Court name
High Court of eSwatini
Case number
225 of 2009

R v Khumalo (225 of 2009) [2011] SZHC 119 (03 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 119



NO. 225

the matter between:









The Accused is charged with the crime of Murder, it being alleged by
the Crown that upon or about the 28
November, 2008 and at or near Pigg's Peak town in the Hhohho region,
the accused person did unlawfully and intentionally kill one Andile
Mncina and did thereby commit the crime of Murder. The accused person
pleaded not guilty to the indictment. In support of its case, the
Crown led the evidence of thirteen (13) witnesses and at the close of
the Crown's case, the accused gave evidence under oath and did not
call any witness.

To begin with, there are certain legal issues that are common cause,
namely, that the deceased, Andile Mncina, is dead. It is also not in
contention that she died on 28
November, 2008 as a result of multiple stab wounds. In this regard,
The post-mortem report, of Dr. R. M. Reddy, which was tendered by
consent and admitted in evidence as Exhibit Z9, reflects that the
deceased Andile Mncina was about 10 years old and that the cause of
death was haemorrhage as a result of penetrating injury to the right

The following ante-mortem injuries were recorded:

Penetrating injury above outer and third right clavicle present;
right lung deep 3 x 1.5 cm irregular margin on medial cut with angle
sharp. Other margin clean cut. It involved muscles, intercostal
structures, 1
rib, pleura, upper lobe of lung (2 x 0.4cm) above downwards,
medially, pleura cavity contained about 1200 ml blood clot.

Cut wound over back outer aspect of right elbow 6.1 x 2cms muscle

Cut wound over outer aspect of iliac fosa left 5.9 x 2cms."

I must state that these ante-mortem injuries are corroborative of the
verbal account of the scene of crime officer D/Constable Sandile
Chonco (PW12) who produced and tendered seven photos which were
admitted in evidence as Exhibits
- Z7. The said photos depict visible stab wounds on the right arm of
the deceased and on the right side of her neck as well as another
stab wound on the left side of her waist.

This, in my view, would have meant inflicting one wound then
extracting the knife and plunging it again and yet again into the
fragile body of the 10 year old. It is also in evidence that the
deceased's body was soaked in a pool of blood as she lay facing
downwards on a small pathway towards the river.

I shall now turn to consider the salient portions of the evidence led
by the Crown. PW1 was Absalom Ndwandwe who is a half-brother to the
accused. He testified that he had received a telephone call from PW2,
his mother, informing him that the police were looking for the
accused. He further testified that when he telephoned the accused
person in South Africa to inform him that the police had alleged that
the accused had killed a school girl and that E500.00 was needed to
be sent to the deceased's family for assistance, the accused had told
him that he did not know how the incident happened.

PW2 was Bonisile Khumalo, the mother to both PW1 and the accused. She
had been informed by police officers that the accused had killed a
school girl and she had passed on this information to PW1 and also
requested E500.00 from him to give to the bereaved family.

Goodness Dlamini testified as PW3. The main thrust of her evidence
was that on 28 November, 2008 she was at the Pigg's Peak park during
lunch hour with her mother. There were other people as well including
the accused and his friends who were drinking beer at the park. An
argument ensued between her and the accused who then abused her using
vulgar language calling her a prostitute and a dog. PW3 further
testified that the accused then threatened to kill her. As a result,
she called the police but by the time the latter arrived the accused
had gone to the VuyaVuya bar. PW3 went on to state that when she and
the police got to the VuyaVuya bar, the accused came out of the bar
and ran away. She then saw the police chasing after the accused who
had crossed the dam and was fleeing towards Mhlatane High School.

When asked to describe what the accused was wearing PW3 said, that at
the time the accused confronted her at the park, he was wearing a
white T-shirt, blackish trousers, white sneakers and a hat that was
khakis in colour and torn at the top so that she was able to see his
hair. In answer to questions put to her under cross-examination, PW3
confirmed that the accused was drinking beer with his friends but
added that she could not say if the accused was drunk or not because
it was her first time of seeing him.

PW4 was constable Sigicimba Dlamini a police officer based at the
Pigg's Peak police station traffic department. His evidence was to
the effect that on 28
November, 2008, he was with another traffic officer patrolling around
Pigg's Peak when they were stopped by PW3 who made a complaint about
the accused. He said he and the other officer together with PW3
proceeded to the VuyaVuya bar where they saw the accused but as they
tried to confront him he ran away. PW4 testified further that when
they chased the accused he outran them taking the pathway that leads
towards the forest. He identified the accused in the dock as the
person who had outrun them.

Under cross-examination PW4 maintained that the accused was wearing a
hat that was whitish in colour and torn at the top of the head. He
also said the accused was wearing a white short sleeved T-shirt with
blackish trousers and white sneakers.

The next witness to testify was PW5 Sikhumbuzo Mhlanga who is a
friend to the accused person. He narrated how he and the accused had
embarked upon a drinking spree at Pigg's Peak town from 27
November, 2008 to the 28
November, 2008. He stated that on the 27
whilst they were drinking at a VuyaVuya bar, the accused had got into
a fight as a result of which he was injured. He said the accused
asked him to lend him his hat so that the injury on his head would
not show and in turn the accused gave him his red cap.

When he was asked to describe the hat PW5 said it was cream in colour
with the word "Nokia" inscribed on it and it had an opening
at the top. He said after they had exchanged hats they continued
drinking at the bar until it closed at 11 p. m. Then in the morning
of the 28
November, 2008, PW5 said he was with the accused and two others at a
drinking spot called Magwani Shigbi where they bought nine bottles of
beer. They stayed there until 11 a.m. and then they left and went to
a shop where the friend they were with bought some clothes. The
accused then asked them to accompany him to another shop where the
accused bought two small knives.

PW5 testified further that they went back to the bar and bought some
beers but around 1 p.m. they decided to go to the Pigg's Peak park
because there were a lot of people in the bar. He stated that whilst
they were at the park the accused person showed signs of being drunk
as he started to grab every female person who passed by. PW5 said the
accused got into an argument with PW3 who then called the police
after the accused had insulted her.

It was PW5's further testimony that since they knew that the accused
was hot tempered he and the other two friends (they were with) had
hidden the knives the accused had bought in his bag. He said the
accused had, however, removed the said knives from his bag before
they left the park and proceeded to the VuyaVuya bar. He further told
the Court that whilst they were at the said bar, PW3 arrived with the
police and thereupon the accused ran away and disappeared into the
forest. PW5 further testified that after some time the accused came
back to meet him at Lanyandza bottle store where he had gone to buy

I find a need to reproduce in extensor the next piece of PW5's
testimony for ease of clarity. He said:

there the accused came in. He was not the same person as before. He
was angry and he told us he would not be able to go with us to his
home. I asked him why he was changing his mind and he said he was
going to Piet Retief. What I noticed was that there was blood on his
sneakers. When I asked him about it he said he had bled from his nose
and that blood had dropped on his sneakers as he was running away
from the police. The blood was on the top of his sneakers. He took
his bag and he gave me back my hat and I gave him his cap. He also
gave me his South African number and he told me I could contact him
if I wanted to visit him. I mink the time was roughly past 3 p.m."

Under cross-examination PW5 maintained that they had taken the knives
from the accused because they had seen how drunk he was and knowing
that he was short tempered they thought he would hurt someone if he
was in possession of the said knives. PW5 said the accused had bought
the knives because he had quarrelled with a certain man who was
looking for him and he had earlier learnt that the man was in town.

The only eye witness in this case was 12 year old Phiwayinkhosi
Dlamini who testified as PW6. On account of her age, I first of all
satisfied myself that she understood the nature of taking the oath
before she was sworn. She then painstakingly narrated how she and the
deceased were attacked by the accused whom, according to her, she did
not know but was able to identify in the dock. She testified that on
the 28
November, 2008, school closed at 2 p.m. and she and the deceased
Andile Mncina took a pathway that goes through a forest towards
Mhlatane High School en route to the Mhlatane quarters where they
were residing. She said the accused approached from the forest behind
them and he told them he wanted to kill them.

Testifying further, PW6 said the accused grabbed her hand, but when
he saw the deceased running away, he let go of her hand and then
chased after the deceased. She said the accused caught the deceased,
laid her on the ground and then started stabbing her on her arm. It
was at that point that PW6 shouted for help and raised an alarm. PW7
Lucky Mavimbela and PW10 Makhosazana Sikhosana arrived on the scene
and called the police to whom PW6 described their assailant as being
of medium height and dark in complexion and that he was wearing a hat
which had an opening at the top. She was able to identify the said
hat in Court.

PW6 was cross-examined at length by defence counsel but she was not
fazed and she maintained that she had seen the accused stabbing the
deceased. In her own words she said: "I saw the deceased being
stabbed and what I am sure of is that she was not stabbed once. I
could not take note of the other times because I was afraid." It
was put to PW6 that she could not positively identify their assailant
because she was afraid. This she denied as false and she maintained
her stance that she was able to identify him as the accused person.
It is pertinent to note that the defence did not put it to the
witness that the accused person was never at the scene.

PW13 was Raymond Nxumalo the investigator in this matter. He
testified that when he took over the investigation he and his
colleagues visited the scene of crime and having got the description
of the assailant they then proceeded to Macembeni which is where the
accused was alleged to have run to. Just before they reached
Macembeni they came across PW8 Thabile Ginindza and PW9 Mandori Phiri
and it was from these two witnesses that the investigating team had
learnt that the suspect they were looking for was known to them as
Ndaba Khumalo.

PW13 further testified that they checked the Macembeni area but they
could not locate the accused so they went to Pigg's Peak park where
he had been drinking alcohol with his friends. They later received
information from PW5 Sikhumbuzo Mhlanga that the accused person had
been wearing his topless hat when he ran towards Mhlatane High School
direction and that he had later returned it to him before he left for
Piet Retief. PW13 retrieved the said hat from PW5 and it was
eventually admitted in evidence as Exhibit Z8. PW13 then concluded
his testimony by giving a detailed account of the events that led to
the accused being transported from South Africa to Swaziland and
eventually being detained at Pigg's Peak police station after being
cautioned in terms of Judges' Rules before being formally charged for
the present offence.

It is pertinent to note that all the Crown witnesses described
Exhibit Z8 as the hat which the accused was wearing on that day.
Moreover, the evidence adduced by PW6 about Exhibit Z8 is
corroborated by the evidence of PW5, PW8 and PW9. Incidentally, these
three witnesses had testified that they knew the accused person very

I shall now turn to consider the defence put forward by the accused
person who, as indicated earlier, elected to give evidence on oath.
It was the evidence of the accused that he was working in the
Republic of South Africa where he loaded logs unto trucks and that
the said logs were transported to railway lines for the construction
of railway tracks. He testified that he came back to Swaziland on 27
November, 2008 and on his arrival at Pigg's Peak around 6:15 p.m. he
went straight to a bar and started drinking. He said as he was
drinking, PW5 appeared and both of them continued with the drinking
spree until the bar closed around 11 p.m. They then boarded a taxi to
a PW5's workplace called
to spend the night. He said when they got to
again drank until they felt sleepy.

The accused further testified that on the following day which was
November, 2008, they woke up in the morning at 6 a. m. and they
immediately started to drink. After they had finished drinking they
boarded a truck that took them to Pigg's Peak town where they
proceeded to Magwani Shigbi bar to continue with their drinking.
Later around 09:15 they went to Pigg's Peak town centre to buy
something to eat and then they went to another bar to continue with
their drinking spree. Later they bought more alcohol and then
proceeded to the park where they sat at the same table with certain
friends of PW5. He said as they continued with the drinking spree he
got into an argument with certain ladies who had told them that they
were noisy. The accused told the Court mat one of the ladies had told
him that she was calling the police and when he saw the lady calling
the police he told his friends that they should proceed to the
VuyaVuya bar.

Testifying further, the accused stated that when PW3 and the police
officers arrived at the VuyaVuya bar he ran away and they chased him.
He said he ran into a narrow pathway and that when he looked back and
he was not able to see the police he remained there for a while and
waited for the police officers to leave. He said that he returned to
town around 1 p.m. to collect his bag from PW5 and that whilst he was
in town he had received a phone call from his employer who had
informed him that he should rush back to work. He then retrieved his
bag from PW5 and he left for South Africa.

The accused went on to state that he had later received a call from
his brother Absalom (PW1) who had informed him that it had been
alleged that he had killed someone in Swaziland. He said he had told
Absalom that he did not know what he was talking about because he had
been drunk on the day he was referring to.

The accused was cross-examined at length and he denied the evidence
led by the Crown witnesses and which incriminated him. For instance,
the accused denied that he had insulted PW3 at the park. He could not
remember what PW5 had said about him buying two knives from the shop
and that all he remembered was him going to a shop to buy something
to eat. He said he did not remember accompanying PW5 to the bank and
that he only saw him when he came back with his friends who were
carrying some clothes. When Crown counsel put it to the accused that
PW5 had told the Court that he had exchanged hats with the accused
and that the accused was wearing Exhibit Z8, the accused retorted
that he could not remember that.

Furthermore, the accused denied using the pathway in the forest and
he could not remember accosting PW6 and the deceased and telling them
that he wanted to kill them. He said he could not remember chasing
after the deceased and he denied the allegation that he had stabbed
and killed her. He also said that he could not remember most of the
things PW8 and PW9 had testified about and that they had fabricated
evidence against him. The accused also denied Crown counsel's
suggestion that he was trying to evade arrest by going back to South

It is my firm view that the evidence of PW8 and PW9 clearly negates
the evidence of the accused that he had gone back to town around 1
p.m. These two witnesses had testified to the effect that they know
the accused personally and that on 28
2008, they had seen the accused around 3 p.m. at Macembeni where he
had approached them and had asked them to give him a towel to wipe
his clothes and shoes. According to their testimony, the accused was
drunk and he had insulted them using vulgar language. He had also
produced a knife and threatened to kill PW8's child when they refused
to give him a towel.

It is worthy of note that the defence has alluded to some
contradictions in the witnesses' evidence concerning the colour of
the pair of trousers which was worn by the accused on the day in
question. It has been submitted by defence counsel that PW3 and PW4
had testified that the accused was wearing a pair of darkish trousers
but PW8 had said that he was wearing a pair of khaki trousers whereas
PW9, who said she spent some thirty [30] minutes with the accused,
had maintained under cross examination that she did not notice the
colour of the trousers. It is defence counsel's contention that this
militates against the Crown's case in so far as the person who
committed the offence is concerned.

I must state that I am disinclined to accept defence counsel's
submission in this regard. To my mind, when viewed objectively, these
inconsistencies relating to the clothes the accused was wearing do
not serve to detract from the truthfulness of the witnesses'
accounts. I am fortified in my view by the pronouncement of my
learned brother
v Mfanzile Mphicile Mndzebele,
Trial No. 213 of 2007 where he opined at page 22 as follows:

memory does not improve with time. To the contrary, it deteriorates
and witnesses cannot be correctly accused of not recalling all the
minute details of events they testify about years after their
occurrence. Otherwise, they would be punished for their memory
failing them, which is not an offence."

His Lordship then referred to the case of
1989 B.L.R. 133 (HC) at 140 B-C
- Dako J.

an inconsistency to be material, such inconsistency must in my view,
be of a material nature, capable of turning the result of the case
one way or the other. For there could hardly be any witness of truth
if the principles were otherwise, since in nine cases out of ten,
witnesses are called upon to give evidence upon matters about which
they might have witnessed or given statements months or even years
before. In such cases, the possibility of minor slips, which may be
in conflict with their previous statements, cannot be ruled out. But
that should not necessarily make them untruthful."

One striking piece of evidence worthy of note is the sighting by PW8
and PW9 of the accused in Macembeni around 3 p.m. In my considered
view this places the accused near the scene of the crime rather than
en route to South Africa as he stated in his defence. Furthermore, it
is also in evidence, from the testimony of PW5, that when the accused
went back to town to return Exhibit Z8 and collect his bag from him
the time was "roughly past 3 p.m." This, undoubtedly,
negates the testimony of the accused who had told the Court that he
returned to town around 1 p.m. to collect his bag from PW5. I
therefore find that the accused lied to the Court in this regard.

I must also mention another significant piece of evidence which I
have taken into consideration. PW5 was one of the witnesses who had
the opportunity of seeing the accused when he returned to town after
having disappeared into the pathway that leads to the forest. What he
noticed was that there was blood on the top of the sneakers which the
accused was wearing. On noticing this PW5 did not just keep his mouth
shut. As a friend he had asked the accused about it and the
explanation the latter gave him was that he had bled from his nose
and that blood had dropped on his sneakers as he was running away
from the police.

Generally, in my assessment, I must say that I find the evidence of
all the Crown witnesses credible, corroborative and therefore
reliable. I believe them and I accept the bulk of their testimonies
in its entirety.

On the other hand, I have found the accused to be unimpressive and
elusive as a witness. He professed not to have known how the crime
was committed because he was drunk. Judging from his demeanour, he
exuded an air of what I would term as "selective memory"
thus choosing to remember only few events that happened on the 28
2008. For instance, the accused remembered all the drinking spots
they had been to that day, he also remembered fleeing from the
VuyaVuya bar after PW3 had phoned the police. Also, that he went back
to town to collect his bag from PW5 around 1 p.m. I find this
assertion by the accused, that he was in town by 1 p. m. on that day,
to be nothing but a calculated and deliberate lie aimed at misleading
the Court to believe that he was nowhere near the scene of the crime.
Moreover, I have carefully considered the evidence of PW6 and I
accept the fact that she and the deceased were accosted by the
accused after they had finished school at 2 p.m. I therefore find for
a fact that the accused's evidence that he had returned to town at 1
p. m is false.

On the whole, I find that the defence of the accused was nothing but
an outright bald denial of the evidence adduced by the Crown's
witnesses and I accordingly reject the said defence. In particular, I
reject his defence that he does not recall what happened.

At this stage, two crucial questions need to be addressed viz:

whether the Crown has proved that the stab wounds inflicted upon the
deceased were intentionally inflicted by the accused; and

whether or not the defence of intoxication can avail the accused.

It is the Crown's contention that it has been established beyond
reasonable doubt that the accused had intention, in the form of legal
intention, otherwise known as
commit the offence he did. It was submitted by Crown counsel that
since the accused voluntarily drank beer from the 27
November, 2008 until the time when he was chased by the Police from
the VuyaVuya bar on the 28
2008, his intoxication cannot be a defence. Counsel also submitted
that the accused had the necessary intention to kill the deceased
because he had told PW6 and the deceased that he wanted to kill them.

However, it was submitted by defence counsel that the Crown has
failed to prove beyond reasonable doubt that the accused had
either the form of
that it should be found that a proper verdict in the totality of the
circumstances of the case is one of culpable homicide.

Let me pause here at this stage to examine the concept of
propounded by
Tiki Sihlongonyane v R
Case No. 40/97.
said: " Dolus can, of course, take two forms:

(i) dolus
the accused directs his will to
causing the death of the deceased.
He means to kill.
There is in such event an actual intention to
kill; and

(ii) dolus
the accused foresees the
possibility of his act resulting in
death, yet he persists in
it reckless whether death ensues or

His Lordship then went on to state the constituent elements of
the following terms:

subjective foresight of the possibility of death however remote, as a
result of the accused's unlawful conduct;

(ii) persistence
in such conduct, despite such foresight;

(iii) the
conscious taking of the risk of resultant death,
not caring
whether it ensues or not; and

(iv) the
absence of actual intention to kill

I have also found
Burchell's Principles of Criminal Law, Third Edition
on this point. At page 467 therein he states that:

where the accused foresees the possibility that the prohibited
consequence might occur, in substantially the same manner as that in
which it actually does occur, or the prohibited circumstance might
exist and he accepts this possibility into the bargain (i.e. reckless
as regards this possibility.)"

On a proper analysis of the evidence and the submissions in this case
at hand, it is accepted that the injuries sustained by the deceased
were inflicted by the accused on the 28
2008. I find this as a fact and I so hold. It also appears to me that
the accused's conduct, as described by PW6, had all the hallmarks of
legal intention. By stabbing the deceased and inflicting injuries on
different parts of her body, which was in the circumstances unlawful,
the accused clearly foresaw a possibility of death and he must have
known that his conduct could cause death.

Moreover, judging from the facts before me, it cannot be said that
the accused was so drunk that his actions were involuntary. I find
that although the accused was drinking beer throughout, he was not so
drunk as not to appreciate his actions. I am of the view that the
accused was only slightly drunk on the 28
November, 2008 and that the bottles of beer he had consumed had no
significant effect upon his mental state. This I find because he
appreciated most of the events that happened on the day in question.
It cannot be said that the accused did not know what he was doing
because he was able to flee from the police and he was also able to
return to town to retrieve his bag from PW5, hand him back his hat
and then leave the country. I am equally of the firm view that the
accused knew precisely what he was doing and was just totally
reckless as to whether the stabbing of Andile Mcnina would cause
death or not. I so hold. The accused therefore would have no defence
since his criminal capacity had not been affected.

can only add that I am fortified in my view by the
of Appeal
Lokudzinga Mathenjwa v R 1970-1976 SLR 25
it was held as follows:

the doer of the unlawful act, the assault which caused the death,
realised when he did it that it might cause death, and was reckless
whether it would do so or not, he committed murder. If he did not
realise the risk he did not commit murder but was guilty of culpable
homicide, whether or not he ought to have realised the risk, since he
killed unlawfully." (per Schreiner
Caney JA concurring.)

Also, in the case of
v. Jabulane Philemon Mngomezulu
- 1976
Troughton ACJ
this to say:

intention of an accused person is to be ascertained from his acts and
conduct. If a man without legal excuse uses a deadly weapon on
another resulting in his death, the inference is that he intended to
kill the deceased."

In light of the foregoing, the conclusion, which I regard as
inescapable in this instant case, is that the stabbing of the
deceased was intentional in the sense of
find that mens rea in the form of
been proved by the Crown beyond reasonable doubt and I therefore find
the accused guilty of murder as charged and I hereby convict him

It must be borne in mind, however, that
295. (1) of the Criminal Procedure and Evidence Act 67/1938

a Court which convicts a person to state whether there are
extenuating circumstances. It provides as follows:

a court convicts a person of murder it shall state whether in its
opinion there are any extenuating circumstances and if it is of the
opinion that there are such circumstances, it may specify them;

that any failure to comply with the requirements of this section
shall not affect the validity of the verdict or any sentence imposed
as a result thereof.

deciding whether or not there are any extenuating circumstances the
court shall take into consideration the standards of behaviour of an
ordinary person of the class of the community to which the convicted
person belongs (Amended

In construing the above sub-section, I must state that I agree with
the observation of
Twum JA
Adams and The King Criminal Appeal Case No. 16/10
he stated that:

Legislature has not defined what circumstances are extenuating
circumstances and it is left to the Court to decide whether there are
such circumstances in each particular case."

Another case which I have also found instructive on this issue is the
Swaziland Court of Appeal case of
M. Dlamini v Rex Criminal Appeal No. 11/98
it was held that

onus rests on an accused person who is convicted of murder to
establish extenuating circumstances."

would appear therefore, that in reaching a conclusion as to whether
or not extenuating circumstances are present, the duty falls upon the

When dealing with the issue of extenuating circumstances in
Mapholoba Mamba v Rex, Criminal Appeal No. 17/2010,
that, in his view, a locus classicus exposition of extenuating
circumstances was made by
v Letsolo 1970 (3) SA 476 (AD) at 476 G-H
the following terms:-

circumstances have more than once been defined by this Court as any
facts, bearing on the commission of the crime, which reduce the moral
blameworthiness of the accused, as distinct from his legal
culpability. In this regard a trial Court has to consider -

Whether there are any facts which might be relevant to extenuating,
such as drug abuse, immaturity, intoxication, provocation, (the list
is not exhaustive);

Whether such facts, in their cumulative effect, probably had a
bearing on the accused's state of mind in doing what he did;

Whether such bearing was sufficiently appreciable to abate the moral
blameworthiness of the accused in doing what he did;

deciding (c) the trial court exercises a moral judgment. If the
answer is yes, it expresses its opinion that there are extenuating

It is pertinent to note that in this jurisdiction
v Letsolo
was approved and followed by the Court of Appeal, as it then was, in
the case of
Mdluli and Others v Rex 1970-1976 SLR 69

Coming to the instant case, it is inexorably apparent that the
accused was drunk at the time of commission of the offence charged.
Earlier on in this judgment, I had made a finding of
opposed to
now consider that such finding of
with intoxication constitute extenuating circumstances.

I am therefore of the opinion that there are extenuating
circumstances in this case and I so return this opinion as required
by section 295 (1) of Criminal Procedure and Evidence Act, 1938, as


the result, the verdict of this Court is as follows:

of murder with extenuating circumstances."

...3rd. DAY
OF JUNE, 2011