IN
THE HIGH COURT OF SWAZILAND
CRIMINAL
TRIAL NO.167/95
In
the matter between:
REX
VS
BHEKIE
ENOCK SIKHONDZE
CORAM
: J.M. MATSEBULA A.J.
FOR
THE CROWN : MISS S. NDERI
FOR
THE DEFENCE : MR. T. NKAMBULE
JUDGMENT
16/04/96
The
witness on whom the Crown would have relied for proving their case
against the accused has decided not to give to support the statement
evidence which she made to the police.
The
Crown is in charge of the proceedings and Miss Nderi has now decided
in terms of Section 6 of the CRIMINAL PROCEDURE AND EVIDENCE ACT to
abandon the prosecution at this stage. And she states that the reason
for this is because this witness has been declared a hostile witness
because she was not prepared to adhere to the statement she made
implicating the accused in the crime he is indicted on. The court
understands why the witness decided to change the statement she made
to the police and why she is now saying the police
2
told
her what to say. She stated that you are the father of her two minor
children but the court must make this very clear that it is not the
Crown who has failed to prove this case against you because this case
can have very far reaching implications in the society. The court
does not say it will acquit the accused because there is no evidence
or because the Crown has failed to prove the case beyond any
resonable doubt but because the Crown witness has decided to
somersault. As I said before this can have far reaching implications
in the matter because the relatives of the deceased may decide to
take the law into their own hands thinking the courts are not doing
their work when infact it is a member of the community, the witness
who has somersaulted.
The
court does not say at this stage whether or not you are the person
who committed the crime but the court is merely explaining because
there are so many stories going around that courts are releasing
guilty people because of the inefficiency of the prosecution. This is
a clear cut case where a member of the community decide to change the
statement in such a way that the possibility exist that the accused
is the one who murdered the deceased but because the member of the
community somersaulted, the accused has to be acquitted and; the
court or the prosecution should not be blamed.
3
It
is up to the Crown whether they want to deal with this witness in the
light of the cross examination conducted by Miss Nderi after the
witness has been declared a hostile witness or not. The court would
strongly recommend that that be done so that noone takes the law into
their own hands as a result of the court acquitting the accused at
this stage.
This
court is concerned but it is bound by the rules not by what we think.
The accused has pleaded not guilty to both charges that is the charge
of murder and armed robbery and, because the witness is not prepared
to give evidence the court must give the accused an acquittal. At
this stage the court finds the accused not guilty on both charges and
is discharged thereof.
J.
M. MATSEBULA
ACTING
JUDGE
