1
IN
THE HIGH COURT OF SWAZILAND
CRIM.CASE
NO. 22/98
In
the matter between
REX
VS
THOKOZANI
GENGENYANE MAVUSO
Coram S.B.
MAPHALALA - J
For
the Crown MISS. LANGWENYA
For
the Defence MR. MAMBA
JUDGEMENT
(23/11/98)
On
this indictment Thokozani Gengenyane Mavuso is charged with murdering
an old woman Bester Hlophe at Mantambe on the 26th August 1997
according to the first count preferred against the accused. On the
second count the said accused is charged with the crime of arson of
having burnt the property of the said Bester Hlophe by setting on
fire and thereby damage two houses on the same day. When the
indictment was put to the accused he pleaded not guilty to both
counts.
According
to the post-mortem report the deceased died as a result of multiple
stab wounds. There is also clear evidence from the pictures taken by
the scene of crime police officers that the two huts were gutted by
fire.
The
crown called six witnesses to prove its case. The evidence of Dr.
Rammohan the police pathologist who performed a post-mortem
examination and compiled a report of his findings on the deceased was
entered by consent. The evidence of the identifying witness Jeremiah
Hlophe was also entered by consent. So is the evidence of Norah
Busisiwe Hlophe whose evidence according to the summary of evidence
is that she was the deceased daughter-in-law. She was going to tell
the court that on the 26th August 1997, she was in her house together
with her husband Elliot Hlophe (who was introduced as PW3) when she
heard a loud bang at the deceased hut. Her husband went out of the
house to inquire and she followed him. Outside he saw a huge fire and
two huts burning. The deceased was shouting and saying "I saw
you Mavuso boy, you are killing me for nothing because the person I
am dying for is not here". After uttering these words, the
deceased died. Outside the hut there were
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people
who were calling each other "Joe". This witness did not see
these people. The estimated value of the property that was destroyed
in the two huts was E1 5,000-00.
The
crown then called PW1 Ncedile Hlophe who told the court that at about
8.00pm on the 26th August 1997 she was inside the house together with
her grandmother Bester Hlophe and Simangele Phindile Hlophe (PW2).
They saw fire and their grandmother took out some water and attempted
to put out the fire. When the deceased went out of the hut she was
hit with an object which she did not see and she bled. When her
grandmother went out she was raising an alarm. PW1 was able to get
out of the house when the fire was burning ad she ran away. She told
the court that she knew who set the house on fire, it was the
accused. They could see the accused peeping through the window; he
was wearing a white headgear. The deceased called him out and said
that there she could see him he was a Mavuso. She ran outside and
raised an alarm and subsequently the matter was reported to the
police.
The
crown then called PW2 Simangele Phindile Hlophe who told the court
that at about 8.00pm on the 26th August 1997 they were inside a hut
together with PW1 and the deceased. They saw that the hut was on fire
and they then raised an alarm. The deceased opened the door and went
out, someone hit her. Before that they heard footsteps of people
running around outside. They saw one person who was peeping through
the window. She saw that it was the accused who was wearing something
white in his head. She saw his top part of his body. The accused
stabbed the deceased with a spear on the cheek. Her grandmother said
"I can see you, you are a Mavuso boy". She then came out
with PW1 and ran away. They left the deceased inside the house. Two
huts were burnt. After the incident she did not see the accused. The
matter was reported to the police and she also recorded a statement
with the police. However, it should be noted that after the defence
has completed its cross examination, the crown applied to invoke
Section 273 of the Criminal Procedure and Evidence Act (as amended)
No. 37 of 1938 to have this witness impeached. It became apparent
that this witness when questioned by the crown was not worthy of
credit as she lied through her teeth, what she told the court in
chief was materially different from what she told the police in her
statement.
The
crown called PW3 Norah Hlophe whose evidence was entered by consent
as I have earlier on in the judgement pointed out.
The
crown then called PW4 Elliot Hlophe whose evidence is materially
similar to that of his wife PW3 Nora Hlophe. He was not
cross-examined by the defence.
The
crown then called PW5 Constable Tutu H. Dlamini who told the court
that on the 27th August 1997 at about 0130 hrs he went to the scene
of the crime. He observed the scene and the body of the deceased. He
then took the body of the deceased to the mortuary. There was a
twenty litre empty tin, which was smelling petrol and a small green
plastic container also smelling of petrol next to the huts. He took
these items as exhibits. On the 5th September 1997, he introduced
himself to the accused who was at his homestead. He arrested the
accused and cautioned him in accordance with the Judge's Rules and
questioned him about this matter. The accused denied everything
concerning this offence.
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The
crown then called PW6 2600 Sergeant D. Dube who is the scene of crime
officer who told the court that on the 27th August 1997, he took
pictures of the scene of crime.
The
crown then closed its case where Mr. Mamba attempted to launch an
application in terms of Section 174 (4) of the Criminal Procedure and
Evidence Act (as amended) and after full arguments on both sides he
abandoned it and called his client to his defence.
Mr.
Mamba then called the accused to the witness stand where he denied
liability in this case. That what PW1 said about him is not true, as
he was not at the scene of crime at the material time. He was
cross-examined at length by the crown.
The
court then entertained submissions from both sides. The crown submits
that the accused be found guilty as charged on the basis of the
evidence of PW1 and PW4. PW1 stated that on the night in question she
was asleep in her hut together with the deceased and they were woken
up by the noise of stones pelting the windows. She saw the accused
peeping through the window and at that time the house was already on
fire. The evidence of PW1 in law is sufficient. It is the evidence of
a competent witness in terms of Section 236 of The Criminal Procedure
and Evidence Act (as amended). Miss Langwenya further directed the
court's attention to the case of 5 vs Mokoena 1932 N.
P.
D.
79 at page 80 where Devillers J
P
stated that the uncorroborated evidence of a single competent and
credible witness is no doubt declared to be sufficient for a
conviction by Section 284 of Act 31 of 1917. This Section being in
accordance with our Section 236 of our penal code. He proceeded to
say that the evidence should be relied on when it is clear and
satisfactory in all material respects. It is for the court in the
case in casu to look for the truth in the evidence of PW1. Why would
these witnesses come to court to give such damning evidence? The
accused failed to explain why the evidence of PW1 implicated him
because it is the truth. The story by PW1 is confirmed by that of PW4
who said that when he arrived at the homestead of PW1 and PW2 PW1
told him about the person who burnt down the huts and assaulted the
deceased.
On
the other hand Mr. Mamba for the accused contends that the crown has
missed the point. The issue in this case is whether or not the
accused was one of the attackers that fateful night. The only
evidence that links him with the commission of the offence is that of
PW1. The accused does not bear the onus to explain away the evidence
of PW1. He does not even have to give a reason why a child of 13
years (PW1) should lie against him. The evidence of young persons
should be taken with caution. The court should look for some other
material, which link the accused with the commission of the offence.
She is an unsophisticated girl from a rural background. She said
before coming to court to give evidence she had the opportunity to
discuss the matter with her mother and PW2. She said it was after her
grandmother (the deceased) had said, "you are Mavuso" that
she saw that it was the accused. On her own she did not know who the
attacker was. She said she was not able to see the whole body. She
said the head including the assailant's ears were covered. The person
who appeared on the window was disguised. No credible identification
could have been made under those circumstances. PW1 tried to tell the
court that she had about 30 minutes to look at the person. But
according to Mr. Mamba this is fanciful. There is no cogent and
reliable evidence from this witness.
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Mr.
Mamba submitted that it is trite law that there should be an exercise
of caution by the court in evidence of identification. Why did the
police not act on her evidence and that of PW2 there and there and
wait for two weeks (refers to the case of R vs Masemang 1950 (2) S.A.
488 (AD) at page 493). Finally that the accused should be given the
benefit of the doubt in this case
These
are the issues before me. I have also availed myself to the legal
authorities cited by counsel. It is clear from the evidence before
court that this was a very gruesome attack on an old defenceless
woman at night. She was not only brutally stabbed a number of times;
her huts were burnt into cinders. Her grandchildren she was sleeping
with that night were traumatized and had to run away for safety
leaving the old woman to die. That as it may, the court is to
determine whether or not the accused is connected with the death of
the deceased. It is common ground that the court is to rely on the
evidence of a single witness that of PW1 who was 13 years old at the
time of the incident. PW1 told the court that she saw that it was the
accused who was peeping through the window but she could only see his
upper body and that his head was covered in a white headgear. She
said under cross-examination that she saw that it was the accused
after the deceased had said she could see that it was a Mavuso boy.
She further told the court that she was able to observe the accused
for 30 minutes peeping through the window.
In
our law young children are competent witnesses if the judge considers
that they are old enough to know what it means to tell the truth, but
it has frequently been emphasized that their evidence should be
scrutinized with great care. The danger is not only that children are
highly imaginative but also that their story may be the product of
suggestion by others. In the case in casu we are dealing with the
evidence of a 13-year-old girl. We are also dealing with the evidence
of identification. It is trite law that it is generally recognized
that evidence of identification based upon a witness's recollection
of a person's appearance is dangerously unreliable and should be
approached with caution. The Appellate Division in S vs Mthetwa 1972
(3) S.A. 266 laid down as follows:
"Because
of the failability of human observation, evidence of identification
is approached by the courts with caution. It is not enough for the
identification witness to be honest; reliability of his observation
must also be tested. This depends on various factors, such as
lighting visibility, and eyesight, the proximity of the witness, his
opportunity for observation, both as to time and situation; the
extent of his prior knowledge of the accused; the mobility of the
scene; corroboration; suggestibility; the accused face, voice, built,
gait and dress; the result of identification parades, if any; and, of
course, the evidence by or on behalf of the accused. The list is
exhaustive. These factors, or such of them as are applicable in a
particular case, are not individually decisive, but must be weighed
one against the other, in the light of the totality of the evidence,
and the probabilities" (per Holmes J
A)".
This
is the legal guideline the court has to follow in testing the
evidence of PW1. It appears to me as I have earlier mentioned that
PW1 was able to say it was the accused after this fact was suggested
to her by the deceased utterances. She says so in cross-examination.
To me it appears as if there was an element of suggestibility which
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cannot
be wished away. She further tells the court that she observed the
accused for 30 minutes peeping through the window. To me this is not
only fanciful but suggest that PWl's orientation as to time is highly
questionable. She told the court that she only saw the upper side of
the accused body and the head was covered in a white headgear. She
further tells the court that she made a statement to the police that
very night. However, what is curious in this case is that the accused
is confronted by the police 14 days after the accident. Does this
mean that the police officers investigating this case did not believe
PW1, as one would expect them to follow the scent while it was still
fresh (so to speak)? For the reasons I have advanced above I agree
with the submissions made by Mr. Mamba when he was applying for
accused discharge in terms of Section 174 (4) of The Criminal
Procedure and Evidence Act (as amended) and at the close of the
defence case that it would be highly dangerous to convict on the
single evidence of this witness which is peppered with a number of
improbabilities.
In
the premise I give the accused the benefit of the doubt and he is
found not guilty on both counts and acquitted forthwith.
S.B.
MAPHALALA
JUDGE
