IN THE HIGH COURT OF SWAZILAND
Case No. 379/2013
In the matter between
Mfanukhona Simelane & 2 Others
Neutral citation: Rex v Mfanukhona Simelane & 2 Others (379/2013)  SZHC 195 (20 September 2017)
Coram: MAMBA J
Heard: 02-03 August 2017
Delivered: 20 September 2017
 Criminal law – Arson – essential elements thereof. The crime of Arson consists in unlawfully setting an immovable structure on fire with intent to injure the owner thereof. The property destroyed must constitute immovable property. Three factors usually regarded are (a) whether the nature of the thing is such that it is capable of acceding to the immovable; (b) whether the thing is effectively annexed physically or by weight; (c) whether the owner of the thing intended the annexation to be permanent.
 Criminal law and procedure – competent verdict on a charge of arson – court may return a verdict of guilty of malicious damage to property where the evidence does not establish that the property burnt down was immovable. This is in terms of section 194 of the Criminal Procedure and Evidence Act 67 of 1938 – essential elements of malicious damage to property are present in the crime of arson.
 An ex tempore judgment was handed down in this case on 03 August 2017, immediately after hearing submissions. The accused persons herein, I have been advised, have appealed that judgment. What follows hereinbelow are my reasons for the judgment handed down on 03 August 2017. This judgment also incorporates the reasons for the sentences that were imposed on the accused.
 On the first count, all three accused persons are charged with the crime of attempted murder. It is alleged ‘that on or about 02 June 2013 and at or near Mpakeni area in the Shiselweni Region, the said accused persons each or all of them acting jointly in furtherance of a common purpose, did unlawfully set fire on a house whilst one Bethusile Dlamini was inside, with intent to kill her and did thereby commit the crime---.’
 Count 2 also alleges the crime of attempted murder. The allegations are the same as in the first count save that the complainant is one Jabhile Ndlangamandla.
 On count 3, the accused face a charge of arson. The Crown alleges that on the date and place mentioned above, they set on fire six (6) immovable houses valued at E50,000-00 which were the property of Mandoyi Dlamini. Again, count 4 alleges a crime of arson. This time two houses valued at E10,000-00 were burnt down. They belonged to Mcolisi Dlamini (PW2). There was no contest or issue on this count as all three accused persons pleaded guilty to it. They were accordingly found guilty as charged. I shall return to this count briefly hereunder.
 The first and third accused are also charged with the crime of assault. They are accused of having assaulted Bethusile Dlamini on the date already stated. This is count 5. The last count alleges that the first accused unlawfully and intentionally assaulted Mandoyi Dlamini at Mpakeni area on 02 June 2013. Both the first and third accused denied these charges.
 The Crown led a total of seven witnesses in its quest to prove its case, whilst the accused gave evidence under oath in their own defence.
 Bethusile Dlamini is the wife of Mandoyi Dlamini. They are the complainants in counts 1 and 3 respectively. Bethusile was the first witness to give evidence for the Crown whilst her husband was the third. Bethusile testified that on 02 June 2013, a Sunday, she was at her home at Mpakeni together with Jabhile Ndlangamandla. Jabhile was her guest and her neighbour. Bethusile told the court that on the day in question her husband was attending a wedding ceremony at a relative’s home not very far from her home. Whilst seated under a marula tree in her yard, the first accused who was in the company of the second accused came running into her home. He was armed with two sticks and his clothes were blood-stained or soaked in blood. The two appeared to be in a hurry and asked for the whereabouts of her son Mthembeni Dlamini.
 Bethusile testified that when she told the said two young men that she did not know where Mthembeni was, the first accused (Mfanukhona) suddenly hit her with a stick on her shoulder and also poked her with the stick in her stomach or abdomen. She then cried out for help. The family dog appeared and started barking at the two accused persons, in particular, the second accused who was some distance away from her. The dog prevented the second accused from getting close to the witness.
 Mandoyi (PW3) who was at the nearby homestead heard the alarm being raised by his wife and rushed to the scene. On arrival at his home he found Bethusile, Jabhile, first and second accused persons. The first accused asked him where Mthembeni was. When PW3 denied knowledge of Mthembeni’s whereabouts, the first accused immediately hit PW3 with a stick on his shoulder and forearm. PW3 managed to dispossess the first accused of the stick and struck him once with it before PW1 intervened and persuaded Mandoyi not to hit the accused further. Whilst all this was going on, the second accused was being held at bay by the family dog.
 After being hit with his own stick by PW3, the first accused ran away, out of the homestead together with the second accused. Immediately thereafter, the third accused appeared at the scene, near the cooking hut or kitchen. He seemed or appeared angry or at least agitated. He accused Mandoyi of having killed his nephew and demanded that PW3 should kill him as well. PW3 told A3 that he had no reason to accede to his demands. Again, it was PW1 who prevailed on PW3 and persuaded him to remain calm and not react violently as a result of the provocation by the third accused. Suddenly an angry crowd of people entered the homestead. They threw stones towards them. The two women – Bethusile and Jabhile ran into one of the houses – on the instruction of PW3. Pw4 helped them into the house after telling the accused persons not to attack them.
 PW4, Nonhlanhla Fortunate Maphalala, testified that she, like the other persons who went into PW3’s homestead that day, was attracted to the scene after word had been relayed in the neighbourhood that PW3 had assaulted the first accused (A1). PW4 left PW3’s homestead after persuading the three accused persons to leave the said homestead and not to do anything illegal there. After returning to her home, she saw flames of fire and fumes or column of smoke in the vicinity of PW3’s homestead. She was unable to say who or what had caused the said fire.
 The evidence of PW3 was substantially the same as that of his wife (PW1). One notes and records that PW3 told the court that A1 was armed with two sticks. He also testified that he had caused A1 to fall to the ground during the tussle for the possession of the sticks held by A1. He (PW3) confirmed hitting A1 with the stick once after gaining possession thereof. Mandoyi further stated that the family dog had left the scene on his arrival at the homestead and so had the other boy who was with A1.
 Again, Mandoyi corroborated PW1 that they had been pelted with stones by the murderous crowd. He was unable to see though, who amongst the crown had done so. After escaping from the crowd, he returned and found that six of his houses had been completely gutted by fire and razed to the ground together with all that was inside them.
 Some of the walls of the houses were built of brick and mortar and others were of poles or timber and mud. One house had a roof of corrugated iron sheets whilst the rest were grass thatched. PW3 was able to identify the two sticks that he disarmed the first accused of. These were handed in by PW7 as exhibits 1 and 2 respectively.
 From the summary of the evidence as stated above, it would appear that there was a spontaneous uprising of the crowd in the area after word or information had circulated that Mandoyi had hit the first accused. There is no evidence that the people who gathered at Mandoyi’s homestead acted jointly or in furtherance of a shared or common purpose. There is further, no evidence that these people acted or were acting on the direction or instigation of anyone and what their objectives were. Furthermore, there is absolutely no evidence as to who set alight the houses belonging to PW3. Neither PW1 nor PW3 were able to witness this. PW4 could not tell either. The evidence by PW4 is that she was able to persuade the accused persons who had gathered at PW3’s homestead, to leave that homestead. They then assembled on the road outside the said home, with the other people who had gathered there.
 Mcolisi Dlamini gave evidence as the second Crown witness. He is the son of PW1 and PW3. He is the complainant in respect of count four. He testified that two of his houses were gutted by fire together with their contents. These houses had walls made of stone, poles and mud. They were grass thatched. He estimated the value of the property destroyed in the fire to have been about E10, 000-00. This evidence was not challenged by the defence. As stated above, all three accused pleaded guilty to this charge. The accused also confirmed in their evidence in defence, that they had indeed set these houses on fire on the relevant occasion.
 For the reasons, principally in the preceding paragraph, I ruled that there was no evidence implicating the accused persons in respect of counts 1, 2 and 3. They were accordingly acquitted and discharged thereon at the close of the Crown case. I further ruled that the third accused person, Sicelo Dladla, had no case to answer in respect of count 5. The evidence by PW1 did not implicate him. In fact there was not an iota of evidence suggesting that he ever assaulted PW1 in this case.
 The accused persons denied that they had assaulted the complainants in counts five and six. As already explained above, the third accused was acquitted and discharged on count five at the close of the Crown case.
 The evidence of both PW1 and PW3 is straight forward, credible and reliable. Both told the court that they were assaulted by the first accused at the relevant time. The assault on PW1 prompted the return to his home and intervention by PW3. PW3 had a lawful excuse to intervene and come to the aid of PW1 who was being physically molested by A1. PW1 was being attacked at her own home. She was being attacked for telling A1 that she did not know where her son Mthembeni was at the time. The attack on her was clearly unlawful and so was the attack on PW3. PW3 was attacked and assaulted for the same reason as his wife. He was entitled in law to defend himself and his wife under the circumstances.
 The first accused is therefore guilty as charged on counts 5 and 6.
 The only issue that merits further consideration in respect of count four (4) is whether the two houses described by Mcolisi (PW2) were immovable structures to ground or found a charge of Arson. In Obert Kunene and Others v Rex 1970-1976 SLR 21, the court on appeal substituted a conviction for Arson with that of malicious damage to property because there was no evidence that the huts burnt down were immovable property. The court did so in terms of Section 194 of the Criminal Procedure and Evidence Act 67 of 1938 in view of the fact that the elements of malicious damage to property were all contained in the charge of Arson as alleged in the charge sheet.
 In R v Dumsane Solomon Dlamini 1979-1981 SLR 193 at 194A-E, the court per Cohen J stated as follows:
‘The crime of arson has been defined by PMA Hunt in South African Criminal and Procedure Vol II 768 as consisting in “unlawfully setting an immovable structure on fire with intent to injure another”. Academicians have argued that it may well have been better policy to regard any building used as a dwelling or for the storage of property as sufficient, even if not technically immovable (ibid 798). Nevertheless as the law stands the demolished property must constitute immovable property as understood in our law. Three factors usually regarded are: (i) whether the nature of the thing is such that it is capable of acceding to the immovable; (ii) whether the thing is effectively annexed physically or by weight; (iii) whether the owner of the thing intended the annexation to be permanent. See Hunt at 769 and MacDonald Ltd v Radin N.O. And The Potchefstroom Dairies and Industries CO Ltd1915 AD 454 at 460. See also R v Mataung 1953 (4) SA 35 (O) where a two judge court held in an arson case that a “native” grass hut had in the absence of evidence that the hut was of immovable nature, not been proved to be an immovable structure. The main ground for this conclusion, as I read this judgment, was that there was no evidence as to the nature of the attachment of the hut to the ground as well as an absence of evidence as to whether the hut could be removed without causing serious damage and with what purpose and by whom it has been erected. In Standard-Vacuum Refining Co of SA (PTY) Ltd v Durban City Council 1961 (2) SA 669 (A) van Winsen AJA dealt fully with this subject, especially at 677 et seq. In order to ascertain whether the intention by the owner was to annex the building permanently to the ground according to the learned judge at 678A regard must be had to the following physical features, namely, “the nature of the movable, the method and degree of its attachments to the land or other immovable and whether it can be readily removed without injury to itself or to the land or immovable to which it is attached”. He goes on to state at 678B: “If, however, an examination of the physical features produces an equivocal result in the sense that from the examination of such features, no inference can be drawn that the attachment was made with an intention of permanency or otherwise, the intention of the annexor may be decisive”.
That is not the case in this matter. The Crown witnesses were able to describe the relevant houses. They were not your ordinary stick and mud bee-hive huts. The walls were made of poles that were fixed to the ground, stones and mud. They could not, in the circumstances, be readily moved without damage to themselves or to the land to which they were affixed or attached.
 For the foregoing, I concluded that the houses in question were immovable and thus the crime of Arson had been proven beyond any reasonable doubt.
 In considering sentence, the court took into consideration all the relevant personal circumstances of each accused. They were all relatively young at the time of the commission of the offences. They were first offenders. They acted as a group and in an environment that was emotionally charged. There was a big crowd which supported them in their cause. Their relative had been recently stabbed and killed by the family of the complainants. PW2 or and his brother Mthembeni were allegedly responsible for this attack. The accused obviously felt or thought they were justified in avenging their deceased relative. They were, however, wrong in this case and that is why they were convicted. The court also took into account their respective pleas of guilty on count four.
 The court was, however, alive to the fact that the accused had taken the law into their own hands by resorting to self-help. Such an attitude cannot be countenanced by the court. To do otherwise would lead to anarchy and a break-down of law and order in the community. Also to be noted is the fact that the accused burnt down the complainant’s houses and all their contents. This was virtually all that the complainant had at his home; apart from the few personal possessions he had with him at his work place at Mhlume.
 At the end of the day, there was no indication that any of the accused played a bigger or leading role in this fracas. It was merely a leaderless trio of youthful individuals who went berserk or went on a rampage. Whilst there was therefore need for individualization of sentence, there was none for differentiation of same.
For the Crown: Mr. P. Mkhatshwa
For the Defence: Mr. S. Maphalala