IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE Criminal Case No: 391/2011
In the matter between:
REX
v
ZAMA AUGUSTINE SIMELANE
SIBONISO SIMELANE
Neutral Citation : Rex v Zama Augustine Simelane & Siboniso Simelane (391/2011)
[2015] SZHC 95 (2 JUNE 2015)
Coram : Q.M. MABUZA J
Heard : 24/9/14; 13/11/14; 15/11/14; 2/12/14; 19/3/15
Delivered : 2 JUNE 2015
SUMMARY
THE ACCUSED PERSONS WERE CHARGED WITH TWO COUNTS OF ATTEPMTED MURDER AND THAT IN DOING SO THEY ACTED IN FURTHERANCE OF A COMMON PURPOSE.
ACCUSED PERSONS ACQUITTED AND DISCHARGED IN RESPECT OF ONE COUNT AND CONVICTED IN RESPECT OF THE REMAINING.
JUDGMENT
MABUZA -J
[1] The Accused were charged as follows:
Count 1
Accused 1 and 2 are charged with the crime of attempted murder in that upon or about the 19th July, 2011 at or near Etjendlovu area in the Shiselweni region, the said accused persons each or both of them acting in furtherance of a common purpose did unlawfully and with intent to kill, stab Mabandla Hlanze and did thereby commit the crime of attempted murder.
Count 2
Accused 1 and 2 are charged with the crime of assault with intent to cause grievous bodily harm in that upon or about the 19th July, 2011 at or near Etjendlovu area in the Shiselweni region, the said accused persons both of them acting in furtherance of a common purpose did unlawfully and with intent to cause grievous bodily harm, assault one Mfanufikile Dlamini and thereby commit the crime of assault with intent to cause grievous bodily harm.
[2] On the 24th September 2014 when the charges were put to the accused they each pleaded not guilty to both counts. They were unrepresented because of financial constraints and elected to represent themselves.
[3] The complainant in Count 1, Mabandla Hlanze (PW2) testified that on the 19th July 2011 he was returning home and was accompanied by Mfanufikile Dlamini the complainant in Count 2. Near the parental homestead of Mantombi Simelane (PW4), PW2 was hailed by Accused 1 to stop as he and Accused 2 were looking for him. PW2 did not stop and decided to go into Mantombi’s home. Accused 1 was with Accused 2. At Mantombi’s home they found Zachariah Khumalo, Mantombi, Jeremiah Nhlabatsi and Khonkie Dlamini (PW5). Accused 1 and 2 insisted that they wanted to talk to PW2 and that he should come out of the house. PW2 is a member of the neighborhood crime watch group referred to as the community police. He says that Accused1 slapped him on his cheek and wanted to know why PW2 had gone to his home with police officers. At that point Accused 2 entered the house carrying a knife and the occupants of the house left. Accused 2 confronted PW2 and Mantombi tried to intervene but Accused 2 told her to move away. She did so. Accused 1 entered carrying an axe.
[4] Accused 2 came closer and wanted to stab PW2. The latter picked up a pick-axe. Due to the fact that the pick-axe was heavy he decided to remove the axe so that he could use the handle as a weapon. As he was removing it, Accused 2 stabbed him on the chest. When PW2 tried to strike Accused 2 he ran away. Instead Accused 1 approached with the axe but did not inflict any wound on PW2. Accused 2 inflicted a second wound on PW2. The second wound was on the right side of his chest. The third, was inflicted on his right arm and the fourth one on his forehead. A fifth wound bruised his left hand. A sixth wound was inflicted on PW2 at the back on his right shoulder and a seventh at the back of the left shoulder. In between being stabbed PW2 says that Accused 1 would come at him with the axe. Because he was scared of the axe he would concentrate on Accused1 and Accused 2 would stab him.
[5] Ultimately he struck Accused 2 who fell to the ground. PW2 got on top of Accused 2 and tried to remove the knife. Accused 2 shouted to Accused 1 for help. Instead Khonkie arrived and removed PW2 from on top of Accused 1. PW2 then left because he was bleeding profusely from the chest wound. PW2 fell and someone called the police and they took PW2 to the Hlathikhulu Government hospital where he was treated. He was discharged the following day. Even though he was X-rayed, it was only when he was referred to Mbabane Government hospital that it was discovered that a piece of the knife was found imbedded in the wound in the back of the left shoulder. It was removed on the 11th August 2011. He says that before the metal piece was removed he suffered excruciating pain.
[6] PW2 described the knife as a home-made one with a wound rubber band for a handle. The knife that he identified had a broken tip. The metal that was removed from his shoulder fitted snuggly into the broken end of the knife that was exhibited in court, leaving no doubt that the metal piece belonged to the main piece. He further described the axe that Accused 1 carried. Its handle was blue and black. He identified it in court. The axe was Exhibit 1 and the main piece of the knife Exhibit 2 and the metal piece Exhibit 3. A jacket that he was wearing on the material day was also handed in as Exhibit 4. It had many holes in it which he says were holes caused by the knife. The accused persons are relatives of PW2, he however, identified both of them in court.
[7] Dr. Amos Vilakati (PW1) confirmed that on the 19th July 2011 he treated PW2 and recorded his findings in RSP88, the police medical form (Exhibit A). Exhibit A recorded two stab wounds 4 cm each at the back; one 3 cm laceration right side of chest anteriorly; 8 cm long laceration right arm.
[8] PW1 also treated Mfanufikile Dlamini (PW3) and recorded his findings in Exhibit B where he recorded that PW3 had a 2 cm long, shallow laceration on the base of the left 5th finger.
[9] PW3’s testimony corroborates that of PW2. That Accused 1 and Accused 2 tried to stop them and PW2 told him not to stop until they went into Mantombi’s parental home for shelter but Accused 1 and Accused 2 followed them there. That Accused 1 slapped PW2 on the cheek. He remained outside while PW2 entered the hut where he was attacked by Accused 1 and Accused 2. Accused 1 carried an axe while Accused 2 carried a knife.
[10] At some point PW3 also entered into the hut, but when the fight broke out he left the hut and stood outside. He says that he did not see what Accused 2 was doing to PW2 inside but he recalled that Accused 1 appeared carrying an axe and wanted to go inside the hut but he held him and pulled him outside. While holding him, Accused 1 struck him with the axe on his left hand. He dragged Accused 1 and handed him over to Khonkie and informed the latter to dispossess Accused 1 of the axe because he was bleeding from the injury on his left hand.
[11] He says that there was a struggle for the axe and Khonkie failed to dispossess Accused 1 of the axe. During this struggle Accused 2 who was inside the hut called out to Accused 1 to help him deal with PW2. Instead Khonkie entered the house and managed to stop the fight between Accused 2 and PW2. PW2 ran out of the hut and ran into the fields where he fell. Accused 2 also ran out of the hut and left the premises with Accused 1. The police were called who took them to the hospital. He too identified the axe as being short, blue a black string at the back of the handle. He saw that Accused 2 carried a knife but could not describe it as he did not see it properly.
[12] He too knew both accused before the incident and was able to identify them in court. They all came from the same area.
[13] Nothing much turns on the cross-examination of PW2 and PW3 by Accused 1 and Accused 2 except that both asked PW2 why he did not stop when ordered to do so. He responded that he did not stop because he feared their aggressive attitude. And that PW2 described more wounds inflicted on him than was found by PW1.
[14] Mantombi Simelane (PW4) testified that on the 19th July 2011 while she was at home, PW2 entered her home pursued by Accused 1 and Accused 2. When they entered her home Accused 1 and Accused 2 were having an argument with PW2 and picked a fight with him. Accused 1 slapped PW2 on the cheek. When she tried to intervene Accused 2 ordered her to move. She then left the hut. A little while later she returned and found Khonkie trying to disarm Accused 1 of an axe but failed to do so. Thereafter Khonkie went into the hut where PW2 and Accused 2 were and Accused 2 left the hut and they left with Accused 1. PW2 exited the hut and went towards the fields where he fell due to injuries that had been inflicted on him.
[15] The following day the police arrived with Accused 1 and Accused 2. They searched for and found the remains of a knife in the fields and left with it. The knife had a rubber handle and she was able to identify it in Court. She identified both accused in Court. She too knew them prior to this incident as they are all from the same area.
[16] Khonkie Dlamini (PW5) testified that he was at Mantombi’s home having traditional brew when PW2 and the two accused arrived. He corroborated the evidence of PW4. That Accused 1 and Accused 2 followed PW2 and displayed an aggressive attitude towards him. The bone of contention was that PW2 had arrived with police officers to the home of Accused 2. Accused 2 drew a knife and Accused 1 slapped PW2 on his face. PW5 left the hut and went to stand behind it. While there PW3 appeared holding Accused 1 who was carrying an axe. PW3 asked PW5 to remove the axe but failed to do so. Accused 2 then shouted for help and PW5 went to investigate. He found Accused 2 on the floor with PW2 on top of him fighting. He separated them. The police were called and they took PW2 and PW3 to hospital. PW3 had a laceration on his hand that was caused by the axe Accused 1 was carrying when he and PW5 tried to disarm him.
[17] 4423 Detective Constable Veli Gule (PW6) is the investigating officer herein. He testified that on the 19th July 2011 he received a report about the assault on PW2 and PW3 herein and he took them to the hospital. He located Accused 1 and Accused 2 on the 20th July 2011. He retrieved a blue axe from Accused 1. Accused 2 led him to a field at Mantombi’s parental home where he retrieved a broken knife which he handed over to the police after the usual caution. The knife and axe were handed in as exhibits as well as the piece of metal retrieved from PW2’s shoulder and a jacket belonging to PW2 which had stab holes. The piece of metal was handed to him by the Mbabane Governmental hospital.
[18] During cross-examination of this witness Accused 1 put to him that he assaulted him with a crowbar and the Magistrate ordered that he be taken to the Health Centre in Nhlangano. PW6 denied assaulting Accused 1. There was no evidence found at the Health Centre that confirmed Accused 1’s accusations even after I had ordered that it be furnished. Accused 2 put to the witness that PW2 injured him on his head after hitting him with a pick-axe handle. The Magistrate ordered that he too be taken to the Health Centre but there was no evidence found at the Health Centre in relation to Accused 2 even after I ordered that it be furnished. After this witness the Crown closed its case.
[19] The defence case opened with Accused 1 (DW1) giving evidence. He testified that on the 19th July 2011 he met with Accused 2 at a bus stop in their vicinity. They both realized that PW2 and PW3 were walking ahead of them. PW2 and PW3 branched off to Mantombi’s parental home and Accused 1 and Accused 2 followed them inside a hut where PW2 hit Accused 2 with a pick-axe handle and pushed him into the house. Accused 1 says that he rushed into the house and went in between Accused 2 and PW2 to try and separate them but PW3 held him back and out of the hut to where PW5 was. PW5 tried to take away his axe which was at his waist. He had been working on a fencing project earlier that day where he had used the axe.
[20] PW5 failed to remove the axe. He however talked to Accused 1 into remaining behind as he went into the hut to try and stop the fight between Accused 2 and PW2. Thereafter Accused 1 saw Accused 2 leave the hut bleeding from his head. He took him to his house where he cleansed the wound and bandaged it. Thereafter Accused 2 left for his own home. He says that he did not see when PW2 was stabbed as he remained outside the hut.
[21] On the following day he and Accused 2 were arrested. It was during the arrest that he alleges that PW6 struck him with a crowbar behind his knees. He says his axe was taken from him and together with Accused 2 they were taken to Mantombi’s parental home where a knife was retrieved by Accused 2 who handed it to PW6. He says thereafter they were taken to the Hlathikhulu police station and placed in the police cells.
[22] After a while PW6 took them to an office where he forced them to sign two documents. He forced Accused 1 by assaulting him with an open hand and fists on his face and stomach. Thereafter they were taken to the Nhlangano Magistrates Court where charges were read to them and he pleaded not guilty. The Magistrate wanted to know how they had got injured and he responded that he had been assaulted by PW6 on his face and knees. The Magistrate ordered that he be taken to hospital and this was done. He was taken to the Nhlangano Health Centre and thereafter remanded into the custody of the Correctional Services.
[23] When he was cross-examined he stated that they met PW2 by accident. Asked why they then followed PW2 to Mantombi’s parental home, he said that Mantombi was his relative and he had to greet her and that the path to his home passed behind her home. He denied that they were chasing PW2. He denied that he slapped PW2 on his cheek.
[24] Accused 2 (DW2) next gave evidence. He testified that on the 19th July 2011, one Siboniso Nhlabatsi asked him to accompany him to fetch a cow which he wanted to sell to a butchery. He agreed. They took the cow to Mbelebeleni area where they slaughtered and skinned it. That is how he explained how he was in possession of the knife. He together with Nhlabatsi spent some time after that at the local bottle store. In the evening he left for home. He met up with Accused 1 and they walked together. Along the way they saw PW2 and PW3 walking ahead of them.
[25] When he and Accused 1 caught up with them he greeted them and asked to speak to his uncle PW2. PW2 replied that he should follow him to Mantombi’s parental home where they would talk. When they got to the hut PW2 and Accused 2 remained outside. Accused 2 again requested to speak with PW2. PW2 told him to enter into the hut. When he entered he found PW2 carrying a lid for a pot. Accused 2 asked him why he was carrying the lid as he (Accused 2) was not fighting with him. PW2 put the lid down. Accused 2 then asked PW2 why he had gone with police officers to his house but PW2 did not answer him. Accused 2 then saw PW2 carrying a pick-axe handle which he used to assault Accused 2 on the head.
[26] Accused 2 says that he fell and PW2 got on top of him and strangled him. He shouted for help but nobody came to his rescue. He called out for Accused 1 but he did not come to his assistance.
[27] It was while he was being strangled that he recalled that he had a knife. He used the knife to get PW2 off him and that is when PW2 got injured. PW5 arrived and removed PW2 off Accused 2. Accused 2 got up left the room and joined Accused 1 and they left the homestead. The knife fell along the way and he could not see where it fell as it was dark. He went with Accused 1 who cleaned and bandaged his wound. Thereafter he left for the home of Thando Myeni where he spent the night.
[28] In the morning he met up with Accused 1 who was going to work and he to the shop. They met PW6 along the way who arrested them. Later the police drove them to Mantombi’s home where the knife was retrieved. They were taken to the police station where they were charged and thereafter to the Magistrate. The latter asked Accused 2 how he got injured and he explained to the Magistrate who ordered that he be taken to the hospital. The following day he was remanded into custody.
[29] When he was cross-examined he maintained his story that he merely wished to talk to PW2 about bringing police officers to his home. He denied that he had gone to fight PW2 at Mantombi’s home. He re-iterated that it was PW2 who struck him first with the pick axe handle on his head as a result of which he was injured and began to bleed. The blood flowed down into his eyes and as a result he could not see properly. He says that Accused 1 cleaned and bandaged him. When he was arrested and taken to Mantombi’s home he had a hat over the bandage and that is why Mantombi failed to see that he was injured.
[30] Both accused stated that the police assaulted them and upon remand they were sent to the Nhlangano Health Centre. On the 2/12/14 this court ordered that their medical report be obtained and produced at the next hearing. However, on the 19/2/2015 Mr. Matsenjwa reported that he failed to obtain the medical reports. This failure made him submit that he could not dispute that the accused were assaulted. The defence closed its case after Accused 2 had given evidence.
[31] The Crown abandoned prosecution in respect of Count 2.
[32] An analysis of the evidence shows that the two accused ganged up against PW2. Even though Accused 1 did not use the axe that he was carrying on PW2, he used it to distract him so that Accused 2 could stab him. PW2 says that he feared the axe more than the knife and each time Accused 1 advanced he fixed his attention on him and Accused 2 would stab him. This concerted and co-ordinated strategy by the two accused in my view indicates common purpose.
[33] PW2 says that he was stabbed seven times. The doctor PW1 stated that he counted 4 stab wounds which he recorded in Exhibit A. Two stab wounds were 4 cms each at the back. The depth of the wounds were in my view dangerous and could have been fatal. In fact part of the knife broken into and remained in PW2’s back until it had to be removed by surgery.
[34] PW2, PW3, PW4 and PW5 corroborate one another that both accused came into the house and picked a fight with PW2. They demanded that he come out of the house because they wanted to talk to him. That both accused went into the house and Accused 1 stood by the door and hit PW2 with an open hand and that is when PW3, PW4 and PW5 left the house and consequently did not see the rest of the fight.
[35] For the fight we have the evidence of PW2 and Accused 2. In his evidence in chief Accused 2 stated that PW2 got injured when he tried to stop him from strangling him. After he was cross-examined the court for clarity put questions of its own to Accused 2. Asked to explain the many stab wounds on PW2 he responded that they occurred during the fight as they rolled and changed positions. Asked to explain the force that caused the knife to break into PW2’s back. He replied that he did not know how that had happened.
[36] However, I do not believe Accused 2’s version as to how PW2 got injured and accordingly reject it. I believe PW2’s version.
[37] It is not clear whether or not there was a previous agreement between Accused 1 and Accused 2 to commit the offence. However, their synchronized actions from the time they saw PW2 and PW3 indicate that there was such agreement. Following is decided case law on the point. Where there is no proof of a previous agreement between the participants the following requirements must be complied with according to S v Mgedezi and Others (1989) (1) SA 687 A:
“(i) X must have been present on the scene when the violence was being committed;
(ii) X must have been aware of the assault on Y by somebody else;
(iii) X must have intended to make common cause with the person or himself performing some act of association with the conduct of the others; and
(iv) X must have intended to kill Y”.
[38] The four requirements cited above fit the profile of the accused persons perfectly with regard to the events that led to the injury of PW2.
[39] In addition The Crown has impressed upon me that the accused persons were carrying dangerous weapons and that I should infer from that they intended to do PW2 mischief. Be that as it may, I believe the accused persons’ story as to why they were carrying the weapons. Their explanation for the weapons is plausible. They may have had PW2 at the back of their minds and when they saw him jumped to action. I do not believe that the weapons were carried to attack PW2 in a chance encounter.
[40] However, when the encounter did occur it turned ugly and the intention to harm PW2 became clear. From the aggressive pursuit to the clap and the relentless violence that follow evince a clear intention to harm PW2.
[41] In Rex v Bhutiza Gift Matsebula Case No. 267 of 2012 (SZHC162) unreported at para 32 it was stated:
“It is trite law that 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, the inference is that he intended to kill the deceased. See William Mceli Shongwe v Rex Criminal Appeal No. 24/2011 Mandla Mlondolozi Mendlula v Rex Criminal Appeal No. 12/2013; Ntokozo Adams v Rex Criminal Appeal No. 16/2010 and Xolani Zinhle Nyandeni v Rex Criminal Appeal No. 29/2008.”
And at paragraph 33 it was said:
“However, it is well-settled that in order to support a conviction of attempted murder, there need not be a purpose to kill proved as a actual fact, it suffices 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 followed in death. See Rex v Huebsch 1953 (2) SA 561 (A) at 561; Henwood Thornton v Rex 1987 – 1995 SLR 271 AT 273.”
[42] For the aforegoing reasons I find that the Crown has proved its case beyond a reasonable doubt and I have no hesitation in convicting the accused persons in respect of Count one.
[43] In the event it is ordered:
Count 1
Accused 1 and Accused 2 are hereby convicted and found guilty as charged in respect of Count 1.
Count 2
Accused 1 and Accused 2 are hereby discharged and acquitted in respect of Count 2.
JUDGMENT ON SENTENCE
[44] Having convicted the accused persons I now have to sentence them. Mr. T. Dlamini for the Crown confirmed that the accused persons had no previous convictions and were first offenders.
[45] In mitigation Accused 1 stated that before his arrest on the 20th July 2011 he was employed at Swazi Trails at Ezulwini. That he has a 6 year old daughter who currently lives with his grandmother. His daughter is in Grade 1.
[46] He asked for a lenient sentence so that he could go and take care of his daughter.
[47] He told the Court that he had completed high school and held a Diploma in tourism.
[48] Significantly that he did not inflict any injury on PW2.
[49] That he was 35 years old. He never knew his father and his mother was late.
[50] Accused 2 on the other hand stated that he also had a 5 year old daughter whose welfare he was concerned about. She too lived with his grandmother. His mother died a long time ago and his father disappeared into South Africa.
[51] He too was employed by Zapps Investments, Mbabane before his arrest.
[52] I shall take the above submissions into account. However, in my view the assault on the complainant was senseless having been sparked off by Accused 2 wanting to know why the complainant had brought police officers to his home.
[53] The stab wounds inflicted on the complainant could have been fatal and the accused are lucky that the complainant was not fatally wounded.
[54] The accused persons have been in custody since 20th July 2011. They assured me that they had learned a lesson during the entire time that they were incarcerated.
[55] I have no doubt that this is true, especially since the complainant is a close relative to Accused 2 being his uncle.
[56] In sentencing the accused persons I take into account their mitigation, the crime and the interests of society. I also take into account that they have been in custody since 20th July 2011.
[57] The accused persons are hereby sentenced to 5 (five) years imprisonment without an option of a fine. One year is suspended for a year on condition the accused are not convicted of any crime of which assault is an element. The sentences are backdated to the 20th July 2011,
the date on which they were taken into lawful custody.
____________________________
Q.M. MABUZA
JUDGE OF THE HIGH COURT
For the Crown : Mr. T. Dlamini
For the1st Accused : No appearance
For the 2nd Accused : In person
