Court name
High Court of eSwatini
Case number
329 of 2008

R v Shongwe (329 of 2008) [2011] SZHC 82 (03 March 2011);

Law report citations
Media neutral citation
[2011] SZHC 82













IN
THE HIGH COURT OF SWAZILAND



HELD
AT MBABANE



CRIMINAL
TRIAL NO. 329/08



In
the matter between:



REX















vs



















ZANEMPI
SIFISO SHONGWE















FOR
THE CROWN:
MR.
P.
DLAMINI



FOR
THE ACCUSED:
IN
PERSON







JUDGMENT







SEY
J.



[1]
The accused Zanempi Sifiso Shongwe is indicted on a single count of
culpable homicide as appears on the indictment dated at Mbabane on
the 18
th
day of September 2008. The particulars of the indictment being that
upon or about the 5 August 2008, at or near Othandweni area in the
Lubombo Region, the said accused did unlawfully assault Mshengu
Tsabedze and inflicted upon him certain injuries which injuries
caused the death of the said Mshengu Tsabedze on the 6
th
August 2008 and the said accused did thereby negligently kill Mshengu
Tsabedze and commit the crime of culpable homicide.











[2]
On the 24
th
day of November, 2010, the accused appeared before me and before the
indictment was read to him the accused was reminded of his rights to
be represented by an attorney of his choice. He intimated to the
Court that he so wished to be represented and thereupon the case was
postponed to the 29 November, 2010 to avail the accused time to
engage the services of an attorney. On the adjourned date as
aforementioned, the accused requested for more time to enable him
finalise arrangements pertaining to his attorney's fees. The case was
further postponed to the 1
st
day
of December, 2010 and the witnesses were warned to be present in
Court on that day.







[3]
However, when the case was called on the I
s
day of December, 2010, the accused indicated that he would conduct
his own defence on account of his impecunious state. He pleaded not
guilty to the indictment. The Crown led the evidence of six (6)
witnesses in support of its case, closing it on 2
nd
December,
2010.











[4]
Let me point out at this stage that it is the Crown which brings this
case and it is for the Crown to satisfy the Court so that it is sure
of the accused person's guilt. To put it simply, the burden of
proving the guilt of the accused remains with the prosecution and
continues throughout. If at the end of and on the whole of the case,
there is reasonable doubt, created by the evidence given either by
the prosecution or the accused, as to whether the offence was
committed by him, the prosecution has not made out the case and the
accused is entitled to an acquittal.











[5]
PW1 was Dr. R.M. Reddy who conducted a post-mortem examination on the
body of the deceased on 12 August 2008. He told the Court about the
injuries he had found present on the body of the deceased and he
stated that severe excessive force had been applied. He further
testified that, based on those findings, he had concluded that the
cause of death was due to multiple injuries consistent with injuries
from blunt hard objects like kicking and stoning. PW1 went on to
state that he had compiled and duly signed a report of his findings.
The said report was produced and tendered without objection and
admitted in evidence as Exhibit A.







[6]
Under cross examination by the accused, PW1 maintained that the
contusions on the head of the deceased were due to impact from a
blunt hard object like a stone or kicks.







[7]
The next witness was Detective Constable 3552 Vusie Dlamini, a member
of the Royal Swaziland police who was stationed at the scenes of
crime office at the Simunye police station. He testified that his
duties include collecting any possible scientific evidence that would
be of great evidential value in Court and also to try and preserve
the crime scenes by means of photography. He further testified that
whilst he was on duty on 12
th
August 2008 he had received a phone call instructing him to go to the
Good Shepherd Mortuary where he was shown the body of the deceased.
PW2 went on to testify that he could see some blood stains on the
chest and face of the deceased and he noticed that the deceased had a
small cut on the cheek. He stated that he placed a directional arrow
on the cut and then he photographed the body of the deceased. He
produced and tendered, without objection, four photos which were
admitted in evidence as Exhibits B, C, D and E.







[8]
PW3 was Mantombane Shongwe the mother of the deceased and an aunt to
the accused. She and the accused are neighbours. It is pertinent to
note that she was the only eyewitness. Her testimony is to the effect
that on the 5
th
August 2008, the accused went to her homestead, woke her up and asked
her to accompany him to the gate; that on the way she and the accused
came across her son December; that the latter asked her where she was
going and she replied that she did not know because she was
accompanying the accused; that when they reached the gate the accused
told her that the deceased had insulted him at the spot where they
were drinking beer; that when the deceased arrived he was very drunk
and he was singing and that she called him but he did not say
anything to her.







[9]
PW3 then went on to narrate in detail how the accused assaulted the
deceased. For ease of reference, I shall reproduce hereunder that
part of PW3's testimony which runs thus:











"the
accused also called him but the deceased ran away and the accused ran
after him. I found them in a playing area. The deceased was already
on the ground and the accused was kicking him. As it was dark I did
not notice where the accused was kicking the deceased but I did
notice that he was kicking him. I tried to stop the fight but to no
avail. My son December then went to arm himself because the efforts
we had made to stop them was not succeeding because the deceased was
already on the ground. The deceased was not carrying anything on him.
He was not able to fight back because he was just lying down on the
ground motionless."







[10]
It is PW3's further testimony that the deceased then woke up and he
went to his hut to sleep. The following day being the 6
th
August 2008 she discovered that the deceased had died whilst he was
sleeping in his hut. She said she sent for the accused and when he
came she informed him that the deceased had died and that the accused
then told her that it was not his intention to beat the deceased to
death. She said they later conveyed the body of the deceased to the
mortuary.







[11]
In answer to questions put to her by the accused during cross
examination, PW3 maintained that, regardless of what the accused was
wearing, she did see him kicking the deceased. She vehemently denied
the accused person's allegation that she had hit the deceased with a
log and thrown stones on him because they were not on good terms. She
further denied the allegation put to her by the accused that she and
the deceased used to chase after each other at their home. Finally,
in exasperation PW3 retorted that she did not see the significance of
the relationship between her and the deceased because whatever the
relationship was between them did not mean that the accused should
kill him.







[12]
One Bheki Tsabedze testified as PW4 and he told the Court that the
deceased was his elder brother and that he was one of those who
identified him as Mshengu Tsabedze.







[13]
PW5 was Philile Mlambo. She testified that on 9
th
August 2008 the accused, who is her cousin, had gone to her homestead
to ask her to accompany him to Siphofaneni police station. That the
accused had explained to her that the previous day he had assaulted
the deceased because the deceased had insulted him when they were
drinking. She said she asked the accused what he had used to assault
the deceased to the point of death and the accused replied that he
had used his fists and kicks.











[14]
At the close of the case for the Crown the rights of the accused were
explained to him in terms of the provisions of Section 174 of the
Criminal Procedure and Evidence Act. After being told how he could
present his case and the implications associated with each of the
options available to him, the accused elected to give evidence under
oath. He further stated that he had one witness to call.











[15]
In his defence, the accused told the Court that the deceased had
insulted him when they were drinking traditional brew at one Nathi
Matsenjwa's home. He said the insults did not go down well with him
and that after 15 minutes he decided to go to the deceased's mother
(PW3) to report the matter. The accused further testified that when
he arrived at the deceased's home he found that they had gone into
their house as it was past 6:30 p.m. He said he knocked and he asked
PW3 to come outside because there was something that he wanted to
discuss with her. That after she came out they went and stood by the
gate to wait for the deceased; that when the latter was about to
enter the gate PW3 asked him to stop so that they could talk to him
but the deceased refused to stop and he increased his pace and walked
away. The accused went on to state that PW3 then instructed him to
run after the deceased and hold him. He said that the place where the
deceased was running was full of stones so the deceased stumbled on
one of the stones and fell down.















[16]
The accused continued his narration of the incident as follows:



"
I was able to get hold of him. He was trying to find his way out so
he could run away. I was trying to hold him down so he could not run
away and then his mother came. She was carrying a log which I think
was two metres. When I was still holding him his mother asked him why
he was insulting me. She even told him that before he left for
Nathi's home he had insulted her. The deceased did not answer and he
just remained quiet. At the time no one was holding him and he was
just seated on the ground. The deceased's aunt was present at the
time. The only time he started to answer to the questions put to him
was when his mother started to hit him with the log. The deceased
asked his mother to be lenient with him as he would now explain why
he was insulting me. The deceased explained that he did not know why
he makes the insults to even refer to us as people who are practising
witchcraft. He said it just comes to him. I said to the people around
that I did not like the insults and I would report to the elders. At
that time the deceased's brother December was present. He came armed
to stop any fight but he found that no one was hitting the deceased.
That is when the deceased's parents asked me to leave and they also
asked me not to report the matter to the elders. They said they would
speak to the deceased. I then left the deceased together with his
aunt and his mother who were still talking to him".







[17]
The accused went on to tell the Court that he later accompanied his
wife and children to a revival at the bus station and that on their
return around 11 p.m. they heard the deceased still arguing with his
mother. He testified further that on the following day he was
notified by PW3 that the deceased had died.











[18]
In cross examination, the accused denied having assaulted the
deceased. He also denied the Crown's suggestion that he had told PW5
Philile Mlambo that he had assaulted the deceased with fists and
kicks. He stated that PW5 was not telling the truth and that she had
a reason to fabricate evidence against him because he had borrowed
money from her which he was not able to pay back. Moreover, he said
that the witness had been schooled as to how to answer the questions
because he had found that all the witnesses were together in a
certain office in Mbabane. When prosecuting counsel put it to the
accused that PW5's evidence was based on the statement she had made
to the police on
9th
August
2008 the accused replied that he did not know about that.







[19]
I should interpose at this stage and state that there are issues
which the accused raised for the first time under cross examination
and which issues had not been put to the Crown's witnesses though
they were material. Suffice it to say that I shall deal with the said
issues later on in my judgment.











[20]
Celiwe Mamba, who is the wife of the accused, testified as DW2. She
sought to confirm those issues aforementioned which had been raised
by the accused in answer to questions put to him under cross
examination.











Analysis
of the Crown's Evidence



[21]
Judging from the totality of the evidence adduced, I find that the
evidence of the Crown is not only credible but reliable. To begin
with, there is the evidence of PW3 who is the mother of the deceased
and an aunt to the accused. As an eye witness, she gave a detailed
description of the events that transpired from the time the accused
arrived at her homestead up to the time he assaulted the deceased. I
must say that I find her evidence about the assault itself to be
quite graphic and full of clarity. According to PW3, the deceased was
very drunk and he was already on the ground whilst the accused was
kicking him. In my considered judgment, I must state that I find the
evidence adduced by PW3 overwhelming and credible.



I
closely observed her demeanour as she testified and I could see her
anguish when she stated that the deceased was not able to fight back
because he was just lying down on the ground motionless.







[22]
In his closing Address, Crown counsel submitted to the Court that PW3
may be wrongly construed as having a bias against the accused since
the deceased was her son, but that was minimised by the evidence of
PW5 who is a relative of the accused person. In any event, I find
that PW5 was truthful and honest. She told the Court that she was
approached by the accused who asked her to accompany him to the
police station so that he could surrender himself. When PW5 enquired
from the accused what the reason was, he told her that he had
assaulted the deceased with fists and kicks. She further told the
Court that the accused had said that he did not intend to kill the
deceased and that the incident was unfortunate. The accused tried to
discredit the testimony of PW5 by contending that she was schooled to
fabricate evidence against him. In my considered view, I find this
contention baseless and devoid of merit. It was the accused himself
who went to PW5 to ask her to accompany him to the police station. I
believe if she had been told or instructed to fabricate evidence
against the accused then she would have concealed the evidence
pertaining to the fact that the accused had said it was not his
intention to kill the deceased.







[23]
The next piece of evidence I shall examine is the post-mortem report
which was admitted as Exhibit A. It established that the deceased
died from multiple injuries. "The left parietal bone in the
deceased's skull was fractured" and there was about "300 ml
of blood present in the pericardial sac and petechial haemorrhage was
present on the heart." The face was swollen and there was a
"contusion of 8 x 5 cms present on the left side of the top of
the head. A cut injury with sharp margins of 2 x 1 cms was present on
the right side of the chin and another contusion of 11 x 9 cms was
present on the front and middle portion of the chest."







[24]
I must state that the said post-mortem report is consistent with the
testimony of PW1 Dr. R.M. Reddy. Moreover, I have noted that these
external injuries are clearly visible on Exhibits B, C, D and E which
are the photographs tendered by PW2. The indelible picture left in
the Court's mind from these overwhelming pieces of evidence is of a
weak defenceless man lying down on the ground helplessly. He was not
armed in any way and he was not a danger to the accused. It is also
in evidence that the deceased had walked away from the accused yet
the latter pursued him and assaulted him in an irrational and
reprehensible manner.











[25]
I shall now proceed to consider the evidence of the accused as
outlined earlier on in this judgment. I find that it is not only a
bald denial of the Crown's evidence but it is peppered with lies and
inconsistencies as well. As I had mentioned earlier on, there are
issues which the accused raised for the first time under cross
examination and which had not been put to the Crown's witnesses
though they were material. For instance, the accused made the
following allegations namely:



(a) That
after he was released from detention, PW3 had gone to his
homestead
to apologise to him for implicating him in the case;




  1. That
    PW3 had been summoned to the Royal Kraal by the Chief;



  2. That
    the said Chief had levied a fine of a cow on PW3;



  3. That
    the reason given by the Chief was that the Tsabedze people had gone
    to report that PW3 had killed the deceased by beating him with logs
    and stones; and



  4. That
    the Chief had stated that PW3 had called the accused to assist her
    in beating up the deceased with logs and stones.




[26]
It is pertinent to note that none of these allegations was put to PW3
in cross examination important as they were to the accused's case.
When he was asked by the Crown's counsel as to why he had not put
these allegations to PW3 he replied "I didn't want to ask that
particular witness because she would deny it. I wanted to wait for
other witnesses to come. I did not remind her about the trial at the
Royal Kraal because I wanted to wait for December to come but then he
did not come before Court. PW3 denied all my questions so I did not
want to ask her that particular question."







At
this stage, I must state emphatically that I do not accept the
evidence of the accused in this regard and I would discountenance it
as nothing but an afterthought to exculpate him from the charge. In
any event, having carefully considered the evidence of the accused as
a whole, I find it false and unreliable and I accordingly reject it.











[27]
With respect to DW2, I find that she was not present when the alleged
assault took place. All she sought to do was to confirm the story by
the accused person that PW3 had gone to their home to apologise. In
cross examination she was asked whether she had reported to any of
the traditional structures that the accused had been wrongly
incarcerated and that he was not responsible for the death of the
deceased. The witness conceded that she and the accused had never
reported the matter to the Chief's Kraal, nor to Siphofaneni police
or to any of the traditional structures in their community. DW2 was
not an impressive witness at all and she was very evasive. In the
result, I likewise reject her evidence.







[28]
The law relating to the offence of culpable homicide is as set out
under section 2 (l)(a) & (b) of the Homicide Act, No. 44/1959.
The offence is defined as follows:







"2.
(1) A person who -




  1. unlawfully
    kills another under circumstances which but for this section would
    constitute murder; and



  2. does
    the act which causes death in the heat of passion caused by sudden
    provocation as defined in section 3 and before there is time for his
    passion to cool;




shall
only be guilty of culpable homicide."







[29]
In the case of
S
v Burger 1975 (4) S.A. 877 (A)
at
878,
Holmes
JA had this to say about the definition of culpable homicide: "As
to the law, in general:



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







[30]
According to one textbook, the definition of culpable homicide means
"the unlawful killing of a human being either (a) negligently,
or (b) intentionally in circumstances of partial excuse." See
P.M.A. Hunt: South African Criminal Law and Procedure volume II at
page 373.







[31]
In the case of
Annah
Lokudzinga Mathenjwa v. R 1970 - 76 SLR 25,
the
appellant, a Swazi woman, had been convicted of the murder of a
seventeen month old baby, Zakhele Fakudze, and extenuating
circumstances having been found, was sentenced to life imprisonment.
She appealed against the conviction on various grounds. Two of the
Justices of the Court of Appeal opined thus:



"If
the doer of the unlawful act, the assault which caused the death,
realised when he did it that it might cause death, and was reckless
whether it would do so or not, he committed murder. If he did not
realise the risk he did not commit murder but was guilty of culpable
homicide, whether or not he ought to have realised the risk, since he
killed unlawfully." (per Schreiner
P,
Caney JA concurring)



It
is noteworthy that this case was quoted with approval by a
differently constituted panel of the Court of Appeal in the case of
Maphikelela
Dlamini v. R 1979 - 81 SLR 195.







[32]
Turning back to this present case in hand, I must state that it is
abundantly clear from the totality of the evidence adduced by the
Crown that the accused person did unlawfully assault the deceased and
did inflict upon him certain injuries which said injuries caused his
death. The fact that the deceased had insulted the accused does not
exculpate the accused from the offence of culpable homicide.



In
my considered judgment, for the accused to have attacked the deceased
with fists and kicks the way he did cannot in any circumstances be
justified. The assault on the deceased was unlawful, thereby
resulting in the negligent causing of the death of the said deceased.
I so hold.







[33]
In the premises, I am satisfied that the Crown has proved its case
beyond reasonable doubt that indeed the accused committed the offence
charged. I thus hereby find the accused guilty and convict him as
charged.







[34]
In mitigation, the accused told the Court that he had been involved
in an accident whilst he was out on bail and that he is presently
recuperating. The accused is also a first offender. He has a family
at home with three children. He urged the Court to be lenient with
him.







Sentence



[35]
In arriving at a proper sentence, I feel it is imperative that I do
not lose sight of the principle that the sanctity of human life
should be sacrosanct. The protection of right to life is one of the
fundamental rights and freedoms of the individual enshrined in the
Constitution of the Kingdom of Swaziland Act, 2005. Section 15 (1)
thereto provides that a person shall not be deprived of life
intentionally save in the execution of the sentence of a court in
respect of a criminal offence under the law of Swaziland of which
that person has been convicted.











As
I have stated earlier on in the judgment, for the accused to have
attacked the deceased with fists and kicks the way he did cannot in
any circumstances be justified. I am therefore of the view that the
offence committed by the accused calls for a severe sentence to act
as a deterrent for other persons who might be minded to commit the
same offence.











Be
that as it may, however, I am mindful of the dictum in the judgment
of the
Supreme
Court of Swaziland
in
the case of
Gerald
Mvemve Valthof And The King Crim. Appeal Case No: 5/10
in
which their Lordships stated that "the criminal jurisprudence of
this Kingdom, like in some other nations, requires that the courts
ought in appropriate cases to temper the severity of sentences they
would otherwise impose to take account of human frailties." In
the same judgment, their Lordships went further to refer to what they
termed the oft - quoted dictum of
Holmes
JA
in the case of S
v.
Rabie 1975 (4)
S.A.
855
(A)
where he stated as follows:











"Punishment
should fit the criminal as well as the crime, be fair to society and
be blended with a measure of mercy according to the circumstances."











[37]
In passing sentence in this case I will place reliance on the
authorities I have cited above. I will also take into consideration
the personal circumstances of the accused. In the circumstances, the
accused is hereby sentenced to five years imprisonment two of which
are suspended for a period of three years on condition that he is not
convicted of an offence involving violence during the period of
suspension.







Dated
the 3
rd
day of March 2011











MM
SEY(MRS)



JUDGE
OF THE HIGH COURT