Court name
High Court of eSwatini
Case number
396 of 2007

R v Dlamini (396 of 2007) [2011] SZHC 29 (15 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 29
Coram
Hlophe, J

 

IN THE HIGH COURT OF SWAZILAND

 

 

Held at Mbabane                             Criminal Case No: 396/2007

 

 

In the matter between:

 

 

 

REX

 

 

Versus

 

 

ELVIS MANDLENKOSI DLAMINI

 

 

 

Coram                                                      Hlophe J.

For the Crown                                          Mr. A. Makhanya

For the Defendant                                    Mr. Z. Magagula

 

 

 

 

JUDGMENT

 

 

 

HLOPHE J

[1]    The accused faces charges of murder it being alleged by the Crown that on or about the 2nd November 2007 and at or near Makholweni area near Fairview, in the Manzini Region, he the said accused, did unlawfully and intentionally kill Cebile Zwane and thereby committed the crime of murder.

 

[2]    Throughout the proceedings, the Crown was represented by Crown Counsel, Mr. A. Makhanya, whilst the accused was represented by Mr. Z. W. Magagula.

 

[3]    When the charges were read to the accused, he pleaded not guilty to murder but tendered a plea of guilty to culpable homicide.  The Crown, which is litis dominis in criminal proceedings, did not accept the plea of guilty to culpable homicide as tendered by the accused but insisted on the charge of murder.  Consequently, the matter proceeded as a murder trial, where a plea of not guilty was entered.

 

[4]    In an attempt to prove its case, in discharge of its onus in law where it is required to prove its case beyond a reasonable doubt, the Crown led four Crown witnesses, who comprised two of those who were relatives of the deceased and has arrived at the crimes scene; the Investigating Officer and the owner of the homestead, who was a landlord to both the accused an the deceased and at whose home the crime occurred.

 

[5]    It is common cause that the accused and the deceased, although not married to each other, stayed together as husband and wife, at the homestead of PW3, Rose Mdziniso, at a place called Emakholweni, at Fairview North, Manzini.  From their relationship was born one child a baby boy at the time of the death of the deceased.  It is further common cause that the accused was, unlike the deceased, not employed at the time of deceased’s death.  The post-mortem report was entered in by consent and its contents are discussed in detail later on in this Judgment.

 

[6]    The case put forth by the Crown witnesses is that whilst PW1 Ncamsile Masango was seated in front of her rented room or flat, situate at a neighbouring home to that whose the accused and deceased rented theirs, and situate in such a manner that she says she could, see all that was happening in the said homestead, she saw the accused chasing the deceased who rant towards PW3, the Landlady, who however pushed her back into the accused’s arms.  The accused, it is alleged, pulled her into their room even though she (deceased) was resisting.

 

[7]    After sometime of their entrance therein, and realizing that they had been arguing in a manner that suggested they were having a dispute, she (PW1) decided to go to another nearby homestead (which she said was a 10 minutes walk from where she, together with the deceased and accused, stayed, to fetch the deceased’s sister (PW2) by the name of Sisana Zwane so that they could both go to the deceased’s room and possibly to observe what was happening therein.

 

[8]    Upon arrival at the said room PW2, Sisana Zwane, shouted the name of the deceased after knocking and alleged that she was there to claim or collect the T-shirt she had asked her deceased sister to bring her from town of course the used the stay of T-shirt as a guise for their true intention.  Both PW1 and PW2 corroborate each other that at that time the deceased said they should ask the accused to open for them.  According to PW1, the deceased for them. According to PW1, the deceased told them that she was now saying her last words.  She was talking in a very feint says the deceased said she wanted to say her last words.  They are however, both agreed that she was talking in a how fading voice.  It was these words of the deceased coupled with the manner in which they were said – apparently low and sombre – that PW2 says caused her to brake down and cry.

 

[9]    Seeing that the door was not being opened, they said that they decided to go and report to the Police who were a distance away at what is called Fairview North Police post.  They could only get one Police Officer who was directed to assist them.  It was in the company of this Police Officer that they knocked, including the Police Officer, introducing himself as such.  There was no response including the door not being opened.  PW1 says it was at this stage that she overheard, as she walked nearer to the room the two were in, the deceased shouting that she was being throttled by the accused.  PW2 claims not to have heard that apparently because, at the time PW1 approached the room, she was busy on a call where she says she called her relatives about what was happening or had happed to the deceased.

 

[10]  These two witnesses are ad idem that the Police Officer they had been given to assist them, and upon failure to successfully persuade the accused to open the door, despite his introducing himself, to him, managed to secure a reinforcement.

 

[11]  It was with the help of the said reinforcement that the door was broken down resulting in the accused, who was found in possession of a cloth with which he was apparently trying to wipe off the floor blood and human waste which was splashed on the floor, taking the key and opening the burglar door so that the witnesses aforesaid together with the Police could go in.

 

[12]  I observe that the existence of the human waste goes to confirm the evidence of both PW1 and PW2, who had earlier stated in their individual testimonies that at the time they had first gone to the deceased’s and accused’s flat or room, they had heard the deceased saying that she was pressed and needed to relieve herself.

 

[13]  The deceased was eventually picked up and taken to hospital.  According to PW1 and PW2, the accused boarded the same car where the deceased was and were driven to the Fairview North Police Post before the deceased was driven to the Raleigh Fitkin Memorial Hospital.

 

[14]  I can only comment that such may not have been the best thing to do in the circumstances, particularly given that the deceased had not at that time been certified dead.  We do not know exactly when she died so, even though indicators are that she was already still and motionless at the time she was picked up and loaded into the car.  I say this bearing in mind the need to try as much as possible to save life before all the other administrative requirements are met which I think should be a priority.

 

[15]  PW3, denied ever pushing the deceased back to the arms of the accused when she ran to her but confirmed the misunderstanding between the two, who she says she advised to go sit down and resolve their disputes quietly.  She otherwise corroborated the evidence of PW1 and PW2 vis-à-vis how entry was gained into the flat or room shared by both the accused and the deceased and on the status of the deceased and the condition of the room when the entry was eventually gained.

 

[16]  As indicated above, the post-mortem report was entered by consent.  There was also no dispute and the identity of the deceased such that the witness to do so was released.  The post-mortem report depicted the following ante-mortem injuries as having been noted on the deceased’s body:-

 

  1. Lacerated wounds of 4 x 1 cms and 4 x 3 cms, present on the right side of the forehead.
  2. Left side of the face swollen and the bones of the left cheek fractured.
  3. Contusions of 2 x 1 cms, and 2 x 1. 5cms, present on the front and middle portion of the right leg.
  4. Contusions of 3 x 1 cms, 2 x 1.5 cms and 2 x 1 cms present on the front and middle portion of the left leg.
  5. On the skull the frontal bone was fractured.
  6. On the abdomen, the right lobe of the liver had ruptured whilst the mesenteric blood vessels had ruptured.

 

[17]  By way of comment, I must say that this Court remains in the dark how some of these injuries were effected on the deceased by the accused.  This suggests he is not revealing all because the hollow meted kitchen seat’s leg said to hve been used and displayed in Court as the item used is unlikely to have caused the serious laceration observed on the forehead together with fracture of the skull referred to above.  This metal kitchen seat leg which is hollow inside was displayed as the one handed over to the Police by the accused after the caution in terms of the Judge’s Rules.

 

[18]  The Crown witnesses were cross examined at length by the accused’s Attorney.  The case put to the Crown witnesses can be summoned up as follows:-

 

  1. The accused put it to some of the Crown witnesses that on the fateful day he had gone to “fetch” home his girl friend from work, when he saw her alighting from a white Isuzu motor vehicle which he said belonged to her male employer with whom he had a love relationship.

 

  1. That on a given date prior to this the deceased had received a message in the evening saying or words to that effect, “you have pleased me well my Mangweni” written in Siswati whose ipsisima verba was “ungijabulise kamnandzi Mangweni wami.”

 

  1. He denied that at the time PW1and PW2 came to fetch PW2’s T-shirt from her late sister, the deceased ever said they should ask him to open or that she release herself or even that she was saying her last words (or wanted to say her last words as alleged).

 

  1. He pointed a picture that whilst they had quarrelled resulting in him assaulting her for her alleged infidelities, she had maintained that he should not open the door because she did not want him to be arrested.  He also says she said she wanted him to forgive her.

 

  1. He put it to the said witnesses or some of them that whilst being driven to the Police Station together with the deceased who hitherto had been described by all the four Crown witnesses who saw her, as motionless and speechless, had asked him to forgive her for her having cheated on him and clarified that she did not want him to be arrested.

 

[19]  The Crown witnesses did not accept the foregoing.  In fact as concerns her alleged insistence she did not want him to be arrested, they maintained what they overheard or what they heard her say.

 

[20]  At the close of the Crown case, the accused was called to his defence at which stage he reiterated the above stated aspects of his case.  He however for the first time state the following which he had not put to any of the witnesses prior:-

 

  • That his girlfriend was not faithful to him and that on a certain day she had informed him that she was going to her parental home where she had been asked to come.  He said he was to follow her that night by means of taxi only to find her not there.  He was given a room in which to sleep by PW2 who also took care of him the next morning by giving him water to bath.  His girlfriend was only to arrive that morning without talking to him until he left.  In fact he says he had been told by boyfriend who was a soldier.

 

Rather surprisingly this had not been put to PW2 for her to react and no reason has been given why this was so.

 

  • That his girlfriend had told him that on a certain day she had been sent by her male employer to take to his child to the St. Theresa’s clinic in Manzini.  Whilst there, her employer had arrived with a boy who he told to look after the child whilst taking her to some nearby flats in Manzini where they had sexual intercourse.

 

[21]  Again rather surprisingly he had not put this to the Crown witnesses for them to react thereto.

 

[22]  In fact when a suggestion of this male employer was made, she witnesses had disputed or denied the existence of such as a fact as they said her employer was a female by the name of Nomsa who worked with the mother of some other child whose name they mentioned.

 

[23]  Otherwise the accused informed this Court that on the fateful day he had gone to his girlfriend’s place of employment here in the afternoon so that he could escort her home.  Whilst waiting for her there, he saw her alighting from a white Isuzu car.  This he says caused the misunderstanding that resulted in the unfortunate incident where the deceased was assaulted resulting in her death.

 

[24]  From the foregoing facts I have home the following conclusions on the fact which signify my findings of fact.

 

  • The deceased died as a result of repeated acts of assault inflicted on her by the accused person.

 

  • I accept the evidence of PW1 and PW2 that repeated attempts by them to have the door opened so that they could save the deceased were unsuccessful because it was the accused who refused to open for them.  It is unrealistic that with the life threatening assaults she had suffered, the deceased could have said what is attributed to her by the accused, that is, that she did not want him to be arrested but wanted his forgiveness.  It is not normal that a person at the verge of death would be preoccupied by the accused who is bringing about her death not being arrested.

 

[25]  It is for this reason I accept the evidence of PW1 and PW2 that the deceased told them she wanted to say her last words and that the slight disparity on the exact words she uttered is not material and is a result of the apparent shock and pain that engulfed them at the time they discovered what was going on in the said room.

 

[26]  I therefore accept that the deceased told them she wanted to say her last words and that she wanted to relieve herself.  This is confirmed by what was eventually observed which comprises the fractured skull, the lacerations on the forehead and the ruptured liver right lobe among the other incidents of exhodural and intracesebral haemoudge observed by the Pathologist as expressed in his report.  On her wanting to relieve herself such is confirmed by the human waste found and thereat.

 

[27]  I also find as a fact that the deceased was found motionless and speechless at the time entry was gained into the room.  I therefore reject the accused person’s allegation that at some stage thereafter the deceased said that she needed his forgiveness.  I also reject his version that the deceased had a love relationship with her employer as I accept that her employer was a female.  This I reject because I have accepted evidence of PW1 and PW2.

 

[28]  I note as well that some aspects of the accused person’s case were not put to the Crown’s witnesses and that such constituted an after though which necessitated that same be rejected.  See in this regard The King v Dominic Mngomezulu and 9 Others Criminal Case No. 94/90.

 

[29]  Having rejected the version of the accused, I must say that I do believe that rightly or wrongly the accused believed that the deceased was unfaithful to him. It is possible he saw her alighting from the white Isuzu car and concluded or suspected the driver thereof to be her lover.

 

[30]  Can it be said that the accused is guilty of murder in the circumstances or culpable homicide which is in line with his plea anyway?  It was stated in Thandi Tiki Sihlongonyane v Rex Appeal Case No. 40/97, that murder entails the “unlawful killing of a human being with intent to kill.  Culpable homicide on the other side is defined in the same case as the “unlawful killing of a human being either (a) negligently (See S v Alexander 1982 (4) SA 701 (T) at 705 G-H or (b) Intentionally in circumstances of Partial excuse (See Schreiner F in Annah Lokudzinga Mathenjwa v Rex 1970 – 76 SR 25 at 26 – A – E”) from the facts culpable homicide as a result of Partial Excuse.

 

[31]  Intention can either be dolus directus (direct intention) or dolus eventualis (legal intention).  From the facts of the matter it is reasonable doubt, which should accrue to the accused’s benefit that he did not have intention in the form of dolus directus but in my view he cannot escape a conclusion that the form of intention he had was dolus eventualis.  I say this because there is no doubt in my mind that the accused foresaw the possibility of the death of the deceased but was reckless as to whether it occurred or not.

 

[32]  In fact the evidence indicate that after having assaulted the deceased in the apparently life threatening manner he had, the accused went on to lock the doors so that she could not even receive medical help.  I say this bearing in mind that several attempts for him, to open the door were made to no avail including the nature of the injuries inflicted.  Whilst I have found that he did throttle her, which would have constituted direct intention the Pathologist did not find the death to have come about as a result of such throttling.

 

[33]  At page 5 of the Thandi Tiki Sihlongonyane v Rex Case (supra), the then Court of Appeal had the following to say:-

 

“In the case of dolus eventualis it is necessary to establish that the accused actually foresaw the possibility that his conduct might cause death.  That can be proved directly or by inference; i.e. if it can be said from all the circumstances that the accused must have known that his conduct could cause death, it can be inferred that he actually foresaw it”

 

[34]  The question is, can it be said from all the circumstances that the accused must have known that his conduct could cause death of the deceased.

 

[35]  I do not think that from the circumstances of the matter as stated above one can realistically come up with a different conclusion than that the accused must have known that his conduct could cause the deceased’s death.

 

[36]  Consequently, and that being the case, I have come to the

 

 

 

 

conclusion that the accused person is guilty of the murder of Cebsile Zwane and I convict of same.

 

Dated at Mbabane on this 15th day of June 2011.

 

 

N. J. Hlophe

JUDGE