IN
THE
HIGH
COURT OF
SWAZILAND
CRIMINAL
TRIAL NO.63/98
In
the matter between:
REX
VS
ELIZABETH
THULDE NDLOVU
CORAM: MATSEBULA
J
FOR
THE CROWN: MR. L. NGARUA
FOR
THE DEFENCE: MR. G. MAHLALELA
JUDGEMENT
The
accused was charged with the crime of culpable homicide. She was
represented by Mr. Mahlalela who at the outset indicated that he had
been instructed that the accused will plead guilty to culpable
homicide. The Crown was represented by Mr, Ngarua who indicated that
they would not resist the plea of guilty to culpable homicide. The
charge was put to the accused and the accused confirmed the plea of
guilty to culpable homicide and the court invited Mr. Ngarua to
outline the facts leading to the death of the deceased in this
matter. He stated very briefly that the deceased and the accused were
well known to each other, that they were neighbours and related in
the sense that the accused is married to a relative of the deceased.
However, he stated that there had been problems between the accused
and the deceased which culminated to the accused hitting the deceased
with a knobstick and the deceased sustaining an injury. He was taken
to hospital where he died thereafter. A post mortem was conducted on
the body of the deceased the result of which was that the deceased
had died because of what the doctor called 'cerebral injury.' The
doctor indicated that the deceased was approximately 70 years old.
Those were the facts given by Mr. Ngarua and Mr. Mahlalela confirmed
them.
1
I
was happy and convinced that the plea of guilty to culpable homicide
was an appropriate one. I then invited Mr. Mahlalela to address me in
mitigation. He then for the first time introduced the belief in
witchcraft which led the accused, according to him, to assault and
injure the deceased. This had not been one of the facts which Mr.
Ngarua had furnished the court with. I then invited Mr. Mahlalela to
obtain further instructions especially when he started in mitigation
giving facts which were not contained in the agreed facts. He has now
called the accused to go into the witness stand to give evidence in
mitigation. It now appears, very clearly that there was bad blood
between the accused and the deceased to an extent that the accused
had actually confronted and accosted the deceased about the sickness
of her child and according to the accused this allegation had not
been challenged. The deceased said that he was going to heal the
child using a Swazi term "elula" which implies that he was
the person responsible, initially for the sickness that had afflicted
the child.
According
to the accused when the deceased failed to do this she was infuriated
because the child was very sick. The accused had also told the court
that she and her husband had called a meeting at which they thought
this could be sorted out but the deceased decided not to attend the
meeting. According to the accused, it was because of this factor that
she ultimately decided to use a knobstick which was owned by the
deceased and hit him with
it.
The accused stated that the child died a week later after the
deceased had died.
I
have taken into account personal circumstances of the accused. She
only went up to Standard 3. And that subjectively speaking she
believed that the deceased could carry out the threats the deceased
had made and that she had reported this to her husband who in turn
also tried to call the members of the family so that this is
resolved. However, the deceased failed to attend.
Considering
all these factors the court would want to say to the accused,
although she subjectively believed that the deceased could carry out
the threats and indeed ultimately the child died and according to
her, it was because of the deceased's doing that the child died. The
court cannot condone actions of people who take the law into their
own hands and punishing the suspects because if that were to be
allowed the country could be in a chaos. The court has considered all
these factors and I thank the accused's counsel who brought more
information on this matter.
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Considering
all these factors, the court is of the view that the following
sentence would be an appropriate one: The accused will be sentenced
to an imprisonment for three years which will be wholly suspended on
condition that the accused is not convicted of any crime involving
violence and/for which she is imprisoned without any option of a fine
committed during the period of suspension.
J.M.
MATSEBULA
JUDGE
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