THE
HIGH COURT OF SWAZILAND
CRIM
CASE NO. 50/2001
In
the matter between
REX
Vs
MAPHINDA
TYSON BHEMBE
Coram
S.B.
MAPHALALA - J
For
the Crown MR. P. DLAMINI
For
the Defence MR. BHEMBE
JUDGEMENT
(13/11/2001)
The
accused is charged with the crime of murder. It is alleged that upon
or about the 10th February 2000 at or near Nzongomane area.
Shiselweni Region, the accused person did unlawfully and
intentionally kill Jeremiah Ndwandwe and did thereby commit the crime
of murder.
2
The
accused pleaded not guilty to the indictment and was represented by
Mr. Bhembe. The crown was represented by Mr. P. Dlamini.
The
cause of death according to the post mortem report entered as exhibit
"A" in terms of Section 221 of the Criminal Procedure and
Evidence Act is recorded as follows:
"Laceration
on the upper lobe of left lung by a sharp instrument".
The
crown called a total of five witnesses. The evidence of the crown is
that on the 10th February 2000, the accused in the company of PW2
Bethusile Simelane and others were drinking liquor at the homestead
of Simelane. While drinking, the deceased's hat got missing and he
demanded it from the accused and the others. Accused and one Mbongeni
Simelane responded by saying that deceased should use witchcraft to
get his hat back. Thereafter, the deceased left the sheeben. The
following day PW2 heard that the deceased was dead.
PW3
Bheki Vilakati told the court that he was also at the sheeben with
PW2, the deceased and others. He also confirmed the evidence of PW2
in as far as the issue of the missing hat was concerned. He told the
court that the deceased reported to his group that one Mbongeni and
the accused wanted to assault him. Then one Vusi Simelane undertook
to accompany the deceased home after the drinking spree. The deceased
then left the sheeben in the company of Vusi Simelane.
PW3
also went to his home. Along the way the accused met up with him in
the company of another young man and told him that he (accused) had
accidentally injured the deceased. Pie told the court that the
accused offered this information freely and voluntarily. After that
they parted ways.
PW4
Vusi Simelane was called as the crown's fourth witness. He was at the
same homestead with the deceased on the day in question. He told the
court that he left together with the deceased and along the way the
deceased returned back to the same homestead. He later heard the
deceased passing by his homestead singing. Some time later he was
called from his homestead as he was a community police officer that
the deceased was dying.
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The
last witness for the crown called was PW5 3479 Detective Constable
Sihlongonyane who was the investigating officer in this case. He
explained to court how he proceeded with investigations and the
circumstances surrounding the arrest of the accused person.
The
accused also gave evidence under oath. He also related his own
version of events at the shebeen that night. The accused denied that
he ever told PW3 Bheki Vilakati that he had accidentally injured the
deceased. All in all the accused person denied any involvement in the
death of the deceased.
It
is common cause that the deceased died of a stab wound as reflected
in the post mortem report entered as exhibit "A". It is
also common cause that the accused and the deceased were at the
Simelane homestead consuming traditional beer there. It is also
common cause that the deceased whilst they were there had asked for
his hat from the accused and his drinking mates.
The
question that remains to be answered is who inflicted the fatal
injuries on the deceased. According to the crown this is answered by
the evidence of PW3 Bheki Vilakati.
Mr.
Dlamini for the crown contended that this witness's testimony is
crucial in that he told the court later after the drinking session
had ended that he met the accused who told him that he had
accidentally injured the deceased and that he said that freely and
voluntarily. Mr. Dlamini directed the court's attention to Section
236 of the Criminal Procedure and Evidence Act (as amended) that the
court may convict on the evidence of a single witness. The court was
also directed to the case of R v Mokoena 1932 O.P.D. 79 where it was
held that a court may convict on the evidence of a single witness who
has no interest in the matter. In the present case it is contended by
the crown that PW3 had no interest and bias. His evidence was clear
and did not have any contradictions.
Mr.
Bhembe on the other hand contended that the court ought to treat the
evidence of PW3 with caution. And that further the evidence of PW3
should have at least be
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corroborated
by that of PW4 The evidence of PW3 cannot safely be relied upon by
the court.
It
is common cause that the evidence which links the accused person to
the commission of the offence is the evidence of PW3 Bheki Vilakati
and as such his evidence should be treated as evidence of a single
witness.
Section
236 provides as follows:
"Sufficiency
of one witness in criminal cases, except perjury and treason.
236
The court by which any person prosecuted for any offence is tried,
may convict him of any offence alleged against him in the indictment
or summons on the single evidence of any competent and credible
witness".
The
effect of this section was considered in R v Mokoena (supra), where
the following was said:
"this
section should only be relied upon where the evidence of the single
witness is clear and satisfactory in every material respect... and
ought not to be invoked where, for instance, the witness has an
interest or bias adverse to the accused, where he has made a previous
inconsistent statement, where he contradicts himself in the
witness-box, and where he has not had proper opportunities for
observation, etc".
In
R v J 1966 (1) S.A. 88 (SR AD) it was stressed that in considering
the evidence of a single witness, judicial officers should not fall
into the error of thinking that the various tests which have been
formulated displaced the normal test in criminal cases of proof
beyond reasonable doubt. Such tests are no more than guides, albeit
very valuable guides, which assist the court in deciding whether the
prosecution had discharged the onus resting upon it.
The
same warning against over emphasis of the cautionary rule came from
the Appellate Division in S v Artman and another, 1968 (3) S.A. 339
(AD) where Holmes, JA at page 341 said the following:
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"...the
ultimate requirement is proof beyond reasonable doubt; and courts
must guard against their reasoning tending to become stifled by
formalism".
In
casu I find that the crown has not proved its case beyond a
reasonable doubt. No one who gave evidence for the crown was able to
say that he or she actually saw the accused stab the deceased or to
offer evidence that might point to a motive. No one says that he or
she saw him inflict the fatal wound. Whether he did so whether in
doing so he had the necessary actual or legal intention to kill him,
and whether at the time he was acting unlawfully are all matters of
inference conjecture.
There
are two conflicting versions in this matter. PW3 told the court that
the accused told him that he had accidentally injured the deceased.
The accused on oath denies that he ever uttered those words.
The
court therefore has to determine which is the true version. The
proper approach to be followed in such instances was established in
the well known case of R v Difford 1937 A.D. 370 where at page 373
the following appears:
"No
onus rests on the accused to convince the court of the truth of any
explanation which he gives. If he gives an explanation, even if that
explanation is improbable, the court is not entitled to convict
unless it is satisfied, not only that the explanation is improbable,
but that beyond any reasonable doubt it is false. If there is any
reasonable possibility of his explanation being true, then he is
entitled to his acquittal".
In
S v Singh 1975 (1) S.A. 227 N Leon J held that in criminal cases,
where there is a conflict between the evidence of the crown witnesses
and that of the accused, it would be quite impermissible to approach
the case on the basis that, because the court is satisfied as to the
reliability of the crown witnesses, it therefore must reject the
accused's evidence.
Applying
the test in S v Singh (supra) to the present case the accused gave an
explanation which cannot on any basis be regarded as demonstrably
false or inherently so improbable as to be rejected as false.
In
the circumstances, I find that there is a doubt as to whether the
accused person stabbed the deceased that night.
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I
thus give him the benefit of the doubt and find him not guilty and he
is acquitted forthwith.
S.B.
MAPHALALA
JUDGE
