IN
THE APPEAL COURT OF SWAZILAND
HELD
AT MBABANE APP. CASE NO.20/85
JOANA
T. DLAMINI
AND
THE
QUEEN
CORAM: MAISELS,
J.P.
AARON,
J.A.
HANNAH,
C.J.
JUDGMENT
(11/3/86)
Hannah,
C.J.
On
the 5th June, 1985 this appellant was convicted of murder and was
sentenced to death. She now appeals against both conviction and
sentence.
The
principal Crown witness, Lindiwe Dlamini, was presented to the trial
court as an accomplice: her evidence may be summarised quite shortly.
The appellant apparently stood in loco parentis to her and she
resided at the appellant's homestead. The victim of the alleged
murder (to whom I shall refer as "the deceased") was her
lover but, she said, in about October, 1984 the appellant encouraged
her to form a relationship with one Musa Kunene who appeared at the
trial as the appellant's co-accused. According to the accomplice,
during the month of October the appellant suggested to the co-accused
that he should kill the deceased. The reasons for this suggestion are
not altogether clear but it would appear that the appellant wanted
the accomplice's relationship with the deceased conclusively
terminated thus clearing the way for her own protege and she also had
a desire to rid herself of the deceased's father who was also
resident at the homestead. The co-accused agreed to the proposal,
though reluctantly, and a date was set for the murder.
2
The
accomplice then described in some detail what occurred on the
appointed evening. I do not consider it necessary to set out her
evidence in any detail. She described a charade whereby the
co-accused faked drunkeness and was removed from the house by the
deceased at the instigation of the appellant and how the deceased
came to sleep next to her. Another person in the house, Thandi
Dlamini, was, she said, locked in a bathroom by the appellant and the
co-accused returned to the house and was let in by the appellant. The
co-accused was then supplied with some dagga by the appellant to give
him courage and the co-accused then stabbed the deceased to death.
The appellant was present while this occurred and attempted to
prevent blood from the deceased flowing onto the floor. The deceased
was then dressed by the appellant and his body was placed outside the
house. The floor was then washed in order to remove traces of blood
and when this was completed Thandi was released.
The
evidence of the accomplice was corroborated in material respects by
Thandi who was also called by the Crown. She confirmed that the
deceased had removed the co-accused from the house and that
subsequently she, herself, had been locked in the bathroom by the
appellant. She shouted to be released but no one came. While there,
she could hear people moving in the house and the sound of the front
door being opened and finally she was released from the bathroom by
the appellant. The appellant gave her no explanation for her
temporary incarceration. She then went to sleep next to the
accomplice and noticed that the floor was wet as if it had been
washed. Later in the night the co-accused, who had left earlier,
knocked on the door and the appellant was awoken. The appellant
warned him to say nothing to the police and instructed him to spend
the rest of the night at the house because his clothes were blood-
3
stained.
When Thandi questioned her about the blood-stains she disclaimed any
knowledge of it. In the early hours of the morning the appellant let
the co-accused out of the house and again warned him to say nothing
to the police.
The
co-accused gave evidence in his own behalf and admitted to killing
the deceased but claimed that he had been incited to do so by the
appellant. His evidence was in line with that given by the
accomplice. The appellant, on the other hand, denied all knowledge of
any plan to kill the deceased or of her alleged complicity in the
killing. She was suffering from the after-effects of a tooth
extraction that evening and after the evening meal had gone to bed.
At about 10p.m. she was informed that the co-accused was at the door
wanting to see the accomplice but she refused him permission to
do so and again went to her bedroom where she took painkillers and
went to sleep.
As
appears from the foregoing summary the main issue for determination
at the trial was one of credibility. The learned Chief Justice
resolved this issue in favour of the Crown. He was clearly impressed
by the accomplice whom he described as "a very good witness
indeed" and pointed out that her evidence had withstood
lengthy cross-examination without damage. He expressed himself
satisfied that her evidence was completely truthful. He also accepted
the evidence of Thandi and that of the co-accused and rejected that
of the appellant.
Mr.
Ndzimandze has submitted that the learned Chief Justice in making his
findings on credibility failed to support them with any detailed
reasons and has referred to certain South African authorities which
indicate that a trial judge is expected to state reasons for his
findings.
4
While
it may be that the learned Chief Justice could have gone further in
setting out his analysis of the probabilities and improbabilities
arising from the evidence I am satisfied on my own analysis of the
evidence that the probabilities and the weight of the evidence were
overwhelmingly against the account given by the appellant. In
particular, there is not the slightest suggestion that Thandi was
party to this crime and on her account the appellant must have been
actively engaged in what happened that night and was not, as the
appellant claimed in evidence, asleep in her bed. When the
probabilities arising from the evidence are taken together with the
learned Chief Justice's assessment of the witnesses his findings on
credibility were, in my opinion, completely justified.
A
further point made by Mr. Ndzimandze concerned the absence of any
reference by the Chief Justice to the fact that the co-accused was an
accomplice and that his evidence should be treated with caution.
While I am prepared to accept that it is desirable that the evidence
of a co-accused which implicates another accused should, in certain
circumstances, be approached in much the same way as any other
accomplice this is no more than a rule of practice and failure by the
judge expressly to warn himself is not necessarily, in my opinion, an
irregularity. See R v Prater (1960) 44 Cr. App. R.83 CA and R v
Stannard and Others (1964) 48 Cr. App. R.81. In the instant case the
learned Chief Justice clearly had well in mind the need to look for
corroboration of an accomplice as he expressly directed himself on
the question in relation to Lindiwe's evidence and, in my opinion,
there is no reason to think he did not approach the evidence of the
co-accused in like manner.
Another
point advanced by Mr. Ndzimandze turns on his contention that
parts of the accomplice's evidence were inconsistent with the summary
of her evidence which was before the trial court but
5
which
is not, I might add, part of the record before this court. Relying on
S v Xaba 1983(3) S.A. 717 Mr. Ndzimandze submits that in these
circumstances it was the duty of the Crown to provide the defence
with a copy of her statement for the purpose of cross-examination.
While I accept that there is a duty on the Crown to draw the
attention of the defence to any serious discrepancy which emerges
between the evidence of a crown witness and a prior statement made by
that witness that duty is, I think, fulfilled if the serious
discrepancy is readily apparent from the summary of evidence already
provided by the Crown. It then becomes a matter for the defence to
decide whether to cross-examine on the basis of the summary and, if
necessary, to ask for the witness's statement to be disclosed.
That was not done by the defence attorney in this case, and in my
view, the defence now has no legitimate ground for complaint. Quite
apart from the foregoing, Mr. Ndzimandze was unable to advance such
discrepancies as there may have been as serious discrepancies.
In
my judgment, the learned Chief Justice weighed all the material parts
of the evidence which was placed before him and I can find no reason
for interfering with his findings of fact. I would therefore dismiss
the appeal against conviction.
As
for sentence, no extenuating circumstances were found by the learned
Chief Justice and Mr. Ndzimandze has been unable to present any
argument that they should have been. This was a planned, deliberate
murder perpetrated in cold blood and for my part I also can see no
basis for a finding of extenuating circumstances.
I
would therefore dismiss this appeal in its entirety.
N.R.
Hannah
CHIEF
JUSTICE
I
agree.
I.A.
Maisels
JUDGE
PRESIDENT
I
agree.
S.
Aaron
JUDGE
OF APPEAL
