1
IN
THE HIGH COURT OF SWAZILAND
CRIM.
CASE NO. 49/97
In
the matter between
REX
VS
VELAPHI
SIMON MAGAGULA
Coram S.B.
MAPHALALA - J
For
the Crown MS S. NDERI
For
the Defence MR. M. MAHLALELA
JUDGEMENT
(15/12/98)
Maphalala
J:
In
this case, Velaphi Simon Magagula is charged with the crime of murder
in that upon or about the 11th February 1997 and at or near Timpisini
area in the Hhohho Region, the accused did unlawfully and
intentionally kill Nkwili Dlamini.
The
accused pleaded not guilty to the crime. He was represented by Mr.
Mahlalela and the crown is represented by Miss Nderi.
The
evidence of Majuba Dlamini who is cited as PW8 in the crown's summary
of evidence was dispensed with and it was agreed that the identity of
the deceased was not in issue. So was the evidence of Dr R.M. Reddy
who is cited as PW9 in the summary of evidence by the crown was
entered by agreement. The witness is the Government Pathologist who
conducted the post- mortem on the deceased body. He recorded his
findings in a report. The report was entered to form part of the
crown's evidence as exhibit "A". The good doctor in his
"remarks" stated that the cause of death was a "head
injury".
The
crown called five witnesses to prove its case.
The
first crown witness was PW1 Petunia Zodvwa Gwebu who told the court
that on the 11th February 1997, she was at home in the company of
Nomcebo Dlamini who was called as PW2 by the crown. They were having
marula beer. The accused arrived riding on a bicycle. On arrival the
accused made allegations to the effect that someone had stolen from
him for purposes of muti. Initially the allegation was not
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directed
at anyone but the accused soon made it plain he was referring to the
deceased. The deceased all along had been sitting quietly drinking
his liquor. It appeared a confrontation was brewing and an attempt
was made to have the accused leave peacefully. This failed and the
accused started fighting the deceased. The deceased tried to
retaliate but could not. The deceased went towards the goat's kraal
and the accused went to his bicycle. The deceased came back and sat
down again. The accused came to where the deceased was and at that
time he was carrying a stone. The deceased stood up again and went to
the goat's kraal. The accused followed the deceased and took a stick
and hit the deceased with it. He beat the deceased with the stick and
thereafter they started fighting. They fought and it appeared that
the deceased was losing the fight. The deceased would fall down every
time he was hit by the accused. They continued to fight and went
towards the goat's kraal. The accused then picked a pole from the
goat's kraal and hit the deceased. He hit him on the forehead. The
deceased fell down. He continued to hit him. He was hitting him on
the back of the head. They then raised an alarm but no one came to
the scene to assist. The accused stopped hitting the deceased. He
then came to where they were and said he did what he did to the
deceased intentionally as the deceased was the one who was bewitching
him. The accused then left and took his bicycle. PW1 stated that the
fight took about five minutes. The deceased then was sprawled on the
ground. He was facing down and not moving. They then reported the
matter to the elders in the homestead.
This
witness was cross-examined at length by the defence counsel. The
thrust of the defence cross-examination was that it was the deceased
who provoked the accused that day and this culminated in the fight
between the two. In my view, the witness answered candidly and proved
to be an honest and credible witness and she answered in the
negative.
The
crown then called PW2 Nomcebo Treasure Dlamini whose evidence is
materially similar to that of PW1 and I am not going to outline it
for the sake of brevity. She was briefly cross-examined by the
defence however nothing of substance came out of it.
The
crown then called its third witness PW3 Makhundu David Thwala. He
told the court that he was an induna of the area. That on the 11th
February 1997,he received a report concerning the accused. Acting on
the report he went to the accused home. On the way he met the
accused. He charged the accused for the crime. The accused did not
say anything but he asked him if the deceased was really dead and he
answered him in the affirmative. He then arranged for a motor vehicle
that the accused be taken to the police station as in his opinion
this was a police matter. The accused was arrested. This witness was
cross-examined briefly and nothing of relevance came out of the
cross-examination.
The
crown then called its fourth witness PW4 Sergeant S. Mlilo who told
the court that he was on duty at Horo Police Post on the 11th
February 1997. The induna of Msahweni, (PW4) arrived at the station
and made a report that he was bringing in the accused who had caused
the death of the deceased. He took the accused and placed him under
arrest. He contacted the Piggs Peak police station and made a report.
Officers from Piggs Peak came to Horo Police Post and he went to the
scene where
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they
found the deceased already dead. The deceased body was removed to
Piggs Peak mortuary.
The
crown then called its fifth and last witness PW5 D/Inspector 1571 J.
Ndlela who told the court that he received a report concerning the
death of the deceased and arrested the accused from Horo Police Post.
He was directed to the scene at a homestead in the Timpisini area.
PW1 showed him the dead body of the deceased. The body was lying on
the ground next to a goat's kraal facing down. There was a pool of
blood. He removed the body to Piggs Peak Government mortuary. On the
12th February 1997, he collected the accused from Horo police post.
At the scene he was shown by the accused the log which was alleged to
have been used in the commission of the offence. The accused gave a
statement of why they fought with the deceased. The statement was
taken after the accused had been cautioned in terms of the Judges
Rules. The statement, to wit, RSP 218 was entered as part of the
crown case as exhibit "C". The officer then took
photographs of the scene of crime. The photographs were entered as
exhibit "B" collectively as part of the crown's case. The
accused also told him that he sustained an injury in his right leg as
a result of the fight he had with the deceased. The witness took the
accused to Piggs Peak clinic for treatment where he was attended by
Dr. Ongole on the 17th February 1997 and remarked that the accused
had a "wound on the right lower leg which is about l-2cm wide
and chronic cannot be ascertained to one week of injury" (per
exhibit "D"). This witness was cross examined at length by
the defence and it was suggested to him what is contained in exhibit
"C" - the statement by the accused was suggested to him
(accused) by PW5 and other officers who were interrogating him. The
witness maintained that was not true.
As
a postscript to the crown case exhibit "C" the medical
report compiled by Dr. Ongole who examined the accused at the Piggs
Peak clinic was entered in terms of Section 221 of The Criminal
Procedure and Evidence Act (as amended) and the defence did not offer
any opposition.
The
crown then closed its case.
The
accused took the witness stand being led by his attorney in chief.
Accused story is that he knew the deceased prior to the incident,
which is the subject matter of this court case. He had hired the
deceased to build him a house but deceased only built up to the
foundation level of the house. He told the court that he owned goats.
On another day while the deceased was still under his hire he noticed
that one of his goats had its horns cut on the sides. He then went to
consult a traditional doctor to find out what had happened. The
traditional doctor told him that it was the deceased who had cut the
horns of the goats. He believed this. However, he did not confront
the deceased with this because the deceased was no longer coming to
his homestead to finish the house. On the 11th February 1997, he left
his home at about 2.00pm to the shops. He bought the items he needed.
He then went to Fiburfdo's homestead where there was maganu brew to
quesh his thirst. When he entered the gate of that homestead he saw
the deceased. He felt scared when he saw him and what he knows
concerning this matter is what he heard from the other witnesses. The
reason he forgot is that he once had a mental illness. He was
mentally ill that day. After his arrest he was taken to the National
Psychiatric Centre for examination. This is the long and short of his
testimony.
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The
accused was cross-examined at length by the crown where it emerged
that there was a glaring contradiction in what he said in chief and
what he wrote in his statement which was handed to the court. In his
evidence in chief he told the court that what he knows about the
offence is that he heard from the crown witnesses yet in his
statement at the police station he explained in graphic terms what he
did that day up to the fight which ensued between him and the
deceased and eventually led to the death to the deceased. The accused
failed to reconcile this glaring inconsistency. It was also revealed
in cross-examination that there were a number of questions material
to the defence case, which were not put to the crown witnesses. The
accused failed dismally to explain this anomaly.
The
defence then called the evidence of DW2 Dr. Rogers Ndlangamandla who
is a Psychiatrist at the National Psychiatric Centre in Manzini. He
told the court that he examined the accused on the 20th February
1997, and compiled a report of his findings thereafter. He read the
entire record of the report but what is of interest to this court is
his opinions at page 2 of the report paragraph 4 which reads as
follows:
"Mr.
Magagula is therefore diagnosed as suffering from epilepsy. It is
concluded that during the commission of the crime he had a defect of
reasoning caused by his epilepsy, i.e. he had a seizure attack such
that at the time of the criminal conduct he lacked substantial
capacity either to appreciate the criminality (wrongfulness) of his
conduct or to conform his conduct to the requirement of the law".
He
was cross-examined by the crown where he disclosed that he did not
ask other people around the accused and also that he only had one
interview with the accused.
The
defence then closed its case.
The
court then heard submissions from the crown and from the defence.
Miss
Nderi for the crown submitted that it was common cause that the
accused went to the shebeen and it was also common cause that he
provoked the deceased and hit the deceased with a log. The issue that
lies for determination is whether the accused acted with full mental
capacity. A person is presumed to be sane and the onus is on the
accused to prove that he was insane at the time of the commission of
the offence. To support this proposition Miss Nderi cited the case of
Rex vs Kaukakani 1947 (2) S.A. 807 where the court in that case held
that in cases in which the defence is insanity the onus is on the
accused to satisfy the court upon a preponderance of probability that
he was insane. The court was further directed to the dicta in the
case of R vs Kennedy 1951 (4) S.A. 435 - 438 in support of the same
proposition.
Miss
Nderi contends that the crown's evidence shows that there was an
involved fight between the accused and the deceased and the accused
spoke that he had a belief in witchcraft. After the deed was done he
spoke to PW1 and PW2 and appreciated the wrongfulness of what he has
done. She referred the court to the case of S vs Loubscher 1979 (3)
S.A./ 47 (AD) that when an accused is charged with murder evidence in
connection with his mental condition must be connected with the facts
of the particular case. The duty of experts on mental condition
should not be merely to
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express
general opinions, which in the medical field can perhaps be regarded
as well-founded, but to give his opinions with a proper appreciation
of what the task of a trial court is in the application of the
criminal law and particularly in the consideration of criminal
responsibility and criminal liability. It is the crown case that in
the case in casu the expert had not related his opinions with the
facts of this case. She further referred the court to S v Harris 1965
(2) S.A. 340 to drive home the point. Miss Nderi contended that the
defence was adopting a hydra-headed defence. PW1 cross-examination
was geared to show that the accused person was defending himself when
he assaulted the deceased with the log. It was never put to the
witness that the accused acted automatically in a fit of epilepsy. To
this effect she referred the court to the dicta in
S
vs
P
1974 (1) S.A. 581 (A) where Macdonald JP at page 582 has this to say:
"It
would be difficult to over-emphasize the importance of putting the
defence case to the prosecution witnesses and it is certainly not a
reason for not doing so that the answer will almost certainly be a
denial, so important is the duty to put the defence case that
practitioners were in doubt as to the correct course to follow,
should run on the side of safety and either put the defence case, or
seek guidance from the court.
On
the other hand the cross-examination of PW2 was geared to show
whether or not the accused was drunk and also that he was abnormal.
Miss
Nderi argued further that the statement made by the accused to the
police differs materially to what the crown witnesses said. If it
should be taken that he wrote in the statement about what the
witnesses had said there should be corroboration. To this effect she
cited the case of S vs Van Zyl 1964 (2) S.A. 113 (AD) where an
appellant had been convicted on a charge of murder, the defence
raised (1) automatism and (2) irresistible impulse. The Court of
Appeal found that the appellant by her conduct and actions at the
time of the alleged shooting of her child showed that she knew what
she was doing, and that the evidence militated against the existence
of an irresistible impulse. The court held that the appeal from
conviction should be dismissed.
She
argued further that medical evidence is opinion evidence it only
guides the court and is not binding. To this end she referred the
court to the case of S vs Hutchinson 1990 (1) S.A. (AG Compilation)
149.
The
crown is of the view that the accused was actuated by his belief of
witchcraft. In the event the court is entitled to return a special
verdict in terms of Section 165 of The Criminal Procedure and
Evidence Act (as amended). Dunn J in The Criminal Case No. 112/98 The
King vs Simon Mashiphisa Mngometulu.
The
defence on the other hand is of the view that the evidence shows that
all the elements of murder are satisfied. However, accused did not
have intent. The accused person has been honest when giving evidence.
Dr. Ndlangamandla said the accused person was insane when he
committed the offence. The evidence of accused should be believed.
The defence of insanity was proved. He referred the court to the case
of Rex vs Simon Mashiphisa Mngometulu (supra). That in the present
case the court can correctly reach a special verdict in terms of
Section 165 of the penal code. He
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further
referred the court to the case of S vs Mahlindza 1967 (1) S.A. 408 to
support that proposition.
On
points of law Miss Nderi argued that the Mashiphisa case (supra) the
accused killed all three people and it cannot be said that the
violence was directed at a particular person.
These
are the issues before court. I have taken into consideration all the
facts presented before me and also the congent arguments presented
particularly from the crown. I have also availed myself to the legal
authorities cited. It is common ground that the deceased died as a
result of the actions of the accused on that particular day. The
central question which is to be determined by the court is whether or
not the accused when he committed the offence he was insane or not or
that his prior mental problem as the crown contends has nothing to do
with his conduct that day as his action showed that he had a bone to
chew with the deceased for bewitching him and he did just that. The
accused tells the court in chief that he experienced an epileptic
seizure immediately he saw the deceased and he couldn't recall what
he did thereafter. It is also put to the crown witnesses by the
defence that what the accused knows about this incident is derived
from what he heard from them. But this is contrary to the statement
the accused made to the police. The crown witnesses did not know that
the accused had been bewitched by the deceased who had cut the horns
of one of his goats. Only his wife knew that. It appears to me that
the accused is hiding behind the veil of insanity to wish away the
consequences of his actions that day. His defence counsel put
contradictory questions to the crown witnesses. One witness told the
court that the accused was defending himself and the other crown
witness (PW2) told the court that the accused was drunk and was
acting in an abnormal fashion. Defence counsel does not put pertinent
questions to the crown case (see S vs P (supra) and the dicta by
Hannah CJ in the case of The King vs Dominic Mngometulu and others
Case No. 96/94 (unreported) at page 17 where the learned Chief
Justice had this to say on this point:
"It
is, I think, clear from the foregoing that failure by counsel to
cross-examine on important aspects of the prosecution witnesses
testimony may place the defence at risk of adverse aspects being made
and adverse inferences being drawn. If he does not challenge a
particular item of evidence then an adverse inference may be made
that at the time of cross-examination his instructions where that the
unchallenged item was not disputed by the accused, and if the accused
subsequently goes to the witness box and denies the evidence in
question the court may infer that he has changed his story in the
intervening period of time. It is also important that counsel should
put the defence accurately. If he does not and accused subsequently
gives evidence at variance with what was put, the court may again
infer that there has been a change in the accused story".
The
actions of the accused that day showed a rational and methodical
person and do not indicate at all that he was in a seizure of some
sort. The accused before he went to the shebeen where the killing
took place had something against the deceased. Upon his arrival there
he started to taut the deceased to a fight until the two were engaged
in a fierce fight which resulted in the death of the deceased. I
agree with Miss Nderi that evidence in connection with mental
condition must be connected with the facts of the
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particular
case. The duty of experts on mental condition should not be merely to
express general opinions, which in the medical field can perhaps be
regarded as well-founded but to give his opinions with a proper
appreciation of what the task of a trial court is in the application
of the criminal law and particularly in consideration of criminal
responsibility and criminal liability (see S vs Loubscher (supra).
The evidence before the court shows that the accused was interviewed
once by the doctor and there is no indication that other people close
to the accused were interviewed to ascertain whether he had similar
experiences in the past. Also what is to be taken into consideration
is that the attack by the accused was directed at the deceased in a
sheeben with other people partaking in the drinking of the marula
beer. This case is distinguishable from Mashiphisa case (supra) by
Dunn J where the accused in that case went berserk in an epileptic
seizure and killed three people. Here the accused had a fixed
intention to deal with the deceased whom he believed had bewitched
him.
The
accused action before the assault on the deceased, as witnessed by
PW1 and PW2 was rational. Rational behaviour of the accused before
and after indicate that all faculties were not impaired by the
condition of epilepsy at the material time. There is evidence that
accused told PW1 and PW2 at the scene after the killing the deceased
that he knew what he was doing and he repeated that to the induna of
the area. (see S vs Hutchison (supra)). I agree in toto with the
lucid submissions by Miss Nderi in all respects and hold that Section
165 of The Criminal Procedure and Evidence Act (as amended) cannot be
invoked in the face of the sheer depth and breath of the crown's
case.
In
the result, I find that the accused had the necessary intention to
kill the deceased actuated by his belief in witchcraft all facts
before me points towards that direction.
The
accused is found guilty as charged.
S.B.
MAPHALALA
JUDGE
