THE HIGH COURT OF SWAZILAND
CASE NO. 253/2002
the matter between:
the Crown Mr. S. Fakudze
the 1st Accused Mr. B.J. Simelane
the 2nd Accused Mr. M.J. Dlamini
the month of April 2000, a series of crimes were committed in the
Hhohho region of Swaziland. It commenced with the burglary of
Matibuko's house at Nyakatfo on the 7th April, whereat his shotgun
and another weapon was stolen from his safe. Soon thereafter, on the
10th April, Goodness Mthupha was shot and killed in her house at
Mayiwane while Albertina Mthupha escaped death during the same
incident. Following hot pursuit by the Police, the stolen shotgun,
which was used to shoot the deceased, a shotgun cartridge and other
weapons were recovered by the police from their quarry. The police
arrested three suspects. Subsequently, following the withdrawal of
charges against Sibusiso Ndathane Sifundza, who testified as an
accomplice at the trial, the remaining two persons were jointly
prosecuted for the murder and attempted murder, with only the first
accused standing trial for the housebreaking and theft as well as the
illegal possession of the shotgun and ammunition. Both pleaded not
guilty to all counts and both were represented by attorneys at the
five counts were formulated as follows:-
1: MURDER: In that upon or about 10th April, 2000, and at or near
Mayiwane area, in the district of Hhohho, the accused persons, each
or all of them acting in common purpose, did wrongfully, unlawfully
and intentionally kill Goodness Mthupha.
2: ATTEMPTED MURDER: Accused Nos. 1 and 2 are guilty of the crime of
Attempted Murder in that upon or about 10th April, 2000, and at or
near Mayiwane area, in the district of Hhohho, the accused persons,
each or all of them acting in common purpose and with the intention
to kill, did unlawfully and intentionally assault Albertina Mthupha
with a bushknife and thereby commit the crime of Attempted Murder.
3: ARMS AND AMMUNITION ACT: Accused No. 1 is guilty of the crime of
Contravening Section 11(1) read with Section 11(8) of the Arms and
Ammunition Act 24 of 1964 as amended by Act No. 6 of 1988 in that
upon or about 11th april, 2000, and at or near Nyakatfo area, in the
district of Hhohho, the said accused person, not being a holder of a
valid licence or permit, did wrongfully and unlawfully possess one
shot gun to wit, 12 bore, serial number 372928.
4: ARMS AND AMMUNITION ACT: Accused No. 1 is guilty of the crime of
Contravening Section 11(2) read with Section 11(8) of the Arms and
Ammunition Act 24 of 1964 as amended by Act No, 6 of 1988 in that
upon or about 11th April, 2000, and at or near Nyakatfo area, in the
district of Hhohho, the said accused person, not being a holder of a
or permit, did wrongfully and unlawfully possess one live round of
5: HOUSEBREAKING AND THEFT: Accused No. 1 is guilty of the crime of
Housebreaking with intent to steal and Theft in that upon or about
7th April, 2000, and at or near Nyakatfo area, in the district of
Hhohho, the said accused person did unlawfully and intentionally and
with intent to steal, break and enter the house there situate of
Mankumbulo Matibuko and did unlawfully steal a firearm, to wit, shot
gun 12 bore serial number 372928 and cash amounting to El,500-00, the
property, or in the lawful possession of the said Mankumbulo
witnesses were called by the prosecution to testify at the trial, two
of them introduced as accomplices. The first of these two was
initially a co-accused, with charges withdrawn by the crown after he
agreed to testify. He is Sibusiso Ndathane Sifundza, who testified
about the sequence of events that ultimately ended in murder. He
testified that on the 8th April 2000, he was approached by the second
accused who took him to a bus stop
the Maphiveni area, where they met the first accused. The latter told
them of an opportunity to rob a large sum of money, said to be half a
million, and Sifundza readily agreed to participate in the robbery.
The first accused told them that weapons were to be had at his house
at Nyakatfo and that a fourth person would help them with the
robbery, said to be one who works at the place where the robbery
would take place. They did not decide how to divide the spoils. The
three of them took a bus to Thambankulu from where they walked to the
house of an aunt of the first accused, where they spent the night.
following day the three of them travelled further up to Nyakatfo bus
stop and started walking towards the homestead of the first accused.
They furtively hid in a wooded area till nightfall in order not to be
seen by the locals, and then proceeded. At the homestead they
clandestinely entered it, crawling in underneath the fence and not
through the gate. The first accused first went to a hut where he
spoke with a woman, then left to later return with a firearm which he
got from the same hut, and took them to an unfinished house where
they spent some hours.
further stated that it was here that the first accused showed them
the weapons that were to be used at the robbery. From a bag he took a
shotgun, axe, swordlike panga as well as two balaclavas. The accused
had a further balaclava ('cooper hat') for himself as well as a blue
overall. The men were given the weapons of their choice, the second
accused opting for the swordlike panga and Sifundza chose the
instructed by the first accused, the three of them rose at 02h00 the
next morning and set off to Mayiwane area where they were told the
robbery would take place. They arrived there at 06h30 and waited in
the homestead's maize fields, observing some buses that stopped to
let the conductors into the house. Half an hour later they covered
their heads with the balaclavas, took their weapons and went to the
house. The first accused told him to wait at the door while the first
and second accused entered.
the door, he said that he could see inside the house and that he
heard the occupants being ordered to lie down. He also heard the
first accused asking a woman where the money was and that she told
him it is not there anymore but taken by one Derrick in the morning
who left on a bus. While exhorting this information from her, he hit
her with the swordlike
which he took from the second accused. He also wanted to know the
whereabouts of one La Ginindza, with the verbal response that she was
in the bedroom.
her own evidence, Mrs. Mthupha, the woman so assaulted, has it
somewhat different, namely that she did not tell the first accused
that LaGinindza was in the bedroom but indicated with her hand that
she left through the kitchen and up the stairs, after she first said
that she went out.
that stage of events, the first accused then ordered the second to
search for the money on top of the room divider while the first
accused ran to the other side of the house, from where he soon
afterwards heard a gunshot. When the shot sounded, the woman, Mrs.
Mthupha, got up from the floor and fled out of the house, through the
door where Sifundza still stood and raised alarm. The first accused
then ran to Sifundza, castigating him for allowing the woman to get
past him, then said that they should leave. As indicated below, the
sequence of events differs in detail in Mthupha's version.
three men then took to the hills, from where they heard police car
sirens. While on the hill, Sifundza said that the first accused fired
a shot at him, afterwards explaining to him that it was accidental as
he was unfamiliar with the gun's trigger action. From the hill they
fled further but the police caught up with them and started shooting
in order to stop them. His swordlike panga fell from his waist while
the other two threw down their weapons on the run. Sifundza was
caught after he fell down while the other two got away.
further evidence of Sifundza is that when he asked the first accused
about the shooting in the house, he was told that it was a warning
shot to scare the people at the gate. He also gave details of the
clothing worn by each of the three of them when they went to rob the
homestead, leaving empty handed as the money had apparently been
taken away before their arrival. After detailing their apparel, he
was shown some items of clothing and other exhibits in court, which
he related to each of the two accused and himself.
to Sifundza, the first accused was armed with the shotgun and a wore
greenish checked trousers, a green golf shirt, black shoes, a blue
and black jacket, with a black cap on his head. In court, the jacket,
cap and shoes could not be found by him.
said that the second accused, who was armed with the swordlike panga,
wore a blue overall, black cap with 'Nike' logo and brown safety
shoes, which shoes he could not locate among the exhibits.
himself had a tomahawk axe and wore a red jacket, navy trousers,
black leather shoes and beige/black 'Nike' cap.
further identified three balaclavas which he said that they wore
during the incident at the Mthupha homestead.
to be expected, introduced as an accomplice and having given detailed
evidence of their criminal exploits, he was subjected to protracted
cross examination. My overall assessment was that he made an
exemplary impression as witness. He did not endeavour to exculpate
himself at all - on the contrary, he detailed his role as participant
in an unsuccessful robbery without over or under emphasising his
role. Some finer details were solicited and obtained under cross
examination. This must be seen in
- in his evidence in chief, Sifundza was to a great extent left alone
by the crown counsel to tell his own story, without being interrupted
to seek minute details. The only criticisms levelled against him was
by way of submissions by the defence attorneys. I will revert to his
evidence further down.
Shongwe, also introduced as an accomplice witness, narrated his
recollection of the burglary at Matibuko's homestead. He gave minute
details of the proceeding events and how he came to meet the first
accused. The latter met him at Zakhele while he looked for one
Bongani, known to both of them. The accused splashed some money
around, treating them to a braai. He enticed Shongwe to join him and
Bongani to his homestead, to fetch more money. The carrot at the end
of the stick was a possible job, the accused ostensibly being a well
connected school headmaster at Vuvulane. After a tedious journey and
as they neared the homestead, he noted that the first accused didn't
use the gate but instead crawled through under the fence. His
suspicions were confirmed when he was told that it was not the
homestead of the first accused but that of a Mthupha. They waited
under a tree while the first accused fetched a woman from a house of
the homestead, who in turn took the men to a house still
construction where she fed them and where he and Bongani spent the
night after the first accused left them there.
following morning early, the first accused returned and told them
that over a million was for the taking at the main Mthupha homestead
and that a woman there had to be killed to get the money. They left
for the homestead, carrying a "long knife", another knife
and garments to conceal their faces. En route, they avoided the
roadside, rather keeping to the bush. At the homestead two of them
remained in the bush while the first accused went in, ostensibly to
wait for the woman.
"long knife", as he termed it, is one and the same (exhibit
"D") as was also identified in court by the participant in
the first two counts (murder and serious assault), Sifundza (PW2). He
did not see the other knife in court, but also, like Sifundza,
identified the green trousers (exhibit "A") and the
balaclava (exhibit "J"), stating that those items of
clothing were worn by the first accused at the time he saw him go to
the Mthupha homestead. Thus, according to each of these two
witnesses, the first accused wore the balaclava and green trousers at
two different occasions and both place the origin of the
sword/bayonet-like object with the first accused.
continued to testify that while he and Bongani waited for the first
accused to return from the house, Bongani started to get cold feet
and wanted to opt out, which he did, against the wishes of the first
accused, when told about it.
Shongwe and Gama (the first accused) returned to the homestead where
they spent the previous night. He says that Gama then came forward
with the plan to steal the firearm at Matibuko's homestead, with
which they would carry out the 'operation', i.e. the robbery. He then
related how the two of them covertly went to the homestead and under
false pretext gained confirmation from some children as to which of
the huts at the homestead the gun was kept in. They waited for cover
of darkness and broke the padlock of the door to gain entry and
carried the gun safe out into the veld where they eventually managed
to open it. From the safe, they obtained the shotgun and tomahawk,
which he identified in court as exhibits "E" and "F".
are the same weapons identified by Sifundza as being used at the
robbery and murder, also the same as identified by Matibuko as his
property, also the same as identified by the police officer (infra)
as recovered from the fleeing suspects, chased after the murder of
Mrs. Mthupha and the unsuccessful robbery.
was after the firearm was stolen and on realising that it was
intended to be used for robbery in due course that this witness, like
Bongani before him, also got cold feet and managed to get away before
it is too late. On his departure, having spent some two weeks there
with Gama in preparation for the robbery, he says that Gama told him
he would get others to help him with the robbery. The next week, he
read in the press about the fateful outcome of the robbery in which
he otherwise would have participated.
origin of the shotgun that features in this trial was attested to by
its owner, Mankumbulo Matibuko, the complainant in the housebreaking
count. His evidence is that on the night of the 7th April 2000, he
fell asleep, to be woken the following morning by his wife who raised
an alarm. He left the main house of his homestead and went to the
house where his safe containing his shotgun, a 'tomahawk' and E1 500
was kept, to find that the house, which was secured, had been broken
into. He reported the incident to
police and pointed out to them where the house was broken open, also
where the safe had been found. The safe was forced open from the back
and the contents removed.
court, he identified both the shotgun and tomahawk as his own -these
two exhibits are the same as pointed out by various other witnesses.
I noted that he did not look at the serial number on the shotgun, but
instead used an intricate and well executed network of thin coloured
wire cables that was tied around the stock at the handgrip. The
tomahawk took on a more ominous appearance when Matibuko extracted a
lethal looking 18 cm long concealed knife from the hollow handle,
after releasing some mechanism on the axe-like weapon. He also
produced his firearm licence (exhibit "S") which bore the
same serial number as that embossed on the shotgun. He valued his
total loss at E2 300, El 500 of which was cash kept in the safe and
with his valuation of the shotgun being E800, whereas the particulars
of count 5 (housebreaking) has the value of the gun and cash as El
500 in total.
evidence was left unchallenged and undisputed.
police officer who investigated Matibuko's housebreaking complaint,
Constable Mlangeni, testified as to how Matibuko came to report the
incident. From memory he recited the serial number of the shotgun. He
further related what he saw at the scene, as pointed out by the
complainant, stating that entry was gained into the thatched stick
and mud house through the door of which the handle had been broken.
In the nearby vicinity, they found the safe which had an aperture
broken into it. Three days later, he received a report of a shooting
incident at a Mthupha homestead. He further added that the
complainant also reported the loss of El 500, the axe and two live
evidence was not challenged either.
evidence of the final actions preceding the intended robbery and its
fateful consequences was given by Lucy Vilakati, a young lady who
stayed at the Mthupha homestead, a different one from the Mthupha
homestead targeted for the robbery. She says that the first accused
is her uncle and that she was to work at his homestead. On diverse
occasions she was sent to the other Mthupha homestead to collect
money on instructions of the first accused's girlfriend.
evidence is that she has seen the two men brought by her uncle to
their homestead, that she tared for them while they were there and
that one of the men left soon after his arrival while the second man,
Dumisane (PW5), stayed for two weeks. While on one of her excursions
to ask for money for the children, she met the first accused and
Dumisane on her way and was asked details of the whereabouts of Gogo
Ginindza at the other Mthupha homestead.
evidence served no other material purpose than confirmation of what
Dumisane Shongwe said about the duration of his stay at the homestead
of the first accused and the short duration of stay by the third
person who initially accompanied them (Bongani). She did not
establish the identity of gogo Ginindza as being the victim during
the failed robbery at the Mthupha homestead, nor that she was the one
visited by the first accused during the recce recounted by Shongwe at
the homestead they targeted.
evidence about the fateful events at the Mthupha homestead was heard
from Mrs. Albertina Mthupha (nee Ginindza) (PW1), the victim referred
to in the second count. She related how she, Goodness Mthupha
deceased referred to in count one) and a Dlamini were counting money
on the 10th April 2000 when Goodness decided to go for a bath.
Thereafter, she also wanted to bath but as she walked past the open
kitchen door, she saw three men with covered faces approaching their
house, the one in front brandishing a 'rifle'. The time was around
the help of the late Goodness Mthupha they managed to push the door
closed while the intruders pressed on the other side but then a
window was smashed through which a firearm was pointed at them. She
then told Goodness to take cover and phone for help. On entry, the
attackers overpowered Dlamini in the kitchen while she fled to the
lounge, there to be ordered down by two men, one with a 'bush knife'
the other with a gun, pointed at her. She says that she was then
struck with the bushknife on the head and shoulder. On being asked by
the man with the gun and saying that Lucky Ginindza is not home, he
went up the steps to the bedroom where Goodness had gone to.
she managed to get up and leave the house through the kitchen. At the
kitchen door were the other two men. She heard a gunshot from within
the house, and then she ran away and stopped a passing vehicle.
got in and they drove off, with her seeing her family's vehicle
exiting the yard and driving off. On her arrival at the hospital she
reported the incident. Others then went to the homestead and on their
return told her that her daughter in law, Goodness, had been shot and
could not identify the assailants as their faces were covered but
recalled their clothing and armoury. From the items displayed in
court she identified a pair of green trousers (exhibit "A"),
long blue overalls (exhibit "B") and a red jacket,
emblazoned with 'Swaziland Safety Glass' (exhibit "C") as
clothes worn by the attackers. She also recalled that the firearm had
a 'red and green something' on it, and identified the shotgun
(exhibit "F") in court, same having an obvious visible
woven plastic covered thin wire network neatly wound around the stock
at the handgrip. She further identified the long swordlike bushknife
(exhibit "D") and the tomahawk axe (exhibit "E")
as the weapons the intruders carried with them. She further testified
that the man with the green trousers (and a black jacket which she
did not find in court) was armed with the shotgun. Further, that the
man with the bushknife asked her about money during the attack.
evidence relating to the colour of the trousers worn by the man armed
with the gun ties in with that of Sifundza. He said that it was the
first accused who wore those trousers and who was armed with the gun,
also that he wore a black jacket. The evidence about the green
trousers (exhibit "A") is however at odds with the version
of Superintendent Mavuso (PW2, infra) who testified that those
trousers were worn by Sifundza (PW3) at the time of his arrest.
evidence relating to the time when the shot was fired inside the
house differs from that of Sifundza. He has it that when the shot
went off, Mrs. Mthupha was still lying on the floor, she then got up
and ran out through the door. Her version is that she was already
outside, at the comer of the house, when she heard the shot.
Mthupha nor Sifundza testified as to who rushed off in the Mthupha
she gave evidence along the same line as did Lucy Vilakati, as to the
latter's going to and from between the two Mthupha homesteads to seek
money for the children. She then went further to add that Thulile
who sent Lucy) was her daughter-in-law who, after the death of her
husband and while still in mourning gowns, had a child with the first
accused, Sipho Gama, Apparently, the affair started before the death
of her husband and led to strained relationships, ultimately leading
to a complaint at the 'Umphakatsi", but even there, this witness
did not come face to face with the first accused, whom she only knew
about by name.
the events at the scene of the Mthupha homestead and the flight of
the attackers, Makhundu Mndzawe (PW3) testified about events that
evening. He heard over the radio news about the attack before
retiring to bed but was later woken by his wife who reported to him
that she saw people with torches moving about at the neighbouring
Mthupha homestead. Fearing trouble, he and his wife fled to a
neighbouring farm, and returned after things quietened at the
Mthuphas. Back home, he heard a knock on their door with a voice
outside saying that he is Gama. As he knew him as one who treated him
for a problem with his knees in the past, he opened and confirmed it
to be the same person. He was then asked by Gama to show a safe haven
for him. He says that Gama (the first accused) told him the reason
for seeking his help was that he had killed a person at the Mthupha
homestead and that he needed a place to hide.
did as asked but on his return home at around 08h00 the police were
there, having already arrested his wife and one Thulile. He
thereafter took the police to the place where he left the first
accused in hiding, at a stream in a valley. On seeing the terrain,
the police first mobilised members of the community with whose help
the arrest of Gama was eventually effected.
evidentiary facts that the first accused and Mndzawe have known each
other from before these events, that the man took the accused to a
forested area at request of the first accused and that he returned to
the same area with the police remain undisputed. The main thrust of
dispute lies with the details of whether the first accused stayed
over at the house of this witness before, whether he actually arrived
at the house as related by the witness or joined them earlier on, and
whether he told the witness that he killed Mrs. Mthupha or not. The
witness remained adamant that indeed he heard from the mouth of Gama
that he killed Mthupha and that is why he acceded to take him to a
conclusion of the case for the prosecution, details of arrests and
related events were testified to by detective superintendent Mavuso,
a seasoned police officer with 24 years experience. On receipt of a
report he went to the Mthupha homestead where he found the deceased
and ordered photographs to be taken of the body, the broken window
(testified about by Albertina Mthupha PW1) and of the homestead
itself. (Exhibits U1 - 8),
the homestead, he and other police officers drove to the nearby
mountains to seek the attackers. They left the car and carried on by
foot, after sometime to see three men moving towards them, but to
turn and run when seeing the police. The police then opened fire. One
of the three men threw down an object and Mavuso ordered one of the
policemen to take and keep it. It was the blue overall (exhibit "B")
in which the shotgun (exh. "F") was wrapped. It contained
one round of ammunition (exhibit "T"). Two of the fleeing
suspects outran the police but they caught up with Sifundza (PW2) and
arrested him. He was duly cautioned and detained, to lead the police
the following day to the house of the second accused, Mpanza, who was
then also arrested.
Mavuso returned to the area at the crime scene where he spoke to
Mzamo, the neighbour (PW3), who took the police to a bushed area and
on observing the area, the police decided to get assistance from the
community members to help flush out the wanted suspect. With about 30
people to assist, the first accused was eventually apprehended and
day after his arrest the first accused volunteered to point out some
items to the police, having been duly and properly cautioned of his
rights and the consequences of such, according to Mavuso. Near the
homesteads of the deceased and Mndzawe, the first accused pointed out
a large carry bag (exhibit "H"), long blue navy trousers
(exhibit "N") and a green golf shirt ("L").
is this bag that the first accused produced and in which he had the
weapons to be used, according to the evidence of Sifundza. Sifundza
said that on their arrival at the homestead of the first accused,
after he and the second accused were recruited by the first, Gama
opened this bag and produced the tomahawk, panga and balaclavas,
which were to be used at the robbery.
also testified that during the robbery, the green golf shirt was worn
by the first accused and that he, Sifundza, wore the dark blue
trousers (exhibit "N"). As mentioned before, Sifundza and
Mavuso are at odds with each other in so far as the trousers are
concerned, since Sifundza said that the green trousers (exhibit "A")
were worn by the first accused whereas Mavuso has it that the same
green trousers were worn by Sifundza at the time of his arrest.
further testified that he could not be sure which of the three
fleeing suspects carried which weapon but that in all they had the
shotgun, tomahawk and swordlike knife or panga (exhibits "D",
"E" and "F") between the three of them. He also
recovered and handed in various other items like balaclavas, shoes
and the red overall jacket.
of evidentiary material like the post mortem report of the late
Goodness Mthupha, the medical examiner's report of Albertina Mthupha
and the photographs was by consent and authenticity was admitted.
Serviceability of the shotgun was also admitted. The defence case
this overwhelming body of evidence, virtually the entirety of the
evidence by the first accused is one of "I do not know that".
Details of the evidence for the prosecution was spoonfed to him by
his attorney in bite sized chunks, as questions, to which he repeated
his standard answer, namely that he does not know about it. The
nearest he came to an explanation of his whereabouts on the day of
the murder was that he was at the nearby homestead of Mndzawe, busy
treating his patients. This alibi was not put to the man who placed
him on the scene of the murder during the failed robbery. Also,
Sifundza was extensively cross examined and accused of all sorts of
falsity insofar as the first accused is concerned. If indeed the
defence of the first accused was that he was nowhere near the scene
of crime but "attending to his patients" elsewhere, it most
certainly would have been the foundation of his cross examination by
evidence of the first accused, a threadbare denial, most certainly
did not impress me as even remotely possibly true. He could not give
even a reasonable explanation as to why he would have been falsely
incriminated by fabricated evidence of the men who said in detail how
they committed the burglary and the failed robbery, at his
instigation, after he recruited them for the job. In saying so, I
remain very much alive to the fact that there is no
on an accused to prove his innocence. I am also aware that where such
damning evidence is adduced against an accused, he would at least try
to explain it away, even if his version does not have to be believed
by the court.
version of treating patients on the day of the murder has to be seen
in context. Mndzawe testified that it was only during the night of
the murder, the 10th April, that he was asked by Gama to be taken to
a hideout. Gama's version that he had already spent the day treating
patients in the woods was not put to him like that, instead it was
put that Gama spent the night of the 10th April at Mndzawe's house
and that the two of them first spoke on the following day, the 11th.
This was flatly denied, with Mndzawe repeatedly stating that over and
above that, the first accused told him more than once that he was
involved in the killings, therefore he needed a safe place to hide.
further failed to impress by the indifference with which he tried to
field the evidence of Lucy Vilakati (PW6) when confronted with her
version of him bringing Dumisane Shongwe (PW5 ) and another man to
his homestead, prior to the events.
also could not explain away the evidence of Mavuso who chased after
him and later effected his arrest with the help of members of the
community. If indeed he was peacefully going about his own business
of digging roots and muti, or treating his patients, at that time, it
is totally at odds with the crown's version of how he tried to
escape. His explanation that he was simply frightened by the many
people does not go down at all.
came across as almost a pitiful figure when he offered all kinds of
explanations as why it could not be, at all costs, that he would have
been in Manzini some four years ago in the month of March 2000, the
time he was said to have been at Zakhele from where he took Shongwe
(PW5) and Bongani to his homestead.
if it was necessary, his credibility was further diminished by the
turn in his evidence from his instructions to his attorney regarding
the child with Thulile Mthupha and whether they lived together or
not. He could not make up his mind as to whether he is the father of
the child or not, and whether they had lived together or not. He
seems to set his sails according to the prevailing wind, changing his
different versions as he sees fit.
confronted with issues pertaining to the Mthupha family and his
alleged role in misunderstandings of the family, he displayed a very
selective memory, conveniently confusing his own version vis-a-vis
the instructions to his attorney. This becomes very relevant to
assess his credibility, already threadbare, when his evidence under
cross examination is compared to his version as put to witnesses
called by the prosecution. The different versions he places before
the court does not auger well for him.
second accused, Mpanza, also testified in his own defence, also a
bare denial of the events. He tried to set up a new defence of having
been unable to be present where the crown's evidence had placed him,
by saying that he was in Mocambique on the day of the murder, the
10th April, 2000. Conveniently, if he were to be required to produce
his passport, he stated that he crossed the border illegally through
the fence. Unfortunately for him he failed to brief his attorney
about this new twist of the matter and accordingly, his absence from
the scene of crime due to his alleged presence in Mocambique was not
put to any of the crown's witnesses. It might be an imaginative
defence but at the same time it is a figment of his imagination, an
afterthought. I cannot accept that such a crucial aspect of his
defence would not have been instructed to his attorney.
made a valiant effort to discredit the evidence of Sifundza due to an
alleged earlier incident involving the two of them. He says that in
1992 Sifundza and his brother broke into his house and in the process
almost had his hand severed by Mpanza, acting to defend his property.
He said that the burglary was in retaliation to him dismissing
Sifundza from his work as builder with Maphanza but that the matter
was resolved by the police and community leaders.
this version was not put to Sifundza he preferred the explanation
that during the evidence of Sifundza, his own attorney was not in
court and that it was too late to brief him on his return.
am not to enter the arena as witness and my notes of appearances on
the different dates of trial are not reliable enough to be
conclusive, but it was recorded on the 25th February 2004 that cross
examination of Sifundza continued and that Mr. V. Dlamini appeared
for the second accused, while on the 29th January, 2004, when
Sifundza continued with his evidence in chief, Mr. D. Dlamini
represented Mpanza. It was on a very different date, the 2nd March
2004, on hearing the evidence of Constable Mlangeni (PW7)
attorney Gamedze stood in for attorney Dlamini. That same day, the
evidence in chief of Mavuso (PW8) was also heard. He was cross
examined on a subsequent day by attorney Dlamini, acting for the
second accused. It thus seems to me that the position as stated by
the second accused is indeed correct, if he referred to Mavuso, but
not when he refers to Sifundza. I do not draw any conclusions from my
recollection of the abovestated position and certainly not so
adversely against the second accused.
was however no application to recall Sifundza to be cross-examined on
behalf of the second accused, in order to put the version of 'prior
bad blood' to him. Should the witness Sifundza have concocted a story
against the second accused by drawing him into the picture of
willingly participating in heinous crimes while totally innocent, due
to an incident of eight years previously, it would be of major
importance. Such an unwarranted fabrication most certainly would have
stirred the emotions of the second accused sufficiently so to tell
his attorney that Sifundza falsely testifies against him due to the
alleged burglary and dismissal. Equally certainly, his attorney would
have canvassed that with Sifundza. If his usual attorney was absent
and someone else stood in for him, either the same
apply or he would have briefed the usual attorney about it. So would
Mpanza have also briefed him, if he was absent during Sifundza's
of these happened. What the accused tries to achieve is to seek an
excuse as to why Sifundza should be disbelieved. This he does by
blaming his attorney, or claiming to have been unable to instruct
him. But a scrutiny of the cross examination of Sifundza by Mpanza's
attorney does not bear this out. Sifundza was subjected to painfully
detailed cross examination by his attorney. It is liberally spiced
with statements of fact, details and questions that could only have
been made on comprehensive instructions by Mpanza, with the exception
of his attorney's own perception of the one and only way to identify
a shotgun as a particular one, namely by checking the serial number -
this in the face of the unique and very obviously visible network of
coloured wires tied around the stock of the shotgun exhibited in
obvious absence of the two main veins of the defence of the second
accused, an alibi and fabrication due to previous 'bad blood', remain
conspicuous for their absence. His reasons for their absence further
derogates from their plausibility.
called the Deputy Registrar, Mrs. Thandi Maziya, to testify about the
pre-trial conference. What she said was that all three accused (the
present two and the witness Sifundza) were present and represented at
the time, the first two accused by Mr. MJ. Dlamini.
is common cause that this was so, further that at commencement of the
hearing the legal representatives changed due to a conflict of
interest by the attorney who would have appeared for both the first
and second accused.
evidence took the matter no further.
mentioned in respect of the first accused, it again needs to be
stated that there is no obligation on an accused to prove his
innocence. It is also not necessary that the court has to believe his
exculpatory version for it to be found reasonably possibly true.
regard to the totality of evidence, I cannot find the version of the
second accused to be even remotely possibly true - to the contrary,
it is a manifest fabrication devoid of the truth or even the ring of
truth. To come
this conclusion his own evidence is assessed objectively and in
context of how it relates to incriminating evidence against him. It
is NOT a balancing of probabilities and improbabilities that leads to
as the consequences of a rejection of the defence versions by both
accused persons go, it still does-not lead to a proposition that the
crown has proven its case beyond a reasonable doubt. That has to be
assessed on its own merits and the most complicating factor is
whether the evidence of the two accomplices can reliably be found to
law regarding the evidence of accomplice witnesses has been stated
and restated countless times in the precedents. I do not propose to
burden this judgment with a repetition of the hackneyed quotations on
the subject but would certainly fail in my duty if not alive to the
inherent dangers in assessing their evidence.
the evidence of both Sifundza and Shongwe is found to be credible,
and plausible. I say so for the reasons that to the minutest details,
bar the rare and non fatal exceptions, their evidence checked out to
the fullest extent. Both are self confessed criminals, who without
remorse or regret candidly and dispassionately related their own part
played in crimes that are beyond contemplation by any decent law
abiding citizen, especially so in the case of Sifundza. But despite
that, neither of the two gave any hint of trying to minimise the
roles they played or embellishing the roles of their co-perpetrators.
- the burglar - volunteered happily to help with the breaking open of
the hut of Ndwandwe and carry away his safe, then to help break it
open, to obtain a firearm that he knew was destined to commit a
robbery, with the implicit danger that the gun may well be put to use
with lethal consequences. Try as I may, I do not find any part of his
evidence as implausible or incredible, any facet that hints at
fabrication due to his stated knowledge as an insider.
evidence is corroborated by a number of aspects that does not
implicate the first accused. The woman who took care of him and fed
him during his sojourn at the homestead of the first accused, Lucy
Vilakati, independently verified that indeed he arrived in the
company of a further man, whom she could not identify (he said it was
Bongani). Both said that this person left soon after his arrival.
Both said that this person was known
the first accused previously. Both said that Shongwe stayed at the
homestead for two weeks. Both said that Shongwe was fed by Lucy.
the burglary, Shongwe was again independently corroborated by
Matibuko and the police officer, Mlangeni, on aspects that do not
implicate the first accused. His evidence that the safe was carried
out some distance from the hut and there hacked open at the back, was
borne out by both of them. So with evidence that the safe not only
contained the firearm but also the tomahawk axe with the concealed
serrated knife in the handle. Likewise with the wet weather
conditions at the time. Also that the lock of the door was broken to
is aspects like this that minimise a misfinding of fact. But it also
evidence about the stolen shotgun and tomahawk axe is carried through
and again strongly features in the evidence of Sifundza. He did not
know the origin of these weapons but stated how the first accused
produced it from the carry bag, giving him and Mpanza their choice
between the tomahawk and the swordlike bayonet or panga. These same
identified by other witnesses as being used at the murder scene and
dropped by the three fleeing suspects.
testified that the shotgun, the tomahawk and the panga/sword were
carried by three men on the run and recovered by the police after the
men dropped it. The shotgun and tomahawk were positively identified
by their owner, Matibuko. The serial numbers of the shotgun exhibited
in court are identical to the firearm licence issued to Matibuko
(exhibit "S"). This dispels any doubt as to whether it is
the same shotgun or not, but the wire lacing on the stock, unique in
appearance, is the common denominator used by the owner, Sifundza,
and by Shongwe to identify it. The tomahawk axe is also fairly unique
in its novel concealed knife in the handle, released by activating a
mechanism. There is also no doubt that this same axe was stolen from
the safe of Matibuko, as stated by Shongwe, later to be made
available to the participants of the planned and failed robbery,
whereat a person was killed. The link established by these two
weapons independently corroborates the evidence of both accomplices
evidence of Sifundza is that the three of them, himself, Gama and
Mpanza partook in the crimes at the Mthupha homestead. Nowhere was it
that any other number of persons violated, the homestead. His
description of the clothing and balaclavas worn by the attackers ties
in with the evidence of one victim, Albertina Mthupha.
a critical error is sought, it would lie in the discrepancies of the
trousers worn by Sifundza and Gama, also with the positions of two
attackers when Mrs. Mthupha fled from the house and the identity of
the person who injured her. I have given these issues careful thought
and come to the conclusion that it does not have any materially
destructive impact on the totality of evidence. Either Mavuso or
Sifundza are mistaken about who wore which trousers, most likely
Mavuso is mistaken, but it does not detract from the credibility of
either. It is not a mistake of sufficient proportion to warrant
either a rejection of their evidence or to cast doubt on their
same applies to whether it was the first or second accused who
injured Albertina Mathupha with the swordlike panga. In the heat and
confusion of the moment it could well have been done by either of
them and perceived to have been done by the other, as observed by
either the victim or by Sifundza, who stood some distance away at the
the moment Albertina rushed out through the kitchen door, her prime
consideration was to escape to safety. If she may be mistaken as to
whether there were one or two persons at the door, it does not
detract from the tenor of her evidence, nor from the version of
Sifundza who said he was alone at the time. The second accused might
as well have been close to the door, on the inside of the kitchen,
but it is not a material issue.
further difference in versions is the place where Albertina Mthupha
was when the shot was fired. According to her, she was already
outside and according to Sifundza, she was still inside the house. A
fact is that the shot was indeed fired, whether she was inside or
outside at the time. Obviously, both witnesses cannot be correct. But
again, it begs the question of whether it is so material that it is
sufficient to distrust the accomplice or even Mthupha for that
matter. Could this be a fabrication by Sifundza about something he
did not know about, or worse still, an effort to falsely incriminate
Gama or Mpanza? It is my considered view that it does not detract
from his credibility or that it is a fabrication by either Sifundza
test for acceptance of the evidence of an accomplice goes further
still, in that the inherent risk may be further reduced by evidence
of corroboration implicating the accused directly. Here I have regard
to the evidence of the neighbour Mndzawe. His evidence of the events
after the crime directly involves the first accused, whom he aided
and abetted by helping him to find a safe hiding place after being
told that he, Gama, was involved in the killing. His actions
thereafter, by taking the police to where he had left Gama, might not
have been due to a sudden attack of public spiritedness, but at least
it led to the arrest of the man he helped to conceal. It also links
the first accused to the crime and subsequent events, corroborating
Sifundza's evidence to the extent that after the crime and the police
chase, the first accused managed to get away. Mndzawe falls to be
branded as an accessory after the fact through his rendering of
assistance to the first accused.
evidence of Sifundza, directly linking the first accused as the man
who wielded the firearm during the attack is corroborated by Mrs.
Mthupha. Both of them related that the man with the gun is the one
who wore a black jacket. His evidence about the man who carried the
swordlike object, the
accused, is also corroborated by Mthupha who said that she was
injured with that object.
evidence that directly links the accused as the gunman is that of how
he stole the shotgun and using it at the Mthupha homestead, as set
out above, independent of the evidence of Sifundza.
risk of error is further reduced when the accused show him-or
themselves to be lying witnesses or do not give evidence to
contradict or explain that of the accomplices. As shown above,
neither of the accused made any positive impression as witnesses.
Both failed to explain how Sifundza and Shongwe came to falsely
implicate them. Both their versions are rejected as false and devoid
of merit. These bare denials, coupled with afterthoughts and
embellishments serve to fortify the factual conclusion that Sifundza
and Shongwe are both reliable and acceptable witnesses, without the
risk inherent in accepting the evidence of accomplices. The demerits
of the evidence of the two accused persons are in my view, beyond
question. Likewise, the merits of the evidence of the two accomplices
are also in my view, beyond question and their evidence is found to
be acceptable, reliable and true.
is for these reasons that a factual finding is made that during the
night of the 7th April 2000, the first accused, accompanied by
Shongwe, broke into the hut of Matibuko and stole his shotgun and
tomahawk axe, as alleged in count 5. Their conduct was unlawful and
intentional, specifically aimed at stealing a weapon to be ,used
during a pre-planned robbery. Although Matibuko testified that his
safe also contained money in cash, the evidence of Shongwe does not
bear it out. This does not mean that Matibuko was not truthful, but
it does not dispose of the burden of proof on the crown sufficiently
so to justify a conviction in relation to the money as well. Matibuko
places a value of E800 on his shotgun, which was not disputed and
seems to be reasonable for a shotgun in that condition. He did not
place a monetary value on the tomahawk, nor on the damage to the
doorlock or the safe itself. Under the circumstances, to the benefit
of the first accused, the conviction in respect of count five will
reflect that the value of the stolen items is unknown, but in excess
of E800 and not El 500 as alleged.
respect of the first count, murder, it is found that both the accused
persons had a common purpose to rob the household of the deceased on
and place alleged in the indictment. During the course of their act,
the deceased was fatally shot with a shotgun wielded by the first
accused. The second accused knew about the shotgun with the first
accused and must have known that it could be used with fatal results
during the course of their planned robbery. Yet he aligned himself
with the other and willingly participated in the event, himself being
armed with a lethal swordlike panga, which was also used during the
and co-perpetrators are those persons whose actions and intent must
satisfy all the definitional aspects of the crime - See S v Williams
en 'n ander 1980 SA 60(A) and S v Khoza 1982(3) SA 1019(A). The
liability of a perpetrator or co-perpetrator is founded on his own
act and his own intention and is not accessory as in the case of an
accomplice. If it was so that the two accused persons were charged
with having a common purpose to commit a robbery, there would have
been no question as to the guilt of both, but that is not the
question to decide. What needs to be determined if both must be
convicted of the murder, based on a common purpose, or only the first
accused, who did the killing, and if so, what about the position of
the second accused.
and essentially, the doctrine of common purpose provides that if two
or more persons decide to embark on a joint unlawful venture or
activity, the unlawful acts of the one are imparted to the other(s)
which fall within their common purpose. See for instance R v Shezi
and others 1948 (2) SA 119(A) at 128; R v Mkize 1946 AD 197 at 205
and R v Duma and another 1945 AD 410 at 415 as a few of many
authorities for this position.]
purpose and causality are linked and in S v Yelani 1989(2) SA 43(A)
and S v Safatsa and others 1988(1) SA 868(A) it was clearly held that
in cases of murder a causal connection between the acts of each
participant in causing the death of the deceased need not be proved.
the facts of the present matter, as said, the purpose that the two
accused persons had in common was to rob the household, not to
murder, but equally, the second accused knew of the possibility that
his co-perpetrator might well kill someone during their joint venture
and nevertheless went ahead. It is quite clear that both accused knew
of the inherent risks involved when they set out to rob money at the
homestead, both armed, with the first accused having a shotgun in his
JA remarked in R v Nsele 1955(2) SA 145 AD;"... groups of
criminals, one or more of whom is armed with lethal weapons should
realise the extreme risks they run in embarking upon ventures that
are so evil and dangerous to the community".
fact, the first accused shot, at and killed the victim, as alleged in
count 1. It cannot be held that the first accused embarked on a
frolic of his own, in dissonance with their common aim and purpose.
The deceased was shot in the course and scope of the robbery, with
which the second accused fully associated himself with. It is
therefore on an application of the doctrine of common purpose that he
cannot escape liability jointly with the act which was physically
committed by the first accused. Both are equally at guilt, having
wrongfully and intentionally killed the deceased as alleged in the
wording in the first count, stating the conduct to be "wrongfully,
unlawfully" is tautologic - it should only read wrongful, and
not unlawful as well.
regard to the second count of attempted, murder, it is firstly
necessary to determine whether the intention of her attacker(s) was
to kill her or not. According to her own evidence and especially the
medical evidence recorded on exhibit "V", she had bruises
on her back and thigh (or thumb). These could have been caused when
she fell on the floor. She had more serious injuries too - an eight
centimetre laceration of her scalp which needed suturing and moreso,
a fracture of the skull. This was caused by a strike with what she
called a bushknife.
the extent of the injuries sustained it is clear that it was a severe
blow with a very dangerous and potentially lethal handheld weapon. It
could have killed her, but it did not. I also consider that only one
blow was delivered - she said that she was struck on the head and her
right shoulder, but the medical evidence does not support a finding
that she received two separate blows with the swordlike panga. If
indeed the intention was to kill her, more than one blow would have
been inflicted on her as she was left alone after being questioned,
following the first and only blow.
therefore cannot conclude that her assailant attempted to kill her as
alleged, but rather that the intention was to cause serious bodily
harm, when she was hit.
is an anomaly in the evidence as to who actually hit her. Mrs.
Mthupha said that the one who held the bushknife told her to lie down
and that the one with the gun came and pointed her with it. Then, the
one with the bushknife struck her, then the one with the gun asked
her about Lucky Ginindza. As found above, the person who had the
shotgun was the first accused while it is the second accused who had
the bushknife, at the time of the attack. A different view of this
event was that of Sifundza, who observed it from the kitchen door.
His evidence is that it was the first accused who hit Mthupha with
the bushknife after he took it from the second accused.
therefore find that it is not determined beyond reasonable doubt as
to which of the two accused actually hit the victim, but it does not
dispose of this count. Both accused at that time shared the common
intent and purpose to rob the household of the victim. She was hit to
extract information from her which would enable them to make off with
the money that they came to
On an application of the doctrine of common purpose, it does not
matter which of the two assailants caused the blow to her head. The
act of the one is imparted to the other.
both accused are found to have assaulted Albertina Mthupha with the
intent to cause her serious and grievous bodily harm, instead of the
more serious charge of attempted murder as per the second count.
regard to the third count, levied against only the first accused, his
attorney argues that he should be acquitted because he was not asked
by Mavuso to produce his licence for the shotgun but failed to comply
with the demand. This line of reasoning fails to have regard to the
statutory requirement of licencing firearms. Under the laws of some
jurisdictions, there is legislation that requires a person to produce
every firearm that is licenced in his name when required to do so.
That is a different position from the one at hand. The legislation at
hand requires that every firearm in Swaziland be licenced to an
individual, save for certain exceptions, like police officers and
is common cause, as held above, that the shotgun that was used by the
first accused during the attack is licenced to its lawful owner,
Matibuko, from whose possession it was stolen by the first accused
and his helper, Shongwe. It would be a fallacy to acquit the accused
on the ground advanced by his attorney, namely that the requirement
is that the police were to ask the accused for his licence and only
if he failed to produce it, could a conviction be considered.
he was asked for his licence or not is not the issue. The issue is
that he had a shotgun in his possession which he stole from its
owner. It is licenced in the name of Matibuko (see exhibit "S")
and not of Gama. The accused was not the holder of a valid licence or
permit, as required of any lawful possessor, save for those excepted
by statute, like police officers with official service arms for
firearm mentioned in count 3 is one and same as the one stolen from
Matibuko, with the serial number reflected in exhibit "S",
Matibuko's licence for a single barrel 12 bore shotgun. The crown has
discharged the onus of proof sufficiently to warrant a conviction.
same does not apply to the fourth count relating to unlawful
possession of a live round of ammunition. During the trial, Mavuso
handed in exhibit "T" - a single 12 bore "Swartklip"
shotgun cartridge marked as being No. 5 shot. From my own observation
that the primer has not yet been indented and that the red cardboard
casing is still folded as done in the factory, coupled with the
familiar weight of a live shotgun cartridge, I have no hesitation at
all to personally know that the cartridge is indeed "live".
But, as stated earlier on, the court cannot enter the arena and
double as witness, using its own personal knowledge. My own knowledge
and experience of firearms and ammunition cannot be elevated to the
extent of taking judicial cognisance of the status of ammunition.
crown adduced no evidence as to the status of the round of
ammunition. Mavuso could easily have done the task. Perhaps the need
of proof was overlooked when the serviceability of the shotgun was
admitted. Be that as it may, the crown conceded that it failed to
discharge the onus of proof in respect of the fourth count and the
benefit of that has to pass onto the first accused.
the verdict of the court is ordered as follows:-Count 1 (Murder) Both
accused one and two: Guilty.
2 (Attempted murder)
accused one and two guilty of assault with the intent to cause
grievous bodily harm (not guilty of attempted murder).
3 (a contravention of section 11(1) of Act 24 of 1964 – unlawful
possession of a firearm)
4 (a contravention of section 11(2) of Act 24 of 1964 - possession of
ammunition without a licenced firearm)
1: Not guilty
5: Housebreaking with the intent to steal and Theft.
1: Guilty. (Value of stolen items unknown, but in excess of E800)
proceedings in respect of sentence stand adjourned to a date to be
arranged by the Registrar, in consultation with counsel and the
court. Both accused are to remain detained in custody.
respect of the two witnesses introduced and heard as accomplices, it
is recorded in accordance with the provisions under Section 234(2) of
the Criminal Procedure and Evidence Act, 1938 (Act 67 of 1938) that
both Sibusiso Ndathane Sifundza and Dumisane Shadrack Shongwe fully
to the satisfaction of the court all questions lawfully asked of them
while under examination and that each of them are absolutely freed
and discharged from all liability to prosecution for such offences as
to which they testified of their participation therein.