IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CRIMINAL TRIAL NO. 266/09
In the matter between:
REX
VS
MXOLISI MALAMLELA DLAMINI
CORAM MCB MAPHALALA, J
FOR CROWN MR. S. FAKUDZE
FOR DEFENCE ACCUSED IN PERSON
JUDGMENT
26TH JULY 2010
[1] The accused was charged with Attempted Murder in that upon or about the 25th August 2008 and at or near Buhleni Area in the Hhohho Region, he unlawfully assaulted Busisiwe Kunene with intent to kill her. He pleaded guilty to the charge, and, the Crown accepted the plea.
[2] His rights to legal representation were fully explained to him, and he opted to conduct his own defence. A Statement of Agreed Facts signed by the Crown and accused was read in Court; it states as follows:
Mxolisi Malamlela Dlamini (hereinafter referred to as the accused) stands charged with the crime of Attempted Murder. He has pleaded guilty to the charge which plea the Crown accepts.
On the 25th August 2008 PW1 who is the complainant in this matter was coming from Mgungundlovu area to her parental homestead and Mcuba area. Along the way she met the accused who was her boyfriend. The accused accompanied her to the bus station where they both boarded a kombi and dropped off at another bus station. After walking a distance and also talking to each other, a cellphone issue came-up. The accused had lent this cellphone to the complainant. He was now requesting that the complainant returns the phone as he was now going to need it since he was going to resume work at Mhlume Sugar Mill. She failed to produce it and also gave unsatisfactory explanations of its whereabouts. Accused persisted in demanding his cellphone and the complainant during the course of this discussion, which was now getting heated-up called the accused a fool and went on to say that she was now tired of saying the same thing over and over again, and their relationship should come to an end. This infuriated the accused and he then produced a knife and stabbed PW1 several times on the abdomen, buttocks, thigh and hand saying that he wanted to kill her. PW1 was able to flee from the accused; a car, on which PW2 was riding on, approached the scene, and the accused ran away.
PW1 was quickly rushed to Mkhuzweni Health Centre and later transferred to Good Shepherd Hospital where she was admitted and treated by Dr. B. Tiferi (PW4) who compiled a report. The accused was arrested on the 10th September 2008 and has been in custody ever since.
By stabbing PW1 with a knife in the manner; he did resulting in the injuries that were found by PW4, the accused intended to kill PW1 and/or intended to inflict fatal injuries upon her.
The accused admits that:
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PW1 was injured as a result of his (accused) unlawful acts.
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The said acts were the immediate cause of the injuries PW1 sustained.
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Such acts were dangerous and inevitably carried some prospect of harm
The following will be handed in as exhibits:
[3] A Medical Report was admitted in evidence by consent, and, it was marked Exhibit 1. After being stabbed the complainant was admitted at Good Shepherd Hospital. She sustained a serious stab wound to the abdomen which forced her intestines to protrude to the open. She further sustained stab wounds to the buttocks, thigh and left hand. She was bleeding profusely as well. Due to the serious nature of her injuries she had to undergo an operation upon her admission at the hospital.
[4] The Statement of Agreed Facts as well as the Medical Report constitute evidence beyond reasonable doubt that the accused committed the offence charged. In view of his plea of guilty, there is no need to lead further evidence in accordance with Section 238 of theCriminal Procedure and Evidence Act of1938. The accused is convicted of Attempted Murder as charged. His conduct was undoubtedly unlawful; and, when he inflicted the stab wounds on the complainant, he was reckless whether or not death would ensue. Clearly, he foresaw that when he inflicted the said injuries on the deceased, death was a possibility but he was reckless whether or not death resulted. The accused has men rea in the form of dolus eventualis.”
[5] In the South African Appellate Division of Rex v. Huebsch 1953 (2) SA 561 (A) at567, Schreiner JA stated:
“In order to support a conviction for attempted murder there need not be a purpose to kill proved as an actual fact. It is sufficient if there is an appreciation that there is some risk to life involved in the action contemplated coupled with recklessness as to whether or not the risk is fulfilled in death.”
[6] This case was approved by this Court in an Attempted Murder case of Rex v. Mndzebele 1970 – 1976 SLR 198 at199 F (HC) whereHis Lordship Nathan J stated:
“A person has the necessary intention to kill if he appreciates that the injury which he intends to inflict on another may cause death and nevertheless inflicts that injury reckless whether death will ensue or not.”
[7] The Court of Appeal inSwaziland as it then was in thecase ofHenwood Thornton v. Rex 1987 – 1995 SLR 271 at 273 adopted and applied the South African case of Rex v. Huebsch (supra). Kotze J.A. stated:
“…It suffices for the prosecution to prove in a charge of Attempted Murder an appreciation that there is some risk to life coupled with recklessness as to whether the risk is fulfilled in death.”
[8] His Lordship Justice Ben Dunn in the subsequent case of REX V. Mbanjwa Gamedze 1987 – 1995 SLR 330 at336d stated the following:
“The majority decision in the case of Henwood Thornton v. Rex Court of Appeal case… accepted the South African Appellate Division decision of Rex v. Huebsch 1953 (2) SA 561 (A) at 567, establishing the correct principle in cases of Attempted Murder that in order to support a conviction for Attempted Murder there need not be a purpose to kill proved as an actual fact. It is sufficient if there is an appreciation that there is some risk to life involved in the action contemplated coupled with recklessness as to whether or not the risk is fulfilled in death. The Henwood decision is binding on this court, and correctly sets out the law of this country.”
[9] In mitigation of sentence, the accused stated that he was married with a minor child, his wife was unemployed, he was the sole breadwinner in the family, he was gainfully employed as a welder at the time of his arrest, that he is now sick with Tuberculosis and the place where he is kept is very cold, that he was arrested on the 10th September 2008 and has been in custody since then, that he pleaded guilty to the charge as a sign of remorse.
[10] Needless to say that there is a rampant and prevalent use of knives in the killing of innocent people in this country in settling minor disputes. It is common cause that the accused had borrowed his cellphone to the complainant who was his lover; and, when he demanded it to be returned the complainant could not produce it but gave an unsatisfactory answer. This did not go down well with the accused. A heated argument developed between them in which the accused took out his knife and stabbed the complainant. It is common cause that the complainant was not armed and did not pose any danger to the accused. In arriving at a proper sentence I will not only consider the facts of this case and the interests of society but the personal circumstances of the accused as stated above.
[11] The accused is sentenced to ten years imprisonment four years suspended for five years on condition that the accused is not convicted on an offence involving violence during the period of suspension.
M.C.B. MAPHALALA
JUDGE OF THE HIGH COURT OF SWAZILAND
