IN
THE HIGH COURT OF SWAZILAND
HELD
IN MBABANE CRIMINAL
CASE
NO. 72/01
In
the matter between:
REX
TILILI
ZWAKELE SHIBA
CORAM
SHABANGU AJ
FOR
THE CROWN MR. P. DLAMINI
FOR
THE DEFENCE MR. M. MABILA
5th
August, 2004
The
accused, one Tilili Zwakele Shiba has been indicted in this court on
a charge of culpable homicide wherein she is alleged to have caused
the death of one Musa Dludlu (hereinafter referred to as the
deceased) by allegedly pouring petrol on the deceased who then caught
fire allegedly because of the aforesaid act of the accused.
At
the close of the crown case the accused had applied for an acquittal
and discharge on the basis of section 174 (4) of the Criminal
Procedure and Evidence Act 67 of 1938. That application was refused
and written reasons were given for such refusal in a judgement
delivered on 30th March, 2004. After the ruling on the application in
terms of section 174 (4) of the Criminal Procedure and Evidence Act,
67/1938 was delivered the next date that could be found for the
continuation of the trial was 8 June, 2004 until it was completed on
29th June, 2004.
The
accused took the witness stand and gave testimony which was mainly
tot he effect that on the morning of 13th March, 2000 whilst the
deceased was bathing with his feet in a plastic washing basin she
took hold of a container which had petrol in it. The accused's
purpose in taking hold of the container was to take it outside
because according to her it had no lid, as a result of which the
petrol was not only smelling strongly but it was dangerous to have
the petrol in the house where there was an open gas flame. The
accused says as she was in the process of leaving the house with the
petrol and as she was on the doorstep the accused grabbed and pulled
her from behind. There was a quarrel regarding the accused's actions
in trying to remove the container from their house. Apparently the
deceased did not want the container removed from the house. The
deceased who had been bathing sitting on the bed close to the gas
stove and door, was naked. There was a struggle over the container
and as the two struggled the container slipped from the grip of both
of them upwards during which process the petrol spilt on the
deceased. The container is said to have landed on the gas stove. The
accused attempted to remove the container from the gas stove whilst a
larger flame resulted and the accused himself caught the fire which
quickly spread to most of his body. The accused managed to run
outside whilst the deceased who was already in flames followed her in
an attempt to grab the accused. As soon as the deceased ran out of
the house he is said to have rolled on the ground resulting in the
fire being put out. The accused ran back to the house which was
burning with a large flame and smoke and grabbed the child who by
that time had also suffered some burns. The fire was then put out by
neighbours who came to the scene and the deceased was transported to
hospital. An analysis of the evidence is contained in the reasons of
the ruling contained in the application in terms of section 174 (4)
of the Criminal Procedure and Evidence Act, 67 of 1938. There is no
direct evidence, other than the testimony of the accused, on how the
deceased got burnt. There is a reasonable possibility that the
accused version is true. In this regard I take into account that
there was a child in the house who also got burnt by the fire. The
child was the accused's baby, (see R V. DIFFORD 1937 AD 370, and R V.
M 1946 AD 1023 AT 1027). On the accused version the accused cannot be
found guilty of culpable homicide. I therefore find her not guilty
and she is acquitted and discharged in the circumstances.
ALEX
S. SHABANGU
ACTING
JUDGE
