Court name
High Court of eSwatini
Case number
41 of 2010

R v Sikhondze (41 of 2010) [2011] SZHC 31 (07 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 31
Coram
Hlophe, J

IN THE HIGH COURT OF SWAZILAND

 

 

Held at Mbabane                             Criminal Case No: 41/2010

 

In the matter between:

 

 

 

REX

 

 

Versus

 

 

MPHIKELELI SIKHONDZE

 

 

 

Coram                                                      Hlophe J.

For the Crown                                          Mr. M. Mathunjwa

For the Accused                                       In person

 

 

 

 

JUDGMENT

 

 

 

 

HLOPHE J

[1]    The accused person was charged with three counts, comprising of attempted murder, contravention of Section 11 as read with Section 11 (8) (a) of theArms and Ammunition Act of 1964 as amended byAct 60/1988 as well as the contravention of Section 24 (3) of the Criminal Procedure and Evidence Act of 1938.

 

[2]    The particulars of the charges faced by the accused are as follows:-

 

Count One:

It was alleged that the accused was guilty of attempted murder in that on or about the 2nd December 2009, the accused unlawfully and intentionally shot at Nkosingiphile Mavimbela with the intention of killing him.

 

 

Count Two:

The accused person was allegedly guilty of contravening Section 11 as read with Section 11 (8) (a) of the Arms and Ammunitions Act 1964 as amended by Act 60/1988 in that on or about the 2nd December 2009, and at or near Dvokolwako area, the said accused did unlawfully and intentionally possess a star 9mm pistol with four live rounds of ammunition without a licence.

 

Count Three:

 

The accused is alleged to have contravened Section 24 (3) of theCriminal Procedure and Evidence Act 67 of 1938, in that on or about the 2nd December 2009, at or near Dvokolwako area, the accused unlawfully and intentionally furnished a Police Officer with a false name of being Mandla Mavuso and thereby contravened the said Act.

 

[3]    I must state that the charges as they stand on the indictment are fraught with grammatical errors which I have tried as much as I possibly could to avoid reciting hereinabove.  I must also indicate that during the pleading stage, the charges were put to the accused in the corrected form.  This I clarify in an attempt to indicate that no prejudice was suffered by the accused as a result of the grammatical inexactitude noted on the charges.

 

[4]    At the commencement of the trial, the accused person, who indicated that he was out of custody having been released on bail, informed the Court that he was going to conduct his own defence.  Mr. Mathunjwa represented the Crown throughout the proceedings.

 

[5]    The accused person pleaded not guilty to all the charges levelled against him which necessitated that the Crown proves its case beyond a reasonable doubt as enjoined to do so in law.

 

[6]    In an endeavour to discharge the said onus, the Crown led the evidence of five witnesses: two of whom were Police Officers who were present at the scene and at the time when the incidents forming the basis of counts one and two occurred whilst the other Police Officer was the Investigating Officer whose evidence covered all the counts.  The fourth Police Officer to give evidence was the ballistics expert introduced as such who examined the firearm and the ammunition allegedly recovered from the accused and from the scene respectively and which formed the basis of counts one and two.

 

[7]    The evidence led by the Crown in summary form established that the third witness (PW3) one Musa Sithole, who was employed at a Primary School known as Black Mbuluzi Methodist as a security guard or night watchman, and whilst at work observed some two people at night, who he says were carrying bags, one of which had a colour resembling a “camouflage” or “army colour”, standing outside the office of the school under the lights.  This, he said, happened on the 2nd December 2009.  His conclusion was that the said two men were trying to commit a house breaking and theft at the office which had become common at the school.

 

[8]    In reaction thereto, he went to the house of a teacher nearby.  This teacher was with her husband therein, and he narrated to them his observations about the two people.  It was then that the Mliba Police were telephonically notified of such development as a result of which they responded through sending two Police Officers.  These were PW1 and PW2 who were 5392 Constable Nkosingiphile Mavimbela and 3168 Constable Washington Mamba, respectively.  Both Officers informed the Court that on the date concerned they received a telephone message between 2200 hours and 2300 hours informing them about a house breaking allegedly taking place at the abovementioned school.  As a result of which they drove to the school to attend to the incident.

 

[9]    As they drove there, they were in constant contact with their informants at the school.  Constable Mamba was armed with a service rifle.  Their informants later informed them that the suspects had since left the scene having taken the road their car was expected to approach by.  They were then advised to switch off their lights and park their car a distance of about 200 metres or so from the school which they did and approached the school on feet.

 

[10]  When they were about 100 metres or so from the school, they came across two men approaching them.  When they were close to each other, they introduced themselves as Police Officers and ordered them to raise their hands.  PW1, Constable Mavimbela got hold of the one near him.  As the other one took to his heels, Constable Mamba is said to have fired a warning shot at the fleeing suspect who did not heed the shot.  The fleeing suspect was subsequently shot at by Constable Mamba even though he was unsure he had hit him.

 

[11]  It was agreed between Constable Mamba and Constable Mavimbela that the latter remains with the suspect he had managed to catch at that place whilst Constable Mamba left to meet their informants at the school.

 

[12]  It was after Constable Mamba had left for the said purpose, that Constable Mavimbela informed the Court he heard a gunshot and heard a bullet whizzing past his head.  According to Constable Mavimbela, he and the other suspect had to take cover which they managed to do.  The captured suspect had a bag with him which contained inter alia a grey leather jacket; one nail hammer; one tyre lever (iron bar), one white glove and two handkerchiefs.  The bullet that whizzed past his head, came from the direction taken by the suspect who ran away.

 

[13]  Before Constable Mavimbela and Constable Mamba could depart from the scene with the captured suspect, a voice shouted from the direction to which the suspect who fled had gone, saying that he had been shot and needed to be taken to hospital as he could die.  By then the two Police Officers had been joined by other Police Officers who were driving together with 2602 Inspector Mayisa, who became the Investigating Officer in the matter.  Following, their failure to find the person who alleged that he had been shot at, they returned to the vehicle where the suspect, later identified as Tso Mavuso, was made to board one of the police vehicles from which he escaped after its faulty door could not lock.

 

[14]  The police had all left the scene when they were once again called via triple nine (999) police emergency line and told to attend to a person at the place of the incident, who claimed to have been shot at  by the police and needed to be rushed to hospital as he could die.

 

[15]  2602 Detective Inspector Mayisa informed the Court that on their return they managed to find the accused who handed himself over to the police.  According to this witness, the accused after being cautioned in terms of the Judges Rules also led them to a nearby place where he handed over to the police an army green bag which contained a bosch grinder, a 5 metre electric cable, cutting disks (steel) and eye googles.  The accused is further said by this witness to have also freely pointed out to them a star 9 mm pistol loaded with four live rounds of ammunition following the same caution referred to herein above.  The firearm concerned bore serial number 44008475.

 

[16]  The Investigating Officer further told the Court that when asked who he was, the accused gave them the name of Mandla Mavuso as his name after which he was taken to hospital where he gave his attendants the same name.  This was at Dvokolwako Health Centre from where he was transferred to the Raleigh Fitkin Memorial Hospital in Manzini where he was treated.  According to the Investigating Officer, it was whilst the accused was at this hospital, that his finger prints were taken and sent to the Criminal Bureau from which it was discovered that the said finger prints matched those of one Mphikeleli Sikhondze, who it turned out was the true identity of the accused.

 

[17]  This witness further stated that on the day following that of the accused’s arrest, they went to the scene from where they found a cartridge which was taken for Ballistics testing together with the firearm and live rounds referred to above.  The firearm and live rounds were produced in Court together with the cartridge.  The firearm bore Serial No. 44008475.

 

[18]  The Crown also led the evidence of the Ballistics expert who introduced himself as 3345 Sergeant Vincent Marvin Mbingo.  This witness informed the Court on how he received certain exhibits from the Mliba Police, which comprised a firearm, fully described as a star pistol with Serial No. 44008475:  Four live rounds of ammunition as well as a fired cartridge.

 

[19]  After conducting his tests he managed to establish that the firearm was serviceable as he fired out a live round from it as well as established that the fired cartridge brought in for analysis together with the firearm and the four live rounds, had been fired from the same firearm mentioned above.  He ascertained this factor from the fact that each firearm has got a special individualized marking left on the back of a fired cartridge.  This mark he managed to pick on both cartridges and it matched the one he picked from the firearm itself with the help of a microscope.

 

[20]  During his cross-examination of the Crown witnesses the accused denied that he was one of the people who were seen by Musa Sithole outside the office.  He said whilst he is the one who met the police whilst in the company of one Tso Mavuso, they were not from the school nor did they ever attempt to commit any housebreaking at the school aforesaid.

 

[21]  He said that they were from a certain nearby bar where they had been entertaining themselves.  He put it to the Crown witnesses, particularly PW1 and PW2, that they first met them along the way and without saying anything they were shot at by the one who was carrying a firearm whose length he estimated with his hand as having been beyond a metre in length.  He alleged that he was shot at on the stomach whilst facing the police and at very close range and not as he ran away.  He also denied having fired at the Police Officer who captured his companion.  Tso Mavuso nor at anyone.  He in fact even denied having pointed out the firearm to the police.

 

[22]  He further denied having called the police earlier than when he was taken by them to the Dvokolwako Health Centre and eventually the RFM Hospital in Manzini.

 

[23]  He disassociated himself from the bag claiming that whereas same was found next to him, it must have been left there by the people from the nearby homesteads.  He further also denied having given the police the name of Mandla Mavuso but suggested he only heard of it for the first time from the Doctor at the Raleigh Fitkin Memorial Hospital.

 

[24]  The Crown witnesses had however maintained their case as stated above, after which the accused was then called upon to choose how to go forward with the matter after all his rights and choices such as not saying anything, giving evidence without taking an oath as well as taking the oath and giving his evidence thereafter and being cross-examined which is what he chose.

 

[25]  He by and large reiterated what he had put to the witnesses as stated above.  Although he told the Court that he had been time and again meeting the suspect who fled from the police, he was not able to call this person to give testimony on his alleged shooting of the police.  He also stated that the police did not find out who he was through the matching of finger prints by experts as alleged but that the Investigating Officer had established all the information about him from his cellular phone which he said the officer had taken and called numbers therefrom to establish who he was or that he was from an area called Mkhalamfene near Big Bend.

 

[26]  From the foregoing, it is common cause that the accused was met by the two policemen about 100 metres or so from the school.  It is also common cause that this was along the same route that had been taken by the people who were seen at the school attempting to commit house breaking.

 

[27]  As concerns liability for the first count, that of attempted murder, there is the evidence of PW1, 5392 Constable Nkosingiphile Mavimbela who told the Court that a firearm was fired from the direction taken by the accused when he fled from the police, resulting in the bullet whizzing past his head.  Musa Sithole, PW3, told the Court that from where he was, he could tell there was an exchange of fire or gunshots.  Furthermore, according to 2602 Inspector Mayisa, the accused person led them to a firearm loaded with four rounds of ammunition which was eventually submitted for forensics.   There was also the empty cartridge, which the Investigating Officer said was obtained from the scene the next day.  This cartridge was shown to have been fired from the same firearm allegedly pointed out by the accused.  This aspect of the evidence was not challenged at all.

 

[28]  From the foregoing, I have no hesitation to find that PW1 was shot at with the firearm eventually pointed out by the accused from the direction taken by the accused when he ran away, a factor confirmed as well by Musa Sithole, the security guard who said that there was an exchange of gunshots, such gunshots would not have come from nowhere and without reason.  The accused reached to give a sound explanation on why the firearm he had pointed out had fired a shot at the scene including who such a shot was directed at.

 

[29]  In fact, I have no hesitation that the only reasonable inference consistent with all the set of facts is that the gunshot was fired by, the accused, who I find did so out of vengeance.

 

[30]  In R vs Blom 1939 AD 188, it was stated that if an inference has to be drawn from a set of facts, such an inference has to be the only reasonable one to be drawn therefrom.  Commenting on the same principle, Lansdown and Campbell in their book The South African Criminal Law and Procedure Volume 5, 1982 Juta, at page 911 had the following to say:-

 

“If guilt is sought to be proved by circumstantial evidence, there must be no other inference which could reasonably be drawn, as the existence of any other reasonable inference means that there must be a reasonable doubt as to the accused’s guilt.”

 

I therefore cannot conceive of any other reasonable inference than that the gunshot which resulted in bullet that whizzed passed his head according to PW1, was fired by the accused who had taken that direction from and had a reason to fire at the scene.

 

[31]  The foregoing is however not the only reason why I have to conclude that the gunshot was fired by the accused.  There is also the evidence of the pointing out of the firearm by the accused to the Investigating Officer which he was shown to have freely and voluntarily done after having been duly cautioned in terms of the Judges Rules to the effect that the accused was not obliged to say or to point out anything and that if that was such pointing out, the item so pointed out could be used in evidence against him.

 

[32]  The Court was told that the accused pointed out the firearm freely and voluntarily to the Investigating Officer.  In July Petros Mhlongo and Others vs The King, Appeal Case No. ……. The then Court of Appeal of Swaziland held that evidence secured by means of pointing out, carried out as a result of the accused’s free and voluntary information becomes admissible.

 

[33]  The firearm concerned was shown by the Ballistics expert to have fired the cartridge found from or at the scene, according to the Investigating Officer’s evidence.  The only reasonable inference therefrom is that same was the one fired by the accused given that other than a bare denial, he has given no acceptable explanation on why and when he had fired the cartridge concerned, particularly if viewed against the undisputed evidence of the Investigating Officer and the Ballistics expert.  Given my having concluded and found that the firearm was fired by the accused as the person who possessed it, has it been proved that the accused committed the offence of attempted murder?

 

[34]  The evidence of the complainant in this count indicated that the bullet whizzed past his head.  This indicates that the shot was directed at him even though he was missed.  From the facts, I conclude that the complainant was missed as a result of the accused’s being a bad shot.  What does this mean on an attempted murder charge?

 

[35]  According to R vs Schoombie 1945 AD 541, the position was put as follows by Watermeyer CJ.

 

                “Attempts fall into two classes:

 

1.         Those in which the wrongdoer, intending to commit a crime, has done everything which he set out to do but has failed in his purpose either through lack of skill or of foresight or through the existence of some unexpected obstacle or otherwise.

 

2.         Those in which the wrongdoer has not completed all that he set out to do, because the completion of his unlawful act has been prevented by the intervention of some outside agency.”

 

[36]  As I understand the material facts of this matter, and as concerns the attempted murder charge, there is no doubt that the accused in this matter, whilst having the necessary intention (which as shall be shown herein below is the intention to kill or injure) did everything which he had set out to do but failed in his purpose through what I would call lack of skill or for some other reason not foreseeable to him.  I say this because whilst the evidence indicated the accused fired the bullet which whizzed past the complainant’s head, he did not give an explanation why he fired the bullet in that manner; nor was he able to refute or dispute same.  I can only assume this was a result of the defence he had pursued in terms of which he had denied firing the shot: an assertion I have found against.  Consequently I have to reject as I hereby do, his contention that he did not know the firearm in question.  I have no hesitation the Police would have had reason to fabricate the existence of the firearm against him.

 

[37]  In R vs Mndzebele 1970-76 SLR 198, Nathan CJ put the position as follows:-

 

“In order to support a conviction for attempted murder, it must be proved that in addition to a contemplation of risk to life plus recklessness, there was an intention at least to injure the complainant.”

 

From the facts of the matter and applying the foregoing to such facts, I have no doubt that the facts of the matter reveal that the accused did not only contemplate risk to life and recklessness but also an intention to injure the Complainant.

 

[38]  The intention was also proved in this case when considering what was said inR vs Huebsch 1953 (2) SA 561 (A) where the position was stated as follows:-

 

“In order to support a conviction for attempted murder, there need  not be a purpose to kill proved as an actual fact.  It is sufficient if there is an appreciation that there is some risk to life involved in the action contemplated, coupled with recklessness as to whether or not the risk is fulfilled in death.”

 

[39]  Consequently, I have come to the conclusion that the accused is guilty of the crime of attempted murder and I convict him of same.

 

[40]  As concerns count two which comprises the Contravention of Section 11 of the Arms and Ammunitions Act of 1964 as read together with Section 11 (8) (a) of the same Act, I have noted that the possession of a firearm is lumped together with the possession of the rounds of ammunition allegedly found loaded in the firearm.

 

[41]  It is my considered view that as it stands, and if the aim is to have accused found guilty of possessing both the firearm and live rounds of ammunition, would be entitled to expect a separate charge for the possession of the live rounds as a charge on its own.

 

[42]  It was, in my view, in acknowledgment of this difficulty, that Mr. Mathunjwa submitted that he was only going to limit his submission to the contravention of Section 11 (1) in so far as it concerned the possession of a firearm without a licence.

 

[43]  The facts clearly indicate in my view that the accused pointed out the firearm to the police, which indicates that he was in possession of same.  Although the firearm is shown as having been loaded with the four live rounds of ammunition, such was not clearly made a charge of its own.  Consequently, I find the accused guilty of the contravention of Section 11 (8) (a) of the Arms and Ammunitions Act of 1964 as amended in that he was found in possession of a firearm without a licence.

 

[44]  As concerns the contravention of Section 24 of the Criminal Procedure and Evidence Act of 1938 by the accused in allegedly furnishing the police with a false name, the following becomes paramount to consider.  It is not denied that the name Mandla Mavuso was used against the accused immediately after his arrest and particularly in booking him into hospital.  Whilst denying ever giving the police this name, the accused does not tell the Court the name he gave the police particularly now that he does not dispute having been asked by them to give them his name, which was the most logical thing from the police to ask for anyway.  He in fact contends that his true name was discovered by the police through enquiring from his acquaintances using his cellular phone.  It cannot be realistic that the police had never asked for his name and if they did, which one he gave them.

 

[45]  This being the case, I can make no other finding than that he gave them the name of Mandla Mavuso.  I in fact reject as being too fanciful the allegation that the accused only learnt of the name in question from the Doctor after recovering from his unconsciousness.  I have no doubt that the accused concealed his true identity because he only needed treatment at the time and was hopeful to escape from the police custody like his friend and companion Tso Mavuso, whom he tells the Court met him immediately escaping from the police custody, a factor he could however inexplicably not bring to the attention of the police there and then.

 

[46]  This being the case, I have no hesitation in convicting the accused person of this charge as well.

 

[47]  Consequently, the accused person is found guilty as charged with the modification in count two that the finding of guilt there in relates to being found in possession of the firearm without a licence and does not include a conviction on the possession of the live rounds of ammunition.

 

Dated at Mbabane on this 07th day of June 2011.

 

N. J. Hlophe

JUDGE

 

IN THE HIGH COURT OF SWAZILAND

 

 

Held at Mbabane                             Criminal Case No: 41/2010

 

In the matter between:

 

 

 

REX

 

 

Versus

 

 

MPHIKELELI SIKHONDZE

 

 

 

Coram                                                      Hlophe J.

For the Crown                                          Mr. M. Mathunjwa

For the Accused                                       In person

 

 

 

 

JUDGMENT

 

 

 

 

HLOPHE J

[1]    The accused person was charged with three counts, comprising of attempted murder, contravention of Section 11 as read with Section 11 (8) (a) of theArms and Ammunition Act of 1964 as amended byAct 60/1988 as well as the contravention of Section 24 (3) of the Criminal Procedure and Evidence Act of 1938.

 

[2]    The particulars of the charges faced by the accused are as follows:-

 

Count One:

It was alleged that the accused was guilty of attempted murder in that on or about the 2nd December 2009, the accused unlawfully and intentionally shot at Nkosingiphile Mavimbela with the intention of killing him.

 

 

Count Two:

The accused person was allegedly guilty of contravening Section 11 as read with Section 11 (8) (a) of the Arms and Ammunitions Act 1964 as amended by Act 60/1988 in that on or about the 2nd December 2009, and at or near Dvokolwako area, the said accused did unlawfully and intentionally possess a star 9mm pistol with four live rounds of ammunition without a licence.

 

Count Three:

 

The accused is alleged to have contravened Section 24 (3) of theCriminal Procedure and Evidence Act 67 of 1938, in that on or about the 2nd December 2009, at or near Dvokolwako area, the accused unlawfully and intentionally furnished a Police Officer with a false name of being Mandla Mavuso and thereby contravened the said Act.

 

[3]    I must state that the charges as they stand on the indictment are fraught with grammatical errors which I have tried as much as I possibly could to avoid reciting hereinabove.  I must also indicate that during the pleading stage, the charges were put to the accused in the corrected form.  This I clarify in an attempt to indicate that no prejudice was suffered by the accused as a result of the grammatical inexactitude noted on the charges.

 

[4]    At the commencement of the trial, the accused person, who indicated that he was out of custody having been released on bail, informed the Court that he was going to conduct his own defence.  Mr. Mathunjwa represented the Crown throughout the proceedings.

 

[5]    The accused person pleaded not guilty to all the charges levelled against him which necessitated that the Crown proves its case beyond a reasonable doubt as enjoined to do so in law.

 

[6]    In an endeavour to discharge the said onus, the Crown led the evidence of five witnesses: two of whom were Police Officers who were present at the scene and at the time when the incidents forming the basis of counts one and two occurred whilst the other Police Officer was the Investigating Officer whose evidence covered all the counts.  The fourth Police Officer to give evidence was the ballistics expert introduced as such who examined the firearm and the ammunition allegedly recovered from the accused and from the scene respectively and which formed the basis of counts one and two.

 

[7]    The evidence led by the Crown in summary form established that the third witness (PW3) one Musa Sithole, who was employed at a Primary School known as Black Mbuluzi Methodist as a security guard or night watchman, and whilst at work observed some two people at night, who he says were carrying bags, one of which had a colour resembling a “camouflage” or “army colour”, standing outside the office of the school under the lights.  This, he said, happened on the 2nd December 2009.  His conclusion was that the said two men were trying to commit a house breaking and theft at the office which had become common at the school.

 

[8]    In reaction thereto, he went to the house of a teacher nearby.  This teacher was with her husband therein, and he narrated to them his observations about the two people.  It was then that the Mliba Police were telephonically notified of such development as a result of which they responded through sending two Police Officers.  These were PW1 and PW2 who were 5392 Constable Nkosingiphile Mavimbela and 3168 Constable Washington Mamba, respectively.  Both Officers informed the Court that on the date concerned they received a telephone message between 2200 hours and 2300 hours informing them about a house breaking allegedly taking place at the abovementioned school.  As a result of which they drove to the school to attend to the incident.

 

[9]    As they drove there, they were in constant contact with their informants at the school.  Constable Mamba was armed with a service rifle.  Their informants later informed them that the suspects had since left the scene having taken the road their car was expected to approach by.  They were then advised to switch off their lights and park their car a distance of about 200 metres or so from the school which they did and approached the school on feet.

 

[10]  When they were about 100 metres or so from the school, they came across two men approaching them.  When they were close to each other, they introduced themselves as Police Officers and ordered them to raise their hands.  PW1, Constable Mavimbela got hold of the one near him.  As the other one took to his heels, Constable Mamba is said to have fired a warning shot at the fleeing suspect who did not heed the shot.  The fleeing suspect was subsequently shot at by Constable Mamba even though he was unsure he had hit him.

 

[11]  It was agreed between Constable Mamba and Constable Mavimbela that the latter remains with the suspect he had managed to catch at that place whilst Constable Mamba left to meet their informants at the school.

 

[12]  It was after Constable Mamba had left for the said purpose, that Constable Mavimbela informed the Court he heard a gunshot and heard a bullet whizzing past his head.  According to Constable Mavimbela, he and the other suspect had to take cover which they managed to do.  The captured suspect had a bag with him which contained inter alia a grey leather jacket; one nail hammer; one tyre lever (iron bar), one white glove and two handkerchiefs.  The bullet that whizzed past his head, came from the direction taken by the suspect who ran away.

 

[13]  Before Constable Mavimbela and Constable Mamba could depart from the scene with the captured suspect, a voice shouted from the direction to which the suspect who fled had gone, saying that he had been shot and needed to be taken to hospital as he could die.  By then the two Police Officers had been joined by other Police Officers who were driving together with 2602 Inspector Mayisa, who became the Investigating Officer in the matter.  Following, their failure to find the person who alleged that he had been shot at, they returned to the vehicle where the suspect, later identified as Tso Mavuso, was made to board one of the police vehicles from which he escaped after its faulty door could not lock.

 

[14]  The police had all left the scene when they were once again called via triple nine (999) police emergency line and told to attend to a person at the place of the incident, who claimed to have been shot at  by the police and needed to be rushed to hospital as he could die.

 

[15]  2602 Detective Inspector Mayisa informed the Court that on their return they managed to find the accused who handed himself over to the police.  According to this witness, the accused after being cautioned in terms of the Judges Rules also led them to a nearby place where he handed over to the police an army green bag which contained a bosch grinder, a 5 metre electric cable, cutting disks (steel) and eye googles.  The accused is further said by this witness to have also freely pointed out to them a star 9 mm pistol loaded with four live rounds of ammunition following the same caution referred to herein above.  The firearm concerned bore serial number 44008475.

 

[16]  The Investigating Officer further told the Court that when asked who he was, the accused gave them the name of Mandla Mavuso as his name after which he was taken to hospital where he gave his attendants the same name.  This was at Dvokolwako Health Centre from where he was transferred to the Raleigh Fitkin Memorial Hospital in Manzini where he was treated.  According to the Investigating Officer, it was whilst the accused was at this hospital, that his finger prints were taken and sent to the Criminal Bureau from which it was discovered that the said finger prints matched those of one Mphikeleli Sikhondze, who it turned out was the true identity of the accused.

 

[17]  This witness further stated that on the day following that of the accused’s arrest, they went to the scene from where they found a cartridge which was taken for Ballistics testing together with the firearm and live rounds referred to above.  The firearm and live rounds were produced in Court together with the cartridge.  The firearm bore Serial No. 44008475.

 

[18]  The Crown also led the evidence of the Ballistics expert who introduced himself as 3345 Sergeant Vincent Marvin Mbingo.  This witness informed the Court on how he received certain exhibits from the Mliba Police, which comprised a firearm, fully described as a star pistol with Serial No. 44008475:  Four live rounds of ammunition as well as a fired cartridge.

 

[19]  After conducting his tests he managed to establish that the firearm was serviceable as he fired out a live round from it as well as established that the fired cartridge brought in for analysis together with the firearm and the four live rounds, had been fired from the same firearm mentioned above.  He ascertained this factor from the fact that each firearm has got a special individualized marking left on the back of a fired cartridge.  This mark he managed to pick on both cartridges and it matched the one he picked from the firearm itself with the help of a microscope.

 

[20]  During his cross-examination of the Crown witnesses the accused denied that he was one of the people who were seen by Musa Sithole outside the office.  He said whilst he is the one who met the police whilst in the company of one Tso Mavuso, they were not from the school nor did they ever attempt to commit any housebreaking at the school aforesaid.

 

[21]  He said that they were from a certain nearby bar where they had been entertaining themselves.  He put it to the Crown witnesses, particularly PW1 and PW2, that they first met them along the way and without saying anything they were shot at by the one who was carrying a firearm whose length he estimated with his hand as having been beyond a metre in length.  He alleged that he was shot at on the stomach whilst facing the police and at very close range and not as he ran away.  He also denied having fired at the Police Officer who captured his companion.  Tso Mavuso nor at anyone.  He in fact even denied having pointed out the firearm to the police.

 

[22]  He further denied having called the police earlier than when he was taken by them to the Dvokolwako Health Centre and eventually the RFM Hospital in Manzini.

 

[23]  He disassociated himself from the bag claiming that whereas same was found next to him, it must have been left there by the people from the nearby homesteads.  He further also denied having given the police the name of Mandla Mavuso but suggested he only heard of it for the first time from the Doctor at the Raleigh Fitkin Memorial Hospital.

 

[24]  The Crown witnesses had however maintained their case as stated above, after which the accused was then called upon to choose how to go forward with the matter after all his rights and choices such as not saying anything, giving evidence without taking an oath as well as taking the oath and giving his evidence thereafter and being cross-examined which is what he chose.

 

[25]  He by and large reiterated what he had put to the witnesses as stated above.  Although he told the Court that he had been time and again meeting the suspect who fled from the police, he was not able to call this person to give testimony on his alleged shooting of the police.  He also stated that the police did not find out who he was through the matching of finger prints by experts as alleged but that the Investigating Officer had established all the information about him from his cellular phone which he said the officer had taken and called numbers therefrom to establish who he was or that he was from an area called Mkhalamfene near Big Bend.

 

[26]  From the foregoing, it is common cause that the accused was met by the two policemen about 100 metres or so from the school.  It is also common cause that this was along the same route that had been taken by the people who were seen at the school attempting to commit house breaking.

 

[27]  As concerns liability for the first count, that of attempted murder, there is the evidence of PW1, 5392 Constable Nkosingiphile Mavimbela who told the Court that a firearm was fired from the direction taken by the accused when he fled from the police, resulting in the bullet whizzing past his head.  Musa Sithole, PW3, told the Court that from where he was, he could tell there was an exchange of fire or gunshots.  Furthermore, according to 2602 Inspector Mayisa, the accused person led them to a firearm loaded with four rounds of ammunition which was eventually submitted for forensics.   There was also the empty cartridge, which the Investigating Officer said was obtained from the scene the next day.  This cartridge was shown to have been fired from the same firearm allegedly pointed out by the accused.  This aspect of the evidence was not challenged at all.

 

[28]  From the foregoing, I have no hesitation to find that PW1 was shot at with the firearm eventually pointed out by the accused from the direction taken by the accused when he ran away, a factor confirmed as well by Musa Sithole, the security guard who said that there was an exchange of gunshots, such gunshots would not have come from nowhere and without reason.  The accused reached to give a sound explanation on why the firearm he had pointed out had fired a shot at the scene including who such a shot was directed at.

 

[29]  In fact, I have no hesitation that the only reasonable inference consistent with all the set of facts is that the gunshot was fired by, the accused, who I find did so out of vengeance.

 

[30]  In R vs Blom 1939 AD 188, it was stated that if an inference has to be drawn from a set of facts, such an inference has to be the only reasonable one to be drawn therefrom.  Commenting on the same principle, Lansdown and Campbell in their book The South African Criminal Law and Procedure Volume 5, 1982 Juta, at page 911 had the following to say:-

 

“If guilt is sought to be proved by circumstantial evidence, there must be no other inference which could reasonably be drawn, as the existence of any other reasonable inference means that there must be a reasonable doubt as to the accused’s guilt.”

 

I therefore cannot conceive of any other reasonable inference than that the gunshot which resulted in bullet that whizzed passed his head according to PW1, was fired by the accused who had taken that direction from and had a reason to fire at the scene.

 

[31]  The foregoing is however not the only reason why I have to conclude that the gunshot was fired by the accused.  There is also the evidence of the pointing out of the firearm by the accused to the Investigating Officer which he was shown to have freely and voluntarily done after having been duly cautioned in terms of the Judges Rules to the effect that the accused was not obliged to say or to point out anything and that if that was such pointing out, the item so pointed out could be used in evidence against him.

 

[32]  The Court was told that the accused pointed out the firearm freely and voluntarily to the Investigating Officer.  In July Petros Mhlongo and Others vs The King, Appeal Case No. ……. The then Court of Appeal of Swaziland held that evidence secured by means of pointing out, carried out as a result of the accused’s free and voluntary information becomes admissible.

 

[33]  The firearm concerned was shown by the Ballistics expert to have fired the cartridge found from or at the scene, according to the Investigating Officer’s evidence.  The only reasonable inference therefrom is that same was the one fired by the accused given that other than a bare denial, he has given no acceptable explanation on why and when he had fired the cartridge concerned, particularly if viewed against the undisputed evidence of the Investigating Officer and the Ballistics expert.  Given my having concluded and found that the firearm was fired by the accused as the person who possessed it, has it been proved that the accused committed the offence of attempted murder?

 

[34]  The evidence of the complainant in this count indicated that the bullet whizzed past his head.  This indicates that the shot was directed at him even though he was missed.  From the facts, I conclude that the complainant was missed as a result of the accused’s being a bad shot.  What does this mean on an attempted murder charge?

 

[35]  According to R vs Schoombie 1945 AD 541, the position was put as follows by Watermeyer CJ.

 

                “Attempts fall into two classes:

 

1.         Those in which the wrongdoer, intending to commit a crime, has done everything which he set out to do but has failed in his purpose either through lack of skill or of foresight or through the existence of some unexpected obstacle or otherwise.

 

2.         Those in which the wrongdoer has not completed all that he set out to do, because the completion of his unlawful act has been prevented by the intervention of some outside agency.”

 

[36]  As I understand the material facts of this matter, and as concerns the attempted murder charge, there is no doubt that the accused in this matter, whilst having the necessary intention (which as shall be shown herein below is the intention to kill or injure) did everything which he had set out to do but failed in his purpose through what I would call lack of skill or for some other reason not foreseeable to him.  I say this because whilst the evidence indicated the accused fired the bullet which whizzed past the complainant’s head, he did not give an explanation why he fired the bullet in that manner; nor was he able to refute or dispute same.  I can only assume this was a result of the defence he had pursued in terms of which he had denied firing the shot: an assertion I have found against.  Consequently I have to reject as I hereby do, his contention that he did not know the firearm in question.  I have no hesitation the Police would have had reason to fabricate the existence of the firearm against him.

 

[37]  In R vs Mndzebele 1970-76 SLR 198, Nathan CJ put the position as follows:-

 

“In order to support a conviction for attempted murder, it must be proved that in addition to a contemplation of risk to life plus recklessness, there was an intention at least to injure the complainant.”

 

From the facts of the matter and applying the foregoing to such facts, I have no doubt that the facts of the matter reveal that the accused did not only contemplate risk to life and recklessness but also an intention to injure the Complainant.

 

[38]  The intention was also proved in this case when considering what was said inR vs Huebsch 1953 (2) SA 561 (A) where the position was stated as follows:-

 

“In order to support a conviction for attempted murder, there need  not be a purpose to kill proved as an actual fact.  It is sufficient if there is an appreciation that there is some risk to life involved in the action contemplated, coupled with recklessness as to whether or not the risk is fulfilled in death.”

 

[39]  Consequently, I have come to the conclusion that the accused is guilty of the crime of attempted murder and I convict him of same.

 

[40]  As concerns count two which comprises the Contravention of Section 11 of the Arms and Ammunitions Act of 1964 as read together with Section 11 (8) (a) of the same Act, I have noted that the possession of a firearm is lumped together with the possession of the rounds of ammunition allegedly found loaded in the firearm.

 

[41]  It is my considered view that as it stands, and if the aim is to have accused found guilty of possessing both the firearm and live rounds of ammunition, would be entitled to expect a separate charge for the possession of the live rounds as a charge on its own.

 

[42]  It was, in my view, in acknowledgment of this difficulty, that Mr. Mathunjwa submitted that he was only going to limit his submission to the contravention of Section 11 (1) in so far as it concerned the possession of a firearm without a licence.

 

[43]  The facts clearly indicate in my view that the accused pointed out the firearm to the police, which indicates that he was in possession of same.  Although the firearm is shown as having been loaded with the four live rounds of ammunition, such was not clearly made a charge of its own.  Consequently, I find the accused guilty of the contravention of Section 11 (8) (a) of the Arms and Ammunitions Act of 1964 as amended in that he was found in possession of a firearm without a licence.

 

[44]  As concerns the contravention of Section 24 of the Criminal Procedure and Evidence Act of 1938 by the accused in allegedly furnishing the police with a false name, the following becomes paramount to consider.  It is not denied that the name Mandla Mavuso was used against the accused immediately after his arrest and particularly in booking him into hospital.  Whilst denying ever giving the police this name, the accused does not tell the Court the name he gave the police particularly now that he does not dispute having been asked by them to give them his name, which was the most logical thing from the police to ask for anyway.  He in fact contends that his true name was discovered by the police through enquiring from his acquaintances using his cellular phone.  It cannot be realistic that the police had never asked for his name and if they did, which one he gave them.

 

[45]  This being the case, I can make no other finding than that he gave them the name of Mandla Mavuso.  I in fact reject as being too fanciful the allegation that the accused only learnt of the name in question from the Doctor after recovering from his unconsciousness.  I have no doubt that the accused concealed his true identity because he only needed treatment at the time and was hopeful to escape from the police custody like his friend and companion Tso Mavuso, whom he tells the Court met him immediately escaping from the police custody, a factor he could however inexplicably not bring to the attention of the police there and then.

 

[46]  This being the case, I have no hesitation in convicting the accused person of this charge as well.

 

[47]  Consequently, the accused person is found guilty as charged with the modification in count two that the finding of guilt there in relates to being found in possession of the firearm without a licence and does not include a conviction on the possession of the live rounds of ammunition.

 

Dated at Mbabane on this 07th day of June 2011.

 

N. J. Hlophe

JUDGE

 

IN THE HIGH COURT OF SWAZILAND

 

 

Held at Mbabane                             Criminal Case No: 41/2010

 

In the matter between:

 

 

 

REX

 

 

Versus

 

 

MPHIKELELI SIKHONDZE

 

 

 

Coram                                                      Hlophe J.

For the Crown                                          Mr. M. Mathunjwa

For the Accused                                       In person

 

 

 

 

JUDGMENT

 

 

 

 

HLOPHE J

[1]    The accused person was charged with three counts, comprising of attempted murder, contravention of Section 11 as read with Section 11 (8) (a) of theArms and Ammunition Act of 1964 as amended byAct 60/1988 as well as the contravention of Section 24 (3) of the Criminal Procedure and Evidence Act of 1938.

 

[2]    The particulars of the charges faced by the accused are as follows:-

 

Count One:

It was alleged that the accused was guilty of attempted murder in that on or about the 2nd December 2009, the accused unlawfully and intentionally shot at Nkosingiphile Mavimbela with the intention of killing him.

 

 

Count Two:

The accused person was allegedly guilty of contravening Section 11 as read with Section 11 (8) (a) of the Arms and Ammunitions Act 1964 as amended by Act 60/1988 in that on or about the 2nd December 2009, and at or near Dvokolwako area, the said accused did unlawfully and intentionally possess a star 9mm pistol with four live rounds of ammunition without a licence.

 

Count Three:

 

The accused is alleged to have contravened Section 24 (3) of theCriminal Procedure and Evidence Act 67 of 1938, in that on or about the 2nd December 2009, at or near Dvokolwako area, the accused unlawfully and intentionally furnished a Police Officer with a false name of being Mandla Mavuso and thereby contravened the said Act.

 

[3]    I must state that the charges as they stand on the indictment are fraught with grammatical errors which I have tried as much as I possibly could to avoid reciting hereinabove.  I must also indicate that during the pleading stage, the charges were put to the accused in the corrected form.  This I clarify in an attempt to indicate that no prejudice was suffered by the accused as a result of the grammatical inexactitude noted on the charges.

 

[4]    At the commencement of the trial, the accused person, who indicated that he was out of custody having been released on bail, informed the Court that he was going to conduct his own defence.  Mr. Mathunjwa represented the Crown throughout the proceedings.

 

[5]    The accused person pleaded not guilty to all the charges levelled against him which necessitated that the Crown proves its case beyond a reasonable doubt as enjoined to do so in law.

 

[6]    In an endeavour to discharge the said onus, the Crown led the evidence of five witnesses: two of whom were Police Officers who were present at the scene and at the time when the incidents forming the basis of counts one and two occurred whilst the other Police Officer was the Investigating Officer whose evidence covered all the counts.  The fourth Police Officer to give evidence was the ballistics expert introduced as such who examined the firearm and the ammunition allegedly recovered from the accused and from the scene respectively and which formed the basis of counts one and two.

 

[7]    The evidence led by the Crown in summary form established that the third witness (PW3) one Musa Sithole, who was employed at a Primary School known as Black Mbuluzi Methodist as a security guard or night watchman, and whilst at work observed some two people at night, who he says were carrying bags, one of which had a colour resembling a “camouflage” or “army colour”, standing outside the office of the school under the lights.  This, he said, happened on the 2nd December 2009.  His conclusion was that the said two men were trying to commit a house breaking and theft at the office which had become common at the school.

 

[8]    In reaction thereto, he went to the house of a teacher nearby.  This teacher was with her husband therein, and he narrated to them his observations about the two people.  It was then that the Mliba Police were telephonically notified of such development as a result of which they responded through sending two Police Officers.  These were PW1 and PW2 who were 5392 Constable Nkosingiphile Mavimbela and 3168 Constable Washington Mamba, respectively.  Both Officers informed the Court that on the date concerned they received a telephone message between 2200 hours and 2300 hours informing them about a house breaking allegedly taking place at the abovementioned school.  As a result of which they drove to the school to attend to the incident.

 

[9]    As they drove there, they were in constant contact with their informants at the school.  Constable Mamba was armed with a service rifle.  Their informants later informed them that the suspects had since left the scene having taken the road their car was expected to approach by.  They were then advised to switch off their lights and park their car a distance of about 200 metres or so from the school which they did and approached the school on feet.

 

[10]  When they were about 100 metres or so from the school, they came across two men approaching them.  When they were close to each other, they introduced themselves as Police Officers and ordered them to raise their hands.  PW1, Constable Mavimbela got hold of the one near him.  As the other one took to his heels, Constable Mamba is said to have fired a warning shot at the fleeing suspect who did not heed the shot.  The fleeing suspect was subsequently shot at by Constable Mamba even though he was unsure he had hit him.

 

[11]  It was agreed between Constable Mamba and Constable Mavimbela that the latter remains with the suspect he had managed to catch at that place whilst Constable Mamba left to meet their informants at the school.

 

[12]  It was after Constable Mamba had left for the said purpose, that Constable Mavimbela informed the Court he heard a gunshot and heard a bullet whizzing past his head.  According to Constable Mavimbela, he and the other suspect had to take cover which they managed to do.  The captured suspect had a bag with him which contained inter alia a grey leather jacket; one nail hammer; one tyre lever (iron bar), one white glove and two handkerchiefs.  The bullet that whizzed past his head, came from the direction taken by the suspect who ran away.

 

[13]  Before Constable Mavimbela and Constable Mamba could depart from the scene with the captured suspect, a voice shouted from the direction to which the suspect who fled had gone, saying that he had been shot and needed to be taken to hospital as he could die.  By then the two Police Officers had been joined by other Police Officers who were driving together with 2602 Inspector Mayisa, who became the Investigating Officer in the matter.  Following, their failure to find the person who alleged that he had been shot at, they returned to the vehicle where the suspect, later identified as Tso Mavuso, was made to board one of the police vehicles from which he escaped after its faulty door could not lock.

 

[14]  The police had all left the scene when they were once again called via triple nine (999) police emergency line and told to attend to a person at the place of the incident, who claimed to have been shot at  by the police and needed to be rushed to hospital as he could die.

 

[15]  2602 Detective Inspector Mayisa informed the Court that on their return they managed to find the accused who handed himself over to the police.  According to this witness, the accused after being cautioned in terms of the Judges Rules also led them to a nearby place where he handed over to the police an army green bag which contained a bosch grinder, a 5 metre electric cable, cutting disks (steel) and eye googles.  The accused is further said by this witness to have also freely pointed out to them a star 9 mm pistol loaded with four live rounds of ammunition following the same caution referred to herein above.  The firearm concerned bore serial number 44008475.

 

[16]  The Investigating Officer further told the Court that when asked who he was, the accused gave them the name of Mandla Mavuso as his name after which he was taken to hospital where he gave his attendants the same name.  This was at Dvokolwako Health Centre from where he was transferred to the Raleigh Fitkin Memorial Hospital in Manzini where he was treated.  According to the Investigating Officer, it was whilst the accused was at this hospital, that his finger prints were taken and sent to the Criminal Bureau from which it was discovered that the said finger prints matched those of one Mphikeleli Sikhondze, who it turned out was the true identity of the accused.

 

[17]  This witness further stated that on the day following that of the accused’s arrest, they went to the scene from where they found a cartridge which was taken for Ballistics testing together with the firearm and live rounds referred to above.  The firearm and live rounds were produced in Court together with the cartridge.  The firearm bore Serial No. 44008475.

 

[18]  The Crown also led the evidence of the Ballistics expert who introduced himself as 3345 Sergeant Vincent Marvin Mbingo.  This witness informed the Court on how he received certain exhibits from the Mliba Police, which comprised a firearm, fully described as a star pistol with Serial No. 44008475:  Four live rounds of ammunition as well as a fired cartridge.

 

[19]  After conducting his tests he managed to establish that the firearm was serviceable as he fired out a live round from it as well as established that the fired cartridge brought in for analysis together with the firearm and the four live rounds, had been fired from the same firearm mentioned above.  He ascertained this factor from the fact that each firearm has got a special individualized marking left on the back of a fired cartridge.  This mark he managed to pick on both cartridges and it matched the one he picked from the firearm itself with the help of a microscope.

 

[20]  During his cross-examination of the Crown witnesses the accused denied that he was one of the people who were seen by Musa Sithole outside the office.  He said whilst he is the one who met the police whilst in the company of one Tso Mavuso, they were not from the school nor did they ever attempt to commit any housebreaking at the school aforesaid.

 

[21]  He said that they were from a certain nearby bar where they had been entertaining themselves.  He put it to the Crown witnesses, particularly PW1 and PW2, that they first met them along the way and without saying anything they were shot at by the one who was carrying a firearm whose length he estimated with his hand as having been beyond a metre in length.  He alleged that he was shot at on the stomach whilst facing the police and at very close range and not as he ran away.  He also denied having fired at the Police Officer who captured his companion.  Tso Mavuso nor at anyone.  He in fact even denied having pointed out the firearm to the police.

 

[22]  He further denied having called the police earlier than when he was taken by them to the Dvokolwako Health Centre and eventually the RFM Hospital in Manzini.

 

[23]  He disassociated himself from the bag claiming that whereas same was found next to him, it must have been left there by the people from the nearby homesteads.  He further also denied having given the police the name of Mandla Mavuso but suggested he only heard of it for the first time from the Doctor at the Raleigh Fitkin Memorial Hospital.

 

[24]  The Crown witnesses had however maintained their case as stated above, after which the accused was then called upon to choose how to go forward with the matter after all his rights and choices such as not saying anything, giving evidence without taking an oath as well as taking the oath and giving his evidence thereafter and being cross-examined which is what he chose.

 

[25]  He by and large reiterated what he had put to the witnesses as stated above.  Although he told the Court that he had been time and again meeting the suspect who fled from the police, he was not able to call this person to give testimony on his alleged shooting of the police.  He also stated that the police did not find out who he was through the matching of finger prints by experts as alleged but that the Investigating Officer had established all the information about him from his cellular phone which he said the officer had taken and called numbers therefrom to establish who he was or that he was from an area called Mkhalamfene near Big Bend.

 

[26]  From the foregoing, it is common cause that the accused was met by the two policemen about 100 metres or so from the school.  It is also common cause that this was along the same route that had been taken by the people who were seen at the school attempting to commit house breaking.

 

[27]  As concerns liability for the first count, that of attempted murder, there is the evidence of PW1, 5392 Constable Nkosingiphile Mavimbela who told the Court that a firearm was fired from the direction taken by the accused when he fled from the police, resulting in the bullet whizzing past his head.  Musa Sithole, PW3, told the Court that from where he was, he could tell there was an exchange of fire or gunshots.  Furthermore, according to 2602 Inspector Mayisa, the accused person led them to a firearm loaded with four rounds of ammunition which was eventually submitted for forensics.   There was also the empty cartridge, which the Investigating Officer said was obtained from the scene the next day.  This cartridge was shown to have been fired from the same firearm allegedly pointed out by the accused.  This aspect of the evidence was not challenged at all.

 

[28]  From the foregoing, I have no hesitation to find that PW1 was shot at with the firearm eventually pointed out by the accused from the direction taken by the accused when he ran away, a factor confirmed as well by Musa Sithole, the security guard who said that there was an exchange of gunshots, such gunshots would not have come from nowhere and without reason.  The accused reached to give a sound explanation on why the firearm he had pointed out had fired a shot at the scene including who such a shot was directed at.

 

[29]  In fact, I have no hesitation that the only reasonable inference consistent with all the set of facts is that the gunshot was fired by, the accused, who I find did so out of vengeance.

 

[30]  In R vs Blom 1939 AD 188, it was stated that if an inference has to be drawn from a set of facts, such an inference has to be the only reasonable one to be drawn therefrom.  Commenting on the same principle, Lansdown and Campbell in their book The South African Criminal Law and Procedure Volume 5, 1982 Juta, at page 911 had the following to say:-

 

“If guilt is sought to be proved by circumstantial evidence, there must be no other inference which could reasonably be drawn, as the existence of any other reasonable inference means that there must be a reasonable doubt as to the accused’s guilt.”

 

I therefore cannot conceive of any other reasonable inference than that the gunshot which resulted in bullet that whizzed passed his head according to PW1, was fired by the accused who had taken that direction from and had a reason to fire at the scene.

 

[31]  The foregoing is however not the only reason why I have to conclude that the gunshot was fired by the accused.  There is also the evidence of the pointing out of the firearm by the accused to the Investigating Officer which he was shown to have freely and voluntarily done after having been duly cautioned in terms of the Judges Rules to the effect that the accused was not obliged to say or to point out anything and that if that was such pointing out, the item so pointed out could be used in evidence against him.

 

[32]  The Court was told that the accused pointed out the firearm freely and voluntarily to the Investigating Officer.  In July Petros Mhlongo and Others vs The King, Appeal Case No. ……. The then Court of Appeal of Swaziland held that evidence secured by means of pointing out, carried out as a result of the accused’s free and voluntary information becomes admissible.

 

[33]  The firearm concerned was shown by the Ballistics expert to have fired the cartridge found from or at the scene, according to the Investigating Officer’s evidence.  The only reasonable inference therefrom is that same was the one fired by the accused given that other than a bare denial, he has given no acceptable explanation on why and when he had fired the cartridge concerned, particularly if viewed against the undisputed evidence of the Investigating Officer and the Ballistics expert.  Given my having concluded and found that the firearm was fired by the accused as the person who possessed it, has it been proved that the accused committed the offence of attempted murder?

 

[34]  The evidence of the complainant in this count indicated that the bullet whizzed past his head.  This indicates that the shot was directed at him even though he was missed.  From the facts, I conclude that the complainant was missed as a result of the accused’s being a bad shot.  What does this mean on an attempted murder charge?

 

[35]  According to R vs Schoombie 1945 AD 541, the position was put as follows by Watermeyer CJ.

 

                “Attempts fall into two classes:

 

1.         Those in which the wrongdoer, intending to commit a crime, has done everything which he set out to do but has failed in his purpose either through lack of skill or of foresight or through the existence of some unexpected obstacle or otherwise.

 

2.         Those in which the wrongdoer has not completed all that he set out to do, because the completion of his unlawful act has been prevented by the intervention of some outside agency.”

 

[36]  As I understand the material facts of this matter, and as concerns the attempted murder charge, there is no doubt that the accused in this matter, whilst having the necessary intention (which as shall be shown herein below is the intention to kill or injure) did everything which he had set out to do but failed in his purpose through what I would call lack of skill or for some other reason not foreseeable to him.  I say this because whilst the evidence indicated the accused fired the bullet which whizzed past the complainant’s head, he did not give an explanation why he fired the bullet in that manner; nor was he able to refute or dispute same.  I can only assume this was a result of the defence he had pursued in terms of which he had denied firing the shot: an assertion I have found against.  Consequently I have to reject as I hereby do, his contention that he did not know the firearm in question.  I have no hesitation the Police would have had reason to fabricate the existence of the firearm against him.

 

[37]  In R vs Mndzebele 1970-76 SLR 198, Nathan CJ put the position as follows:-

 

“In order to support a conviction for attempted murder, it must be proved that in addition to a contemplation of risk to life plus recklessness, there was an intention at least to injure the complainant.”

 

From the facts of the matter and applying the foregoing to such facts, I have no doubt that the facts of the matter reveal that the accused did not only contemplate risk to life and recklessness but also an intention to injure the Complainant.

 

[38]  The intention was also proved in this case when considering what was said inR vs Huebsch 1953 (2) SA 561 (A) where the position was stated as follows:-

 

“In order to support a conviction for attempted murder, there need  not be a purpose to kill proved as an actual fact.  It is sufficient if there is an appreciation that there is some risk to life involved in the action contemplated, coupled with recklessness as to whether or not the risk is fulfilled in death.”

 

[39]  Consequently, I have come to the conclusion that the accused is guilty of the crime of attempted murder and I convict him of same.

 

[40]  As concerns count two which comprises the Contravention of Section 11 of the Arms and Ammunitions Act of 1964 as read together with Section 11 (8) (a) of the same Act, I have noted that the possession of a firearm is lumped together with the possession of the rounds of ammunition allegedly found loaded in the firearm.

 

[41]  It is my considered view that as it stands, and if the aim is to have accused found guilty of possessing both the firearm and live rounds of ammunition, would be entitled to expect a separate charge for the possession of the live rounds as a charge on its own.

 

[42]  It was, in my view, in acknowledgment of this difficulty, that Mr. Mathunjwa submitted that he was only going to limit his submission to the contravention of Section 11 (1) in so far as it concerned the possession of a firearm without a licence.

 

[43]  The facts clearly indicate in my view that the accused pointed out the firearm to the police, which indicates that he was in possession of same.  Although the firearm is shown as having been loaded with the four live rounds of ammunition, such was not clearly made a charge of its own.  Consequently, I find the accused guilty of the contravention of Section 11 (8) (a) of the Arms and Ammunitions Act of 1964 as amended in that he was found in possession of a firearm without a licence.

 

[44]  As concerns the contravention of Section 24 of the Criminal Procedure and Evidence Act of 1938 by the accused in allegedly furnishing the police with a false name, the following becomes paramount to consider.  It is not denied that the name Mandla Mavuso was used against the accused immediately after his arrest and particularly in booking him into hospital.  Whilst denying ever giving the police this name, the accused does not tell the Court the name he gave the police particularly now that he does not dispute having been asked by them to give them his name, which was the most logical thing from the police to ask for anyway.  He in fact contends that his true name was discovered by the police through enquiring from his acquaintances using his cellular phone.  It cannot be realistic that the police had never asked for his name and if they did, which one he gave them.

 

[45]  This being the case, I can make no other finding than that he gave them the name of Mandla Mavuso.  I in fact reject as being too fanciful the allegation that the accused only learnt of the name in question from the Doctor after recovering from his unconsciousness.  I have no doubt that the accused concealed his true identity because he only needed treatment at the time and was hopeful to escape from the police custody like his friend and companion Tso Mavuso, whom he tells the Court met him immediately escaping from the police custody, a factor he could however inexplicably not bring to the attention of the police there and then.

 

[46]  This being the case, I have no hesitation in convicting the accused person of this charge as well.

 

[47]  Consequently, the accused person is found guilty as charged with the modification in count two that the finding of guilt there in relates to being found in possession of the firearm without a licence and does not include a conviction on the possession of the live rounds of ammunition.

 

Dated at Mbabane on this 07th day of June 2011.

 

N. J. Hlophe

JUDGE