IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE Criminal Case No: 41/13
In the matter between:
SABELO SIGUNUGUNU LUBISI
Neutral Citation : Rex v Sabelo Sigunugunu Lubisi (41/13) 
SZHC 243 (28TH NOVEMBER 2016)
Coram : MABUZA - J
Heard : 1/8/2016; 9/8/2016; 27/9/2016.
Delivered : 28 NOVEMBER 2016
Criminal Law: Accused charged with attempted murder – Intention
not proved – Acquitted of Murder and convicted of Culpable Homicide.
 The Accused was charged with the crime of murder in that on or about the 13th December 2012 at or near Mashobeni area in the Hhohho region, the said accused person did unlawfully and intentionally kill Gcina Zamcolo Dlamini.
 When the charge was put to him the Accused pleaded not guilty.
 The Crown paraded 6 witnesses and the defence one witness.
 Dr. Komma Reddy the Government pathologist (PW1) testified that he conducted the postmortem on the deceased on the 19th December 2012 and that the cause of death was due to injury to the head. He prepared a report wherein he recorded his findings. He handed in the report which is Exhibit A. He noted the following ante mortem injuries:
1. Sutured wounds of 7 cms length and 6 cms length present on the middle
portion of the top of the head.
2. Sutured wound of 11 cms length present on the front and middle portion of the left upper arm.
3. A surtured wound of 4cms length, present on the front portion of the left upper arm.
 He informed the Court that a head has twenty bones. That all twenty bones of the deceased were fractured namely the parietal bones, temporal bones and sphenoid bones. That the brain was disrupted and thrown out of the skull.
 He stated that the injuries were consistent with a heavy blunt object such as a stone, steel or rod.
 Sifiso Methula (PW2) testified that on the 13th December 2012 at about 8.00 pm. he witnessed the Accused assaulting his girlfriend. They carried the fight into the house. The deceased arrived and instructed one Hlobisile to call the uncle to the Accused. He wanted to report that the Accused had earlier assaulted him at a drinking spot.
 As he was talking to Hlobsile the Accused came out of the house saw the deceased and exclaimed “you are here!” He then assaulted the deceased with fists and kicks until the deceased fell to the ground.
 While on the ground the Accused pulled a one metre log from a house that was falling apart and hit the deceased on the head until his skull cracked. He then said that he was going to fetch a stick because the “dog” (meaning the deceased) was not dead. But when he returned a Shongwe man stopped him from assaulting the deceased further.
 PW2 says that he was able to witness the assault on the deceased because he was returning home in a kombi (public transport) and its lights were directed to where the assault was taking place. The kombi was stationery and was four metres away from the scene.
 He identified the log which was in Court. He says that the Accused struck the deceased several times with the log. He also did a dock identification of the Accused.
 The assault on the deceased happened at a local Mamba homestead where PW2 resided. The Accused also resided there. Hlobsile also resided there as it was her parental home.
 During cross-examination he re-iterated the events he had narrated in his evidence in chief. It was put to him that the Accused hit the deceased with an avocado log or branch and not the log before Court. He denied this. It was also put to him that it was the deceased who assaulted the Accused with a stone and as a result had lost some teeth. PW2 denied this.
 It was put to PW2 that the Accused assaulted the deceased four times; two on the left arm and one on the right arm and one on the head. PW2 denied this.
 Hlobsile Mamba (PW3) corroborated the evidence of PW2 that she witnessed the Accused assaulting his girlfriend on the material day. And that the deceased arrived and asked her the whereabouts of the Accused’s uncle as he wanted to report the Accused who had earlier assaulted him.
 She stated that the Accused overheard them talking. He came to the deceased and asked him if he was still following him. He kicked the deceased and the deceased fell to the ground while continuing to kick him. He picked up a log and assaulted him with it several times on the head. He left to fetch an axe with which to finish the deceased off.
 While he was gone PW3 raised an alarm to the neighbours for their help. She also phoned the deceased’s brother. She too stated that she witnessed the assault with the aid of the lights from the stationery kombi whose lights were on and which lit up the scene. She did a dock identification of the Accused whom she said was related to her. Later on the police arrived. They took the log and the deceased to the hospital as he was still alive.
 6615 Constable Mcolisi Sithole (PW4) testified that on the 8th January 2013 he was on patrol at the Mbabane bus rank where he apprehended the accused who was being sought for the murder of the deceased and he was handed over to the Piggs Peak police. PW4 did a dock identification of the Accused.
 3492 Detective Constable Mandla Malaza (PW5) testified that on the 13th December 2012 he responded to a 999 report and attended the scene of crime. He found the deceased lying down and facing up with severe injuries on his head and was bleeding profusely. He retrieved a log used to assault the deceased and took the deceased to hospital. He was alive. He learnt at the scene that the deceased was assaulted by the Accused who had left the scene. The following day he learnt that the deceased had died. He handed in the log as Exhibit 1.
 4985 Detective Constable Thammy Mabuza (PW6) testified that he was the investigating officer herein. He charged the Accused with the murder of the deceased after collecting him from the Mbabane police. He did a dock identification of the Accused. After PW6 was cross-examined the Crown closed its case.
 The defence case opened with the Accused giving sworn evidence. He testified that on the 13th December 2012, he travelled to Singizile army barracks mess to meet his girlfriend Futhi Magagula with whom he has a child. He found her having drinks with some friends who included the deceased. He bought them three 750 ml. castle beers. He bought some drinks for himself a 750 ml of Klip drift brandy and some beers and went and sat apart from them. They stayed there until about 8.30 p.m.
 After a while Futhi went to the toilet but she took so long to return that he went to look for her. He found her in the company of a man called Mbhensuma Zulu.
 He reprimanded Zulu for speaking with his girlfriend. Zulu went and informed his friends who were three in number among whom was the deceased. They came after him led by the deceased who stated that he should not take advantage of them by coming all the way from Mbabane to take their girlfriends among whom he mentioned Futhi.
 The Accused says that he told the deceased that Futhi was not only his girlfriend but the mother of his child and that he had no intention of fighting and left with Futhi. They went to a Matsebula homestead which is a shebeen. They were hardly there fifteen minutes when the deceased and his friends also arrived.
 The deceased came to the Accused and picked up his booze and insulted him by calling him “sitanyatanya” (meaning big shot). The Accused says that he asked the deceased what his problem was as he had also approached him at the army barracks earlier on.
 The deceased responded that now that the Accused resided in town he was pretending to be clever and yet he had grown up in the village in front of him. He also told the Accused that he could assault and kill the Accused and serve a jail sentence for having killed him.
 The Accused says that these words had a chilling effect on him. More so because the deceased had once been arrested for having stabbed someone at the same Matsebula homestead. He says that the argument between them intensified so much so that the women advised him to take Futhi and the child and leave the place. He did so.
 He says that before he left, they had already fought with the deceased and he had overpowered the deceased and they were separated and the Accused went home.
 Upon arrival at home he found the kombi there and PW2 had arrived but remained in the kombi having some alcohol. He went into a house with Futhi and the child. He says that the lights of the kombi were off. He denies that he assaulted Futhi.
 While in the house he heard some people making noise and went outside to investigate. At the gate he found some people and enquired as to who they were. The deceased replied that it was them.
 He says that he became afraid as his brothers were left at the Matsebula home, his uncle was away and the Accused was the only adult at home.
 He came out running and using a fly kick, kicked one fellow who fell down. The Accused lost his balance and fell down. His assailants kicked him on the mouth.
 He got up, picked up a branch which was next to the house and hit the deceased on the neck and he fell and ran after someone else. He turned back and his assailants pelted him with stones.
 He ran into the deceased who was in the yard and assaulted him on the head and all over the body with the log. He hit him about three times.
 The Accused says that he noticed that the deceased was getting weak and that there were now a lot of people around them. Fearing that he would be assaulted he ran into the house to warn Futhi that they should leave. He stated that he feared that the people would set the house alight with them inside.
 When they left with Futhi and the child they went to a Shongwe house where Futhi and the child spent the night and the Accused spent the night at the home of Abner. He says that he used an avocado log when he assaulted the deceased and he threw it among the firewood at Shongwe’s home. And that the Exhibit before Court is not the one that he used.
 He stated that upon arrest he was taken to a Magistrate where he recorded a statement of the evidence that he had just led before Court.
 The Accused was cross-examined by Mr. Mngometulu.
 The Accused denied that the deceased had died as a result of the injuries he (Accused) had inflicted on him. He also stated that after he had assaulted the deceased he left without ascertaining the extent of the injuries of the deceased. However, when he was asked by the Court what he thought had killed the deceased, he responded that it was the fight they had. The defence closed its case after the Accused was cross-examined.
 Has the Crown proved its case beyond a reasonable doubt? In casu as the charge against the Accused is that of murder. It is important for the Crown to prove the unlawful and intentional killing of the deceased being the elements of murder. See Jonathan Butchell: Principles of Criminal Law (2005) 3rd Edition p. 667 CR Snyman, Criminal Law, 4th edition p. 421.
 The unlawful killing of the deceased was not disputed by the Accused. The Accused admitted that he assaulted the deceased with a log (avocado). He admitted that he struck him on the head and the body. The deceased fell down. He admitted that the deceased died from injuries inflicted on him during the fight. PW1 gave evidence that the deceased died as a result of a head injury that had been caused by a blunt instrument such as a log. PW2 and PW3 also stated that the deceased was struck with a log.
 The issue that is disputed by the Accused is that of intention. The Crown argues that it has proved intention.
 The Crown has asked me to find that intention in the form of dolus directus alternatively dolus eventualis has been proved.
 In Nhlonipho Mpendulo Sithole Case No. 370/2011 (unreported) paragraph 51 the Court stated the position of the law thus:
“… intention consist of dolus directus and dolus eventualis, which both will found the offence of murder, while dolus directus consists of the accused directing his will to causing the death of the deceased, dolus eventualis on the other hand, stems from the accused foreseeing the possibility of his action resulting in the death of another person, however the accused persists in that action and is reckless as to whether death occurs or not”.
 In the case of Thandi Tiki Sihlongonyane, Appeal Case No. 40/1997, Tebutt JA stated the salient elements of dolus eventualis,thus:
“(i) Subjective foresight of the possibility of death however remote, as a result of the accused’s unlawful conduct;
- Persistence in such conduct, despite such foresight;
- The conscious taking of the risk of resultant death not caring whether it ensures or not;
- The absence of actual intention to kill …”
 I am not persuaded that this case fits either profile namely that of dolus directus alternatively dolus eventualis. The facts point in a different direction.
 In as much as the Crown has urged upon me to draw an adverse inference for the failure of the Accused (through his counsel) to put his story to the Crown witnesses. I cannot do so. The Crown has further urged upon me to find the story of the Accused as an afterthought. I cannot do so.
 I cannot hold the Accused liable for the failure of his counsel to put his (Accused’s) story to the witnesses.
 Likewise the story as told by the Accused could not possibly be an afterthought. The story as it unfolded from the Accused is too detailed for him to have made it up and for him to have remembered every single detail as well as he did. I believe his story.
 Furthermore I am reminded of the dicta by my erstwhile brother Masuku J in the case of R v Romao Sitoe. High Court Case No. 142/1999 (unreported) wherein he made reference to the dicta of Nugent J in S v Van der Meyden 1998 (1) SA 447 at p 449 that:
“The onus of proof in a criminal case is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent (see for example, R v Difford 1937 AD at 373). These are not separate and independent tests, but the expression of the same test when viewed from opposite perspectives. In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true. The two are inseparable, each being the logical corollary of the other. In which ever form the test is expressed, it must be satisfied upon a consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation to determine whether there is proof beyond reasonable doubt, and so too does not look at exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true” (my underlining).
 I have weighed the evidence presented by the Crown and find that on its own it has established the guilt of the Accused to a certain degree but not completely. I have also looked at the evidence of the Accused which is in my view exculpatory to a degree. It is the Accused’s evidence as outlined above that persuades me that there was no intention to kill by the Accused.
 There is no need for me to repeat the Accused’s story which must be taken from the time he arrived at the army barracks to when the deceased was fatally assaulted. The drinking of alcohol over such a long period by both the Accused and the deceased added fuel to an already volatile situation. They began at the army barracks and from there continued at the Mamba homestead.
 I am further persuaded again by the dicta of my brother Masuku J in the case of Rex v Johannes Mfunwa Dlamini High Court Case No. 180/99 wherein he makes reference to the Case of Rex v Difford 1937 AD 379 at 373 that:
“It is equally clear that no onus rests on the accused to convince the Court of the truth of any explanation he gives. If he gives an explanation even if that explanation be improbable, the Court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal, …”
 I have already stated supra that I believe the Accused’s story. I find therefore that the Crown has failed to prove the element of intention herein. I accordingly acquit the Accused of the charge of murder and find him guilty of the lesser offence of culpable homicide.
 The Accused is a first offender. He is 34 years old and was 31 years old when he committed this offence.
 He was arrested on the 2nd January 2013 and has remained in custody since the day of his arrest.
 He has two minor children who reside with his parents at Mashobeni North who were dependent on him before his arrest.
 At the time of his arrest he was employed at a car wash in Mbabane.
 He went up to Std. 2 in education.
 The above submissions were made on behalf of the Accused in mitigation of sentence and I shall take them into account when passing sentence.
 Mr. Mngometulu for the Crown pressed upon me that the crime was very serious especially since a human life was lost.
 He also asked me to consider the violence of the assault and that the Accused did not assist the deceased after assaulting him.
 I agree with the Crown that this was a serious offence and violently carried out. The deceased was struck on the head with a log. The head is a very sensitive place.
 I am taking into account the fact that the altercation began at the army barracks, and carried on at the Matsebula homestead and finally at the Mamba homestead. I have to also take into account that there was a lot of drinking over a long period of time and that tempers were very high.
 I have also taken into account the interests of society. Society expects the Courts to give fitting sentences for crimes in order to warn potential perpetrators from committing similar crimes.
 In the circumstances of the case the accused is sentenced to nine (9) years’ imprisonment without an option of a fine. The sentence is backdated to the 2nd January 2013.
JUDGE OF THE HIGH COURT
For the Crown : Mr. Mngometulu
For the Accused : Mr. D. Hleta