IN
THE HIGH COURT OF SWAZILAND
CRIM.
CASE NO. 80/97
In
the matter between
THE
KING
VS
1.
BHEKEE SIHLONGONYANE
2.
MATHOKOZA KUNENE
CORAM
: DUNN J.
FOR
THE CROWN : MR .J. MASEKO
FOR
ACCUSED NO.1 : MR R. DLADIA
FOR
ACCUSED NO.2 : MR M. NXUMALO
JUDGMENT
16TH
DECEMBER 1997
The
two accused are jointly charged in an indictment of two counts, with
the murder and robbery of Thabo Michael Magagula at Bulunga area on
the 1st February 1997. The accused pleaded not guilty to the charges.
The
crown's evidence is to the effect that a white sedan motor vehicle
drove past a homestead, in the Bulunga area where a prayer service
was being held at about 3.00p.m. Saturday 1st February 1997.
Shortly
thereafter some gunshots were heard. The witness Mciniseli Dlamini
and other persons who were at the prayer service left the service in
order to investigate the source of the gunshots. The white vehicle
was then seen reversing to a nearby bush. Two men then proceeded to
remove an object from the vehicle which they placed in the bush. The
vehicle then drove off. The object that was left in the bush was
later found to be the body of the deceased. There was a gunshot
injury on the left side of the deceased's neck.
2
Dr.
Reddy, the Police Pathologist, compiled a report indicating that the
deceased died as a result of a firearm injury. Details of the
location and track of the injury are set out at page 2 of the report
which was handed in by consent as part of the evidence in this case.
The
deceased's body was identified by his brother Sikelela Magagula.
According to Sikelela the deceased was employed by him as a taxi
driver. The deceased had left home on the morning of the 1st February
driving a white Toyota Cressida Sedan registration No. SD 507 V.M.
Sikelela next saw the motor vehicle about two weeks after the 1st
February 1997 at the Malkerns Police Station. The vehicle had
according to the police been found abandoned at Mkhumbane area on the
5th February 1997.
At
about 5.00 p.m. on the 1st February 1997 Sipho Mamba an employee of
Tibiyo TakaNgwane came across a white Toyota Cressida Sedan parked in
the bushes at Luvatsi Ranch. The vehicle's registration plates had
the letters V.M. The vehicle was unattended. As Mamba walked away
from the vehicle he met two men one of whom drew a gun and ordered
him to come closer to them. Mamba was made to remain with the two men
until after sunset when the two men drove off in the vehicle.
According
to Mamba, the reason given by the two men for his detention was that
they wished to remain in hiding until after sunset as they feared
that if they released him, he would make a report to his co-workers.
It was also Mamba's evidence that one of the two men whom he
identified as accused no.1 stated that he knew Mamba's home
3
area
and that they started talking of events in that area. Mamba
identified the second man as accused no.2. The two accused later
returned to the ranch, in the company of the police on the 24th
February.
According
to Mamba the police asked the accused if he (Mamba) was the man. The
accused replied that he was.
Mlotshwa
Mbhamali, a traditional healer (inyanga) told the court that he was
paid a visit by two men on a. Saturday night some time early this
year. The two men came in a white sedan. Mbhali identified the two
men as accused no.1 and 2. According to Mbhamali the accused
requested him to use his bones to divine as to why they had come to
him. Mbhamali did so and told the court that he informed the accused
that they would be arrested as the police were after them. The
accused then stated that they had shot and killed a person at Bulunga
area for refusing to hand over his motor vehicle to them.
According
to Mbhamali the accused requested him to assist them in avoiding
detection. Mbhamali told the court that he informed the accused that
his fee would be E2,00.00. The accused said they did not have any
money. They instead left a handgun and ammunition with Mlotshwa,
saying that they were going to look for money. Accused no. 2 returned
on a Sunday to collect the handgun and ammunition.
No
payment was made to Mlotshwa.
Mlotshwa
turned out to be a most difficult and unreliable witness. The court
was obliged to intervene in an attempt to clarify his evidence as to
the exact sequence of events and as to precisely at what stage the
alleged confession was
4
made
to him by the two accused. It was Mlotshwa's evidence that he did not
assist the accused as they had requested, because they did not have
the money for his services. The question of the gun being left as a
form of security remains a mystery. Mlotshwa was at first forthright
and certain that accused no.2 had returned to collect the handgun on
the very next day following the accused's visit to him. He was later
questioned as to whether or not he had reported to the police that
the accused had confessed to him. His reply that he had reported the
incident to the police on the Sunday following the accused's visit
placed him in difficulties, necessitating his having to change his
evidence to stating that accused no.2 had collected the gun on some
other Sunday.
Luigi
Dlamini told the court that he knew the two accused. Sometime in
January or February 1997 accused no.2 offered to sell him a
radio/cassette player,. for his motor vehicle. Accused no.2 later
delivered the" radio/cassette player at Dlamini's work place.
The cost of the radio/casette player was E100.00. It, was Dlamini's
evidence that he paid accused no.2 a total of E30.00 before the
police came with accused no.2 and took possession of the
radio/cassette player.
A
member of the Umbutfo Swaziland Defence Force came across accused no.
2 on the 18th February 1997 in the big Bend area. Accused no. 2 was
searched and he was found in possession of a handgun and 42 live
rounds of ammunition. Accused no. 2 was handed over to the police at
Big Bend.
5
Accused
no. 1 was arrested in Nhlangano in connection with some other matter.
The Manzini Police men started interrogating the two accused in
connection with the present charges. According to the investigating
team the houses of the accused, in Big Bend, were searched in the
presence of the accused on the 23rd February. An umbrella, 12
cassettes and a carton of electric bulbs were found in accused no.
2's house.
The
umbrella, 8 of the cassettes, the electric bulbs, the radio/cassette
player recovered from Dlamini were identified by deceased's
girlfriend, Gugu Zwane, at the Manzini Police Station as items
belonging to the deceased.
According
to the investigating officers a third person, Zweli Hlatshwayo was
also taken into custody in connection with the murder of the
deceased. The officers were not in a position to give the precise
date of Hlatshwayo's arrest. Accused no. 2's Attorney maintained
throughout the cross examination of the officers that Zweli was
arrested before accused no. 2. Detective Sergeant Mkhabela told the
court that on the 28th February the two accused in the company of
Hlatshwayo went and pointed out a spot where pieces of plastic which
were said to be windshields for a motor vehicle were recovered.
The
witness Zweli Hlatshwayo gave evidence and left the Court with the
distinct impression that he knew substantially, much more than what
he testified to. He was a most evasive and shifty witness.
He
stated that he had
6
been
subjected to assaults and torture with the two accused by the
investigating officers. It is not clear as to why he was assaulted
and tortured if as he told the court all he did was to attempt to
assist the two accused in selling a motor vehicle. It was his
evidence that he was approached by the two accused in the evening
whilst he was at his in-laws place at Sitfwetfweni area near
Hhelehhele sometime in February 1997. The accused were driving a car
which accused no.2 said he was selling.
The
vehicle was a Toyota Cressida Sedan. Hlatshwayo did not take notice
of the registration plates. It was Hlatshwayo's evidence that he went
with the two accused to one Robert Mkhabela at Ngwane Park. He
thought that Mkhabela would be interested in the vehicle. Mkhabela
was not interested in the vehicle and the accused requested him to
accompany them to Big Bend so that he could return with the vehicle
for safe keeping at his place in Manzini. Hlatshwayo states the he
agreed and proceeded to Big Bend. The accused removed an Umbrella,
car radio cassettes and light bulbs from the -vehicle.
He
then drove the vehicle and parked it in a forest at Timbutini. On the
following morning, he met accused no.2 and told him that he would let
him know where the vehicle was after a buyer had been identified.
Later that morning he met with Robert Mkhabela who made a report to
him about the owner of the vehicle. He (Hlatshwayo) confronted
accused no.2 with the report and accused no.2 stated that accused
no.1 had shot the deceased. Thereafter arrangements were made for him
to go and show accused no.2 where the vehicle was parked. Accused
no.2 never turned up at the appointed time.
Instead
one Sipho Zungu came and collected the motor vehicle. Throughout
7
this,
Hlatshwayo elected not to report the matter to any body.
In
the course of the trial, when Hlatshwayo could not be located to come
and testify, Mr Maseko for the crown indicated that Hlatshwayo was in
fact an accomplice witness. I pointed out that that was not apparent
from the summary of evidence furnished by the crown. It became quite
clear in the course of Hlatshwayo's evidence precisely why Mr Maseko
had indicated that Hlatshwayo was an accomplice.
As
I pointed out earlier, it is quite clear that Hlatshwayo knows a lot
more than he was prepared to tell.
Despite
his not having formally been introduced at an accomplice it is
necessary that his evidence be approached with caution.
The
accused each gave evidence on oath in which they stated that it was
Hlatshwayo that approached them whilst they were seated in accused
no.2's house in Big Bend and requested accused no.2 to deliver the
car radio/cassette player to Luigi. Hlatshwayo then made a loan of
E50.00 from accused no.2 that he would leave the cassettes and other
items as security for the loan.
The
accused denied being on the Tibiyo farm. It was their evidence that
they were taken to the farm by the police after their arrest and
shown to Mamba.
The
two accused remained totally unshaken in their evidence of how the
items that were identified as belonging to the deceased were found in
accused no.2's house at Big Bend.
8
They
maintained that the pointing out of the pieces of windsheilds was
done by Hlatshwayo.
The
explanation given by the accused for the visit to the Inyanga,
Mlotshwa was that accused no.2 had a chest ailment for which he
required attention. He was given medication by Mlotshwa and the
handgun was accepted by Mlotshwa as security for his fees.
There
is no basis on which the evidence of Hlatshwayo can be accepted in
preference to that of the accused. Hlatshwayo proved himself to be a
totally unreliable witness. Approaching his evidence with the
necessary caution, he does not make it pass the first test set out in
the case of MANDLA HOMEBOY DLAMINI v.R. 1982-86 II SLR. 384.
A
similar fate must follow the evidence of Mlotshwa. The accused have
given a plausible explanation for their visit to his homestead. He
has turned out to be an unreliable witness.
When
the shortcomings and discrepancies in the evidence of Mlotshwa and
Hlatshwayo were pointed out, Mr Maseko proceeded to urge the court to
draw certain inferences from what he described as the evidence as a
whole. The first inference he sought to have drawn was that the
firearm which was left with Mlotshwa was the firearm that had been
used in killing the deceased, for the reason that the accused told
Mlotshwa that they had shot and killed a person. This inference
cannot be drawn. A spent bullet was extracted
9
from
the deceased. That bullet and the firearm were sent for ballistic
analysis. It could not be established that the spent bullet had been
fired from the firearm. This direct evidence rules out the need for
speculation and inferences.
The
next inference sought to be drawn is that the white sedan referred to
by Mamba was that of which the deceased was robbed and the one which
Hlatshwayo stated the accused were selling. Mamba was never shown the
vehicle that was recovered at Mkhumbane and which the deceased's
brother identified. Hlatshwayo was never shown the vehicle either.
Robert
Mkhabela who was said to have inspected the vehicle which Hlatshwayo
said the accused were selling was never shown the vehicle identified
by Sikelela. Robert was in fact not even called as a witness. He may
have confirmed that accused were the sellers of the vehicle. The
second inference cannot be drawn.
The
Malkerns Police were said to have called in the Scenes of Crime Unit
to examine the motor vehicle. Finger prints were said to have been
lifted from the vehicle. The court has not had the benefit of the
evidence of the person who examined the vehicle and as to whether the
finger prints that were lifted matched any of the accused.
At
the end of the day, the evidence which the crown relied upon to link
the two accused with the offences charged has turned out to be
worthless in the face of the explanation given by the accused for
their possession of the goods that belonged to the deceased.
10
The
accused are found not guilty. They are acquitted and discharged on
both counts 1 and 2.
B.
Dunn
JUDGE
