Court name
High Court of eSwatini

Rex v Motsa and Another () [1998] SZHC 114 (08 October 1998);

Law report citations
Media neutral citation
[1998] SZHC 114









IN
THE HIGH COURT OF SWAZILAND


Criminal
case no. 72/98


held
at mbabane


in
the matter between:


REX


VS


1. PIKINEVI
SIMON MOTSA


2. SIFISO
TIMOTHY MABUZA


CORAM: MATSEBULA
J


FOR
THE CROWN: MR. L. NGARUA


FOR
THE ACCUSED NO.1: MR. N.J. HLOPHE


ACCUSED
NO.2: MR.

M.
MAMBA


JUDGEMENT
DATE


08/10/98


The
two accused Pikinini Simon Motsa and Sifiso Timothy Mabuza are
indicted on a number of counts set out below:


Count
one: Murder charge - it is alleged that on or about the 23rd December
1996 and at or near Gege along the Sicunusa/Nhlangano public road in
the Shiselweni District acting in common purpose did unlawfully and
intentionally kill Nokwazi Margaret Nkabinde. Count two: Murder
charge - it is being alleged that on or about 23rd December 1996 and
at or near Sicunusa area in the Shiselweni District acting in common
purpose did unlawfully and intentionally kill John Zondo.


1


Count
three: Murder charge - the allegation being that on or about the 23rd
December 1996 at or near Sicunusa in the Shiselweni District acting
in common purpose did unlawfully and intentionally kill Sibongile
Asiyena Kunene.


Count
four: Murder charge against accused no.1 only. The allegation being
that on or about the 11th February 1997 at or near Bethlehem in the
Shiselweni District he did unlawfully and intentionally kill Almon
Simelane.


Count
five: Armed robbery - it being alleged that on or about the 23rd
December 1996 and at or near Sicunusa /Nhlangano public road in the
Shiselweni District the accused acting in common purpose did
unlawfully and intentionally used force and violence to induce
submission by Isaac Mphiwa Fakudze to the taking of E700.00 in cash.
The accused threatened the said Isaac Mphiwa Fakudze that unless he
consented to the taking by the accused of the said property they will
there and there shoot him and did thereupon take and steal from the
said Isaac Mphiwa Fakudze the said property in his lawful possession
and did rob him of the same.


Count
six: Attempted murder - it being alleged that on or about the 23rd
December 1996 and at or near Gege along the Sicunusa/Nhlangano public
road acting in common purpose did unlawfully and with intent to kill
shoot at Beauty Mhlongo.


Count
seven: Armed robbery - it being alleged that they on or about the 2nd
December 1996 at or near Sicunusa Border Post in the Shiselweni
District acting with common purpose did unlawfully and intentionally
used force and violence to induce submission by Daniel Hadzebe to the
taking by the said accused of E300.00 in cash. Accused threatened the
said Daniel Hadzebe that unless he consented to the taking by the
accused of the said property they would then and there shoot him and
did thereupon take and steal from the said Daniel Hadzebe the said
property in his lawful possession and robbed him of the same.


Count
eight: Accused no. 1 only is charged under the provisions of the ARMS
AND AMMUNITION ACT 24/1964 (AS AMENDED) in contravention of Section
11(1) as read with Section 11(8) that is possession a .38 special
revolver. It being alleged that on or about 13th February 1997 at or
near Siphundu in the Shiselweni


2


District
found in possession a .38 special revolver serial no. R367930 without
a licence for the firearm.


Count
nine: Accused no. 1 only is charged under the ARMS AND AMMUNITION ACT
24/1964 (AS AMENDED) in contravention with Section 11(1) read with
Section 11(8) possession of one 12 bore bait. It being alleged that
on or at about 13th February 1997 at or near Siphundu you were found
in possession of this firearm without a permit or licence.


Count
ten: Accused no.l only is charged in contravention with Section 11(1)
read with Section 11(8) of the ARMS AND AMMUNITION ACT 24/1964 (AS
AMENDED) in that he possessed 1.22 gerard rifle. It being alleged
that on or about 13th February 1997 at or near Siphundu you were
found in possession of this firearm without a permit or licence.


Count
eleven: Accused no. 1 only is charged with the contravention of
Section 11(1) read with Section 11(8) of the ARMS AND AMMUNITION ACT
24/1964 (AS AMENDED) in that he possessed 32 live rounds of
ammunition. It being alleged that on or at about 13th February 1997
at or near Siphundu you were found in possession of this firearm
without a permit or licence.


Count
twelve: Accused no.l only is charged with the contravention of
Section 11(3) read with Section 11(8) of the ARMS AND AMMUNITION ACT
24/1964 (AS AMENDED) in that he possessed one magazine. It being
alleged that on or at about 13th February 1997 at or near Siphundu
you were found in possessiion of this magazine without a permit or
licence.


When
the charges were put to the accused, they both pleaded not guilty to
all the respective counts and were duly represented accused no.1 by
Mr. Hlophe and accused no.2 by Mr. Mamba.


The
first witness for the Crown was introduced as an accomplice witness
and the court took it upon itself to explain to the witness his legal
rights in regard to giving evidence. The witness was Themba Sikuta
Hatshwako. His evidence covered counts one, two three and counts
five, eight, nine and eleven.


3


It
is necessary from the onset to treat in some details the evidence of
the accomplice witness PW1. This is necessary because his evidence
touches most if not all the counts preferred against the two accused.
The court has drawn on passages in the case of REX VS MANDLA HOMEBOY
DLAMINI SLR. 1982/86 @387 and is treating the evidence of PW1 with
extreme caution. The court is aware that it is dangerous to convict
on the evidence of an accomplice alone and it must look for
safeguards that will reduce the risk of convicting an innocent
accused.


I
have considered the evidence of PW1 and I have found him a credible
witness and will deal with this aspect of his credibility in the
course of my judgement. He was cross-examined extensively but stood
his ground. The only weakness in his evidence is that of attempting
to minimise his role in the commission of the alleged crimes
otherwise most of his evidence was actually corroborated by other
Crown witnesses. For example the evidence of the police officers who
testified that after accused no. 1 and 2 had been warned in terms of
the Judges Rules accused no. 1 led the police to places hitherto
unknown to them and at these places accused no. 1 produced items
which tied up with the description of the items which PW1 mentioned
in his evidence in chief. Examples of these items are: (a) the three
guns described by PW1 in his evidence in chief; (b) the items
identified by the wife of the deceased Zondo on count two; (c) the
jackets taken from the bakery truck identified by the witnesses who
were on that truck, to mention but a few. I will deal with the other
items as I deal with the evidence of the other witnesses.


PW1
told the court that he knew both accused no.l and 2 and that they
lived in the same vicinity as he did. It was his evidence that he
made his living by selling firewood and accused no.2 would
occasionally give him a hand for some consideration. On the 22nd
December 1996 a date before the commission of the offences alleged to
have taken place on the 23rd December 1996 he met accused no. 1.
Accused no.1 invited PW1 to come to accused no.1's homestead on the
23rd December 1996. He agreed to go to the accused no l's homestead
on the date. He went there and found accused no.2 also present. It is
PW 1's evidence that accused no.l produced three guns and suggested
that the three


4


should
go and lay in an ambush and rob the Lunyawo Bus Service of money at
gunpoint. They set out in accordance with the conspiracy. PW1 said as
they proceeded along the road to Sicunusa on their mission they
spotted a green van branching off the main road into the grass
towards the forest. It is the evidence of PW1 that accused no.l then
suggested that they should accoust the van perhaps the occupants of
the van will also have money. This suggestion was accepted however,
PW1 advised against the shooting at the occupants and said they
should only be frightened. This advice was however not acceptable to
accused no.l who fired at the woman first three shots and when the
male got up he sat on his buttocks and accused no. 1 fired two or
three times against the man as well.


I
may just pause here and point out that the evidence of the police
witness corroborates this piece of evidence of PW1. In the course of
the investigation accused no.l subsequently pointed out six spent
cartridges hidden under a rock not far from the scene of the
shooting.


To
continue with the evidence of PW1, he told the court that certain
items were then taken from the van of the two occupants. Some
groceries were divided among the three, that is accused no. 1, 2 and
PW1. Also taken was a bookcase which was later handed in at the trial
as exhibit "1". The bookcase exhibit "1"
contained certain documents which will be dealt with below. It was
PWl's evidence that they had gone through the contents of this
bookcase and found no money but found the documents to which I will
refer below. For the purposes of corroboration I may at this stage
refer to the evidence of PW5 Philisiwe Zondo the wife of the deceased
on count two. She identified exhibit "1" and its contents
as the property of her late husband. These contents included the
following but were not confined to the following items that I will
read.


1. A
Barclay card exhibit "D" which was handed in as exhibit
"D";


2. Barclays
book which was handed in as exhibit "E".


3. Photo
album exhibit "F."


4. A
motor car battery which was handed in as exhibit "4".


5. A
toolbox which was handed in as exhibit "5".


5


6. Men's
belt handed in as exhibit "6".


These
items were identified beyond any doubt by PW5 the wife of Zondo. Some
of these exhibits bore the name of the deceased.


The
evidence of PW1 is therefore corroborative in so far as he testified
that these items had infact been removed from the van after the
shooting of the occupants by accused no. 1. This court cannot indulge
in the somewhat fancy and flimsy suggestion by the defence that
because the male and female deceased were in the act of committing
adultery the surviving partners could possibly have murdered the two
and set the motor vehicle alight. The person in whose possession the
dead people's property was found must give some explanation. This was
not forthcoming and this Court is entitled to infer that accused no.
1 is the person who shot and killed the two occupants. In so far as
to how the motor vehicle with the bodies were set alight, the Court
can only speculate and say that it suspects this was done by the
people who took the dead men's property but until some kind of
explanation, how accused no.1 came to possess the dead men's property
the Court is justified in saying he is the person who killed these
people.


PW1
also gave a graphic description of one of the three guns that he was
carrying. He called it a 2.2 and said he was unlearned and called it
2.2 because he has been told it was a 2.2. In his description he
described the gun as having a peculiar mark that is its nozzle had a
piece of wire tied around it. He described this gun even before the
Crown counsel showed the gun to him. He also said the other gun was
similar to the one that he carried and said the third gun was a
revolver. The gun that he referred to as a 2.2 was handed
subsequently as exhibit "2" and PW1 said it was the gun he
had testified about.


He
also said that the two other guns produced at the trial were similar
to the ones that he had mentioned in his evidence in chief. Again the
court will pause here and refer to corroborated evidence which was
given by the police officer who testified that after they had warned
accused no.1 and 2 about the Judges Rules, accused no.l had gone and
pointed out these guns which were subsequently handed in. The police
officer that gave evidence on this point said accused no. 1 took them
to his homestead where in some tall


6


grass
he produced the guns. I will expand on this piece of evidence when I
deal with the evidence of PW8 Simon Msibi.


To
continue with the evidence of PW1, PW1 testified that after the
shooting of the occupants of the motor vehicle and the plundering of
the dead people's property accused no.l and 2 and PW1 continued with
their mission in accordance with the conspiracy. He testified that as
they were walking along accused no. 1 drew their attention to a
revving of some engine and said it must be the targeted Lunyawo Bus
Service. At this stage PW1 was without a gun but I am however
hesitant to accept this part of evidence. Why would he at this
strategic moment be without a gun when there are three guns? This
Court would rather treat this part of evidence as part of his
endeavour to minimise the part he played. It is PWl's evidence
however, that accused no.1 and 2 entered the road and accused no.l
fired to the air and the bus stopped. The accused no.1 went to the
driver's side, fired through the window twice and some voice was
heard in the bus that someone was dying. Accused no. 1 went to stand
at the entrance of the bus and demanded money pointing the firearm at
the driver of the bus. PW1 testified that he warned accused no. 1 not
to shoot the driver. The driver of the bus handed the money to
accused no.l. Some of this money fell to the ground. Accused no.1
ordered PW1 to pick it up and he complied and accused no. 1 told the
driver to drive off.


PW1
told the court that they had their heads covered. He said the money
was given to accused no.l and he divided it and gave accused no.2 and
PW1 each E65. He stated that he was not happy with this division but
he didn't want to complain, as he was afraid of accused no.1. They
then continued on their way to their respective homes after accused
no. 1 warned them not to tell anybody about this incident. Accused
no. 1 threatened to shoot them if they dared told anyone about the
incident.


PW1
was shown a photo of the van exhibit "A" and he identified
the van and said it was the van in which the two persons were shot.
PW1 was extensively examined in cross-examination and in my judgement
he stood his ground. He denied that the police had promised him
anything if he cooperated. He said he was not promised to be released
if


7


he
agreed to give evidence. He denied that any quarrel had ever taken
place between him and accused no. 1 concerning a gun. By consent
between the defence and the Crown the counsel on the other, PW 13
Isaac Mphiwa Fakudze's evidence in the respect of count one, five and
six was to be handed in as the summary of evidence has not been
challenged.


This
evidence was to the effect that three armed men ambushed the bus on
23rd December 1996 and took with them E700.00 in cash. PW13 also saw
some of the passengers were seriously injured and one having been
shot in the head. Even the evidence of PW14 Beauty Mhlongo was not
challenged. PW14 stated in her summary of evidence that she was
aboard the Lunyawo Bus Service on the day in question. Her evidence
corroborates that of PW13 the driver of the bus. PW14 was shot on her
arm. She stated that other passengers were also shot and injured.
Even the evidence of PW17 Albertina S. Motsa on count four the murder
of Almon Simelane at the Mission shop was not challenged. The summary
of evidence, by consent was to be made part of the evidence of the
proceedings.


On
the 11th February 1997, PW17 heard a gun shot coming from the Mission
shop. She saw a male person running towards the gate. She went to the
shop and found deceased on count four. The medical certificates and
post-mortem reports were also handed in by consent in these counts.


On
count four the Crown also led the evidence of PW2 Amos Vilakazi whose
evidence basically identified a certain moneybox which was in the
shop which the deceased on count four was the Assistant. His evidence
was to the effect that there was a moneybox in the shop that was run
by the deceased on count four.


Sergeant
Msibi said that the money-box identified by PW2 is that belonging to
the shop which was run by deceased on count four was subsequently
pointed out by accused no.1. The moneybox was handed in as exhibit
"3". PW17 also went to the shop on the 11th February 1997
and PW2 went there too and both of them testified that they found the


8


deceased
dead. PW2 stated in his evidence that he knew exhibit "3"
very well. It was kept in the shop. He testified that when he found
the deceased dead on the floor the moneybox was missing and that he
had told he police about the missing moneybox. When he was
subsequently summoned by the police to go to the police station he
said there were a number of items on the floor and he was able to
point out exhibit "3" as the money-box that went missing
from the Mission shop.


On
count four accused no. 1 faces the charge of murder. There is
evidence that accused no. 1 pointed out the dead man's moneybox. He
has not given an account except denying that the moneybox was found
by his pointing out at his or near his homestead. Here again the
court is justified in drawing the inference that he is the killer of
Almon Simelane on count four. One of the investigating officer
Sergeant Msibi called as PW8, I have already made reference to part
of his evidence) testified and also the other witness testified about
how the money-box was found. PW8 said they had proceeded to accused
no.1's homestead after they receiving the report. He said it was
early in the morning at 5am, they introduced themselves as police
officers and informed accused no. 1 about their mission. PW8 said he
warned accused no. 1 in terms of the Judges Rules. I am satisfied
that accused no. 1 understood the warning he was given. PW8 said they
started searching the homestead and found nothing to substantiate the
report they had received. However, they took the accused no. 1 to the
police station for further investigation into the matter. PW8 said
whilst at the police station his other colleagues brought accused
no.2. He stated that once accused no.2 had been brought there he once
again warned accused no.1 in terms of the Judges Rules. He stated
that accused no.l thereupon volunteered to take them back to his
homestead, he then in the tall grass near his homestead pointed out
at the three guns as I have already stated in my judgement. Accused
no.l also pointed out live ammunition. These were the guns as I said
earlier, the accomplice witness testified and identified as the guns
he was testifying about. From his homestead accused no. 1 left for a
place called Sicunusa. This is the same place referred to by PW1 in
his evidence as a place where the crimes were committed. In the
forest, accused no.l pointed out at a brown bookcase, this is a
bookcase PW1 referred to as some of the items which were removed from
the occupants of the motor vehicle in which counts 2 and 3 feature.
The


9


bookcase
was handed in as exhibit "1". The bookcase contained
documents positively identified by PW5 Maria Ntombi Simelane the wife
of the deceased in counts 2 and 3. These exhibits had been referred
to in my earlier judgement. The discovery of these items and their
positive identification by witness PW5 is corroborative of PW 1's
evidence and the risk of convicting on a single evidence of an
accomplice are thereby reduced.


PW8
told the court that accused no. 1 and 2 led them to some rock still
at Sicunusa area in the vicinity of the place where crime on counts 2
and 3 were committed. There, accused no.1 pointed out under some
rocks six spent cartridges. This again corroborates PW l's evidence
that accused no. 1, at this area, fired at least five to six shots at
the motor vehicle occupied by the deceased on count 2 and 3.


Accused
no.l also pointed out a toolbox exhibit "5" and a battery
exhibit "4" at his homestead. These were also identified by
PW5 as items belonging to her late husband. It was PW8's evidence
that accused no.1 had dug out from the midfield a metal moneybox
exhibit "3". This was identified by PW2 Amos Tikhulu
Vilakazi as the property of Almon Simelane who features on count 4
who was murdered. PW12 Detective Khumbula Sibandze whose evidence I
do not propose to deal with in details corroborated PW8's evidence.


On
count PW3 Daniel Bheki Hadzebe told the court that he was a driver of
the bakery van on the 2nd December 1996 and had his two assistants
Sam Kunene and one Zulu. They had money in the truck, part of the
money, he said was in the safe and also in a moneybag. He said in the
moneybag there was plus minus E300.00. Along the Sicunusa Border Post
road they were confronted by two armed men who fired at them, ordered
them out of the truck and demanded to be shown where the safe was.
These robbers chased him away and remained with his assistants. They
attempted to break open the safe but failed. At that stage a certain
Phakama Bus approached and the robbers fled with the money, they had
also taken with them two jackets that belonged to his assistants. The


10


jackets
were pointed out by accused no.1 in the forest and were identified by
PW9 Sam Kunene as jackets taken from them on the 2nd December 1996.


PW12
Detective Khumbula Simelane told the court that accused no.l took
them and led them to the forest at Sicunusa where he pointed out the
jackets exhibit "13" and "14" and these jackets
were subsequently identified by the assistants of the bakery van.


I
turn to accused no 1's evidence. I have referred to PW1's evidence
and said I was impressed with his evidence and 1 did say that I found
corroboration of his evidence and I am satisfied that he risk of
convicting an innocent man has been reduced. However accused no.1's
evidence is on a total different footing. He was a very
unsatisfactory witness. At one stage I suspected that he had not
given his counsel proper instructions because most of what he said in
his evidence in chief was never put to the Crown witnesses. Some of
the glaring and most important effects that ought to have been put to
the Crown witnesses are the following:


1. He
raised a defence of an alibi when he gave evidence for the first
time. He stated that during the month of December he was in the
Republic of South Africa in a place called Campsite. This was never
put to any of the Crown witnesses. He stated that the battery and the
toolbox belonged to him. He had marked the battery for identification
purposes.


If
his counsel was properly instructed he could have put this to the
Crown witnesses and even put to them the mark, accused no. 1 claimed
he had made on the battery. He also for the first time, when he gave
evidence told the court of the version how the guns and the moneybox
was found. He also, had initially denied the battery and the toolbox
were found in his house. He had, according to him bought the belt
exhibit "6" at Campsite in the Republic of South Africa and
this was never put to any of the witnesses who positively identified
the belt as belonging to the deceased. These are about the few
surprises I believe to even his counsel that accused no. 1 brought
about in his evidence in chief and the reason that they were not put
there I suspect that accused no. 1 did not confide and told his
counsel the truth.


11


In
cross-examination accused no.l for the first time came up with a
story that PW1's goats had strayed into his mealie fields and
sometimes purposely driven by the witness into his mealie fields,
this was also never put to PW1 when he gave evidence. The only
question that was put to the Crown witness by accused no.1's counsel
was about a gun which was a cause of some misunderstanding between
accused no.1 and PW1. He was also cross-examined extensively by Mr.
Ngarua about the toolbox. I have said initially he said nothing about
the toolbox but when he went to the witness stand he said the toolbox
was his. He was asked about a certain saw that was a tenori and
joint-saw and he referred to it as a hacksaw and said he used it to
cut iron. There were also motor car parts in the toolbox that the
wife of the deceased on count two had identified as her husband's.
Accused no.l failed to account what these parts were for. I am
satisfied that this toolbox did not belong to accused no. 1 it
belonged to the deceased on count 2.


There
was also the battery, he was also taken at length in
cross-examination by Mr. Ngarua and asked to indicate on a piece of
paper how he had marked the battery for identification purposes. He
indicated on a piece of paper exhibit "L" and "M"
and when these marks which he had made on exhibit "L" and
"M" were searched for in the battery they could not be
traced. I am therefore satisfied that this battery too does not
belong to accused no. 1 but belongs to the deceased. The evidence of
accused no. 1 is not worthy of any credence at all. I am aware that
no onus rests on the accused to convince the court of any truth of
any explanation that he gives nor does the court have to believe the
defence story in all its details. It is sufficient if the court
thinks there is a reasonable possibility that such story may
substantially true. The onus rests on the Crown to prove its case
beyond reasonable doubt. This reasonable doubt is what was stated in
MILLER VS MINISTER OF PENSIONS 1947(2) ELR 372 & 373 where Lord
Danning said the following and I quote:


"It
need not reach certainty but it must carry a degree of probability.
Proof beyond reasonable doubt does not mean beyond the shadow of
doubt. The law would fail to protect the community if it admitted
fanciful possibility to deflect the court of justice. If the evidence
is so strong against a man as to leave only a remote possibility in
his favour which can be dismissed with the sentence, of


12


course
it is possible but not in the least probable the case is proved
beyond a reasonable doubt but nothing short of that will suffice."


I
find corroboration of the accomplice evidence and I also find PW1 to
be a credible witness. Accused no. 1 lied in his evidence in chief
and cross-examination and the failure to contradict the evidence
against him has also served to reduce the risk of convicting an
innocent man. See in this regard the COURT OF APPEAL (SWAZILAND)
CRIMINAL APPEAL CASE NO.12/1993 P.6 (UNREPORTED) where Kotze J

A
(as he then was) said the following in dealing with reducing the risk
of convicting a wrong accused and I quote:


"But
it will also be reduced if the accused showed himself to be a
reliable witness or if he does not give evidence to contradict or
explain that of the accomplice and it would also be reduced even in
the absence of these features if the trial of facts understands the
peculiar danger inherent in the accomplice evidence and rejection of
the accused in such circumstances is only permissible where the
merits of the letter are beyond question."During the trial and
at one stage when there was an application for acquittal of the two
accused in terms of Section 174(4) I referred to the case of REX VS
NCANANA. The courts in Swaziland must read that case very carefully
because we have a statute dealing with conviction on accomplice
evidence. In Swaziland there is a provision in the CRIMINAL LAW AND
PROCEDURE ACT 67 (1938) (AS AMENDED) Section 237 deals with a
conviction on single evidence of an accomplice. It provides as
follows and I quote:


"Any
court which is trying any person on a charge of any offence may
convict him of any offence alleged against him in the indictment for
summons on single evidence of an accomplice provided that such
offence has by competent evidence other than the single and
unconfirmed evidence of an accomplice been proved to the satisfaction
of such court to have been actually committed."


13


It
would seem therefore that if the court is satisfied that the offence
had actually been committed and the only evidence that is there is
that of an accomplice, it can convict. However, the practice involved
in Swaziland and the courts have gone much further and looked for
other features in a trial where the evidence is that of an
accomplice. Single and unconfirmed. These are features that will
reduce the risk of convicting on evidence of an accomplice alone. The
courts have done this in practice because of the very nature of an
accomplice witness' evidence. An accomplice witness is, to quote from
the judgement handed down by Kotze JP (as he then was) in JEREMIAH
PETROS DLUDLU VS THE KING CRIMINAL APPEAL CASE NO.12/93 P.5: -


"For
an accomplice is not merely a witness with a possible motive to tell
lies about an innocent accused but is such a witness peculiarly
equipped by reason of his inside knowledge of the crime to convince
the unwary that his lies are the truth."


So
that even if the provisions of Section 237 has been satisfied there
may still be the risk that an innocent accused may be convicted
wrongly and the risk would be reduced if the trial court is warry and
looks for some safeguards against the wrong conviction. These other
safeguards would be, this is without laying down any rule of law,
that the conviction cannot follow in the absence of corroboration
implicating the accused. Accused shows himself to be a lying witness
or does not give evidence to contradict or explain that of an
accomplice. Certain exhibits are found in his possession implicating
him in the commission of the crime and he fails to explain how he
came by them. He fails to put pertinent question that an innocent man
in his position would put to the witnesses. In the course of this
judgement I will therefore be alive of the provision of Section 237
of the CRIMINAL LAW AND PROCEDURE and be alive to the rule of
practice that there is a special danger in convicting an accused
person on the unconfirmed single evidence of an accomplice witness.


Another
feature of the evidence which came to the fore prominently during the
trial is the evidence of the pointing out of certain exhibits by the
accused. This part of the evidence is also like the evidence of a
singular accomplice witness regulated and provided for in


14


the
STATUTES OF SWAZILAND - CRIMINAL LAW AND PROCEDURE ACT 67/1938 AS
AMENDED Section 227 sub-section 1. This provides:


"Evidence
may be admitted of any facts otherwise inadmissible in evidence
notwithstanding that such facts have been discovered or come to the
knowledge of the witness giving evidence respecting it only in
consequence of an information given by the accused person in a
confession or in evidence which by law is not admissible against it
and notwithstanding that such facts have been discovered and come to
the knowledge of the witness against the wish and the will of such an
accused."


I
have dealt with these sections because in my view they differ from
the sections as provided for in the Republic of South Africa.


Coming
back to counts 1, 5 and 6 I propose to deal with these counts
together for the purpose of this judgement. I have accepted the
evidence of PW1 in-so-far-as the hatching of the conspiracy to go and
rob the Lunyawo Bus Service at gunpoint. On the bus there were a
number of passengers and by consent the two defence counsel on the
one hand and the Crown counsel on the other agreed that the evidence
of Isaac Phiwa Fakudze appearing on the summary of evidence as PW 13
could be dispensed with and what appeared in the summary of evidence
was not disputed by the defence. That summary of evidence
corroborates the evidence of PW1 about the holdout of the bus and the
robbery. Three armed men perpetrated this. Shots were fired at the
bus and some passengers were seriously injured. This Court is
satisfied with that the evidence of PW1 is in this respect
corroborated.


One
of the passengers was Beauty Mhlongo whose evidence was also
dispensed with by consent. Her evidence in the summary of evidence is
that she was shot at on her arm. She stated that other passengers
were also shot and injured. She does not identify them by name and
certainly she does name the deceased on count 1 as one of the
passengers in that bus. Notwithstanding the unchallenged evidence of
PW 13 of Mphiwa Fakudze in


15


the
summary of evidence and that of PW14 Beauty Mhlongo who stated that
beside her own injury on the left arm other passengers were also
injured. Her evidence does not assist the Crown because she does not
say Nokwazi Margaret Nkabini was also one of the people injured nor
does exhibit "I" the post-mortem report on the body of the
deceased assist the Crown. Exhibit "I" describes the injury
as having been caused by a rifle, firearm but it does not connect the
injury with any of the three arms alleged to have been used by any of
the accused. It is unfortunate that where spent cartridges and some
other identifiable items found are never sent to Pretoria to experts
for examination so that an accused person who has been found with a
gun cannot escape a conviction.


On
count 1 therefore, because of this lacuma in the Crown case the Court
is not satisfied that the Crown has proved its case beyond reasonable
doubt and on count one I find accused no. 1 and 2 not guilty.


On
count four, the murder of Almon Simelane. His body was properly
identified and cause of death is by firearm and injury. Exhibit "8"
by consent summary of the evidence by PW17 Albertina S. Motsa was
handed in, she heard a gunshot at the Mission shop and saw a male
person running towards the gate. She went there and saw the deceased
who was dead.


The
evidence of PW8 Detective Sergeant Msibi is to the effect that
accused no. 1 had pointed out in the maize field of his homestead the
moneybox exhibit "4" which was stolen from the shop at the
Mission grocery. Exhibit "4" was identified by PW2 as the
property in the lawful possession of the deceased. He had gone there
and found that the deceased was dead. He described exhibit "4"
that it had an inscription on the inside "Bethlehem Grocery"
and this was the exhibit which was produced before court.


On
count five, armed robbery of Lunyawo Bus Service. I have accepted the
evidence of PW1 as regards to conspiracy to rob Lunyawo Bus Service.
The summary of evidence deposed to by PW13 by consent was mutually
accepted between the two defence counsel, Crown.


16


PW14
was robbed of his money at gunpoint. I am satisfied that the three
men who robbed the Lunyawo Bus Service are the accused together with
PW1. According to PW1 the third men was accused no.2. However,
throughout the trial, nothing of any of the exhibits in accordance
with the conspiracy was found in possession of accused no.2. Even
though I accept the evidence of PW1 as being credible exercising the
caution I have referred to one has got to look for some connecting
link in-so-far-as accused no.2 and this I have not been able to find.
All 1 can say is that I strongly suspect that he was one of the three
and the suspicion is not sufficient for a conviction in criminal
trials. On that account therefore accused no.2 is not guilty of that
count.


Count
6, the attempted murder on Beauty Mhlongo. Her deposition in the
summary of evidence PW14 is that she was aboard the bus of Lunyawo
Bus Service on the 23rd December 1996. She corroborates the evidence
of PW13 Isaac Mphiwa Fakudze that three men armed ambushed the bus
and shot at it and she was injured on her arm. Having accepted the
evidence of PW1 and having found that accused no. 1 and PW1 were the
two men on the scene the position of accused no.2 will still be the
same as in the count I have just acquitted him on.


Then
I deal with count 7, PW3 gave evidence that on the 2nd December 1996
he was held up and robbed of an amount of E300.00 by two men. He was
with two assistants Sam Kunene and Zulu who were also robbed of their
two jackets but the accused are not charged with the robbery of these
jackets. Sam Kunene who gave evidence told this court that at a
subsequent stage he had seen the accused and accused no.2 would have
said to him that he was sorry about what happened. This evidence does
not appear in the summary of evidence and is not supported by the
police officers and other witnesses who should have also heard this
and on that count as well I find that accused no.2 should get the
benefit of the doubt and he is acquitted. However, the position of
accused no.l is different because he went and pointed out these
jackets which were identified by the people who were robbed on this
truck and I find sufficient evidence on this charge against accused
no. 1.


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Before
dealing with counts 8 to 12 1 would briefly refer to Section 27(1) of
the CRIMINAL PROCEDURE AND EVIDENCE ACT (AS AMENDED) whose heading is
onus of who in prosecution under laws imposing licences etc. This
section reads as follows and I quote:


"If
a person carries on an occupation or business or performs an act or
has in his possession or custody or owns any article is present in
any place and he would commit or has committed an offence by
carrying-on such occupation business or forming such act or having
such article in his possession or custody or owning or being present
at such place, entering it if you are not a holder of a licence or
permission or other authorisation or qualification referred to in
this section as the necessary authorisation to carry-on such
occupation or business or to perform such act or to have such article
in his possession or custody or to own or to be present at such place
or to enter it he shall if he is charged with having committed such
offence be deemed not to have been the holder of the necessary
authorisation unless the contrary is proved."


That
is Section 27(1) of the CRIMINAL PROCEDURE AND EVIDENCE ACT (AS
AMENDED).


I
have dealt with the question of pointing-out the exhibits featuring
on count 8 to 12 against accused no.1. The police witnesses gave
evidence about this pointing-out by accused no.1. I accept the
evidence of the police witnesses and reject that of the accused that
the police planted these exhibits there where they found them. If
follows that in the absence of any explanation, how these exhibits
came to be possessed by accused no. 1 the explanation that he
stumbled on these exhibits and was about to take them to the police
authorities. I find that his failure in terms of this Section has
placed him in a position where he must be convicted.


The
evidence of PW11 Inspector Nxumalo about the serviceability of these
firearms and that the rounds of ammunitions were live rounds. I
accordingly on these counts find that the Crown has proved the case
against accused no.1 and return a verdict of guilty.


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The
evidence against accused no.2 is that he was present at the times
these offences were committed but as I have said earlier on, there is
nothing that connects him except the evidence of PW1 who I have found
to be credible but unfortunately there is nothing in the commission
of the crime except the only evidence of PW1. He may consider himself
very lucky but the court has a very strong suspicion that he was
there but that is not sufficient for a verdict of guilty.


I
find accused no.1 and 2 not guilty on count one and I find accused
no.2 not guilty on count 2, 3,4, but accused no. 1 guilty as charged
on 2,3 and 4. On count 5, armed robbery I find accused no.l guilty as
charged and accused no.2 not guilty. On count 6 attempted murder, I
find accused no. 1 guilty and accused no.2 not guilty. On count 7 I
find accused no.l guilty as charged and accused no.2 not guilty and
he is discharged. Counts 8 to 12 under the ARMS AND AMMUNITION ACT it
is only accused no. 1 who is charged with those counts and I have
stated that he is guilty on all those counts.


JUDGEMENT
ON EXTENUATING CIRCUMSTANCES


Both
counsel have addressed the court in relation to whether or not there
are extenuating circumstances after you have been convicted of murder
and some other crimes. I have consulted further decided cases
referred to by both counsel. One such case is STATE VS MANYATHI
1967(1) SA435 A.D. where Williamson J

A
at page 439(e) said the following:


'To
decide properly whether an accused's mental state at the time he
committed a crime was such that his conduct was less blameworthy than
it might normally be obviously requires a consideration of the
cumulative effect of all the relevant circumstances. A failure by
Court to address its mind to the possible cumulative effect of all
the relevant factors which might constitute extenuating circumstances
in a case such as the present would amount to the Court misdirecting
itself on the question in issue."


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The
above quotation accords with cases decided in the courts of Swaziland
dealing with the enquiry to the presence or otherwise of extenuating
circumstances. And these are REX VS MTHEMBU 1982/86 SLR page 24
paragraph (f) to (g) where the then Chief Justice made and said the
following remarks:


"The
court can only decide the question of extenuating circumstances upon
evidence either led specially on that issue, which may differ from
the evidence led in the main trial, as in R V ZABEVE MKHOMBENI
DLAMEVI 1970-76 SLR 440, which may fairly be gathered from the case
as a whole. But the court cannot speculate upon what might possibly
be extenuating circumstances."


I
have considered the submission in this enquiry in the light of the
above principles and I am unable to find that on a balance of
probabilities the accused's mental capacity is that of the child of
15 years as deposed to by Dr. Molepe. Dr. Molepe's evidence must be
considered in relation to the time when the accused committed these
offences of which now he is convicted. Dr. Molepe's evidence was to
the effect that the accused's mental state is very low close to that
of an idiot. However, the accused's actions during the commission of
the crimes he is convicted of do not support the doctor's evidence.


I
have not been able to gather any other evidence led in the main trial
that stands to reduce his moral blameworthiness. Extenuating
circumstances have been held by both Swaziland courts and courts in
the Republic of South Africa and I quote:


"Circumstances
not too remotely or indirectly related to the commission of the
offence that tend to reduce the accused's moral blameworthiness."


See
also MBUYISA VS REX @283 reported in the COURT OF APPEAL 1978/81

SLR.
I have cautiously applied my mind to the entire record of proceedings
but have failed to find such circumstances. I have already indicated
earlier in my judgement the evidence of Dr. Molepe did not assist me
at all. The evidence did not relate the time when the accused
committed the offences. Dr. Molepe said that the accused name
Pikinini suggest that he is an old man with a mental state of a young
man of 15 of age. However, the accused's behaviour and his modus
operandi flies in the face of such


20