IN
THE APPEAL COURT OF SWAZILAND
APP.
NO. 15/86
HELD
AT MBABANE
In
the matter of
MAGUNGWANE
SHONGWE
MANIKI
DLAMINI
SITSEBE
SHONGWE
vs
THE
KING
CORAM: MAISELS,
J.P.
ISAACS,
J.A.
VAN
WINSEN, J.A.
JUDGMENT
10/10/86
MAISELS,
J.P.
The
three appellants were charged in the High Court together with two
other persons with the murder on the 17th November, 1983 of a young
boy said to be about ten years old, one NJANI KUNENE. They all
pleaded "not guilty". The two other persons were acquitted
but the appellants were duly convicted. In the case of the first and
second appellants no extenuating circumstances were found and they
were sentenced to death. The third appellant, extenuating
circumstances having been found with some hesitation in his case by
the Court a quo, was sentenced to imprisonment for fifteen
years.
That
the young boy was murdered and his body mutilated for ritual purposes
admits of no doubt. The only question for decision by the Court apart
from that of sentence raised on behalf of the second and third
appellants, is whether the appellants were found beyond
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reasonable
doubt to have committed what was rightly described by Hannah C.J. who
tried the case with the assistance of two assessors as "horrifying".
It is quite unnecessary for me to deal with the extent of the
mutilation carried out on an innocent, defenceless young boy by the
perpetrators of this crime. It would not be inappropriate to say that
the murder was the murder by beasts.
Hannah
C.J. gave what in my opinion is a scrupulously fair judgment in which
he dealt more than adequately with all questions of fact and law
which arose in the case in a manner which I can only describe as
admirable. Indeed the judgment is so comprensive that it is
unnecessary for me to set out in any detail the evidence upon which
the convictions were based.
The
evidence against the appellants consisted firstly of that of an
accomplice called Mjoniseni Mkhabela who had been convicted of taking
part in the same murder with which this Court is now concerned. He
was sentenced to death by the High Court but on appeal, although his
conviction was confirmed, the sentence was reduced by the Court
of Appeal to imprisonment for eight years. The learned Chief Justice
correctly approached his evidence with considerable caution and
reminded himself of the danger of acting on his evidence, however
credible it might be, unless it was corroborated in a material
respect in the case of each accused. That the Chief Justice did in
fact deal with the evidence of this witness in this manner is
apparent from a reading of the judgment. I shall rafer to this
witness as an accomplice. Indeed if the Crown case rested on the
evidence of this witness alone it is clear that the appellants would
have been acquitted. The reason why the two other persons to whom I
have referred above, were acquitted, was because there was no
satisfactory evidence corroborating that of the accomplice.
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The
first appellant was at the time the crime was committed the Chief of
the Shongwe tribe in the Mashobeni area and a man of considerable
authority in that area. The second and third appellants were members
of his Inner Council as well as being inyangas or medicine men. The
victim of the crime was the nephew of the accomplice. He was said to
be "on loan" to the accomplice by his parents for
employment as a herd boy. Without going into detail which is set out
fully in the judgment of the Court a quo, the first appellant,
according to the evidence of the accomplice, succeeded after initial
refusals by the accomplice, in obtaining this young boy as a
herd boy. The accomplice stated that the first appellant said he
wanted the young boy in order to strengthen his position as Chief
because his people did not respect him. I might perhaps be permitted
to say that in my experience in this Court it has frequently, if not
invariably, been the case that a ritual murder is committed for the
purpose of strengthening either financially or in some other way the
position of the person who brings about a ritual murder. A brother of
the accomplice gave evidence that the second appellant approached him
for his co-operation in order to obtain the herd boy for the first
appellant. The accomplice gave a detailed account which, of course,
was to be expected as to how the murder was committed and as is
almost invariably the case, minimising the part he played. He
described how he found the victim in the company of two other young
boys, Mahhabenyoni Mhlanga and Mapuludi Mhlanga. He stated that he
had sent these two boys who were in the company of the victim, to
fetch some donkeys and took the victim to the first appellant, with
the co-accused and one other man beneath a tree near a broken fence.
The two young boys to whom I have referred are brothers and their
ages were estimated by the Court a quo as being sixteen years and
eight to ten years respectively. There is no doubt that there were
certain discrepancies in their evidence but there is equally no doubt
that the learned Chief Justice approached their
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evidence
with the caution requisite in the case of the evidence of young
children, particularly of the younger boy. To summarise, their
evidence was to the effect that they were in the company of the
victim when he went away from them and that they saw the three
appellants together clearly at a time near to sunset on the day when
the two boys parted company with the victim. The three appellants
were in a place near to where the victim wa taken. That the three
appellants were well known to the two young boys to whom I have
referred is clear. There cannot be a question of a mistake as to the
identity of the three appellants whom they said they saw. The first
appellant was their Chief, the second their close neighbour and the
third a man who frequented their parental homestead for beer drinks.
The learned judge a quo was satisfied that the two boys were credible
and reliable witnesses and that they did indeed see the three
appellants in the area to which the victim was taken. I should
perhaps have mentioned that according to the evidence the body of the
victim was discovered some days after the mutilation had taken place,
floating in the Komati River in the North of the country. The learned
Chief Justice correctly considered the evidence of the two yaung boys
as corroborative of that of the accomplice, as indeed it was.
What
was the defence of the appellants? In the case of all three it was in
effect what is known as an "alibi". The first appellant
stated that he had left Swaziland on the day in question, namely the
17th November, 1983, to visit a place called Tongah in the Republic
of South Africa in order to attend a meeting of his people at the
Magistrate's Court. There is no doubt that his passport shows, and
this was accepted by the Crown, that he did in fact cross the Matsamo
Border Post on that day and returned through the same Border Post on
the next day. He said he did not return to Swaziland on the afternoon
of the 17th November
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but
that he, together with other persons, stayed at the home of his
uncle, Joseph Shongwe not far from the Border Post. His reason for
spending the night there was that the Border Post closes at 4p.m. and
would have closed by the time of his arrival there. After coming to
Joseph's home he had been to drink and by this time it was dark. He
said he had drinks at various huts in the compound and eventually to
bed in the same hut as his brother, Sidumo, with whom he had been
travelling that day. When I say that Sidumo is his brother I should
have added that he is actually his cousin but apparently according to
Swazi custom would be known as his brother. He stated further that he
and Sidumo woke up the next morning, they washed and had tea and
Sidumo took him to the Border Post, and he crosed into Swaziland. He
said he only learned the deceased was missing the following week. He
denied most strenuously that he had anything to do with the killing
of the deceased. He further denied that he had ever asked for the
deceased. The burden of proof, of course, lay on the Crown to
negative this alibi and it did so in the following way. The
Investigating officer, Inspector Vilakati, prepared a plan of the
area which showed the spot where according to the accomplice the
killing and mutilation took place, the mango tree near where the
victim and the two young boys were when the accomplice says he found
them, the homestead of the second appellant, that of the first
appellant, that of Joseph, the Border Post and a path which the
Inspector stated went from near the first appellant's homestead to
the border fence, and from there to the home of Joseph Shongwe. It
was quite apparent to the Court a quo from the plan and the
Inspector's oral description of the distance involved that anyone at
Shongwe's place could, if he had wished to, cross the border fence
illegally and have been at the point where the young boys were when
the victim left the two of them within an hour or so. Put more
specifically, the Court found that the first appellant could have
left Joseph's home at any time
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between
4p.m. and 5p.m. and been at that place at about sunset. I should have
stated that the evidence of the two young boys was to the effect that
it was late in the afternoon when they were separated from the
victim. Needless to say, the first appellant denied that this is what
happened. He said that he had spent the evening and night at Joseph's
place, first drinking with Sidumo and others, and finally retiring to
bed in the same hut as Sidumo. However, according to the evidence of
Sidumo, who was called as a witness by the Crown, this was not the
position. Whilst he agreed that the first appellant had indeed come
to Tongah and had been at Joseph's place, he stated that shortly
after their arrival the first appellant went off, saying that he was
going to look for liquor. He thought that the time that the first
appellant left him was about 4.45p.m. Sidumo is employed by the
Government of Swaziland in the Department of Land Development of
the Ministry of Agriculture. Apparently he usually knocks off work at
4.45p.m. and the appellant had left him prior to that time. He says
the next time he saw the first appellant was some time before 8a.m.
the next morning when he drove him to the Border Post. He did not
knew where the first appellant had spent that night. The inference to
be drawn from his evidence, which was accepted by the Court a quo,and
there is no reason why it should not have been so accepted, indicates
quite clearly that the first appellant was untruthful when he said
that he had spent the night in Sidumo's hut. It follows from this and
the evidence given by the Inspector that there was no difficulty in
the first appellant leaving Tongah, going into Swaziland over or
across the border fence and committing the crime with which he
has been charged. It is quite correct to say that one cannot infer
guilt merely because an accused person has been found to have lied in
his evidence. I would respectfully approach this question in the
mariner in which it was dealt with in the Privy Council by Lord
Devlin in BROADHURST v REGINA (1964) 1 All E.R.
111
at 1 to 120 B Lord Devlin said:
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"It
is very important that a jury should be carefully directed on the
effect of a conclusion, if they reach it, that the accused is lying.
There is a natural tendency for a jury to think that if an accused is
lying, it must be because he is guilty and accordingly to convict him
without more ado. It is the duty fo the judge to make it clear to
them that this is not so. Save in one respect, as case in which an
accused gives untruthful evidence is no different from one in which
he gives no evidence at all. In either case the burden remains on the
prosecution to prove the guilt of the accused. But if on the
proved facts two inferences may be drawn about the accused's conduct
or state of mind, his untruth-fulness is a factor which the jury can
properly take into account as strengthening the inference of guilt.
What strength it adds depends of course on all the circumstances and
especially on whether there are reasons other than guilt that might
account for untruthfulness."
I
am unable in the present case to find reasons other than guilt that
might account for the untruthfulness of the first appellant. In my
opinion the Court a quo was entitled on the evidence to find that the
alibi was false and that the first appellant was involved in the
murder of the deceased.
As
far as the second appellant is concerned, he says he spent the whole
of the 17th November at home. He gave the names of persons who spent
the day with him. He was not obliged to call any of these persons as
his witnesses to support his evidence, but the fact remains
8
that
he did not do so. As the learned Chief Justice accepted that he was
together with the first appellant when the murder was committed there
seems to be no doubt as to his guilt as well.
The
third appellant denied any knowledge of the killing. He said he spent
the whole of the 17th November at his homestead building a kraal for
this goats. He stated he did not know the two young boys who gave
evidence in the trial. This, quite apart from the fact that this
evidence conflicts with that of the two young boys with regard to
their having seen him on the 17th November, but also on another point
they stated that they knew him because he came to drink at their
parents' home. He said that he had never been to that home and did
not even know where it was. In fact he maintains that he never drinks
at anybody's home except his own. The trial Court, not surprisingly,
did not believe him, and on acceptance of the evidence of the
accomplice where it was corroborated by that of the two boys,
correctly, in my opinion, convicted him as well.
The
fact that I have not dealt specifically with the strenuous arguments
advanced by Counsel for the appellants on their behalf in this Court
does not mean that I have not considered them. However, all these
arguments seem to have been advanced in the Court a quo and they were
rejected on sound grounds in that Court. I am unable to find any
reason for disagreeing with the conclusions of the trial Court as to
the guilt fo the appellants. It remains to deal with the question of
sentence.
Nothing
could be urged in extenuation of the conduct of the first appellant
if he was found guilty of murder having regard to his position as
Chief. Instead of setting an example to his people, he has behaved,
as described by the learned Chief Justice, as a "primitive
savage".
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