IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Criminal Case No.431/2011
In the matter between:
REX Applicant
VS
CELIWE NOMCEBO SIMELANE Respondent
Neutral citation: Rex vs Celiwe Nomcebo Simelane (431/2011) [SZHC ] [2013] [9th August 2013]
Coram : MAPHALALA PJ
Heard : 16th JULY 2013
Delivered : 9th AUGUST 2013
For the Crown : Miss E. Matsebula
For the Accused : Mr. B. Manana
Summary: (i) The accused person indicted with the crime of murder and pleaded guilty to culpable homicide and the Crown does not accept the plea.
(ii) The Crown led a number of witnesses to prove its case and the accused gave evidence under oath denying the evidence of the Crown witnesses.
(iii) The court finds the accused guilty of murder on the basis of a single witness being PW1.
Decided cases referred to:
Rex vs Sifiso Dumsane Khumalo Criminal Case No.195/2005
Khumalo and Others vs Rex 1979-1981 SLR 259
King vs Sandile Mbongeni Mtsetfwa Criminal Case No.81/2010
JUDGMENT
The indictments
[1] The accused person Celiwe Nomcebo Simelane of Zindwendweni area of Chief Gasawangwane is indicted with the crime of murder that upon or about 2nd April 2011 and at or near Lubuli area in the Lubombo region, the said accused person did unlawfully and intentionally kill one Philile Khulu.
The plea
[2] The accused person pleaded guilty to culpable homicide which plea was rejected by the Crown and the Crown is represented by Miss. E. Matsebula a prosecutor in the Director of Public Prosecution department. The accused is represented by Mr. Manana. Due to the nature of the plea entered by the accused as well as the accused’s defence most of the issues have been curtailed.
The chronicle of the evidence
(i) For the Crown
[3] Before the commencement of the evidence of the parties the evidence of the identification witness PW14 in the Summary of Evidence Busisiwe Mngomezulu was entered by consent of the parties. So was the evidence of the post mortem report was entered by consent of the parties. The said report was entered into the evidence of the Crown as exhibit “D”.
[4] The Crown proceeded to call a number of witnesses starting with the evidence of PW1 Nomcebo Simelane who testified that she witnessed the assault on her mother the deceased by the accused person on the day in question. She was cross-examined at some length by the Defence attorney. However, in my assessment of her demeanour she was not wavered at all.
[5] The second witness for the Crown was PW2 Khanyisile Mngomezulu who testified before court that the accused came where she was with others carrying a baby on her back. That accused asked where the deceased was. The accused left. Later on she was informed of what had happened to the deceased. This is about the extent of her evidence. She was also cross-examined searchingly by the attorney representing the accused person but she was not wavered in her replies.
[6] The Crown then called its third witness one PW3 Jabulani Mngomezulu who testified that he came across the accused who was carrying a baby in the company of a male person he did not know. He testified that he asked her if she knew that the police were looking for her and the accused responded in the negative. He then asked the accused to accompany him together with the said male person to his work place. He then called the Police. This is about the extent of his evidence. He was cross-examined briefly by the Defence where he maintained his evidence in chief.
[7] The Crown then called PW4 5437 Constable Mngomezulu who was police officer under the Scenes of Crime department at Lubulini Police Station. He was a Scene of crime examiner. He testified about his examination of the crime scene and photographs he took and handed them to court as part of his evidence. These were entered as exhibit “MW1 and MNR” collectively. He also identified certain exhibits being the knife that was used in the commission of the offence which was entered as exhibit 1 and 2 being the handle and the blade respectively. Further the sneakers worn by the accused were entered as exhibit “4”; and a black skirt entered as exhibit “5”. Furthermore a T-shirt was entered as exhibit “6” and a skull cap as exhibit “7”.
[8] This witness was also searchingly cross-examined by the attorney for the Defence where his evidence was left intact.
[9] The sixth witness for the Crown was PW6 4254 Constable Bhekinkosi Msibi a Police Officer based at Lomahasha Police Station. At the material time he was based at Lubulini Police Station and was the investigating officer in this case. His evidence is on how he proceeded with his investigations of this case. He was cross-examined briefly and nothing much of substance was revealed thereby.
(ii) For the accused person
[10] The Crown then closed its case and the accused gave evidence under oath and was cross-examined by the attorney for the Crown. The accused denied evidence of PW1 stating that it was false. The accused did not call any witness to support her evidence.
The arguments of the parties
(iii) For the Crown
[11] Both attorneys of the parties filed useful Heads of Arguments for which I am grateful to both for professionalism in handing the matter. They also each advanced formidable arguments in court before me.
[12] It is contended for the Crown that the only evidence that implicates the accused is that of PW1, a young girl who was in the company of the deceased on the day in question. PW1 testified that the accused confronted her and her mother whilst her mother was answering a call of nature and said she wanted to kill them. She ran away and came back to find the accused assaulting the deceased but she was not in a position to see if the accused was carrying any weapon. The Crown contends that this is the only evidence that place the accused at the scene of the crime. The Crown then cited the case of Rex vs Sifiso Dumsane Khumalo Criminal Case No.195/2005 citing the case of Khumalo and Others vs Rex 1979-1981 SLR 259 where the court held the following:
“it is competent for a court to convict on the evidence of a single witness’ testimony but the testimony requires to be determined with reference, inter alia, to such factors as the probabilities, the contradiction of his evidence by other evidence, and his interest adverse to the accused. It must be borne in mind that the ultimate enquiry is whether the Crown on the strength of the single witness has discharged the onus of proving the guilt of the accused beyond reasonable doubt. Whereas, in this case, the version of the events as told by the Dube and that as told by the accused is mutually destructive a court must be satisfied on good grounds that the version of Dube is true and that of the accused false.”
[13] The Crown contends that in the present case the evidence of the single witness was not contradicted save for one issue that in the night in question there was no moonlight. The Crown contends that the issue of the presence of moonlight is not fatal to the Crown’s case or the fact that there is contradiction on the evidence of the Crown when it comes to this issue. That the most important thing is that PW1 was able to identify the attacker as the accused and that was not disputed by the accused.
[14] The Crown further advanced arguments on pages 3, 4 and 5 of the unpaginated Heads of Arguments. The topics covered in these Heads of Arguments were the issue of intention and accused’s defence citing the High Court case of The King vs Sandile Mbongeni Mtsetfwa Criminal Case No.81/2010 to the following legal proposition:
“...there appears to be two cognate elements to an accident. The first, there must be no intention on the part of the doer to obtain the results of his action. In other words, the results of his actions must be intended by him or by her. Secondly, it is the forseability test, which necessarily invades the concept of a reasonable man i.e. whether a person of reasonable prudence would have foreseen the harm and taken reasonable precautions to guard against it eventuating. It is against both yardsticks that the defence raised by the accused ought to be considered in cash.”
[15] The final argument advanced by the Crown is that in view of all the circumstances it cannot be said the accused’s action were lawfully done under a reasonable belief that no harm was possible. It cannot be said that the fatal stabbing of the deceased by accused was caused by unforseable occurrence.
(ii) The defence’s arguments
[16] The attorney for the accused person also filed very useful Heads of Arguments and made submission before me. The crux of the defence is that accused was acting under the influence of alcohol and a fit of jealousy after she discovered that the father of her child was not home and that he was rumoured to be having an affair with the deceased. In this regard the attorney for the accused contended that culpable homicide is the unlawful and negligent killing of another person. That it was held in the case of R vs Mokhosi Matekane 1961-62 HCTLR at page 53 to the following proposition:
“A combination of circumstances may suffice to repel an inference of intention so as to show that the onus of proving intention has not been discharged by the Crown.”
[17] Defence attorney contended that in view of the above legal authority that the accused person did not realize the risk and/or foresee that someone would be fatally injured when she waved the knife to try to scare the group of boys away. In this regard cited the case of Mathenjwa vs R 1970-76 SLR 25 where it was said that if the accused did not realize the risk, it will be culpable homicide, whether not she ought to have realized the risk. Since she killed unlawfully, this would be culpable homicide.
[18] In the totality of the evidence led by the accused she cannot be found guilty of murder but of the lesser crime of culpable homicide.
The court analysis and conclusions thereof
[19] Having considered all the evidence in this case that of the Crown and that of the accused and the able submissions of the attorneys of the parties it is my considered view that the arguments of the Crown are correct on a number of fronts.
[20] Firstly, it is without question that the deceased died of multiple stab wounds inflicted by the accused on the day in question.
[21] Secondly, it is also without question that the accused and the deceased shared a boyfriend who was a bone of contention in the whole tragic saga. Furthermore it is consented by the accused attorney that the accused acted in a fit of jealousy in attacking the deceased leading to the death of the latter.
[22] Thirdly, it is also conceded by the accused and her attorney that the accused was acting under the influence of alcohol and a fit of jealousy after she discovered that the father of her child was not at home yet he was rumoured to be having an affair with the deceased.
[23] Lastly, and fourthly this case cannot be culpable homicide in view of the stab wounds inflicted on the deceased that she was under the influence of alcohol in a fit of jealousy is neither here nor there for purposes of imputing intention on her part.
[24] I agree with the arguments of the Crown that it was proved that the unlawful killing of the deceased by the accused was intentional. PW1 told the court that when the accused approached them she stated that “I want to kill you”. It was not put to PW1 that she was lying about this even though later under cross-examination the accused attempted to dispute. If the accused never uttered these words it should have been put to this witness. I agree with the Crown’s argument that the uttering of such words and actions of the accused thereafter show that she intended to kill the deceased. The fact that the accused was intoxicated does not help the accused in anyway except to prove that she indulged in alcohol to gain “Dutch courage” in a fit of jealousy and does not interfere at all with the fact that she had the intention to kill the deceased. These issues can only help the accused in mitigation or the existence of extenuating circumstances.
[25] In the result, for the aforegoing reasons the accused Celiwe Nomcebo Simelane is guilty of the murder of one Philile Khulu on the 2nd April, 2001 and at or near Lubulini area in the Lubombo region.
STANLEY B. MAPHALALA
PRINCIPAL JUDGE
