IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CRIMINAL TRIAL NO. 63/08
In the matter between:
XOLANI ZINHLE NYANDZENI
CORAM MCB MAPHALALA, J
FOR CROWN MR. S. FAKUDZE
FOR DEFENCE MR. N.M. MANANA
16th JULY 2010
 The accused was charged with murder in that upon or about 22nd September 2008 and at or near Mbulungwane area in the Shiselweni Region he unlawfully and intentionally killed Nkululeko Nyandzeni. He pleaded not guilty to the charge.
 Certain admissions were made in terms of Section 272 (1) of the Criminal Procedure and Evidence Act No. 67 of 1938:
2.1 The Report on Post-Mortem Examination was
handed to court by consent and it was marked Exhibit 1. The cause of death was “Due to Multiple Injuries”. The head was separated from the body on the neck. There were other injuries on the head, left ear, left cheek, left elbow, left forearm and skull fracture.
A Statement made by the accused before
Magistrate Philisiwe Dlamini was also admitted by consent. It was duly signed by the accused, the magistrate as well as the court interpreter. It was marked Exhibit 2. The accused confirmed that the Statement was made freely and voluntarily without undue influence; that it was not induced by police threats and promises. The accused further confirmed that the police did not assault him during the period of incarceration.
 The Statement reads as follows:
On or during the 28th January 2008 I was in a forest at Hlatikulu at work cutting trees together with my colleagues. We were employed by Mr. Mabuza (name unknown) to cut trees. I was injured whilst pushing a tree and one Zakhele Mamba was cutting the tree using an electric saw (Hhomeliyidi) machine for cutting trees.
I was concentrating on the tree I had to push it on one side so that it falls to the desired direction when I was injured. I was eventually injured by the electric saw which Zakhele Mamba was operating. I was injured on the right knee. I was taken to Hlatikulu Government Hospital for treatment by Mr. Mabuza, my employer.
I was treated and spent three (3) months in hospital at Hlatikulu Government Hospital. I was discharged during the month of April 2008 and went home at Mbulungwane, Hlatikulu. After a few days of my discharge from hospital I was at home around 1900 hours during the month of June 2008. I was attacked by two (2) men whilst inside my bedroom.
I was inside the house together with my brother Nkululeko Nyandeni when someone arrived to call my brother. It was one Bheki Simelane. He knocked and entered my house; my brother Nkululeko Nyandeni opened the door for him. Simelane is my brother’s friend. Once inside the house, they spent a few minutes talking to each other. After some time the said Bheki Simelane started to insult me he said ‘Ngiligolo, ngingemalebe’. I was puzzled since I was lying on the bed when he started to insult me; I had not done anything to provoke him.
I was bedridden since I was still trying to nurse the injury on the right knee sustained at work when Simelane arrived. I was annoyed by the insults and Simelane proceeded to lift up the bed I was sleeping on and banged the bed on the floor several times whilst continuing with the insults since I was on the bed in pain I was annoyed. I tried to wake up from the bed and pushed him out of my bedroom. My brother Nkululeko had already vacated my room and was waiting outside.
Once outside my room the said Bheki Simelane proceeded to use a stone to break the window to my house, and proceeded to break the door using an iron-rod. After that I was able to retaliate by using an iron-rod to hit him, I picked the iron-rod inside my house and hit him on the head. After that they escaped together with my brother.
I went to the big house when upon I met Sizwe Gwebu and Siboniso Ndlangamandla I tried to knock at the door but before they could open I realized that a flame was coming from my house. I had intended to tell them what had happened. We failed to get anything from the burning house since the flame was too big. Police from Dumako police post arrived after being called by Siboniso Ndlangamandla using his cell phone.
Statements were then recorded by police from me and I informed the police that my house had been burnt by Bheki Simelane and Nkululeko Nyandeni and I was informed that the matter will be taken to court. On the following day after arrival of police my brother Nkululeko Nyandeni arrived and found me together with Ndumiso Nyandeni my brother. He proceeded to my burnt house and spilled a concoction or mixuture which was contained in a plastic bag after that I called him and he came to me reluctantly after some time.
I asked Kwanele Sithole who was present to enquire from my brother Nkululeko Nyandeni why they had burnt my house together with Bheki Simelane. He did not respond but left. After two (2) weeks my brother Nkululeko came carrying a bushknife but he failed to assault me as there were other people present and he left again. After a week he, Nkululeko Nyandeni came back home I was still angry with him after all he had done to me together with his friend Bheki Simelane. I assaulted him using a hammer on the head. I hit him four (4) times on the head. I proceeded to take a knife and cut his head off from the body, when he was lying on the ground. He was still alive when I cut off his head.
No one was present when I cut off his head from his body. But when I started to assault Nkululeko three (3) people were present Sizwe Gwebu, Ndumiso Nyandeni and Siboniso Ndlangamandla. They ran away when the assault started. When Nkululeko Nyandeni was dead police arrived at the scene. I was able to escape when I saw the police from Hlatikulu police station. I came back the following day and went home where upon police arrived to arrest me around 0700 hours. They found me inside my house. I was taken to Hlatikulu police station.
 In his confession, the accused admitted killing the deceased but agreed that he was provoked by the deceased who burnt his house together with Bheki Simelane.
 PW1 Siboniso Ndlangamandla testified under oath that the accused was his uncle; that on the day in question, he was in the dining room and the accused invited the deceased to the dining room to have a meal of soup with him. After the deceased had entered, the accused asked him for the dagga he had sent him to collect. This witness was with Ndumiso Nyandeni and the accused; they were having a meal. The deceased gave him the box of dagga but he complained that the deceased had taken part of it.
 The accused ordered Ndumiso Nyandeni to break into their grandmother’s bedroom and take a rope; however, he refused. The accused broke into the bed-room and came back with the rope. Again, he ordered Ndumiso Nyandeni to tie the deceased with the rope; but he refused. The accused then ordered PW1 to tie the deceased with the rope; but he refused. The accused had locked the door.
 The accused proceeded to tie the deceased with the rope, on both his legs and his hands behind his back; then, he ordered him to face the wall. The accused then assaulted the deceased with a hammer several times on his head and body. During the assault, the accused blamed the deceased for burning his house. The deceased fell on the floor.
 The accused opened the door briefly and walked out; PW1 and Ndumiso got the chance to escape from the room. When they were outside, they heard that the accused had resumed assaulting the deceased with the hammer.
 PW1 and Ndumiso went to a neighbour’s homestead and raised an alarm; they found their aunt and reported the incident. They called the police who arrived promptly at the scene. They did not find the accused and the deceased was already dead; and, his head cut off from the body. PW1 identified both the hammer and rope in court.
 At the scene PW1 saw a hammer, an iron rod, a rope, a knife, and plank all blood-stained. The police took all the items found on the scene as exhibits together with the body of the deceased.
 PW1 conceded under cross-examination that sometime in June 2008 at midnight, they were woken up by the accused who told them that the deceased and one Bheki Simelane had burnt his house. They went outside and found the items in the house burning but they did not see the people who were burning the house. The matter was reported to the police who came and conducted investigations; however, no one was arrested
 Under cross-examination, PW1 testified that the accused was violent at home and would quarrel with everybody including himself, Sizwe Gwebu and their grandmother for no apparent reason.
 PW1 further denied that the deceased either provoked or swore at the accused prior to the assault. He further dismissed the allegation by the defence that they could have assisted the deceased from the unlawful attack by the accused; PW1 stated that the accused was armed and they were scared of him.
 PW2 D/Sgt Nhlanhla Mkhabela, a Scenes of Crime Officer testified that on the 22nd September 2008 and in the company of other police officers went to the scene of crime led by PW1. They found the dead body of the deceased, the head cut off from the body. They found next to the body a hammer, rope, iron rod, knife and a long plank; all these items were blood-stained. His head had multiple injuries. He took photographs of the scene. He further collected the items found on the scene to be used as exhibits in Court. The seven photographs were admitted in evidence and marked exhibits 3-7; the knife was marked exhibit A, the hammer Exhibit B; and the plank Exhibit C.
 PW3 was 4826 D/Constable Sibusiso Zwane. After receiving a report, he went with other police officers to the scene led by PW1. They found the body of the deceased with his head cut off. PW2 took photographs of the scene. The accused was not at home. The plank, iron rod, knife, hammer and rope were found next to the body; they took these items as exhibits. They took the deceased’s body with them. They arrested the accused on the following day. The accused subsequently agreed to record a statement with a Magistrate.
 The accused elected to testify under oath. His evidence was similar to the statement recorded before the magistrate. He further admitted inflicting multiple injuries on the deceased with the hammer as well as cutting off his head. He also admitted to have smoked dagga for the past twelve years. He admitted that he was not in a trance when he killed the deceased. He locked the door before assaulting him. Lastly, he confirmed that he formed the intention to kill the deceased on the day in question.
 The Crown submitted that it had proved the commission of the offence beyond reasonable doubt, that the evidence of the Crown had not been challenged, and that the accused did not deny that he killed the deceased. The defence admitted that the accused killed the deceased but argued that the Crown had not proved mens rea in the form of intention. They further argued that the accused was provoked by the burning of his house in June 2008 by the deceased and Bheki Simelane. They also argued that the accused had not smoked dagga for sometime and this also contributed to his conduct.
 The issue before Court is whether the Crown has proved mens rea in the form of intention. In the South African Criminal Law and Procedure Volume 1, Third Edition byJ.M. Burchell page 36, the learned author had this to say:
“Dolus directus is intention in its ordinary sense and refers to where the accused’s aim and object was to perpetrate the unlawful conduct or cause the unlawful consequence.”
 In the case of R. v. Jabulane Philemon Mngomezulu 1970 – 1976 SLR 6 at7 (HC), Troughton A.C.J. had this to say:
“The intention of an accused person is to be ascertained from his acts and conduct. If a man without legal excuse uses a deadly weapon on another resulting in his death, theinference is that he intended to kill the deceased.”
 From the facts before me, it is apparent that the Crown has provedmens rea in the form of dolus directus. The accused had also admitted that he had formed the intention to commit the offence that day.
 I reject his defence of provocation. In the case of Sipho Isaiah Lukhele v. Rex 1970 – 1976 SLR 164 at164 (A) Smit J.A. held:
“Provocation will only avail as a defence if it resulted in a loss of self-control to such an extent that the mental element requisitefor murder may not have been present.”
 Before the accused invited the deceased to eat soup in the house, he had already decided to kill him. Immediately after he had entered the house, he locked the door so that he could not get out; then he ordered PW1 and Ndumiso Nyandeni to break into their grandmother’s bedroom and take a rope. When they refused, he broke in and took the rope and hammer. He tied the deceased, then assaulted him several times on the head with a hammer before cutting off his head with a knife. During this process, there was no evidence of loss of his self-control.
 Furthermore, it cannot be said that the burning of his house constitutes the requisite provocation; the house was burnt in June 2008 and he killed the deceased on the 22nd September 2008. It is implicit in the defence of provocation that the accused should act in the heat of passion caused by sudden provocation before there is time for his passion to cool. The lapse of three months precludes him from raising the defence.
Section 2 Homicide Act No. 44 of 1959
 In the circumstances, I find the accused guilty of murder.
 However, the belief by the accused that the deceased burnt his house does constitute an extenuating circumstance. In the case of S. v. Letsolo 1970 (3) SA 476 (AD) at 476 G-H, Holmes J.A. defined extenuating circumstances as follows:
“Extenuating circumstances have more than once been defined by this court as any facts, bearing on the commission of the crime, which reduces the moral blameworthiness of the accused, as distinct from his legal culpability. In this regard a trial court has to consider:
Whether there were any facts which might be relevant to extenuation, such as immaturity, intoxication or provocation (the list is not exhaustive):
Whether such facts, in their cumulative effect, probably had a bearing on the accused’s state of mind, in doing what he did.
Whether such bearing was sufficiently appreciable to abate the moral blameworthiness of the accused in doing what he did.”
 This case was followed and approved by the Court of Appeal, as it then was, in the case of Philemon Mdluli and Others v. Rex 1970 -1976 SLR 69 at75D (HC).
 In the case of Mbuyisa v. Rex 1979-1981 SLR 283 at285 E (CA), Isaacs J.A. said:
“Both the South African Courts and the Courts of Swaziland have held that extenuating circumstances means circumstances not too remotely or indirectly related to the offence which would reduce the accused’s moral blameworthiness.”
 In mitigation of sentence, it was submitted on behalf of the accused that he was single with no children, that in recording the statement before the magistrate was a sign of remorse, that his sentence should take into account the fact that he is a first offender and that he has been in custody since his arrest on the 23rd September 2008.
 In aggravation of sentence, the Crown submitted that the accused is a very dangerous criminal who killed his own brother in cold blood and further beheaded him; and, that the accused had not shown remorse throughout the proceedings.
 This is a very serious offence where the deceased was brutally and viciously killed in cold blood and then beheaded. The deceased was not armed, and he had not provoked the accused on the day in question. The accused is sentenced to thirty years imprisonment commencing from the date of arrest on the 23rd September 2008.
JUDGE OF THE HIGH COURT OF SWAZILAND