THE HIGH COURT OF SWAZILAND
the matter between:
: MASUKU J.
the Crown : MR J.W. MASEKO
Accused 1 & 2 : MR G.M. MASUKU
Accused 3 & 4 : MR H.M. MDLULI
accused persons stand before me charged with the crime of murder. The
indictment alleges that on or about the 17th June, 1999 at or near
Mlindazwe area in the Shiselweni District, the said accused persons,
each or all of them acting in common purpose did wrongfully and
intentionally kill one Mpiyonke Volovolo Shabangu.
accused persons all pleaded not guilty to the charge and their
respective pleas were subsequently confirmed by their respective
consent of all the counsel involved the following issues were
admitted. First, the identity of the deceased, which dispensed with
the need to call the identifying witness. Second, the
of death. In this regard, a post-mortem report prepared by Dr R.M.
Reddy was handed in by consent and was marked Exhibit "A".
said report records that the deceased died as a result of haemorrhage
resulting from multiple injuries. It further recorded the following
ante-mortem injuries: -
over left parietal 5 x 2cm scalp deep, left ear 4 x 2.1cm bone deep
tempered region 1.3 x 1cm 2.1. x 1.3cm scalp deep with confused
abrasion over left neck, outer aspect 7.2cm area. Fracture left
orbit, temperal bone with subdural haemorrhage over brain about 50ml
and fractured lower jaw, loosened teeth present,
over back of left shoulder 3.7cm and 1.6cm area present
over back of right shoulder 2.3.cm area
wound over back of right chest 3.6 x 1 cm lung deep. It involved
muscles, intercostals structures, pleura, 7 rib lung. Back to front
downwards, pleural cavity contained 450 ml blood edges clean cut
wound over outer and back of left chest 2 x 1cm, 1.8 x 1cm, 1.7 x
1cm, 1.8 x 1cm lung deep. It involved muscles, intercostals
structures, pleura, 5 rib edges clean cut, angle sharp front to back
medially, pleural cavity contained about 950 ml blood.
wound front of lower chest 2 x 1cm intestine deep. It involved
muscles, peritoneum, intestine front to back edges clean cut, angle
wounds front of abdomen left 1.8 x 1 cm intestine deep. Front to
back, involved muscles, peritoneum, intestine, blood in peritoneal
cavity about 600ml edges clean cut, angle sharp.
wounds front of lower chest 2
cm intestine deep. Front to back,
muscles, peritoneum, intestine front to back edges clean cut, angle
over left knee 1.7
the Court was informed that the accused persons made confessions
freely and voluntarily before two Magistrates. There was no objection
to the handing in of the same, nor was the free and voluntariness of
the statements challenged on the accused person's behalf. The
statements were accordingly handed in and marked Exhibits 'B',
'C','D' and 'E', respectively. In short, all the accused persons, in
their statements stated that the deceased threatened to kill them
through witchcraft machinations which induced fear in them and they
sought for, found the deceased, assaulted him with stones and sticks
and as a result of which he died.
OF CROWN'S EVIDENCE.
Crown, in support of its case called five witnesses. PW 1 was
Mkhetfwa Myeni. He told the Court that he resides at Mdlebeni area in
the Shiselweni region and that he knew the deceased and the accused,
all of whom were from his home area. He testified that on the 17th
June, 1999, which was a Thursday, he woke up in the morning to cut
some logs in the forest and that on his return, he saw people who
congregated some distance away and had their heads together.
was his further evidence that he met some of those people next to the
garden, when he was about to enter his home. Those that he met were
Accused 2 and 3, who greeted him and he responded. He passed them and
arrived at the Matsenjwa homestead where he lived. After his arrival
at the homestead, Accused 1 and 4 arrived and they were carrying
knobsticks. They performed the "giya " dance and they
announced that they had killed the deceased. PW 1 stated that this
declaration surprised them because they saw bloodstains on the said
accused persons' knobsticks. After that, the accused persons left.
1 further testified that when he saw these people with their heads
together he could not identify them but recognised them as the same
persons he had seen when he met them at his home. It was his further
evidence that he never lost sight of the persons he saw until he
his home. PW 1 was shown two knobsticks which he positively
identified as those which were being carried by Accused 1 and 4 on
the day in question. He identified one in particular with a crack and
which he said was in Accused 1 's possession.
1 further testified that Accused 2 and 3 were not carrying anything
when he met them. It was his further evidence that after Accused 1
and 4 announced that they had killed the deceased person, he went to
the scene and found the deceased already dead. The scene where the
deceased had died was about 800 metres from his homestead and it was
his evidence that the deceased was on a path that crosses a road. It
was this witness' further testimony that he knew a man in his area
known as Guguza and who had died. He however denied any knowledge of
how the said Guguza had met his death. It was his further evidence
that he did not attend Guguza's funeral and did not even know when
the said Guguza was buried.
cross-examination did not yield much save that it was put to PW 1
that the accused persons believed that deceased was a witch, which PW
1 vehemently denied, PW 1 denied that the deceased was reported to
the authorities of the area for witchcraft practices.
Crown then called PW 2, Londiwe Msibi, also a resident of Mdlebeni.
She confirmed knowing the deceased, whom she stated she last saw in
1999. It was PW 2's evidence that she was going to the shop and
passed his body - he was dead. She then informed Obed Dlamini about
the deceased's death. It was her evidence that she knew that the
deceased had died because there was a big stone resting on his head
and his head had been crushed. It was PW 2's farther evidence that
the deceased had clothes on his body. She identified a green/yellow
jacket which she saw before coming across the deceased's corpse but
stated that she did not know to whom it belonged.
was shown a stone which she however stated that she could not confirm
if it was the one that she found on the deceased's head.
cross-examination, Mr Masuku asked PW 2 to describe the terrain when
she found the accused and she stated that it was close to cultivated
fields, next to a pathway. She was farther asked if there were rocks
other than the one she found on deceased's head and her
was that she did not take notice of the area around the corpse. Mr
Mdluli did not ask any questions from PW 2.
3 was Obed Silevana Dlamini, who is also resident of Mlindazwe. His
evidence was to the effect that he knows the accused persons as they
are from the same area. It was his evidence that on a Thursday last
year at around 13h30, the accused persons came to his home and there
asked for the deceased who was at PW 3's home. They accused him of
having stolen a chicken from a Matsenjwa homestead which he proceeded
to sell at a George Dlamini's home. PW 3 further testified that he
then said to Accused 2, the Chief's Runner that it was fortunate that
he was present and would attend to the alleged crime.
3 then stated that he saw a Police van driving past and he told the
accused persons to walk on a certain path in order to meet the Police
van but the accused persons insisted on taking another path. It was
PW 3's further evidence that since Accused 2, the Chief's runner, was
present, he allowed the accused persons to take the path they chose
disregarding the one which he had chosen.
was PW 3's further evidence that a girl later came to his home to
report that the deceased had died.
Royal Swaziland Police also came looking for the deceased. PW 2, the
girl and the Police then went to the scene where the deceased had
died. According to PW 3, the spot where the deceased lay was about 2
to 3 kilometres from his home. On arrival at the scene, PW 3 stated
that he saw a roundish stone on the deceased's head. Next to the
corpse was a tree, which was next to a ploughing field. It was PW 3's
evidence that there were some stones in the area which had been used
to demarcate the extent of the nearby fields.
3 was shown two stones and he identified the round one, which he
confirmed was on the deceased's head. PW 3 further testified that he
observed injuries on the deceased's body, which in his view were
caused by a knife. These, according to PW 3 were from the waist to
the neck area. In particular, PW 3 stated that he observed two stab
wounds on the side of the neck and another two on the deceased's
back. It was PW 3's further evidence that there was a lot of blood on
the deceased's head and he also observed fractures on the head which
led to the deceased's jaws being twisted. PW 3 also testified that
the deceased's corpse was then taken to the mortuary and later
buried. PW 3 then went to the Chief's kraal to report the news of the
Masuku cross-examined PW 3. He was asked if deceased enjoyed a
harmonious stay prior to his death and PW 3 stated that the
deceased's latter days were not happy ones because some people went
to lodge complaints to the Chief about the deceased, to the effect
that he was ill-treating them.
about the basis of the complaint, PW 3 stated that the complaint was
that the deceased, after having imbibed alcoholic beverages would,
late at night, on his return home from the drinking spree shout and
insult the residents. PW 3 stated that the only complaint
communicated to the Chief related to the insults.
Masuku stated that according to his instructions, a complaint was
filed with the local council relating to allegations of witchcraft.
PW 3's response was that he was unaware of that allegation. It was
his further testimony that he knew Guguza well but was unaware of
what caused his death, although he was aware that Guguza was sick.
When put to him that Guguza died due to witchcraft spells, PW 3
stated that he did not know that. Mr Masuku further stated that
according to his instructions, Accused 1 and 2 were threatened with
death by the deceased publicly, stating that he would deal with them
in the same manner as he dealt with Guguza. In response, PW 3 stated
that this may have been reported to the Chief's kraal but he never
heard about it, save the complaint he referred to earlier.
Masuku further stated that the threat uttered by the deceased
instilled fear in the accused persons and further infuriated them and
PW 3 would not comment thereon. Mr Masuku further stated that the
existence of the threat on the accused persons compelled them to act
spontaneously in trying to defend themselves. It was PW 3's response
that the accused persons should have gone to the Chief to report the
matter rather than to take the law into their own hands. When asked
whether he believed in the existence of witchcraft, PW 3 stated that
he had heard about witchcraft but did not know anything about it.
it was Mr Mdluli's turn to cross-examine PW 3, he asked if PW 3
attended Guguza's funeral and the answer was in the negative, PW 3
stating that he had been sent to go somewhere. When asked what
happened at Guguza's home after the funeral, PW 3 stated that he only
heard what happened from other people. PW 3 was asked if as a member
of the Royal Kraal he sits to hear cases of community members and he
answered in the affirmative.
Mdluli stated that he was instructed that the Luhlekweni people,
including Accused 3 and 4 complained that the deceased was uttering
threatening words to their lives. PW 3 confirmed that the people came
to report to Indvuna of the area but their complaint was that he
insults them at night. PW 3 agreed that the matter was referred to
the Chief but denied that the allegations against the deceased
centred around witchcraft. Mr Mdluli stated that he was instructed
that the deceased had said that the accuseds' beards will face
upwards and that PW 3 was told about it. PW 3's response was that
this allegation was made but the deceased denied it. Mr Mdluli
further stated that the accused was also alleged to have said that
women's private parts will also face upwards and PW 3 response was
that these were the insults complained of. He denied having been told
that the deceased said that the people's ears would be filled with
3 denied that the penalty meted to the deceased was expulsion from
the area, as suggested by Mr Mdluli. According to PW 3, the deceased
was removed and allocated land in another area in the same chiefdom.
PW 3 agreed however that the deceased never complied with the Chief's
directive and further agreed that Guguza died after the Chief's
directive had been issued.
Mdluli further stated that according to his instructions, the
deceased did not take kindly to being ordered to leave the area and
therefore uttered unsavoury words to Guguza and the accused persons
and further told Guguza that he will die on a certain day. PW 3
stated that he was unaware of that. It was put to him that this did
happen and PW 3 stated that he could not deny that because he did not
know about it. He further stated that he did not know about Manwele
coming to Guguza's home and telling the mourners that she was
remorseful because she had used muti on the deceased's instructions
to bewitch Guguza, which muti had been given to her by the deceased.
PW 3 further denied knowing about an allegation attributed to the
deceased after Guguza's death, to the effect that the accused were
next in line. He however stated that he would hear such issues when
they are reported at the Chief's kraal. It was also put to him that
fearing the imminent danger threatened by the deceased, the accused
persons acted in the manner they did, including Accused 3, Guguza's
son. PW 3 stated that he understood what was being put to him.
re-examination, PW 3 was asked how far apart is the deceased's home
from Guguza's and it was PW 3's evidence that they were neighbours.
It was his further evidence that Accused
home is close to Accused 3's but Accused 4 was across a mountain, but
they fetched water from the same stream. He further stated that he
did not know whether A2, A3 and A4 were the deceased's friends before
Court then asked PW 3 the nature of the charges which he presided
over and he stated that there were no charges laid against the
deceased but only complaints to the effect that the deceased was
insulting them. When asked about the nature of Guguza's sickness, PW
3 stated that he was informed that he had a sharp pain around the
4 was Mavela Mandla Mbhamali, also of Mlindazwe area. He testified
that he knew the deceased and the accused persons as they were all
from his area. It was his evidence that on the 17th June, 1999, he
went on a drinking spree at Matsenjwa's homestead when Accused 1 and
4 came carrying knobsticks and announced that they had killed the
deceased person. It was his further evidence that they invited any
relative of the deceased there present to identity himself so that
they could also kill him.
to PW 4, all the people kept quiet and looked at each other in
amazement. It was his further evidence that Accused 4 proceeded to
say that in order to confirm that the deceased had given up the
ghost, he produced a knife and plunged it into the deceased's body.
Accused 1 and 4 further invited persons who wanted to see the
deceased to take a certain footpath and further stated that the
deceased's corpse was next to a cotton field. PW 4 further testified
that a Police van approached and Mr Matsenjwa asked his patrons to
take their leave as the Police may have laid a charge for selling the
4 stated further that as they moved away, he beckoned some of the
patrons to go with him to the spot where the deceased had met his
death as the Police were already there. It was PW 4's evidence that
they proceeded to that spot and on arrival there, he requested from
the Police to see the deceased's corpse, whereupon the Police agreed
but instructed PW 4 not to move too close to the deceased such as to
disturb the scene of the crime. PW 4 further testified that he
observed that the deceased's head had been crushed with stones and
that on the left side, there were visible injuries. It was his
further testimony that he did not see the knife that Accused 4 spoke
about. Lastly, PW 4 stated that Accused 4 never disclosed why the
deceased's relatives also had to be killed.
cross-examination, Mr Masuku asked what type of brew PW 4 was
imbibing and PW 4 stated it was traditional brew. He stated that when
A 1 and A 4 arrived, he had arrived at the Matsenjwas less than
thirty minutes earlier. He denied having imbibed any intoxicating
beverage earlier and further stated that when he was forced to
depart, he had consumed about 750ml of brew and was sober as he had
not started feeling the effects of the brew. When asked if he
established the cause of the deceased's death, PW 4 stated that the
deceased was regarded as a witch. PW 4 further stated that witchcraft
exists and that if you believe in it can affect you but if you do not
4 was asked if it would surprise him that the deceased had threatened
to bewitch Accused 1 and 2 and his answer was that he had heard that
from other people but one would not lightly believe such. He stated
that he did not know as was put to him that the deceased bewitched
Guguza. He stated further that he had heard from other people that
the deceased had publicly threatened to bewitch the deceased.
Masuku stated that he was instructed that the accused were provoked
and acted spontaneously in order to avert the deceased's threat and
PW 4 agreed. Mr Masuku further stated according to his instructions
the deceased's threat to bewitch the accused persons was reported to
the Chief's kraal for purposes of intervention and PW 4 stated that
the Indvuna, in his presence referred the matter to the Chief at
Qomintaba. According to PW 4, he did not follow up the case at
Qomintaba since it is far from his home. PW 4 confirmed hearing that
the deceased was to be resettled elsewhere but denied hearing that
some men were commissioned by the Royal Kraal to look for an area to
which the deceased would be resettled.
answer to Mr Masuku's question, PW 4 confirmed that the deceased
refused to leave the area. He stated that he was informed that the
deceased had said that he would not leave without killing the leaders
of the people who went to report him at the Royal Kraal. PW 4 agreed
with Mr Masuku's instructions to the effect that at Matsenjwa's
homestead, Accused 1 never mentioned that he had killed the deceased
and never invited the deceased's relatives to identify themselves.
about how the stones were positioned in relation to the deceased's
corpse, PW 4 stated that one was on the side of head below the neck
and one was in front of the deceased's
and both had traces of blood. PW 4 was asked to describe the terrain
where the corpse lay and he stated it was in a grassy, uncultivated
area, under a tree and that there were no stones around, save some
which were placed to demarcate the fields. PW 4 stated that it is
some of those stones that were used by the accused to assault the
deceased person. The witness correctly described and identified the
stones which were brought as exhibits in Court. Looking at the
stones, the Court did confirm that both had traces of blood and in
addition, the round stone had some human hair embedded in it.
Mdluli also cross-examined this witness. From the cross-examination,
the following transpired.
that PW 4 knew PW 1 and that they were together imbibing alcoholic
beverages at the Matsenjwa homestead. Secondly, that PW 1 arrived
earlier than PW 4. PW 4 confirmed that Accused 4 told them that he
stabbed the deceased to confirm if he had died and that this was said
in PW 1's presence, and that PW 1 must have also heard those words.
Mr Mdluli stated that he was instructed that Accused 4 never uttered
those words but PW 4 insisted that he did. He further denied that the
deceased never referred to any knife as was suggested by Mr Mdluli.
Mdluli put it to PW 4 that Accused 4 never made the utterances that
were attributed to him but PW 4 insisted that he did and that had it
been otherwise, he (PW 4) would not have known that the deceased had
died whilst they were imbibing the brew. It further transpired during
the cross-examination that PW 4 knew Manwele, whom she described as
his aunt's daughter. It further transpired that PW 4 did not attend
Guguza's funeral. It transpired further that PW 4 attended the
hearing at the Indvuna's home but that he did not attend the hearing
4 further told the Court under cross-examination that the charges
levelled against the deceased were by his neighbours who complained
that on his return from drinking sprees, the deceased would when
passing near their homes, utter words to the effect that sand would
fill the men's mouths and women's private parts. PW 4 further stated
that on account of the seriousness of the allegations, the Indvuna
could not issue a verdict but referred the matter to Chief Tsekwane.
4 agreed with Mr Mdluli's instructions that Accused 1, 2 and 3 are
among the people to which the allegations above were directed but
denied that Accused 4 was included because
lived on the other side of the mountain. When it was put to him that
Accused 4 was also threatened, PW4 stated that he did not know that
because he did not see Accused 4 at the Indvuna's kraal. He denied
that Accused 4 was at the Indvuna's kraal. This witness was not
last Crown witness was 2267 D/Sgt. Danger Dlamini (PW 5), who was the
Investigating Officer in this matter. It was his evidence that on the
17th June, 1999, he received a report and went to Mlindazwe area,
where he found the deceased lying down next to a footpath. He saw
stab wounds on the deceased's left side of the body and between the
shoulders at the back. It was his further evidence that he observed
some minor injuries on the left side of the deceased's body. He
testified further that he found a stone resting on the deceased's
head and thereafter obtained information which led him to the Accused
persons before Court. He first went to Accused 2, whom he found at
home and cautioned him in accordance with the Judges' Rules. As a
result, Accused 2 told him something which amounted to a confession.
It was PW 5's further evidence that at A2's homestead, he also found
Accused 3, whom he also duly cautioned. Accused 3 also told PW 5
something that amounted to a confession. The same applied to Accused
1 who was found at his home.
5 stated that as a result of the caution, in addition to giving a
statement that amounted to a confession, Accused 1 gave him a
knobstick and a knife. PW 5 further testified that Accused 4 was not
found at his home but he surrendered himself to the Police on the
21st June, 1999, and having been duly cautioned, Accused 4 led PW 5
to his home and handed a knife and knobstick to PW 5. All the items
referred to were handed into Court as exhibits 1,2,5 and 6 by PW 5.
5 also handed in two stones which he found at the scene where the
deceased was found. The round stone, according to PW 5 was found on
the accused's head and had traces of blood on it. PW 5 also handed in
another stone which he said was in front of the deceased's face and
may have been used in killing the deceased person. These stones were
marked Exhibits 4 and 7, respectively. PW 5 also handed in a
green/yellow jacket which he said belonged to the deceased and was
found next to where he had died. The jacket was marked Exhibit "3".
cross-examination, Mr Masuku asked PW 5 whether from his
investigations he was able to ascertain the reasons which led to the
deceased's death and PW 5 stated that the accused persons accused the
deceased of being a witch and that on that day, they had attended the
funeral of Accused 3's father. Mr Masuku further stated that
according to his instructions, Accused 4 only volunteered the
knobstick but the knife was found by PW 5 after a random search. This
PW 5 denied.
the other hand Mr Mdluli told PW 5 that according to his
instructions, Accused 4 only volunteered the knobstick and further
that the knife was picked up by PW 5 inside a hut. PW 5 denied this
even when it was put to him that it so happened. At this juncture,
the Crown closed its case.
OF CROWN'S CASE.
regards the charge that the accused persons are facing, the Crown's
evidence is largely credible and reliable and I have no hesitation in
accepting it. The one witness whom I found to have been untruthful
was PW 1 under cross-examination. There are certain important factors
that he did not disclose in his evidence in chief. An example is when
he did not mention that Accused 1 and 4 came to the Matsenjwa
homestead and there imbibed alcohol with other people. What was most
significant however were his answers in relation to the deceased's
alleged witchcraft practices. He denied knowledge of important
community issues which were common knowledge like how Guguza died
and; that the deceased was summonsed to the Chief's kraal.
is apparent from this excerpt as recorded in my notebook:-
you know whether the deceased was called to the Chief's kraal to
answer certain charges?
you get to know that the deceased was told by the Chief to vacate the
put it to you that you know very well that deceased was called by the
tried for witchcraft and the verdict was that of guilty and he was
ordered to vacate?
do not know because even on the day they were called I did not go
do not know anything.
the above, it is clear that at the beginning, the witness knew
nothing about the summonses but later mistakenly admits knowledge and
immediately thereafter pleads ignorance. He was fidgety and
uncomfortable under cross-examination. I entertain no doubts about
the fact that he lied about the allegations of witchcraft levelled
against the deceased, and the deceased's subsequent summonses to the
Royal Kraal. His evidence in chief is however unaffected in my view,
as was correctly pointed out in R v KHUMALO 1946 A.D. 480 at 484,
that the triers of fact are entitled, while rejecting one portion of
the sworn testimony of a witness, to accept another portion.
2 was impressive in her evidence and I cannot fault her. PW 3 was
another impressive witness. I was however unimpressed with his
account of the nature of the allegations levelled against the
deceased before the Chief. According to PW 3, these allegations only
related to insults and vulgar language the deceased addressed to his
neighbours. Later in cross-examination, PW 3 however acknowledged
that allegations of witchcraft were levelled against the deceased but
the deceased refuted them. I am prepared to hold that PW 3, like PW 1
was being economic with the truth regarding the allegations of
witchcraft levelled against the deceased.
truthfulness of the allegations of witchcraft are clear from the
evidence, particularly that of PW 4, who was an independent and
impartial witness. He was truthful and adduced his evidence in a
straight forward and matter of factly manner. His evidence supported
the defence's story that there was a general belief in the community
that the deceased was a witch. He even confirmed that the deceased
was summoned before the Chief and the Indvuna to answer allegations
of witchcraft. He also confirmed that the deceased was ordered to
vacate the area because of the allegations.
this evidence, I am satisfied that the Crown established a prima
facie case against the accused persons. It is clear from the
acceptable evidence of PW 1, confirmed by that of PW 4 that Accused 1
and 4 came to the Matsenjwa homestead where they "giyaed"
and A 4 announced that they had killed the deceased. I reject the
denial by the accused persons' of this event as put to the Crown's
witnesses. PW 1 further stated that he saw some men with their heads
together and whom he later identified as the accused persons.
addition to this, PW 4, whom I regard as truthful and who was
unshaken in cross-examination, stated that Accused 4 even declared
that to confirm if the deceased had died, he stabbed the latter with
a knife and further invited those who wanted to see the deceased to
walk on a certain path. PW 4 followed this path and saw the deceased
dead with injuries consistent with those that the Accused 4
mentioned. Furthermore PW 1 and PW 4 both confirm that Accused 1 and
4's knobkerries had traces of blood.
3 also gave evidence which I consider reliable that connects the
accused persons to the offence. It is not disputed that all the
accused persons came to PW 3's home and asked for the deceased whom
they accused of having stolen a chicken but refused to hand him over
to the Police, choosing to take another path and on which they killed
large stones brought as exhibits also had traces of blood and the
round one also had traces of human hair. All this is said
appreciating that the accused persons all made confessions before
judicial officers, the contents of which was not subsequently
challenged neither was the voluntariness of the making those
statements challenged. It is therefor clear that the Crown succeeded
in establishing a prima facie case against the accused persons. For
this reason, no application was moved in terms of Section 174 (4) of
the Criminal Procedure and Evidence Act 67 of 1938 for the acquittal
and discharge of the accused persons at the close of the Crown's
5 was also calm and impressed me as a truthful witness. I have no
reason to fault his evidence. He was unshaken in cross-examination.
the accused persons gave evidence under oath. Accused 1 gave evidence
with which the other accused persons identified themselves and which
they regarded as being applicable in their respective cases.
1's evidence was to the effect that he and his co-accused were
ill-treated by the deceased who said that all the peoples ears will
face upwards and will be filled with sand. He further stated that
men's beards and women's private parts will face upwards and be
filled with sand. He further testified that the deceased said he digs
his own muti and did not buy it. He stated that the following day,
another man will have his knees facing upwards and indeed Makhukhula
Msibi could not wake up on that day.
following day, continued Accused 1, the libandla met and discussed
the issue, whereupon three men were chosen to go to report the
deceased's threats to the Chief's runner so that a meeting with the
deceased could be convened. At that meeting, the deceased was asked
if he had uttered the statements attributed to him but he refused to
say anything and refused to involve himself in the talks.
matter was referred to the Indvuna, but there again, the deceased was
unco-operative. The Indvuna then referred the matter to the Chief,
who after questioning the deceased was satisfied that the deceased
was ill-treating his neighbours. The Chief then told the deceased
that he was not a good neighbour and would for that reason be removed
to Mconcweni area. The Chief appointed two emissaries who took the
deceased there but he refused to go.
was Accused l's further evidence that the deceased threatened the
following people with death - Guguza first, Makhukhula Msibi, Makhewu
Myeni, Accused 1 and then stated that the others would follow. After
these utterances, Guguza took ill and on a day that the deceased had
mentioned i.e. the 12th, Guguza indeed died. After the Guguza's
funeral, a lady known as Manwele Mabuyakhulu, after being manhandled
by the mourners confessed that she had caused the deceased's death by
pouring some muti into the deceased's beer at the deceased's
hearing Manwele's confession, the accused persons became grieved in
their spirits as they were also mentioned as people in the deceased's
hit list. The accused persons then decided to assault the deceased in
order to teach him a lesson such that he would never use muti again
in his life. Accused 1 testified that they found the deceased at
home and went with him for a short distance. They took him to a
field, assaulted him and left him alive. Accused 1 testified that he
understood the deceased's aforesaid utterances to mean that he would
kill them i.e. ears, beards and women's private parts being filled
with sand. It was his further testimony that after assaulting the
deceased, he, in the company of Accused 4 went to Lugufa Matsenjwa's
homestead and there bought traditional beer and imbibed the same.
Accused 1 denied performing the "'giya' dance and making the
declaration that the deceased had died.
cross-examination, Accused 1 conceded that he did not know for a fact
that Manwele was given muti by the deceased. He was asked if the
deceased made a specific statement to the effect that he would kill
the witness and Accused 1 said that he was satisfied that he was also
included. He however conceded that nothing was directed to him as an
individual. He stated further that they decided to take the law into
their own hands because they had reported to the Chief but in their
view nothing was done to the deceased. They feared that they would
also die. When asked how he knew that Guguza died on the 12th since
he is illiterate, Accused 1 stated that he accepted what the deceased
had said and accepted that Guguza died on the 12th as the deceased
had said so.
Accused 1 stated that he assaulted the deceased once with a stick in
the shoulder area, next to the neck. He re-affirmed his story in
chief that although the deceased had fallen down, he was however
still alive when they left him and it never occurred to them that the
deceased would die as a result of the assaults. The witness distanced
himself from the numerous bruises and stab wounds noted by the
Pathologist. He denied stabbing the deceased. In re-examination,
Accused 1 stated that the deceased had mentioned his name as an
intended victim after the deceased had refused to be relocated.
Court asked the accused why they did not forcefully remove the
deceased from the area and he said that they thought the authorities
would but they never did. He stated that he did not see the
deceased's condition when they left him and did not see whether he
was injured or not save that he had fallen down and could speak.
2 confirmed Accused l's story. In cross-examination, he was asked how
big the stone was that he used to assault the deceased, and he stated
that it was big enough for him to hold it with one hand. He stated
further that he hit the deceased with the stone between the
He stated further that they took the deceased away from Lusekwane's
home because they were angry and failed to restrain themselves. It
was his evidence that Guguza's home was quite a long distance from
Lusekwane's as there were two valleys to walk through. He conceded
that it was anomalous for him, as the Chief's runner to take the law
into his own hands. Accused 2 stated that he never saw the boulder on
the deceased body but saw it for the first time at the Police
Station. In re-examination Accused 2 stated that his name as a victim
was mentioned by the deceased and the deceased said that Accused 2
was one of the persons who caused the deceased to be summoned to the
3 also identified himself with Accused l's evidence in Chief. He
stated that the deceased singled out his name as an intended victim
and this was when the deceased stated that Guguza, Accused 3's father
had become proud because Accused 3 was now working. Accused 3 also
said that he used a stone that he took in one hand to assault the
deceased. In cross-examination this accused person was asked of the
deceased's condition when they left him and he stated that the
deceased was still alive and was able to speak. He alleged that the
deceased even told the accused persons to stop assaulting him. He
further stated that it did not occur to him that the deceased would
die as the intention was to assault him until he left the area.
Maseko asked Accused 3 if it did not occur to him that if they did
not kill the deceased he would have an opportunity to bewitch them
and Accused 3 stated that he thought the deceased would leave the
4 also confirmed Accused l's story. He stated that one day, the
deceased passed next to his home and called the witness' name and
said that since Guguza, the leader had died, the accused person would
follow. He stated that he believed that 'muti' could kill a person.
He stated further that he was present when Manwele confessed and he
believed that she had told them the truth. It was his further
evidence that he hit the deceased with a knobstick on the hip and
knee. He denied pointing out a knife to the Police Officer. He
further denied having "giyaed" and having declared that the
deceased had died at Matsenjwa's homestead.
OF DEFENCE CASE.
main weakness evident in the Defence case is the fact that some
issues were raised for the first time when the accused persons took
the witness' stand. It was never put to the Crown's witnesses that
the deceased specifically threatened any of the accused persons with
death. What was put was that the deceased was threatening the people
in his area with death. The particulars of what was said to each
accused person where and when was only mentioned in Chief. All that
was put to PW 4 was that the accused persons were among the persons
generally threatened. For this reason, I have no hesitation in
holding that the places, times and words allegedly uttered by the
deceased when threatening the accused persons are an afterthought
since they were never put to the Crown witnesses. See S v P 1974 (1)
SA 573 and R v DOMINIC MNGOMEZULU & OTHERS CASE NO.93/90.
also reject as false the accused's story that the deceased was left
alive after the assault. In their confessions, the accused persons
stated that they killed the deceased. This was said by Accused 4 at
Matsenjwa's homestead when he declared that they had killed the
deceased. This was also confirmed by PW 1. The assaults allegedly
inflicted by the accused persons as recorded in their evidence in
chief is likewise rejected as false. From their own evidence, the
accused were angry with the deceased and failed to restrain
themselves. There could have been no novus actus interveniens which
could have resulted in the deceased's death. I find therefore that
the deceased died as a result of assaults and stab wounds inflicted
by the accused persons. Accused 4, in particular confessed to having
stabbed the deceased.
accused persons, although acknowledging that they killed the deceased
by the statements that they made to the Magistrates and by accepting
the post-mortem report, now seek to ameliorate their roles in the
deceased's death by down playing the assaults they inflicted. I
reject their stories in this regard as false. What I do accept
however and which is borne out by the Crown's evidence was the fact
that the accused persons believed that the deceased was a witch and
had killed Guguza and was going to kill members of the community,
including themselves. I therefor have no hesitation in holding from
the evidences and inferences that the deceased died as a result of
assaults inflicted upon him by the accused persons.
defence attorneys urged the Court to find that certain defences have
been established, namely, self-defence, necessity and provocation. In
relation to self-defence, it was argued that the deceased had
threatened to kill the accused persons using witchcraft and that they
killed him in order to defend themselves and thereby averted the
threat from materialising.
the private defence to avail, there must be an unlawful attack upon a
legal interest and which had commenced or was imminent. See Burchell
and Hunt "South African Criminal Law and Procedure", Vol 1,
2nd Edition, Juta & Co. pages 323 to 326. The authors state that
the unlawful attack must take the form of a positive act or, an
actual interference, the mere continuance of an existing situation
this case, there was no positive act perpetrated by the deceased. It
is only alleged that he threatened to kill the people in his area
using witchcraft. This does not in my view constitute an attack in
the sense that would justify the killing of the person who issued the
threat. What is envisaged is a physical attack. The authors further
state, at page 326 that the defence will not avail if the person uses
force when the attack is to begin at sometime in the future. Clearly,
the alleged attack was not immediately threatened but would have been
anticipated in the future. Sight must not be lost of the fact that
the reason why the deceased was killed was not because of the threats
he had issued to the accused persons but the revelations by Manwele.
These angered the accused.
the defence, the authors further state that the attack must be
directed against the attacker, be necessary to avert the attack and
that the means used must be reasonable in the circumstances. The
defence in this case falls short since the accused persons never went
to the Chief's kraal to report what Manwele had said but they decided
to take the law into their own hands. It was unnecessary and
unreasonable for them to kill the deceased but they had to report
him. A person who threatens to kill another should not be killed as a
means to stop the threats from materialising. He must be reported to
authorities. If the Chief failed to resolve the issue, the accused
persons should have reported the matter to His Majesty, using the
established channels. This defence must fail.
are many people who die at the hands of people who perceive them to
be witches and to allow this to be a defence would set a bad
precedent and would encourage people to take the law into their own
hands, knowing that they will be acquitted at the end of the day.
the defence of necessity, Burchell and Hunt (supra) state at page 338
that for an act to be justified on the ground of necessity, the
following must be shown: -
legal interest of the accused must have been endangered,
a threat which had commenced or was imminent but which was,
caused by the accused's fault; and in addition, it must have been,
for the accused to avert the danger; and
means used for this purpose must have been reasonable in the
put, this defence applies in situations where the accused was
confronted with a choice between suffering some evil and breaking the
letter of the law in order to avoid it and he chooses the latter. In
this case, as I have held, the means used to avert the perceived
attack were not reasonable in the circumstances. The accused should
have gone back to the Chief to report about further acts of
intimidation by the deceased and the fact that the deceased refused
to leave the area notwithstanding the order by the Chief. This
defence must fail. It does not apply to cases where there is no
physical attack but there is what may be said to be a supernatural
last defence canvassed on behalf of the accused persons was
provocation. In this regard the Court was referred to the provisions
of Section 2 of Homicide Act 44 of 1959.
2 of the aforesaid Act reads as follows:-(1) A person who,
kills another under circumstances which but for this section would
constitute murder; and
the act which causes death in the heat of passion caused by sudden
as defined in section 3 and before there is time for his passion to
cool; shall only be guilty of culpable homicide.
section shall not apply unless the court is satisfied that the act
which causes the death bears a reasonable relationship to the
3 states as follows:-
to this section "provocation " means and includes any
wrongful act or insult such as to be likely, when done or offered to
an ordinary person or in the presence of an ordinary person to
another who is under his immediate care or to whom he stands in a
conjugal, parental, filial fraternal relation or in the relation of
master or servant, to deprive him of the power of self-control and to
induce him to assault the person by whom such act or insult is done
first difficulty with regard to this defence is that it was never put
to the Crown witnesses. For that reason, it is unclear as to what
actions constituted the alleged provocation. It therefore falls to be
regarded as an afterthought according to the authorities of
MNGOMEZULU and S v P (supra). I therefor reject it.
am of the view that it should fail for other reasons as well. If the
provocation is alleged to stem from the threats allegedly issued by
the deceased to the accused persons, it is not clear from the
evidence when the threats were issued in relation to the killing of
the deceased. In any event, it is clear that there was a lapse of
time in between the offering of the threats and the deceased's death.
For that reason, the requirements of Section 2 (1) (b) are not met
since there was more than sufficient time for the accused persons
passion to cool. For that reason, I am also of the view that this
provocation alleged should fail as it is my considered view that the
act which caused the deceased's death does not bear a reasonable
relationship with the provocation alleged.
on the other hand, the provocation alleged is caused by the
revelations made by Manwele, I am of the view that same should not
avail because they did not kill Manwele, who stated that she was the
one who administered the deadly potion. She should have been the one
who provoked the accused persons. The person who was assaulted was
the deceased and not Manwele. In any event, I am of the view that
there was no sudden provocation in this case which prompted the
accused to cause the deceased's death before there was time for the
accused persons' passion to cool.
to the accused persons' evidence, Manwele made the confession at
Guguza's home and the accussed persons walked a long distance,
crossed two valleys for over an hour before they found the deceased
at the Dlamini homestead. It is also unclear as to how the accused
knew how the deceased was at the Dlamini homestead. It is possible
that they went to the deceased's home first but did not disclose this
to the Court as it would prolong the time for their passion to cool.
Even when they found the deceased, they did not pounce on him like
thunder at the Dlamini homestead. Instead they invented lies,
accusing the deceased of having stolen a chicken and thereby baited
him from the Dlamini homestead. They even refused to hand the
deceased to the Police and I am therefore of the view that taken in
their totality, the facts do not support a finding that the death
occured in the heat of passion. There was time for the passion to
therefor return a verdict of guilty to the crime of murder where
all the accused persons were charged.