IN
THE HIGH COURT OF SWAZILAND
a
Absalom
1
CRIMINAL
CASE NO. 143/96
IN
THE MATTER BETWEEN:
THE
KING
VS
ABSALOM
VELIBANTI MATSABA
CORAM
S.B. MAPHALALA - AJ
FOR
CROWN: MR D. WACHIRA
FOR
DEFENCE: MR G. MASUKU
JUDGEMENT
(09/10/97)
The
accused in this matter is charged with murder. It is alleged that on
or about the 5th August 1996, at or near Dwaleni area in the District
of Manzini, the said accused unlawfully and intentionally killed
Zimbili Makhanya.
The
accused pleaded not guilty to the offence. At the commencement of the
trial a statement made by the accused to a magistrate in terms of
Section 226 of the Criminal Procedure and Evidence Act No. 67 of 1938
was entered by consent and entered as part of the crown case as
exhibit "A". Further a post-mortem report by the police
pathologist Dr Reddy was also entered by consent and marked as
exhibit "B". According to Dr Reddy, the police pathologist,
the deceased died as a result of "head injury with penetrating
injury over right neck (involved vertebra, large blood vessels)".
Furthermore, the identity of the deceased was not an issue.
The
crown called three witnesses to prove its case. The first crown
witness PW1 Gugu Sithembile Mathunjwa told the court that on the day
in question she saw the accused who is known to her talking to the
deceased. She heard the accused asking the deceased why he had robbed
him of his money.
The
deceased then apologised to the accused. She saw the accused
attacking the deceased and she decided to go into her house. She
emerged later. She went to where deceased was and she found him lying
down dead. She was cross-examined at length by
a
Absalom
2
defence
counsel and it was suggested to her that in this case it was the
deceased who was the aggressor. However, the witness was not wavered
and she stuck to her original story that she saw the accused hitting
the deceased. I believe her and I have no reason to doubt her
testimony. She appeared to me to be an honest witness who had no
reason to fabricate a story against the accused.
She
was so honest in that she said she did not see what the accused used
to hit the deceased.
The
crown then called its second witness PW2 Sibonginkosi Cyril Xaba. He
told the court that on the day in question he was at home when he
heard the accused telling the deceased that he wanted his money back
which the deceased had pick-pocketed at Kasoso. He heard the deceased
telling the accused to forgive him. He heard a loud noise as if a
person was hitting another. He was later informed that the deceased
had died.
This
witness was also cross-examined at length by the defence, however he
maintained his story that he did not see the actual assault but heard
a loud noise as if one person was hitting another.
The
crown then called its last witness PW3 1736 Moses Dlamini the
investigating office in this case.
He
told the court that upon receiving a report on deceased death on the
5th August, 1996 he proceeded to the scene. At the scene he found
deceased body lying down dead. The deceased had a bleeding wound near
the ear. He then conveyed the body to R.F.M. hospital mortuary. He
then arrested the accused person on the 7th August 1996 at
Sidvokodvo. He then took the accused person to the Malkerns Police
Station where he cautioned him in terms of the Judges' Rules. The
accused stated that he wished to make a statement before a Judicial
Officer. He then took the accused to Magistrate J.M. Gumedze. Later
on the accused took him to Dwaleni area near a river where he removed
a stick and a knife from a bush.
At
this stage the crown closed its case. Whereupon the accused gave
evidence under oath being led by his attorney Mr Masuku. The accused
gave a lengthy account on what transpired that day leading to the
death of the deceased. The gist of his story is that the cause of the
friction between him and the deceased was that sometime in 1993 he
was pick pocketed by the deceased the sum of E50-00. He was again in
1996 at Kasoso's place the deceased pick pocketed him a sum of El0-00
it transpired from his evidence that the deceased had some reputation
in the area as a pick pocketer. On the day in question he confronted
the deceased and asked for his money back. This was taking place at a
shebeen and they were drinking liquor. A fight ensued between him and
the deceased over the money. Other people in shebeen intervened and
calmed them down. Thereafter, they proceed to drink with others. At
about 7.45pm he proceeded to go home and he was carrying a stick for
support when walking. As he was about to reach a small gate of the
shebeen the deceased emerged and demanded to know why he had picked a
fight with him earlier on in the day. He shouted three times for help
but no one came to his rescue. The deceased then pretended as if he
was ducking he then hit him with the stick to neck once and accused
came down on his knees. The deceased rose up and came to him. The
stick fell behind him. The
a
Absalom
3
accused
tried to kick the deceased but lost balance and nearly fell. The
deceased advanced towards him and he pushed him. He then felt a cut
on the finger. He then took the knife and stabbed randomly and he did
not see where he had stabbed the deceased. He later gathered that he
had injured the deceased near to the ear.
He
then took his stick and left the deceased there. The deceased
complained that he had stabbed him. The accused told him that he had
started this early in the day. He learnt the following day that the
deceased had died.
The
accused was subjected to lengthy cross-examination by the crown. I
must say that the accused did not project a favourable impression to
this court. He gave contradictory answers to questions. His version
of what took place that fateful night conflicts materially with the
account he gave to the magistrate in exhibit "B".
The
court then heard submissions from the crown and from defence counsel.
I have listened to these submissions by counsel very carefully and I
have also availed myself to the authorities cited by defence counsel
on the question of self-defence (see South African Criminal law and
Procedure Vol II Hunt's Milton (2nd ED) Page 341)
In
the present case we have the evidence of two crown witnesses against
the evidence of the accused. The two crown witnesses did not tell us
much for one to infer that the accused had the necessary "mens
rea" to commit the offence. PW1 only saw the accused attacking
the deceased. She does not tell us with what was the accused
attacking the deceased. She then went indoors. Her evidence was not
helpful at all to this case. PW2 did not even see the attack he heard
a loud noise emanating from where the accused and the deceased were.
He surmised that the noise was like when a person was assaulting
another. This does not tell us what was the weapon used and by whom.
Again this evidence is of little assistance to the court. What the
court is left with is the evidence of the accused. No one other than
himself know what lead to the death of the deceased.
Accused
story has a grain of truth in it and I have no reason to reject it.
In the circumstances of the case I give the accused the benefit of
the doubt that he intended the death of the deceased. It is my
considered opinion that a proper verdict in the circumstances of this
case would be that of a lesser offence of culpable homicide. It was
not denied by the defence that the deceased died as a result of the
wound inflicted by the accused.
I
thus, find the accused guilty of the crime of culpable homicide and
not murder.
SENTENCE
a
Absalom
4
The
court has taken all the personal circumstances of the accused into
consideration in arriving at a proper sentence in this case. The
accused has told the court under oath that he is 53 years old and is
married with two wives. He has 24 children in all and that these
children depend on him for material, emotional support as a father
figure. The accused is a first offender for the purposes of these
proceedings.
However,
the offence committed by the accused is a serious one where a life
was lost. There are far too many such cases before this court where
knives are used with fatal results in drinking places.
Invariably,
the accused persons in these cases come before these courts shedding
crocodile tears for lenient sentences.
In
the circumstances of this case I sentence the accused to 7 (seven)
years imprisonment of which 5 (five) years is suspended for a period
of three years on condition that the accused is not convicted of an
offence in which violence is an element committed during the period
of suspension.
The
sentence is backdated to the 7th August, 1996.
S.
B.
MAPHALALA
ACTING
JUDGE
