IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CRIMINAL
CASE NO. 247/2002
In
the matter between :
REX
VS
SIMANGA
LUPHONDVO NHLABATSI
MBAZO
MKHETFWA DLAMINI
THEMBA
CHARLES TSABEDZE
MHLONIPHEKI
SICELO DLAMINI
JOHANNES
SHONGWE
MAXWELL
MNGOMETULU
NDIPHETHE
DLAMINI
CORAM
SHABANGU A.J
FOR
THE CROWN MR MASEKO
FOR
THE DEFENCE MR MAGONGO
SENTENCE
5th May, 2004
The
accused persons were indicted before this court, on several counts
including murder, assault with intent to do grievous bodily harm and
kidnapping. The first accused who was charged with murder "in
that upon or about 23rd d August, 2002 and at or near Malkerns area
in the Manzini District, the said accused did intentionally and
unlawfully kill Simanga Dlamini.", pleaded guilty to Culpable
Homicide and the crown accepted the plea. This is the only count in
which the first accused was involved.
On
count two, accused numbers two, three and six were charged with
attempted murder in that upon or about 22nd and 23rd August, 2002 and
at or near Malkerns area in the Manzini district and Nisela Farm,
Nsoko in the Lubombo district respectively, the said accused each or
all of them acting jointly and in furtherance of a common purpose did
unlawfully and with intent to kill assault and torture Elphas Mbuso
Nhlabatsi and did thereby commit the crime of attempted murder. Count
three is formulated in the same terms as count two except that in
count three the person who is alleged to have been the object of the
assaults and torture is one Velinjani Nkosinathi Sangweni and not
Elphas Mbuso Nhlabatsi. Both counts two and three were not pursued in
relation to the first accused against whom the two counts were
withdrawn. Accused numbers two, three and six tendered a plea of
guilty to assault with intent to do grievous bodily harm on the two
counts and the plea was accepted by [he crown.
Count
four a charge of kidnapping was withdrawn against all the accused,
whereas five which was a charge of kidnapping was pursued against
accused numbers two, three and six. On this count, which was
withdrawn against the first and fourth and fifth accused, the second,
third and sixth accused were charged with kidnapping "in that
upon or about 22nd or 23rd August. 2002 and at or near Nisela Farm
Nsoko area in the Lubombo district, the said accused each or all of
them acting jointly and in furtherance of a common purpose did
unlawfully and intentionally deprive Elphas Mbuso Nhlabatsi a male
adult of his liberty by unlawfully imprisoning the said Elphas Mbuso
Nhlabatsi in a house for a period of two days." The said second,
third and sixth accused pleaded guilty to the charge of kidnapping.
The
person who would have been accused number five, that is Johannes
Shongwe. died before the scheduled trial date and consequently the
charges were withdrawn against him. The crown further withdrew all
chages against Mhlompheni Sicelo Dlanmini who as accused number four.
The crown stated in court that the reason for withdrawing the charge
against Mhlonipheni Sicelo Dlamini is because he absconded and could
not be traced for purposes of summoning him or notifying of the
scheduled date of trial. All charges were also withdrawn against one
Ndiphethe Dlamini who is listed as accused number seven in the
indictment. The reason for the withdrawal of charges against this
person seems to do with the perception by the crown that his only
role in the whole matter was to simple drive the vehicle in which the
complainants were transported. Count six was also withdrawn against
the accused persons.
The
parties handed in a statement of agreed facts in respect of all the
counts. The statement of agreed facts states the following, namely
that there was a robbery which occurred at a Marlkerns farm owned by
one Kenneth Forbes. During the said robbery three firearms,
ammunition and E5000-00 cash were taken. The matter is said to have
been reported to the Police who commenced and conducted their
investigations. The Forbes family also conducted their own
investigations in relation to the robbery. The family engaged
security guards from Nisela Safaris, a game farm owned by one Banny
Forbes who is a brother to the a formentioned Kenny Forbes. The
security guards who were engaged from Nisela Safaris were charged
jointly as accused numbers one to seven according to the indictment.
The statement of agreed facts further states that accused number
seven was employed as a driver at Nisela Safaris and that he
transported his co-accused during the commission of the offences, The
person who was accused number five according to the indictment, one
Johannes Shongwe was the Supervisor of the other accused persons at
their place of employment which was Nisela Safaris. The said Johannes
Shongwe is now deceased.
There
were three suspects who were apparently identified by the accused
persons during their investigations. The names of the suspects to the
robbery committed at the Forbes family farm in Malkerns were Simanga
Dlamini, Velinjani Sangweni and Elphas Nhlabatsi. According to the
statement of agreed facts these three suspects were assaulted by the
accused persons whilst being driven to various destinations, Accused
number seven who is identified as Ndiphethe Dlamini's participation
in the kidnapping and
4
assault
of the three aforementioned suspects took the form of driving the
vehicle in which the suspects were being transported. The accused
persons kidnapped the suspects and drove them to Nisela Game Farm
where they were being coerced into admitting that they committed the
robbery at the Forbes' family farm at Malkerns. When one of the
complainants Simanga Dlamini reported for duty at Forbes Farm in
Malkerns he was detained by accused number one. The said Simanga
Dlamini was also assaulted by the other accused who were trying to
obtain a confession from him. During the course of the interrogation
of the said Simanga Dlamini he appeared to have agreed to lead the
accused persons towards where the firearms and ammunitions were to be
found. All three suspects were driven to the said spot whereupon the
said Simanga Dlamini was released and allowed to point out the
firearm. At that stage the said Simanga Dlamini attempted to escape
and was shot at three times by the first accused with a 7.62 rifle,
an arm of war. One shot hit the deceased on the head who died as a
result of the injuries inflicted. The statement of agreed facts
further states that when the fired the shots the first accused was
acting on the instructions of the fifth accused who was the
supervisor of the other accused.
Photographs
showing the injuries inflicted upon the deceased and the two other
suspects of the robbery were handed in by agreement of the parties
and are marked Exhibit Bl to B8. The photographs reveal that the
suspects of the robbery were indeed subjected to serious assaults,
The killing of the deceased suspect, Simanga Dlamini was indeed
gruesome. The postmortem report prepared by Dr Komma Reddy and
submitted by agreement of the parties describes the cause of death of
the deceased suspect, that is Simanga Dlamini as being "due to a
firearm injury to the head." The report describes the injuries
in paragraph twenty of the report as follows:
''I.
An entry wound of one by one centimetres with inverted margins is
present on the back side of the head, in the middle portion, which is
161 centimetres from the back of the left foot. An exit wound of
seven by five centimetres, with irregular and averted margins present
on the middle of the top of the head. Contusions of one by half and
half by quarter centimetres present on the left side of the neck.
Multiple contusions an present on the front of the trunk. Frontal,
parietal, temporal and occipital bones are shattered. "
5
Each
of the remaining accused persons, namely first, second third and
sixth accused were found guilty on the counts to which they pleaded
guilty as follows;
Accused
number one was found guilty of Culpable Homicide.
Accused
number two, three and six were all found guilty of two counts of
assault with intent to do grievous bodily harm and of one count of
kidnapping.
In
sentencing the accused I should take into account the circumstances
surrounding the commission of these offences, their personal
circumstances, and the interests of society in ensuring that
appropriate retribution is made for the offences. It is also in the
interests of society that the court should express societys'
disapproval for such offences. A sentence should be handed down which
is to act as a deterrent against such an offence in the future. In so
far as the first accused who has been convicted of Culpable Homicide
I have already said that the killing of the deceased was indeed a
chilling incident. The weapon that was used was by its nature a very
dangerous weapon. The fact that the shot appears to have been
directed on the head of the deceased makes the offence even more
serious. I however have to take into account the fact that the first
accused is said to have been acting on the instructions of his
supervisor, one Johannes Shongwe who is now deceased. I further take
into account that first accused is a first offender and his other
personal circumstances to which I have been referred to by Mr Magongo
who argued the matter on his behalf. In the circumstances I sentence
the first accused to a period of six years imprisonment two years of
which is suspended for three years on condition that the first
accused is not found guilty during the period of suspension of having
committed an offence in respect of which violence is an element.
In
so far as accused numbers two, three and six are concerned they have
been found guilty of Assault with intent to do grievous bodily harm
and kidnapping. [ should take into account that the statement of
agreed facts does not appear to distinguish between the accused
persons on the basis of any kind of difference in the degrees of
participation. The seriousness of the offences is revealed and their
commission is aggravated by the fact that the assaults on the
suspected complainants extended over a two clay period. The same
applies to the offence of kidnapping. I take into account the fact
they are all first
6
offenders
and the other personal circumstances to which I was referred to by Mr
Magongo. I also have to take into account In their favour that the
accused are said to have been acting on the instructions of their
deceased Supervisor, In the circumstances, accused number two, three
and six are all sentenced to a period of three years imprisonment in
respect of each count of Assault with intent to do grievous bodily
harm.
One
year of the aforementioned three years imprisonment is suspended for
3 years on condition that each of the accused persons affected is not
during the period of suspension found guilty of an offence in respect
of which violence is an element. The sentences on both counts of
Assault with intent to do grievous bodily harm are to run
concurrently. Finally in respect of the count of kidnapping, accused
numbers two, three and six are sentenced to a term of two years
imprisonment which terms is to run concurrently with the sentences
relating to Assault with intent to do grievous bodily harm.
ALEX
S. SHABANGU
ACTING
JUDGE
