SWAZILAND
HIGH COURT
REX
Vs
MATSEBULA
Vusumuzi
Respondent
Cri.
Trial No. 93/2002
Coram SAPIRE,
CJ
For
Crown Ms Lukhele
For
Defence Mr. B. Simelane
JUDGMENT
(31/07/2002)
It
is common cause that the deceased died as a result of a stab wound
inflicted by the accused. The question that has to be answered is
whether by inflicting the fatal stab wound the accused committed an
offence. The accused and the deceased were on good terms after they
had some trouble some years previously with members of the accused
family and the deceased. There had been violence and counter violence
between the two families. On the day in question the parties were
together at the homestead of the chiefs runner. The deceased had been
asked to assist the chief's runner's wife by repairing her takkies.
(If there are any who reading this judgment are unfamiliar with the
word, it refers to canvas shoes)
2
The
accused came to the house and entered the cooking room where the
deceased was. At the same time the Chief's runner left the cooking
room and went to sit outside. He was disturbed by a call from the
cooking house that somebody was stabbing somebody else. He came to
the room as fast as he could and found the accused and the deceased
grabbing each other. The accused had a knife in his hand and the
deceased was trying to fend the accused off as best he could. It is
obvious that a fracas was taking place. He did not see any weapon in
the possession of the deceased. No weapon was found anywhere in the
vicinity and certainly not seen by Vilane while he was still in the
hut and before the deceased left.
The
deceased left the hut and did not go very far before he collapsed and
died. The events which took place are shrouded with some mystery and
it is not possible to see why these two individuals the accused and
the deceased, should have engaged in what turned out to be a fatal
fight on that particular day.
The
crown's version is that this assault was unprovoked and was made by
the accused on the deceased out of revenge for earlier attack by the
deceased on the accused. The accused claims that his stabbing was a
result of an armed attack and in self-defence from assault by the
deceased. One has to take into account that the deceased was indeed a
violent person who is said to have assaulted several others. Both
parties had taken some liquor. That may account for inflamed tempers
but be that as it may, it was the deceased who was unarmed and the
accused was armed.
The
version given by the accused tells of a fight in which the deceased
was accidentally killed. Whatever the position may have been, on the
established facts of the case, no lawful justification for the
accused having inflicted a fatal wound on the deceased. On the other
hand I cannot find beyond reasonable doubt that this was done with
intent to murder. A fact pointed to by the crown suggests very
strongly that the accused may well have been an aggressor and to have
in tended to attack the deceased with a knife regardless of what
results. There is much to be said for the inference, which the crown
has advanced. But to find the accused guilty of murder it must be the
only inference beyond reasonable doubt. There is no eyewitness to
what took place. Whatever suspicions there may be regarding the
degree of the accused's guilt it would be unfair to find that the
stabbing was done with intent to kill. The stabbing may or
3
may
not have been provoked by an assault or otherwise. But the facts are
not consistent with a reasonable degree of self defence. The alleged
weapon used by the deceased has not been found. As I have said it was
not seen when the parties were still struggling in the room. In these
circumstances the correct version is that the accused is criminally
liable for the death of the deceased and has committed culpable
homicide. He is found guilty as such.
SENTENCING
I
have considered that you are a first offender and I have heard
different versions today as to how it came about that you killed the
deceased. I am convinced that if you had used proper control of
yourself your friend would be alive today. As it is you have killed
him unlawfully and this is a serious matter. I also take into account
that you have been in prison since the 24th July 2001, which is a
year.
I
find unfortunately that you used a knife and this is the most serious
aspect of the case. If it had been possible to ascertain a clearer
picture of the commission of the crime, it is possible that the
outcome could have been much graver for you. In the circumstances I
will sentence you to 4 years imprisonment of which 2 years will be
suspended for two years on condition that you are not hereof found
guilty of a crime-involving killing of a human being committed during
the period of suspension. Prison sentence shall be deemed to have
commenced being served from 26 July 201.
SAPIRE,
CJ
