IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE CRIMINAL CASE NO.
In
the matter between;
REX
VERSUS
ABEL
D. MAKHABANE
CORAM
SHABANGU AJ
FOR
THE CROWN MR. P. MDLULI
FOR
THE DEFENCE MR. A. LUKHELE
JUDGEMENT
5th
August, 2004
The
accused is charged with murder it being alleged that;
"...upon
or about the 4th February, 2000 and at or near Ndwabangeni area in
the district of Hhohho, the said accused, did unlawfully and
intentionally kill, one Mbalekelwa Gumedze."
During
submissions after the conclusion of the trial Mr. P. Mdluli pointed
to what he described as an error in the indictment, namely, that the
date of the alleged offence is given in the indictment as "4th
February, 2000 whereas the evidence relates to an incident which
clearly occurred on "4th February, 2003". The error as
described by Mr. Mdluli is that instead of the indictment reading 4th
February, 2003" it reads "4th February, 2000". Mr.
Mdluli asked that he be allowed to ammend the said indictment
accordingly. Mr. Lukhele for the defence opposed the ammendment. He
conceded that there was no prejudice which would be occasioned to the
accused if the ammendment or the correction of the error, was
allowed. Indeed at all stages during the trial the parties had no
doubt and there was no confusion that the incident which was the
subject of the trial allegedly occurred on 4th February, 2003. Mr.
Lukhele cross-examined the crown witnesses at length in relation to
the incident which was alleged by the crown witnesses to have
occurred on 4th February, 2003. The accused himself when he gave
evidence did so in relation to the incident of 4th February, 2003.
Section 154 of the Criminal Procedure and Evidence Act 67 of 1938
makes provision for the correction or ammendment of indictments at
any time before judgement, in the absence of prejudice to the
accused. See also GARDINER & LANSDOWN SOUTH AFRICAN CRIMINAL LAW
& PROCEDURE VOL. ONE 6th edition page 316. Subsection four of
section 154 provides that;
"The
fact that an indictment or summons has not been amended as provided
in this section shall not, unless the court has refused to allow the
ammendment, affect the validity of the proceedings thereunder."
In
the circumstances the correction of the error as applied for by the
crown is granted and the charge is to be read as if the date of the
incident which is the subject of the indictment is 4th February,
2003.
It
is common cause on the evidence that there was bad blood between the
deceased and the Makhabane family. The deceased at one time had to
leave the Ndwabangeni area because of the aforementioned bad blood.
It is also common cause that before the deceased left the area he had
been attacked by the members of the Makhabane family who wanted to
destroy his homestead because the Makhabane's accused the deceased of
having caused the death of one Mgijimi Makhabane. The said Mgijimi
Makhabane was a member of the Makhabane household and was an uncle to
the accused. It is also common cause that the manner by which the
deceased is alleged to have caused the death of the said Mgijimi
Makhabane is by allegedly uttering words which were considered bad by
the Makhabane family. They appear to have believed, whatever the
exact words complained of, that the words spoken by the deceased
caused the death of the said Mgijimi Makhabane. It is also the
crown's case that the matter was, immediately after the death of
Mgijimi Mkhabane, subject to debate and discussion at the UMPHAKATSI
resulting in the deceased being fined a cow and a goat.
2
It
is also common cause that on the evening of 4th February, 2003 the
deceased was walking in the company of his wife one Cabangani Gamedze
and one Thulile Nomsa Zwane from a Nsingwane homestead where they
were drinking marula beer. The said Nomsa Zwane described the
deceased as his father in law. Both witnesses, that is Cabangani
Gamedze and Nomsa Zwane testified that as they walked from the
Nsingwane homestead towards their own homestead the accused
accompanied by one Sikelela Nkosi (or Dlamini) approached the
deceased's and said the deceased was the person who killed his
'father'. Cabangani Gamedze says the accused rhetorically asked if
the deceased was the person who had killed his father (uncle). By his
father the accused was referring to Mgijimi Makhabane. Cabangani says
that as deceased was about to answer she advised him not to do so and
the deceased took the advise and kept quite. The deceased accompanied
by these two women continued on their way until the accused together
with his friend Sikelela Dlamini caught up with them again and asked
what the deceased was saying. The deceased naturally is said to have
responded by saying that he had said nothing to the accused who he
had not been with or seen the whole day. There is a dispute as to
what happened after this. The crown witnesses say that the accused
took out a knife at this stage and stabbed the deceased somewhere
about the area of the collar bone and the neck. The first crown
witness one Cabangani Gamedze who described herself as the deceased's
wife says she tried to distract the accused by pouring on him the
marula beer she had on her hand. However accused continued, according
to this witness to stab the deceased. When the accused did not stop
the stabbing inspite of the maruia beer which was poured on him the
said Cabangani Gamedze ran away. In fact it appears everyone ran away
including the accused's friend. This witness and the deceased's
daughter in law, one Thulile Nomsa Zwane said before the accused
produced a knife the deceased had done nothing in their presence
which might have justified the attack. The deceased is said to have
even tried to avoid a confrontation with the accused by stepping out
of the way. It also appears to be common cause that the accused was
also from another Nsingwane homestead where he had been drinking
marula beer with his football teammates. It is disputed by the
accused that the deceased never said anything other than the response
to the effect that when asked by the accused what he (the deceased)
was
3
saying,
Ms reply was that he had not said anything to the accused because he
had not even seen him since sunrise. The accused appears to suggest
that he (accused) was threatened when the deceased allegedly uttered
words that he would kill the accused just like he had killed his
father. The accused also testified that the deceased had him under
his grip when he took out his knife and stabbed him. The accused says
he does not know how may times he stabbed the deceased. The deceased
had about twenty stab and cut wounds both at the back and front of
his body. These wounds are described in some detail in the doctors
report filed as exhibit A. The defence accepted that the accused
caused the death of the deceased but disputes that the accused had
mens rea for the crime of murder. Mr Lukhele for the defence went so
far as to state that he would concede that the accused may properly
be found guilty of culpable homicide but not of murder.
Mr
Lukhele relied on the unreported decision of the Court of Appeal in
MAPHIKELELA DLAMINI V. R. CRIMINAL APPEAL NO. 9/80 delivered on the
27th January, 1981. In the case of MAPHIKELELA DLAMINI supra the
court of Appeal per DENDY YOUNG J.A. formulated the test with the
following words;
"If
the assailant realises that the attack might cause death and he makes
it, not caring whether death occurs or not that constitutes mens rea
or the intention to kill. "
The
learned judge of Appeal went on to observe that the way the test has
been applied is "whether the assailant must have realised the
danger to life and if he must have realised it in the opinion of the
court then by inference he did realise it. This way of putting the
test has created considerable difficulty in its application because
it has been found difficult to distinguish the concept of 'must have
realised' from 'ought to have realised'. But the concept of ought
'ought to have' is of course one relating to negligence which has no
place in a crime of murder. In a recent case the Appellate Court of
the Supreme Court of South Africa, that is in the case of the STATE
V. DLADLA 1981 SA REPORTS page JANSEN J.A has pointed out that in
applying the phrase dolus eventualis volition is a more convincing
test than possibility. A man acts with dolus eventualis if he at
least consents to, or approves of, or reconciles himself to, the
possibility of death on the part of the deceased as part of the price
he is prepared to
4
pay
for carrying out his intention; in other words, it becomes part of
the bargain he makes with himself..."
From
the number of stab wounds (about twenty) which the accused inflicted
on the body of the deceased and the areas of<he body on which the
deceased was stabbed (namely between the collar bone or neck and the
chest) the accused must in my opinion have realised the danger to
life. From this the inference can be drawn that the accused did
realise the danger to life, but was reckless whether death did occur
or not. From the aforementioned factors any other inference
inconsistent with dolus eventualis is excluded. The inference may
further be justified by the use by the accused of a lethal weapon
such as a knife. Mr Lukhele however has argued that the accused was
only seen inflicting one stab wound on the deceased by the crown
witnesses. Whereas there may not be direct testimony by any witness
who claims to have seen the accused inflict the other stable wounds I
think that whether the accused after inflicting the first wound
continued to inflict the other wounds is a matter that may reasonably
inferred from the above facts. Any doubt that it is the accused who
inflicted the other wounds may not reasonably be entertained on the
evidence. To suggest that another person and not the accused might
have inflicted the other stab wounds and cuts would amount to
speculation on the possible existence of matters upon which there is
no evidence. The possibility that some other person beside the
accused is responsible for the other stab wounds is something which
cannot reasonably be inferred from the evidence. Furthermore the
accused was asked both during his evidence in chief and during the
cross-examination, how may times he stabbed the deceased and he
stated he does not recall. He appeared implicitly to accept that he
stabbed the deceased more than once. Accused further stated he could
not recall which part of the body he stabbed the deceased. All this
was said during his evidence in chief. During cross-examination a
slight variation of the evidence in chief on this point is made,
namely, that the accused says he does not know how many times he
stabbed the deceased but further that there were not many wounds. His
evidence on this point during cross-examination is vague to the
extent that it is not stated what he means by many wounds. Could it
be that the accused does not think that twenty stab wounds are many?
Furthermore when the accused was shown photographs of the
5
deceased
and when it was suggested that there were twenty stab and cut wounds
he did not in his testimony suggest that he did not inflict the other
stab wounds nor did he testify that he had only inflicted one stab
wound as suggested by Mr. Lukhele during submissions. The accused has
offered no suggestion that he did not cause the other possible
injuries nor has an explanation been offered by him as to who else
might have inflicted the other wounds. Because of the aforementioned
factors I cannot accept Mr Lukhele's submission that the accused only
inflicted one would or injury on the body of the deceased.
Mr
Lukhele further submitted that the accused lacked the required mens
rea for murder because of provocation and intoxication. Mr Lukhele
was prepared to concede that the accused may appropriately be
convicted of culpable homicide but not murder. Even though the
accused appeared to suggest during his testimony in chief that he was
acting in self defence, no attempt was made during submissions by Mr.
Lukhele to raise self-defence as a defence to the charge of murder.
However I propose to deal with all the above matters, that is,
intoxication, provocation and possibly self-defence under different
subtopics in this judgement to determine if they assist the accused
to avoid liability for the crime with which he is charged.
INTOXICATION
AS A POSSIBLE DEFENCE
As
already observed above Mr. Lukhele appearing on behalf of the accused
submitted that I should find that the accused lacked mens rea for the
crime of murder. Mr. Lukhele further submitted that once I found that
the accused lacked the necessary mens rea for murder I ought to
return a verdict of guilty on the lesser competent verdict of
culpable homicide. In other words, he was prepared to concede that
the accused may still be convicted of culpable homicide which he
described as a lesser competent verdict to a charge of murder. It has
been accepted that intoxication, whether induced by the consumption
of alcohol or the intake of drugs, may deprive a person of the
capacity to appreciate the wrongfulness of his conduct or the
capacity to act in accordance with such appreciation, (see E.M. &
J.M. BURCHELL & P.M.A HUNT, SOUTH AFRICAN CRIMINAL LAW AND
PROCEDURE, VOL-ONE, GENERAL PRINCIPLES OF
6
CRIMINAL
LAW 3 rd EDITION 1997 at page 183.) Mr Lukhele's submission may have
as its basis the common sense recognition that intoxication removes
or weakens the restraints and inhibitions which normally govern
conduct and impairs the capacity to distinguish right from wrong or
to act in accordance with that appreciation. Quoting from GLANVILLE
WILLIAMS PROFESSOR J M BURCHELL observes that intoxication "...may
also conduce to crimes of negligence by impairing powers of
perception, delaying reaction time, and rendering movement clumsy."
See S.A. CRIMINAL LAW AND PROCEDURE supra at 183. Mr Lukhele's
submission is consistent with the general principle of our criminal
law that on a charge of murder, the crown must prove not only the
killing, but that the killing was unlawful and intentional, (see R V.
NDLOVU 1945 AD 369 @ 386. Even though from the point of view of
principle Mr. Lukhele's submission would have made sense there
appears to be no doubt that that approach though consistent with
legal principle and logic is not consistent with the rule of the
Roman Dutch law on the criminal liability of intoxicated persons. The
Roman Dutch law position appears to have been founded on public
policy considerations rather than principle and logic. At page 184 of
Criminal Law and Procedure Vol 1 supra the learned authors observe
that ;
"The
Roman-Dutch law did not recognise voluntary intoxication as a defence
and, as a general rule, neither did South African law. This position
was clearly dictated by public policy. Wessels J said in R V. BOURKE
to allow drunkenness to be pleaded as an excuse would lead to a state
of affairs repulsive to the cotnmunity..,the regular drunkard would
be more immune from punishment than the sober person. "
The
approach of the Roman-Dutch law therefore distinguished between
voluntary and involuntary intoxication. It is one illustration of the
often quoted statement of Mr Justice Oliver Wendell Holmes, an
American Jurist of the realist school of jurisprudence that;
"the
life of the law has not been logic, it has been experience. The felt
necessities of the time, the prevalent moral and political theories,
intuitions of public policy, avowed or unconscious, even the
prejudices which judges share with their fellow-men, have had a good
deal more to do than the syllogism in determining the rules by which
men should be governed. The law embodies the story of a nation's
development through many centuries, and it cannot be dealt with as if
it contained only the axioms and corrolaries of a book of
mathematics." (See also HAHLO &KAHN, THE S.A. LEGAL SYSTEM &
ITS BACKGROUND)
7
More
closer to home KOTZE JP an eminent SOUTH AFRICAN JUDGE in CAPE
EXPLOSIVE WORKS, LTD V. SOUTH AFRICAN OIL AND FAT INDUSTRIES, LTD
observed;
"We
should bear in mind that law in its development is apt to proceed on
practical in preference to philosophical lines. The practice of the
law, as a living system, is based rather on human necessities and
experience of the actual affairs of men, than on notions of a purely
philosophical kind. Lord (sic) Bacon reminds us that the thoughts of
the philosophers may be likened to the stars, they are lofty, but
give very little light. I speak with every respect, and while I am
conscious that we should at all times strive to be logical in our
reasoning, and as philosophic and systematic as we can in our laying
down of legal principles, I hold it to be a sound notion that it is
not a false philosophy to inquire what method serves the best
practical purpose. "
The
South African law had initially not followed the Roman-Dutch law
rule. It has been said that until the decision of the Appellate
Division in S V. CHRETIEN 1981 (1) SA 1097 (A) South African law on
the defence of intoxication had followed the English 'specific intent
rule.' In terms of the 'specific intent' rule "voluntary
intoxication of a degree sufficient to negative the relevant
'specific intent' required for particular crimes would be a good
defence in that the accused was found not guilty of the crime
charged, but guilty of a less serious offence for which such a
verdict was competent. In crimes not requiring specific intent (such
as culpable homicide) voluntary intoxication would not be a defence
at all, but could be taken into account in mitigation of sentence
(see CRIMINAL LAW AND PROCEDURE VOL I supra at 184). See also J.
BURCHELL (1981) 98 SALJ 177, It may well be that Mr. Lukhele's
submission finds its source from what used to be the South African
law before S V.CHRETIEN supra. The CHRETIEN decision settled South
African law with legal principle and logic inspite of the fact that
the Roman-Dutch law position was dictated by public policy
considerations rather than principle and logic. In 1988 the South
African position was again altered by the Criminal Law Ammendment
Act, 1988 (see Criminal Law and Procedure Vol. Supra at 188.)
The
law relating to the defence of intoxication in Swaziland is governed
by the CRIMINAL LIABILITY OF INTOXICATED PERSONS ACT 68 OF 1938. That
act which is a very briefly drafted law provides in section 2;
8
"2
(1) Subject to this section, intoxication shall not constitute a
defence to any criminal charge,
2.
Notwithstanding subsection (1) intoxication shall be defence to a
criminal charge if by reason thereof the person charged at the time
of the act or omission complained of did not know that such act or
omission was wrong or did not know what he was doing and –
the
state of intoxication was caused without his consent by the
malicious or negligent act of another person; or,
he
was by reason of intoxication insane, temporarily or otherwise, at
the time of such act or ommission.
(3)
If a defence under subsection (2) is established, the accused shall
be discharged if the case falls under subsection (2) (a) and if the
case falls under subsection (2) (b) section 165 of the Criminal
Procedure and Evidence Act, No. 67 of 1938, shall apply.
(4)
Intoxication shall however be taken into account for the purpose of
determining whether an accused had formed any intention, specific or
otherwise, in the absence of which he would not be guilty of the
offence charged.
(5)
For the purpose of this section 'intoxication' includes a state
produced by narcotics or drugs. "
To
establish intoxication as a defence under The Criminal Liability of
Intoxicated Persons Act 68/1938 beside the fact that the accused
lacked an appreciation of the fact :hat his act in killing the
deceased was wrong or lacked an appreciation of what he was doing,
such intoxication must have been involuntary, in the sense that it is
caused without his consent by the malicious or negligent act of
another person. Failing this the intoxication must in order to
constitute a defence to criminal liability have resulted in the
insanity temporary or otherwise of the accused person.
Applying
these principles to the facts of this case it follows that
intoxication cannot operate to assist the accused avoid liability,
because firstly there was not even a suggestion by Mr. Lukhele nor
evidence which would support a finding that there is a
9
reasonable
possibility that the accused intoxication was involuntary or without
Ms consent in the sense that it was caused by the malicious or
negligent act of another person. Secondly, similarly it is not
suggested by the defence that at the time of the killing of the
deceased the accused had become insane temporarily or otherwise.
Thirdly there is no evidence at all from which it may reasonably be
said that the accused had reached such a degree of intoxication as
would exclude the voluntariness of the act by which he killed the
deceased, or would exclude the criminal capacity or intention, (see
also S V. CHRETIEN 1981 (1) SA 1097 (A). The learned authors of South
African Criminal Law and Procedure Vol, One supra commenting on RUMPF
C.J judgement in Chretien case observe that ;
"In
holding that voluntary intoxication could be a complete defence to
criminal liability, RUMPF C.J. stressed the importance of the degree
of the accused's intoxication. At the two extremes are the person who
is dead drunk... and the person who is slightly drunk in the sense
that the liquor had an insignificant effect upon his mental state.
The latter would have no defence since his criminal capacity had not
been affected. The former would be acquitted if he was so drunk that
his conduct was involuntary which would mean that he was unable to
distinguish right from wrong or to act in accordance with that
appreciation. Between these two extremes, where the accused's conduct
is purposive, there are varying degrees of intoxication, and
liability or otherwise depends upon whether the accused had been
deprived of criminal capacity."
Whereas
it does not seem to be in dispute that the accused may have been
intoxicated following the drinking of the marula beer between 15.00
hours to a time after sunset it cannot be said that it is reasonably
possible that he had reached such a sufficiently high degree of
intoxication that it can be said he did not know that his act of
stabbing the deceased was wrong or that in stabbing the deceased he
did not know what he was doing. The accused said during his evidence
in chief that he was staggering when he left the Nsingwane homestead
in the company of his two friends. However Toyota Gumedze could not
support the accused's testimony that he was staggering. In fact
Toyota Gumedze's testimony was that even though accused had taken the
marual beer he was not staggering. The crown witnesses did not say
that the accused appeared to be under the influence of alcohol to any
degree at all, nor did defence counsel put it to the crown witnesses
that the accused was drunk. In the circumstances I am unable to hold
that the accused's intoxication may amount to a defence to the crime
of murder. After all Mr. Lukhele who stated himself to be unaware of
the Criminal Liability of Intoxicated
10
Persons
Act 68/1938 did not rely on the provisions of this Act. He appeared
to be relying on the specific intent rule in S V. JOHNSON 1969 (1) SA
201 (A) inspite of the fact that such an approach represented neither
the Roman-Dutch Law nor the law as statutorily prescribed in the
Criminal Liability of Intoxicated Persons Act, 68/1938.
PROVOCATION
AS A DEFENCE
Having
dealt with intoxication as a defence I shall now proceed to determine
whether the accused can avoid liability for the killing of the
deceased on the basis of some provocation which is alleged in his
testimony. Again it may be helpful to note that both Roman and
Roman-Dutch law did not regard provocation as an excuse for criminal
conduct but only as a factor which might mitigate sentence.
Similarly
the approach in most legal systems is that provocation does not
excuse from criminal liability. It has been observed that people are
expected to control their emotions. Furthermore, in many cases the
response to the provocation is in the nature of a revenge for harm
suffered. Since it is a fundamental principle of modern systems of
criminal justice that vengeance for harm suffered must be sought
through the public criminal process and not by personal self help,
the criminal law is precluded from admitting that provocation should
be a justification for unlawful conduct. In Swaziland it would seem
that the Homicide Act 44 of 1959 governs the matter and provides in
section 2 that;
"2
(1) A person - (a) who unlawfully kills another under circumstances
which but for this section would constitute murder; and (b) does the
act which causes death in the heat of passion caused by sudden
provocation as defined in section 3 and before there is time for his
passion to cool shall only be guilty of culpable homicide,
(2)
This section shall not apply unless the court is satisfied that the
act which causes death bears a reasonable relationship to the
provocation. "
Then,
for the purpose of the Act provocation is defined in section 3 as
follows;
"Subject
to this section "provocation " means and includes any
wrongful act or insult of such a nature 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 or to whom he stands in
a conjugal, parental, filial or 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 or offered.
11
(2)
In this section 'an ordinary person' means an ordinary person of the
class of the community to which the accused belongs."
Sections
2 (2), 3(1) and 3(2) of the abovequoted Act, that is, the Homicide
Act 1959 appears to introduce an objective dimension to the
examination of provocation which objective dimension has been
described as essential for practical reasons. As the learned authors
of the South African Criminal and Procedure Vol.-one supra at page
204 in their comment on what used to be section 141 of the Transkeian
Penal Code observe;
"The
Transkeian Penal Code refers to provocation which is sufficient to
'deprive an ordinary person of the power of self control'. An
objective assessment of provocation thus applied - the test being
whether a reasonable person would have lost his or her self control.
SCHREINER J.A. in R V. KRULL emphasised that an objective dimension
to the examination of provocation was essential for practical
reasons. Hot-headed persons, so the argument ran, should not be
allowed to give free reign to their emotions. They should rather
control their emotions, "
Secondly,
the Homicide Act directs that the enquiry includes an assessment of
objective factors such as the proportionality between the provocation
received and the retaliation by the accused. See SECTION 2(2) OF THE
HOMICIDE ACT, 44 of 1959. In other words the reaction of the accused
to the provocation must in accordance with the contemplation of the
section, be confined within reasonable bounds. So not only must the
provocation result in (a) the loss of self-control on the part of the
accused but (b) the reaction it elicits from the accused must bear a
reasonable relationship to the provocation. The act which is elicited
by the provocation must be done in the heat of passion and before
there is time for his passion to cool of. Once the court is satisfied
about the existence of the abovementioned factors it may only find
the accused guilty of culpable homicide. The solution presented by
the Homicide Act to the dilemma posed by provocation is premised on
the fact that even a reasonable person may lose his or herself
control. The authors of criminal law and procedure vol. One supra at
pages 215-17 in discussing possible approaches or solutions to the
problem presented by provocation as a defence to homicide cases make
the following observation to the objective approach namely that;
"One
of the consequences of this approach is that it may lead to some of
the fine distinctions which are drawn in the English, Australian and
Canadian law in order to determine the reaction of a reasonable
person placed in the same circumstances as
12
those
faced by the accused. The English courts have held that the
reasonable person must be endowed with the accused's characteristics
which affect the gravity of the provocation. For instance, the
gender, age, physical condition, appearance or any other
characteristics of the' accused which bear upon the gravity of the
provocation have been considered relevant to the enquiry into the
reasonableness of the accused's conduct,"
If
an accused reaction to the provocation can be said to be an act which
bears a reasonable relationship to the said provocation then
depending on whether the other requirements of the Homicide Act are
met the accused can only be convicted of the lesser offence of
culpable homicide.
There
was no attempt by Mr Lukhele who seemed to be unaware of the Homicide
Act to bring the facts of the present matter within the provisions of
that act. Applying the principles discussed above it appears that the
accused says in his testimony that he was walking with one Sikelela
Nkosi from the Nsingwane homestead where they had been drinking the
marula beer. On the way they met the deceased who was in the company
of Ms. Nomsa Zwane and Cabangani Gumedze. The accused alleges that
the deceased then insulted him together with his friend by describing
them by their mother's private parts. The deceased is also alleged to
have told the accused that the accused will die young unless he
conducted or looked after himself properly. The accused says that he
asked the deceased what he meant by saying he (accused) will die
young to which the deceased is said to have responded by saying to
the accused that he will die like his uncle in apparent reference to
one Mgijimi Makhabane who had died some years earlier when the
accused was still of tender age, below the age of 14 years. The
accused says that at this stage the deceased's wife Cabangani Gumedze
poured marula beer on the accused's face. The accused continued to
state in his testimony in chief that he tried to wipe off the marula
from his face and that the deceased hit him with his fist and held
him by his clothes. He then says that the deceased whilst he held him
by his hands mentioned that he wanted to kill him and took out a
knife to stab the accused. The accused then says that because of this
he could not run away and that at this stage he defended himself and
stabbed the deceased with a knife. He says he could not recall how
many times he stabbed him or which part of the body he stabbed the
deceased. During cross-examination by Crown Counsel Mr. Mdluli, the
accused says that he did not see the knife by which the deceased
13
allegedly
threatened to stab him. He further admits that no knife was found to
have been in the possession of the deceased. I will therefore accept
that the deceased did not have a knife. It was not even put to the
crown witnesses that the deceased was carrying a knife or any kind of
weapon. The accused does not appear to have been injured at any stage
by the deceased even though when it was put to him that he was not
injured he says he was injured though he does not say what was the
nature of the injuries he suffered. When pressed on whether he
received any treatment for the alleged injuries he merely says that
he obtained tablets for pain. There is a dispute only as to how the
altercation which led to the stabbing of the deceased by the accused
began. The Crown witnesses as already observed earlier in this
judgement describe the accused as the aggressor who attacked the
deceased for no apparent reason other than that he accused the
deceased as having killed his uncle. The crown witnesses say the
deceased never responded to this accusation but took the advice of
his wife who told him not to respond. This is not disputed by the
defence. The crown witness state that they continued to walk towards
their homestead in the company of the deceased until the accused and
his friend caught up with them again and demanded to know what the
deceased was saying to which the deceased politely responded by
saying that he was not saying anything and had not said anything to
the accused whom he had not seen at any stage during the day.
According to the crown witness the deceased stepped out of the way to
avoid the accused who was advancing towards him at which stage the
accused took out a knife and stabbed the deceased somewhere between
the neck and collar bone. The crown witness testified that the
accused stabbed the accused from behind on the right side of the
body. The crown witnesses namely Cabangani Gamedze and Nomsa Zwane
appear to me to be credible and they gave their evidence in a
straight forward manner. They were not shaken during
cross-examination. On the other hand the accused had contradicted
himself on the matter of the knife which he says the deceased
produced. He had to admit during cross-examination that he did not
see a knife on the person of the deceased at any stage. The accused
had to accept further that no knife was found on the deceased at any
stage even after his death. The accused did not say on the evidence
what form did the act of provocation take. Nor is there any
indication as to when the accused might have lost self-control if he
ever did at all. There is nothing on the evidence which has been
suggested
14
to
me from which I may conclude that there is a reasonable possibility
that the accused lost his self-control and stabbed the deceased
during the heat of passion occassioned by provocation and before
there was time for his passion to cool. I am not satisfied that the
stabbing of the deceased by the accused bears a reasonable
relationship to any act of provocation by the deceased. See SECTION
2(2) OF THE HOMICIDE ACT. In fact the defence does not even attempt
to identify the act of provocation which allegedly cause the accused
to loose control. If it is being suggested that the alleged verbal
threats and grabbing of the accused by the clothes provoked the
stabbing I am not satisfied that there is a reasonable relationship
between the verbal threats, the grabbing of the accused by the
clothes on the one hand and the act of stabbing the deceased in such
a brutal fashion. In any event I reject as not being credible or
reasonably possible the version given by the accused as to how the
deceased ended up being stabbed. In the circumstances I am not
satisfied that the accused's action falls within the contemplation of
the provisions of the Homicide Act, 44 of 1959. The common law
position as already observed is that provocation is not a defence to
a charge of murder. Furthermore there cannot be a basis for holding
that self-defence as a defence excluding criminal liability can
assist the accused avoid criminal liability for his conduct in
stabbing the deceased.
In
the circumstances and on the basis of the aforegoing I have no
alternative but to find the accused guilty of murder. The verdict
therefore, is that the accused is guilty of murder.
ALEX
S. SHABANGU
ACTING
JUDGE
15
