Court name
High Court of eSwatini
Case number
96 of 2000

R v Dlamini and Another (96 of 2000) [2002] SZHC 3 (31 January 2002);

Law report citations
Media neutral citation
[2002] SZHC 3

 CRIM.CASE NO.96/00

In the matter between:

 

THE KING

 

VS

 

MEFIKA CARLOS DLAMINI

BODWA NYAWO

 

CORAM : MASUKU J.

 

For the Crown : Ms S.M. LaNgwenya

For the Accused : In person

 

 

JUDGEMENT

31ST JANUARY, 2002

 

Indictment

 

The accused persons stand before me charged on two counts. On the first count, they are indicted with attempted murder, it being alleged that on or about 1st March, 2000, and at or near Sicunusa in the Shiselweni District the said accused persons, acting in common purpose did wrongfully, unlawfully and with intent to kill one Thandi Ntwanyana Dlamini stab her with a knife and pelt her with stones.

 

In the alternative, they are charged with assault with intent to cause grievous bodily harm. The same allegations made in relation to the main count are repeated and I need not repeat the same.

 

On Count 2, the accused are charged with the crime of arson, it being alleged that upon or about the 1st March, 2000, and at or near Sicunusa in the Shiselweni District the said accused persons, acting in common purpose did unlawfully and with intent to injure Thandi Ntwanyana Dlamini in her property, set on fire and thereby damaged and burned to the ground two huts being immovable property of the said Thandi Ntwanyana Dlamini.

 

Pleas

 

The accused persons, who were unrepresented throughout the trial were informed of their rights to legal representation but indicated that they were going to conduct their own defence. The charges having been read out to them they indicated that they understood the same and pleaded as follows:-

 

On count one, both pleaded not guilty.

On the alternative count, they both pleaded guilty.

On count two, they pleaded not guilty.

 

Chronicle of Evidence

 

In support of the charges, the Crown paraded five witnesses, whose evidence is chronicled herein below.

 

PW1 was Nompumelelo Cynthia Nyawo of Sicunusa. It was her testimony that she knew the complainant Thandi Ntwanyana Dlamini (herein after referred to as “PW 3”) and also knew both accused persons. She testified that A2, came to PW 3 and asked why she had accused him at having eaten her chicken. Later, he came back with A1. A2 was carrying a knobstick which A1 took away and went into PW 3’s cooking hut. A1 then assaulted PW 3 asking why she had lied against A2. He assaulted her on her head and she fell down. A1 then proceeded to a hut which belonged to PW 1’s grandfather, retrieved a glowing piece of wood and set PW 3’s cooking hut on fire. He proceeded to close the door whilst PW 3 was inside so that she could not come out.

 

As the hut was collapsing, PW 3 managed to open the door and came out. She carried a sponge which she used as shield to ward off stones with which she was being pelted by both the accused persons. PW 3 went into her sleeping hut whereupon A1 went to close the door, took some burning grass from the cooking hut and set alight PW 3’s sleeping hut in which she was. As it was collapsing, PW 3 again managed to come out and she threw out some property which was in the house with her husband’s assistance i.e Sam Nyawo. Soon thereafter, members of the vigilantes came and A1 took to his heels. He was however arrested by them and taken away. PW 3 was later taken by the vigilantes to Mankayane Hospital.

 

It was PW 1’s evidence that this occurred at or about 15h00 and she was about four (4) to six (6) metres away from PW 3’s hut when A1 came and that she was grinding some maize at the time and was in the company of Gabisile and Xolani Mntshali. It was her further evidence that PW 3 sustained a head injury as a result of the assault by A1. She further testified that she did nothing to assist PW 3 because she feared that the accused would also assault her. According to PW1, the stones with which PW 3 was pelted were obtained from an old hut which had become derelict.

 

In cross-examination, A1 denied taking the knobstick from A2, alleging that he found it on the ground. This PW 1 denied, maintaining her evidence in chief. She further denied as put to her, that A1 took the knobstick after PW 3 had assaulted her with an axe and that she assaulted PW 3 in self-defence. PW 1 told the Court that she never saw PW 3 assaulting A1 as both were inside the cooking hut. She however maintained that A1 never picked up the knobstick from the ground. PW 1 confirmed that A1 assaulted PW 1 until she fell down and that when she went to investigate, A1 pushed her outside and asked what she (PW 1) was looking for.

 

A1 denied having closed the door to the cooking hut, and further denied going to look for a glowing piece of wood from another hut. PW 1 maintained her evidence in chief. PW 1 further testified that A1 used a wire and piece of rope on the door to secure the cooking hut door. Nothing of consequence was asked by A2.

 

PW 2 was Absolom Yawa Nyawo, who testified that he lives in Sicunusa and is an elder brother to A2. It was his evidence that he last saw A2 in the year 2000 and that was after latter had burnt down huts at their homestead. He testified that he knew A1. He testified that on the fateful day, he saw A2 coming home with A1. A1 went into a hut and there assaulted PW 3 with a knobstick, whereupon, he PW 2 intervened by holding A1 forcing him out of the hut. A1 then went into another hut took a glowing piece of wood and set the hut alight and when it was about to collapse, PW 3 got out and ran into another hut. A1 also set that other hut alight and from which hut PW 3 again emerged. PW 3 then ran away but she was caught by the accused and PW 2, with the assistance of one Dumisani rescued her.

 

PW 2 testified that the reason advanced by A1 for assaulting PW 3 was that she had accused A2 of eating her chicken. It was PW2’s further evidence that when he restrained A1 from assaulting PW 3, he A1 pretended to comply but again reverted to his attacks on PW 3. PW 2 confirmed PW 1’s evidence regarding PW 3’s injury on the head, the arrival of the vigilantes, the running away of A2. He also told the Court that as A1 was assaulting PW 3, A2 was collecting stones and throwing them at the hut in which PW 3 was.

 

In cross-examination, PW 2 was asked by A1 if the door to the cooking hut was closed as PW 3 was in it and the answer was in the negative. It was his evidence that A1 assaulted PW 3 before she assaulted him with an axe. No questions were forthcoming from A2. Responding to questions by the Court, it was PW 2’s story that when the cooking hut was burning, the door thereof was ajar. Regarding the sleeping hut, PW 2 told the Court that that door was closed by PW 3 in a quest to prevent the accused persons from entering therein.

 

PW 3 also testified. It was her evidence that she knew the accused persons and PW 1 and PW 2. She testified that on the 1st March 2000, on a Wednesday, she was from the fields and discovered that one of her chickens was missing. She looked for it unsuccessfully. She called upon the person who took it to return it, failing which she would consult the diviners who would identify the culprit after which she would report the matter to the RSP.

 

As she was dishing food in her hut, A2 who was carrying a knobstick, approached and stated that he had learnt that she (PW 3) had accused him of stealing her chicken and her response was that she had not mentioned the name of the culprit. She further told A2 that she had seen a trail of feathers leading to a certain hut, which A2 denied. PW 3 and A2 then went to the latter’s hut and there found some feathers inside. PW 3 returned to her cooking hut to dish food. As she did so, she heard stones being thrown at her and A1 came in with a knobstick and assaulted her with it. A2 was at the time throwing stones. PW 2 rushed into the hut and intervened and dispossessed him of the stick. By this time, PW 3 had fallen down next to the fireplace where she was picked up by PW 2. He pushed A1 outside the cooking hut.

 

At this juncture, and while PW 3 was protesting at being assaulted because she had mentioned nobody’s name in connection with the disappearance of the chicken, A1 produced something like a knife and assaulted her with it on the forehead. She however did not see what it was as she was by then bleeding profusely. She cried and shouted as a result. She then took an axe and used its back to hit A1 in self-defence. A1 went out and fell outside. As she tried to strike him there once more, PW2 restrained her. A2 was still pelting her with stones. This prompted PW 3 to close the door in order to avoid the stones hitting her but to no avail. A1 then closed the door to the hut from outside and secured it. This was after A1 had gone to fetch a glowing wood from hut of PW3’s father-in-law and set the hut alight. PW 3 tried to force the door open without success. Eventually, the door did open and PW 3 came out with a sponge which she used to ward off blows from the accused persons. She moved into another hut as the accused continued pelting her with stones.

 

Accused 2 then shouted words to the effect that it has gone into this hut. Bring the fire. We are soldiers and today, you have eaten your last meal. Because you say we have eaten your chicken, we want to kill you. PW 3 retorted that she had mentioned nobody’s name regarding the disappearance of the chicken. The hut was then set alight. A1 secured the door which rendered it difficult for PW 3 to escape. Eventually, the door gave way and she came out as the hut collapsed. When she emerged, A2 said, “There it runs, go in the other directions and stop it”, in reference to her. She ran away and was assisted by the vigilantes. She hid in a bushy area but saw A1 climbing on rocks frantically searching for her.

 

PW 3 was later taken to Mankayane Police in a motor vehicle. A1 was also in there but he escaped and went back to his homestead. She was later seen by a doctor at Mankayane who sutured her and admitted her for a whole week. It was her further evidence that she sustained injuries all over the body which injuries still affect her even now as there are certain activities or chores she cannot perform. PW 3 related an incident in which A1 had knocked on her door and pretended to be a policeman. He accused her of saying that they had eaten her chickens and that he would arrest her and later kill her. As regards the events in question, it was PW 3’s testimony that she was unaware of the reasons why A1 had acted in the way he did as she had done nothing to provoke him.

 

In cross-examination, A1 denied securing the door of the cooking hut with a wire. This, PW 3 maintained had happened. Asked how she could see that the door was secured as she was inside, PW 3 stated that she tried to open the door without success and she was called upon to apply force to get it open. It was further put to A1 that the door was open when the hut was burning but this PW 3 denied.

 

A2 on the other hand denied having referred to PW 3 as “it”. He denied going with PW 3 to see the feathers in his hut. PW 3 maintained her evidence in chief. It was also suggested to PW 3 that she accused A2 of having sold her chicken in order to obtain some liquor. It was also suggested to her that she had mentioned A2’s name in the disappearance of the chicken. It was further suggested to her that she had said that she wished the deceased had died where he was working, which indicated to A2 that she was accusing him for the disappearance of the chicken. These issues were emphatically denied by PW 3. That was the extent of PW 3’s testimony.

 

PW 4 was Patrick Mkhipheni Motsa, a member of the vigilantes. He testified that he saw the Nyawo homestead in billows of smoke and proceeded there to investigate. On arrival, he found A1 swearing obscenities in the yard but it was not immediately apparent to him as to who the addressee was. A1 was visibly angry. PW 4 informed A1 that he was a member of the vigilantes and had come to inspect the damage and to arrest A1. PW 4 further, testified that A1 was uncooperative and advised PW 4 against involving himself in a matter with which he had nothing to do. PW 4 drew nigh to A1 but the latter picked up a torch cell and threatened to assault PW 4 therewith. A1 then ran away but was apprehended by PW 4.

 

A1 was taken and caused to board a vehicle which was to convey him to the Police Station but it broke down and A1 escaped. He was taken to the RSP the following day.

 

In cross-examination, A1 denied having shouted obscenities at the Nyawo homestead. He stated that he was just standing. He also denied running away when the vehicle broke down, suggesting instead that he merely went home to sleep and told PW 4 so. PW 4 maintained his evidence in chief regarding the above issues. The Court then enquired from the PW 4 as to why he decided to arrest A1. His response was that he had received a report from a boy from the Nyawo homestead to the effect that A1 was attacking PW 3 and had burnt down two huts.

 

PW 5 was 3421 D/Constable Patrick Dlamini of Gege Police Station. It was his evidence that on the 2nd March 2000, he received a report and actioned it. He proceeded to the Nyawo homestead and found two huts destroyed by fire but there were smouldering coals though. He was told that the suspect and the complainant had been conveyed to Mankayane Police Station, a fact he later confirmed. He proceeded to Mankayane where he cautioned A1 in terms of the Judge’s Rules and arrested him. On arrival at Gege, A1 was interrogated and asked to hand over the weapons that he had used to assault PW 3 but he stated that he used stones not a knife and knobstick as alleged. He was thereafter formally charged.

 

Regarding A2, PW 5 stated that he received information that the latter was in the Republic of South Africa at a place called Mampondweni. PW 5 reported to the Piet Retief Police and requested them to accompany them to a compound where A2 was identified PW 5, cautioned him in terms of the Judge’s Rules, arrested him and brought him back to Swaziland.

 

PW 5 further testified that he extracted two burnt pieces of wood and some grass used for thatching both of which had been burnt and these were handed in as exhibits. They were collectively marked Exhibit 1. The Court mero motu questioned PW 5 about the procedure for arresting suspects who are in the Republic of South Africa but who are alleged to have committed crime in Swaziland. PW 5 informed the Court that they cross the border and fetch the suspect with the assistance of the South African Police Services, and that in most cases, the suspects cross the border illegally and are therefor charged under the South African Immigration laws.

 

A medical report was thereafter handed in by consent in terms of the provisions of Section 221 for the C.P. & E, the Accused having been duly warned of their rights. The said report reflects that PW 3 who is around 59 years was examined on the 2nd March 2000 at Mankayane Hospital. Her clothes were bloodstained. It also records that she had sustained facial lacerations and laceration of left hand fourth finger. There was also an injury on left leg but no bone injuries were observed. The Doctor opined that injuries were consistent with a case of assault as alleged.

 

At this juncture, the Crown closed its case and I indicated that from the evidence led, there was a prima facie case against both accused persons. I accordingly called both of them to their defence.

 

Assessment of Crown’s Evidence

 

It is my considered view that the Crown’s evidence was in large measure credible, reliable and corroborative. I was impressed by all the Crown witnesses, particularly the manner in which they adduced their evidence. In my view, they were forthright and answered questions put to them without difficulty. Having said this, I must however point out that evidence of the complainant, PW 3 was not entirely satisfactory for reasons that I will enumerate below.

 

Firstly, she denied having accused A2 of stealing her chicken. She did however proceed to state that she went with A2 to his house and there saw feathers, thereby indicating that A2 was the culprit. PW 1 also testified that A2 came and asked PW 3 why she had accused him of eating her chicken. There is no record that she had denied accusing A2 of having eaten the chicken.

 

Secondly, I formed the impression that PW 3 was guilty of exaggerating the injuries she sustained together with their effect on her health. The medical report only indicated injuries on her head, left 4th finger and the joint above her foot. Had the injuries been as serious as PW 3 contends, the medical report could have reflected these. It is not abnormal for a person in PW 3’s position to see his/her assailant handed down a stiff sentence for injuries he/she sustained at the latter’s hands. One way of so doing is to exaggerate the nature, extent and effects of the injuries. I therefor take due caution of PW 3’s evidence in accepting the nature and extent of the injuries she sustained, particularly viewed against the contents of the medical report.

 

Thirdly, PW 3 stated that A1 used a sharp instrument, which she suspects to have been a knife to stab her on her forehead. She conceded however that her face was full of running blood and her vision was thereby impaired. It would be dangerous in my view to rely on her evidence and conclude that A 1 stabbed her with a knife in the circumstances as she could not see it neither was a knife found in A1’s possession during his arrest, which according to the evidence, was effected reasonably soon after the huts were burnt down. I say this cognisant also of A1’s story, in which he stated that he never used or carried a knife but used the sharp end of the knobstick, which inflicted the injury on PW 3’s forehead.

 

The accused’s explanation is reasonably possible in this regard. Had a sharp instrument like a knife been used, this would normally be included in the medical report but such a finding is however conspicuously missing. It is also noteworthy that PW 5 testified that when he interrogated A1, he asked him to produce a knife but A1 said he did not used one to inflict the injuries on PW 3. He stated that he had used stones only, an assertion later proved false in A1’s questioning as it is apparent that he also used a knobstick to assault PW 3.

 

A more fundamental difficulty with the Crown’s evidence that I noted was in relation to the question whether or not the doors to both the cooking and the sleeping huts were closed by A2. PW 1 and PW 3 stated that after setting both huts on fire, A1 secured the doors with PW 3 inside, intending that she should die inside the huts.

 

PW 2 on the other hand testified that A2 never closed and secured the doors. In respect of the cooking hut, it was his evidence that the door was open whilst the hut was being razed down by fire. This is also A1’s story as put to the Crown’s witnesses. Regarding the door to the sleeping hut, PW 2 testified that it was PW 3 herself who locked the door from inside and this was to prevent A1 and A2 from attacking her any further.

 

I am inclined to believe PW 2 in his account in view of this serious inconsistency in the Crown’s evidence. I do so because in her own evidence, PW 3 stated that she tried to close the door to the cooking hut in order to stop the stones that were being thrown at her by A1 and A2, although she said she never managed. PW 2 and A1 say that the door was open throughout.

 

Furthermore, it is conceivable, in respect of the sleeping hut that PW 3 would close the door behind her as she was running away from her assailants, who she alleges were continuously pelting her with stones. The only way for her to remain in a place of safety was to secure the door behind her, thereby keeping A1 and A2 and the stones at bay.

 

Had this element about closing both doors when the houses were being burnt down been included in the statements by the witnesses, then I am of the view that these allegations, in view of their seriousness would have been made in support of facts from which it could be inferred that the accused persons harboured an intention to kill PW 3. These were not included in the charge sheet and in my view, this detracts from the veracity of PW 1 and PW 3’s stories. I accordingly reject the evidence of PW 1 and PW 3 in this regard on the aforesaid grounds.

 

Save the foregoing imperfections noted in the Crown’s case, I have no qualms in finding the balance of the Crown’s evidence worthy of credence. It is now trite that the Court is at large, whilst accepting one part of a witness’ evidence to reject another portion and this is at what I have done. See R v KHUMALO 1946 AD 480 at 484.

 

As indicated earlier, at the close of the Crown’s case, I formed the view that the Crown had made out a sufficient case requiring the accused persons to be called to their defence. I said so mindful of the question of A2’s arrest and with which I propose to deal immediately below.

 

Arrest of A2

 

The circumstances of A2’s arrest have been outlined above. The question to be decided is as follows: - was A2’s arrest in the Republic of South Africa lawful. If not, what are the consequences for the unlawfulness of the arrest on his conviction? I may well add that I raised this question mero motu when PW 5 gave his evidence. I did so because the accused were unrepresented. Had they been represented, this would have been an issue to be raised at the stage of pleading, in terms of Sections 155 of the C.P. & E, in respect of which this Court’s jurisdiction to try him would have been raised. It is my view that notwithstanding the provisions of Section 155 regarding the stage where the Court’s jurisdiction is attacked, that the Court is at large, where the accused persons are unrepresented to raise the question mero motu as soon as it arises and this is what I sought to do. In point of fact, the Court of Appeal in BONGANI MKHWANAZI v REX , APPEAL CASE NO. 125/98 (per Steyn J.A.), delivered on the 27th November, 2001, held as follows regarding the proper interpretation of Section 155, regarding when a plea to the Court’s jurisdiction should be properly raised. The Crown had contended that the plea should be raised ab initio. Steyn J.A. stated the following at page 11 of the judgement:-

 

“It would in any event seem to us to be unacceptable to interpret the relevant

provision of the Criminal Code in this restrictive manner. The question of the

presence or absence of jurisdiction may only become apparent during the course

of the trial and to preclude it from being raised when it is obvious that to continue

would only lead to a mistrial being decreed on appeal, would clearly be

unacceptable.”

 

In the instant case, the question arose just before the Crown closed its case and that is when I raised it, with instructions to Crown Counsel to address me on its effects to the trial of Accused 2.

 

This question arose for decision is S v EBRAHIM [1991] ZASCA 3; 1991 (2) SA 553 (per M.T. Steyn J.A.), where it had been alleged that the accused had been abducted from this country to stand trial in the Republic of South Africa. In R v BONGANI MKHWANAZI & 3 OTHERS, CRIM. CASE NO.125/98, Maphalala J. also had occasion to consider this matter.

 

S v EBRAHIM (supra) is unfortunately reported in Afrikaans and no translations are available. It does however appear from that case, if my understanding is correct, that the applicable principles are the following: -

 

  1. There is a distinction between the apprehension of a person in a foreign State

and his subsequent transportation to another country by a private citizen acting on his own from the situation where the said person is apprehended and transported to another country by or with the connivance of an official of the

country to which the apprehended citizen is returned.

 

  1. In the former case, the person apprehended cannot object to the court’s

jurisdiction to try him for a criminal offence in a country to which he has been

brought after his unlawful apprehension;

 

© In the latter case, the jurisdiction of the Court to try him is assailable because

the apprehension of the person concerned involves a breach of international

law.

 

From the evidence of PW 5, it is clear that A2 was apprehended and arrested in the Republic of South Africa by the R.S.P. He was thereafter brought into Swaziland and detained by the R.S.P. From the foregoing, it is my view that this case does not fall within the category of matters in respect of which persons are apprehended by a private citizen. It falls squarely within the second category as it appears that there was some assistance by the S.A.P.S.

 

The Crown referred the Court to an agreement which was signed by His Majesty King Mswati III and the then President of the Republic of South Africa, Mr Nelson Mandela. It sets out a procedure for dealing with cases in which persons are required for criminal cases in either country amongst other issues. That procedure is provided for in Article 3 in the following terms:-

 

“Tracing, arresting, detaining, guarding or keeping in custody any person

suspected of having committed any offence contemplated in Article 3 (1) (a)

and taking such steps as the hosting police service is authorised to by

municipal law of its country in order to effect any such person’s extradition

for trail (sic) in a court of competent jurisdiction.”

 

From the foregoing, it is clear that the terms of the agreement were not followed in that the R.S.P. proceeded into South African territory and there arrested A 2. In terms of the agreement, the suspects are to be arrested and detained by the S.A.P.S., which process is then followed by extradition procedures. It is my finding that whatever the nature of assistance by the S.A.P.S. did not cure the breach of the agreement.

 

It is clear therefore that in casu, there was a breach of the principle of sovereignty of nations. In particular, the sovereignty of the Republic of South Africa was in my view breached. This, according to the authorities can be a ground for this Court to decline to exercise its jurisdiction over an accused person. See also NDLOVU AND ANOTHER v MINISTER OF JUSTICE & ANOTHER 1976 (4) SA 250 (N) and NDULI AND ANOTHER v MINISTER OF JUSTICE v ANOTHER 1978 (1) SA 893 (A). As a mark of the high regard that this Court attaches to the principle of sovereignty of nations, the Court hereby declines to continue exercising its jurisdiction over A2. In that event, he is acquitted and discharged of all the Counts on which he was indicted.

 

I however wish to stress that the R.S.P. must ensure that in obtaining suspects from South Africa, who are Swazi Nationals or other nationals, the agreements, treaties and the respective laws of both countries governing extradition and related matters are adhered to. I am of the view that the fact that a Swazi National who is a suspect in respect of a criminal case in Swaziland does not thereby entitle the R.S.P. to jettison the agreements, treaties and the laws applicable thereby breaching South Africa’s sovereignty. In any case in which this is done, the Courts should decline to exercise their jurisdiction and in this way, the R.S.P. will also learn to appreciate the seriousness and the impact of the agreements, treaties and legislation in question.

 

As an aside, the copy of the agreement to which I referred to does not appear to have a date of commencement, which might have been the result of an oversight. I am not certain as to whether the same holds true for the original. I have, notwithstanding that omission proceeded on the basis that the agreement is valid and in force. I have not been called upon to decide its validity but the Attorney-General may well be advised to consider this issue and cause remedial steps, if appropriate to be taken to deal with the omission.

 

Accused 2, due to the Courts declinature to exercise its jurisdiction on him is acquitted and discharged on all counts. This acquittal, it must be understood is not on the merits of the matter. It may be open to the Crown to bring him to justice for his alleged actions, provided he is not arraigned and brought to Court by means or procedures which would lead the Court to refuse to exercise its jurisdiction as in casu.

 

 

The Defence case.

 

The accused’s rights at this stage of the trial were fully explained to them. They signified to the Court that they understood same. In exercise of those rights, A1 elected to adduce sworn testimony, whilst A2 elected to remain silent. Nothing further needs be said in this regard about A2, in view of the decision to which I arrived regarding his arrest and his subsequent acquittal.

 

I will only confine myself to the salient features of A 1’s evidence and they run as follows: On the day in question A1 and A2 woke up early in the morning to work in forests. PW 3 heard when A1 came to fetch A2 in readiness for departure for the forest swearing at A2, calling him by his mother’s private parts. She asked A2 where her chicken was and latter denied knowledge of it. She then accused A2 of having stolen it and further referred to him as a dog thief. Incensed by PW 3’s actions and words A2 wanted to fight PW 3 but A1 dissuaded him from doing so, insisting that they proceed to work, which they did. As they left, PW 3 shouted, saying that she wonders where A2 will sleep on his return from work in the evening.

 

They returned at around 16h30 and they parted at A2’s home. Shortly thereafter, A2 called A1 and they proceeded to A2’s and found that the door had been interfered with. It had not been closed as A2 had left it in the morning suggesting that some person had entered his hut. PW 3 confessed to having done so and that she was looking for her chicken. PW 3 stated further that she had not found the chicken but its feathers in A2’s hut.

 

A2 invited PW 3 to come and inspect the hut but PW 3 refused to do so. A2 said there were no feathers in the said hut. PW 3 then told them that she had found the chicken among the others, whereupon A2 retorted that PW 3 had tarnished his name. PW 3 responded by saying that A2 is in the habit of stealing her chickens and thereafter bartering them and receiving liquor in exchange.

 

PW 3 was carrying a bush-knife, which she was sharpening with sandpaper. A2 then swore at PW 3 and PW 3 advanced and attempted to strike A2 with the bush-knife unsuccessfully. As A1 went past PW 3’s hut, PW 3 assaulted him with the back of an axe on the head and he fell down. As he arose, PW 3 advanced. A1 saw a knobstick on the floor which had been in A2’s possession earlier. A1 wielded it sideways in order to prevent PW 3 assaulting him any further. PW 3 was hit with the sharp side of the knobstick on the forehead, which injury she claims was caused by a knife. PW 3 thereafter ran into her cooking hut and threw burning pieces of wood at A1. A1 threw the same back at her. He thereafter realised that the hut was burning with PW 3 inside. The fire started burning on the roof above the door.

 

A1 moved away form the hut and PW 3 then ran out of the burning hut and entered into another. Due to the close proximity of the burning hut, a second hut in which PW 3 was also caught fire. PW 3 managed to escape and she, PW 2 and her husband removed some items from the burning hut. Thereafter, the vigilantes arrived and enquired as to what happened. PW 3’s husband told the vigilantes that a fight had broken out between A1, A2 and PW 3, whereafter, A1 was arrested. Later, he was conveyed to Mankayane hospital where he was sutured and thereafter handed over to the RSP.

 

No questions were posed to A1 by A2. In cross-examination by the Crown, A1 stated that he was in good terms with A2 and the relations between A1 and A2’s families were cordial. A2 stated that PW3 was old enough to be his mother and respected her and would at times assist her with insecticides for use in her fields. A1 stated that his first involvement in the fracas was as a result of PW 3 assaulting her. When asked where she was when PW 3 assaulted him, he stated that he was at her door passing by.

 

A1 denied having gone into PW 3’s hut armed with a knobstick and using a sharp instrument to assault the deceased. He further denied having pelted her with stones alleging that he only threw burning pieces of wood at PW3. He conceded that he did later consider that the hut would burn down as a result of his actions i.e. throwing the burning pieces of wood at it. A1 also denied having secured the door of the cooking hut, maintaining that it was open throughout and that had it been secured, PW 3 would not have managed to escape. A1 also denied having set both huts on fire. He further denied that he swore at PW 3. He stated that he never intended to see the huts burn down but appreciated that if he used fire on a thatched roof, the huts would burn down. He then closed his case.

 

Assessment of A1’s evidence.

 

A1 was very poor as a witness. In my mind, it was very clear that he lied at times. In this regard, it is untrue that he was assaulted by PW 3 first. The Crown’s evidence is in this regard is very clear and was not controverted by A1. I find for a fact that A1 assaulted PW 3 first with a knobstick and that she acted in self-defence when she assaulted him with the back of an axe.

 

Furthermore, A1 lied when he alleged that PW 3 assaulted him as he was walking past her hut because under cross-examination, he later stated that she assaulted him at the door of her hut and that he was not passing by the hut but was actually trying to assault her, whilst standing at the door of the hut.

 

A1 was in certain instances, uncomfortable and very shaky and I noted this in particular when he was subjected to scorching cross-examination by Ms LaNgwenya. This uncomfortableness is in my view not to be associated with stage fright as the accused was exceedingly calm in his evidence in chief. He began to overheat under cross-examination.

 

In the cases of S v P 1974 (1) SA and R v DOMINIC MNGOMEZULU AND OTHERS CRIM.CASE NO.94/90, it was authoritatively stated that, the defence case must be put to the Crown’s witnesses in order for the Court to see their reaction thereto. It was stated that where there is a failure to put the entire defence case, the Court is at large to regard the portions not put as an afterthought.

 

I am mindful that the accused persons were not represented and would not have been expected to understand such lofty principles of conducting a criminal trial. Their rights to cross-examination were fully explained to them and they indicated that they understood their rights. That being the case, though unrepresented, they should have had no difficulty in putting their case sufficiently to the Crown’s witnesses, particularly in view of the intelligent and relevant questions put by A1 to the Crown’s witnesses.

 

Issues that only emerged in A1’s evidence in chief are the following: -

 

  1. that PW 3 assaulted A1 first;

  2. that the hut caught fire as a result of A1 throwing back burning pieces of wood at PW 3;

  3. that PW3 threw burning pieces of wood at A1.

  4. that the sleeping hut was burnt as a result of its close proximity to the cooking hut;

  5. that PW3 was asked to inspect A2’s hut with A1 and A2 but she refused;

  6. that A2’s house had been broken into and that PW 3 confessed to having broken into it;

  7. that the chicken reported to have been missing by PW 3 was eventually found by her; and

  8. that PW 3 was carrying a bush-knife and that she attempted unsuccessfully to assault A2 with it.

 

The list is endless. It is however clear in my mind that these were all crucial issues which A1 knew and would have had no difficulty in putting to PW 3, in particular. As a result, the Court was denied the opportunity of seeing her react thereto. I must perforce regard these issues as an after thought as I hereby do.

 

The question to now consider is whether it can be said that the evidence led by the Crown proves commission of the offences wherewith the accused person is charged beyond a reasonable doubt. I will analyse the issues relating to Count 1 first.

 

 

  1. Attempted murder.

 

The applicable principles in matters of attempt were considered at length by Niles Duner J. in S v GCABASHE 1997 (2) SACR 106. See also the authorities therein cited.

 

In R v SCHOOMBIE 1945 AD 541, at 545-6, Watermeyer C.J. stated as follows:-

 

“Attempts seem to fall naturally into two classes: (a) Those in which the wrong

doer, intending to commit a crime, has done everything which he set out to do but

has failed in his purpose either through lack of skill, or of foresight, or through the

existence of some unexpected obstacle, or otherwise, (b) those in which the wrong

doer has not completed all that he set out to do because the completion of his

unlawful act has been prevented by the intervention of some outside agency.”

 

In S v DuPLESSIS 1981 (3) SA 382 (A) at 399 H-400B, Corbett J.A. (as he then was) developed the principle as follows:-

 

“Clearly the decision in any particular case as to whether or not, at the moment

of interruption or prevention, the conduct of the accused has progressed beyond

the stage of preparation and constituted a commencement of the consummation

must in the last resort become a factual enquiry relating to the particular

circumstances of the case in which the following factors, amongst others, would

play a part: whether at that stage the accused had made up his mind to commit

the crime, the degree of proximity or remoteness which that arrested conduct

bore to what would have been the final act required for the commission of the crime

and, generally, considerations of practical common sense. I doubt whether any

greater precision than this can ever be achieved.”

 

The question in this case is as follows: regard had to the allegations made in the charge sheet, can it be said that the accused persons set out to kill the deceased and were stopped dead in their tracks by the timely intervention of PW 2? Whether the accused had at the stage of intervention made up his mind to kill PW 3 is a question that has to be answered in full appreciation of the attendant facts of this case.

 

In my view, it cannot be said in casu that A1 had made up his mind to kill PW 3. In this regard, I must consider the nature of the weapon used, the area on the body where the injuries were inflicted and the nature and extent of those injuries. In casu, as I held earlier, there is no evidence that A1 ever had or used a knife, which can be regarded as a fatal weapon (considered of course together with the location of the assault on the body and the nature and the extent thereof). A1 used a knobstick with which he hit PW 3 on the head. There is no indication from the medical report or otherwise that the wound had possible fatal consequences.

 

The other injuries were themselves not of a severe nature i.e. on the lower pat of the leg and the 4th finger on the left hand. There is no indication that these were serious injuries and from which an intention to kill can be inferred. Furthermore, had it been A1’s intention to kill PW 3, he could have done so even after the intervention of PW 2. He could for instance have attacked PW 3 inside both the cooking hut and the sleeping hut but he did not.

 

It cannot be said, as Ms LaNgwenya argued that the intention to kill should be inferred from his setting the huts alight and locking the doors to the huts. I say so primarily for two reasons. First, I have rejected the evidence of PW 1 and PW 3 to the effect that the doors were secured by A1 for reasons aforementioned.

 

Second, had it been the Crown’s case that in addition to the allegations made in Count 1 and from which an intention to kill could be inferred, specific allegations relating to the burning of the huts and the securing of the doors by A1 should have been specifically averred. An accused person must know from the allegations contained in the indictment the case that he is to meet in order to adequately prepare for it. It would be unconscionable, indeed unjust, for the Court to allow factors which could and should have been pleaded but were not, to be used as a basis to convict an accused of a crime when these only come to light in evidence.

 

In view of the nature and extent of the injuries as reflected in Exhibit “A”, the nature of the weapon I found for a fact to have been used, it is my finding that the Crown has failed in making out a sufficient case for the conviction of the accused person on Count One. I however do find him guilty on the alternative count of assault with intent to cause grievous bodily harm and to which both had pleaded guilty.

 

  1. Arson.

The crime of arson consists in one unlawfully and intentionally setting on fire immovable property an immovable structure with intent to injure another. See R. v DUMSANE SOLOMON DLAMINI 1979-81 SLR 193 (per Cohen J.).

 

It is in my view abundantly clear that the elements of this offence have been proved by the Crown beyond a reasonable doubt. The evidence of PW 1 was very clear in this regard, namely that the accused went to her grandfather’s hut and took burning pieces of wood and set the cooking hut alight. This evidence was corroborated by PW 2. A1 did not contest their evidence in this regard until his sojourn in the witness box. As indicated earlier, his explanations as to how the cooking and sleeping huts were set alight I have rejected as an afterthought. In this regard, it is my view that PW 1, PW 2’s evidence in this regard, which stand uncontroverted must stand.

 

It is also worth referring to excerpts from my notes in which a battle of wits between Ms LaNgwenya and A1 is recorded, regarding this aspect of the matter.

 

Q: The evidence on the record is that you set both huts on fire and you did not dispute this

A: False. I did not know that there was a fire lit somewhere else in the homestead. I did

not dispute this because it is our first time to appear in Court.

 

Q: You burnt down the two huts with intent to see them burn down

A: That was not intended.

 

Q: What did you think would happen if you used fire on a thatched roof

A: It occurred after that it was going to burn.

 

From the foregoing, and in view of the entire evidence, it is my finding that the accused person intended burning the huts to the ground. No other conclusion can in the circumstances be reached than that he burned the huts intentionally and in order to get even with PW 3 who had falsely accused his friend of eating her chicken. A1 went to another hut, picked up pieces of burning wood, set the roof of the cooking hut alight and after that hut was razed to the ground, he took burning grass from this hut and set the other alight. This is a case of actual intention. At the least A1 ought to have foreseen and in fact did foresee the consequences of his act but was reckless as to whether they materialised or not.

 

If the entire episode was unintended, A1’s actions would have suggested otherwise. He did nothing to assist PW 3 as she was caught in the burning hut. He also did not bother to assist in putting out the fire or in salvaging whatever items could be salvaged from the cooking hut. According to the evidence, no property was actually salvaged. What I have just said above applies with equal force to the cooking hut. Furthermore, nowhere in the evidence neither the Crown’s nor the defence case can it be shown or suggested that the accused person exhibited any signs of remorse, particularly in regard to the arson. To the contrary, the evidence is that A1 was in a belligerent and highly abusive mood.

 

In S v V 2000(1) SACR 453 at 455 a-c Zulman J.A.stated the applicable principles at the close of the entire case as follows:-

 

“It is trite that there is no obligation upon an accused person, where the State bears

the onus to convince the Court. If his version is reasonably possibly true he is

entitled to his acquittal even though his explanation is improbable. A court is not

entitled to convict unless it is satisfied not only that the explanation is improbable

but that beyond any reasonable doubt it is false. It is permissible to look at the

probabilities of the case to determine whether the accused’s version is reasonably

possibly true but whether one subjectively believes him is not the test. As pointed

out in many judgements of this Court and other courts the test is whether there

is a reasonable possibility that the accused’s evidence may be true.”

 

In full appreciation of the import of the above excerpt, I am of the view that A1 is guilty as charged. He is guilty of assault with intent to cause grievous bodily harm and arson respectively.

 

 

 

T.S. MASUKU

JUDGE