appellant left, but was sidetracked because en route Themba
Vilakati wished to speak to him. When he did arrive home, he found a
number of people there, who had brought his brother Habula home.
Shortly afterwards the appellant pulled an okapi knife from his
pocket, stabbed Hosha Ndlovu in the heart and Jabulani Vilakati in
the back, and then sat down. Hosha died then and there. The appellant
was arrested there some hours later by the police to whom some of
those who had conveyed Habula home, had gone to report. The
3
death
of Hosha Ndlovu is the subject of the murder count, the stabwound
Jabulane received, that of the assault charge.
When
he was arrested, and in his evidence in court, the appellant claimed
that he had been attacked and had acted in self defence.
The
prosecution witnesses all denied that there had been any quarrel at
Mkhonta's homestead, though the deceased had asked why the appellant
was neglecting his brother; and others admitted that they did not
approve of the appellant's having refused to assist his brother. They
were all ad idem that neither the deceased nor Jabulani nor any else
involved in taking Habula home, had attacked the appellant, or had
any weapon in his hand when the appellant stabbed the two.
The
appellant's version was that:-
At
Mkhonta's house the deceased, who was brother-in-law of Mkhonta,
suggested that he, the accused, should be beaten up, pushed him up
against a wall, insulted him, because the appellant was "always
talking politics" -
scil. classifying as such the appellant's attitude that Haluba's
seizure was a cross his employer rather than his brother had to
bear.
At
the appellant's own homestead, the deceased had called him a fool,
accused him of abandoning his brother, slapped him on the cheek with
his jacket three times. When, his own patience having run out, he
tried to retaliate, Mkhonta kicked him on the chest. When he tried
to flee into his house, Jabulani blocked his way.
4
The
three started attacking him. He felt his leg go numb and afterwards
saw a stabwound on his left thigh. He took his knife out of his
pocket, stabbed the deceased who moved out of his way leaving him
with only two to contend with. Jabulane was trying to deprive him of
his knife, but got a knife-wound in the back. "They" then
ran away towards the car which had brought Haluba.
The
appellant's version is riddled with improbabilities and
self-contradictions (e.g. that he had "rushed" home to
report about his brother's condition, which does not tally with his
admitted conduct after Mkhonta spoke to him). Most of the detail of
his version is not detailed enough (e.g. exactly what the three
alleged attackers had done to necessitate his drawing out his knife,
and how it happened that en attacker should have been stabbed in the
back). Moreover most of his tale was never put to the Crown
witnesses. Nor did he call any of those he alleged had witnessed the
attack upon him, his wife and/or his brother - to support his own
testimony. To accept his evidence as being reasonably possibly true,
would involve acceptance that the Crown witnesses had put their heads
together to lie in concert to implicate him falsely in the criminal
activity laid at his door. He testified that he had asked the police
to take him to a doctor because of the wound he had allegedly
received. They denied that he had mentioned any wound to them. There
was no suggestion that he sustained any other injuries -even a bruise
- which the police could and should have seen in the
three-against-one "fight", the only detail of which he
gave, was that the deceased had hit him three times on the cheek with
his "slumber jacket".
5
The
statement he made at the police station, which was handed up as
exhibit C makes no mention of any wound. He admitted that it had been
read back to him before he signed it, and did not draw attention to
the alleged omission. Nor did he produce anything like a slashed pair
of trousers which must inevitably have been occasioned by the thigh
wound he spoke of in his evidence. And he admitted under
cross-examination that the relationship between him and the three
alleged assailants had been a good one in the past, and that he could
think of no reason why they, or Bhutana Xaba, should come and lie
against him. The last of these - not someone who had anything to do
with any argument or alleged attack, - he tried to eliminate from the
picture by saying that Bhutana had not been there at all - which
makes it even less probable that he would come forward and tell lies
in concert with the others to further the Crown's case against the
appellant.
There
is no misdirection discernable in the reasoning of the court a quo.
In my view the conviction of the accused was inevitable.
The
sentences imposed - to run concurrently - were one of eight years for
the murder and four years for the assault, backdated to the 10th
April when the appellant was arrested. Although the appellant was a
first offender and had six children of whom three are still
school-going, the sentence on the first count if it errs, does so in
being too light. The appellant had liquor, but there is no suggestion
that he was seriously affected by what he had imbibed. His conduct
towards his brother Habula was callous, in leaving him to
non-relatives to care for while he
6
himself
finished drinking what they had bought until his brother Maguma urged
him that they shoulc leave. "The reason that made me not to go
to see my brother was because of the way Mkhonta approached me. He
did not approach me in a very good manner". And he admitted that
the deceased (one of those who had brought Haluba home) had done him
no damage other than allegedly to hit him on the cheek with his
jacket. He himself was not stabbing wildly when he was "attacked".
"In fact I bore a grudge with the deceased because he was one
who had tried to pick up a fight with me at Simiso's homestead and
again at my homestead".
The
appeal is dismissed, the convictions and sentences are confirmed.
L
VAN DEN HEEVER J A
I
AGREE :
J.
BROWDE JA
I
AGREE :
D.L.L.
SHEARER J A
Delivered
on this day of June 2001
