Court name
High Court of eSwatini
Case number
198 of 2008

R v Dlamini (198 of 2008) [2011] SZHC 37 (01 April 2011);

Law report citations
Media neutral citation
[2011] SZHC 37
Coram
Hlophe, J

 

IN THE HIGH COURT OF SWAZILAND

 

 

Held at Mbabane                             Criminal Case No: 198/2008

 

 

In the matter between:

 

 

 

REX

 

 

Versus

 

 

SIBUSISO KUKUZA DLAMINI  

 

 

 

Coram                                                      Hlophe J.

For the Accused                                       Personal/(later)T. Fakudze

For the Crown                                          Mr.P. Dlamini/Mr. Mdluli

 

 

 

 

JUDGMENT

 

 

 

HLOPHE J

[1]    The accused person namely Sibusiso Khukhuza Dlamini stands before me indicted with the offence of attempted murder, it being alleged by the Crown that on about the 1st day of June 2008, and at or near Mbhuleni area in the Manzini Region, the accused person did unlawfully stab Mpumelelo Gumedze with a spear with the intention of killing him and did thereby commit the crime of murder.

 

 [2]   A point that merits mention even at this stage of the proceedings is the fact that it transpired during the leading of evidence, particularly that of the complainant, that the latter also has another surname Ndzimandze.  This I mention so as to clear whatever issues there could be as concerns the surname of the Complainant.

 

[3]    When the charges were put to the accused he pleaded not guilty tot the charge of murder but tendered a plea of guilty  to the lesser offence of assault with intent to do grievous bodily harm.  The Crown did not accept this plea by the accused which necessitated that the matter be dealt with on the basis of the plea of not guilty to attempted murder which the Crown was then required to prove.

 

[4]    In an attempt to prove that the accused was guilty as charged, the Crown led four witnesses who were namely, PW1 the Complainant, PW2 2359 Detective Sergeant R. Mamba and PW3 Doctor Peter Samson Gussesse.  By way of clarification PW2 was the investigating officer whilst PW3 was the Medical Doctor who attended to the Complainant and handed in as evidence a medical report.

 

 [5]   From the onset I must clarify that it was not in issue that the Complainant was stabbed with a spear by the accused, with the only point in issue being where (on the body) and how the Complainant was stabbed.  It is in fact also not in issue why he was stabbed – that is because he was resisting to leave the accused’s homestead on the order or directive of the accused.

 

[6]    I also need to point out that when the matter commenced, the accused person indicated that he was going to conduct his own defence.  He in fact made it clear that whereas he had two matters meant to proceed before the Court then, it was only in this one that he was going to represent himself otherwise in the other one – which he said was a culpable homicide case which never came to this Court- he was going to be represented by an Attorney.

 

[7]    Seeing that he was to represent himself, his rights on how the matter was to be proceeded with were explained to him.  These particularly were how he was to deal with the witnesses the Crown was going to call during cross examination.  Any way a major part of such rights were explained to him as and when it became necessary and at such stage of the proceedings as such a need arose.

 

[8]    Otherwise the case for the Crown was that the Complainant went to a place called KaMeslusi, which turned out to be adjacent to the accused person’s shebeen at Mbhuleni Matsapha, to buy “take away foods”.  This was around 2200 hours that evening.  Whilst sitting and watching television (TV) in a room that also served as a dance floor, the Complainant saw the accused viciously throwing a stone at him from outside the window of that room whilst in the company of a girl.  Although the stone missed him, it did hit the DVD’s nearby and this he says shocked him because as far as he knew, he had not provoked the accused.

 

[9]    The accused then walked in the company of a girl and approached him.  He accused Complainant of having assaulted the girl in accused’s company, whilst Complainant allegedly forcefully deprived another one of her cigarettes, both of which accusations the Complainant told Court he denied.

 

[10]  The accused is alleged to have left the Complainant together with the two girls threatening that dare he find him there when he comes back.  He was to come back later carrying a spear and pulled the Complainant outside by arm.  Outside the accused is said to have drawn a line on the floor using the spear and told the Complainant to leave and never to cross it onto his home’s side.

 

[11]  The Complainant did not leave but protested the said directive clarifying that he had his food to fetch from the room where he had been watching TV.  Whilst arguing about fetching the food, the Complainant says the accused person raised the spear and stabbed him on the left side of his chest.

 

[12]  The Complainant says he initially did not feel any pain as he was being stabbed.  As the accused raised the spear indicating that a further blow was to be landed on the Complainant, the latter says he ran away.  He had run for a short distance when he noted that he was bleeding from the stab wound on his chest inflicted by the accused.  He soon thereafter felt that he was no longer breathing through his nose and mouth but through the wound.  This made him feel weak such that he had to regain strength through closing the wound with his hands whilst he had to run for his life.  Throughout all this he noted that the accused was hotly giving chase from behind with the spear raised in readiness to stab him any moment as each time he looked back he would see the spear raised in an apparent stabbing position.

 

[13]  The Complainant would not receive help from a homestead belonging to Prince Mfazi as his attempt to receive same did not receive a response, apparently because the occupants were already asleep.  The accused eventually caught up with him outside the said homestead where he assaulted him with a vicious open hand causing him to fall and wait for the accused to finish him off.  Instead of finishing him off, the Complainant says the deceased uttered words to himself to the effect “I love this boy” and left him there.  He was to lose consciousness soon thereafter.

 

[14]  Not much of the accused’s evidence was challenged through cross examination.  The accused put to the Complainant that had he left his homestead at the time he was told to, he would not have been stabbed.

 

[15]  The accused further put to the Complainant that he was the one who arranged to transport him to hospital which the Complainant denied.  The Complainant denied a contention by the accused that he had not been stabbed on the chest but the stomach.  The accused further put to the accused that he did not intend to kill him for if he so intended, nothing would have stopped him from doing so.  The Complainant’s answer was that the accused already thought he had already killed him that is why he could not finish him off.

 

[16]  Otherwise according to the Complainant, after being left by the accused lying down, he was only to regain his consciousness in hospital, where he realised he was on drip and was breathing through a certain pipe that had been inserted on his chest.  He otherwise spent about a week in hospital being treated.  In fact he says it took him about three days to be able to speak again after regaining his consciousness.

 

[17]  According to PW2, the investigating officer, he received a docket for investigating this matter and he says he proceeded to the accused’s home at Mbhuleni in Matsapha where he introduced himself as a Police Officer investigating an attempted murder case.  He says he then cautioned the accused in terms of the Judges Rules where he informed him that he was not obliged to say anything but if he did say anything, such was to be recorded and could be used in Court against him.  He says the accused voluntarily produced a spear which he fetched from his house.  He says he thereafter charged the accused with attempted murder and produced him before Court.  This witness further handed to Court as an exhibit the spear whose length was estimated to be about 2.5 metres with a very sharp tip on the blade estimated at 15 cms in length.  The tip started off as a pencil sharp blade and steadily grew in width.  It was marked exhibit 1.

 

[18]  Under cross examination this witness was asked if he saw where the Complainant was injured and he answered that it was on his left front chest and behind him there hung a drip that had been inserted by the doctors.  It was put to this witness that the Complainant had been stabbed on the lower abdomen which this witness disputed and maintained he was stabbed on the chest.  It was further put to this witness that the accused gave the Complainant first aid including arranging his transport to hospital which he could not deny.  The matter adjourned after the evidence of this witness and on resumption two applications were made.  In the first one, the accused sought to change his plea to that of guilty to assault with intent to do grievous bodily harm from that of attempted murder.  The Crown rejected such an offer and insisted on the charge of attempted murder. 

 

[19]  As we were approaching lunch at this stage, an application was made for an order terminating the accused person’s bail.  I granted this application in terms of Section 145 of the Criminal Procedure and Evidence Act 67 of 1938, because of two things.  Firstly damning evidence had been raised against the accused person who appears to have hitherto taken the matter as a very light one.  He had in fact exhibited this when at its commencement  he had indicated that he did not need an Attorney for this matter but for the culpable homicide one.  Because of the evidence that had been given he had applied to change his plea from that of not guilty to attempted murder to that of guilty to assault with intent to do grievous bodily harm.  This had been rejected by the Crown which meant we were now to proceed with the serious charge he was no longer comfortable with, understandably on the damning evidence given against him.

 

[20]  It turned out I was not the only one who felt or perhaps observed this risk as lunch was being approached in view of the application by the Crown.  I was therefore convinced that the risk of the accused person eloping trial was very high.  Accordingly, and because of these considerations I granted the application by the Crown that his bail was then being withdrawn.  In any event Section 145 of the Criminal Procedure gives the Court such discretion.  I was prepared however to entertain whatever representations after lunch.

 

[21]  When the matter commenced in the afternoon the accused had instructed an Attorney Mr. T. Fakudze who informed the Court he had since been instructed to represent the accused person.  Mr. Fakudze revived the tender for the plea of guilty to assault with intent to do grievous bodily harm whose acceptance was however in the hands of the Crown as he was not necessarily pleading guilty to the same offence he had been charged with.  This was again rejected with the effect we had to proceed on the basis of the main charge.

 

[22]  On the termination of the accused’s bail, Counsel for the defence submitted that same should not have been because his client was presumed innocent at that stage as well as because of the provisions of the Constitution on the right to liberty.  The Crown on the other hand submitted that it was not only a case of the provision of Section 145 of the Criminal Procedure and Evidence Act which empowered the Court not to extend bail after a plea has been taken but there were also several considerations such as the overwhelming evidence that had already been led taken together with the fact that the accused and the Complainant were from the same area and that the strong evidence made it most likely for the accused to escape and evade trial continuation particularly when considering the fact that the offence was a third schedule offence to which neither a fine nor a suspension was permissible upon a finding of guilt.

 

[23]  I decided that the termination of the accused person’s bail made when the matter adjourned for lunch be maintained for the reasons set out above.  I was of the view that Section 145 of the Criminal Procedure and Evidence Act was framed in such a way that it was the accused who had to convince the Court why bail should not be extended as opposed to the other way round.  Notwithstanding this provision I was alive to the fact that the Constitution had brought about Section 21 which guaranteed the right to a hearing.  It was in my view in accord with this observation that I had allowed Defence Counsel to address me before I could permanently terminate the accused’s bail.

 

[24]  The last Crown witness was the medical doctor who attended to the Complainant after the incident complained of.  He gave evidence as PW3 and introduced himself as Dr. Peter Samson Gussesse.  He informed Court that he was employed by the Raleigh Fitkin Memorial Hospital as a general practitioner and had qualifications from the University of Adis Ababa, called Black Lion Medical Faculty.  He said had done the job for over 10 years then.  He said that he had attended to the Complainant on the 1st of June 2008.

 

[25]  The Complainant had a stab wound on the chest measuring 3 cm in width and a bruise on the right handside of the head.  He had internal bleeding which necessitated that he be admitted so that both the blood that had bled internally as well as the air could be drained using a pipe.

 

[26]  The Doctor classified the injury as a serious or very severe one particularly because of the internal bleeding and the air that had to be drained out of the Complainant.  The doctor then handed in the Medical Report he had filled in, which was marked as Exhibit “A”.  The doctor had also clarified that the stab would had caused the air and the internal bleeding and these were going to lead to the accused’s death if they were not drained as they were bound to cause an infection of the lungs.

 

[27]  The Doctor was asked under cross examination as to how much force was used in his opinion given that a spear was used.  The Doctor answered that strong force was used when considering the depth of the wound as deciphered from the internal bleeding of the Complainant together with the air that ended up being accumulated as well as the fact that the stab wound had deeply penetrated the inside of the Complainant resulting in what he described as a fatal-bound haemorige and air that had to  be drained out.  The doctor also refuted the suggestion that the stab would was on the lower abdomen and maintained it was on the left hand side of the Complainant’s chest.

 

[28]  The Complainant’s Attorney, Mr. Fakudze made an application in terms of which he sought an order of Court recalling the Complainant to ask him several questions given that the accused was representing himself at the time this witness gave his evidence.  This he said he was doing in terms of Section 199 of the Criminal Procedure and Evidence Act.  What motivated his application besides the fact that the accused had initially represented himself, he said was for him to enquire on the character of the Complainant, their history as well as the accused’s intention and manner in which the crime was committed.  Defence Counsel also disclosed that although he wanted to recall the said witness as a witness of the Court he had already held discussions with him and had actually brought him to Court.

 

[29]  Section 199 of the Criminal Procedure and Evidence Act provides as follows:-

 

        Subpoenaing of witnesses or examination of persons in attendance by the Court

 

“199               (1) The Court may at any stage subpoena any person as a witness or examine any person in attendance though not subpoenaed as a witness, or may recall and re-examine.

 

(2)        The Court shall subpoena and examine or recall and re-examine any person if his evidence appears to it essential to the just decision of the case.”

 

[30]  In R v Omar 1935 AD 230, it was stated that a criminal trial is not a game in which an accused person who is in reality guilty should be discharged because of some defect in the state’s case nor should an innocent man be convicted because of some omission, mistake or technicality.

 

        This suggests to me that the primary question to answer is whether an otherwise innocent man was, in this matter, about to be convicted.

 

 [31]In approaching this question I was alive to the fact that the section makes a provision for two scenarios – that in which the Court has a discretion and provided for in terms of subsection 1 as well as that where the Court is obliged to recall a witness because justice can only be done if the witness has been recalled.  See in this regard R v Omar (Supra).  The nature of the application made before me and as I understood the matter was in terms of Subsection 1 which is where the Court has a discretion in deciding whether or not to recall the witness.

 

[32]  As revealed above, one of the reasons for which the witness was sought to be recalled was for character purposes.  Character evidence is not ordinarily admissible evidence.    A Court cannot allow the recalling of a witness so that a question seeking to introduce inadmissible evidence can be put to him.  See in this regard R v Laubscher, 1926 AD 276.  In such circumstances the Court would be justified in refusing the witness’ recall and I could not approve of such a recall in this matter for this reason.

 

[33]  The other reason was to establish the intention of the accused as at the time he stabbed the deceased.  On this ground the Court considered the fact that this was not a matter to turn merely on dolus directus but could turn on dolus eventualis as well, which is the type of intention inferable from the circumstances of the matter.  There had not been any denial that the stab wound had been inflicted by the accused.  It is not in dispute he raised the spear and pointed it to the accused in a stabbing position.  The accused’s own witness DW2 confirmed this.

 

[34]  In any event there was little doubt in my mind that the accused who had already acted violently towards the Complainant by throwing a stone at him in the presence of other patrons and thereafter threatened the accused when he was fetching the spear that dare he find him there on his return, including drawing a line with the same spear and saying he dare not cross such line can ever be construed not to have intended to stab the Complainant when the latter is eventually stabbed.

 

[35]  Put differently, dolus eventualis is intention of similar weight as dolus directus for purposes of liability and can be inferred from the facts of a matter.  In any event whatever doubt I had was cleared when Defence Counsel submitted that although this had initially been a Crown witness, and now a Court’s witness he had already met him and discussed the matter with him, including having brought him to Court that morning.

 

[36]  I now had serious doubts about the independence of the witness including a dilemma on how the intended witness was to be dealt with because the procedure would have been to recall him for being cross-examined but now if there had already been discussions with him that in my view was going to be inappropriate as the witness would no longer be a  neutral witness as the Defence Counsel would have more or less have led him than cross-examined him.  The conduct of the Defence Counsel to me suggested an interference with the witness which on its own is a serious matter as it could amount to defeating the ends of justice.

 

[37]  In fact it is important to state as well that the tone of the application was that this witness would now be recalled as a Defence witness when he had initially been a Crown witness which to me was a strange proposition where the witness would have been required to change sides.

 

[38]  The other ground was that their history was required to be put on record.  There was no explanation on this ground to enable the Court understand what it is that would have been important in such history so as to necessitate the recalling of a witness by the Court in exercise of its discretion.  I can only state the record is riddled with assertions including questions and answers on the history of the two role players herein, such that I do not see and was indeed not taken into defence’s  confidence in this regard in order to exercise my discretion in its favour.

 

[39]  I was convinced with all the foregoing that this was not a matter where I could realistically say that there was the danger of an innocent accused person being convicted.

 

[40]  Lastly, on this point I was convinced I had exercised my discretion in terms of the standard set out in such cases as R v Noorbhai 1945 AD 58, where it was stated that a Judicial Officer’s discretion in terms of this Section would only be attacked if not exercised judicially.

 

[41]  Consequently I rejected the request for the recalling of the witness on the foregoing considerations.

 

[42]  The Defence led the evidence of three witnesses including the accused.  Nothing much turned out of the evidence of these witnesses mainly because what was said by them had not been put to the Crown witnesses and was as such an after thought or because what was said was corroborating what had already been said by the Crown witnesses or because it was not taking the matter forward.

 

[43]  As concerns the law, the position is now settled, that there are two types of attempts as expressed in the case of R v Schoombie 1945 AD 541-6, by Watermeyer CJ who put the position as follows:-

 

 

                        “Attempts seem to fall naturally 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 acts has been prevented by the intervention of some outside agency.”

 

[44]  It was submitted by Crown Counsel, an assertion I agree with, that for purposes of this matter the Court should concern itself with the first scenario because in this matter the accused had done everything he had set out to do but failed in his purpose because of the existence of some unexpected obstacle which was the intervention of the Doctor.

 

[45]  According to Nathan CJ (as he then was) in R v Mndzebele 1970 – 76 SLR 198 the position was put 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 (purpose) at least to injure the Complainant.”

 

            I associate myself with this principle and endorse it to be the one I am going to follow in this matter.  When considering the facts of the matter, there can be little doubt in my view that there was a contemplation of a risk to life by the accused person for as a Swazi he no doubt knew that a spear is used to slaughter big beasts let alone a human being.  The accused was no doubt reckless, when he used the spear, as to the consequences.  There was also no doubt an intention (purpose) to injure the Complainant existed.  These latter considerations are discernible both from the clear indeterminatus stabbing of the Complainant taken together with the fetching of the spear to back a demand that the Complainant leaves the homestead.  It became clear even then in my view that if he was not heeding the directive then the spear had to be used, and was used, as the tool to back it up.

 

[46]  In R v Huebsch 1953 (2) SA 561 (A) the position was put as follows which in my view throws some further light in this matter.

 

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.”

 

[47]  Considering the position set out above in the Mndebele matter,  which qualifies that set out in the foregoing after an in-depth reviewal of the authorities by Nathan CJ, I have no doubt that the Crown had proved the case against the accused and I accordingly found him guilty as charged.

 

        Sentence

 

[48]  Given the fact that I also dealt with sentencing in the matter after having been addressed on mitigation or aggravation I now give my written reasons for the sentence I imposed.

 

[49]  I will start off from the premise that it was common cause between all the parties involved in the matter that sentences for attempted murder are treated as similar to those of culpable homicide.  It was further also agreed between the parties that attempted murder is a schedule three offence in terms of the Criminal Procedure and Evidence Act 67 of 1938, which is to say it neither allows a fine nor a suspension of a sentence, which is but one of the distinguishing characteristics between the two offences.

 

[50]  I was informed and I took it to be, that the accused was a first offender as I was informed he had no records of previous convictions.  This I construed in the accused persons favour.

 

[51]  I took into account that the accused had three children who were all dependant on him.  This meant that the sentence I give him, and subject to all the other competing interests, and in proper context should not be the highest sentence as it should give the accused an opportunity to be subsequently reunted with his children who no doubt need his guidance in life.  This I say bearing in mind that as at the submissions stage, the parties were ad idhem that this is a third schedule offence where there is neither a suspension nor a fine.

 

[52]  I also took into account that although the accused had pleaded not guilty to the charges, his handling of the matter was not confrontational and disruptive but was forthright which saved the Court lots of time.  This, together with the fact that the accused’s undisputed evidence, depicts him as the person who arranged the deceased transport to hospital, indicates some realization or taking responsibility for his actions which is indicative of remorse.  The same thing applies to the nature of the accused person’s plea which even though it was not that of guilty on the main charge he did plead guilty to a lesser one, a further indicator of his taking responsibility.

 

[53]  The accused also cooperated with the Police.  This and the foregoing I construe in the accused’s favour even though he did not express such remorse directly or as an apology in Court.

 

        I have also considered the age of the accused which although not disclosed in Court, there can be no doubt that he is still young and in his late thirties or early forties.  Consequently the sentence I impose must give him a chance to reform, after he would have squared his accounts with society.

 

         I have also taken into account that there was no life lost in this matter.

 

[54]  Be that as it may, I tried as much as I possibly could to ensure that the sentence I give should reflect that the accused has been convicted of a serious offence.  Matters where violence to a person of another is an element are on the rise and the sentence I pass had to send a clear message to other would be offenders.

 

        I also had to consider that it would take the Complainant a long time to heal and be normal if he ever will be as his was a near fatal case.

 

        I have also had to consider that the weapon used on the Complainant is not and should not be used against a fellow human being whatever the situation because of its lethal nature including the fact that it is culturally used to slaughter beasts.

 

[55]  Society demands to be protected with those who violate the social order particularly in the manner the accused did being warned that such conduct will not be tolerated.  There is no other way of sending out such a message than through the sentences passed being acceptable to the public.  It is otherwise true that members of the society, including those from Mbhuleni where lawlessness of shocking proportions was shown to be the order of the day in this matter, needed to walk and feel free and protected by law.  Again this warrants an appropriate message being sent out there to other would be offenders.

 

[56]  I was otherwise alive to the fact that as I pass this sentence I needed to try as best I can to weigh the three competing interests as expressed in the triad, which comprises the interests of society, those of the accused and the offence itself.

 

[57]  I otherwise tried to, maintain the delicate balance between the competing interests referred to in such cases as R v Zinn 1969 (2) SA 537.  I also tried as much as I could to avoid striving for severity just as I had to make sure I do not fall into misplaced pity.

 

[58]  On the appropriateness of the sentence, I have considered that culpable homicide on the most serious side of the scale attracts a sentence of around 10 years.  See in this regard Musa Kenneth Nzima v Rex Appeal Case No. 21 of 2007 at page 8.  I have also considered the fact that with a firearm in which a bullet still remains embedded in the Complainant’s body, the accused was given seven years which the Supreme Court confirmed to be appropriate.  See in this regard, Delisa Tsela v Rex Criminal Appeal Case No. 11/10.

 

 

 

[59]  It was for the foregoing considerations that I gave the following sentence which, within the context of the difficulties a Judicial Officer faces at this stage of the proceedings, I considered to be appropriate.

 

  • The accused person is sentenced to 5 years imprisonment.

 

  • This period is to take into account the number of days the accused person spent in custody between the 03 June 2008 and the 12th December 2008 when he was admitted to bail.

 

Signed at Mbabane on this …….. day of April 2011.

 

_____________________

N. J. Hlophe

JUDGE

 

 

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