IN THE HIGH COURT OF SWAZILAND
Criminal Case No. 15/2010
In the matter between
Nkosivile Goodwill Lushaba
Neutral citation: Rex v Nkosivile Goodwill Lushaba (15/2010)  SZHC 157 (25 July 2017)
Coram: MAMBA J
Heard: 03 - 04 April 2017, 06, 07 & 27 June 2017
Delivered: 25 July 2017
 Criminal Law – Police Officer fatally wounding fleeing jaywalker – Accused claiming involuntary action on his part, on being throttled by deceased. Deceased shot from the back whilst running away – self defence or involuntary action by accused rejected.
 Criminal Law – Police Officers conspiring to make false report of shooting and creating false scene of crime – truth emerges – Accused guilty of murder.
 The accused, a Police Officer within the Royal Swaziland Police Services, has been charged with the murder of Bheki Kunene. It is alleged by the Crown that the crime was committed by the accused on or about 26 December 2009 at or near Dvokolwako area, in the Manzini region.
 The Crown alleges that the deceased died as a result of gunshot or fire-arm injury inflicted on him by the accused on the said date.
 According to the Police Pathologist Dr. Reddy, who conducted the postmortem examination on the body of the deceased, the deceased died as a result of or ‘due to fire-arm injury to the trunk’. The Police Pathologist gave evidence as the 7th Crown witness (PW7) and his report was handed in as exhibit C. Dr. Reddy stated that he noted the following ante-mortem injuries on the body of the deceased:
(a) ‘An entry wound of ¾ × ¾cm with inverted margins on the middle portion of the right side of the back, which is the 4½ cm from the midline and 108cm from the heel of the right foot.
(b) An exit wound of 1 × 1cm with everted margins, on the middle position of the right-side of the trunk, 1cm from the midline and 119cm from the heel of the right foot and 18cm from the umbilicus and
(c) a sutured wound of 20cm length in the middle portion of the abdomen along the midline.’
PW7 also observed that the mesenteric blood vessels were ruptured and the liver, gallbladder and biliary passages were ruptured too and so was the right kidney.
 In all, the Crown led eight witnesses in its quest to prove its case. Two of these, namely Mfanaleni Mavimbela (PW2) and Mlungisi Simelane (PW8) both stated that they were present during the shooting of the deceased.
 PW2 was at all times material hereto a Police Officer stationed at Mliba Police Station. He shared a house with the accused. He testified as an accomplice witness and was accordingly warned as such witness. PW2 informed the court that on the night in question, he together with the accused were on duty at the Mliba Police Station. They received two reports of assault with intent to cause grievous bodily harm. One was at Mzaceni and the other one was reported to be at Mandlangemphisi. They went to attend to these incidents; leaving the Police Station at about 11:00PM. The accused was driving the motor vehicle they travelled in.
 PW2 testified that on their way to Mzaceni, they met with an ambulance driving from Mandlangemphisi towards the Dvokolwako Health Centre. They followed the ambulance into the Health Centre and there confirmed that the patient being ferried in that ambulance was one of the two cases reported to the Police Station. From the Health Centre, they proceeded to Mzaceni where they found the complainant, who was one Sofela. He had been seriously injured. They transported him to the Health Centre at Dvokolwako where they were informed that the first victim had been conveyed to the RFM hospital in Manzini. Seeing that Sofela had been seriously injured, the nurses advised the two policemen to take him to the RFM hospital as well but before they could take Sofela in their motor vehicle, the police got an urgent call to go and assist other police officers on a stock theft case at Luve. They rushed to Luve, leaving Sofela at the Health Centre with the nurses.
 On their way back to the said Health Centre, the ambulance from the RFM hospital went past and drove into the Health Centre. This was a relief to them as they thought that the ambulance would then transport Sofela to the RFM hospital and allow them to go to sleep. They nonetheless decided to go and settle this with the nurses who were looking after Sofela. But near the local High School, which is not far from the Health Centre, they came across two men walking towards the Health Centre. One of these men was on the road and the other one was walking off the road on the left hand side. On reaching these men, the accused stopped the motor vehicle and ran towards the man who was on the road and in response the man ran away towards the right hand side of the road. The other man also ran away into the dark. PW2 also got out of the vehicle and followed the accused in an attempt to assist him arrest the man who had been jaywalking on the roadway. PW2 said he suddenly heard the sound of gun fire and the accused gave up the chase. The accused had fired his gun. When PW2 asked him why he had done so, the accused did not respond. He appeared shocked. Both police officers returned to the vehicle not knowing what had become of the men who had disappeared into the dark.
 The Police Officers drove away and passed the Health Centre. The accused then told PW2 that he thought that he might have shot the man who had ran off the road. PW2 then suggested that they must go and ascertain his condition and if necessary take him into the Health Centre for attention. The Police Officers made a U-turn into the Health Centre and there they were advised that Sofela had been conveyed to the RFM hospital. From there they went back to the scene of the shooting but could not find anything there. The place was dark. They left the scene. After debating the issue further, they returned to the scene and found the man, who turned out to be the deceased lying on the ground off the road and bleeding. The deceased repeatedly asked them why they had shot him.
 Eventually the deceased was conveyed by the Police Officers to the RFM hospital. This was, however, after they had debated between themselves on what to do with him. The accused, according to PW2 suggested that he be thrown away to conceal the evidence. At one stage the accused suggested that the deceased be thrown into the nearby Mbuluzi River. The argument by PW2 prevailed or won the day and the deceased was transported to the RFM hospital.
 It is noted here that the Police Officers feared taking the deceased into the Health Centre because the shooting had occurred not far from the said centre. They feared that the guards at the gate to the centre might have heard the shooting and the police would have been the prime suspects thereof.
 At the scene of the shooting and where the deceased was found, he had told PW2 that his name was Bheki Kunene and was from Zandondo. At the RFM hospital PW2 put the deceased in a wheel chair and took him to the emergency unit. He (the deceased was persistently mourning and asking the police why they had shot him. The accused said nothing and appeared profoundly shocked by what had occurred. The personal details about the deceased were furnished to the hospital by PW2.
 When the deceased was admitted into hospital his blood stained t-shirt was left in the police vehicle. When PW2 suggested that the shooting of the deceased should be reported at their Police Station as accidental, the accused objected to this and suggested that it must be reported as part of those two cases that had been reported to the station that night. Accused suggested that he should report that the deceased had been found in a water drain injured. It was again the accused who suggested that the blood stained t-shirt should be thrown away at the place known as Talukatini. PW2 suggested that the t-shirt must be disposed-off at a Jetropa Plantation beyond Croydon, which was closer to Zandondo. They both agreed to this and the t-shirt was deposited there and the police returned to the Police Station. This was after 5:00AM on 26 December 2009. But before returning to the Police Station, the officers agreed that PW2 would write the report on Sofela whilst the accused would report on the deceased.
 Later on that day the RFM hospital reported that Bheki Kunene (deceased) had died of gunshot wounds and not stab wounds as had been reported at the Mliba Police Station by the officers, i.e. PW2 and the accused. PW2 had also reported to the Desk Officer, Edward Dlamini (PW4) that the deceased had been found by the police at the Jetropa Plantation.
 After visiting the family of the deceased at Zandondo and the RFM hospital, PW2 pointed out to PW4 the place where the t-shirt was and where the deceased had been allegedly found. PW4 covered the blood stained t-shirt with leaves and told PW2 that he was securing it for the Scenes of Crime officers who would visit the place the next day.
 Following further questioning by PW4 later that day, PW2 then told the police the truth about how the deceased had been short and how his t-shirt had been discarded at Jetropa Plantation. He recorded a statement detailing how everything had occurred.
 Under cross-examination of this witness, and this was confirmed by PW8, the deceased had taken some alcoholic drinks on the fateful night. PW8 said he was sober and did not drink liquor. PW2 denied that the deceased had manhandled or attempted to manhandle the accused at the scene of the shooting, immediately the accused stopped his vehicle and alighted therefrom.
 PW2 further told the court that the shooting occurred not very far from the gate to the Health Centre, which was lit. He also testified that nearby is the local High School which also had its lights on. In all, he said the scene was not completely dark.
 The evidence of Mlungisi Simelane (PW8) is not on all fours with that of PW2. For instance, PW8 stated that they waived or signaled to the police vehicle to stop as they were hitch-hiking a lift to Zandondo. When the vehicle stopped, Bheki who was on the road advanced towards the driver thereof in a stooping posture – showing respect. It was at that stage, said PW8, that the driver – who was obviously the accused – violently opened the driver’s door and advanced towards Bheki. Seeing that the accused was being violent, PW8 ran away and climbed a pine tree nearby to escape detection by the police. The deceased also ran away.
 PW8 said after the accused shot at the deceased, the accused asked the deceased why he was running away. Bheki did not reply to this but only called out PW8’s name and asked him to help him. It was PW8’s evidence that the police drove away leaving the injured Bheki on the scene. After a while PW8 got off the tree to examine Bheki who was badly hurt and bleeding. Bheki requested him to go and find an ambulance for him at the nearby health centre. As he walked towards the health centre, he saw the police vehicle approach and he took cover amongst some trees next to the road. He confirmed the evidence of PW2 that the police vehicle first drove into the health centre before returning to the scene of the shooting.
 PW8 stated that he reported the shooting to the guards at the gate to the health centre. The guards advised him to wait for the return of the police. The police did not return and he fell asleep and woke up at about 05:30AM. He went to the scene of crime but did not find his companion there. He found blood spots and the sun glasses he (Deceased) wore the previous day.
 PW4, Edward Dlamini essentially confirmed the evidence of PW2 concerning the reports filed by both PW2 and the accused. He also confirmed the report that he received from the RFM hospital following the death of the deceased and the investigation that ensued thereafter, which investigation culminated in the arrest and charging of both PW2 and the accused.
 PW4 also stated that he confiscated firearm PO586 which was used by or issued to the accused on the day in question. Together with officers from the scenes of crime department, he gathered evidential material such as the bloodstained t-shirt, bloodstained grass and empty cartridge at the scene of crime or shooting. These items were sent to the science laboratory for examination and analysis.
 In his expert report, which was not challenged by the defence, Matome Arthur Manyama (PW5) a captain in the South African Police service, stated that the DNA result from the t-shirt matched the DNA result from grass sample. (The blood-stained grass was of course that obtained from the scene of the shooting). The Biology report by PW5 was handed in and marked as exhibit A & B.
 The so-called ballistic examination or analysis report that was handed in by the defence as exhibit D, is in my judgment, worthless. It has no evidential or probative value at all. In fairness to the defence, no reliance was placed on this report. The evidence was therefore irrelevant and thus inadmissible. I shall return to this presently.
 In his defence, the accused testified that on the night in question he was working together with PW2 and as they drove towards the Dvokolwako Health Centre, they came across two persons. One of these persons was walking on the road whilst the other one was on the left hand side of the road, just at the edge. The two policemen agreed to arrest the person who was walking and staggering on the road. The accused was driving the police vehicle. He stopped it and PW2 alighted therefrom and went after the person who was walking at the edge of the road. Immediately the accused set his feet on the tarmac, someone held him by the neck and throttled him. He became weak and was unable to breath. It was dark and he could not see who was his attacker. In all that confusion, he reached out for his service firearm or side arm which was on his hip and fired one shot. He did not realize then that he had shot someone. Both he and PW2 returned to their motor vehicle, not having caught or arrested anyone. He said he was unable to speak or say anything to PW2. PW2 then instructed him to drive into the Health Centre. He was confused and disoriented, such that he found himself driving past the health centre. PW2 alerted him about this and he returned to the health centre.
 Later on they drove out of the health centre and went to the scene of the shooting, but because it was too dark they could not see anyone there nor hear anyone. They again drove away but returned to the scene after driving for about 50m. He shone the lights of the vehicle around the scene as PW2 searched the area. PW2 was able to locate Bheki Kunene and returned with him to the motor vehicle. He was topless and PW2 was carrying a white t-shirt. They took him into the vehicle and transported him to the RFM hospital. There, all 3 alighted from the vehicle and the accused had to abandon his intention to put Bheki on a wheel chair as Bheki was able to move on his own. PW2 escorted him to the emergency unit whilst the accused remained in the police vehicle. When PW2 returned to the vehicle, they drove back to their Police Station. This was after 05:00AM.
 At the Police Station, the accused said, they found PW4 next to his house and PW2 reported to him what had occurred during the night. Later that afternoon they were called to the charge office by PW4 who after questioning them about the person they had taken to the RFM, told them that he was charging them for his murder. The accused testified that he was ushered into an office and caused to write a statement before he was, together with PW2 taken to the Matsapha Police Station.
 The accused denied that he had asked the deceased why he was running away after firing the shot or at any time or stage. He also denied that PW2 had asked him why he had fired his fire arm at the scene. It was the evidence of the accused that on their way to the police station after leaving the deceased at the hospital, it was PW2 who suggested that they should get rid of the t-shirt belonging to the deceased. He did not respond to this as he was still shocked. It was his evidence further that the only light at the scene of the shooting was that provided by their motor vehicle. He said the lights from both the school and health centre were too far from the scene and there was a wall fence and some pine trees in the area which made it difficult for light to penetrate the scene.
 Under cross examination, the accused admitted that in collusion with PW2, he had filed a false police report on what had happened to the deceased; and further where the deceased had been found. The accused also admitted that the deceased had died as a result of the fire arm injuries inflicted on him by him. He stated, however, that he was confused or traumatized at the time he fired the shot as he found himself being suddenly strangled by some unknown person in the dark.
 Police Officer 3337 Inspector Harry Madonsela was the second defence witness. He testified that he has about 16 years’ experience in the Ballistics Section of the Royal Swaziland Police Service and received training in both Russia and the Republic of South Africa. The nub of his evidence is that the spent cartridge that was retrieved from the scene of the shooting was not fired by or from the firearm held and used by the accused at the time. His report was handed in as exhibit D herein.
 Inspector Madonsela’s evidence is not worthy of any credence. It is substantially flawed. It was incompetently and ineptly done. First, exhibit D, does not contain the two cartridges that were being compared by this witness. The standard and logical way of comparison is to have both the so-called test cartridge and exhibit cartridge put under the microscope, enlarged and then compared. To have only one photograph is materially flawed because it is not being compared to or with anything else. Both photographs must be presented in evidence before the court for the court to make its own conclusions; where necessary, aided by the evidence of the ballistics expert. It is important to emphasize that the court is not bound to admit or accept the evidence of such expert. This is particularly the case where the evidence is not properly motivated or where the evidence is based or founded on illogical facts or premise. For the conclusion or deduction to be sound, its major premise must be sound.
 In Phinda Elmon Mavuso v Rex (42/2014) SZSC 10 (20 July 2015) Mamba AJA, stated:
‘ Significantly though, PW6 did not make or provide any microscopic photographs depicting what he had observed under the microscope or what he was actually referring to. He merely produced and handed to court the bullet exhibit and test bullet (he had actually fired from the relevant firearm). This is, in my judgment woefully deficient. He had to make and submit to court photographs of both the bullets he was comparing and show, graphically what he was talking about. He had to show to court whatever similarities he had seen. It was these similarities in the two fired bullets that convinced him that indeed the two bullets were fired from the same firearm. He did not do so. His mere say so, was in my judgment insufficient evidence to support the conclusion he wanted the court to believe. Indeed, his testimony in this regard was just a conclusion with no supporting evidence. It cannot be relied upon.
 It is trite law that a court of law is not always bound to accept the evidence of an expert. Sufficient material must be presented to the court in support of the conclusions reached by the expert, before a court may accept and rely on such evidence and conclusions. In the instant case, the witness did not, for example, refer to any striations – those linear marks that are the signature marks by every firearm on every bullet or projectile discharged by it – on the examined bullets which would have established any similarities to lead him to the conclusion that both bullets were fired from the same gun. He referred to no points of resemblance or the minimum of such points that ate needed to establish identity.
 S v Mkhize and Others 1990 (1) SACR 256, is a case in point herein. There the headnote reads in part:
‘One of the expert witnesses was not able to provide reasons for the opinions which he expressed and conceded that he had not taken any photographs of the exhibits of which a positive identification had been made. In the absence of such photographs or of the original exhibits, the court was unable to properly consider those features upon which the witness relied in support of his positive findings.’
At page 263b-64a Boruchowitz J said:
Before evaluating the opinions and findings expressed by inspector Nkuna, it is necessary to say something concerning the basis upon which expert evidence is received in cases such as the present. The use of a comparison microscope for comparing exhibits is a technique which is well known and considered to be reliable. The need to receive expert evidence arises from the fact that the Court, by reason of its lack of special knowledge and skill, in incapable of drawing properly reasoned inferences from the various images which are to be seen under the microscope. Because of the specialized nature of the investigation the Court, with its untrained eye, is hardly in a position to itself, from its own observations, draw any conclusions and is thus dependent upon the opinion of skilled witnesses such as forensic ballistic specialists.
In my view the approach to be adopted when evaluating ballistic evidence appears to be similar to that adopted by the courts in relation to fingerprints evidence. See in this regard R v Morella 1947 (3) SA 147 (A) where Tindal JA, after referring to previous decisions in respect of such matters, said the following at 153:
“…If these decisions were intended to lay down a general rule that the court will not accept an expert’s opinion unless he can demonstrate the points of similarity in such a manner as to enable it to understand them sufficiently to form its own opinion on them, then I disagree. Of course a court should not blindly accept and act on the evidence of an expert witness. It is necessary to get the expert on fingerprints to explain as clearly as possible the nature of the similarities; and as a result of his interrogation or for other satisfactory reasons the court may not be prepared to act on his testimony. There may, for instance be conflicting evidence by two fingerprint experts called on opposite
sides, in which case the court will have to decide whether it can safely act on the evidence of the expert called by the Crown. But the court or the jury in, cases of the present kind, has not the special training to enable it to act on its own opinion; it really decides whether it can safely accept the expert’s opinion.”
See also R v Smith 1952 (3) SA 447 (A) AT 451 A-F.
In R v Nksatlala 1960 (3) SA 543 (a) Schreiner JA at 546 C-E described the approach to be adopted in evaluating fingerprint evidence in this way:
“That is not of great importance since in relation to fingerprint evidence the court is not obliged to form its own opinion, instructed by the expert, as to the identity of the prints (R v Morela 1947 (3) SA 147 (A); R v Smith 1952 (3) SA 447 (a). It is right to recall the remarks of Tindall JA in the former case quoted by Fagan JA in the latter that a court should not blindly accept and act upon the evidence of an expert witness, even a fingerprint expert, must decide for itself whether it can safely accept the expert’s opinion. But once it is satisfied that it can so accept it, the court gives effect to that conclusions even if its own observation does not positively confirm it. Where, as here, there is only one fingerprint, where it does not appear to be an ideally clear one, and where the points of resemblance that are visible are near to the minimum in number, it is of the greatest importance that the expert evidence, whether it is that of one or more witnesses, should be closely sruitinised to eliminate as far as humanly possible all risk of error.”
See also R v Theunissen 1948 (4) 43 (K) where De Villiers AJP declared:
‘In my opinion, and that is borne out by authority, he could have deposed to the facts which he had found and upon which he relied as the foundation for the opinion, unaccompanied by the foundation on which it is based, is again of no value to the judicial officer who has to make a finding on it.’
These observations are apposite in this case. Consequently, I cannot place any reliance on the evidence of Inspector Madonsela. Again, as already stated above, Defence Counsel did not urge the court to accept this evidence. The accused was himself, the evidence shows, baffled by Inspector Madonsela’s conclusion.
 Whilst there are discrepancies between the evidence of the two eye witnesses, namely PW2 and PW8 as to what actually happened immediately before and during the shooting of the deceased, these discrepancies do not go to the root of the actual shooting. They are matters of detail. One has to take into account of course the fact that the shooting occurred at night and the light at the scene was not altogether sufficient for someone to see everything taking place. For instance, PW2 said he alighted from the motor vehicle to assist the accused in apprehending the deceased who was loitering on the road; PW8 said PW2 did not but remained in the police vehicle. PW2, contrary to the evidence of PW8, did not testify that the deceased called out to PW8 to help him after being shot. PW2 also did not testify that the accused enquired from the deceased why he was running away, immediately after shooting him. Pw8, however, said he did so.
 Both PW2 and PW8 denied that there had been a scuffle between the accused and the deceased either immediately before the latter was shot or during the actual shooting. The evidence clearly shows or proves that the deceased was shot whilst facing away from the accusing. Exhibit C by PW7 indicates that the entry wound was at the back. This corroborates the evidence of PW2 that the deceased was shot by accused whilst running away from him. At that time, the deceased posed no threat to the accused. The spent cartridge was found off the road, suggesting that that is the spot where the shot was fired.
 I accept the evidence that the initial intention by both police officers was to arrest the deceased for loitering or jaywalking on the road. There was, however, absolutely no justification for the accused to fire a gun at the fleeing deceased. Even if one were to accept that he fired into the dark, he surely must have realized that by so doing he might fatally injure the deceased in the process.
 In firing at the deceased in the manner described above, the accused realized or appreciated that he might fatally harm the deceased, nonetheless he persisted in doing so reckless whether death was the ultimate result of his act or not.
 That the accused was attacked and strangled or throttled by the deceased at the time of the shooting or at any stage is a clear fabrication by the accused. Such a story or version cannot in the circumstances of this case be said that it may be reasonably possibly true. It is false and is accordingly rejected. In R v Mbhekeni Dlamini (404/2010)  SZHC 51 (20 March 2017) this court stated, and this is repeated herein:
‘ In all the circumstances of this case, the evidence by the accused cannot reasonably possibly be true. It is false and is hereby rejected. In Rex v Masinda Cower Dlamini & 5 Others (77/2013)  SZHC 236 (15 November 2016), this court stated:
‘ There is, however, no rule of law that enjoins the prosecution to establish its case beyond the shadow of a doubt. It has to do so beyond reasonable doubt. Malan JA in R v Mlambo 1957 (4) SA 727 (A) formulated the test as follows:
‘In my opinion, there is no obligation upon the crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused.
An accused’s claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case.’
And Denning J in Miller v Minister of Pensions  2 ALL ER 372 (KB) at 373 eloquently said:
‘The evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’
 Again, not long ago, this court stated:
‘ In S v Sithole and others 1999 (1) SACR 585 the headnote reads as follows:
“There is only one test in a criminal case, and that is whether the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that an accused is entitled to be acquitted if there is a reasonable possibility that an innocent explanation which he has proffered might be true. These are not two independent tests, but rather the statement of one test, viewed from two perspectives. In order to convict, there must be no reasonable doubt that the evidence implicating the accused is true, which can only be so if there is at the same time no reasonable possibility that the evidence exculpating him is not true. The two conclusions go hand in hand, each one being the corollary of the other. Thus, in order for there to be a reasonable possibility that an innocent explanation which has been proffered by the accused might be true, there must at the same time be a reasonable possibility that the evidence which implicates him might be false of mistaken. Whichever way one phrases the test, it is to be applied upon an assessment of all the evidence, and not by a process of piecemeal reasoning. In other words, it cannot be applied by looking only at the evidence of the state, or the accused, in isolation. It may be that the evidence of the state is such that the conflicting evidence of the accused must, by process of logical reasoning, be untrue; or it may be that the evidence of the accused is such that a possibility that it may be true cannot be excluded by the state’s evidence; but in either event a court must bear in mind all the evidence when reaching the appropriate conclusion.”
And in S v Van der Meyden 1999 (1) SASV 447 (W), 1999 (2) SA 79 (W) the court stated as follows
“It is difficult to see how a defence can possibly be true if at the same time the state’s case with which it is irreconcilable is “completely acceptable and unshaken.” The passage seems to suggest that the evidence is to be separated into compartments, and the defence case examine in isolation, to determine whether it is so internally contradictory or improbable as to be beyond the realm of reasonable possibility, failing which the accused is entitled to be acquitted. If that is what was meant, it is not correct. A court does not base its conclusion, whether it be to convict or acquit, on only part of the evidence. The conclusion which it arrives at must account for all the evidence. …
I am not sure that elaboration upon a well established test is necessarily helpful. On the contrary, it might at times contribute to confusion by diverting the focus of the test. 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 it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false; some of it might found to be unreliable; and some of it might be found to be only possibly false or unreliable; but none of it might simply be ignored.” ’
That was in R v Phumelele Lindiwe Dlamini and 3 Others (320/2007)  SZHC 204 (13 October 2016). The evidence by the accused is palpably false and I reject it.’
 From the above analysis of the facts and the applicable law, I hold that the Crown as proven beyond any reasonable doubt that the accused had the requisite mens rea in the form indirect intention, in bringing about the death of the deceased. I cannot agree with Counsel for the defence that he is guilty of the lesser crime of Culpable Homicide. The accused did not fail to foresee that which a reasonable person would have foreseen. On the contrary, he realized that his actions might kill the deceased but went ahead and committed such action. The result was the death of the deceased.
 I am satisfied that PW2, Mfanaleni Mavimbela, gave a truthful and satisfactory account of what took place in respect of the death of Bheki Kunene. I therefore grant him the necessary indemnity against prosecution for his involvement in this case.
FOR THE CROWN: MR P. DLAMINI
FOR THE DEFENCE: MR B. SIMELANE