Court name
High Court of eSwatini
Case number
3 of 1999

R v Motsa (3 of 1999) [2000] SZHC 8 (08 March 2000);

Law report citations
Media neutral citation
[2000] SZHC 8

                                                                                 CASE NO: 3/99

IN THE MATTER BETWEEN:

REX

VS

SIPATJI MANDLA MOTSA

CORAM                               : MASUKU J.

FOR THE CROWN                      : MS S.W. NDERI
FOR THE ACCUSED                   : MR M. MAHLALELA

 
 


JUDGEMENT


8/03/2000

(i)     

CHARGE AND PLEA
The accused stands before me charged with the crime of murder, it being alleged that upon or about the 25th August, 1998 and at or near Fairview area in the Manzini District, the said accused person did wrongfully and intentionally kill one Ali Mohammed.

The accused pleaded not guilty to the charge and his attorney confirmed his plea. The Crown led the evidence of seven Police Officers in support of the charge. That evidence is chronicled herein below:-

(ii)    

CHRONICLE OF CROWN’S EVIDENCE
PW 1, 1882 S/Insp.Jeremiah Nxumalo, testified that he services, repairs and takes custody of all Police weapons. He is also responsible for examining and testing firearms for serviceability, having been trained in small arms of the world and having amassed fifteen years experience.
 
It was his further evidence that on the 28th August 1998, he examined and tested a 9mm calibre pistol bearing Serial No.126005 together with ammunition of the same calibre. His findings were that both the firearm and ammunition were in good condition. He further stated that he took one live round and loaded it in the firearm and the bullet was correctly discharged. The Court was further informed that during the examination, the licence holder in respect of that firearm, the accused was in attendance.

In cross-examination, PW 1 was asked as to who accompanied the accused when he went to test the firearm at the Police College and he stated that it was 1739 D/Sgt Khumalo, together with other officers whom he could not recall. PW 1 stated further that the firearm was handed over to him on that day.

PW 2 was 3167 D/Const. Batinsy Mamba, who testified that in August, 1998, he was stationed at Manzini Police Station and was part of a team that was investigating a spate of housebreaking and theft cases, including those which had occurred at Fairview. PW 2 stated that he knew the accused from the accused family’s shop at Evukuzenzele, Manzini. It was PW 2’s further evidence that according to his knowledge, the accused was not a complainant in respect of any of the housebreaking and theft cases reported to the Police. PW 2 further testified that he knew one Armando Thunzini who was a suspect in housebreaking and theft cases which occured at Fairview. For that reason, Thunzini was arrested and interrogated.

On the evening of the 25

th August, 1998, around 18h00, the said Thunzini led PW 2 with some other four Police Officers to his house at Fairview, where they were to collect some exhibits which included a toaster, a curtain and a speaker. PW 2 and 3050 Maphindane Sibandze proceeded to a house which had its lights on and PW 2 knocked on that door. The accused came out of that house and PW 2 asked the accused who the occupant of the house where the Police were going to is. The accused stated that the house belonged to a lady who stays with a boyfriend of Mozambican extraction.
 
It was PW 2’s further evidence that his intention in enquiring from the accused where the said Thunzini lived was a suspicion that the said Thunzini may have misled the R.S.P. by saying he lives in that house which was being searched by the R.S.P.. The accused was asked in order to confirm the veracity of the information furnished by Thunzini to the R.S.P. PW 2 further testified that as a result of the search, they found certain exhibits in the house. PW 2, in describing Thunzini’s house, stated that the houses were in a row and that there was one room between Thunzini’s room and the accused’s. It was PW 2’s further evidence that other than him and Officer Sibandze, none of the members of the R.S.P. team went to the accused’s room. PW 2 further stated that whilst he was at the door to the accused’s room, the accused did not lodge any complaint. PW 2 further denied discussing the details of the investigations and the suspects with the accused.

It was PW 2’s further evidence that the accused came with Officer Sibandze because when they were almost through with conducting the search of Thunzini’s house, the accused was standing at the door of Thunzini’s house. At that time, Sibandze was inside Thunzini’s house. Miss Nderi asked PW 2 if he knew the deceased and he answered in the affirmative. It was his further evidence that at the Police Station, Thunzini told the R.S.P. that the curtain in his possession had been sold to him by the deceased. This witness denied that he or other Police Officer in his presence instructed the accused concerning the deceased. He however confirmed that he later learnt that the accused had shot the deceased.

In cross-examination, it was put to PW 2 that he knew that there was a housebreaking and theft at the accused’s house. It was further put to him that that case was investigated by Officer Maphindane Sibandze. The witness stated that he was not aware of both issues. It was further put to PW 2 that he, Officer Thabo Kunene, Motsa and Sibandze went to knock at the accused’s door, which was denied by PW 2. He stated that he was the one who went to knock and was accompanied by Officer Sibandze. PW 2 further stated that they were not looking for the accused’s house in particular but for any house where they could enlist assistance.

Mr Mahlalela put to PW 2 that the Officers who knocked at the accused’s door informed the accused that apart from Kaitane Nyantsumba, there was Armando Thunzini and the deceased who were responsible for the break in at his house. PW 2 stated that he did not know that. It was further put to him that the accused was called upon to identify Armando, who was accompanied by the R.S.P. PW 2 stated that he did not remember that. PW 2 further stated that he was unaware that Officer Sibandze informed the accused that Nyantsumba had been arrested by the R.S.P..


 
PW 2 was further asked why he did not knock at the house immediately next to Armando’s and his answer was that the lights in the accused’s house were on and he believed that he could find somebody inside that house. It was further put to PW 2 that there were people in the house next to Armando’s and that there were people in the compound from whom any enquiries could have been directed. In response, PW 2 stated that there were no people outside and further stated that the house next to Armando’s was dark and he therefor assumed that there were no people inside, hence he decided to go to the house with its lights on.

It was also put to PW 2 that the sole reason why the Police knocked at the accused’s house was to inform the accused of the arrest of Nyantsumba and Armando and the anticipated arrest of the deceased. This was denied by PW 2 who maintained that his intention in knocking on the accused’s door was to confirm if Armando indeed resided there as he had an element of distrust in what Armando had told them. PW 2 proceeded to confirm that the deceased was a suspect in various housebreaking and theft cases and that the R.S.P. were on his trails. He further confirmed that at the time when they went to Fairview, the deceased was already in the Police’s wanted list.

Mr Mahlalela put certain issues to the witness which he said he could not answer because they were not within his personal knowledge as he was not present when those incidents occurred. They include the following:- that the accused called the R.S.P. after the shooting incident, that the R.S.P. did not arrest the accused but took the deceased to hospital and that the following morning, the accused was not arrested when he went to deliver his firearm licence at the Police Station. PW 2 however conceded that it was not normal for the Police Officers not to arrest a person for a crime they know he has committed. It was then put to PW 2 that the accused was not arrested because the Police had told the accused that the deceased was wanted as a suspect in the housebreaking and theft case perpetrated in the accused’s house. PW 2 stated that he did not know about that but proceeded to add that the R.S.P. could not have told the accused to shoot the deceased. Lastly, the witness confirmed that he knew where the deceased lived.

In re-examination, PW 2 was asked whether Officers Thabo Kunene and Motsa were present when he knocked on the accused’s door and he answered in the negative. He was further asked if the R.S.P. arrest persons who have committed an offence at once or they may wait and arrest them later. PW 2 stated that they investigate, gather evidence and then effect an arrest. When asked if he heard the Police telling the accused to arrest Ali, the deceased, PW 2’s answer was no.

The Crown then called PW 3 3499 D/Const. Andrew Motsa, who testified that he was part of the R.S.P. team that went to Armando’s house. Their purpose was to collect certain exhibits in connection with a case at the said Armando’s home in Fairview. The items collected from that house were a multi-coloured curtain, a speaker and a toaster bearing the label “Ideal”. It was his further evidence that because they were not satisfied with the exhibits found therein, they decided to search the premises, perchance more items suspected to be stolen would be found.

It was PW 3’s further evidence that whilst engaged in the search, the accused came and stood at the door of Armando’s house and peeped inside but uttered not a mumbling word. Nothing else was found after the search. As a result, the R.S.P. team left the house and the accused was then standing outside in the compound. PW 3 testified further that the accused asked the Policemen whether Armando was a friend to Nyantsumba but none of the Police Officers answered him.

PW 3 further testified that although he could not recall the exact time they went to Fairview in the evening, the lights of the vehicle were switched on. He further stated that he was not aware of a complaint laid by the accused in respect of a housebreaking and theft case. PW 3 further stated that he knew Nyantsumba as a Mozambican national whom they used to arrest on a frequent basis. Probed further, PW 3 confirmed knowing the deceased, whom he described as a person they used to arrest. PW 3 stated that he only learnt that the accused was a complainant in respect of a housebreaking and theft case after the accused had been arrested. He further denied having instructed the accused to arrest the deceased and further denied having heard any Police Officer instructing the accused to do so.

In cross-examination, PW 3 asked who the leader of the Police delegation to Fairview was and he stated that it was Kunene who was the most senior in the team. He was told that another witness had stated that a Dlamini was the most senior and his response was that amongst the Officers who went to Fairview that he could still remember, Kunene was the most senior. He was asked as to who was investigating the case involving Armando and he stated that he could not remember. It was put to PW 3 that the R.S.P. mentioned the deceased during the search at Fairview but this was denied by the witness.

The witness stated that he was among the officers who were inside Armando’s house. It was put to him by Mr Mahlalela that the accused entered Armando’s house pursuant to an instruction by the R.S.P. PW 3 stated that he was not aware of the circumstances in which the accused entered the house and was also unaware of where the accused came from. PW 3 also denied that he was aware that Ali was a suspect at Fairview and was wanted by the Police as was put to him.

It was further put to PW 3 that the accused was not arrested timeously because the R.S.P. knew the circumstances surrounding the deceased’s death and that the Police knew that the deceased was a suspect wanted by the Police, which was also conveyed to the accused by the R.S.P.. In answer, PW 3 stated that the Policemen who attended the scene of the shooting were wrong in not arresting the accused. He denied that the R.S.P. told the accused to arrest the deceased. He further denied that the deceased was a suspect in respect of housebreaking and theft cases on the 25

th August, 1998. His reason for the denial was that during the search of Armando’s premises, the deceased’s name was never mentioned.

The Crown then called PW 4 D/Const. 3050 Maphindane Sibandze, who stated that he knew the accused very well as he worked for Vukuzenzele Hyper Market in Manzini. He confirmed that the accused was a complainant in respect of a housebreaking and theft case of which he was the Investigating Officer. PW 4 stated further that he had no suspects for the case and even his investigations did not reveal any suspect such that no arrests have been made ever since.

PW 4 confirmed being involved in the arrest of Armando, who eventually led them to Fairview, where the said Armando and the accused lived in rooms separated by one or two rooms. PW 4 stated that they proceeded to Fairview in a white van and because it was already dark, they had the headlamps of their vehicle switched on. On arrival, Armando, who was also in the van, showed the R.S.P. a room which said he slept in. The other members of the team went into that house whilst PW 4 and 3167 Const. Mamba saw another room with lights on and they decided to go there. That was the accused’s room. PW 4 stated that he knew that the room belonged to the accused, whereas his companion Mamba did not know.

They knocked on that door and the accused came out. He was asked to confirm if indeed Armando lived in the room which he alleged. The accused saw Armando and confirmed that Armando’s girlfriend lived there. They thanked the accused for his assistance and proceeded to Armando’s room. It was PW 4’s further evidence that he stood on the doorstep of Armando’s room and Mamba went inside the room, whilst the accused stood outside where they had been talking to him. Having finished conducting the search, they took certain items which included, according to PW 4’s best recollection, a television set and some curtains. Thereafter they left.

PW 4 denied any conversation with the accused except what is stated above. It was PW 4’s further evidence that the accused did not appear to be curious about why they had asked where Armando lived. He stated further that the search conducted was not connected to the accused’s complaint. PW 4 also confirmed that he knew the deceased as a receiver and seller of stolen goods. He further testified that the deceased was not licensed to carry a firearm because he was of Mozambican extraction and never recalled seeing him armed with a firearm. It was PW 4’s further evidence that in his dealings with the accused involving his complaint, he had never discussed any suspect. In particular, PW 4 denied ever telling the accused that the deceased was a suspect in respect to his complaint.

Although he could not clearly recall, PW 4 stated that other than possibly requesting the accused to inform him if he heard useful rumours, he did not enlist any assistance from the accused whatsoever. It was PW 4’s further testimony that he never warned the accused that Ali, the deceased carried a firearm. He further denied having instructed anyone to arrest Ali.

In cross-examination, PW 4 was asked whether he knows Nyantsumba and he answered in the affirmative, stating that he knows Nyantsumba as a housebreaking thief. He denied having mentioned the said Nyantsumba as a suspect to the accused on the 24

th August, 1998. It was put to PW 4 that he was the one who told the accused that Armando Thunzini, Nyantsumba and the deceased were responsible for housebreaking and theft at the accused’s house and at other homes in Fairview. PW 4 stated that he does not remember saying that.

It was further put to him that he first mentioned Nyantsumba’s name at the Police Station on the 24

th August, 1998, when the accused had gone to obtain a progress report regarding the break in at his house. PW 4 again stated that he did not remember. Mr Mahlalela further put it to PW 4 that the accused did not know Armando Nyantsumba and Ali before PW 4 mentioned them. PW 4 stated that he did not know whether or not the accused knew them. PW 4 denied that he told the accused that stolen goods are loaded at Chisty Centre and transported to Mozambique. Mr Mahlalela further put it to PW 4 that he did not go to the accused’s room to confirm if Armando stayed there because he knew where Armando resided but had gone there to tell the accused about the suspects. This PW 4 vehemently denied, insisting that they went to confirm if Armando really stayed in that room because there have been cases where suspects mislead them regarding where they stay.

It was further put to PW 4 that when he was in Armando’s house he was talking to the accused. This the accused denied. It was put to him that Batinsy Mamba had said PW 4 spoke to the accused as the search continued. This the accused also denied. He further denied the truth of what D/Const. Mamba said to the effect that he found the accused with PW 4 outside. PW5 stated that the accused was also outside like him but they were not conversing.

PW 4 further denied that he personally asked the accused to come out to see for himself the said Armando, not as a resident of the area but as a person responsible for housebreaking and theft. This PW 4 denied, maintaining his story as stated in his evidence in chief. He proceeded to deny that he had advised the accused to arrest the deceased on sight as the R.S.P. had been successful in arresting Nyantsumba and Armando. He however confirmed that the deceased was wanted for housebreaking and theft cases, especially the exhibits stolen during break ins.

In re-examination, PW 4 confirmed that he does not remember mentioning Nyantsumba’s name to the accused. He further stated during the search at Armando’s house, they were not waiting for any green light from anyone before conducting the search. This is because Armando took them to his house and all they sought confirmation on was whether he actually resided in that house.

The Court asked PW 4 whether the accused went into Armando’s house and he stated that the accused did not go into Armando’s house but turned outside. Though he was outside, the accused was however able to see inside the house from where he stood. It was PW 4’s further response that the accused came close to the doorstep but did not climb thereon.

The Crown then called 2877 Const. Mduduzi Dlamini, who, stated that on the 25

th August, 1998, he was on patrol duty at Manzini and received a report to attend at the accused’s house since there had been a shooting. He was accompanied by 2827 Sgt. Dladla. They then proceeded to Fairview North and there found the accused next to a room, which he was renting. Inside the house was the deceased who had been shot and looked faint but was still breathing.

It was PW 5’s evidence that when he tried to open the door, he was told by the accused and other people that the deceased might be armed. The door was open but the security door was secured with a padlock. The deceased was lying on the floor facing the roof. It was PW 5’s evidence that when he tried to speak to the deceased, the latter failed to respond. PW 5 then asked the accused to open the security door, which he did. PW 5 then went into that room and searched the deceased’s person but found nothing dangerous on his body. Assisted by his companion, PW 5 then took the deceased and put him in the Police van and conveyed him to the Raleigh Fitkin Memorial Hospital, where Staff Nurse Magagula certified the deceased dead on arrival.

PW 5 then returned to the accused’s house with the corpse as the R.F.M. mortuary was full and recorded statements with a view to ascertaining the reasons behind the shooting. Thereafter, PW 5 took a copy of the accused’s firearm licence and an empty cartridge and returned to the Police Station. Before leaving, PW 5 warned the accused to report at the Police Station on the following day.

When asked further by Ms Nderi, PW 5 stated that he went to the accused’s house at around 20h00. On arrival, he found the accused with two women next to his house. The accused, on enquiries by PW 5 told him that the deceased was a thief who was wanted by the R.S.P. and was armed. It was at that juncture that PW 5 requested the accused to open the security door to enable him to search the deceased’s person. It was PW 5’s further evidence that from his investigations, it was gathered that the deceased was shot outside the accused’s house and was later dragged by the accused into the house.

On closer scrutiny of the deceased’s body, PW 5 states that he noticed blood emanating from the deceased’s left scapula and a small wound. He also noticed a wound on the deceased’s chest although he did not see it clearly. It was on the same side as the wound seen on the scapula. It was PW 5’s further evidence that he saw the weapon used to inflict the injury on the deceased and that it was 9mm pistol, which he however did not take from the accused that night. According to PW 5, that pistol has a safety catch and that there are certain steps to be taken before it can fire, which include loading the magazine, getting the safety catch to ready and corking the firearm.

It was PW 5’s evidence that he found one cartridge at the scene and assumed that only one shot was fired from the pistol. PW 5 further stated that the accused showed him that the shooting occurred in front of the houses, a short distance from the house of a Ms Bennett. It was PW 5’s further evidence that the empty cartridge was found between the accused’s house and the third house. PW 5 further testified that it appeared that the accused dragged the deceased for about 3 – 4 metres and that this information was obtained from the accused.

PW 5 handed in the accused’s licences as part of his evidence and those were marked Exhibit “A”. It was PW 5’s evidence that from a reading of the licenses, the accused was permitted to hold a 9 mm pistol which he was to use to protect himself. PW 5 further testified that he did not make any arrests on that day because he wanted to investigate the reasons leading to the shooting first. PW 5 stated that he requested the accused to report at the police station because they needed him to assist with their investigations and indeed, the accused came to the Police Station as requested.

PW 5 further testified that the accused was finally arrested on the 26

th August, 1998, after consultations between the Shift and Desk Officer. Lastly PW 5 stated that he had not seen the deceased before the day of his death but had wanted to interview him in respect of certain matters not specified in Court.

In cross-examination, PW 5 stated that he was told by the accused’s neighbours Ms Bennett, a Ms Magagula and the accused that the deceased might be armed. PW 5 stated that he wanted to interview the deceased in relation to cases involving firearms. It was put to PW 5 that the accused told him that he had fired two shots but only one cartridge was recovered on the night in question, which prompted PW 5 to request the accused to bring the other cartridge to the Police Station the following day, which he did. PW 5’s response was that he could not recall but further stated that the accused was willing to assist in the investigations. It was further put to PW 5 that there was only one wound on the deceased which continued from the back and PW 5 agreed that it could be so. PW 5 stated that he did not know the deceased to be involved in housebreaking but wished to investigate him in relation to firearms only.

It was put to PW 5 that the accused told him that he was told by Maphindane Sibandze that Nyantsumba, Thunzini and the deceased were responsible for the break-in at his house. PW 5 confirmed this. PW 5 proceeded to confirm that he did not arrest the accused immediately because of that information, which he wanted to first confirm, particularly if the deceased committed any offence relating to the accused. PW 5 proceeded to state that he was not present at the Police Station when the accused was arrested but remembered seeing the accused there and on enquiring if the accused had brought the items he was required to, the accused confirmed having done so.

In re-examination, PW 5 stated that he handed the docket to the Staff Officer on the same evening of the shooting. He further confirmed that a cartridge was brought to the Police Station. It was PW 5’s further evidence that on searching the records, he did not find any case in which the deceased was involved. When asked whether the accused told him that the search had not been completed, thus necessitating that he searches the deceased, PW 5 stated that he was searching the deceased in order to find out if he had any dangerous weapon and to then rush him to the hospital. PW 5 also informed the Court that after hearing the accused’s allegation that Officer Sibandze had informed the accused who were responsible for the break-in at his house, he asked Sibandze who however denied having told that to the accused.

Miss Nderi then called 2502 D/Const. Thabo Kunene PW 6, who confirmed that he knew the accused over a number of years and even knew where the accused resided. He proceeded to describe the place where the accused resided. He confirmed knowing Armando Thunzini, whom he described as a suspect in a housebreaking and theft case he was then investigating. It was PW 6’s evidence that he learnt after the accused’s arrest that he was a complainant in respect of a housebreaking and theft case. PW 6 further testified that he arrested Thunzini, who led him to Fairview to a flat which he rented.

PW 6 stated that when he went to Fairview, he was accompanied by 2056 D/Sgt.

Sonyezane Dlamini, 3499 D/Const. Motsa, 3050 D/Const. Sibandze, 31677 D/Const. Mamba, and 2296 Sgt. Ginindza. It was his evidence that they travelled in a Police van but he did not notice whether or not the lights were on because it was clear. On arrival at the premises, PW 6, 2056 Sgt. Dlamini and 3199 D/Const. Motsa went inside the said Armando’s flat whilst the other officers remained outside. Armando then handed them certain exhibits, namely, a curtain and a speaker, which were later taken to the Police Station. It was PW 5’s further evidence that in the flat was Armando’s girlfriend and that he believed it was Armando’s place of abode because his family, girlfriend and belongings were in there.

Regarding Nyantsumba, it was PW 6’s evidence that he knew Nyantsumba since he had arrested him on several occasions in respect of several cases. He further testified that in his investigation about Armando, Nyantsumba was not implicated. PW 6 confirmed having seen the accused at a distance during the time of the search at Armando’s house and the accused was at the last door of the flats. PW 6 testified that he did not speak to the accused neither did he see any Police Officer doing so. PW 6 also confirmed knowing the deceased who was not a suspect in any of the cases that he was investigating. It was PW 6’s further evidence that he knew where the deceased lived i.e. Madoda area, in Manzini.

PW 6 continued to state that he did not know the deceased to be carrying a firearm nor did he know him to be the holder of a licence in respect of a firearm. PW 6 denied having instructed the accused to arrest any person on behalf of the R.S.P. in respect of any case. PW 6 further denied having informed the accused that the deceased carried a firearm.

In cross-examination, it was put to PW 6 that on arrival at Fairview, the accused was not outside in the yard but was in his house until he spoke to Officers Sibandze and Mamba. PW 6 insisted that he saw the accused person outside. PW 6 was asked if he knew one Njabulo Simelane and he answered in the negative but later confirmed that he knew Simelane in respect of the death of one Bomber Zwane. PW 6 denied that Ali was a suspect in the Zwane case and further denied that Ali was in anyway implicated in the Zwane case which he investigated and arrested all the accused persons involved.

By consent, the post-mortem report was handed in and was marked Exhibit “B”. The said report was prepared by Dr L.S. Okonda, who opined that the deceased died from multiple injuries as a result of gunshot. He further found that there was a 0.5cm large injury on the right scapula, representing the mark of a bullet which came out at a 2cm large injury above the sternum, with subsequent perforation and laceration of the upper lobe of the right lung and main blood vessels. At this stage, the Crown closed its case that the R.S.P. were investigating.

(iii)   

ANALYSIS OF CROWN’S EVIDENCE

In my assessment, the evidence adduced by the Crown was substantially reliable, credible and corroborative in material respects. The were a few blemishes, which are only natural in such matters and which in my view were only on peripheral issues, having no bearing whatsoever on the germane and central issues. The imperfections noted related mainly to the visit by the Police Officers to the house of Armando Thunzini and they relate to the identity of the officers who went there, whether the accused was inside or outside his house and to whether he came to the door of Armando’s house. They also relate to whether the deceased was a suspect in any case.

It is my considered view that most of these inconsistencies mainly emanate from errors in recollection, owing to the date when the offence took place. They do not go to the root of the issues whether it was the accused who shot the deceased and as to whether the deceased died as a result of the injury unlawfully inflicted by the accused’s firearm. I therefor hold that the Crown’s evidence is credit worthy and acceptable.

(iv)    

THE DEFENCE CASE
From the evidence led, it became clear that the Crown succeeded in establishing a prima facie case against the accused person. For that reason, Mr Mahlalela, properly did not move an application in terms of Section 174 (4) of the Criminal Procedure and Evidence Act, 67/1938. He called the accused to the witness’ stand where the accused gave sworn testimony to the following effect:-
On the 22nd August, 1998, the accused visited his wife at Luyengo and on his return, he found that his house had been broken into and all his belongings including, sofas, a refrigerator and a bed had been stolen. The accused immediately went to the R.S.P., Manzini, to report the incident. On arrival at the Police Station, the accused was asked by Police Officers whether he did not know one Kaitano Nyantsumba. He was further told that if he could find the said Nyantsumba, he could recover his belongings. The accused then told the Police that he had seen Nyantsumba next to Fairview Bar. The accused went to look for Nyantsumba with the Police Officers without success.
They then proceeded to the accused’s house where a list of the stolen items was prepared. The accused then learned that Nyantsumba had been arrested by the R.S.P.. On the 24th August, 1998, he proceeded to the Police Station where he was advised that Officer Maphindane Sibandze was handling his case. Sibandze confirmed that Nyantsumba had been arrested and further told the accused that there were two other suspects who were at large.
On the 25th August, 1998 the accused, whilst bathing heard a knock on his door and it was the R.S.P., during their search of Armando’s house. It is the accused’s evidence that the R.S.P. asked him if he knew Armando and the deceased, which he answered in the negative. They then asked him to come over so that they could show him somebody implicated in the theft of the accused’s property. They told him that the person who broke into his house was his neighbour. This was Armando. The R.S.P. also told him that Ali Mohammed is the only one still at large. The R.S.P. further told him that the stolen goods are loaded at Chisty Centre and are then transported to Mozambique.
After the R.S.P. had left, the accused states that he enquired from his neighbours who the Ali Mohammed is and he was told that Ali was the man who came whilst the accused was welding his door and stood at Armando’s door, looking at what the accused was doing. Accused then remembered Ali. When the accused was about to leave for his parental home he found a man standing near his door with Armando’s girlfriend. Sindi Magagula was also standing outside the door.
Accused says that he asked from Happy Bennett who the man was and immediately, the man advanced towards him, asking who the accused was. The accused then said “utangati” (“you will get to know me”). The accused was carrying a big bag which he put down then advanced towards the accused with a hand in his pocket. The accused ordered the deceased to raise up his hands and to go into Armando’s house as Police had been there looking for him.
The accused proceeded to state that he had been informed by Happy that Ali always carried a firearm and that the R.S.P. were searching for him in relation to crimes that he had committed. The accused states that he then retreated and corked his gun, fired once in the air but the deceased pushed him until he got to a fence. As accused was turning around intending to run into his room, the deceased kept advancing and the accused shot him on the back of his shoulder. In a demonstration to the Court, the accused stated that the deceased took out his right hand with which he was holding the accused’s right hand and the accused leaned over, used the right hand to shoot the deceased. He then pushed the deceased into his house, closed the burglar door and locked it using a pad lock.
Accused states that he then went to his neighbours and requested them to call the R.S.P. who eventually came. A Policeman went into the house, searched the deceased and found E2,000.00 in notes in his pockets. It is the accused’s further evidence that he assisted in carrying the deceased into the Police motor vehicle. The Police asked for a licence for the firearm, which was with his wife. Statements were obtained from the accused, Happy and Sindi. The R.S.P. found an empty cartridge and asked for the other one, which accused was requested to bring in the morning together with the firearm licence, which the accused did the following morning.
The accused further stated that when he asked if the deceased was Ali, he, the deceased was afraid and the deceased advanced towards him. He further stated that he believed what Happy told him about the deceased being armed. When asked why he ordered Ali to go to Armando’s house, the accused stated that he wanted to lock him in there so that he could tell the Police that he had been apprehended and was in Armando’s house. The accused stated that he did not intend to shoot at the deceased.
In cross-examination, the accused was asked about the regulations for keeping the firearm and he stated that he was to keep the firearm in a safe place and that he was not to carry it to a public place. The accused stated that at his parental home, he had a safe where he kept the firearm. Asked about his reaction to the break-in, the accused stated that he was angry. He admitted that the Police did not request him to help them in finding the culprits who broke into his house. The accused further conceded that he was not requested by the R.S.P. to do anything towards the arrest of Nyantsumba and Ali.
Miss Nderi asked the accused about an application he had made to be admitted to bail after his arrest on the present charge and the accused confirmed having made such application in January 1999. The accused also confirmed that when he deposed to that affidavit, the facts of the case were fresh to his mind. It was put to him that in that Affidavit, the accused had stated under oath that he saw the deceased standing outside his house and drew out his firearm and ordered him to go into Armando’s house. The accused agreed. He however stated that the Affidavit was not written properly because he first asked if that man was Ali. He attributed the inaccuracy to what he referred to as the affidavit being drafted hurriedly. The accused further confirmed that he stated in the Affidavit that instead of obeying his instructions, the deceased put his hands in his pockets.
When asked what was sinister with Ali looking at the deceased when welding the door, the accused stated that it was because the deceased was looking at them but was talking to somebody else. When asked if by so doing the accused concluded that the deceased was being aggressive, the accused stated he concluded that the deceased was disturbed by the bigger burglar bars being installed in the place of those that the deceased had broken. The accused further confirmed that by the 22nd August 1998 he had already concluded that Ali was the culprit who broke into his house. The accused stated that when he saw the deceased outside the door, he reacted badly and he became very angry and became frightened because he thought the girls i.e. Happy Bennett and Sindi Magagula had told the deceased that the accused had enquired about him and further told him that the R.S.P. had been there.
The accused confirmed that when he saw the deceased he had to do something to him i.e. hold him and lock him up. When asked if he thought that the deceased would not obey his instructions and instead run away, the accused stated that he did not think that the deceased would run away. He conceded that the reaction most people would have to the manner in which he approached and treated the deceased would have suggested to them that they were being robbed or that if they had done something, that they had been caught red handed as it were. He further conceded that the manner in which he asked about the deceased when he saw him was provocative.
Miss Nderi further asked the accused if during the struggle with the deceased, the latter’s hand was still in his pocket and the response was that the hand was out of the pocket. When asked if he was then not aware that the deceased had no firearm, the accused stated that he was not because he did not see what was in the pocket where the hand was previously. When asked why he produced the firearm and pointed it to the deceased, the accused stated he was then not aware that he had no gun. He wanted the deceased to get into the house. The accused further stated that when he saw the deceased, the latter was not threatening him in anyway whatsoever. He conceded further that he did not see the deceased carrying any visible weapon pointed at him but only saw the deceased carrying a big bag.
It was the accused’s story that when he saw the deceased, the latter did not speak to him or insult him in any way. He further agreed that when he was frightened at seeing the deceased, he did not raise any alarm. Miss Nderi further asked if it true that the accused was in control when he shot the deceased, the accused’s answer was that he was trying to stop the deceased from dispossessing him of the firearm as deceased was hitting the accused’s hand while holding the accused. The accused further stated that he appreciated that if he shot a person with a firearm, that person is injured and that the injury is usually fatal. He further stated that he realised that there was a risk to the deceased’s life. He also conceded that it would be unfair for him to be treated in the manner in which he treated Ali.
From the questions put to the Crown’s witnesses and the story adduced by his evidence in chief, it would appear that the accused is pleading two defences, namely, necessity in the form of compulsion and self-defence. The first one apparently arises from the story put to a number of Crown witnesses that the R.S.P. had told the accused that the deceased was one of the people responsible for the housebreaking and theft at his house and was wanted by the R.S.P..
Burchell and Hunt, in their work entitled, “South African Criminal Law and Procedure” Volume I, 2nd Edition, Juta and Co. Ltd, 1983, at page 354 to 355, deal with the defence of necessity in the form of compulsion under the heading “Obedience to Orders”. The manner in which the defence was raised was such that the Court was called upon to infer that it was the R.S.P. who told the accused to arrest the deceased and the accused having shot the deceased, was not arrested initially because the R.S.P. had enlisted the accused’s assistance in apprehending the deceased.
In their discussion of this defence, the learned authors state the following requirements to be shown by an accused in order for him to succeed in proving the defence, namely:-
(a)     
The order must emanate from a person lawfully placed in authority over the accused;
(b)      The accused must have been under a duty to obey the order; and
(c)      He must have done no more harm than was necessary to carry out the order.
In the instant case, it is clear that this defence is inapplicable because it has been held to apply to members of the armed forces inter se. The accused is not a member of any of such forces in Swaziland. Furthermore, the R.S.P., according to the Crown’s witnesses and the accused own evidence in cross-examination, never requested the accused to arrest, less still, to shoot the accused. The R.S.P. deny even telling the accused that the deceased was a suspect in the break-in and theft at the accused’s home. Even if the R.S.P. had told accused that the deceased was suspect in that regard, that amounted to no licence to the accused to arrest the deceased, less still to shoot him.
Regarding the second requirement, it is my considered view that even if the R.S.P. had issued an order to the accused to shoot the deceased, which was never alleged by the defence, it is abundantly clear that the accused was under no obligation or duty to obey such order as it is unlawful.
On the last requirement, I am of the view that the accused, even if he was a member of the armed forces, which he is not, would have exceeded the bounds of what was necessary to give effect to any such order. If the intention was to arrest the accused then there was no need for him to shoot the accused at all. If the intention of the accused was to incapacitate the deceased, certainly, it was unnecessary and grossly unreasonable to shoot him in the sensitive area that the accused did. This defence, if it is what was sought to be established by the accused must fail dismally. It cannot even be held to be applicable to the provisions of Section 41 of the Criminal Procedure and Evidence Act, 67 of 1938, dealing with resisting arrest as there is no suggestion that the deceased was attempting to flee or resist arrest among other issues.
Regarding the second defence of self defence or private defence, Mr Mahlalela argued that subjectively, the accused was told by his neighbour Happy Bennett that the deceased was armed and was dangerous and he thought that the deceased was going to shoot him if he did not pre-empt the deceased’s actions. Mr Mahlalela further argued that after the accused was arrested, he confirmed that the deceased was being wanted by the R.S.P. for firearms and that this was further confirmed by PW 4 in his evidence. Mr Mahlalela cited the case of R v JOHN NDLOVU 1970 –76 SLR 389, regarding this defence.
In that case, Nathan C.J. stated as follows at page 390H to 391

         “In the case of S v NTULI 1975 (1) SA 429 (A) which was followed in the recent
         case of
S v MOTLELENI 1976 (1) SA 403 (A), it was said that a person may
         apply such force as is reasonably necessary in the circumstances to protect
         himself against unlawful threatened or actual attack. The test whether accused
         acts reasonably in defence is objective. But the force must be commensurate with
         he (sic) danger apprehended; and if excessive force is used the plea of self-defence
         will not be upheld.”

The first insurmountable hurdle faced by the accused regarding this defence is that it was never put to any of the Crown witnesses, including PW 4, who attended the accused’s home at the accused’s behest after the shooting. Authority for the proposition that the whole defence case must be put to the Crown’s witnesses is legion and that the failure so to do may result in the Court drawing an inference that the accused’s story, stated by him in chief is an afterthought see S v DOMINIC MNGOMEZULU AND NINE OTHERS CRIM. CASE NO.94/90 (unreported) and S v P 1974 (1) SA 573. I regard this defence to be an afterthought therefor. It is doomed to fail for other reasons as well.

In Burchell and Hunt (supra) at page 323, the learned authors state that for the defence of self-defence to avail, there must be:- an unlawful attack upon a legal interest which had commenced or was imminent. At page 327, it is stated that the defence must be directed against the attacker, be necessary to avert the attack and that the accused must use reasonable means to avert the attack.

As earlier intimated, this defence was only raised when the accused took the witness’ stand and one has to assess the viability of the defence against the accused’s own evidence. In his evidence, the accused does not say that the deceased attacked him in any way, nor was it shown that any attack was imminent. In point of fact, it is the accused who attacked the deceased.

The accused states that he saw the deceased standing next to his door and he, the accused became angry and afraid and asked if that man was the Ali, deceased. He then drew his firearm and ordered the deceased to raise his hands and to go into Armando’s house. The accused further stated that the deceased was carrying a big bag, which he put down and advanced to the accused with one hand in his pocket. It is also clear from the accused’s evidence that the deceased held the accused hands.

At that time, there was no reason to believe that the deceased was carrying a firearm because he had put the bag down and had his hands out of his pockets. What is clear and which the accused admitted under cross-examination is that he acted in a provocative manner towards the deceased who was not threatening the accused in anyway but was suddenly pointed with a loaded firearm and ordered to raise his hands and to go into Armando’s room for no apparent reason. Any reasonable man in the deceased’s position who had done nothing to warrant such a trauma would be expected to react as the deceased did.

It is equally clear from the accused’s evidence that the “defence” employed by the accused to the supposed attack was unnecessary to avert the alleged attack. What is also incontrovertible is that the means employed to avert the alleged attack were clearly disproportionate. In this regard, I find it apposite to quote from Miss Nderi’s cross-examination of the accused person as recorded in my notes;

         Q:       When you say you struggled with Ali, was his hand in his pocket
         A:       It was outside

         Q:       It is correct then that you were aware that he had no gun.
         A:       I did not know.

         Q:       Why not
         A:       I did not see then what was in the pocket where his hand had been

         Q:       What was Ali doing when you saw him
         A:       I did not see.

         Q:       When you saw him, was he threatening you in any way
         A:       No.

         Q:       When you saw him, was he carrying any visible armour pointed to you
         A:       No. He was just carrying a big bag.

         Q:       When you saw him, did he insult you or speak to you
         A:       No. I asked if he was not Ali. I was frightened

There was no attack in the first place. Furthermore, the deceased did not brandish any weapon which may have instilled fear in the heart of a reasonable man. Even if the deceased was pressing the accused towards the fence as alleged and that he was trying to take away the firearm, there is no indication that the accused could not have fled from the scene and ran to the security of his room. If that was impossible, and it was necessary to shoot, then the accused could and should have shot the deceased on his leg or foot or some other part of the body less dangerous as the intention would have been to incapacitate him for purposes of handing him over to the R.S.P.

I thus come to the inescapable conclusion that the accused’s defence must necessarily fail. The deceased was put in the position in which he found himself by the accused’s untamed aggression. Even when forced to defend himself against this unwarranted attack, the deceased did not resort to wielding any weapon to necessitate the use of a firearm by the deceased. Whatever fears the accused may have entertained, they were not reasonable due regard being had to the circumstances of the case. I say this having warned myself that I do not adopt the position of an arm-chair critic wise after the fact in assessing the reasonableness of the accused’s actions.

Miss Nderi urged the Court to find the accused guilty of the crime of murder on the grounds that the accused, after the break-in and theft from his house was full of anger and suspicion towards Ali and that when he saw Ali, he assumed that Ali had been hiding. He then drew out his firearm, fully appreciating that it constituted a risk to life and not withstanding such appreciation, proceeded to shoot the deceased. In this regard, Miss Nderi referred the Court to the case of R v JABULANE PHILEMON MNGOMEZULU 1970 – 76 SLR 6.

In Contra, Mr Mahlalela argued that the accused had no intention to kill the deceased. He argued that the Crown had failed to prove the crime of murder beyond a reasonable doubt. It was his further submission, that the R.S.P. informed him about involvement of Ali in the break-in at his house and that this information caused him to harbour suspicion about Ali. It was submitted that had the R.S.P. not informed the accused about Ali, then this sordid event would not have occurred. In sum, Mr Mahlalela urged the Court to at least find the accused guilty of culpable homicide, with which he should have been properly charged at the outset.

It is common cause that the deceased was shot by the accused. Furthermore, it is common cause that the deceased died as a result of the injury inflicted by the accused. I have held that the defences raised by the accused ought to fail. The question confronting the Court now is whether the killing of the accused amounted to murder or culpable homicide.

According to Burchell and Hunt, supra, at page 136, intention can be divided into two types, “actual intention” which in legal parlance is known as dolus directus or indirectus and “legal intention” also known as dolus eventualis. This, latter intention Miss Nderi argues has been proved. In S v MINI 1963 (3) SA 188 (A), Williamson J.A. stated as follows, regarding the latter, at 192 F – G:-

         “A person in law intends to kill if he deliberately does an act which he in fact
         appreciates might result in the death of another and he acts reckless as to whether
         such death results or not.”

In REX v JOLLY AND 1923 AD 176 at 187, Kotze J.A. said

         “The intention of an accused person is to be ascertained from his acts and his
         conduct. If a man without legal excuse uses a deadly weapon on another
         resulting in his death, the inference is that he intended to kill the deceased.”

I now turn to the facts to see if such intention has been proved.
In cross-examination, Miss Nderi put the following questions to the accused and he gave answers as appear from excerpts derived from my notes:-

         Q:       What happens when a person is shot with a gun
         A:       He is injured

         Q:       In fact, those injuries are mostly fatal
         A:       Yes.

         Q:       You must have realised that there was a risk to life that night
         A:       Yes

From the aforegoing, it is clear that the accused realised that there was a risk to the deceased’s life but that notwithstanding, he deliberately put the firearm, according to his version, on the accused’s back and pulled the trigger. He must have appreciated, given the part of the body where the firearm was placed that the accused might be killed. Furthermore, he must after the shooting have seen the extent of the injuries on the accused’s back and his chest, which were serious enough to have fatal consequences but he just locked the accused in his house without rendering any first aid to him, if it is true that he shot the accused by mistake, given the anger and suspicion he harboured towards, the deceased.

PW 5 states that the deceased, when he arrived, was weak and could not speak but still, this could not deter the accused from leaving the deceased unattended. Surely, if he had administered first aid and thereafter immediately rushed or made arrangements to rush the accused to the hospital, his life may have been saved.

What I find more disturbing is that even after the report, that the deceased had died, the accused showed no signs of compunction or penitence. He certainly was not remorseful. There is no evidence that he made any attempts to find the accused’s relatives to explain how the deceased had died. He went about his life as though nothing had happened. When he was arrested, he was in town playing a game of cards. The accused’s reaction was certainly not consistent with that of a person who had killed the deceased unintentionally. His intention must as stated by Kotze J.A. above, be ascertained from his conduct and actions.

I say all this based on the accused’s account of how the deceased died. It appeared in cross examination that the accused filed an application for bail, which was accompanied by a sworn Affidavit in which he gave an account different from that given to Court under oath. This throws a doubt on the truthfulness of the account given in Court and which has been relied upon in arriving at a decision in this matter.

In the circumstances, I am satisfied that the accused had at the least, the legal intention to kill the accused and I accordingly find him guilty of crime of murder wherewith he is charged.

T.S. MASUKU
JUDGE