Court name
High Court of eSwatini

Rex v Vilane () [1998] SZHC 28 (24 February 1998);

Law report citations
Media neutral citation
[1998] SZHC 28









1


IN
THE HIGH COURT OF SWAZILAND


a:Fofidi


REX


vs


ENOCK
FOFIDI MPUNDLE VILANE


Cri.
Trial No. 131/1997


Coram S.W.
SAPIRE, A

C
J


For
Crown Ms Nderi


For
Defence Mr. B.J. Simelane


Judgment


(24/2/98)


You
Enock Vilane are charged with the murder of Mahhedle Joseph Magagula.
It is alleged that on the 31st July in the Lubombo Region you killed
Magagula with intention to kill. To this charge you pleaded not
guilty.


It
is common cause that you in the company of James Dlamiru went to the
homestead of Solomon Magagula. When you got there you opened the door
of the house forcefully and because you were a Community Policeman
you insisted on taking the people who you found in the house to
Andreas Dlamini. Your reason for doing this was that the deceased who
was a brother of Solomon had not been reported as staying there. The
evidence of Solomon's girlfriend and that of Solomon himself is that
you entered the dwelling in a violent manner and that you behaved in
an aggressive and rude way to the three people there.


2


a:Fofidi


The
evidence is also clear that James Dlamini did not come close to the
dwelling but stopped some distance away keeping himself out of sight.
Why this was so is not clear.. According to your version James
Dlamini had come to you as a messenger from Solomon Magagula to
complain that his brother was interfering


with
his wife. If that were so and James was acting at the request of
Solomon it seems strange that he should try to keep his presence
hidden. What is more consistent is that you, learning in some way
that there was a third person staying at the homestead who had not
been reported, you decided to take what you considered to be the
appropriate action.


Because
there was a friendly relationship between James and Solomon it is
difficult to understand why James did not want to be seen to be
associating with you in taking this action against the brother. In
the event there is evidence that you caused the three people to dress
themselves and to be led to the home of Andreas Dlamini. It is also
evident that you were proceeding in a single file towards the home of
Dlamini. Magagula and his wife were in front while the deceased was
at the back, you following him.


It
is quite clear that while this party were making their way to the
home of Andreas Dlamini the deceased was assaulted as a result of
which he later fell to the ground. When Solomon Magagula turned
around to enquire what was going on he himself received a blow to the
face. You were the only person present there. James was not seen and
both Solomon and his wife are clear that it was you who assaulted the
deceased.


As
a result of this assault the deceased later succumbed and we have a
graphic description of how you asked Solomon's wife to close the
deceased's eyes and to stretch out the body. Solomon and his
wife/girlfriend testified that you committed a second assault on the
deceased by kicking him.


The
medical evidence which has been submitted does not indicate that this
assault by kicking caused any harm to the deceased which was noted in
the postmoterm examination. The postmoterm report is to the effect
that the deceased died of concussion of the brain and apart from this
head injury the doctor noted injury to the right upper limb and right
lower limb and a contused abrasion over the right cheek prominence.
There is no connection between these injuries and the


3


a:Fofidi


kicking.
And it is quite clear that the deceased died as a result of the blow
received in the first assault.


I
accept that you were surprised that the deceased died as a result of
the blow inflicted on him. It is clear that you tried to shift the
blame of the assault to James Dlamini. As a result of the report you
made James Dlamini was in fact arrested together with yourself. After
you had been in custody for sometime, about a week, you decided
however to make a statement to the Magistrate in which you exonerated
James Dlamini.


Now
you claim that you made this statement to the Magistrate in order to
rectify the statement you made to the Police because Dlamini induced
you to make it. I find your explanation quite unbelievable. This is a
statement made by someone who knew that has wrongfully implicated
Dlamini and wish to set things right. The explanation tendered in
Court for this statement is quite illogical. You knew too well that
there were two people implicated in the assault on the deceased. One
of the people was Dlamini and the other one was yourself. You have
now cleared Dlamini and excluded him from culpability for the death
of the deceased. The only other person who could be liable would be
yourself. Why you should have made such a statement merely on the
promise by Dlamini that he would assist you with a lawyer is
difficult to believe. I am satisfied beyond any doubt that you are
the person who inflicted the fatal blow.


I
do not find however that it can be proved that the shovel was used as
a weapon although there is clear evidence that you took the shovel
from Solomon's house. There is also no evidence of the intention to
kill either in a direct sense or in a sense that you were liable for
the probable results of your action. There is nothing to show that
the blow was of such a nature that the person inflicting it must have
anticipated that death will ensue. The evidence being such it is not
possible to find you guilty of murder.


I
do find however that in overzealous exercise of your authority it was
you who inflicted the fatal blow causing the death of the deceased.
The intention to kill has not been proved, the correct and competent
verdict is one of culpable homicide. You are accordingly found guilty
of culpable homicide.


SENTENCE


4


a:Fofidi


It
is unfortunate for you that you are unable to control and properly
use the authority such as it is vested in you as a Community
Policeman. I do not believe that the law recognises the Community
Police as an organ of Government but apparently the Community Police
are a recognised authoritarian force in the communities where they
exist. You acted in an aggressive bullying and high handed manner
that evening and what is worse you did so violently. In finding you
guilty of culpable homicide I have already given you the benefit of a
doubt and come to the conclusion that you did not intend to kill the
deceased but your actions are less acceptable because you committed
the assault in exercise of the authority that you have.


The
assault cannot be justified in anyway and the message must go up to
all concerned whether you are a community policeman or you are a
private individual it is not proper to assault another person. Where
death ensues it is a very serious matter. It is not possible to give
you anything other than a custodial sentence. I bear in mind that it
is said that you have dependants but unfortunately most people who
come before the Court do have children and I understand that these
unfortunate children may suffer to some extent but this cannot be
avoided. As I have said your punishment must suit the crime and the
evidence does not prove an intention to kill. I must also take into
account that no previous convictions have been proved against you and
I must accordingly treat you as a first offender.


It
becomes necessary to balance between the undesirability of sending
first offenders to jail and the necessity of passing a sentence which
does not make a mockery of human life. The sentence which I impose is
five (5) years imprisonment of which two (2) years will be suspended
for three years on condition that you the accused is not found guilty
of a crime involving an assault on another person resulting in death
or grievous bodily harm committed during the period of suspension.
Because you have been in custody since the 1st of August last year
the sentence will be deemed to run from the 1st of August, 1997.


S.W.
SATIRE


ACTING
CHIEF JUSTICE