IN
THE COURT APPEAL OF SWAZILAND
CRIMINAL
APPEAL NO.16/95
In
the matter between:
ESTHER
NGCOTHILE MAGAGULA
VS
THE
KING
CORAM
:
TEBBUTT J.A.
:
SCHREINER J.A.
:
STEYN J.A.
FOR
THE CROWN :
MR. NDUMA
FOR
THE APPELLANT :
MR. SIMELANE
JUDGMENT
The
Appellant stabbed the deceased, Monile Ngwenya, twice with a knife,
one wound in the chest proving fatal. As a result of the death of the
deceased, the Appellant was charged with and convicted in the High
Court of murder with extenuating circumstances and sentenced to six
years' imprisonment, to commence on 9th August, 1994. The Appellant
now comes on appeal to this court against both her conviction and
sentence.
The
background to the stabbing of the deceased by the Appellant is this.
While she was drinking at a beer hallo with certain people, a woman
told her that the deceased was making allegations that the Appellant
and the deceased's husband were having an affair. The Appellant
decided to
2
have
it out with the deceased about her allegations. She left the beer
hall and went to her home where she changed her clothes, and armed
herself with a reed (sic) or whip and a large knife. She then went to
the deceased's house to confront her about her allegations. What
started as a verbal discussion took a nasty turn when the deceased,
according to the Appellant, hit her three times on the chest with her
open hand and then started throttling her. The Appellant then stabbed
her twice with the knife she had been carrying.
None
of the adult Crown witnesses saw, or could testify, either to the
stabbing or as to what had transpired between the Appellant or the
deceased at the latter's house. The deceased's ten-year-old son,
however, gave some evidence as to what had happened there. The trial
Judge relied on this testimony finding that the Appellant "had
pulled his mother outside" where the stabbing took place.
The
trial Court's reliance on this evidence was criticised before this
court by Mr. Simelane for the Appellant on two grounds: (a) that the
boy had not been properly sworn in or admonished properly to tell the
truth; and (b) that his evidence had not been approached with the
necessary caution, regard being to his youth. Both criticims are
justified. The record shows that the trial Judge said this to the boy
before he gave his evidence:
3
"JUDGE: How
old are you?
PW4: 10
years, My Lord.
JUDGE: Do
you go to school?
PW4: That
is correct, My Lord.
JUDGE: What
standard?
PW4: Standard
1, My Lord.
JUDGE: Do
you know the truth and lies?
PW4: No,
My Lord.
JUDGE: When
you tell the court, you must not
tell
lies.
PW4: I
understand, My Lord."
Without
wishing to set out any rigid guidelines as to what judicial officers
should say to young witnesses when admonishing them to tell the truth
as each instance must depend on the individuality of the witness
concerned, it seems to me that what was said by the trial Judge to
the boy in this case was wholly inadequate, particularly when the boy
said that he did not know the difference between the truth and lies,
a statement he repeated in cross-examination by Mr. Simelane, who
also appeared for the Appellant at the trial. Secondly, and more
importantly, all the boy said was that after hearing his mother talk
to the Appellant about the latter and her husband, he left to call
his aunt. His mother was then outside the house talking to the
Appellant. Asked how the deceased left her hut, the boy said "She
(the accused) was holding her." He said he later saw the
4
deceased
"bleeding." She was also "groaning like a cow."
Under
cross-examination the boy admitted not having seen or heard anything
else that occurred and when it was put to him that he was telling
lies when he said that the Appellant was holding his mother and that
in fact his mother followed the Appellant out of the kitchen, he gave
no reply. No reliance should therefore have been placed on his
evidence by the trial Court.
The
court is therefore left only with the version of the Appellant as to
what happened on the evening in question. Her defence was that she
had stabbed the deceased in self-defence when the latter was
throttling her. On her evidence, she left the beer hall when it was
already dark but instead of going straight to the deceased's house
she first went to her own home where she armed herself with the reed
and the knife. Asked why she had done this she said she used the reed
"to ward off dogs" and the knife "so that I would
protect myself with it along the way because it was already dark."
The latter statement is obviously untrue. It was also dark when she
left the beer hall to go to her house, which she also need not have
done as she could have gone straight from the beer hall to the
deceased. Her reply to the Crown was that she had not needed a knife
to protect herself from the beer hall to her own home because "it
was not yet very dark", serves to underline her untruthfulness
in this regard. It is, in my view, clear that knowing that
5
she
was going to confront the deceased over her allegations she decided
to take along a weapon that she could use should that confrontation
get out of hand as far as she was concerned. And that is exactly what
happened. There is nothing to gainsay Appellant's evidence that the
deceased first struck her and then started throttling her and it is
accepted that that occurred even though she had no injuries or marks
caused by the throttling. Indeed, she said as much to certain people
immediately after the events. When, however, she was being throttled
she clearly never hesitated to use the weapon, with which she had
obviously armed herself for just such an eventuality, to stab the
deceased.
The
facts show that the Appellant was the initial aggressor, going
deliberately to the deceased's home armed with a whip and a knife to
have it out with the deceased about her allegations. She was, she
admitted, offended and angry and obviously knew that the incident
might flare up into violence in which she might have to use the knife
with which she had intentionally armed herself before going to
confront the deceased.
The
knife was a large one and the Appellant must have foreseen as a
possibility that should she stab the deceased with it, the latter's
death could be the result.
6
In
South Africa, it has been held that If an accused foresaw the
consequences or circumstances in question e.g. the death of the
deceased as not only a probable result of his acts but considered
that there was a possibility that they would result and nevertheless
went ahead with her acts, (as the Appellant did), such accused has
the necessary intention to commit murder in the sense of dolus
eventualis (see BURCHELL AND MILTON: PRINCIPLES OF CRIMINAL LAW
(1994) p.255). The same principles apply, in my view, in this
country. They also apply to the circumstances of the present case.
It
follows that, in my opinion, the Crown succeeded in negativing beyond
reasonable doubt the Appellant's defence of self-defence and the
trial Court correctly convicted her of murder on the basis of dolus
eventualis.
The
sentence imposed causes no sense of shock. It is indeed a lenient
one. The trial Judge also committed no misdirection in imposing it.
The
appeal against both the conviction and sentence accordingly fails and
they are both confirmed.
TEBBUTT
J.A.
I
agree:
SCHREINER
J.A.
I
agree:
STEYN
J.A.
Delivered
on this…7th day 8 October 1996.
