Court name
High Court of eSwatini
Case number
236 of 2009

R v Mbedzi (236 of 2009) [2011] SZHC 28 (10 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 28
Coram
Maphalala, J

 

             

 

IN THE HIGH COURT OF SWAZILAND

 

HELD AT MBABANE                CRIM CASE NO. 236/09

 

In the matter between:

 

 

 

THE KING

 

VS

 

AMOS MBULAHENI MBEDZI

 

 

 

 

                                     

 

CORAM                                             MCB MAPHALALA, J

 

FOR CROWN                                     MRS. M. DLAMINI

 

FOR DEFENCE                                MR. L. GAMA

                                   

                                                                

 

RULING

  10TH JUNE 2011

 

 

[1]    The accused is charged with five counts.  On the First count, he is charged with contravening Section 5 (1) read with Section 5 (2) (a) (ii) of the Sedition and Subversive Activities Act No. 46 of 1938 as amended in that on the 20th September 2008 and at Lozitha area in the Manzini region, he unlawfully and with a subversive intention, attempted to damage the Lozitha bridge by placing and assembling explosive devices.  He pleaded not guilty to the charge.

 

[2]    On the Second Count the accused is charged with contravening Section 14 (2) (c) of the Immigration Act No. 17 of 1982 in that on the 20th September 2008 at Lozitha area in the Manzini region, the accused not being a Swazi citizen unlawfully entered and remained in Swaziland without a valid passport or a valid entry permit.  He pleaded guilty to the charge. 

 

[3]    On the Third Count the accused is guilty of murder in that on the 20th September 2008 at Lozitha area in the Manzini region he unlawfully and intentionally killed Musa Dlamini.  He pleaded not guilty to the charge.

 

[4]    On the Fourth Count the accused is guilty of murder in that on the 20th September 2008 at Lozitha area in the Manzini region he unlawfully and intentionally killed Jack Govender.  He pleaded not guilty to the charge.

 

[5]    On the Fifth Count the accused is charged with contravening Section 9 as read with Section 8 of the Explosives Act No. 6 of 1961 in that on the 20th September 2008 at Lozitha area in the Manzini region he unlawfully possessed explosives without a licence or permit.  He pleaded not guilty to the charge.

 

[6]    PW1 Majahencwala Simelane, a Taxi businessman testified under oath that on the 20th September 2008 at 10.50 am, he received a phone call from the deceased Musa ‘MJ’ Jabulani Dlamini, who was also his brother-in-law; at the time, “MJ” was at the Kai Kai Hotel in Manzini. 

 

[7]    “MJ” invited PW1 to meet him at the Kai Kai Hotel; he found him waiting at the hotel car park; “MJ” led him to his hotel room where he found three men, and, the third man was asleep and covering himself with a duvet.  The other two men were an Indian and an African; PW1 had previously met the African man in Swaziland in the company of ‘MJ’, and, he called him “Msholozi”. “MJ” introduced him to the Indian; at that time the man who was sleeping woke up and sat on the bed.  “MJ” asked PW1 to borrow him his motor vehicle saying he wanted to go to his parental home at Kalanga area; he borrowed him the car, a white Toyota Corolla sedan,  registered SD 528UL.  The car was to be returned on the same day in the afternoon; however, this did not happen, and he tried calling “MJ” but his cellphone was not available on the network.  On the next day, his driver Linda Msibi told him that the car had been damaged in an accident at Lozitha overhead bridge.  He went to Lozitha with his driver to look for the car but they did not find it.  They went to enquire at Lobamba Police Station if they had any information of the accident; the police confirmed that the motor vehicle was severely damaged, and that it was suspected of carrying explosives, and, that two occupants of the car were killed including “MJ”.  The police showed him cellphone photographs of the damaged motor vehicle taken at the scene; and, they further advised him to consult the Matsapha Police Station which was handling the matter.

 

[8]    At the Matsapha Police Station, he identified his motor vehicle which was extensively damaged; then the police took him to the Manzini Regional Police Headquarters where he recorded a statement.

 

[9]    During the trial, he was able to identify photographs of “MJ”, Msholozi and the Indian he found at Kai Kai hotel; however, he could not identify the man he found sleeping at Kai Kai hotel because he had covered himself with a duvet. When the man woke up, he had looked down reading a newspaper,  and he couldn’t see his face. 

 

[10]  The Court adjourned for an inspection in loco.  At the High court backyard, PW1 identified his motor vehicle which was damaged extensively, and the registration number plates were still visible and affixed to the car; the top roof of the car was removed.   The court then moved to the Lozitha overhead bridge for a further inspection of the scene where the motor vehicle was damaged.  PW1 showed the court the car marks he had seen  on the grass on the Mbabane / Manzini highway.  At the Kai Kai hotel PW1 led the Court to Room 11 which “MJ” and the three men were occupying when he was invited to the hotel by “MJ” on the 20th September 2008; he further demonstrated to the court where and how the four men were sitting in the room.

 

[11]  After the inspection in loco, the trial resumed in court; the accused was shown by the Crown items found in the car by the police after the incident which were exhibits D1, D2, D3, D4 and D5 which were the explosive cords, power-tester and a timer-switch.  He denied that these items were in his car when he gave it to “MJ”.   PW1 maintained his evidence under cross-examination.

 

[12]  PW2Percy Mawelela testified under oath that during the night of the 20th September 2008, he was driving on the Manzini/Mbabane highway to Ezulwini area, and, that when he was one hundred metres away from the Lozitha overhead bridge he heard a loud bang like an explosion; then he saw a white motor vehicle covered in smoke very close to the bridge on the opposite side of the highway.  He passed the bridge then stopped with the aim of assisting the occupants of the car; it was just after 10 pm.

 

[13]  The roof of the motor vehicle was lying on the Manzini/Mbabane highway; he alighted from the motor vehicle and saw an injured man across the highway leaning on the damaged motor vehicle; when he came closer, he noticed that the man was seriously injured and his face had bloodstains.  Another man was lying on the fast lane on the Mbabane / Manzini highway about fifteen metres away from the damaged motor vehicle; the damaged car was under the overhead bridge on the yellow line.

 

[14]  He saw a third man standing on the overhead bridge; and, he called him to come down so that they could both assist the injured men.  At the same time a fuel tanker approached the scene, and, he signalled to the driver to stop so that he could not run over the injured people.  The man on top of the bridge was shouting at the men below the bridge in a foreign language unknown to him; then the man threw a red cord on the tarmac below the bridge and walk away towards Lozitha School.  The red cord was partly burnt, and, he suspected that the people were planting explosives. 

 

[15]  He telephoned the Commissioner of Police and reported the incident; then he waited for his arrival.  He did not come closer to the damaged motor vehicle or the injured men after seeing the red cord since he suspected  that there were explosives on the scene; he also advised other motorists not to come closer to the motor vehicle or the injured people.

 

[16]  Another motor vehicle, a blue Uno sedan, with two male passengers and two ladies from the Manzini direction arrived at the scene.  The injured man who was leaning on the damaged car crossed the highway and walked towards the two male passengers who had alighted from the car; and he shouted, “hospital, hospital”.  The two men led him to their car; he sat at the backseat.  The driver of  car drove him to hospital whilst the other man and the two ladies remained behind sitting at the Waiting Room.  The injured man was wearing a torn and tattered brown jacket, a brown trouser and a khakhi shirt.  He walked passed PW2 but did not talk to him.  The overhead bridge was brightly lit with street lights and flood lights both on top and below the bridge.  PW2 confirmed that he saw the man who was standing on top of the bridge and that he could identify him if he came across him.

 

[17]  The Police Commissioner arrived before 11.30 pm, and, was soon followed by other police officers from Matsapha and Manzini Police Stations; the police cordoned the scene of crime and waited for the Bomb Disposal Unit which arrived at 12.30 am the following day. After the Unit had done its assessment and investigations, they declared that the place was safe from further possible explosion; they called PW2 and the Regional Crime Branch Officer Mr. Bhembe into the cordoned area next to the damaged car. They saw an Indian man lying in the drainage who was seriously injured; they tried talking to him but he didn’t respond.  He had injuries on the face and head; one leg and both arms were amputated.

 

[18]  They proceeded to the man lying on the tarmac on the fast lane; he was seriously injured as well with his stomach wide opened and his intestines protruding from his body.  One of his legs was amputated; and his trouser was torn revealing his private parts.  There were red and blue electric cords on the tarmac.

 

[19]  During the trial, PW2 identified the accused as the man who was seriously injured on the scene and later transported to hospital.

 

[20]  PW2 further identified photographs taken at the scene of crime; exhibit E1 showing “MJ” lying on the fast lane on the tarmac; Exhibit F1 showing the Indian lying dead on the drainage; Exhibit B2 showing the man who was on top of the bridge and later threw a red cord to the tarmac; Exhibit A3 showing the damaged car below the overhead bridge; Exhibit A4 showing a side view of the damaged car; Exhibit A1 showing the front part of the motor vehicle and the registration number SD 528 UL; Exhibit A2 showing the interior of the damaged motor vehicle; Exhibit G1 showing the red cord thrown from above the bridge by the man who fled the scene; Exhibit D4 showing a switch found next to the motor vehicle; exhibit D1 showing electric cords found on the scene of crime; exhibit D2 showing a green electric cord found on the tarmac together with a car door handle; exhibit H1 showing the scene of crime at Lozitha comprising the highway, the overhead bridge, the street lights, the flood lights, pillars and guard-rails.

 

[21]  PW2 further identified Exhibit 1A being the brown jacket worn by the accused with a label “Ginno Bellin” but the blood was no longer visible; exhibit 1B being the Arno Green Trouser worn by the accused with visible bloodstains; exhibit 1C being the Khakhi shirt worn by the accused with a label “Oakridge”; exhibit 2 being the motor vehicle as parked at the backyard of the High Court building.

 

[22]  PW2 had informed the police when they arrived at the scene that the injured man boarded an Uno sedan with a South African registration and transported to hospital, and that they drove towards the Manzini direction.

 

[23]  A second inspection in loco was conducted with PW2.  He identified the damaged motor vehicle at the backyard of the High Court building; and, it still had its registration number SD 528 UL.  He demonstrated to the court how the accused was leaning on the motor vehicle at the scene after the bomb blast.

 

[24]  During the second “inspection in loco” at Lozitha overhead bridge, PW2 further explained that the electrical cords and the other items including car parts, cellphones, passports and wallets were found on the tarmac behind the motor vehicle under the bridge; he showed the site where these items were found, as well as the position of the motor vehicle under the bridge.  He showed the court the site from where he heard the loud bang.   He showed the court the site where he parked his car on the Manzini/Mbabane highway thirty six paces from the bridge.  He also showed the court the place in the middle of the guardrails where he was standing after alighting from his motor vehicle; the distance was found to be twenty-one paces from the bridge.   He further showed the court the position of the man who was on top of the bridge who threw a red cord on the tarmac below the bridge; he also showed the position where the fuel tanker and the Uno sedan were parked; he further pointed at the middle of the guard-rails where the two men travelling in the Uno sedan were standing after alighting from their car.  The car was twenty-one paces from where PW2 was standing in the middle of the guard-rails separating the MR3 highway.

 

[25]  PW2further showed the position in the drainage where the Indian was found lying dead under the bridge and next to the damaged motor vehicle.  He pointed at the site where “MJ” was lying twenty one paces from the bridge on the fast lane.  He pointed at the position where the BMW car overturned and damaged the drainage as well as the grass and rested on the drainage fifty paces away from the bridge.  The roof of the motor vehicle was found on the opposite side of the highway on the Manzini/Mbabane direction.  He further pointed out at the streetlights and floodlights above and below the bridge; he led the court above the bridge where he pointed out the position of the man who was standing and throwing the red cord on the tarmac.  It was during the second inspection in loco that PW2 mentioned that the man who was leaning on the damaged motor vehicle was the accused.

 

[26]  PW2 further explained that when the accused shouted “hospital, hospital” to the occupants of the UNO sedan, he was speaking in English.  He told the court that he was familiar with the surroundings at Lozitha; that there is the King’s Palace about six hundred metres away from the bridge, the Ministry of Defence about five hundred metres away from the bridge, Tibiyo TakaNgwane Headquarters about four hundred metres away from the bridge, Lozitha Primary School about one hundred metres away from the bridge and various homesteads the closest being three hundred metres away from the bridge.

 

[27]  Under cross-examination he stated that the man who was standing on the bridge remained there for about four minutes and then left after throwing the red cord, and that he was able to identify the man from the photographs given to him in court because he had seen him in view of the street lights and floodlights and, they were both looking at each other; he told the court that he was seeing the photograph of the man in court for the first time.  He denied that he had seen the photograph of the man in the newspaper; this was after the defence had alleged that the photograph  was widely publicized in the newspaper as a suspect in the Lozitha Bombing.  He told the court that he rarely read newspapers.

 

[28]  He denied that other motorists came closer to the scene of crime before it was cordoned by the police.  He further denied that the Scenes of Crime Officer Sergeant Magagula picked any items on the scene before the Bomb Disposal Unit had checked the scene and declared it safe for any activity.

 

[29]  PW3 Mduduzi Vilakati testified under oath that on the 20th September 2008 he was driving his motor vehicle an Uno sedan registered YJJ 309 GP in the company of three other people; and they saw a white motor vehicle which was damaged under the Lozitha bridge on the Manzini/Mbabane highway.  PW3 and Themba alighted from the motor vehicle and walked towards the damaged car; they jumped over the guard-rails and noticed a man lying on the fast lane.  An injured man walked towards them and shouted “hospital, hospital; they crossed the guard-rails with the man and asked the ladies in the backseat to alight from the car.  He asked Themba to remain behind with the two ladies as he drove the injured man to hospital.

 

[30]  Along the way at Matsapha traffic circle, the injured man asked in English how far was the distance to the hospital; and, he told him that they were already in hospital.  However, when he asked the injured man what happened at the scene, he did not respond to the question; instead he asked for the whereabouts of the other occupants of the damaged car and whether or not they were still alive.  PW3 told him that he did not see the other people he was talking about; PW3 felt that it would not be wise to tell him that his companions were dead because of the serious injures he had sustained.  He asked the man how many people were with him in the car, and, he did not respond but merely asked him how far was the distance to the hospital since he needed medical help; at that time they were passing the traffic lights at Kakhoza Township.  When they were at the Nazarene traffic lights the man asked him how far was the distance to the Kai Kai Hotel, and PW3 did not respond to this question because he did not understand why he was asking this question.  PW3 then asked him for particulars of his relatives so that he could inform them of the incident; the man told him that he didn’t have any relatives around, and, that he only knew the Kai Kai hotel.

 

[31]  PW3 found a security guard manning the gate at the RFM hospital who directed them to the Emergency Department where they took particulars of the injured man.  He asked for his name and the man told him that he was Amos Mbedzi.  The man also directed them to a pocket in his trousers for the Identity document;  a nurse put on a glove and took out the wallet from his pocket, and PW3 told the nurse that he did not know the man and that she should use any documentation she found in the wallet. Thereafter PW3 left the hospital and proceeded with his journey.

 

[32]  PW3 further told the court that he couldn’t observe the injuries sustained by the man because the right side of his face was full of blood.  He further told the court that the man was wearing a brown jacket and the right hand side of the jacket including the sleeve was torn and tattered; it was later marked exhibit 1A.  The man was also wearing a Khakhi shirt which was later marked as Exhibit 1C and a brown trouser which was later marked as Exhibit 1B.  He pointed out at the accused as the man he transported to hospital.

 

[33]  When the defence was called upon to cross-examine PW3, the defence counsel stood up and told the court that: “the accused has asked me to thank you for saving his life, and that is all I have to say”.

 

[34]  PW4 Nkosingiphile Dlamini, a brother to “MJ” was subpoenaed to testify on behalf of the Crown; however, after taking the Oath, he refused to testify citing personal reasons.  The Crown subsequently withdrew him as a witness after successive attempts failed to have him testify in this case.

 

[35]  PW5 Simanga Fana Zewula, a security guard employed by the RFM Hospital in Manzini, testified under oath that on the 20th September 2008 he was on duty when an injured man was brought to the hospital for medical treatment; he directed them to the Emergency Department of the hospital.  The man was seriously injured; he was wearing a brown jacket, a khakhi shirt and a pair of brown trousers.  He also noticed an injury to his right eye.  He identified the accused in court as the injured man who was brought to the RFM Hospital for medical treatment on the 20th September 2008.  He further identified the clothes which the accused was wearing being Exhibit 1A, 1B, 1C.  He further told the court that the accused was brought to the hospital by PW3.  Under cross-examination, he told the court that the police arrived at the hospital within an hour after the accused had arrived at the hospital; and the police took the accused away with them.

 

[36]  PW6         Zanele Nompumelelo Dlamini, employed at Kai Kai Hotel in Manzini testified under oath that she was on duty on the 18th September 2008 when, a man booked a room, and slept overnight. He checked out the next morning at about 10 am, but he booked another room and said he wanted to spend another night at the hotel.  He left his luggage behind and said he would return later.  He returned on the same day at about 3 pm and booked a second room alleging that it would be used by his friends; he did not return to the hotel until 9 pm. On the 20th September 2008 at about 6 am, the man sent the hotel’s security guard to ask for the key to the second room which he had booked.  She gave the key to the man, and he paid for the room.  He had booked rooms 11 then 13.  The  man  and  his  three  friends left  the hotel at about 1 pm on the 20th September 2008  in a white sedan after handing over the hotel keys. 

 

[37] On the 21st September 2008, the police came at about 5.30 am with a tall man who was injured and covered with bandages on his head and right eye; his face was visible and his mouth was swollen.  The police asked her if she knew the man because he claimed to have slept at the hotel in rooms 11 and 13.  She denied knowledge of the man.  However, during the trial she was shown certain photographs of four men, and she was able to identify the man who had come to the hotel with the police; the photograph was marked exhibit 5.  She further identified the motor vehicle used by the four men when they left the hotel; it was later marked exhibit A.

 

[38]  PW7 Willy Lucky Bhembe employed by His Majesty’s Correctional Services and based at the Matsapha Correctional Services testified under oath that he was on duty on the 22nd November 2008; and, that he was stationed at Block E taking care of awaiting Trial Prisoners including the accused.  He identified the accused in court during the trial.  He told the court that the accused called him to his cell and told him that he had repented; the accused was holding a bible. The accused took out a letter from the bible which was in the letterheads of the Correctional Services Institution; and he asked him to read the letter for him since he was not well versed in English but in Afrikaans.  The letter was written in English, and, the accused gave him the letter on the 22nd November 2008. He read the letter and it had several cancellations; and, he said he would make further corrections.  The accused gave him the letter which he had corrected on the next day, the 23rd November 2008; PW7 inturn handed the letter over to the Sergeant’s office for their attention.  The duty of the Sergeants is to read the letter and, assist in typing it, before it is dispatched to its destination.

 

[39]  PW7 identified the letter in court during trial as the one given by the accused.  The letter was addressed to the South African High Commissioner to Swaziland; and, it was entitled “Your assistance forwarding my apology to His Majesty the King of Swaziland”.  The letter reads as follows:

               

“The RSA High Commissioner to Swaziland, Mbabane

Swaziland.

 

                Re: Your assistance forwarding my apology to His Majesty the King of Swaziland.

 

                Sender’s name and address

                Mbedzi Mbulaheni Amos

                Matsapha Central Institution

                Box 442 Manzini

 

                I Mbedzi Mbulaheni Amos I.D No. 6408185818084 South African citizen.

 

                Hereby declare that I wish to make an unconditional apology to His Majesty King Mswati III, His Excellency the Right Honourable Prime Minister and His distinguished members of his government and all the citizens of the Kingdom for my involvement in the Lozitha Bomb accident which caused a lot of pain and a sense of insecurity for the people of Swaziland.  And had disturbed the spirit of His Majesty the King a situation which I highly regret.  I have since denounced violence and terrorism in all its forms.  I have co-operated and made a statement in court and I am awaiting trial.          This is how I wish the delegation to the King to be:

  1. The R.S.A. High Commissioner to lead the team.
  2. Two members from Chief Rahula (Home).
  3. Four members from my family.
  4. At least 2 senior citizens from Limpompo Government.
  5. Local Induna (known by the prison authority)

 

The delegation shall take with them:

 

  1. 2 bulls (oxen) one on behalf of the RSA Government, its citizens and Chief Rahula for my actions which tarnished their image. The second bull on my family’s behalf.
  2. A goat to be given to the local induna who will serve as a link to the Royal Family.
  3. Fruits for the King’s children whose peace was disturbed.

 

This is the matter which I have voluntarily decided to perform with my full heart and knowledge.  Without anyone forcing me to do.  It is my sincere conviction that it go a long way in cooling the heart of His Majesty and ease his spirit. I need His blessings for me to be able to lead a normal life again. How I think the High Commissioner can help me:

 

By calling my relatives to come to the country urgently (for a day or two) so that we can start working on the matter. Family members to be called are:

  1. Mbedzi Innocent 0728806790
  2. Mbedzi Robert 0839906720
  3. Mashudu Bongwe 0823321060
  4. Mbedzi Donkey 0721588286

 

The High Commissioner can on my behalf start talking to Induna who is known by the prison admin.  In order to facilitate dialogue towards the realization of this noble goal.  Give general support for this initiative to be a success.   I have always been grateful of and I appreciate gratefully all the support that the High Commission has been giving me ever since I was arrested. 

 

Both God and our ancestors bless you as we soldier on to the end. I thank you greatly.

 

Mbedzi M.A. (signed) 24 November 2008”.

[40]  As reflected in the above letter, the accused gave his South African Identity Number; and he apologized to His Majesty King Mswati III, the Prime Minister and his government as well as the citizens of Swaziland for his involvement on the Lozitha Bomb accident “which caused a lot of pain and a sense of insecurity for the people of Swaziland, and had disturbed the spirit of His Majesty the King a situation which I highly regret”.  He goes on to state that “I have since denounced violence and terrorism in all its forms and I have co-operated and made a statement in court and I am awaiting trial”.

 

[41]  He proceeded to name the delegation to meet the King which included the South African High Commissioner  to Swaziland, two members from his Chief Rahula, four members of his family, at least two senior citizens from Limpopo government and a local Indvuna known by the prison authority.  The delegation would hand two bulls to His Majesty one representing the South African Government and its citizens, and Chief Rahula for his actions and their tarnished image; and the second bull on behalf of his family.  The local Indvuna was to be given a goat, and, that he would be a link between his delegation and the Royal family.  The King’s children were to be given fruits for their peace which had been disturbed.

[42]  The accused then made a bold declaration in his letter that: “this is the matter which I have voluntarily decided to perform with my full heart and knowledge and without anyone forcing me to do; it is  my sincere conviction that it go a long way in cooling the heart of His Majesty and ease his spirit; I need His blessings to be able to lead a normal life again”.

 

[43]  The accused further requested the High Commissioner to invite his relatives to come to Swaziland urgently so that together with him they could start working on the matter; the four family members to be called and their identity numbers were mentioned.  He asked the High Commissioner to “facilitate dialogue toward the realization of this noble goal and giving general support for the initiative to be a success; and that he has always been grateful and appreciative of all the support that the High Commission had been giving to him since he was arrested”.  In conclusion he stated that, “both God and our ancestors bless you as we soldier on to the end”.  The letter was dated 24th November 2008 and was duly signed by the accused.

 

[44]  The witness further handed to court another document attached to the letter entitled “the Attachment”.  It reads as follows:

“I hereby further mandate the Correctional Institution to use this text in anyway the Leadership deems fit even if it means exposing it to the Media”.

 

[45]  The witness handed both the “Letter of Apology” and the “Attachment” as part of his evidence; both documents were marked collectively as Exhibit “K”, and were duly admitted in evidence.

 

[46]  Under cross-examination, he told the court that the accused was seriously injured, hence, he was kept in an Isolation Cell and could not clean the block or engage in other manual work like the other Awaiting Trial Inmates; and, that if the accused needed access to the toilet, he would  shout to the officers to take him to the toilet.  He stated that the other Awaiting Trial prisoners were allowed on request to the officer-in-charge to remain in the corridor during daytime and would have access to the toilet and enjoy sunshine; their cells would be unlocked during daytime to enable them to stay in the corridor.  He explained that the reason why the accused did not enjoy this privilege was because of the serious injuries he had sustained; and, he further explained that this position endured for a few days, and that he immediately enjoyed the same privileges after he had recovered, and would also bask in the sun like the rest of the inmates awaiting trial.  He further explained that when the accused arrived at the institution, he could not even bath himself due to the injuries sustained.   He conceded that on the 22nd November 2008 the accused was still kept at the Isolation cell, but was far better than when he arrived; and, he was about to be accorded the same privileges of basking in the sun like the rest of the inmates awaiting trial.

 

[47]  PW7 denied knowledge of a suit by the accused in May 2009 before this court, complaining that he was being ill-treated by the prison institution; and, he further denied knowledge that the  accused was not allowed free access to visitors or that only a few selected visitors were allowed to visit him.  However, he conceded seeing the Note at the Prison Gate Lodge listing the names of persons allowed to visit the accused; he also conceded that this practice was not normal.  He further told the court that the Letter Forms used by the accused when writing his letters were designed for use by inmates.

 

[48]  PW7 told the court that even though he noticed both grammar and spelling mistakes in the Letter of Apology written by the accused, he did not effect any alterations to the letter because the content and substance was understandable. He further confirmed that the “Attachment” was written by the accused.  He denied knowledge of the local authority or Indvuna who was to be part of the delegation to His Majesty the King; however, he conceded as suggested by the defence that it was a local custom that when you wronged a traditional authority you hand over to him a beast as a sign of apology and remorse.

 

[49]  He denied knowledge of the allegations by the defence that the accused wrote the “Letter of Apology” upon advice given to him at the prison that this was the only way he could avoid rotting in prison.  He further denied knowledge of the defence allegations that the accused was advised to give the two beasts to the King to appease the King and the Government so that he could be forgiven, and released from custody.  On the contrary, PW7 told the court that the accused wrote the “Letter of Apology” after he had seen an Article in a local Newspaper where the family of the late “MJ” was reported to have taken a beast to His Majesty the King in an attempt to apologize for the bomb incident; however, PW7 conceded that he didn’t know whether the accused was inspired by that newspaper article.

 

[50]  During re-examination by the Crown, PW7 re-iterated that the accused was kept in the Isolation Cell because he was seriously injured and not because he was being discriminated, punished or treated unjustly.

 

[51]  PW8 Sergeant Elvis Dlamini employed by the Swaziland Police Service testified under oath that on the 20th September 2008 he was on duty under the Royal Guard at Nkoyoyo Palace; and, that he left the Palace at 10 pm. Along the way at Lozitha bridge, he found cars parked on the side of the highway including a fuel tanker.  The time was just after 10.30 pm.  On the scene he saw a damaged motor vehicle underneath the bridge on the yellow lane.  There were scattered pieces of the motor vehicle on the tarmac and two dead bodies.  He found PW2 on the scene; and, then he blocked the road proceeding to Manzini in order to protect the scene.

 

[52]  PW2 showed him a red cord thrown at him by a man who was on top of the bridge as well as a green cord, a passport, a power-tester and a cellphone; this made him suspect that there could be explosives on the scene.  He telephoned the Matsapha Police Station to call the Bomb Disposal Unit and the Scenes of Crime Unit to come and monitor the scene of crime; then he ascertained that motorists did not temper with the scene of crime pending the arrival of the police experts.  Traffic police also arrived and manned the traffic to Manzini diverting it to the off-ramp just before the overhead bridge.  Prior to the arrival of the Traffic Police, a motor vehicle belonging to a police officer Alex Dlamini was used to alert oncoming traffic of the incident; the car was parked one hundred metres away from the scene and in the middle of the road with its hazard lights activated.

 

[53]  The police were informed by PW2 of the man who was on top of the bridge and who walked away after throwing the red cord to the tarmac below; he further told them about the injured man who was driven to hospital in an Uno sedan.  PW8 further confirmed the incident involving an off-duty drunk policeman who failed to stop when the traffic police signaled him to do so; his BMW car hit guard-rails and overturned damaging the grass on the side of the road.

 

[54]  PW8 was shown several photographs by the Crown and he identified the damaged white motor vehicle he found on the scene, the red cord thrown at PW2 marked Exhibit G1, a power-tester marked exhibit D4, the green cord marked exhibit D2, two dead bodies, the one on the tarmac marked Exhibit E1; the second body on the drainage next to the damaged motor vehicle marked exhibit F1.

[55]  PW8 further testified that on the day in question His Majesty was at the nearby Lozitha palace and, that he was due to leave for the United States of America during that night and cross the overhead bridge to Ludzidzini Royal Residence before his departure.  The defence objected to this evidence on the basis that it was irrelevant and prejudicial to the accused because it gave the impression that His Majesty was in danger of being injured by the bomb blast; and that such evidence would compromise the independence of the court to the prejudice of the accused. However, the defence objection was overruled; this witness was a Member of the Royal Guard, and, he was stating as a fact that His Majesty was to pass over the bridge on his way to the United Nations meeting in New York.  He told the court that on that day the King left Lozitha after the bomb explosion at 11 pm; PW8 left the scene of crime at 2 am the following day.

 

        55.1   Hoffman  and   Zeffert  in  their  book entitled “The

South African Law of Evidence, Fourth edition, at page 21 stated the following:

       

“Relevance is essentially a matter of reason and common sense.  As Schreiner JA had said, it is “based upon a blend of logic and experience lying outside the law.”

  • R v. Matthews 1960 (1) SA 752 (a) at 758

 

[56]  Under cross-examination, he stated that there was a fuel tanker that was used to block the traffic;  he further stated that there was already a police officer on the scene diverting the traffic.

 

[57]  PW9  Detective Sergeant Sipho Magagula of the Scenes of Crime Unit testified under oath that on the 20th September 2008 he was on duty; and, that he received a phone call at about 10.45 pm in relation to this matter, and, he then proceeded to the Scene of Crime.  He found other police officers; he noticed a white Corolla sedan underneath the bridge.  He cordoned the scene with a tape; then he saw a dead body lying on the tarmac in front of the vehicle.  He suspected that the incident was caused by an explosive device; then he decided to wait for the “bomb disposal unit” to check and declare the crime scene safe for further activity.

 

[58]  The Bomb Disposal Unit subsequently arrived led by PW10 Superintendent Manoma Masango; they used an equipment to determine the presence of live explosives.  After some time they declared the place safe; then PW9 drew a sketch plan which he subsequently submitted in court as part of his evidence and it was marked Exhibit K; it shows the MR3 highway, the overhead bridge at Lozitha.  “P’’ stands for the area between the guard-rails; “D” stands for a human hand that was found on the scene. “K” stands for car parts found, which was the roof and a door. “B” stands for the deceased Indian man found lying in the drainage next to the damaged motor vehicle.  “E” stands for the green cord.  “L” stands for a red cord found thrown on the tarmac.  “M” stands for the side of the highway going to Mbabane; “N” stands for the side of the highway going to Manzini. “C” stands for an African deceased body that was on the tarmac in front of the damaged motor vehicle.  “H” stands for a cellphone; “J” stands for a wallet; “G” stands for the road pillar; “F” stands for road pillar fixed points; “O” stands for the overhead bridge at Lozitha; “A” stands for the damaged motor vehicle.

 

[59]  PW9further told the court that he took photographs of the scene of crime; and they reflected the green cord marked “E” in the Sketch plan and marked Exhibit D2, the Timer marked “I” in the Sketch plan and marked Exhibit D4, the red cord marked “L” in the sketch plan and marked exhibit G1; the deceased African man shown as “C” in the Sketch plan and marked Exhibit E1; the deceased Indian man shown as “B” in the sketch plan and marked Exhibit F1; the front part of the Toyota Corolla shown as “A” in the sketch plan but marked Exhibit A1; the left side of the motor vehicle shown as “A”  in the sketch plan but marked as Exhibit A3; the motor vehicle shown in full as “A” in the sketch plan and marked exhibit A4; the hole in the motor vehicle penetrating to the tarmac shown as “A” in the sketch plan and marked exhibit A2; the cellphone in the sketch plan shown as “H” and marked as Exhibit D3; Exhibit J shows an adult man with bandages taken by him at Matsapha Police station   on the 22nd September 2008; exhibit B1(a) being a passport found on the tarmac from which he developed the photograph of Nkululeko Michael Nkosi alias Msholozi marked Exhibit B2; a photo developed from the passport of “MJ” marked exhibit B1(a); a photograph of the deceased Indian marked Exhibit F2; a photograph of a cellphone marked Exhibit D3; a photograph of the overhead bridge marked Exhibit H1; a photograph showing a collection of electric cords marked Exhibit D1; a photograph showing the face of an African male deceased with a missing left arm in front of the damaged motor vehicle marked Exhibit E2; a photograph of the deceased Indian with a missing hand and a body injured with debris on the right hand from stomach to the missing arm marked Exhibit F3; a photograph of the Indian showing his face marked Exhibit F4; a photograph of the T-shirt worn by the Indian  marked F5; a photograph of the guard-rails with pieces of human flesh marked Exhibit L; a photograph showing a piece of explosive wire marked Exhibit “M”; another photograph showing a piece of explosive wire marked exhibit M2; another photograph showing a piece of a wire marked Exhibit M3.

 

[60]  PW9 then handed  into court as part of his evidence all the photographs he had taken from the scene, and at the Matsapha police station as well as those he had developed from the passports found on the scene.  He identified the accused as the person he photographed at the Matsapha Police Station covered in bandages. He further told the court that the first photograph was taken from the passport of Nkululeko Michael Nkosi; and that the second passport belonged to Musa Dlamini.

 

[61]  PW9 further handed as part of his evidence a document he prepared with Senior Supt. Joseph Bhembe, the principal investigator, which relate to the exhibits collected from the scene of crime for DNA purposes; these included flesh body tissues, pieces of bones, sun visor of the car with blood stains, pieces of clothes, a metal with blood stain, four cellphones, a Sim card, as  well as clothes worn by the two deceased men.  The exhibits were sealed and sent to the forensic laboratory at  Silverton in Pretoria.

 

[62]  Under cross-examination, he maintained that the three pieces of wire marked Exhibits M1, M2 and M3 were explosive devices; and that the items were picked from the scene of crime by Supt. Masango and himself.

 

[63]  PW10 Supt. Manoma Masango, a Bomb Disposal Expert with the Swaziland Police Service told the Court that he was trained in explosives in 1990 in South Africa; and that the components of a bomb consist of a detonator that will act as an ignite, a power source that will send the fire to the detonator, and a masking tape to bind together the explosive cartridges, an explosive, and a switch to activate the bomb.

 

[64] He told the court that on the 20th September 2008, at 23.00 hours he received a report of a bombing scene at Lozitha; and, he proceeded to the scene arriving there at 23.30 hours.  On his arrival he found other police officers; and, the scene was cordoned.  He was shown the damaged motor vehicle; and, he examined the scene for possible unexploded bombs for the safety of the investigators.  He found two dead bodies next to the car, one was about fifteen metres in front of the car with multiple injuries on the face which was totally blown off, injuries on the lower abdomen and intestines protruding; the left arm was blown off.

 

[65]  The second body was that of an Asian man, and, it was a metre away from the car; both arms and right leg were blown off with bruises on the face.  Thereafter, he declared the scene safe for further investigations.  Photographs of the bodies were taken by Sgt. Magagula from the Scenes of Crime Unit; and, the bodies were taken to the mortuary.  Thereafter, they recovered exhibits on the scene inclusive of thirteen dura fuses, four remnants of explore gel, water gel explosives, remains of a timer-switch, broken pieces of red igniter cord, a fresh igniter red cord, a multi-meter tester used to test electric wires, a power source which is connected to the bomb, and an electric detonator. The exhibits were subsequently transported to Matsapa Police Station for safe-keeping.  At the police station they found the accused who was heavily bandaged on the head, the leg and hands with blood-soaked on the bandages; similarly, the trouser he was wearing was soaked in blood.  He  wore a brown jacket, which was blown on the right side.  Both his shirt and pair of trousers were perforated and soaked in blood.  He advised the Scenes of Crime officer to package the clothes for forensic examination and in particular to be tested for the residues of explosives.

 

[66]  In view of the injuries sustained by the deceased, he concluded that they were seated in the car when the bomb exploded, and that the motor vehicle was stationary.  He also concluded that “MJ” was thrown out of the car since he landed fifteen metres in front of the car; according to him this implied that he was seated on the driver’s seat facing the direction of the bomb, and this is evident by the injuries sustained on the face, on the left hand, lower abdomen as well as the blowing up of the left arm. 

 

[67]  He concluded that the dead Asian who was thrown out of the car and landed a metre away from the car could have been seated on the rear seat on the left hand side of the bomb which could have been placed on the rear centre of the seat; and that the dead Asian could have been the one handling and working on the bomb when it detonated. The reason for this conclusion being the injuries he sustained on the chest, face as well as the blowing up of his right leg. Both deceased were thrown out of the motor vehicle during the explosion, and the basis of the conclusion is the fact that such an explosive takes off at a speed of 3500 metres per second.  In view of the damage that occurred as well as the injures sustained, he concluded that the bomb was very powerful.

 

[68]  He argued that the injuries sustained by the accused suggest that he was not inside the motor vehicle when the bomb exploded, and that he should have been within ten metres away from the explosion; and, that he was only hit by debris flying from the point of explosion.  His clothes were perforated.  He estimated the bomb to be between 10–12 kg since the debris were flown to a distance of about 75 metres from the explosion.

 

[69]  He found remnants of water gel and explore gel explosives on the scene which supported his conclusion that the bomb was very powerful.  Water gel and Explore gel explosives are manufactured using ammonium nitrate combined with aluminum, and such an explosive is used primarily for mining purposes and for quarry operations; it is also used to break hard surfaces like rocks during road construction.  He opined that if the bomb was placed under the bridge it could have caused a big damage on the structure, blowing off the bridge on the side where it was placed.

 

[70]  He found that the bomb had a timer-switch which was found on the scene, and that due to human error, the bomb exploded prematurely because the switch was not properly connected to the power source; hence, it detonated instantaneously.  The bomb was assembled in such a way that if the timer-switch failed, the “igniter red cord” found on the scene could have been used as a secondary switch, and could activate the explosion automatically; the igniter red cord is used on the surface or underground or even in rainy conditions. He was not certain if the Timer-switch had been activated to a particular time frame because it had been broken into small pieces; however, the instantaneous detonation of the bomb indicated that the bomb was not yet timed.

 

[71]  He found thirteen dura fuse connectors and each fuse is used to activate a single bomb, and the thirteen fuses could have been used to activate thirteen different bombs.  The igniter red cord is connected to the dura fuse connector which inturn is inserted in the blasting cartridge which is the explore gel, water gel explosive;  the bomb is then placed next to the target.  The red igniter cord is unreeled from the bomb to a safe distance that will be determined by the bomber.  The igniter cord is ignited at the far end and the flame reaction burns until it reaches the dura fuse connector, which activates the detonator, and the bomb will explode.  Once it ignites it cannot be put off even during a rainy weather; the dura fuse connector transports the flame reaction until it reaches the detonator.

 

[72]  He further explained that the rationale for setting the timer is to allow the bomber time to move away to a point of safety before the bomb explodes; if the timer switch is used, and the red Igniter cord is activated, even if the flame reaches the bomb, it will not cause the explosion until the time set unless the timer-switch is malfunctioning in which event the red Igniter Cord would act as a secondary switch and initiate the explosion. Once the Igniter Cord is lit, it cannot be reversed.

 

[73]  He further told the court that the damaged motor vehicle was like a storage facility with many bomb components in the car boot; he explained and identified all the bomb components from the photographs, their names and functions. He further identified the deceased, the debris and the damaged motor vehicle.  He classified the bomb as a Time-Bomb partly because it was designed to explode using a Timer-Switch and partly because it is made up of commercial explosives; the extent of its power depends upon size.

 

[74]  He further identified clothes which were worn by the accused being a brown jacket, a pair of trousers, and a khakhi shirt.  He also identified a multi-meter tester which ascertains the serviceability of electric wires and the power source connected to the bomb.  He then submitted the various explosive equipment as part of his evidence.

 

[75]  Under cross-examination, he conceded that he did not hand over the multi-meter tester to the Scenes of Crime officer to process for DNA profile; similarly, he conceded that none of the cords were sent for DNA profiling.  However, he mentioned that this was not necessary since the exhibits were found wet from the rainy weather.  The defence was trying to show that if the DNA profile had been conducted, it would have been easier to identify the people who handled the multi-meter tester as well as the cords.  He reiterated that the bomb was big enough to cause a substantive damage to any intended target when correctly placed.

 

[76]  He confirmed and reiterated that the accused was not in the motor vehicle when the bomb exploded in light of the injuries he suffered, that the Indian was sitting next to the bomb on the backseat handling the bomb and “MJ” was on the driver’s seat facing the direction of the bomb.  He further reiterated that if the bomb was placed on the intended target, it could cause substantive damage to that target, and that the bomb would have to be placed underneath the bridge so that it is in close proximity to the target.  He further told the court that in his analysis, the bomb had exploded whilst it was still being assembled to be placed on the intended target; and that the bomb exploded prematurely due to human error.   However, he insisted that he would not attribute the premature explosion of the bomb to negligence because he didn’t know the expertise or training of the deceased  and his companions in handling bombs.  He emphasized that he would not attribute the human error to negligence because even experts can commit errors; he described the human error as being the connection of the power source to the bomb before the opening of the Timer-Switch which resulted in the explosion of the bomb.

 

[77]  Dr. Komma Reddy, a Pathologist compiled the Post-Mortem Reports of the deceased; and, the Reports were admitted in evidence in terms of Section 272 of the Criminal Procedure and Evidence Act No. 67 of 1938.  The body of “MJ” was identified by a police officer Force No. 1736 from Matsapha Police Station as well as Nkosingiphile Dlamini who was a brother to the deceased.  The cause of death was the result of Multiple Injuries. The following ante-mortem injuries were present: the head and abdomen were blown up and admomen contents thrown out, the left upper arm was mutilated, a lacerated wound on the lateral side of the left thigh exposing the thigh bone, two abraded contusions on the right thigh and one on the right leg, abraded contusions on the right upper limb and on the chest.

 

[78]  Dr. Komma Reddy also examined and compiled a Post-Mortem Report on the body of Jack Govender; and, he opined that the cause of his death was due to Multiple injuries.  The ante-mortem injuries present were as follows: big burns present on the face and head, lacerated wounds on the forehead, face and neck; three sets of abraded contusions on the chest, half of the left forearm and left hand mutilated, right forearm and right hand severed, porting of the right thigh, right leg and foot mutilated, wound on the abdomen, and left foot mutilated. A total of nine injuries were noted.  The body of Jack Govender was identified by a police officer Force No. 1736 from Matsapha Police Station as well as the brother of “MJ”  Nkosingiphile Dlamini who described himself as a friend to the deceased.  It is well mentioning that Nkosingiphile Dlamini was subpoenaed by the Crown to give evidence on this matter but after taking oath he declined to testify citing personal reasons; however, the Crown later withdrew him a witness.

 

[79]  PW11 Assistant Supt. Richard Mthukutheli Fakudze testified under oath that between 2008 and 2009 he was based at Matsapha Correctional Institution; and, that on the 13th January 2009 he was on duty. He was given a letter by Sgt. Albert Mathabela written by the accused. During trial he identified the attachment as well as the letter he was given by the late Sgt. Albert Mathabela.  The letter was read out in court; and, in the letter, the accused apologized to the Matsapha Correctional Institution for the response made by the South African High Commissioner to Swaziland in respect of his first letter.  The High Commissioner had rejected the request made by the accused in his first letter in which he requested him to lead a team of people that would apologize to the King on his behalf for his involvement in the Lozitha bomb blast; the High Commissioner is alleged to have told the Institution that he only accepts correspondence from the Swaziland Ministry of Home Affairs.  He stated that the response by the High Commissioner was ill-advised, insensitive, undiplomatic, ill-considered and contra bonos mores, and a total disregard of the principles of humanity which govern South African Government employees and South African Diplomatic Missions worldwide.  He condemned the conduct of the High Commissioner and appealed to the Institution to accept his apology and continue giving him assistance as and when the need arises.

 

[80]  PW11 explained that the procedure at His Majesty’s Correctional Services is that a letter written by an inmate is taken to the officer in-charge of the Institution where the original is kept in their files, the letter is typed and given back to the inmate to check if it is typed properly.  Thereafter, it is signed by the inmate and forwarded to its destination; he explained that the same procedure was used with the letters written by the accused.  Both original letters were subsequently collected by Senior Superintendent Joseph Bhembe on the 3rd July 2009.

 

[81]  Under cross-examination, he told the court that the accused was treated in the same way as the other inmates awaiting trial at the institution; he conceded that the accused had listed visitors, but he denied that this was abnormal.  He further told the court that the officer in-charge of a Correctional Institution has a discretion in cases of inmates charged with serious offences to impose restrictions for security purposes. He denied knowledge that in May 2009 the accused had made an application to the High Court complaining that he was not afforded the same privileges as the other inmates awaiting trial.  He further disputed an allegation by the defence that the accused once lodged a complaint of ill-treatment or discrimination to a magistrate in his presence. He emphasized that if the accused had made such a complaint, he would have disputed that in front of the magistrate because it could have been false.  He also denied an allegation by the defence that at one point the accused’s Attorney had made the complaint of ill-treatment to a magistrate in his presence during a remand hearing.  He explained that when the accused arrived at the institution, he was kept in an Isolation Cell because he had sustained serious injuries; and, that this was done for his own good and did not constitute discrimination or ill-treatment.  He denied that there was an instruction or order made by the Institution to treat the accused differently from the other inmates.

 

[82]  He further denied that the accused was kept in solitary confinement and denied access to privileges which the other inmates enjoyed in order to break him down; he emphasized that this was done for the good of the acused because of the serious injuries he had sustained.  He also denied escorting Senior Supt Joseph Bhembe to interrogate the accused in his cell; but he admitted that Mr. Bhembe as a senior officer visited the institution to meet the officer in-charge and his assistants.

 

[83]  He further denied an allegation by the defence that the accused had written the Letter of Apology to His Majesty King Mswati III because he was living a stressful life; and  that he was told that unless he apologized to the King, he would not be released from custody.  The defence, however, did not state who had told the accused to write the Letter of Apology.  PW11 reiterated that the accused never made a formal complaint to him or the other Senior Officers at the Institution that he was being ill-treated or that he was discriminated and treated differently from the other inmates awaiting trial.

 

[84]  PW12 Senior Supt. Joseph Bhembe based at the Manzini Regional Headquarters as the Regional Crime Officer testified under oath that on the 20th September 2008, at about 23.00 hours, he received a report of a purported bomb blast at Lozitha overhead bridge.  He proceeded to the Scene of Crime where he found other police officers including the Police Commissioner Isaac Magagula as well as PW2 Percy Mawelela.  The scene was cordoned; and, there was a damaged white sedan registered SD 528 UL.  He noticed that there was a bomb blast, and, he awaited the arrival of the Bomb Disposal Unit led by PW10 Supt. Manoma Masango; they subsequently arrived and conducted their investigations for a possible  live bomb.  After they had declared the Scene of Crime to be safe; the police began their investigation of the scene.

 

[85]  They found the body of a dead man who was later identified as Musa Dlamini fifteen metres in front of the damaged car, and, on the drainage next to the damaged motor vehicle was a dead Indian who was later identified as Jack Govender of Durban in South Africa.  The bodies of Musa Dlamini and Jack Govender were subsequently identified at the Dups Mortuary by Nkosingiphile Dlamini, the brother of “MJ” as well as the accused; and, the accused referred to Jack Govender as “Mshana” or “Niece”.  The body of Jack Govender was later collected by his relatives who claimed to be from Durban in South Africa; and, the body of “MJ” was collected by his relatives and taken to his parental home at Kalanga area in the Lubombo Region for burial.

 

[86]  They also found a black wallet on the scene which had the Travelling Document of “MJ” and three bank deposit slips and cards; one of the slips was in favour of Hendrick T. Pasha with a deposit R400.00 (Four hundred Rand) on the 18th September 2008 in Braamfontein, South Africa; but it didn’t show the depositor.  Another deposit was in favour of Themba V. Mabuza for the amount of R500.00( Five hundred Rand) made on the 25th July 2008 at First National Bank Braamfontein in South Africa; and another deposit of R400.00 the on 25 July 2008 at First National Bank Braamfontein in South Africa in favour of the accused.  The black wallet, Travelling Document as well as the bank deposit slips were admitted in evidence.

 

[87]  The police found three cellphones on the tarmac at the scene of crime; they were later taken to South Africa for forensic examination.  Three sim-cards found on the scene were later sent for forensic examination in South Africa.  PW11 handed the cellphones and sim-cards to court as part of his evidence.

 

[88]  A South African passport was also found on the scene; it bore the name of Michael Nkululeko Nkosi.  The passport was later identified by the accused as that of “Msholozi”.  It was handed in court as an exhibit.

 

[89]  PW12 further told the court that he also received a Cyber Report which had information depicted and solicited from the cellphones and sim-cards; the Report was prepared by the Cyber Crime Support Unit in South Africa.  He received the Report from Tebogo Thabang Monyamane.   The Report would be submitted in evidence by the Unit; however, photographs developed from the cellphones show Jack Govender and “MJ” carrying the bombs.  The photographs developed from the cellphones and sim-cards were submitted in court as exhibits.

 

[90]  There was a black bag found in the boot of the damaged motor vehicle; it contained four pairs of trousers, four male underwears, three BVD’s, two shirts, one pair of black socks, Vaseline cream, dettol, toothbrush and toothpaste.  These items were also handed in court as exhibits.  A tattered trouser worn by Jack Govender was retrieved from his body during the post-mortem examination at RFM hospital in Manzini; his black belt and T-shirt were also retrieved from his body.   There was also a pair of hi-tech runners worn by the accused on his arrest on the 21st September 2008, his jacket, a pair of trousers and remains of his shirt; after his arrest, the accused withdrew money from the bank and bought new clothes. The exhibits worn by both the accused and deceased persons were handed into court as exhibits.

 

[91]  Other items found on the scene included a cellphone, a pouch, wiping tissues, glue, car keys, electric cords, box of matches, twin plug, switch for locking, a detonator wrapped with a newspaper, door handle of a motor vehicle, and a sunshield.  All these items were handed into court as exhibits.

 

[92]  The police received information at the scene from PW2 that there was an Uno Sedan which transported the accused to hospital.  The police found the accused at the RFM hospital being attended by a doctor and they took him to Matsapha Police Station for investigation of the bomb blast at Lozitha overhead bridge.   After cautioning, a black wallet was found in his pocket, and inside the wallet was a document written “Top Secret”, his membership card of the South African Communist Party, and his South African Identity Card number 6408185818084.  The two cards as well as the wallet were handed in court as evidence.

 

[93]  The accused led the police to Kai Kai hotel where they were received by PW6 Zanele Dlamini; after permission was granted, the accused led them to Rooms 11 and 13 with the hope of finding Nkululeko Nkosi alias “Msholozi” but they did not find him.  The accused conceded that he was a South African citizen and did not have a passport, special document or permit allowing him to enter and remain in the country.   He was subsequently charged under the Sedition and Subversive Activities Act as well as the Immigration Law; he was later remanded to Matsapha Correctional Institution.

 

[94]  In their investigation, PW12 and his team of detectives  found PW3 Sandile Mduduzi Vilakati who conceded transporting the accused to hospital; he produced a bloodstained pillow which was taken to South Africa for forensic analysis.  This was intended to prove that the accused was the injured person who was transported by PW3 from the Lozitha overhead bridge to RFM hospital.  The pillow was subsequently handed in court as an exhibit.

 

[95]  When the accused was in custody at the Matsapha Correctional Institution, the police received information of a Letter of Apology he had written and addressed to the South African High Commissioner to Swaziland; on the 3rd July 2009 they proceeded to the Institution where they obtained the Letter of Apology from the Officer in-charge.  In addition, they were given the second letter directed to the Leadership of the Matsapha Correctional Institution as well as the “Attachment”.

 

[96]  PW12 identified all the photographs taken by PW10, the Scenes of Crime Officer Detective Sgt Sipho Magagula, including photographs developed from the passports of Nkululeko Nkosi and “MJ”.

 

[97]  The defence objected to the admissibility of the “Top Secret Document” on the basis that it was irrelevant; however, the objection was overruled by the Court after hearing submissions by both Counsel.  The document portrays a bitter political rivalry, division and deadly infighting within the Royal Household over the succession to King Sobhuza II, the Royal factions that emerged leading to the removal of Queen Regent Dzeliwe and the appointment of Queen Regent Ntombi, the emergence of PUDEMO and its relationship with disgruntled Princes who were ambitious for the throne, the ongoing clandestine remnants of political maneouvers within the Royal House and a detailed critique of the country’s political dispensation as lacking in democratic governance.  The document was authored by PUDEMO and it exposed its relationship with the South African Communist Party and certain elements of the Royal House. The document concludes by calling for a violent revolution to remove the leadership from political power. This document is relevant partly because it was found in the possession of the accused and partly because of the charges preferred upon the accused as well as the substance of the document.

[98]  Under cross-examination, Pw12 told the Court that the accused was returned to hospital for further medical treatment after questioning; he denied that the accused was taken from the hospital without the permission of the doctor in attendance.  He further denied that the accused was physically assaulted and tortured at the Matsapha Police Station.  He confirmed that he found the accused’s Identity Document, his Membership card of the South African Communist Party as well as the document marked “Top Secret”, all in his wallet.  He conceded to the allegation by the defence that he took notice of the document because its contents were sensitive, and that he did not take the document for forensic investigation in South Africa to ascertain if it had fingerprints of the accused because it was found in his possession; he took the Top Secret Document from the accused at the Matsapha Police Station.  He disputed the assertion by the defence that the accused did not know the document or that he heard about it for the first time during the trial, he told the court that the accused was questioned about the document by the police and he told them that he obtained it from “MJ”.

 

[99]  PW12 told the court that he did not read the Report compiled by PW10; however, he had briefed him orally on his findings.  

[100]           He confirmed that the Cyber Report had photographs of both deceased holding bombs and that he did not have a photograph of the accused holding a bomb.  He further conceded that attempts were made to trace “Msholozi” but they were not successful.  When the defence further enquired if the police made any attempt to extradite Msholozi, Counsel for the Crown interjected to say that people charged with Sedition cannot be extradited.  She further told the court that it was not necessary to take the “Top Secret Document” for DNA analysis because it was found in the possession of the accused.

 

[101]           PW13 Johanna Petro Nella, a Forensic Liason Manager employed by Vodacom South Africa testified under oath that she was requested to provide information from Exhibit 3A being a Nokia N73 found on the scene for the period January 2007 to September 2008.  The serial number of the cellphone was 35626001001576.  The first sim-card used in the cellphone was 0761100641 from 16th August 2008 to 13th September 2008; and the last call received was on the 20th September 2008.  The second sim-card used in the cellphone was 0726149609.  On the 30th August he telephoned a Swazi number twice being 00268 6606514; and, he was at Alberton in South Africa.

 

[102]           On the 9th September 2008, he received a call in Cell No. 0761100641 from Swaziland being 00268 3131560. On the 15th September 2008, he received two Swazi numbers 00268 6026660, and it was directed to his cell No. 0761100641.  He was still at Alberton; again he communicated with the same person on the 16th and 17th September 2008.  On the 20th September 2008, he made four outgoing calls to Swaziland cell number 00268 6706906 from his cell number 0761100641; now he was at Jeppes Reef, which is along the border with Swaziland. She stated that the person using the Nokia N73 was on transit from Alberton on the 18th September 2008 traveling on the N4 Highway passing Middleburg; and, on the 19th September 2008, he was in Barberton, and, on the 20th September 2008, he was at Jeppes Reef at 4.00 am.

 

[103]            Exhibit 3B was a sim-card with cellphone No. 0792599295; it shows communication with cellphone No. 0761100641 on the 10th September 2008 and the caller was at Duiwekop.  He called 0761100641 on the 12th September 2008, and he was at Mukula area; on the 14th September 2008 he again called the same number, and, now he was in Pietersburg.  Again he called him on the 16th September 2008; he was still in the same area.  He phoned him twice on the 17th September 2008 and he was still in Pietersburg; later on the same day, he phoned him twice whilst in Polokwane, once at Ysterberg, once at Vaalkop, twice in Klipdrift, once in Johannesburg and once in Witfontein. On the 19th September 2008, he was on the R38 Highway to Barberton.  This shows constant contact between these people as they move from Gauteng and Limpompo respectively to Barberton then Swaziland.

 

[104]  Exhibit 4 sim-card was used with cellphone No. 0793253219; it was last used on the 28th August 2006 and was not used between 2007/2008 which was the requested period.

 

[105]          Exhibit 3C is a sim-card which was used in cellphone No. 0828142245; it was used between 19th August 2008 until 20th September 2008.  The serial number of the handset is 35229501172142 described as Nokia 1600.  On the 19th September 2008 the user made six calls to cellphone NO. 00268 6706906 in Swaziland; he was initially in Kaapmuiden and later moved to Barberton.  In the early morning of the 20th September 2008 two calls were made to the same Swazi number; and this was the last time that the sim-card was used; and the user was at Mgobode area around Barberton which is along the border with Swaziland.

 

[106]            The documents and affidavits prepared by PW13 being Exhibits U1,U2,V1,V2,W1, W2, W3 and X were admitted in evidence.  There was no cross-examination of this witness by the defence.

 

[108]           PW14 Sergeant Tebogo Thabang Monyamane, a computer Security Specialist with the South African Police Service and attached to the Cyber Crime Intelligence Head Office testified under oath that in 2008/09, his duties involved examining computers and cellphones on crime scenes, the seizure of information on computers, cellphones and recovery of information from computers and cellphones.  On the 20th November 2008 he was given exhibits 3A, 3B, 3C, 3D and Exhibit 4 from Senior Supt. Joseph Bhembe in Swaziland for forensic analysis.  He took photographs of the exhibits before examining them.

 

[109]           The Nokia N73 cellphone had a serial number 35626001005766 which had a sim-card No. 89323000000000479206; the cellphone had no personal identification number.   There was a second Nokia N73 which was damaged with serial No. 356260019931278; however, no information could be extracted because it was damaged.  Again this cellphone had no personal identification Number.  The third cellphone was a Nokia 1600 serial No. 352270013025799.

 

[110]            He found information in Nokia N73 serial No. 356260010015766 which he believed could  assist in the present case.  He prepared a very detailed Report:

 

  • At Page 67 of the Report, “MJ” received a message from Dubula of Ubombo Illovo Sugar Ltd in Swaziland with a cellphone number +268 6026660 on the 23rd November 2007 stating the following:

 

“James Motlatsi, Sipho Pitjana, Thero Setiloane at Ashanti Gold…. They are Senior players in Ashanti Gold.  The Russians are seeking an opportunity to supply with mining explosives.”

 

110.2       At page 71 of the Report Mbedzi sent a message to “MJ” on the 12th November 2007 saying:

 

“This is how shud go about it. The two cars r secured by end of business 2moro.  Msholozi then activate da taxi 4 Tuesday.  By end of business Tuesday all cars are that side with Msholozi.  He must then finalise de discusn about da RSI and da 1400i 2moro morning wit da guys.  There is no more xtuzs on why dis misin must be delayed.  Amandla!”

 

110.3       Again on the same day at page 71 of the Report, Mbedzi sent the following message to “MJ”:

 

“All de guys except Msholozi and me, must b sent 2 da sangoma 2 b baptized on Friday afternoon i.e. Mzaman wit da two randbg guys plus de ada venda based guy.  I sajest MJ coms along as wel 2 de sangoma.  Sanis is ready wit da baptism of fire.”

 

  • At page 73 of the Report “MJ” received a

message from “Phasha” saying;

 

“Mchana very what are chances of opening a business account in Swaziland we want to move R7m into! But that account must be open by a trusted comrade cause we can donate % to u party, the connection with a bank manager is important can u arrange that?  Very urgent that cash is ready.”

 

  • At page 75 of the Report “MJ” received a

message from Msholozi on the 31st December 2007 saying:

 

“Amandla Gwalagwala lelihle, akube njalo.  As the Commander of the army, we have to take an extra mile.  Aluta continuer.”

 

  • At  page 75  of the Report “MJ” received a

message from his wife but the name on the handset was for their child Simo:
 

“Sweety its been nice havn u even ths yr, lukn 4ward 2another excitn yr with u. whtever we went thru in 2007 was a learning curve 4 us.  I luv u Musa and wish u a happy 2008 with lots and lots of luv.  Hope u achieve all that uve bn wishn 4, and wish us mo yrs of happy marriage. I luv u!”

 

  • At  page 73  of  the Report “MJ” received

a message from Bongani Masuku on the 31st December 2007:

 

“In my whole life I have come to know several people.  But amongst them there are those who by virtue of their worth to my life & being, require special mention, u a one of those distinguished few.  Wishing you a prosperous 2008!”

 

  • At  the  same  page and on the same date

Bongani Masuku sent another message to “MJ”:

 

“Vincent Dlamini has survived an attempt on his life this morning @ 2 am at his house, just after parking his car. He survived 4 bullets.  The motive not yet clear, but very suspicious. Am not sure if he minds with this issue bng spread, so wld prefer its handled with care.”

 

  • At  page 101 of  the Report on the 1st July

2008, “MJ’s” cellphone recorded a voice mail message from Jack Govender asking him to call back.

 

  • On the 2nd July 2008 Jack Govender sent

a message to “MJ”:  “Contact Mario Masuku urgently”.  This was on page 101 of the Report.

 

  • At page 101 Jack Govender sent the same

message to “MJ” on the same day:  “Mario wants 2 talk to Solly urgently.”

 

  • At  page 112  of  the  Report  on  the  31st

August 2008, “MJ” received a message from Lucky Lukhele: 

 

“In today’s headlines Times of Swaziland: Pudemo declares war, endorses Umbane.   I’m told that the NEC will be arrested today en masse.”

 

  • At page 114 of the Report on the 9th April

2008 Mbedzi sent this message to “MJ”:

 

“If you can treat me like dis b4 u get in 2 power, what will happen wen u get in 2 power? U will use me 4 a toilet paper and throw me away!”

 

  • At  page 125  of  the  Report  on  the  14th

April 2008 Dudula of Illovo in Swaziland sent a message to “MJ”:

 

have you  arrived in JHG. Please call me our friends are geared up 4 21st.”

 

  • At page 157 of the Report on the 20th May

2008 “MJ” sent a message to Dubula in Swaziland whom he referred to as brother: 

 

“Mnetf can u pls indicate if we are moving ahead or calling th meeting off. I need 2 giv a signal b4 lunch 2day.”

 

 

 

  • At  page  49 of  the Record, four messages

were found stored in the cellphone of “MJ” being the Nokia N73 Serial No. 356260010015766 cellphone No. 0792599295:

 

(a)  “We nid to finalize share-holding with lakeside.  We nid 2 c with our eyes how much wil our revolution hold.”

 

(b) “Demistify Communism.  Use th values & principles 2 build a strong Red Army 2 assist in the revolution!”

 

(c). “Umbane Project end of Party:

 

(i)     Aim is 2 raise 2m by al means posibl b4 July.

 

  1. We have 2 institutionalize Umbane with our greatest value being protection of life.

 

  1. Prepare a very strong propaganda machinery and effective communication system.

 

  1. We need 2 creat a local underground network, identify each leader per region! We have 2 consult with TR & Dudu on the leadership.  We then have 2 workshop these and insulate their operations from their leadership!”

 

  • At page 119 of the Report on the 15th September 2008 Jack Govender sent a message to “MJ”:  “Wats up?”

 

  • At page 121 of the Report on the 17th September 2008 Msholozi sent a message to “MJ”:  “Ubongitsintsa phela uma sewente le process yase Pretoria.”

 

  • At page 122 of the Report on the 17th September 2008 Mbedzi sent a message to “MJ”.

 

“Im in a truck heading 4 Springs using de N1 up to Tswane.  Wil offramp @ R21 2 de airport.  I m 2 b dropd der in about 4 awas time. U pick me up der and den.”

 

  • At page 123 of the Report on the 18th September 2008, Dudula from Ubombo Illovo Sugar in Swaziland, Cell 0026876026660 sent a message to “MJ”:

 

“I have just been informed by our contact in the security that they have kidnapped some people for interrogation.”

 

[111]           At page 226 of the Report, photographs of “MJ” and Jack Govender show them holding the Time Bombs; these photographs were developed from the Nokia N73 serial no. 356260010015676.

 

[112]           The Report of the Cyber Intelligence Crime Unit was admitted in evidence as exhibit Y1, and Annexure A was admitted in evidence as Exhibit Y2.

 

[113]            A Medical Report compiled by Dr. Shilembe of the RFM Hospital in Manzini was admitted in evidence by consent; in terms of the Report, the Doctor examined the accused on the 21st September 2008.  His general state of health and physical powers were weak, the condition of his clothing bloody, he had multiple abrasions over the face and both hands, bruises over the chest, multiple lacerations over the face, wounds on both hands and right leg; pieces of glass found inside some lacerations.  The accused was attended after midnight. The Report was marked Exhibit “AA”.

 

[114]            Pw15 Huibrecht Catharina Botha, the Principal Forensic Analyst in the South African Police Service and attached to the Biology Unit of the Forensic Science Laboratory testified under oath that on the 7th November 2008 and during the course of her official duties she received the docket and contents in this matter; and she evaluated the samples and subjected them to DNA analysis.  The profile of the DNA obtained from the cushion “Y” and car sun visor “H” is the same as the profile of the DNA obtained from the control blood sample  “DD” of Amos Mbedzi.  The profile of the DNA obtained from the car door lock “T”, seat belt “U” and panic handle “S” is the same as the profile of the DNA obtained from the control blood samples of Jack Govender.  She deposed to an affidavit in which she detailed her findings, and, it was admitted in evidence and marked “AB”.  The defence did not cross-examine the witness.

 

[115]           PW16 Superintendent Petrus Jacobus Esterhuizen, attached to the Questioned Document Unit of the Forensic Science Laboratory as an expert examiner of questioned documents; which includes the individualization of handwriting, signatures, typescript, printed matter and stamped impressions, the identification of forgeries, erasures and additions, the deciphering of obscured writing and indentations and examination of South African and USA banknotes to determine if they are genuine or counterfeit.

 

[116]           On the 2nd March 2010 and during the course of his official duties, he received three official prison documents together with an attachment document from Swaziland containing original handwriting; he was requested to compare the specimen handwriting with the handwriting on disputed document in order to determine if the handwriting was written by the same author.  After analysis, comparison and evaluation of the two set of documents, he concluded that the specimen handwriting and the disputed documents were written by the same author.  He deposed to an affidavit in which he detailed his report; and it was admitted in evidence and marked Exhibit “AC”.  The defence did not cross-examine the witness. 

 

[117]           PW17 Bodwana Calvin Nkosi, a Controlling Immigration Officer at Oshoek Border Post and employed by the South African Department of Home Affairs testified under oath that according to the Movement Control System, Mbedzi Mbulaheni Amos I.D. No. 6408185818084 passport No. 462601836 entered South Africa on the 3rd December 2007; and, that no departure has since been captured on the Department’s Movement Control System.  He handed the Report prepared as part of his evidence, and, it was marked Exhibit AD.  However, under cross-examination, he conceded that the Report does not state that the accused on the 3rd December 2007 was entering South Africa from Swaziland.

 

[118]   PW18 Mlungisi Edgar Nkanyezi Shazi, the Forensic Analyst with the South African Police Service attached to the Scientific Analysis Section of the Forensic Science Laboratory in Pretoria testified under oath that during the execution of his official duties on the 26th May 2010 he received exhibits from Swaziland which contained one pair of dark brown “Hi Tec” shoes, one olive green “store Harbour” trousers with red and white stains, one brown “Oakridge” shirt with red and white stains, one brown ‘Zucchelli” belt, one dark brown damaged “Gino Bellin” jacket, one bag marked ‘BB’ and another bag marked “CC”.  Upon examination of the shoes, the shirt and jacket, they tested positive for the presence of ammonium nitrate which is an active component of commercial explosives.  The damage visible on the jacket was said to be consistent with the damage that would be caused to clothing that had been in close proximity to an explosion.  The presence of explosives on the trouser and belt could not be confirmed.  The jacket was marked exhibit 1A, the pair of trousers was marked Exhibit 1B, the shirt was marked Exhibit 1C, the shoes were marked Exhibit 1D and the belt exhibit 7E;  all exhibits were admitted as evidence.  The Report prepared by PW18 was also admitted in evidence and marked Exhibit AE.

 

[119]   Under cross-examination, he told the court that Ammonium Nitrate is in the form of a semi-solid jelly, and that when it explodes, a residue of the substance remains.  He further told the court that a person who is in close proximity to the explosion is bound to have  traces of the substance.  He re-iterated that tests made on the pair of trousers and belt were inconclusive.

 

[120]            After the Crown had closed its case; the defence applied for the discharge and acquittal of the accused in terms of Section 174 (4) of the Criminal Procedure and Evidence Act No. 67 of 1938 in respect of counts 1, 3, 4 and 5 of the Indictment. With regard to Count 1 relating to the charge of the Sedition and Subversive Activities, the defence argued that there was no evidence of intention to damage the bridge, and that the evidence adduced was that the explosion occurred inside the motor vehicle that was parked underneath the bridge; and, that the device was not placed on the structure of the bridge.  The defence further argued that there was no evidence that the accused had any dealings with the bomb or in the assembling of the bomb because he was not inside the motor vehicle when it exploded. 

 

[121]    With regard to the third and fourth counts relating to the murder of “MJ” and Jack Govender, the defence argued that the evidence adduced by the Crown does not show that the bomb was detonated by the accused; the evidence of the Crown merely shows that the device was detonated by one or both of the deceased who were the only people inside the motor vehicle.

 

[122]    With regard to Count 5 relating to the unlawfull possession of Explosives without a permit or licence, the defence argued that there is no evidence that the accused was in control of the bomb or that it was in his custody; and that he does not have to explain his presence on the scene because he was not inside the motor vehicle during the explosion or in physical possession of the device.

 

[123]   The defence further argued that the Expert Evidence does not assist the Crown in proving the guilt of the accused; and, that the fact that the DNA profile of the accused was found on the cushion or sun visor merely show that he was on the scene.  Similarly, the defence argued that the evidence that his clothes had traces of Ammonium Nitrate does not implicate the accused; it merely shows that he was on the scene at the time the device exploded.

 

[124]    The defence also argued that the “Letter of Apology” was not written freely and voluntarily; and that the accused wrote the letter under stressful conditions where he was kept in solitary confinement, and not allowed to exercise or to have visitors.

 

[125]    The defence further argued that the SMS evidence does not assist the Crown partly because the messages date back to about nine months before the offence occurred and partly because the substance of the messages had no bearing to the commission of the offences.

 

[126]           The Crown argued that the Court in deciding this matter should take into account the totality of the evidence.  She argued that the evidence of PW1 Jeffrey Simelane indicate that there were four people inclusive of  “MJ” who were occupying Rooms 11 and 13 at Kai Kai hotel; that he identified  “MJ”, Msholozi and Jack Govender when shown various photographs in Court, and that he couldn’t identify the fourth man.   She further argued that after the blast, the accused led the police to Kai Kai hotel where he pointed out at Rooms 11 and 13 which they had booked with the hope of finding Msholozi.   She further argued that when the accused was being driven to hospital he asked for the whereabout of the other occupants of the damaged car and whether or not they were still alive; the accused further asked PW3 how far was the distance to Kai Kai hotel.  The accused further told PW3 that the only place he knew in the country was the Kai Kai hotel.  The Crown argued that this evidence was consistent with the evidence of Zanele Dlamini that the security guard asked for the Room keys at 6 am on the 20th September 2008 because the guests  who had booked the Rooms had arrived and needed to use the rooms.

 

[127]    She argued that the evidence of Johanna Petro Nella a

Forensic Liaison Manager employed by Vodacom indicate that the users of the cellphones were on transit and communicating with each other as they travelled from Limpopo and Gauteng to Barberton and Jeppes Reef which is a border town with Swaziland; and, that the cellphones were last used on the 19th and 20th September 2008 respectively.  She argued that this evidence corroborated that of Zanele Dlamini that the men arrived at the hotel on the 20th September 2008 at 6 am.

 

[128]   She   also   argued   that  the  evidence  of   Sgt. Tebogo

Thabang Monyamane, the Computer Security Specialist reveals that there was communication between the accused, MJ, Msholozi, Jack Govender and others; and that the messages indicate that they were preparing for a mission to be executed in Swaziland. She further argued that the Top Secret Document which is critical of the Swaziland Leadership was found in the possession of the accused; the document was advocating a violent overthrow of the political leadership.

 

[129]           She further referred to the evidence of Willy Lucky Bhembe with regard to the Letter of Apology written by the accused in which he apologized to the King, the Prime Minister and his government as well as the citizens of Swaziland for his involvement in the Lozitha Bomb Accident “which caused a lot of pain and a sense of insecurity for the people of Swaziland, and, had disturbed the spirit of His Majesty the King a situation which I highly regret”.  He further stated that he had denounced violence and terrorism in all its forms.   The letter was further confirmed by Assistant Superintendent Richard Fakudze as well as Superintendent Petrus Jacobus Esterhuizen that it was written by the accused.  She further referred to the evidence of Assistant Supt. Richard Fakudze who denied that the accused wrote the Letter of Apology because he was kept under solitary confinement and treated differently from the other inmates awaiting trial.  Both Willy Lucky Bhembe and Assistant Supt. Richard Fakudze confirmed that the accused was kept in solitary confinement because of the injuries he had sustained; and that he could not even wash himself.

 

[130]           The Crown conceded that the accused was outside the motor vehicle when the bomb exploded but insisted that the accused was in the company of the deceased as well as Msholozi who was standing on top of the bridge holding the red igniter cord.  She further argued that the injuries sustained by the accused show that he was in close proximity with the car.  She argued that the evidence of Zanele Dlamini was that the four men had left the hotel in the same car, and she later identified the car during the trial. She argued that the accused had a duty to explain why he was on the scene and in the company of the deceased and Msholozi. She further argued that the accused was properly charged with all the two counts including the counts of murder in that the accused had mens rea in the form ofDolus Eventualis.

 

[131]    Section 174 (4) of the Criminal Procedure and Evidence

Act provides the following:

 

“If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted thereon, it may acquit him and discharge him.”

 

[132]           The basis of the application is that there is no evidence

that the accused committed the offence charged relating to the Sedition and Subversive Activities Act, the two counts of murder as well as the Explosives Act.

 

[133]           On the 20th September 2008, Jeffery Simelane, PW1 received a call from “MJ”, his brother-in-law requesting him to come to Kai Kai hotel, and on his arrival he was met by “MJ” at the car park; he led him to a hotel room where he found three other occupants.  “MJ” borrowed his car and said he was going to his parental homestead at Kalanga area.  He lent him a white Toyota Corolla registered SD 528 UL. Inside the hotel room he found three men, one was Indian and the other was black; he had met the black man previously in an apartment leased by “MJ” and he called him Msholozi; he didn’t see the third man since he was covering his face.  “MJ” had promised to phone him in the evening, but he did not phone and his cellphone was not available.  In the morning, his driver Linda Msibi told him that the motor vehicle lent to “MJ” had been damaged at Lozitha.  They proceeded to Lobamba Police Station where the police confirmed the incident and further told him that the car was extensively damaged; they further told him that “MJ” was one of the two people who died on the scene.  They referred him to the Sigodvweni Police Station for further information; on arrival, he saw his motor vehicle, and, it was extensively damaged.

 

[134]  During the trial, PW1 identified the photographs of “MJ”

and Msholozi whom he had previously met at an apartment leased by “MJ” at the homestead of Fanourakis.  He further identified his motor vehicle during an inspection in-loco at the background of the High Court building.  He further identified rooms 11 and 13 at Kai Kai hotel which was occupied by “MJ”, Msholozi, Jack Govender and the accused. During the trial, he denied knowledge of the exhibits found in the motor vehicle and on the scene; he said the exhibits were not in the car when he gave it to “MJ”.

 

[135]   Percy  Mawelela,  PW2  testified  that  he  heard  a  loud

bang similar to an explosive when he was one hundred metres away from the bridge; then he saw a motor vehicle engulfed with smoke, its roof had been  removed and landed on the Mbabane/Manzini highway.  He stopped his car with the intention of assisting the occupants of the damaged motor vehicle; the time was after 10.30 pm.  He saw the accused leaning on the damaged motor vehicle; he was alive.  The motor vehicle was under the bridge on the yellow line”, and PW2 was standing in the middle of the two guard rails separating the MR3 highway.  He saw “MJ” lying on the fast lane on the tarmac dead about fifteen metres away from the damaged motor vehicle.  He saw Msholozi standing on the overhead bridge, and he called him to come down so that they could assist the injured people; he did not respond to his call but continued calling on the accused leaning on the motor vehicle.  Msholozi then threw the red igniter cord which fell on the tarmac; thereafter he walked away towards the direction of Lozitha School.  Msholozi was wearing a black jacket.  He was able to see Msholozi clearly because the area was well lit with street lights and flood lights above and below the bridge.  He was able to identify Msholozi when he was shown several photographs during the trial.

 

[136]            The accused was subsequently driven to hospital by Sandile Mduduzi Vilakati;   The accused was wearing a brown jacket, a pair of trousers and a khakhi shirt.  He further identified the accused during the trial as the injured man who was leaning on the damaged motor vehicle under the overhead bridge. PW2 was the first person to arrive on the scene after the bomb blast.

 

[137]   Sandile  Mduduzi  Vilakati  told  the Court that on their

way to the RFM hospital the accused asked him for the whereabouts of the other occupants of the car and further asked if they were still alive; he further asked how far was the distance to the Kai Kai hotel, and further said the hotel was the only place that he knew in the country.  This shows that the accused was not merely a bye-stander on the scene but he was on the mission together with the deceased and Msholozi.  When they reached RFM hospital, the accused told him his name as Amos Mbedzi. He further noted that he was wearing a brown jacket, brown pair of trousers and a khakhi shirt; he further identified the clothes in court.   He further identified the damaged motor vehicle in a photograph during trial as the one he saw on the scene; similarly, he identified the accused as the injured man he transported to hospital; and, the defence counsel did not cross-examine PW3 but merely told the court that the accused had instructed him to thank him for saving his life.

 

[138]            From the evidence of PW1, PW2 and PW3 it is evident that the African man who was found at Kai Kai hotel sleeping and covering his face with a duvet and a newspaper was the accused.  The evidence of PW1 and PW2 further show that the man who fled the scene after throwing the red igniter cord was Msholozi.  The evidence indicate that the accused was not merely a bystander at the scene but was also part of the group that was in Rooms 11 and 13 at Kai Kai hotel.  Simanga Fana Zewula also identified the accused in court as the injured man who was brought to hospital for treatment by Sandile Mduduzi Vilakati.  He further identified the clothes worn by the accused when he came to the hospital;  he identified these clothes during the trial.

 

[139]           Zanele Dlamini, an employee of Kai Kai hotel told the court of four men who booked rooms 11 and 13 at the hotel; and she further identified the accused as the man who came with the police to the hotel and showed them Rooms 11 and 13 as the rooms they had booked with his friends.  She further identified the motor vehicle that the four men were driving.

 

[140]          Willy Lucky Bhembe, handed into court as evidence Annexure K which comprised the Letter of Apology written by the accused and addressed to the South African High Commissioner to Swaziland as well as the Attachment.  In the Letter of Apology the accused made “an unconditional apology to His Majesty King Mswati III, the Prime Minister and his government and the citizens of Swaziland for his involvement in the Lozitha Bomb accident which caused a lot of pain and a sense of insecurity for the people of Swaziland, and which had disturbed the spirit of His Majesty the King a situation which I highly regret; and that I have since denounced violence and terrorism in all its forms.”  The accused then made a list of the delegation that would approach His Majesty and deliver the message of apology as well as the two bulls to be presented to His Majesty.  Contrary to the submission by the defence that the accused wrote the letter  under stressful conditions and undue pressure, the accused in his Letter of Apology expressly states the following:

 

“This is a matter which I have voluntarily decided to perform with my full heart and knowledge without anyone forcing me to do.  It is my sincere conviction that it goes a long way in cooling the heart of His Majesty and ease His spirit.  I need His blessings for me to be able to lead a normal life again.”

 

[141]           This Letter of Apology is a further admission by the accused of the commission of the offences in counts 1, 3, 4 and 5; it shows that he was not a bystander on the scene, but that he was on a mission with “MJ”, Jack Govender and “Msholozi” to bomb the bridge.  The substance of the “Attachment” written by the accused is inconsistent with undue influence, and it provides the following:

 

“I hereby further mandate the Correctional Institution to use this text in anyway the leadership deems fit even if it means exposing it to the media.”

 

[142]    The  defence  further  argued  that   the   accused  was

discriminated and treated differently to the other inmates awaiting trial, and that he was kept in Solitary Confinement, not allowed to enjoy sunshine or perform manual work in the dormitories like the others; both Lucky Willy Bhembe and Assistant Superintendent Richard Fakudze explained to Court that the  reason the accused was kept in solitary confinement when he arrived at the Institution was due to the serious injuries he had sustained, and that he could not do manual work or even wash himself in the circumstances. Assistant Superintendent Richard Fakudze further explained that the restrictions on the visitors of the accused related to the seriousness of the crimes with which he was charged since they concerned the security of the state; and, that the Correctional Institution has a discretion in such cases to restrict the visitors accessing the accused person. Furthermore, Willy Lucky Bhembe told the court that the accused was kept in solitary confinement for a few days of his arrival pending recovery and recuperation; thereafter, he was allowed to bask in the sun like the other inmates awaiting trial. 

 

[143]   Assistant Supt. Richard Fakudze handed into court the

second letter written by the accused criticizing the South African High Commissioner to Swaziland for his failure to facilitate his request contained in the Letter of Apology to lead a delegation on his behalf to His Majesty King Mswati III; he described his conduct as ill-advised, insensitive, undiplomatic and in total disregard of “Bathobele Principles” which govern all South African government employees and all South African diplomatic missions worldwide”.  The document was signed by the accused.  He confirmed having seen both the Attachment as well as the Letter of Apology. This letter provides further evidence that the accused wrote the Letter of Apology freely and voluntarily without undue influence.

 

[144]   Mr.  Fakudze  denied  knowledge  that  the accused had

made a complaint to a magistrate for ill-treatment in prison; he further denied knowledge of an application before the High Court in which he complained that he was discriminated and not treated like other inmates awaiting trial.

 

[145]   Sgt. Elvis  Dlamini,  a  police  officer based at the Royal

Guard arrived at the scene at about 10.30 pm and saw the damaged motor vehicle under the Lozitha overhead bridge on the left hand side of the yellow line; he realized that there were scattered pieces of the motor vehicle on the tarmac, he saw two dead bodies on the tarmac as well as meeting PW2 Percy Mawelela.  He was shown the red igniter cord by PW2 which was thrown at him by Msholozi; he realized that it was the one which is used in explosives.  He further saw a green cord, a passport, a power tester, multi-meter and a cellphone.  He phoned the Matsapha Police Station for them to call the Bomb Disposal Unit as well as the Scenes of Crime Unit; he stopped other motorists from tempering with the scene pending the arrival of the experts.  They diverted the traffic to the Lozitha off-ramp. 

 

[146]   Under  cross-examination,  the  witness  reiterated that

the scene was not interfered with; and, that prior to his arrival, a fuel tanker and a motor vehicle belonging to a police officer Alex Dlamini were used to block the traffic.  In addition, he found other police officers on the scene including the Commissioner of Police Isaac Magagula.

 

[147]    Detective  Sergeant  Sipho  Magagula,  a  police  officer

under the Scenes of Crime Unit found other police officers on the scene as well as other people; he cordoned the scene to protect it pending the arrival of the Bomb Disposal Unit to investigate possible live explosives.  After the Bomb Disposal Unit had declared the scene to be safe, the witness drew a Sketch Plan of the scene, showing the two deceased as well as the Exhibits, the bridge and highway; he further took photographs of the entire scene including the exhibits as well as the photographs developed from the passports of Msholozi and “MJ”, and photographs of Jack Govender and the accused.  Photographs were taken at the scene as well as at Matsapha Police Station.  This witness together with Senior Supt. Joseph Bhembe transmitted the exhibits to South Africa for `forensic analysis.

 

[148]   Police Supt. Manoma Masango, a bomb disposal expert

arrived at the scene at about 12.30 am on the 21st September 2008 and found the scene cordoned, and, he examined the scene for unexploded bombs.  He found the car on the scene with its roof blown off, the body of “MJ” with multiple injuries and left arm blown off; he saw the body of Jack Govender with both arms and right leg blown off from the body as well as bruises to his face and chest.  He picked exhibits on the scene which related to explosives including thirteen dura fuse connectors, remnants of explore gel water gel explosives, remnants of a timer-switch, a partly burnt red igniter cord, a fresh igniter red cord, a multi-meter tester, an electric detonator, and a cooper tube with electric wires at the end.  He instructed Sipho Magagula to package the clothes worn by the accused for forensic examination to be tested for explosive residues. 

 

[149]            From his investigation based on the injuries sustained by the deceased, he concluded that they were seated inside the car when the bomb exploded, “MJ” on the driver’s seat facing the bomb and Jack Govender seated at the backseat working on the bomb; that the bomb exploded from inside the motor vehicle, hence, the roof of the motor vehicle was blown off. He further concluded that the motor vehicle was stationary during the explosion.  He told the court that a time bomb of this nature takes off, during explosion at a speed of 3500 metres per second.  From the damage caused to the motor vehicle and injuries sustained by the deceased and the accused, he further opined that the bomb was very powerful. The accused as well as Msholozi had moved out of the motor vehicle when the bomb exploded; the accused was just ten metres away from the motor vehicle and Msholozi was on top of the bridge working on the red igniter cord.

 

[150]                The accused was hit by debris flying from the point of explosion; the short distance of the accused from the point of explosion provides clear evidence that he had just alighted from the car, and that he was in the company of “MJ”, Msholozi and Jack Govender.  His clothes were perforated indicating that he was hit by flying debris.  The distance flown by the debris of 75 metres from the point of explosion led him to conclude that the bomb was between 10-12 kg.  The remnants of the explore gel and water gel explosives also indicate that the bomb was powerful since the bomb components include Ammonium Nitrate combined with Aluminum;  and that the said explosives are used primarily for mining and quarry operations to break hard surface like rocks.  He argued that if the bomb were placed on the bridge, it could cause a big damage on the structure and the highway would be impassable; and that the bridge would be blown off on the side the bomb was placed.

 

[151]    Mr. Masango  further  testified  that  the thirteen “dura

connector fuses” could have been used to make thirteen separate bombs because each dura fuse connector is used to activate a single bomb; and that the red igniter cord could have been used to initiate the secondary switch in the event the time-switch fails to take off.  He explained that the red igniter cord is unreeled from the bomb to a safe distance; and this explains why Msholozi was on top of the bridge with the red igniter cord.  He further explained that the red cord is ignited at the far end and the flame reaction burns until it reaches the dura fuse connector which is attached to the bomb.  He concluded that the bomb exploded pre-maturely whilst it was still being assembled by Jack Govender due to human error; however, he refused to confirm that the human error was caused by negligence on the part of Jack Govender, and argued that even experts are susceptible to human error.

 

[152]           Mr. Masango further explained that the injuries sustained by the deceased were consistent with a bomb blast.  The head and abdomen of “MJ” were blown up, the contents of his abdomen thrown out, the left upper arm was mutilated with several abraded contusions, and multiple injuries.   Similarly, Jack Govender sustained injuries, burns, lacerations and contusions; half of the left forearm and left hand were mutilated, the right forearm and right hand severed, a portion of the right thigh and right leg and right foot mutilated.

 

[153]           Senior Superintendent Joseph Bhembe testified that there was a black wallet found on the scene which had ‘’MJ’s” traveling document; in addition there were three bank deposit slips in the wallet dated 18th September 2008 in favour of Pasha, Themba Mabuza, and the third slip in favour of the accused; the money was deposited into the account of the accused on the 25th July 2008 at the First National Bank in Braamfontein, South Africa, Account No. 62185813534, Branch Code 251905 in the sum of R400.00.  The deposit slip in respect of the accused is Exhibit R3; hence, this indicates that the accused was in the company of “MJ”, Msholozi and Jack Govender at the scene.  The South African passport of Michael Nkululeko Nkosi also known as Msholozi provides sufficient evidence that he was on the scene on the day in question. The photograph of Msholozi was developed from the photograph in his passport. He further handed photographs of ‘MJ’ and Jack Govender carrying bombs.  He also handed as exhibits of clothes which were worn by the accused on the day in question.

 

[154]           This witness and other police officers found a black wallet in the accused’s possession with a document written “Top Secret”, accused’s membership card of the South African Communist Party and his South African personal Identity Card.  The “Top Secret Document” is highly critical of the political leadership in the country as well as the political system in general; it describes the political system as a dictatorship, exploitative, undemocratic, oppressive and plundering public resources.  The document concludes by calling for the violent overthrow of the political leadership; hence, this document links the accused to the bomb blast at Lozitha, and, it would be absurd to divorce the accused from the bomb blast in the circumstances.

 

[155]    The accused further led the police to Kai Kai hotel where they had booked Rooms 11 and 13 with “MJ”, Msholozi and Jack Govender; he showed them the Rooms where they were residing prior to their mission to bomb the bridge. The accused had told the police that he was hoping they would find Msholozi at the hotel.

 

[156]            Johanna Petro Nella who was a Forensic Liason Manager employed by Vodacom South Africa testified with regard to the cellphone and sim-cards found on the scene; she concluded that the users were in transit on the period under review in September 2008 travelling from Limpopo and Gauteng respectively to Barberton and Jeppes Reef.  They arrived at the border town at about 4 am on the 20th September 2008, which is on the borderline between Swaziland and South Africa. The last time they communicated was on the 19th and 20th September 2008 respectively. The evidence of Sgt. Tebogo reveals that the users of the cellphones were “MJ”, Msholozi, Jack Govender as well as the accused.

 

[157]            Sergeant  Tebogo  Thabang  Monyamane,  a  computer

Security Specialist with the South African Police and attached to the Cyber Crime Intelligence Unit extracted information from the cellphones and sim-cards found on the scene; messages were extracted where “MJ”, Msholozi, Jack Govender and the accused were communicating with each other and traveling from Limpopo and Gauteng to Swaziland.  These messages show preparations for the mission to bomb the bridge.  I have quoted some of the SMS messages in the preceding paragraphs, it is not necessary to repeat them now.

 

[158]            The Electronic Records (Evidence) Act No. 6 of 2009 does allow the admissibility of Evidence of an electronic record as well as affidavits deposed by experts in that field Section 5 of the Act provides the following:

 

(1) Nothing in the rules of evidence shall apply to deny the admissibility of an electronic record in evidence on the sole ground that it is an electronic record….

 

(4) A person seeking to admit an electronic record in any legal proceedings as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is that which that person purports it to be, except that in the case of an electronic record generated outside the jurisdiction, it shall be sufficient if the record is authenticated in that jurisdiction.

 

(5) Notwithstanding section 242 of the Criminal Procedure and Evidence Act 1938, any, public officer who has the custody or control of a record by virtue of that officer’s office shall produce that record in an electronic form in any criminal or civil proceedings before any court…” 

 

[159]   Section 9 of the Act provides the following:

 

9.  In the absence of evidence to the contrary, the integrity of an electronic records system by or in which an electronic record is recorded or stored is proven-

 

  1. By evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic records system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic record and there are no other reasonable grounds to doubt the integrity of the electronic records system;

 

  1. By the party tendering such record that there is no reasonable ground for believing that the electronic record is inaccurate because of improper use of the electronic records system and that no reason exists to doubt or suspect the truth or reliability of the electronic record;

 

  1. If it is established that the electronic record was recorded or stored by a party who is adverse in interest to the party seeking to introduce it; and

 

  1. If it is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party or who did not record or store it under the control of the party seeking to introduce it.”

 

[160]   At page 226 of the Report, photographs of “MJ” and Jack Govender show them holding bombs; they were developed from the Nokia N73 Serial No. 356260010015676 used by “MJ”.  Again this indicates that the bomb blast was well planned by the accused and his companions.

 

[161]     Huibrecht  Catharina  Botha,  the  Principal   Forensic

Analyst with the South African Police analyzed and found that the DNA samples of the cushion and car Sun Visor  is the same as the DNA blood sample  of the accused.  It is common cause that the accused was a mere ten metres away from the bomb explosion; and, that after the explosion, he was seen by Percy Mawelela leaning on the damaged motor vehicle.  This evidence shows that the accused was one of the occupants of the motor vehicle and that he was part of the team that was assembling the bomb at Lozitha in preparation for the bombing of the bridge.

 

[162]   Petrus Jacobus Esterhuizen attached to the Questioned 

Document Unit of the Forensic Science Laboratory in Pretoria compiled a Report and further testified that after examination he found that the two letters as well as the Attachment were all written by the accused.

 

[163]   Bodwana Calvin Nkosi, a Controlling Immigration Officer testified that the Movement Control System show that the accused entered South African on the 3rd December 2007 and that no departure was captured on the System.  At any rate, the accused pleaded guilty to Count 2 relating to the Contravening of Section 14 (2) (c) of the Immigration Act No. 17 of 1982 in that on the 20th September 2008 he unlawfully entered and remained in Swaziland without a valid pass or a valid entry permit.  This evidence corroborates that of Johanna Petro Nella that the users of the cellphones and sim-cards found on the scene were on transit from Polokwane /Gauteng to Swaziland through the borderline with Swaziland at Jeppes Reef; clearly, they did not go through the border gate otherwise the accused’s passport as well as the Movement Control System in the South African Department of Home Affairs would have captured that.  It further corroborates the evidence of Zanele Dlamini the employee at Kai Kai that they demanded the keys to the rooms at 6 am on the 20th September 2008. 

 

[164]   Warrant Officer Mlungisi Edgar Nkanyesi of the South African Police Service examined the clothes worn by the accused during the bomb explosion and found that the shoes, shirt and jacket tested positive for the presence of Ammonium Nitrate which is an active component of commercial explosives; this evidence shows that the accused was in close proximity to the bomb explosion, and that he was in the company of the occupants of the damaged motor vehicle.

[165]   Senior Supt. Joseph Bhembe testified under oath during the trial that the bodies of “MJ” and Jack Govender were identified at the Dups Mortuary by “MJ’s” brother Nkosingiphile Dlamini as well as the accused; he told the court that the accused also referred to Jack Govender as “Mshana”. This evidence was not challenged by the defence; and, it provides further proof that the accused was part of the mission with “MJ”, Jack Govender and Msholozi to bomb the Lozitha overhead bridge.

 

[166]   Section 174 (4) of the Criminal Procedure and Evidence Act No. 67 of 1938 provides the following:

 

“If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted thereon, it may acquit him and discharge him.”

 

[167]   The present Section (174) (4) of the Criminal Procedure

and Evidence Act has undergone many amendments.  The leading case in this matter is that of Rex v Mthethwa and Others 1970 -1976 SLR 364 at 365-366 (HC) where His Lordship Nathan CJ stated the following:

 

“Section 174 (4) of the Criminal Procedure and Evidence Act 67 of 1938 as amended by Section 24 of Proclamation 49 of 1964 provides, ‘if at the close of the case for the prosecution the Court considers that a case is not made out against the accused person sufficiently to require him to make a defence is shall dismiss the case and forthwith acquit him’.

 

The original section (then section 172 (3) of Chapter 35 of the Laws of Swaziland) provided, ‘if, at the close of the case for the prosecution, the court considers that there is evidence that the accused committed the offence charged in the indictment or summons, or any other offence of which he might be convicted thereon, it may then return a verdict of not guilty’.

 

The original section is substantially in line with section 157 (3) of the South African Criminal Procedure Act 56 of 1955.

 

It is to be noted that the criterion under the present section 174 (4) is not whether the court considers there is no evidence that the accused committed the offence charged but whether the court considers that a sufficient case has not been made out against the accused to require him to make a defence.

 

The test under the South African and original Swaziland section has long been interpreted as being whether at the close of the Crown case there is evidence upon which a reasonable man might convict, not should convict…. The amended Swaziland section confers a greater discretion on the court and that even though there may be some evidence on which a reasonable man might convict, if the court considers that in all the circumstances a sufficient case has not been made out, it shall dismiss the case and acquit the accused.  The test under the present Swaziland section may accordingly be formulated s follows: granted that there is some evidence against the accused, should the court convict on the evidence as it stands?  Unless this question can be answered in the alternative, the court must dismiss the case and acquit the accused.”

 

[168]           In  1991  the  legislature again amended section 174 (4)

reverting to the original position prior to the amendment in 1964.  The court is called upon to determine whether there is evidence adduced by the Crown that the accused committed the offence charged.  The test is whether there is evidence upon which a reasonable man might convict; it is an objective test.

 

[169]   In   Count 1   the   accused   is   charged   with   the 

contravention of section 5 (1) read with section 5 (2) (a) (ii) of the Sedition and Subversive Activities Act 46 of 1938 as amended.  Section 5 (1) provides that:

 

“A person who does or attempts to do or makes any preparation to do an act with a subversive intention shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding twenty years without an option of a fine.”

 

[170]   Section 5 (2) (a) (ii) provides the following:

 

“For the purposes of this section, “Subversive” means supporting, propagating or advocating any act or thing prejudicial to the security of Swaziland.”

 

[171]           A seditious intention is defined in section 3 (1) of the Act as follows:

 

                “(1)  A seditious intention is an intention to-

  1. bring into hatred or contempt or to excite

disaffection against the person of His Majesty the King, His Heirs or successors, or the government of Swaziland as by Law established; or

 

  1. excite His Majesty’s subjects or inhabitants of

Swaziland to attempt to procure the alteration, otherwise than by lawful means, of any matter in Swaziland as by law established; or

 

  1. bring into hatred or contempt or to excite dissatisfaction against the administration of justice in Swaziland; or

 

  1. raise discontent or disaffection amongst His Majesty’s subjects or the inhabitants of Swaziland; or

 

  1. Promite feelings of ill-will and hostility between different classes of the population of Swaziland.

 

  1. Notwithstanding subsection (1) an act, speech or publication shall not be seditious by reason only that it intends to-

 

  1. Show that His Majesty has been misled or mistaken in any of His measures; or

 

  1. Point out errors or defects in the government or constitution of Swaziland as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or
  2. Persuade His Majesty’s subjects or the inhabitants of Swaziland to attempt to procure by lawful means the alteration of any matter in Swaziland as by law established; or

 

  1. Point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill-will and enmity between different classes of the population of Swaziland.

 

  1. In determining whether the intention with which any act was done, any words were spoken, or any document was published or was not seditious, every person shall be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself.”

 

[172]   From this  definition it  is clear that the intent required

is the intent to defy or subvert the authority of the state.  The test is subjective, and, the intent must go to each element of the crime:

 

  • Principles of Criminal Law, Jonathan Burchell et al, third edition,  Jut and Company, 2005 at pages 935-937

 

[173]   The  evidence  adduced  by  the  Crown  show  that  the

accused with a subversive intent together with is three companions prepared strategically for their mission to subvert the authority of the state and damage the bridge at Lozitha.  They secured explosives and travelled from South Africa to Swaziland, parked their car under the bridge and began assembling the explosive devices with a view to placing the bomb under the bridge.  The evidence compiled by the Cyber Crime Unit extracted from the cellphones and sim-cards show that they first secured the mining explosives, secured money for the mission, attended to the traditional doctor or Sangoma for purification and strengthening; their objects as enshrined in the “Top Secret Document” being the formation of a “strong red army” to assist in the revolution, to prepare a strong propaganda machinery and to create a local underground network.

 

[174]   At  the  bridge,  Jack  Govender  assembled  the  bomb

whilst “MJ” was with him, Msholozi was above the bridge with the red igniter cord whilst the accused was about ten metres away from the car in the same mission.  Further evidence by Supt. Masango was that the motor vehicle was like a store-room because it was carrying explosive material enough to assemble thirty bombs.  There is further evidence that the red igniter cord carried by Msholozi is unreeled from the bomb to a safe distance; and, that if the Timer-Switch fails to activate the bomb, then the “igniter red cord” carried by Msholozi activates the explosion automatically as a secondary switch.

 

[175]   In addition, the  accused  in  his Letter of Apology made

an admission that they wanted to bomb the bridge and further “renounced violence and terrorism in all its forms”; he further regretted his involvement in the bomb blast which caused a lot of pain and sense of insecurity for the people of Swaziland and disturbed the spirit of His Majesty the King”.

 

[176]            This  is  not  a  case  in  which  the  accused   and  his

colleagues merely criticized the State for its exercise of State Power in accordance with the guarantees of the Bill of Rights and in particular the Freedom of Expression.  In the case of Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at page 609 the Court held that, “the success of our constitutional venture depends upon robust criticism of the exercise of power”.  This suggests that nothing short of a direct and successful call for violence or disorder could be considered sedition under the present era of constitutional dispensation.  Section 3 (2) of the Act does recognize the right of the citizens of Swaziland to criticize the government for their exercise of State power of as well as to advocate for the lawful and peaceful change to the political system or the lawful amendment to any existing law.  The totality of the Crown’s evidence shows that the accused committed the offence of Sedition as reflected in section 5 (1) read with section 5 (2) (a) (ii) of the Sedition and Subversive Activities Act 46 of 1938 as amended.

 

 

 

[177]  The accused is also charged with contravening section 9

as read with section 8 of the Explosives Act 4 of 1961 in  that on the 20th September 2008 at Lozitha area he was found in possession of explosives; and, that he was not a holder of a licence, permit or certificate to possess explosives.  Section 8 provides:

 

“(1)  any person causing an explosion whereby life or property is endangered shall be guilty of an offence and liable on conviction to the following penalties:

 

  1. a fine of two thousand emalangeni or imprisonment of two years or imprisonment without the option of a fine if the explosion is negligently caused and life or property is endangered:

 

  1. a fine of four thousand emalangeni or imprisonment of four years if the explosion is negligently caused and death of destruction of property results therefrom; and

 

  1. imprisonment without the option of a fine for a period not exceeding fifteen years if the act or omission causing danger to life or property is willful but death or destruction of property does not result therefrom….

 

 

9.      Any person who is found to have in his possession or under his control any explosive under such circumstances as to give rise to a reasonable suspicion that he intended to use such explosive for the purpose of injuring any person or damaging any property shall, unless he satisfies the court that he had no such intention, be guilty to an offence and liable on conviction to the penalties in section 8 (1) (c).”

 

[178]   The  term  “Possession”  refers  to  the  custody  or   the

physical control of the explosive for his own benefit or an intention to keep the explosives for the benefit of another person:

 

  • S v Mnguni 1962 (3) SA 662 (N)at 664-5
  • S v Nunu 1968 (2) PH; H 330 (E)
  • S v Essop 1967 (4) SA 625 (T) at 627
  • R v Ndema 1954 (4) SA 25 (E) at 26-7

 

[179]           The  accused   was   indeed   in   physical   control  and

custody of the explosives.  The evidence adduced by the Crown show that the accused and his companions had secured the explosives, loaded them to the motor vehicle and transported them to the scene with the intention of bombing the bridge; the accused was in possession of the explosives without a licence or permit.

 

[180]           The accused is also charged with counts three and four

relating to the murder of “MJ” and Jack Govender.  It is apparent that the death of the deceased is an unlawful act.  What remains is the existence of mens rea.  It is further apparent that Dolus Directus does not exist because the accused did not mean to kill the deceased; it was not his aim and objective.  However, mens rea in the form of “dolus eventualis” does exist; the accused meant to bomb and destroy the bridge but the bomb explosion killed the deceased.  Even though the accused did not mean to kill the deceased; however, he intended their death because he foresaw it as a possible result of setting up the bomb.

 

[181]    In the case of R v Peverett 1940 AD 213 the accused

was charged with the attempted murder of the deceased even though the two had a “suicide pact”; the accused had connected a tube to the exhaust pipe of a motor vehicle and they sat in the car and inhaled the monoxide fumes.  They became unconscious but they were rescued before they expired.  The court found that he had mens rea to kill the deceased on the basis of “dolus eventualis”.

 

 

 

[182]    Cohen ACJ in the case of Beale v R 1979 SLR 35 at 37

(CA) defined “dolus eventualis or legal intention as follows:

 

“Legal intention in respect of a consequence consists of foresight on the part of the accused that the consequence may possibly occur coupled with reckless as to whether it does or not.  The requirements according to the learned authors are (i) subjective foresight of (ii) possibility and (iii) recklessness…. The subjective test … takes account only of the state of mind of the accused, the issue being whether the accused himself foresaw the consequences of his act….  If the accused in fact foresaw the possibility of the consequences in question and was reckless as to whether or not they did result, he intended them in the legal sense.”

 

[183]   This is a clear case of “aberratio ictus”, that is the “going

astray of the blow”, in which the consequences turn out to be different from those that the accused expected.  The sole question is whether the accused had the actual intention or dolus eventualis in respect of the eventual result which was the subject matter of the charge.

 

183.1       In the case of S v. Nkombani and Another 1963 (4) SA 877 (A), the appellants had conspired with the deceased to rob a petrol filling station; they were armed with two pistols with ammunition.  During the struggle which ensued, the deceased was shot by the First Appellant who was aiming the gun at the petrol attendant; but it missed him and hit the deceased.  The court in dismissing the appeal held that the appellants foresaw the possibility of the death of the deceased and was reckless as to whether his death resulted or not.  His Lordship Justice Holmes emphasized that the liability of the appellants was based upon their own mens rea, the test being whether they foresaw the possibility that their act would have fatal consequences and that they were reckless whether death results.

 

183.2   Similarly,  in  the  case  of  Rex v. Kuzwayo 1949

(3) SA 761 (AD) at 771,Van Den Heever JA stated as follows:

 

“…a person who commits an act by which he intends to kill A but kills B is guilty of Murder for the accused intended to kill; he did kill although not the person he intended.”

 

 

 

 

183.3   In the case of Rex v. Khoza 1949 (4) SA 555 (AD)

        At 557-558 Centlivres JA stated the law as follows:

 

“It is trite law that a person who gives a mandate to someone else to murder a third party is guilty of murder if the third party is killed as a result of the instruction he gave….

 

It is also clear that where a person commits an act intending to murder one person and kills another he is guilty of murdering that other person….  There is, however, a dearth of authority on the criminal liability of a person who gives another person a mandate to kill a third person where, as a result of carrying out the instructions given, a person other than the third person is killed.  On principle it seems to me that if the mandate is performed in every particular, the mandator would be guilty of murder even though the person killed was not the person be intended should be killed.”

 

[184]           In conclusion the test of section 174 (4) of the Criminal

Procedure and Evidence Act is whether at the close of the crown case there is evidence upon which a reasonable man might convict.  In arriving at the proper decision, the court considers the totality of the evidence adduced by the crown to ascertain whether there is evidence linking the accused to the commission of the offence and upon which a reasonable man might convict; the test is objective.   On the basis of the evidence before this court such evidence does exist in respect of all the counts charged. The application made by the accused in terms of Section 174 (4) of the Criminal Procedure and Evidence Act is hereby dismissed.  

 

 

 



 

M.C.B. MAPHALALA

JUDGE OF THE HIGH COURT