IN THE HIGH COURT OF SWAZILAND
CRIM. CASE NO.7/96
In the matter between:
GACIOUS MFELANI DLAMINI
CORAM: DUNN J.
FOR THE CROWN : J. MASEKO
FOR THE ACCUSED : C. NTIWANE
10TH OCTOBER 1996
The accused, a member of the Umbutfo Swaziland Defence Force, is charged with the murder of Duduzile Mahlalela at Vuvulane area on the 13th April 1995. He pleaded not guilty to the charge.
According to the report of the post-mortem examination which was handed into court as part of the evidence, the deceased a woman of about 39 years of age. died as a result of a firearm injury involving the thoracic vertebra, spinal cord and the heart. It is common cause that the fatal shot was fired by the accused using his service rifle.
The crown's evidence, briefly summarised, is that a certain Sibhamu Mahlalela brought two horses to the farm of Aaron Khathwane at Vuvulane. Sibhamu requested Khatwane to whom he is related that the horses be kept on the farm whilst he, Sibhamu, fetched a third horse from his home which would assist in leading the two horses to his home at Lomahasha. Sibhamu explained that
he had purchased the two horses at Dlangeni. Sibhamu left the farm and returned with a third horse which he stated he had fetched from Mhlume. This suprised Khathwane as he had expected that the third horse would be fetched from Sibhamu's home at Lomahasha. The third horse broke loose and ranaway from Khathwane's farm on the very day it was brought there. Sibhamu spent the night at Khathwane's homestead. He left on the following day promising that he would return for the two horses. Khathwane became suspicious after a few days that Sibhamu was not the true owner of the horses. He decided to go and report the presence of the horses on his farm and his suspicion, to members of the Umbutfo Swaziland Defence Force who had a camp in the area. The report was made to the accused and another soldier. The accused and his companion proceeded to Khathwane's farm and saw the horses. It was decided that an eye would be kept on the horses and that whoever came to collect them would be asked to produce a stock removal permit. It appears that on the day following the inspection of the horses, Sibhamu sent his sister (the deceased) and his young brother-in-law James Mawelela to collect the horses. James and the deceased arrived at the farm in the morning. They proceeded to where the horses were. A person whom they had seen when they got to the farm then approached in the company of the accused, who was armed with a rifle. The accused enquired as to where the horses were being taken. According to James the accused was informed that the horses were being taken at the request of their owner. The accused demanded that a stock removal permit be produced. None was forthcoming. It was James's evidence that the accused threatened to kill him (James) and the deceased because he could not understand what they were saying. The witness Mdvuba
Magagula, told the court that the accused informed James and the deceased that they were under arrest. He told the court that the accused explained that the horses would be taken to the army camp and that the owner should in the meanwhile be called from Lomahasha. According to Mdvuba the deceased and James were reluctant to go to the army camp. The deceased then moved closer to the accused and proceeded to lower her panty as though she wanted to urinate. This was a most unusual thing for a woman to do in the presence of the men. Mdvuba was baffled by her conduct. Having pulled up her panty, the deceased suddenly jumped at the accused and got hold of his service rifle. It is common cause that the accused was taken by total surprise. There was a brief struggle between the accused and the deceased for possession of the gun. The deceased slipped and fell backwards into a dry canal. As he fell, James ranaway. He heard the sound of a gun as he was running.
Mdvuba's evidence was to the effect that when the accused fell the deceased, who appeared to be the stronger of the two, sat on the accused and shouted to James to come to where she was as she had overpowered the accused. It was at that stage, according to Mdvuba that James ranaway. The accused's rifle had in the meanwhile fallen to the side. The accused struggled with the deceased and managed to free himself. He got hold of his gun and fired at the deceased who was then trying to get up to runaway.
The accused' version was that when he fell, the deceased sat on him and throttled him. She urinated on is chest before he could free himself. His explanation for having fired the shot is that he realised that the deceased was getting up In order to runaway,
following James. It was his evidence that he did not want her to escape because he had arrested her in connection with the horses. He further explained that he did not direct the shot at the deceased but to the side he states he did not want her to run to. He stated that the deceased was shot accidentally.
The question of self-defence does not arise in this case. The accused states that he realised that the deceased was getting up in order to runaway. She was facing away from him. She was no longer in contact with him. He had the rifle in his possession.
It was submitted on behalf of the accused that he was, at law, entitled to act in the manner he did in that he was attempting to prevent the deceased from escaping following her arrest. I was not referred to any specific law that empowers members of the Umbutfo Swaziland Defence Force to effect an arrest. Mr Ntiwane argued that this was a " citizen's arrest" under sections 28 and 41 of the Criminal Procedure and Evidence Act no. 67/1938. The former section provides-
Any private person may, without warrant, arrest any other person upon reasonable suspicion that such other person has committted any of the offences specified in Part II of the First Schedule.
Section 41 provides-
(1) If an peace officer or private person authorised or required under this Act to arrest or assist in arresting any person who has committed or is on reasonable grounds suspected of having committed any of the offences mentioned in Part II of the First Schedule, attempts to make such arrest, and the person whose arrest is so attempted flees or resists and cannot be apprehended and prevented from escaping, by
other means than by such officer or private person killing the person so fleeing or resisting, such killing shall be deemed in lav/ to be justifiable homicide.
(2) This section shall not give a right to cause the death of a person who is not accused or suspected of having committed one of the offences mentioned in Part II of the First Schedule and, the offence of theft is limited for the purposes of this section to theft in a dwelling house at night time, and theft of stock or produce as defined in any law for preventing the theft of stock or produce.
The report that was made to the accused was that the horses were suspected to have been stolen. It was on that basis that a stock removal permit was required.
It can be taken in the accused's favour, that he had informed the deceased and James that they were under arrest and that the deceased did in fact try to get up in order to escape. It became necessary in the circumstances for the accused to give a warning of his intention to prevent the deceased from escaping. This would in the normal course have entailed the firing of a warning shot or the issue of a verbal warning to the deceased to stop. No such notice was given by the accused. The identity of the deceased was in any event known to Mdvuka. The accused was aware of this and there could have been no difficulty in leading the police to the deceased if it was necessary to have her arrested.
The accused's evidence is that he fired a shot in the direction which he realised she was going to run in. The accused must quite clearly have appreciated the risk of striking the deceased with a bullet and the consequences thereof. The deceased was struck on the chest. The accused stated that that is the region of the body to which members of the Umbutfo Swaziland Defence Force are trained to fire.
That in my view can only be in circumstances where the intention is to kill. The lower limbs are the usual targets in cases where it is intended to prevent an escape. The accused cannot be heard to say that he did not intend to bring about the death of the deceased. He fired the rifle fully realising the risk to life and was reckless as to the consequences. I find the accused guilty as charged.