IN THE HIGH COURT OF SWAZILAND
CRIMINAL CASE NO. 82/99
IN THE MATTER BETWEEN:
REX
VS
SIDUMO SIPHO MNGOMETULU
CORAM : MATSEBULA J
FOR THE DEFENCE : MR. TWALA
FOR THE CROWN : MR. NSIBANDE
JUDGMENT
At the commencement of trial, I noticed that there was no indication on the Court’s file cover whether any pre-trial conference had been held. I then enquired from both counsel about the absence of such indication. Both counsel assured me that a pre-trial conference was held on 23rd July 1999 and the following was agreed upon:
1.
That the pathologist post mortem report be handed in by consent and all the contents be admitted as forming part of the evidence in the proceedings.
2. the medical doctor’s report in respect of the complainant on count two be handed in by consent and that the contents were not being disputed.
3. that the identity of the deceased was not being challenged.
Before the charges were put to the accused, Mr. Sibandze on behalf of the Crown applied for an amendment to count two to include the words “grievious bodily harm” instead of the phrase which read “causing her bodily harm”. Mr. Twala indicated that he had no objections.
Furthermore, Mr. Twala then made an application to the effect that certain information is likely to emerge during the trial having a bearing on the accused’s genital organs be not reported in the media, if the media journalists were present and wished to report such evidence. Mr. Twala informed the court that they had reached an agreement with Mr. Sibandze to this end. I asked Mr. Twala to cite the authorities for this strange application and I adjourned to enable him to find such authorities. After the short adjournment Mr. Twala informed the court that he was abandoning the application. The charges were then put to the accused. Accused pleaded as follows:- “I plead not guilty to both counts and in relation to count two,” he added, “I admit that it happened but it was not intentional.”
I indicated to Mr. Twala that subject to the Crown’s attitude whether or not they were prepared to accept lesser crimes than those preferred against the accused, I was going to record a plea of not guilty to both counts. The Court recorded a plea of not guilty to count one and two.
Thereupon Mr. Sibandze applied that the documents i.e. post mortem report and the doctor medical certificate be handed in as exhibit “A” and “B” respectively. This was done and the Crown called its first witness PW1 Sayinile Phetsile Siyaya. PW1 stated that she knew the accused and the deceased. The deceased was her sister and accused her brother in law. Deceased and accused were married and lived as husband and wife during her lifetime. It was her evidence that the complainant on count two was accused’s and deceased’s daughter.
She stated that on the 8th October 1998, it being a Sunday morning she, deceased and others were on their way to church when along the way they came upon the accused. Accused was standing next to a building which was in the process of being built. Accused greeted all of them. She testified that all responded but the deceased. She further testified that suddenly the accused turned upon deceased and attacked her. PW1 said she then ran away and raised an alarm. She said before this attack she and the others including the deceased were walking in horizontal fashion and deceased was the closest to accused.
PW1 said accused pounced upon the deceased, he called out “don’t you hear” and jumped upon the deceased. PW1 demonstrated before court in a stabbing fashion; and PW1 stated that accused stabbed her sister and when the knife fell down he picked it up again and PW1 stated that it was then that she saw the weapon with which accused stabbed her sister. She described the weapon as having a white handle with a hole at the end of the handle. She said it was a fixed blade bayonet type of a knife. When shown the weapon, she identified it and said it was the weapon accused used in stabbing her sister.
The court had a look at the weapon. It was a very large blade fixed measuring plus minus 6cms long and plus minus one centremetre in breadth with a very sharp edge and a thin pointed tip of the blade. It had a blue thread going into the hole and tied around it. It was PW1’s evidence that she only noticed accused stab deceased once and then she fled to go and raise an alarm. It was her evidence that when accused stabbed the deceased she had her baby the complainant on count two on her back. She said as she fled deceased was still on her feet. She looked backwards and saw her fall on her breasts. It was PW1’s evidence that when she returned she found deceased dead. PW1 said at that stage many people had gathered around her. The child on count two was also present and it was crying. PW1 stated that she looked at the child and noticed an injury on its right hand. The child could have been plus minus 3 to 4 years old, PW1 said.
A child was brought into the courtroom and PW1 identified it as the child she was referring to. That concluded PW1’s evidence in chief.
Under cross-examination she said her surname differed from that of the deceased because she is born of a sister to deceased’s mother and she has a different father but it is customary with Swazis to refer to each other in such a situation as sisters.
She admitted that accused and deceased had other children and that after some estrangement the deceased had the custody of these children.
She stated that a week before this incident deceased was staying at her parental home and not with accused. She did not know what the relationship of the accused and deceased was before the fateful day.
There was nothing of substance to challenge PW1’s evidence in cross-examination. The Crown also led the evidence of Simon B. Simelane PW2 a priest and a businessman and an uncle of the deceased. PW2’s evidence to a large extent corroborated the evidence of PW1 in so far as the relationship of accused and deceased was. It was his evidence that he was called to the scene after the deceased had been injured. PW1 said because deceased had very slight movement of her body he did not want to believe that she had been fatally wounded even though he says he could see human lungs protruding from her body. He arranged transport to convey her to hospital but she died before arrival at the hospital. PW2 noticed plus minus four injuries on her back and one on her side. The one on the side is the one that exposed her lungs. The doctor at the hospital could not admit her as she was already dead and referred her straight to the mortuary.
PW2 also identified a knife as being the knife that he found at the scene. It is appropriate to deal with the evidence of PW2 a priest at the church where both deceased and accused were members. PW2 testified that some time in 1995, accused was involved in a motor vehicle accident and was admitted in hospital – RFM Hospital. Whilst in hospital the deceased, his wife sat by his bedside. It was also PW2’s evidence that he would go there and conduct prayer sessions with the couple i.e. accused and deceased. On occasions that he visited the couple, deceased informed him that her husband had lost his manhood as a result of the motor vehicle accident. She related to PW2 that only a short part of his manhood had remained. At church, accused’s predicament was discussed with deceased but PW2 did not wish to include the accused in these discussions. It was further PW2’s evidence that after accused had been discharged from the hospital he and deceased stayed together. At some occasion deceased approached PW2 and complained that she was no longer able to pray anymore as he had advised them to pray without ceasing.
PW2 said deceased did not complain that she was sexually starved but that accused was making her life intolerable by continually asking her how many men had proposed love from her and how many she had had sexual intercourse with. These accusations made her very uncomfortable as there was no substance in them. PW2 stated that because of these false accusations of infidelity she was considering going back to her parental home in order to concentrate on her prayers. PW2 said he advised her against such a move and reminded her that she was married the accused.
PW2 said as a brother to the deceased’s mother as well as a priest neither the accused nor deceased’s mothers had at any stage came to him and reported that deceased was involved in any extra marital affairs. PW2 said on the fateful day of the stabbing some people brought accused to him with a large knife. PW2 said all he said to accused was that he had disgraced them. PW2 identified the knife as the one accused was carrying.
Under cross-examination PW2 admitted that accused was assaulted by many people after the incident. He also admitted that he and other members of the church had counselled the accused and deceased when there was a misunderstanding between them i.e. the accused making false accusation of deceased being unfaithful.
Constable 2464 Henry Dlamini was called as PW3. His evidence was that he received a report and went to a place near the church where he found a man lying unconscious on the ground and had injuries on the back of his head and on the sides. He said the man was accused before court. He took the accused to Mbabane Government Hospital where he was detained for one week.
At the scene of the crime, one Thamsanqa Dlamini handed a knife to him. He took possession of the knife and handed it in as exhibit “1”. This was the knife to which the previous witnesses had referred to.
PW3 also went to hospital where he saw the deceased and observed that she had suffered a number of injuries. Deceased was later taken to Dups Funeral Undertakers. He also saw complainant on count two and observed the injury on his hand. He subsequently charged the accused accordingly.
Under cross-examination he admitted having interviewed accused after he had recovered and discharged from hospital but accused had never brought up the misunderstanding between him and the deceased. Accused chose to reduce his statement to writing.
At the end of PW3’s evidence Mr. Twala on behalf of accused stated that the defence was admitting that complainant on count two was injured by the accused. That was the Crown case.
Mr. Twala called the accused to his defence. Accused stated he was 35 years old and was self employed as a builder. It was his evidence that he and deceased were married and had four children. They had been living together since 1985. He stated that in 1995 he was involved in a motor vehicle accident and in that accident he lost his manhood. It was his evidence that after he had lost his manhood, the marriage which had been heretofore happy became sour. He stated that a certain Rocks Lukhele became involved in their marriage. The accused said that he had made it a habit each day in the afternoon to go and meet his wife from her work place. He had done so on a certain day when he saw her come out carrying a bag of rice on her head and climbing down the steps. He noticed a man come from behind her and removed the bag of rice in such a way that his wife did not immediately feel that the rice had been removed. She eventually realised this but the man came back and placed it on her head again. This man then placed his hands on her shoulders playfully. He says he did not take kindly to this and approached the man, and wanted to grapple with him. Other people from his wife workplace intervened. Accused says that he then advised his wife that the occurrence be reported to the police. However the police suggested they should report it to the wife’s boss. This he did report to the personnel manager who promised to deal with the matter. It was his evidence that after this his relationship with his wife became worse. Accused admitted that the church people had also tried to counsel them in an endeavour to restore reconciliation after deceased had left him to go and stay at her parental home but all those efforts failed.
Amid all this, deceased changed her working shifts, so that instead of coming back to her parental home at the usual time i.e. in the afternoon, she would come back at 12 midnight and would be brought home in motor vehicles male driven. This, did not augur well with accused he says. Accused states that prior to the stabbing they had a quarrel with deceased. On some occasion she was not present at her parental home having disappeared on the 2nd October 1998.
On the day in question he had gone to get some wildlig broom from the mountain and noticed deceased arrive in the morning. When he saw deceased in the company of others he would greet all of them but deceased would not respond. When asked why she was not responding she would say, “leave me alone, you are annoying me”. Accused says he does not know how she and the child got injured. He states that he was admitted in hospital and does not know how he landed there.
The above, was, in short accused’s evidence. He was cross-examined by the Crown and amongst others he said the following:- He admitted that he and deceased were Christians in the same church and that he had reported the matter of their misunderstanding to the church people and was awaiting their response when this incident occurred.
He admitted that exhibit “1” was the knife he had used in stabbing the deceased and child.
He also admitted that some of the injuries were around her neck, he said he could say this, notwithstanding that he had a blackout.
He admitted that he had made a statement to the police and had written it himself in the siSwati language. He identified a statement shown to him but the Crown Counsel.
Mr. Sibandze asked him certain questions that were highlighted by the Crown and these reads as follows:- “These were translated by the official interpreter as accused read them in the siSwati language:-
“I suspected that she was pregnant. I looked for her and found that she was no longer sleeping at her parental home. This is what annoyed me most. She had taken an oath that she would never be unfaithful to me. She had also told her parents that she would not desert me even though I had been injured. She said as long as our marriage subsisted she will never desert me. This, she said both to my parents and her parents.”
A further passage reads:-
“When I got to the police station, I was not well, so I cannot deny whether I went home to fetch the knife. I did go and fetch the knife for the purposes of going to cut wildlig broom but I can remember that on that day I was not well. I cannot deny or admit having said, I did not intend to stab her around the neck but to pluck out her eyes.”
Lastly, accused told the court under cross-examination that deceased was only 23 years old. And that he had not waylaid her in order to kill her. Mr. Twala rested the defence.
Mr. Sibandze asked the court to convict the accused cognisance of the weapon used and submitted that the nature of the weapon and the area where accused directed his attack on the deceased and complainant on count two, the court would be perfectly justified in finding that the Crown had proved its case beyond a reasonable doubt. It was Mr. Sibandze’s submission that to inflict plus minus seven serious injuries there can be no mention of negligence or amnesia. Deceased, even according to the accused himself had undertaken never to desert him notwithstanding his unfortunate predicament submitted Mr. Sibandze. She died keeping her promise. She had married him for better or worse, in good health and in worse of times.
Mr. Twala also made submissions on behalf of the accused. It was Mr. Twala’s submission that the accused had suspected deceased of being guilty of infidelity and that certain events tended to support accused’s suspicion e.g. removing the bag of rice from the deceased’s head and the subsequent placing of the man’s hands on deceased. Mr. Twala said all this was done in the presence of accused.
Mr. Twala also said the fact that deceased suddenly decided to work night shifts and would be brought to her parental home by male drivers. Mr. Twala said these actions annoyed the accused and was a provocation act on the part of the deceased.
It was Mr. Twala’s submissions that the court should not consider these events in isolation, but should consider them as a chain of events starting from the rice incident up to when deceased failed to respond when greeted by accused and the words she uttered to wit , “leave me alone, you are annoying me.”
Mr. Twala then referred the court to the Culpable Homicide Act and the case of SIPHO ISAIAH LUKHELE VS R reported in the 1970-1976 SLR @164.
Mr. Twala also referred the court to AARON FANYANE DLAMINI 1979-1981 SLR @31. This is a case which dealt with among other things – temporary insanity and sane automatism – provocation and how these should be proved.
Having considered the submissions by the respective counsel I must now consider matters which are common cause and those which are not.
The evidence led by the Crown is mainly undisputed. The defence has admitted and this is the undisputed evidence i.e. that accused caused all the injuries which on count one caused the death of the deceased and on count two caused the injury to the hand of complainant on count two. The defence according to Mr. Twala is based on temporary insanity – sane automatism – provocation in the one case and because of deceased failure to respond when greeted by accused and the words used by her to the effect that accused should say and I quote, “ Leave me alone you are annoying me.”
Now the requirements of provocation are set out by the authors Burichell and Hurst No.1 SA CRIMINAL LAW AND PROCEDURE @ page 243. In my judgment, I do not wish to deal with the “Other Requirements’ of provocation but will confine myself to “Less of Control.” According to the learned authors provocation will only avail as a defence to criminal liability if it resulted in a loss of self-control. (see R VS MHLONGO (4) 574AD @581) to such an extent as to negate the requisite intention for the crime charged. (see R VS BUTHELEZI 1925 AD 160, 169, 172) The enquiry being “did the accused know what he was doing at the time of the crimes commission?” If the answer is in the negative, he lacked mens rea in the form of intention, if he knew what he was doing the conclusion is almost inevitable that he did
intend.
Accused’s evidence is to the effect that he and deceased lived together as man and wife from 1985. It was his evidence that in the year 1995 he was involved in a motor vehicle accident when he lost a portion of his manhood and his relationship with his wife became sour because of the loss.
His wife was employed where a certain Rocks Lukhele was also employed and would knock off work and accused would go and meet her. On one occasion he had gone to meet her when he noticed the said Lukhele playfully removing a pocket of rice from his wife’s head without his wife noticing this. She subsequently realised that her packet of rice had been removed. The said Lukhele then replaced the rice on accused’s wife. This action of Lukhele did not go down well with the accused especially when Lukhele pat accused’s wife. It was accused’s evidence that he then approached his wife and suggested that he and his wife should go and report his incident to the police. On reporting this to the police the police suggested accused should report this at his wife’s work place. Accused proceeded to report to a Mr. Mngometulu who advised that he was going to attend to the matter. Accused says after this, his relationship with his wife became worse. Thereafter his wife changed her workshifts and started working night shifts. This was; he says when she had gone and stayed at her parental homestead.
Assuming the court accepted all the concerns raised by the accused which led him to conclude that his wife was unfaithful. The questions that arises is “Are these good enough reasons to cause the accused to be so provoked that he loses self-control?” In my considered view the answer is a resounding “NO”. Certain portions of a statement which is alleged to have been made by the accused to the investigating officer and written in his, accused, own handwriting were put to him. Accused admits having said certain things, like, he fetched the knife from his home. These are very clear indications that accused had the requisite intention to commit the crimes of which he is charged.
The number of injuries inflicted on the complainant on count one also indicate that accused intended to commit the crimes.
I reject that accused had a black-out and suddenly committed these crimes, without intending to do so. I find the accused guilty on both counts.
SENTENCE
You have been convicted of very serious crimes. The crimes you committed are very inhumane and of brutal fashion. You stabbed a woman who during her lifetime accepted you as her husband. You stabbed her to death as a result of seven injuries inflicted with a very vicious looking weapon. A weapon which can only be used by human beings on a hunting expedition or in a war situation. This woman stood by you during a time when you needed her most – at your bedside at the hospital after the motor vehicle accident which resulted in the loss of a portion of your manhood. She had not contributed in any way whatsoever in this motor vehicle accident. On the contrary she assured you of her undivided support throughout your misery and undertook to be with you “till death do us part” as the saying goes. She had borne you children and at the time of her death she was carrying the youngest of your children on her back and was on her way to church. In the process of inflicting these vicious injuries on her you also caused a grievious injury on your child’s hands.
The court has taken all the factors mentioned by Mr. Twala on your behalf. What saved you from capital punishment is the fact that you subjectively believed that no matter how sincere your late wife undertook to be faithful until death “do us part” she would never keep that promise.
Sentencing is a very difficult task for any judicial officer. In the matter of S VS QAMATA 1997(1) SACR 480 @499 Jones J expressed the following in regard to sentence:-
“It is now necessary for me to pass sentence. In doing so, it is proper to bear in mind the chief objects of punishment, namely, retribution, the prevention of crime, the deterrence of criminals, and the reformation of the offender. It is also necessary to impose a sentence which has a dispassionate regard for the nature of the offence, the interests of the offender, and the interest of the society. In weighing these considerations I should bear in mind the need:-
(a)
to show an understanding of and compassion for the weakness of human beings and the reason why they commit serious crimes, by avoiding an overly harsh sentence.
(b) to demonstrate the outrage of society at the commission of serious crimes by imposing an appropriate, and, if necessary a severe sentence and
(c) to pass a sentence which is balanced, sensible, and motivated by sound reasons and which will therefore meet with the approval of the majority of law abiding citizens. If I do not, the administration of justice will not enjoy the confidence and respect of society.”
I am in respectful agreement with the sentiments of the learned Judge. Having considered all the circumstances of this case, I pass the following sentence:-
On count one: accused is sentenced to an imprisonment for fifteen (15) years backdated to the 8thOctober 1998.
On count two: accused is sentenced to an imprisonment for one (1) year backdated to 8th October 1998. The two sentences are hereby ordered to run concurrently.
J.M. MATSEBULA
JUDGE
