Court name
High Court of eSwatini

Rex v Madolo () [2000] SZHC 96 (16 November 2000);

Law report citations
Media neutral citation
[2000] SZHC 96
Coram
Maphalala, J









IN
THE HIGH COURT OF SWAZILAND


CRIM.
CASE NO. 121/98


In
the matter between


REX


Vs


DUMSANI
S. MADOLO


Coram S.B.
MAPHALALA - J


For
the Accused In Person


For
the Crown Mr. J. Maseko


JUDGEMENT


(16/11/2000)


Maphalala
J:


The
accused person at the commencement of proceedings was facing two
counts of attempted murder, one count of robbery, one of theft, two
counts under the Arms and Ammunition Act No. 24 of 1964 one count
under the Opium and Habit Forming Drugs Act 3 7 of 1922. The crown
withdrew count 1 and 3 that of attempted murder and that of robbery.
The accused was then faced with the following:


Count
2 Attempted murder where it is alleged that the accused upon orabout
the 21st February 1998, at or near SBIS Mbabane in the Hhohho region,
the accused did wrongfully and with intent to kill shoot at Sindile
Shongwe and thereby committed the crime of attempted murder.


On
the alternative the accused is charged with the crime of assault with
intent to do grievous bodily harm of the person mentioned in count 1.


Count
4
Accused
is

ch
arged
with the crime of theft in that upon or about the 4th February 1998,
and at or near Parkview Heights Mbabane, in the Hhohho region the
accused did unlawfully and intentionally steal one 9mm pistol make
Z88 serial number T. 404700 and two magazines loaded with 9 rounds of
9mm and 10 rounds of 9mm respectively the property or in the lawful
possession of Hunter Shongwe.


2


Count
5 The accused is charged with Contravention of Section 11 (1) of the
Arms and Ammunition Act read with Section 11 (8) thereof in that upon
the 21st February 1998, and at or near Cinelux Mbabane in the Hhohho
region the accused did unlawfully possess a 9mm pistol without a
licence or permit to possess it and did thereby contravene the
aforesaid provisions of the Arms and Ammunition Act.


Count
6 The accused is charged with contravening Section 11 (2) of the Arms
and Ammunition Act No. 24 of 1964 read with Section 11 (8) in that on
the same day and place as in count 5 above he did unlawfully possess
12 live rounds of ammunition without a licence or permit to possess
the same and he did thereby contravene the aforesaid provisions of
the Arms and Ammunition Act No. 24 of 1964.


Count
7 The accused is charged with contravening Section 7 read with
Section 8 of the Opium and Habit Forming Drugs Act No. 37 of 1922 in
that upon or about the 21st February 1998, at or near Cinelux,
Mbabane in the Hhohho region the accused did unlawfully possess 34
grams of dagga, a habit forming drug, without any licence or permit
to possess the same and did thereby contravene the aforesaid
provisions of the Opium and Habit
Forming
Drug
s
Act
No. 37 of 1922.

conducting
his own defence and the crown is represented by Mr. Maseko.


Before
the crown proceeded to call evidence Mr. Maseko indicated that the
parties have made a number of concessions with a view to curtail the
proceedings.


Firstly,
the identity and serviceability of the firearm mentioned in counts 4
and 5 is not in dispute. It was subsequently entered provisionally as
"exhibit 1".


Secondly,
the issue of whether the ammunition in count 6 was live is not in
issue. It was provisionally entered as "exhibit 2".


Thirdly,
the affidavit complied by the Government chemist that substance
mentioned in count 7 was dagga was not in dispute. The affidavit was
entered as "exhibit 3" and the substance so identified as
dagga was entered as "exhibit A".


The
crown proceeded to call five witnesses to prove its case.


The
first
crown witness

was
Peter
Mabhodweni Forbes testifying on count 2. He told the court that on
the 21st February 1998, he was driving in his vintage Mercedes Benz
along SBIS and he stopped at a stop sign opposite Embassy House to
town. Suddenly two women came pounding down the street and jumped
into his motor vehicle. These women were agitated and said a certain
man wanted to kill them. They asked him to protect them from a
"sidlani" (thug) who had a firearm.


3


He
told them that it was not his job to do that but offered to drive
them to the Mbabane Police Station. They told him that the man
pursuing them was a Madolo who was a boyfriend to one of them. He
then offered the police to drive them around town looking for this
man. At the police station statements were recorded from them. They
did not find the man. However, somewhere in town they found a group
of police officers in a motor vehicle who informed them that they had
apprehended the assailant in a certain bar in town. His entourage
then followed this group of police officers to the police station.


At
the police station he saw that the man they have been looking for was
the accused person before court. The police proceeded to search the
accused where a firearm with 13 rounds of ammunition and a small
plastic bag containing dagga was found in accused person's
possession. The witness was made to write a statement of what he
observed in connection with this matter. The witness further told the
court it was his first time to see the accused person at the police
station.


This
is about the extent of PWl's testimony.


The
court then proceeded to explain to the accused person his rights of
cross-examination and he registered that he understood them. The
witness was quizzed briefly. He was asked about the description of
the two women who entered his motor vehicle that night. The witness
gave some description of what he still recalled although he told the
court that he did not take much attention to their personal details
but was merely
concerned
with their plight.


It
was also put to this witness that it is not true that in his
possession a firearm, live rounds

of
ammunition
and da
gga
were
found.

The wit
ness
answ
ered
th
at
he sa
w
when the police found this items. It was further put to him that he
was spoon-fed by the police to say these things. Again the witness
answered in the positive.


The
crown then called PW2 Sindile Shongwe who is the complainant in count
2. She related her ordeal at the hands of the accused person. She
told the court in detail the sequence of events from the time she met
the accused person to the time she was forced by the accused that
they go to Parkview Heights in some apartment where the accused
brandished a firearm. He threatened to shoot her. According to this
witness the accused person at some point did fire the gun. She
identified the firearm as the one presented before court. She also
told the court how she jumped into PWl's motor vehicle for help and
was then taken to the police station by PW1. Thereafter she saw the
police coming with the accused person who was bleeding through his
nose.


This
witness was cross-examined at great length by the accused person
where a number of important questions were put to her. The central
question worth mentioning at this point is that it was put to her
that what she was telling the court was a

fabricated
story

as t
he
ev
ents
she has told the court never took place. The witness
was
adamant that what she told

the court was the truth.


Questions
as to her credibility were put to her. It was put to her that she was
a prostitute and thus could not be trusted. The witness denied this
to be the case. In my view this witness gave credible evidence under
intense cross-examination spanning two long days.


4


The
crown then called PW3 Hunter Shongwe. He told the court that he knew
the accused person very well as they were neighbours. He told the
court that on the 4th February 1998, he was at Parkview Heights
parking area at around 7.30pm in his motor vehicle waiting to go and
see a movie at a nearby cinema house. The accused person approached
him and he was in the company of one character by the name of
Gilikijane. They joined him in his motor vehicle. He was drinking a
Fanta brand of cold drink and it got finished. The accused asked him
to show him his firearm, as he knew that he possessed a firearm. He
showed him the firearm whereupon the accused proceeded to show it to
one man by the name of Lindifa Mamba who drove by in a Pajero. The
accused returned with the firearm and he handed it to him. Thereafter
the accused left with his friend to buy drinks and came back with an
open tin of Fanta and handed it to him to drink. After he drank this
drink handed to him by the accused person he lost consciousness and
woke up the following day at the police station. He was sleeping at
the back of his motor vehicle and was confused as to what happened to
him. He noticed that his firearm was no longer in his possession.
Subsequently he was

called by the police to identify a certain firearm, which he
identified as his.


Before
that he had met the accused person and requested him to give back the
firearm. The accused refused with the firearm.


This
is about the extent of PW3's testimony in chief. This witness was
also cross-examined at length by the accused person. Most of the
questions put by the accused person to this witness were directed at
showing that the witness was not credible. However, the witness
maintained what he said in

hi
s
evidence
- in -
chief.


The
crown then called PW4 3500 Lucky Msibi. He told the court that PW4
made a. report

of

theft of

a fir
earm
in
the morning of the 5th February 1998.

The
accused
person
was implicated in the theft of this firearm. He told PW3 to come and
tell the police when he sees the accused person.


This
is about the extent of this witness testimony. He was briefly
cross-examined on whether he knew the accused person and the witness
told the court it was not the first time to see the accused person in
court.


The
crown then called PW5 3159 Sabelo Dlamini. He told the court that he
was on duty at the Mbabane Police Station when PW2 Sindile Shongwe
came running and crying reporting that a certain man was shooting her
in town. PW5 together with other officers proceeded to town to
investigate the matter. They went to Allister Miller Street. At the
Cinelux cinema they arrested the accused person.


He
searched the accused person and found him in possession of a Z88
pistol in a holster loaded with 13 rounds of ammunition. At the
police station he cautioned the accused person in terms of the Judges
Rules. He requested a permit from the accused for possessing the
dagga, however the accused failed to produce a permit or licence. The
witness also deposed that in accused person he also found

a
small
plastic
bag
with a substance he identified as dagga. The accused was then placed

in
custody.
On the following day, the witness together with 2624 Detective
Constable Mkhonta went to Coronation Park where an empty 9mm
cartridge was recovered. He told the court that the gun found on the
accused corresponded with the one reported stolen earlier in the
month.


5


This
is about the extent of this witness testimony. He was cross-examined
at length by the accused person who suggested that the officer was
telling a fabricated story against him in a bid to have him convicted
for these offences as officer Mkhonta expressed a grudge against the
accused person when he was arrested. There was a grand scheme by the
police to implicate him as he was regarded by the police to be a
dangerous criminal. Questions were posed to this witness to show that
this story was a false hood. The officer did not depart from his
testimony he gave in chief. Although I must say there were number of
questions where the officer wavered. More importantly it was put to
him that he knew one Michael "alias" Gilikijane where the
officer answered that he did not know this person, but one called
David.


He
was pressed further that he was co-charged with this Michael and
appeared before the Magistrate Court. This man was also charged with
the offences in connection with the firearm. Michael was released on
bail. The officer denied this and at this point the court ordered
that the record from the Magistrate Court be produced. At the end the
officer conceded the point made by the accused person. He was further
questioned on the existence of the cartridges that these were fired
by the police to make exhibits. The officer denied that to be the
case. The accused person further put it to the officer that Michael
was released on bail of E1, 000-00 in respect of the same offence he
was facing by the Magistrate Court. At first the officer dithered but
upon being shown the court record he agreed with the accused that was
so.


The
crown at this stage closed its case.


The
court duly explained his legal rights and the accused elected to make
a sworn statement. He gave

a l
engthy
account of his side of the story. Essentially he denies any
involvement

in the com
mission
of the offences

preferred ag
ainst
him.


On
the charge involving possession of the firearm he gave a lengthy
account on how Hunter Shongwe the owner of the forearm parted with
it. His version is that Hunter Shongwe approached him together with
one Gilikijane to go and kill his brother in South Africa who had
eloped with his fiance. He explained the nitty gritties of the plan
and how it was to be executed. This Gilikijane was to be the hit man
and he (accused) was to drive the getaway car, which was to be used
to convey the fiance from South Africa after they have killed the
brother. It turned out though that the plan was never executed as
Gilikijane was found with the firearm at a local bar where he was
threatening to shoot some thugs who had tried to rob him of his
money. The court noted though that this story was never put to Hunter
Shongwe it only came as a surprise when the accused gave his
evidence-in-chief.


On
the offence of attempted murder of Sindile Shongwe again the accused
came with a different story on oath, which was not put to Shongwe.
His version is that he did not shoot at this witness but instead had
on that evening entertained her together with her two friends by
buying them some liquor at a bar called the Tavern. Accused gave a
lengthy account on how he went to the Tavern with the ladies up to
the time he left them with the liquor. His version is that he had no
reason to shoot at Sindile. He dismissed her story as a mere
fabrication.


The
accused was cross-examined by the crown.


6


It
was put to him that there are aspects of his defence which were not
put to the crown witnesses and the accused gave a lame answer that it
slipped his mind. I must say at this point that I found that strange
in view of the nature of accused cross-examination of the crown
witnesses. The accused was thorough and cross-examined PW2, PW3 and
PW5 at great length. Such cross-examination taking two days in
respect of PW2 and

PW3.


The
accused called one witness DW1 Percy Mthiyane to buttress his story
that he had a meeting with PW3 prior to him being arrested. The
witness said there was such a meeting but he could not elaborate as
to what was discussed between the accused and PW3 (Hunter).


This
witness was cross-examined at length by the crown.


At
this stage the court heard submissions by the crown and the accused
person. I must say the accused person made an impressive presentation
before the court taking the court through each count and each
witness. Showing inconsistencies in the evidence of the various
witnesses. That as it may, however, it appears to me that accused
failed to put issues crucial to his defence to the crown witnesses
and came with them when giving his evidence-in-chief. Accused
impressed the court as a highly intelligent man who was methodical in
his cross-examination and his questions were framed in precise
language. The accused displayed an uncanny knowledge of court
procedure. I must say that I have difficulty in accepting his version
of events.


In
respect of Count 2 that of attempted murder. The evidence of PW2 is
clear and it was corroborated by

t
hat
of PW1 Peter Mabhodvweni Forbes. There may be contradictions in

th
eir
testimonies
but these are not

material
to rend
er
their

evidenc
e
false. What the accused raised in his defence cannot be true, as I
have already observed. The accused told the court that he had left
PW2 at the Tavern at around 8.00pm. In the light of Peter Forbes
evidence the ladies could not have been at the Tavern at that time. I
find that accused story is not only full of contradictions but also
fanciful. The story by the accused about PW2 and Zanele cannot be
taken as the truth as it was not tested in cross-examination. PW2 was
not confronted with this evidence when she was cross-examined by the
accused person. I find it strange that the accused person would
forget such an important piece of evidence when he was questioning
Pw2. His story therefore, can only be false. In the circumstances I
find the accused guilty of Count 2.


On
Count 4 that of theft. It was proved beyond doubt in this court that
the firearm under examination belonged to PW3 (Hunter Shongwe). The
story by PW3 on how he woke up at the police station and found that
his firearm was missing is corroborated by the evidence of Constable
Msibi who said PW3 made a report of theft of the firearm that
morning. This happened before the shooting of PW2 Sindile Shongwe.
The firearm is found in the possession of the accused person. It also
appeared from the evidence that accused story that the firearm was
found in the possession of Gilikijane is not true. The court record
from the Magistrates Court reflects that Gilikijane was charged with
theft not possession.


As
to how the firearm left PW3's possession, it appears to me that his
version is the truth that after he had been drugged accused and
company took the firearm. The story


7


that
PW3 handed the firearm to them to eliminate his brother who had
eloped with his fiance is a transparent falsehood. This was only
raised in accused defence. The exchange of the firearm was not put to
PW3. In fact accused cross-examination of PW3 contradicts what he
later told the court when giving his evidence-in-chief. It is clear
therefore that he was found in possession of the firearm and the live
rounds of ammunition in count 5 and 6.


Finally,
coming to Count 7 that of contravening Section 7 read with Section 8
of the Opium and Habit Forming Drug Act No. 37 of 1922. There is
ample evidence that accused when searched at the police station dagga
was found in his possession. Here we have the evidence of PW1 and
PW5. PW1 had no reason to lie against the accused person. The accused
has only offered a bare denial in respect of this Count.


I
thus find him guilty as charged.


In
the result, I find the accused guilty as follows:


Count
2 - Attempted murder.


Count
4 - Theft of a firearm.


Count
5 - Possession of a firearm.


Count
6 - Possession of 12 live rounds of ammunition.


Count
7 - Possession of dagga in contravention of Section 7 read with


Section
8 of the Opium and Habit Forming Drugs Act 3 7 of 1922.


S.B.
MAPHALALA

JUDGE


1


SENTENCE


I
have taken all your personal circumstances into consideration in
arriving at a proper sentence in your case. The court in imposing a
sentence is guided by the case of S vs Zinn where in that case it was
propounded that the courts when sentencing an accused person should
apply what has been popularly known as a triad.


Firstly,
it must look at the interests of society and weigh them with the
interests of the accused, and lastly the nature of the offence. I am
therefore guided by these principles in arriving at a proper sentence
in this case. You have told me that you have minor children that
needs your support and they are still at school, and you are a sickly
person, you were involved in a tragic car accident where you
sustained internal injuries, and that if you are incarcerated you may
not be afforded medical treatment facilities for your condition. You
also told the court that you had a bad relationship with the law,
that all your life you have been a hunted man by the police. I indeed
have taken these factors into consideration at arriving at the
sentence. However I must say that the offences that you are charged
with are of a serious nature. Attempted murder especially with a
firearm is a very serious matter indeed, more particularly pointing
that firearm and firing it at the defenceless woman at night. This is
indeed serious and of course the offences under the Arms and
Ammunition Act are of a serious nature. The sentences that have been
prescribed by the legislature show that the legislature viewed these
sentences in a very serious light. In my view I don't think it would
be proper in this present case to sentence you to a sentence that has
an option of a fine. Women in this country should be protected by the
law. They should be able to socialise at night without any fear.


In
the circumstances

I am goin
g
to
sentence

you
a
s
follows.


In
respect of the attempted murder that is Count 2, I sentence you to
(5) five years imprisonment, and in respect of Count 4 that is of
Theft of Firearm to (2) two years imprisonment. Count 5 and 6
possession of the Firearm and Ammunition as one for purposes of the
sentence and I will sentence you to (5) five years and Count 7
-possession of dagga to (6) six months imprisonment. Count 4, 5, 6
and 7 are to run concurrently, but these are to run consecutively
with Count 2, which means that you will be serving a sentence of (10)
ten years. The sentence is backdated to the date when you were
arrested. Now that the court has imposed its sentence, it is my duty
as an un-represented accused person to explain your legal rights.


You
have a right to appeal to a higher court that is the Appeal Court of
the Kingdom of Swaziland, you may appeal against the conviction and
also against the sentence that has been imposed by this court, you
can write your reasons for grounds for appeal and lodged them with
the Registrar of this Court and the Registrar in due course will put
this case before their Lordships for them to hear and you are also
going to be before them and make the pertinent submissions before
them.


S.B.
MAPHALALA


JUDGE