Court name
High Court of eSwatini
Case number
224 of 2008

R v Tsabedze (224 of 2008) [2011] SZHC 105 (12 April 2011);

Law report citations
Media neutral citation
[2011] SZHC 105













IN
THE HIGH COURT OF SWAZILAND



HELD
AT MBABANE







CRIMINAL
TRIAL NO. 224/08







In
the matter between:



REX



VS



VUSI
PHOYISA TSABEDZE







CORAM: MCB
MAPHALALA, J



FOR
CROWN: P. DLAMINI



FOR
DEFENCE: Accused in Person







JUDGMENT



12th
APRIL 2011







[1]
The accused was charged with Culpable Homicide for the negligent
unlawful killing of Goodness Mathobela on the 30
th
May 2008 at Sigcaweni area in the Lubombo Region. The Crown alleged
that the accused unlawfully assaulted the deceased and inflicted upon
her certain injuries which caused her death. He pleaded guilty to the
charge, and, the Crown accepted his plea.











[2]
A Statement made by the accused before a Magistrate in terms of
Section 226 of the Criminal Procedure and Evidence Act states the
following:







"My
girlfriend Goodness Mathobela informed me that maize meal was about
to get finished and as a result I went out seeking from neighbours
and I approached Make Mamba who agreed to give me maize (20 litre)
and which cost me E60.00. I gave my girlfriend £60.00 so that
she could go with Make Mamba to purchase the maize. As she left with
Make Mamba I remained at home ploughing beet rude and lettuce in the
garden.



They
took a while to come back and by then I was late to take out my
family cattle to drink water, and I then set out with the cattle to
the drinking place without my lover having returned and it was late
in the afternoon by then. I then came back with the cattle and kept
them within the homestead fields and I closed the field gate. When it
was late in the afternoon, I then collected all the family livestock
to the kraal the cattle and the goats as it was late by then.



Realizing
that my lover had not yet come back I then went out to meet her
halfway. My lover, and as I walked along the way and having passed
where cattle is sold at Sigcaweni market and loaded into trucks after
they had been purchased. When my lover came I saw a short person
running into the side of the pathway who I didn't actually see who
the person was because it was already dark. I then asked from my
lover as to who was that person running away and she replied by
saying that madness was commencing to affect me and she further said
people with HIV/Aids friends were now insane. As a matter of fact I
had tested for HIV/Aids and I tested positive while she was negative.
She talked loudly and as a result I got angry and I hit her on the
face near the right eye which had a blue eye. Her white hat fell down
and I warned her about it to which she said she did not care about
it. I collected the said hat and I told her that it was easy for her
not to care because she did not use her money to buy it but instead
my money was used.



We
then walked home and I realized that she was too drunk. I opened my
homestead gate having realized that my lover was too drunk. Upon
reaching home she started to shout on top of her voice and I told her
as to what will the neighbours say to her shouts? On shouting she
continued saying that I was HIV positive in a loud manner and other
insultive words. I then used an open hand and upon hitting her she
fell down and I also told her that I would be forced to use a stick
in beating her instead of my hands because of her continued insults.
I did take the stick which I beat her on her thighs and buttocks i.e.
four times. When she stood up she tried to grab my testicles but she
failed and I kicked her on her front body next to her waist just
below her stomach.



She
stood up and attempted to enter the bedroom where I had entered to
and locked, and I told her that she must go and sleep in the other
bedroom which was also well bedded. While she was in that bedroom she
continued talking but I did not respond but kept quiet.



In
the morning when we woke up I asked her if she recalled what she said
to me to which she confirmed but apologized for her utterances. I
also reminded her of an incidence at Tshaneni where she had also
fallen in love with a certain man while she was my lover and was
staying with me which she was seeking or employment at Swaziland
Inyoni Yami Irrigation Scheme where my father was working. I then
decided not to ask her to cook light meal as I take an HIV tablet I
need to eat before taking the tablet. I did the cooking myself after
which I proceeded to the garden and took some money to buy chicken
feet after I had eaten.



I
bought the chicken feet and came back towards home, and along the way
I met Make Mamba the lady she left with the previous day. I told her
that we had a quarrel with my lover and she left me in the garden
while she walked to the house and later came back and reported that
she did not find her. After some time Make Mamba came and gave me
meat in a bucket since she did tell me that she was selling meat
after I had told her that I had gone to buy chicken feet previously.
I then took the meat in the bucket and the chicken feet home. I did
find my lover at home where I prepared the chicken feet she asked me
to buy her Coca Cola. I went to buy the Coke and gave it to her then
I told her that Make Mamba had given me meat in a bucket and she
suggested that I cook her the chicken feet instead of the meat
(beef) and she then asked me that I kiss her and I refused. I opened
the drink for her as she wanted to satisfy herself and she asked me
to share with her the drink and I refused.



In
the evening she insisted that I come to sleep with her but I refused
because I did not have condoms. We both slept alone in different
rooms. In the following morning I prepared food for myself since she
was not my wife and I could not force her to cook for me. After
taking my morning meal, I went to manure the garden and after
finishing I went home, I found that she was not present at home. She
later came back with condoms which had expired and I refused to have
sex with her.



I
again refused to sleep with her in the same bedroom but instead went
to sleep on my own. In the following morning I wake up earlier in
preparation for the cattle dipping day and I informed her that I was
leaving. While at the dip tank I got information that they had found
my lover sleeping at a bus station and asked me as to what I did to
her and I explained our misunderstanding. I proceeded to the said
bus station and I asked a health motivator to assist only to find
that she was engaged with other sick people. My brother suggested
that I carry her in a wheelbarrow and ferry her home. At home I
prepared warm water and soothe her and I put "mkhuhlu" herb
to with water in order to soothe my lover. My lover asked me
whether Make Fakudze the health motivator would come and I explained
that she will not come as she was busy with other sick patients.
Then she started to vomit and she wanted to fall down, and I when she
was falling I told her that I was not serious when I told her
that I would terminate our love relationship because of what she
was doing. At that juncture she could not reply me. Realizing her
condition, I raised an alarm and called my uncle who accused me that
I have killed my lover, and then I realized that she had died. As a
result of what had happened I then went to take the medicine used to
treat cotton pesticides because I felt I should follow my lover as
there could be nobody to assist me as I am sickly. I started vomiting
after drinking the pesticides and lost energy, and when I gained
consciousness I found myself at RFM Hospital. I was treated and
recovered and I came to the Siphofaneni Police Station on Friday.
That is all.











[4]
The Statement was duly signed by Magistrate Joseph Gumedze, the court
Interpreter as well as the accused. The accused admitted that the
Statement had been made freely and voluntarily and without undue
influence; and, that no threats or promises were made to induce him
to make the Statement. He conceded that he was not physically
assaulted during the detention. The accused admitted to have
assaulted the deceased physically. The Statement was admitted in
evidence and marked exhibit 1.







[5]
Section 226 of the Criminal Procedure and Evidence Act provides
the following:











"(1)
Any confession of the commission of the offence shall, if such
confession is proved by competent evidence to have been made by any
person accused of such offence ... be admissible in evidence against
such person:











Provided
that such confession is proved to have been freely and voluntarily
made by such person in his sound and sober senses and without having
been unduly influenced thereto...."







[6]
A post-mortem report was also admitted in evidence and marked Exhibit
2; it showed that the cause of death was multiple injuries to her
body. The body was identified by her uncle Majalimani Tsabedze.











[7]
A Medical Report was also admitted in evidence; it showed that the
accused was treated at the R.F.M. Hospital in Manzini on the 3
rd
June 2008. The accused had attempted to commit suicide using weevil
tablets shortly after the death of the deceased. The Medical Report
was marked Exhibit 3.







[8]
Section
238 (1) (a) of the Criminal Procedure and Evidence Act No. 67 of 1938
provides the following:







"If
a person arraigned before any court upon any charge has pleaded
guilty to such charge, or has pleaded guilty to having committed any
offence of which he might be found guilty on the indictment or
summons other than the offence with which he is charged, and the
prosecutor has accepted such plea, the court may, if it is... the
High Court... and the accused has pleaded guilty to any offence other
than murder, sentence him for such offence without hearing any
evidence."







[9]
The accused was accordingly convicted of the offence of culpable
homicide. The court was satisfied in the light of the evidence
tendered by the Crown, that the offence charged had been proved
beyond reasonable doubt. The accused admitted that the deceased died
as a result of the injuries unlawfully and negligently inflicted upon
her and that there was no intervening cause. The offence of Culpable
Homicide has been defined by
Holmes
JA in S v. Burger
1975
(4) SA 877 at 877 as follows:







"....Culpable
Homicide is the unlawful, negligent causing of the death of a human
being..."



[10]
In mitigation of sentence the accused apologized for the crime he had
committed, and further submitted that he was provoked when he found
the deceased drunk and in the company of another man who ran away
when he arrived; he further submitted that he was also provoked; when
the deceased mocked and shouted that he is HIV positive, and that
when he asked about the man who was running away she said HIV people
are insane, and that he was seeing non-existent people. The accused
is single with two minor children. He is a first offender, and, he
pleaded guilty to the offence charged. The Supreme Court in the Case
of
Musa
Kenneth Nzima v. Rex
Criminal
Appeal No. 21 of 2007 laid down the fundamental guideline that a
sentence of nine years imprisonment is warranted in culpable homicide
convictions only at the most serious end of the scale of such crimes.
The court stressed the individualization of culpable homicide cases
on the particular facts of each case.







[11]
The deceased was at the time of the commission of the offence not
armed with any weapon, and she did not present danger to the accused;
she was too drunk and could not defend herself from the physical
assault; furthermore, she could not even run away to avoid the
physical assault. The accused initially assaulted the deceased with
an open hand when he met her along the way; when they reached home,
the accused beat the deceased with fists, kicks and safety boots all
over her body. In addition he used a stick to hit her repeatedly all
over her body. This assault on the deceased was brutal, merciless and
too excessive in relation to the alleged provocation.



[12]
Notwithstanding what has been said above, I will also take into
account the personal circumstances of the accused, the interests of
society as well as the seriousness of the offence. The unlawful
killing of defenceless women by men who claim to love them, is on the
increase; and this court has a duty to defend them by passing
appropriate deterrent sentences.



[13]
Accordingly, I sentence the accused to ten years imprisonment four of
which are suspended for a period of five years on condition that the
accused is not found guilty of an offence in which violence is an
element within the period of suspension.







M.C.B.
MAPHALALA



JUDGE
OF THE HIGH COURT