IN THE HIGH COURT OF SWAZILAND
Case No. 08/09
In the matter between:
Neutral citation: Rex V Elliot Mamba [08/09]  SZHC 198 18 October 2016
Coram: FAKUDZE, J
Heard: 5/07/2016, 06/07/2016, 7/07/2016, 11/07/2016, 12/07/2016 and 28/07/2016
Delivered: 18th October, 2016
Summary: Criminal procedure – murder – duty of prosecution to prove case beyond reasonable doubt - principles governing defence of private or self defence discussed - intention in the form of dolus eventualis established by the Crown - Accused guilty as charged
 The accused was indicted on the count of Murder in that upon or about the 8th January, 2009 and at or near Mpofu area in the Hhohho Region, the said accused did unlawfully and intentionally kill one Sidwell Methula. The accused pleaded not guilty to the murder charge.
 In a bid to prove its case, the Crown paraded five witnesses. I will deal with the salient features of each witness’s evidence.
PW1 – Nkosinathi Gumedze
The first Principal Witness (PW1) was Nkosinathi Gumedze who attested to the fact that he knows the deceased and the accused because they were both from the witness’s area. This witness told the court that on 8th January, 2009, the deceased went to a drinking spot. The witness did not join him, notwithstanding that the deceased had extended an invitation to the witness. When the deceased came back, he went to a Tsabedze homestead where the mother of the homestead prepared a sleeping mat for the deceased to rest because he was drunk. The witness happened to be at the Tsabedze’s homestead at that moment.
 The witness continues to say that the deceased woke up and went to a Bothman homestead where the deceased was staying. When the deceased arrived there, he found the accused’s cattle in Bothman’s yard. The deceased then shouted at Elliot Mamba, telling the accused that he must remove his cattle from the yard. The witness then said that he warned the deceased not to call the accused by name because the accused was older than the deceased. As the witness was warning the deceased, the deceased threatened to assault him with a knobkerrie. The witness then left the scene after being threatened. Asked by the Prosecution where exactly was the deceased at the time of making the threat, the witness responded by saying that he (the deceased) was at Bothman’s gate and the deceased was alone.
 PW1 continued to state that the deceased told “us” that he would hit the accused with the knobkerrie if the accused did not remove the cattle from Bothman’s yard. When asked by the Prosecution how far the deceased was from the accused’s homestead and where the accused was when the deceased threatened the accused, the witness responded by saying that the accused was at his homestead which was about 100 metres from Bothman’s gate. The witness then proceeded to the water tap and after that he saw the accused emerging from his house using the entrance thereto and proceeded straight to where the deceased was.
 PW1 was coming from the place where the water tap was when this witness saw the accused chasing the deceased. The deceased then fell on the ground and because there were trees in his pathway, he could not clearly see what happened thereafter. When asked by the Prosecution about seeing the deceased falling, the witness responded by further saying that he then saw the accused coming back. The witness then proceeded to where the deceased had fallen or was and at that time the accused was on his cell phone calling somebody.
 PW1 further stated that on arriving at where the deceased was, the witness realised that there were stab wounds on the deceased’s body. One was on the right side of the shoulder and the other was next to the kidney area. When asked how the deceased was lying down, the witness responded by saying that the deceased was lying facing up. As to how he was able to see the wounds, he stated that another young man helped him to lift up the deceased and that is how the witness managed to see the wounds. Whilst lifting up the deceased, the deceased told them (the witness and the boy) to leave the deceased alone. He further said that the deceased told them that his eyes were becoming dim and was losing the ability to see.
 Other community members joined us and they told us not to continue lifting up the deceased. At that time the accused was busy on his cell phone. A blanket was then brought and used to cover the deceased’s corpse. When asked if the police were called to the scene of the crime, the witness responded by saying that he thought the accused had been phoning the police and basis this on the fact that immediately the accused stopped phoning, the police arrived.
 When further probed by the Prosecution on the chasing of the deceased by the accused, the witness stated that he (the witness) saw the deceased running away from the accused and the chase did not take a long time. It was from the gate where the deceased was to the place where he fell. The witness estimated this distance to be about 10 metres. The witness further stated that the deceased was drunk when the witness left him at Bothman’s gate. On being asked by the Prosecution if he saw the accused when the accused reached where the deceased was at the gate, the witness said that he only witnessed the chase. On being further asked by the crown what exactly happened when the accused arrived at the gate where the deceased was, the witness responded by saying that he did not see that. When asked by the Prosecution if the deceased was alone when the witness went to fetch the water from the tap, the witness responded by saying that the deceased was alone. When further asked if the witness saw any other person who witnessed the incident, he responded by saying that there were many people who witnessed the incident. When asked if he knew one or two people who witnessed the incident, the witness made mention of a Mrs Nyoni who was the accused’s neighbour. On the trees that obstructed the witness, the Prosecution asked how many they were and the witness responded by saying that the place was bushy.
 On cross examination, PW 1 maintained his story that the deceased was drunk, was carrying a knobkerrie, and provoked the accused by telling the accused to come and remove his cattle from the Bothman’s yard. PW 1 also confirmed that the Bothman yard’s fence had collapsed. When asked by the defence if he had been to school, he was honest to say that he had never been to school. This explains some of the contradictions in the estimation of the distances. The witness further confirmed the accused’s version that Mr. Bothman had no problem with cattle grazing at his yard and that the accused had brought up the deceased at his home. The accused was also paying the deceased’s school fees. At the time of the occurrence of the incident, the deceased had moved out of the accused’s home.
 The witness confirmed that the deceased was used to hurling insults at the accused and on the day of the incident, the same thing happened. When further cross examined by the defence on the accused sitting under a tree and eating mangoes when the deceased confronted the accused even assaulting the accused with the knobkerrie, the witness stated that he did not witness this. The issue of the goats entering the accused’s yard and eating his maize was not confirmed by this witness. The witness finally confirmed that there was an attempt by the accused to take the deceased to hospital after the stabbing which was an indication that the accused was remorseful.
PW 2 – DR. R.M. Reddy
 Dr. Reddy is a government pathologist who is based at the Police headquarters and has been working in Swaziland as a government pathologist, police headquarters since 2004. He is the one who conducted the post-mortem on the body of Sidwell Methula, the deceased. The body had been identified by police officer 2305 of Pigg’s Peak police station and Jibha Methula, the deceased’s father. The witness noticed a haemorrhage that had been caused by a penetrating injury to the left lung. On examining the body, the witness identified the following anti mortem injuries: (a) a penetrating wound on the left shoulder obliquely placed which is 6 x 2.2 centimetres left lung deep present. It involved muscles intercostal structure, pleura, lung (1 x 0.5cm), front to back downward medially. Edges clean cut, angle sharp pleural cavity contained about 1500ml blood; and (b) there was also a cut wound over back left chest 2 x 1 cm muscle deep. When asked by the Crown what actually caused the death of the deceased, the witness explained that the penetrating injury to the lung caused the death. The Doctor’s report was handed in as evidence and marked as “Exhibit A.” The Defence did not object to the same being handed in and so was accepted by the court.
 When cross examined by the Defence, the witness confirmed that the injury that was inflicted in the front part of the deceased’s body is what caused the death. On further cross examination that if the deceased had been taken to hospital shortly after the stabbing, he could have survived, the witness said that in his medical opinion, there is little chance to survive if there is an injury to the lung. The same applies if penetration takes place in the heart, splin and a blood vessel. Instant death is therefore possible in these situations. It is a question of few seconds to few minutes before death occurs. In the present case the survival of the deceased was minimal because there was rapid and excessive bleeding. On final cross examination if a victim in the deceased circumstances would have survived if within two hours the deceased had been attended to medically, the witness emphasised that it is a matter of few seconds to few minutes for one to survive.
PW 3 – Gabsile Dlamini
 PW 3’s evidence is that she was attending school at Mpofu in 2009, otherwise she is from Mayiwane area. She was fifteen (15) years of age at that time. She arrived in Mpofu around January, 2009 just before schools opened. The witness further stated that she knows the accused as a result of the deceased’s death. She had not seen him before and did not see him thereafter. The witness positively identified the accused who was in the court room.
 The witness told the court that she knew the deceased because he was a jolly person in the community and it took her two weeks to know him. On the day the deceased met his death, he passed by the witness’s home stead and was going to the river to bath. It was in the afternoon, although the witness is not sure what time it was. When the deceased came back from the river “we” went with him because “we” were standing by the gate. When asked by the Prosecution who the “we” she was talking about referred to, the response was that she was in the company of Ncobile Magagula. The deceased, the witness and Nqobile went to the playground that was not far from where the deceased stayed.
 Whilst they were chatting, a young girl passed by who was younger than her. The deceased told the girl to go and tell her (girl’s) father to remove his (accused) cattle from his yard because they were destroying the deceased’s trees, mangoe trees to be specific. When asked about the surname of the homestead where accused’s cattle were causing havoc, the witness responded by saying that she no longer remembers but she thinks it was a Bothman homestead. All that she remembers is that the surname of the owner was of English origin. When further asked by the Prosecution if the witness knew the name of the girl who was sent by deceased to go and tell her father to remove the cattle, she responded by saying that she did not remember the girl’s name, but she remembers that the girl’s father’s surname is a Mamba.
 The young Mamba girl proceeded to her homestead and suddenly, the father’s girl angrily came to where we were. We were sitting facing the West and the accused approached us from the left hand side. He said that he would teach the deceased a lesson and went on to stab the deceased on his left arm using a knife which was retrieved from the accused’s trouser. When further asked by the Prosecution to identify the person who retrieved the knife in the court room the witness pointed at the accused. Because she, Ncobile and the deceased were caught unaware when the stabbing took place on the deceased arm, the deceased stood up and ran away towards the road. The accused chased the deceased who then fell on the ground because something trapped the deceased. The thing that trapped him were some shrubs.
 After the deceased had fallen, the accused set his foot on the deceased’s neck and then stabbed him below the rib cage. The deceased cried and said that it is so sad that you my uncle are killing me. The accused responded by saying that he wants to kill the deceased and be arrested for a good cause. The accused then left the deceased on the ground and the witness then asked Ncobile to go and report the incident to her grandmother, a Mhlabane, where the witness stayed. Before Mhlabane came, some two boys who were at the playground came and lifted up the deceased. Mhlabane came in the company of a Ngwenya lady and when they came, the boys had placed the deceased on the ground. The deceased’s body was facing up.
 The witness finally said that Mhlabane told her and Ncobile to go home. Mhlabane and Ngwenya will monitor the situation. When asked by the Prosecution if the deceased was drunk or not, the witness said that she cannot be certain because she was still young. All she can attest to is that the deceased was always in a jolly mood. When asked if PW 3 knew Nkosinathi Gumedze PW 1, she responded by saying that she did not know him because she was new in the area.
 On being cross examined by the Defence, PW 3 generally maintained her version throughout. She further pointed out that she did not see the deceased carrying a knobkerrie, cannot bear witness to the fact that the deceased was in the habit of always provoking the accused, did not hear PW 1 warning the deceased against provoking and insulting the accused and that the deceased was in a violent mood. She did maintain though that the accused inflicted the first wound whilst the deceased was sitted and it was on the left arm and that all the events she narrated took place in her presence. There was no male person in the vicinity that she saw during the chasing, the stabbing and the falling down of the deceased. She further maintained that the accused set his foot on the deceased’s neck before stabbing him the second time. She then told the court that she was not aware that the accused arranged transport to transport the deceased to hospital.
PW 4 – Detective Sergeant Dlamini
 Detective Sergeant Dlamini was based at Buhleni Police Station in the year 2009. He was the investigating officer in this matter. He said that on the 8th January, 2009 he together with the late Sergeant Bhekithemba Simelane, arrived at Mpofu area, having received a report that someone had been stabbed. When they arrived there, they found a group of people who had gathered around the scene of crime. They pointed to them a body that was covered with a blanket. This was the body of Sidwell Methula, the deceased. They cordoned the scene and began their investigations. They removed the blanket and first determined if Methula was still alive or dead. The person was no longer breathing.
 When Dlamini was inspecting the body he noticed two deep wounds on it; one was on the left shoulder and the other on the left side of the stomach. As the investigations were on going, it transpired that the suspect was within the vicinity of the scene of crime. They then introduced themselves and he informed the suspect that they were investigating a murder case and he Mr. Mamba, was the suspect. The suspect was warned according to the Judges’ Rules. He was cautioned that he need not say anything and if he does, that what he says would be used as evidence against him. He was further cautioned that he need not point out anything and if he does, that would be also be used as evidence against him. The accused elected to say something. The accused also voluntarily led them into his house where he pointed out a knife which the witness then took it as an exhibit. I must point out that upon mentioning that the accused voluntarily pointed out the knife, the Defence Counsel objected to that, basing it on the fact that the evidence of pointing out should be rejected because it amounts to a confession. This evidence should therefore be tested by means of a trial within trial. I over ruled the Defence on this objection, reason being that counsel did not question the witness’ evidence that the accused had been cautioned prior to the pointing out. This evidence was therefore admissible and there was no need for a trial within trial.
 PW 4 continued to give his evidence that the knife that was used by the accused in committing the offence was a man made one and more or less, the size of an Okapi. The accused was then arrested and taken to Buhleni Police Station where he was formally charged with the crime of murder. The witness further explained that the knife, which was the exhibit, got lost during the forensic analysis process. The Official Register in which the exhibit was entered was exhibited before court. The Register was shown to the Defence Counsel and he did not object to it being handed in as an Exhibit. A copy was made and was accordingly marked “Exhibit B” by the court. It is entry no 11 of 2009 described as 1 x man made knife. The witness finally confirmed that a post-mortem was conducted at Pigg’s Peak hospital.
On cross examination, defence counsel put it to the witness that the accused was not cautioned and the witness denied that. He further put it to witness that the knife was brought to the police by one Andile Mamba and not the accused. The witness also denied that. It is worth noting that during the defence case, the accused did not bring any witness to his defence, including the aforesaid Andile Mamba. The witness stood by his evidence as so led in examination in chief.
PW 5 – Detective Assistant Superintendent Sibusiso Dlamini – FORCE NO. 3024
 This witness stated that in 2009, he was stationed at Pigg’s Peak. He was under the Scenes of Crime Department. He received a report about the commission of a crime of murder in Mpofu no. 7. On arrival at the scene and being accompanied by 6283 Constable Sindi Magagula, they found that the aforesaid scene had been cordoned by PW 4. PW 4 gave them a brief history of the incident. The corpse of Sidwell Methula was covered with a blanket. He took photographs and then uncovered it. He realised that there was a head gear covering the chin and the head. He was informed that the deceased’s relatives had used the gear to cover his mouth. The deceased was lying on the ground and his body facing up. He noticed that the deceased’s clothes were blood stained. When he removed the clothes, the witness noticed two stab wounds. One was on the left back of the deceased’s shoulder. The other one was on the back on the left hand side below the rib cage.
 This witness further noticed that the distance from the accused’s homestead to where the corpse was, was about 100 metres. He further noticed that the corpse was lying next to the community playground and not far from a tap water that was used by the community. The witness then took two photographs of the wound that were on the deceased’s body. The deceased’s body was then transported to Mkhuzweni Clinic. The witness took the film that had this photographs in it and submitted it to the Mbabane Headquarters for processing. Unfortunately when the witness went to collect the photographs on the 16th July, 2016, they had not been processed. They were in a certain file that needs to be taken to Pretoria for the processing of the photographs. When asked by the Prosecution if this witness was shown the place where the deceased was allegedly sitting before he was attacked, the distance between the accused’s homestead and whether any other exhibit was handed to him when he visited the scene, the witness responded by saying that he was not given any other exhibit and that he was shown the distance by PW 4. On cross examination on the distance, and the place where the body of the deceased had the stab wounds, PW 5 maintained his version as given during his evidence in chief.
 After PW 5 had given his evidence, the Prosecution then closed its case. The Defence was given opportunity to lead its evidence. There was only one witness that was led by the Defence Counsel and that is the accused person. The accused opted to give his evidence under oath.
 His evidence was that he was residing at Mpofu in the year 2009. He is a farmer and as far going to school is concerned, he went up to standard 3. The deceased, Sidwell Methula, was his nephew by virtue of being his younger sister’s child. Because Sidwell’s mother stayed at the accused’s home, the accused had known the deceased at infancy. On the 8th January, 2009 the accused had been at home almost the whole day. At about 3pm the accused heard the deceased hurling insults at him (accused) at the gate that was next to his water tap. The accused was sitted in a position where he could not see someone coming through. He then heard the deceased hurling insults at him whilst the deceased was still at the gate.
 The deceased was getting closer and closer to his homestead and continued shouting and insulting the accused. Everyone who was present at home did not come out. Later the noise that was caused by the deceased “slowly died” which conduct reasonably led to conclusion that the deceased had now left for Bothman’s place. Not only did the deceased insult the accused, he further threatened and said “although you have been in hiding, I will deal with you.”
 The deceased and the accused had a misunderstanding about some cattle. This is what he was insulting and shouting about on this day. The cattle had gone into Bothman’s yard. The witness said that there was no problem with his cattle being at Bothman’s place because other cattle from the neighbourhood were used to being there. The fence there had also collapsed. The deceased left because he failed to locate anyone at the accused’s homestead because they had all gone into hiding. After sometime “we” (although it is not clear who the others were) came out of our hiding place. An hour after this event I sat down under a tree and started eating mangoes. Whilst doing so, the accused saw goats coming into his yard. He chased them away towards the pastures. On his way from chasing the goats, he met the deceased who called the accused by name and said that the accused had come out of his hiding.
 The deceased came forcefully towards the accused and there was no way he could escape. The deceased hit him with a knobkerrie. The accused avoided the first blow, but the second blow landed below the rib cage and the third one landed on his thigh. After that the deceased released a blow that should have landed on the accused’s head, but he managed to get hold of the knobkerrie. A fight between the two ensued, the knobkerrie fell away and then the deceased punched the accused. That is when the accused then stabbed the deceased on the shoulder and below the rib cage. The deceased then jumped up and started running. The accused chased the deceased who then fell on the ground. When asked by his counsel what caused the fall, the witness says he thinks that it was the wet cow dung that was on the ground. When the fight started there was no one in the vicinity. After the deceased had fallen, he lifted up his hands. The accused then asked the deceased why the deceased was attacking him? The deceased responded by saying that he had been sent by people. The deceased then became sympathetic. He took out his cell phone and called his elder sister Margaret Makhanya about what had just happened.
 The accused then saw some young boys whom he sent to the nearest school to organise transport to take the deceased to hospital. He says that he told these young boys to tell any teacher who was willing to help with transport about what had happened. He did not leave the scene of crime because his sister had advised the accused not to do so. The young boys came back with a Mr. Nxumalo who was driving a white van. The deceased was in a sitting position at that time. Mr. Nxumalo complained that the deceased would dirty his car. A blanket was organised on which the deceased would sit. When the deceased heard that he was being taken to hospital, he became violent and threatened to smash Nxumalo’s car. The accused also called the police using the police emergency number.
 The police arrived, inspected the area and asked the people as to who was responsible for the incident. The people in the vicinity pointed at him. A police by the surname of Simelane came to me, flashed out a small booklet. Simelane told me that he was a police officer and asked where the knife I had used was. The accused told him that he had given it to his son Andile Mamba to go and put it at home. Andile went to fetch it and then I gave the knife to Simelane who took it. Simelane told the accused that he was now under arrest.
 On being cross examined why the accused killed the deceased, he maintained that he was acting in self defence. He also confirmed that he was older than the deceased. On being asked how many were there at the accused’s homestead on that day and when the insult were hurled at them, he said that his wife and children were there. What made them to go into hiding was because of the insults and threat that were being made by the deceased. The accused maintained that he stabbed the deceased whilst they were standing. He did not do so whilst the deceased had fallen to the ground. It was put to the accused that the story of being hit with a knobkerrie was a fabrication because he did not produce any medical evidence to establish this fact. Likewise, the story of the accused fighting to get into the car is a fabrication. The Defence then closed its case after these defence witness had been cross examined. The counsel for the defence opted not to re-examine the witness.
SUBMISSIONS AND ANALYSIS ON EVIDENCE
 Before making an analysis of the evidence, it is very important to deal with the dynamics of criminal litigation as propounded by case law.
In the case of Dlamini Vusi Roy V Rex Criminal Appeal No. 3 of 1999, SZSC, Her Lordship Van Den Heever, JA stated in page 5 that:
“The question in a criminal case is whether the evidence as a whole furnishes proof of guilt.”
 The effect of Dlamini Vusi’s judgment is that the entire evidence must be determined before the guilt or acquittal of the accused is determined. A similar thought was captured by His Lordship Leon, JP in the matter of Khekhe Simelane and Four Others V Rex Criminal Appeal Case No. 8 of 2000. Although this case was deciding on the modern approach in dealing with the evidence of a single witness, the principle therein applies to criminal litigation in general. His Lordship said at page 9 of His judgment:-
“The trial judge will weigh his evidence and consider its merits and demerits and having done so, will decide whether it is trustworthy and whether, despite the fact that there are some shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told …………..”
 In the recent South African Supreme Court of Appeal case of The Director of Public Prosecutions, Gauteng V Oscar Pretorius Criminal Appeal No. 96/2015, His Lordship Leach JA hit the nail on the head when He said at page 10 that:-
“It is thus trite that a trial judge must consider the totality of the evidence led to determine whether the essential elements of a crime have been proved. As Nugent J stated in Van der Meyden, a passage oft cited with approval in this court: The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether to convict or acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found unreliable; but none of it may be simply ignored.”
 In the case at hand, the Crown’s contention is that there is corroboration of the Crown’s case between the evidence of PW 3 and PW 1. The areas of corroboration identified by the Crown pertain to the chasing of the deceased by the accused, that they saw deceased fall to the ground and accused being at the place where the deceased was stabbed. The Crown further submits that there are contradictions between the evidence of PW 1 and PW 3 which include that the deceased was carrying a knobkerrie whilst the deceased was sitting at the gate and that he called the accused by name which PW 3 stated that it did not happen in her presence. The Crown submits that the contradictions are not fatal to the Crown’s case and takes the position that as far as these contradictions are concerned, it is proof that PW 1 was not truthful to the court. This part of the evidence by PW 1 should be side-lined by the court.
 The Defence’s case on the issue of corroboration is that the only evidence that seems to link the accused to the commission of the offence is that of PW 3. Defence counsel’s requests that the court should cast some doubt even on this evidence based on the fact that the witness was new in Mpofu area which is the place where the crime took place. Secondly, this witness was fifteen (15) years of age and therefore this court must exercise extreme caution in accepting her evidence.
 The court’s take on the parties submission on corroboration is that the Crown’s case has been corroborated. Although different accounts are given by PW 1 and PW 3 as to the circumstances leading to the commission of the offence, the court takes into account the following considerations and evidence in justifying the court’s conclusion that there is corroboration with respect to the evidence of PW1 and PW 3. These considerations are that -
(a) Both witnesses testified to seeing the accused chase the deceased. The accused does not dispute this in his evidence in chief. In fact he confirms the chasing.
(b) Both witnesses testified that the cause of conflict between the deceased and the accused was that cattle had entered Bothman’s yard which was the place where the deceased stayed. The dispute related to the removal of the accused’s cattle from Bothman’s yard.
(c) Both witnesses testified to the effect that whilst the deceased was running away from the accused, the deceased was trapped by something and this thing led to the deceased falling to the ground. PW 1 says that although he did not see properly what trapped the deceased, it was some short trees. PW 3 says that it was some shrubs. The accused said in his evidence that he did not see what caused accused to fall, but he believes that it was the “wet” cow dung that was in the area. In other words, the accused does not deny that the deceased fell to the ground whilst running away from the accused;
(d) PW 1 and PW 3 testified that the accused came from the direction of his homestead when the chase took place and the accused states that he came from that direction to first chase away some goats which were destroying his crops. Later, he came out of that direction after the deceased had confronted the accused; the accused had come out of his hiding place where he and his family hid when first confronted by the deceased challenging the accused to come out from there;
(e) PW 1 testified that he and another boy lifted up the deceased where he had fallen. The deceased then faced upwards. PW 3 testified that after the deceased had fallen, some two boys who were in the playground came to the scene and lifted up the deceased. He ended up facing upwards.
(f) PW1 testified that the distance from the accused gate to where the accused fell is about 100 meters. PW 5 also testified to that in his evidence in chief.
(g) There is consistency with respect as to where the stab wounds were inflicted on the body of the deceased. PW 1, 2,3, 4 and 5 attest to this fact.
 All the issues raised in the last paragraph are not disputed by the
accused in his evidence in chief. An explanation of what
happened on that day and the cause thereof is all that the accused
is able to explain.
 On the issue of PW 3’s age and the exercise of caution regarding
her evidence as a minor, I wish to point out that she impressed
me as a young and intelligent person. I agree that the evidence
of a minor should be accepted with caution. However, I am
inclined to follow the reasoning of His Lordship Banda CJ in Rex
V Albert Sukulwenkosi Nkambule High Court Criminal
Case No. 114/ 07 where His Lordship stated at page 5 that:-
“The evidence of young children should be always accepted with caution. But it has been held that courts should not act upon any rigid rule that corroboration must always be present before a child’s evidence is accepted; vide the case of R V Thanda 1951 (3) S.A. 158 at 153, and our local case of Roy N. Mabuza V Rex Appeal Case No. 35/02.
His Lordship then set the test to be applied when he said in page 6 of His judgement:
“ Trustworthiness, as is pointed out by Wigmore in his code of evidence paragraph 568 at 128, depends on factors such as the child’s power of observation, his power of narration on the specific matter to be testified. In each instance the capacity of the particular child is to be investigated. His capacity of observation will depend on whether he appears “intelligent enough to observe.” Whether he had the capacity of recollection will depend again on whether he has sufficient years of discretion to remember what occurs while the capacity of narration or communication raises the question whether the child has the capacity to understand the question put, and to frame and express intelligent answers.” (Wigmore on Evidence Vol II paragraph 506 at 596)
 On the issue of the actual stabbing of the deceased which finally led to his death, the Crown submits that the version of PW 3 to that of PW 1 should be preferred. This is because PW 3 said that she was together with the deceased at the time the accused inflicted the first wound. The accused, according to this witness stabbed the deceased on the left arm. The stabbing caused the deceased to stand and flee. This witness testifies to the fact that there was no one else in the vicinity, except for one called Ncobile Magagula. In the same vein PW 1 states that he was the only one who was with the deceased when the first stabbing took place. As indicated earlier in this judgment, Defence counsel did raise the point that the evidence of these Principal Witnesses are contradictory in a material respect.
 It must be always be borne in mind that the Crown always bears the burden to prove its case beyond reasonable doubt. The most prudent thing the Crown should have done should have been to call Ncobile Magagula to substantiate the evidence of PW 3. Since this never happened this court is inclined to observe that it is not certain as to who of the two witnesses were with the deceased at the scene of the crime. It is also not clear as to who, between PW 1 and PW 3 actually witnessed the stabbing. Ncobile’s evidence would have assisted in this regard. However, the circumstantial evidence so far before this court proves or establishes the stabbing of the deceased by the accused on the alleged day of the commission of the offence. See Dlamini Vusi Roy V Rex (Supra). It is this court’s view that the Crown’s case is not fatal as a result of this shortcoming.
 At a later stage, I will deal with the effect of PW 1’s evidence in so far as it favors the accused’s version especially on the hurling of insults and the carrying of the knobkerrie by the deceased. It suffices to say for now, that I have no reason to disbelief PW 1’s version of what he saw as suggested by the Crown in its submission that part of PW 1’s evidence should be discarded especially if it looks like not favoring the Crown’s position notwithstanding that PW 1 was its witness. PW 1 impressed me as a trustworthy witness when he was being examined, cross examined and re-examined.
 Let us recall that the accused is not just charged with killing a human being unlawfully, but has done so intentionally. This court will now have to determine this part in order to see if the death was intentional or negligent. If it was intentional, the verdict will be that of murder; but if it was unintentional, it will be culpable homicide. This does not rule out the possibility of an acquittal if the court concludes that the Crown has not proven its case beyond reasonable doubt.
 The Crown contends that the accused killed the deceased intentionally and the murder was pre- meditated and planned. This becomes clear when the Crown’s representative said to the accused in cross examination that:-
“Q I put it to you that the story of being attacked by a knobkerrie is not true. You planned to do it so that you may come and deceive this court.
A: I never planned all this
Q: What happened on that day is that you pre-planned to kill the deceased by arming yourself with a knife and went there where the accused was, found him sitting down and stabbed him as planned.”
The accused denied all this and alleged that he was acting in self-defence. The Crown’s argument in as far as mens rea is concerned is that the murder was even premeditated. In further cross examining the accused, the Crown’s representative emphatically said:
“Q: I am putting it to you that the only reason you killed your nephew (deceased) was arrogance. Your nephew had told you that you must remove your cattle from Bothman’s place and arrogance made you to kill the deceased.”
 The Crown’s submission is therefore that the accused should found be guilty of murder because he had formulated the intention to kill in the form of “dolus directus.” It is trite that in the case of murder, a person acts with dolus directus if he or she commits an offence with the object and purpose of killing the deceased. See Director of Public Prosecutions V Oscar Pretorius (Supra).
 The accused argues to the contrary that there was no intention on his part to kill the deceased because he was acting in self-defence. The accused made part of his story made known when giving evidence in chief when he said:-
“The deceased came forcefully towards me; when we met (the
accused and the deceased), he then used a knobkerrie to hit me.
When I tried to retreat, there was no space to allow me to escape
in any direction. The accused continued hitting me with the
knobkerrie. I avoided the first blow, but the second blow hit me
on my rib cage and the third one landed on my thigh. After that
he attempted to hit me on my head and I avoided this blow
because I then got hold of the knobkerrie. A fight ensued
between me and the deceased until the knobkerrie had fallen
away, the deceased punched me. That is when I then stabbed the
 We will recall that PW 1 had testified that the deceased was carrying a knobkerrie on that day. He even threatened this witness that he would use it to hit this witness when the witness warned him not to insult the accused. That is when the witness left the scene. This witness did not witness the fight between the accused and the deceased. The pertinent question to be asked in the light of the accused’s evidence is what does the law say on the invocation of the defence of self-defence? In other words what are the requirements for this defence to hold? In the case of Siphamandla Henson Dlamini V Rex Criminal Appeal No. 23/2013, the Supreme Court of Swaziland stated the principles governing self-defence. At page 9, the Court said:-
“The underlying principles from these authorities is that self-defence is only available if three requirements are met, namely, if it appears as a reasonable possibility on the evidence that:-
- The accused had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury at the hands of his attacker;
- The means he used in defending himself were not excessive in relation to the danger;
- The means he used in defending himself were the only or least dangerous means whereby he could have avoided the danger.”
 On the issue of self-defence, it is this court’s humble view that this defence cannot hold with respect to the accused in this case. The evidence led shows that the accused exceeded or used means in defending himself that were excessive in relation to the danger he apprehended. In his account of how the deceased hit him with a knobkerrie, the accused states that he got hold of the knobkerrie, a fight ensued between him and the deceased until the knobkerrie fell away. After the knobkerrie had fallen away “the accused then punched me. That is when I ended up stabbing the deceased.” This shows that the stabbing took place following the accused being punched because the knobkerrie had fallen away. Evidence has also been led that the accused chased the deceased and the accused does not deny this. This has been corroborated as stated earlier. In fact the accused states in his evidence in chief that he ended up “stabbing the deceased on the shoulder and below the rib cage.” After this, the deceased jumped up and started running away.
It was when the deceased was running away that he was trapped by something and fell on the ground. The question this court is asking itself is if the accused had inflicted the stab wounds whilst the accused and the deceased were fighting each other, what was the need for the accused to then continue chasing the deceased, because in this Court’s view he had protected himself enough from the alleged harm? In its submission on the defence of self-defence, the Crown argued that the issue of self-defence as alleged by the accused is a fabrication. The Crown further submitted that the Crown’s evidence reveals that the accused left his homestead with the sole intention to murder the deceased. This court maintains that the totality of evidence establishes that even if there was room for the defence of self-defence to be considered, the means used by the accused in defending himself in relation to the danger was excessive. Therefore it is this court’s humble view that self-defence does not arise as a reasonable possibility in this matter. See Siphamandla Henson Dlamini (Supra).
 On the issue of actual intention to commit murder and the accused’s assertion or defence that he never planned to kill the deceased as earlier highlighted in paragraph 45 of this judgment, it is important for this court to first of all deal with the principles governing intention, whether actual or legal, before same are applied to the facts in the present case. Principles of culpa will also be covered.
 In the case of The Director of Public Prosecutions V Oscar Pretorius (supra), His Lordship Leach JA observed in page 7 that:-
“Murder is the unlawful and intentional killing of another person. In order to prove guilt of an accused on a charge of murder, the state must therefore establish that the perpetrator committed the act that led to the death of the deceased with the necessary intention to kill, known as dolus. Negligence or culpa, on the part of the perpetrator is insufficient.”
The Learned Judge continued to say that:-
“In the case of murder a person acts with dolus directus if he or she committed the offence with the object and purpose of killing the deceased. Dolus eventualis on the other hand, although a relatively straight forward concept, is somewhat different. In contrast to dolus directus, in a case of murder where the object and purpose of the perpetrator is specifically to cause death, a person’s intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore “gambling” as it were with the life of the person against whom it is directed.”
 In other words dolus directus is all about the perpetrator purposing to cause death whereas dolus eventualis is about the perpetrator foreseeing the risk of death occurring, but continues to act, reckless as to the consequences. The perpetrator must therefore (1) foresee the possibility of death occurring, and (2) reconcile with that foreseen possibility. In the case of Sihlongonyane V Rex Criminal Appeal 40/1997, His Lordship Tebbutt JA made a clear distinction between dolus eventualis and culpa when He said at page 5 that:-
“It will be appreciated that the cardinal point to the whole concept of dolus eventualis is the element of foresight. It is perhaps this that has caused the greatest confusion in deciding whether the Crown has established dolus eventualis or merely culpa, due it would seem, to a lack of a proper appreciation of the distinction between the two. In the case of dolus eventualis it must be remembered that it is necessary to establish that the accused actually foresaw the possibility that his conduct might cause death. That can be proved directly or by inference, i.e. if it can be said from all the circumstances that the accused must have known that his conduct could cause death, it can be inferred that he actually foresaw it. It is here that the trial court must be particularly careful. It must not confuse “must have known,” with “ought to have known.” The latter is the test for culpa. It is an objective one. In our law it is whether a reasonable person in the position of the accused ought to have foreseen the consequences of his conduct.”
 Courts have established the fact that subjective foresight like any other factual issue may be proved by inference. To constitute proof beyond reasonable doubt the inference must be the only one which can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee, even if he ought to have done so, and even if he probably did so.
 A more practical and pragmatic approach to the issue of mens rea or intention was established by His Lordship Maphalala M.C.B, J as He then was, in the High Court case of Rex V Sabelo Kunene Case No. 445/2011, where His Lordship observed at page 18 what He said earlier in the case of Shongwe V Rex Criminal Appeal No. 24/2011 at paragraph 46, that:-
“46 In determining mens rea in the form of intention the court should have regard to the lethal weapon used, the extent of the injuries sustained as well as the part of the body where the injuries were inflicted. If the injuries are severe such that the deceased could not have been expected to survive the attack and the injuries were inflicted on a delicate part of the body using a dangerous weapon, the only reasonable inference to be drawn is that he intended to kill the deceased. See also the cases of Ntokozo Adams V Rex Criminal Appeal No. 16/2010 and Xolani Zinhle Nyandeni V Rex Criminal Appeal No. 29/2008.”
 In applying the principles adumbrated above to the present case, the evidence led establishes that the accused committed the offence of murder with the necessary mens rea or intention in the form of dolus eventualis. What makes the court comes to this conclusion is that:-
(a) Evidence has been led to show that notwithstanding that the accused had inflicted the wounds on the deceased, he still pursued the deceased whilst the deceased was trying to run away from the accused;
(b) Evidence has been further led to show that the weapon the accused used was lethal. PW 4 stated in his evidence in chief that the knife that was used by the accused in committing the offence was a man made one and more or less the size of an Okapi. In the police official register of exhibits, which register was shown to the Defence counsel and he did not object to it being handed in as an exhibit, it was entered as entry no. 11 of 2009 described as 1 x man made knife. There was a stab wound not only on the accused left shoulder, but even below the rib cage. This wound was fatal and according to the medical report, it is the one that led to the death of the deceased. Although the defence counsel wants to convince the court that the weapon used had not been exhibited before court for the court to see it, this is not a material fact to deny the fact that a lethal weapon was used. The medical report clearly shows that the penetration below the rib cage was so fatal that the deceased could not have survived even if he had received immediate medical attention.
(c) Evidence has been led that even if the accused was acting in self-defence, the mechanism used was excessive. In his own testimony, the accused stated that he stabbed the deceased after the deceased had punched him. The knobkerrie was no longer in the hand of the deceased. Not only was the mechanism used excessive, the injuries sustained by the deceased were serious (especially the one below the rib cage because it penetrated the lung) and the deceased could not have been expected to survive the attack. The infliction also took place in a very delicate part of the body as shown by the medical report. PW 2 made mention in his evidence under cross examination by the Defence that there was injury to the lung. Instant death is possible in an instance of this nature. The witness further said that the same applies to inflicting a wound in the heart and in the splin.
 In Sihlongonyane V Rex (Supra) Tebbut JA summarised the essential
elements of dolus eventualis at pages 4 and 5 as follows:
“They are: 1. Subjective foresight of the possibility, however, remote, of the accused’s unlawful conduct causing death to another. 2. Persistence in such conduct despite such foresight. 3. The conscious taking of the risk of result and death, not caring whether it ensues or not. 4. The absence of actual intent to kill. In the case of dolus eventualis it must be remembered that it is necessary to establish that the accused actually foresaw the possibility that his conduct might cause death. This can be proved directly or by inference, i.e. if it can be said from all circumstances that the accused must have known that his conduct could cause death, it can be inferred that he actually foresaw it ….. The issue of dolus eventualis is whether the accused himself or herself foresaw the consequences of his or her act…………”
The case at hand falls squarely within the test of dolus eventualis as established by the above mentioned legal authorities.
 It is trite law in murder cases that the Crown must prove beyond reasonable doubt the commission of the offence by the perpetrator. In order to prove guilt of an accused person, the Crown must establish that the perpetrator committed the unlawful act that led to the necessary intention to kill known as dolus. It is this court’s view that the Crown has succeeded in this regard in respect of the case at hand. It is not in dispute that the deceased was stabbed two times by the accused on the left shoulder and on the left side below the rib cage. It is the latter stab wound that caused the death of the deceased according to the medical report compiled by the medical doctor, who is Principal Witness 2 in this case. PW 1, PW 4 and PW 5 also saw these stab wounds. Although it is unclear as to who, between PW1 and PW3, witnessed the actual stabbing, evidence has been led that the actual stabbing did take place and it was caused by the accused. The accused does not deny this in his evidence in chief, but claims that he was doing so in self-defence.
 The Crown has successfully proven that self-defence cannot hold as the means used in averting the harm was excessive. The Crown has made an attempt to establish that the intention on the part of the accused to cause the death was pre-meditated and pre-planned. Therefore the accused must be found guilty of murder based on dolus directus. The court has assessed all the evidence and has concluded that the intent was in the form of dolus eventualis. The Crown has also proven that the means that were used by the accused to try to save the life of the deceased after the stabbing, which included organising transport to take the deceased to hospital, could not help rescue the situation because of the infliction of a wound that was fatal in nature. On the issue of the evidence of the pointing out of the weapon that was used to cause the death, the Crown established through PW 4, that the accused was cautioned. This witness maintained this position even under cross examination. In its defence the accused raised the point that the weapon was brought to the accused by his son, Andile Mamba. The accused went further to say that after Andile had handed over the weapon to the accused, the accused then handed it over to PW 4. It is this court’s view that much as the evidence of pointing out amounts to admission by conduct and should therefore be made freely and voluntarily there should be a further consideration, being that the totality of the evidence establishes the commission of the crime by the accused. The issue of whether the weapon was brought to the accused by Andile does not detract from the fact that there was a pointing out by the accused of the weapon. The accused’s version simply relates the sequence of events as opposed to total denial of the pointing out.
 Accordingly, I found the accused guilty of murder as charged.
JUDGE OF THE HIGH COURT
FOR CROWN: E. MATSEBULA
FOR DEFENCE: S. JELE