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IN
THE HIGH COURT OF SWAZILAND
CRIM.
CASE
NO. 64/98
In
the matter between
THE
KING
And
SIPHO
PETROS SUKAMAGONSO MKHONTA
Coram S.B.
MAPHALALA - J
For
Crown MR NSIBANDZE
For
Defence MR MDLULI
JUDGEMENT
(30/11/98)
The
accused stands charged with the murder of Dikiza Jahelidzala
Ndzimandze in that upon or about the night of the 17th January 1998
and at or near Khalambazo Location, Malkerns in the Manzini Region
the accused acting unlawfully and with intent to kill, did assault
the deceased with a "sizeze" a traditional Swazi weapon and
inflict an injury upon him from which the deceased died at R.
F.
M.
hospital in Manzini on the 24th January 1998.
The
accused pleaded not guilty to the offence. The evidence of the
Government Pathologist Dr. R.M. Reddy was entered by consent. In the
post-mortem report he opined that the cause of death of the deceased
was "cranio-cerebral injury". Further the evidence of Dr.
Dejene of the R.
F.
M.
hospital in Manzini who treated the deceased before his death he
stated under "remarks" that when the deceased was admitted
at the hospital he had a "compound right perietal skull
fracture".
The
crown proceeded to call its witnesses to prove its case. The first
crown witness is PW1 Mavis Sizakele Dlamini. She told the court that
she knew both the accused and the deceased. She told the court that
Fombo Mamba was accused lover. On the 17th January 1998 the deceased
came to her homestead in the company of one Nhlanhla and they were
from Guy's place. Then Fombo came after they have come to visit as
usual. They all partook to liquor. The accused then came to the scene
and also partook in the festivities that night. PW1 then asked the
revellers to leave as it was late but they told her that they were
still enjoying themselves. At that juncture they all move from the
house to sit outside as there was a bright moonlight. Then the
accused called Fombo and said "Fombo up! Up!" and hit her
twice with a baton. Fombo ran to the children's room. The deceased
then intervened and told the accused that he should not cause a fight
in another person's homestead and that they should go
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to
his (accused) homestead. PW1 then said they dispossessed the accused
of the baton whereas the accused passed hot air and then defecated on
himself. Accused then threw his faeces on them. He smeared the
deceased on the face with the faeces and PW1 was smeared on one of
her arm and apron. PW1 then went to the room and collected a dish to
get water to wash off the faeces. As they were washing the faeces the
accused laughed at them. He said that it what he does to people. The
accused then went to his house with Fombo. PW1 and the deceased
remained washing themselves off the faeces. The accused came back
again. The deceased then approached the accused and asked him why he
had done this. The accused hit the deceased with an instrument PW1
did not see which he had come with it from his house. He hit the
deceased once and deceased fell down and they went to pick him up.
The accused then ran away. They did not see what he had with him.
The
deceased was injured at the side of his head above the left temple.
He was bleeding profusely. She took a white cloth and covered the
wound. Nhlanhla and the other friends took the deceased to the army
camp from there he was conveyed to hospital.
PW1
told the court that when they dispossessed the accused they never
throttled him. She never pushed the accused from the house. She never
entered the house to take the "sizeze" (traditional weapon)
and gave it to the deceased she said she did not know that "sizeze"
even her husband did not own one.
This
witness was cross-examined at length by Mr. Mdluli where it was
suggested to him that PW1 together with the deceased throttled the
accused but that was denied by this witness. It was also put that it
was PW1 who took out the battle-axe (sizeze) from her house and she
gave it to the deceased. The deceased tried to hit the accused with
it but it was blocked by branches and the accused took it and hit the
deceased. That the accused hit back in self-defence.
The
crown then called its second witness Nhlanhla Dlamini who told the
court that he was part of the drinking party at the house of PW1 on
the 17th January 1998. PW1 gave him liquor and he sat outside and
drank his liquor. Whilst seated the accused came and the deceased at
that time was in the house. There was Fombo next to him. Accused said
to Fombo "up! up!". Fombo refused to get up and said she
was still drinking. Thereafter Fombo ran away to PWl's house. The
accused was wearing traditional regalia. PW2 then left afterwards and
heard that they had smeared each other with faeces. PW1 then washed
off the deceased. The accused left for his homestead and came back
shortly and there was an altercation. It was in the dark where they
were standing and he could not see what happened. The deceased was
not carrying anything in his hands. Then PW1 washed off blood from
the deceased. PW2 was called to where they were and was informed that
the deceased was injured. He did not see any struggle. It happened in
a matter of seconds. Thereafter he left with the deceased. Along the
way he went to a toilet and left the deceased with a Mdluli boy and
when he came back he found that the accused had left leaving the
Mdluli boy. Deceased went to his wife. Later on he heard that the
deceased had died. This witness was cross-examined briefly and he
told the court that he could not see what happened which led the
deceased having been injured because it was dark.
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The
crown then called its third witness 2416 Makhosonkhe Mamba who is a
police officer stationed at Malkerns. He is one of the officers who
investigated this case. On the 6th February 1998, he arrested the
accused for murder. He cautioned the accused in terms of the Judges
Rules. The accused then handed to him a "sizeze" from
behind the head- board of his bed.
The
crown then closed its case.
Mr.
Mdluli then called the accused to the witness stand where the accused
gave a lengthy account on his own version of events that fateful
night. He told the court that on the day in question he woke up from
his house and his intention was to go to a funeral. He heard a noise
and thought it came from where there was a funeral. He saw that Fombo
his live-in-lover was not with him. Fombo had earlier on indicated
that she will attend the funeral. He then took a baton and went
outside. He realized that the noise was coming from one of his
neighbours. He then went to PWl's homestead to look for Fombo. He
found people drinking and dancing and Fombo was also involved in
these activities there. He asked Fombo why she was there because he
thought she had already proceeded to the funeral. He then gave her
the keys and later sat down and joined the drinking party. The
accused then heard PW1 say that it was now late going for 1.30am and
hot. She suggested that they all go and sit outside. He sat on the
steps. PW1 and the deceased were seated a distance away. PW1 then
sent him to the house to get some liquor for a customer who was
Nhlanhla. She again sent him for this errand. Thereafter for some
reason PW1 picked a fight with him over Fombo saying that the accused
has a bad habit of beating up Fombo. Suddenly PW1 held him by his
throat and pushed in such a way that he fell on his back. She then
placed her knee on his chest. The deceased also joined the fray and
pressed his foot on his face and they strangled him. PW2 intervened
and said they should leave him because they were killing him. PW1
then said they should leave him because he had defecated on himself.
They left him and he went away to clean himself in the yard. He then
heard PW1 say he had smeared them with faeces purposely. PW1 then
said she had a "sizeze" and that they should go and take it
to finish him. Whilst he was still cleaning himself he heard steps
coming towards him. The deceased had a battle-axe and PW1 had a
knopstick. The deceased struck at him and the battle-axe was caught
by one of the branches of the tree. He then took it and then hit back
not in a particular direction. The deceased fell down. He asked him
what they were doing to him. The deceased did not reply and he told
PW1 that he would give the battle-axe to the police. The accused
denies that he ordered Fombo by saying "up! up!" He also
denies that he smeared PW1 and the deceased with faeces. Prior to
this incident the deceased was his friend and they used to attend
royal duties together. All in all the accused deposed that he did not
intend to kill the deceased.
The
accused then called DW2 Fombo Mamba his girlfriend. Her evidence to a
large extent corroborates that of the accused although there are some
minor variations between the evidence of the two.
The
court then heard submissions from both sides. I have listened to the
arguments very carefully and also considered the evidence in its
totality. The cause of death is not denied that the deceased died of
an injury from a battle-axe (sizeze) which was caused by the accused
person. It is my view that based on the facts presented before me. I
am unable to find that the accused person had the necessary intention
to kill the
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deceased
that night. The evidence before me is clear that there was a fracas
between the accused and PW1 aided by the deceased. It is my finding
that PW1 was not candid with the court she concealed evidence which
was adverse to her and her evidence cannot be relied upon as
credible. The only evidence which remains is that of PW2, however,
this witness told the court that he did see the fight that ensued
there. He only came to the rescue of the deceased after the incident.
To me it appears as if the accused acted at the spur of the moment. I
am not able to find that accused had intention in the form of dolus
eventualis as I had been urged by the crown to come to that
conclusion. I have no reason to doubt accused story that he was
attacked by the two and I reject the evidence of PW1 who proved to be
selective in her evidence.
In
the result, I find that the crown has not prove a case of murder
beyond a reasonable doubt and therefore the accused is not guilty in
respect of that crime. However, I find the accused guilty of a lessor
offence of culpable homicide.
S.
B. MAPHALALA
JUDGE
