IN THE HIGH COURT OF SWAZILAND
Held at Mbabane Criminal Case No. 481/2010
In the matter between:
THOKOZANI JOSEPH SAMSON KING MNGOMEZULU
Neutral citation: Rex vs Thokozani Joseph Samson King Mngomezulu (481/10) 2018 SZHC 125(12 June 2018)
Coram: Hlophe J
For the Crown: Miss E. Matsebula
For the Accused: Mr B.M. Dlamini
Date Heard: 30/04/2018, 2/05/2018, 3/05/2018
Date Handed Down: 12 June 2018
Criminal Law – Murder- Requirements - Whether provocation as a Defense availed the accused – Whether accused’s claim of lack of intention to commit the offence supported by both law and facts.
Accused alleged to have beaten his wife with both a belt and an open hand before banging her head against the wall on several occasions which resulted in what is known as intracranial haemoridge from which she died.
Accused claims to have been provoked by the deceased who was allegedly involved in an adulterous relationship – No proof deceased involved in such a relationship - Assault and eventual killing of deceased not justified in the circumstancies.
Accused also claims not to have intended to kill the deceased who he said he was chastising – Notion when an accused intends the consequences of his actions in law discussed – Conclusion reached that in law the accused intended to kill the deceased.
Accused cannot escape a conviction for the brutal murder of the deceased.
 The accused was indicted for murder it being contended by the crown that on or about the 4th day of December 2008, he unlawfully and intentionally killed one Nokulunga Ndwandwe, who was his wife and thereby committed the crime of murder.
 When trial commenced the accused, who was represented by Mr B.M. Dlamini, indicated that if it were not for the fact that he was facing a murder charge, he would have entered a plea of guilty. He however could not because the law provides that where an accused who is charged with murder pleads guilty, the Court hearing the matter is required by law to enter a plea of not guilty so that the crown can lead its evidence to prove the accused person’s guilt.
 Defence Counsel further informed this Court that the plea they were tendering had been preceded by an engagement with the crown to tender a plea of guilty to culpable homicide which was however not accepted by the crown. I can only comment that from the evidence that unfolded during the trial I cannot fault the Crown for that decision.
 It is otherwise not in dispute that after the accused had pleaded, the crown led the evidence of four witnesses comprising the pathologist who examined the deceased’s corpse; two nephews of the accused who witnessed the incident resulting in the deceased’s death as well as the accused’s sister-in-law who met the accused and his two nephews upon her arriving at the scene where she found the deceased already dead.
 According to PW1, the Pathologist who introduced himself as Dr Reddy, and testified that he held qualifications as such including a 10 year experience in the field, informed the court that he had examined the body of one Nokulunga Ndwandwe, a female adult of about 26 years of age, as he conducted a post morterm. His conclusion was that the cause of death of the deceased was the several injuries the deceased had suffered on her head, which suggested that she had been hit against a blunt object. He had concluded that the cause of death was blood haemoridge into the brain of the deceased. One of these wounds was on the frontal part of the head; the other one was on the side of the head just behind the right ear whilst the other one was on the left parietal and temporal region. There was observed several other superficial injuries comprising contusions and lacerations. The haemoridge into the brain, which could have resulted from any of the tree fatal injuries, was confirmed through the discovery of about 130 ml of blood in the deceased’s brain.
 PW2 and PW3 corroborated each other in all material respects and their testimony was to the effect that the accused and the deceased arrived together from Nhlangano town where the latter had gone to in the morning to apparently meet and welcome the former, her husband who was returning home from the mines of Johannesburg in the Republic of South Africa where he worked. As they arrived on board a Forhire van which was ferrying furniture they had purchased in town for their new house built adjacent to the accused’s parental homestead, they also brought various groceries with them –some for the accused’s mother and the others for their own use.
 Both these witnesses corroborated each other as well that whilst they remained outside the couple’s house where they had assisted them put the groceries the two had purchased from town, and as the last batch of the groceries was being taken into the house by the deceased, they witnessed the door of the house being partly closed. Without any further warning they witnessed the accused using his belt to thrash the deceased, who he also grabbed and banged against the wall on several occasions. After he finally stropped the assault on the deceased, the accused allegedly went out of the house and sat somewhere not very far from the house and started drinking beer from a beer bottle he had brought with himself. The accused was allegedly still continuing with that when the deceased came out and started washing her visibly brutalized face with water. The face was so brutalized that they witnessed some humps around the face and head which was an apparent result of the assaults particularly the bangings of the deceased’s head or face against the wall.
 As the deceased moved back into the house, these witnesses testified to having seen the accused also going back to the house once again, after which a fresh round of assault on the deceased was once again meted out. They precisely watched as the deceased was being banged against the wall once again. These bangings were so sere that some blood stains were emitted/spilled on to the wall and floor of the house. At some point they saw the deceased being hit so viciously that she fell on the frots rock that was kept in the same house. She thereafter fell on the ground from was there after drugged into the centre of the room, where she never moved except lying there helplessly until a pool of blood formed around her head and face. She could not move at that point.
 When the deceased moved out of the house he allegedly informed his three nephews standing there that the deceased was to be taken to hospital by her alleged “husbands” who he did not disclose. He however confirmed his braving killed her. The accused proceeded to his new house where the furniture had been delivered, took with him his bag and readied himself to leave the scene; which he eventually did.
 According to one Lomagugu Mngometulu PW4, who introduced herself as a sister in law to the accused as she claimed to be married to the latter’s brother, she returned from a meeting to discuss the affairs of a food sharing association she was a member to, find the accused and his aforementioned nephews standing. The accused, she said, was at the time carrying his bag and jacket. The latter informed her she had since beaten and killed the deceased (his wife); and expected her to be taken to hospital by her husbands. She clarified he said he had killed her because she was involved in a sexual relationship with the person or people who had been engaged to build the new house they had delivered the furniture to. The accused is said to have informed this witness that he was then leaving that area, to a destination he never disclosed.
 Like PW2 and PW3, this witness, PW4, denied knowledge of my sexual or love relationship between the deceased and anyone else, let alone the person who had been engaged to build their house. These claims had allegedly surprised this witness, PW4, who informed the court that just that morning she had been informed by the deceased that she was to meet the accused and welcome him home, as her husband. She otherwise informed the court of the role she played in reporting the matter to the Police who responded by attending to the scene of crime that day and the following day.
 Constable Thokozani Mhlongo introduced himself as a Police Officer who attended the scenes of crime specialist. He informed the Court he took several photographs which he went on to present before court. Of the deceased’s photographs presented in Court, there were photographs 7, 8, 9 and 10 which showed the injuries sustained by the deceased. The injuries referred to as fatal by the Doctor, are shown on photographs 9 and 10. Otherwise the photographs show vividly the body of the unfortunate victim of the apparent baseless killing. Otherwise photograph 4 shows the stains on the wall which were apparently placed there as the deceased’s head was being banged against the wall.
 The investigating officer, PW5, 4487 Detective Sergeant, Peterson Mavuso, informed the Court that he was at the time based at the Lavumisa Police Station and that he was part of the investigating team in the matter. His investigations implicated the accused, who was found to have already left the country for the Republic of South Africa where he worked. After means were made to have him arrested he was arrested on the 8th December 2015 and eventually extradited to Swaziland, the 2nd December 2016, a year later. At the time he collected the accused from the South African Police at Ngwenya Border Gate, he alleged that he cautioned him in accordance with the Judge’s Rules, particularly that he was investigating the murder of one Nokulunga Ndwandwe and that he was not obliged to say anything except that whatever he said, was going to be recorded down and could be used in Court against him. He said he eventually charged the accused with the Murder of Nokulunga Ndwandwe and eventually produced him in court, whereat he was detained in custody pending trial.
 After the crown closed its case, the defence commenced with the accused being called as the only defence witness, DW1. On his personal circumstances, he told the court that although he worked in the Republic of South Africa at Carltonville, his homestead was at Somntongo area in Lavumisa. He had five children. On the events of the 4th December 2015, leading to the death of the deceased, he said that his wife had welcomed him from Nhlangano as a result of which they had travelled back home together in a For hire he had hired which also ferried their furniture to their new home. After the furniture had been offloaded, he said that her furniture had kept on ringing. As she eventually picked it up and responded, he could tell she was speaking to a male person on the other end. She allegedly did not want to disclose who it is she was talking to, when he asked her. He said he had already heard from his now deceased sister, that the deceased was having sexual relations with the people who were building their new house.
 Without discussing what the discussion he overheard between his sister on the other hand of the phone was all about, he says it confirmed his worst fears that she was indeed having an extra marital relationship. He said he then took out his belt and started beating her with same. He says as he beat her, he had no intention of killing her and that his intention was just to scare her and make her allegedly desist from the bad practice of having an extra marital relationship. He made it looked like he beat her with the belt over one session and not on two different occasions as suggested by the crown witness, who said it was over two sessions, punctuated with his going out to have his beer after what I will term as the first session. He claimed to have, at the end of his beating her over the one and only incident, gone to his house, taken his bag and left. He denied banging her head against the wall.
 The position of our law is that murder consists in the intentional and unlawful killing of a human being. The accused wants to suggest that the death of the deceased was an accident because it resulted from his allegedly beating her with a belt after they had quarreled over his receiving a call from a male person he suspected to be the one who had built their house, who he had heard from his sister was having a sexual relationship with the deceased.
 There are various problems with the accused person’s version. Firstly, this is not a version put to the crown witnesses notwithstanding that he accused was represented by an attorney. The position of our law is now settled that an accused person is required to put his defence to the crown witnesses for them to react thereto. A corollary to this is that the failure to put such a defence to the crown witnesses, only for same to be revealed during the defence case is called an after thought. See in this regard numerous cases of this court on this point including the seminal Judgement in Dominic Mngomezulu and 11 Others Vs Rex Criminal Appeal Case No.94/1992.
 In this case the accused wants to say he assaulted the deceased, his wife, because she had been receiving phone calls from a male person he believed her to be having a relationship with. This quarrel he claims was sparked by the receipt of the phone call by the deceased. This was however not put to the crown witnesses who put a different version. In fact according to these witnesses there was phone call received but as soon as the last grocery contained in a plastic bag was taken into the house, the door was immediately closed and the assaults which started from a belt into several slappings, graduated into her head being banged against the wall on several occasions. There was no provocation at all according to these witnesses. The accused would not challenge them to say a phone call had been received by her. In fact according to PW2, as she was assaulted she was assaulted she was accused of not receiving phone calls when he called her. According to PW3 she was accused of having cheated on him. As long as there was no denying this version and putting what is contended to have been the correct version, then the accused’s version anronuted to an afterthought and can, on the authority referred to above, not be accepted.
 This means that I am obliged to reject the version by the accused as an afterthought.
 On his contending that he did not intend to kill the deceased but just intended to chastise her, the position of our law in trite on how intention can be deduced from a set of facts. There is of course dolus directus which occurs when the results of the actus reus is what was desired by the accused. There is also dolus eventualis which arises in circumstances where even if the result of the actus reus was not necessarily the desired outcome, but it was foreseeable as at the time the act complained of was inflicted and the accused was reckless on whether it resulted or not. Even if it could be said the accused did not desire the death of the deceased which would be arguable, it is hard to argue otherwise his recklessness and not carrying whether death occurred.
 In R V Jabulane Philemone Mngomezulu 1970 -76 S.L.R. Page 7 at B-C, the court per Troughton ACJ, cited with approval the following passage from the South African Appellate Divison Case SV Mnisi 1963 (3) SA 188 (A) at Page 192 F-G., with regards how the court construes the question of intention:-
“A person in law intends to kill if he deliberately does an act which he in fact appreciates might result in the death of another and he acts reckless as to whether such death results or not.
 There can be little doubt that in a case where one bangs several times another person another against a concrete or hard wall, he should appreciate if he does not desire the death of that person, that she might die therefrom. This acting recklessly whether or not death does result is a clear indication of an intention in our law as it clearly depicts what was said in the passage from SV Mnisi (Supra) cited above. The accused deliberately banged the head of the deceased against the wall on atleast three occasions. He admitted under cross examination he himself cannot bang his own head against the wall.
 A similar position was put in the following words in RV Jolly and Others 1923 AD 176 at 187 as cited in RV Jabulane Philemon Mngomezulu 1970-76 SLR 7 at C-D:-
“The intention of an accused person is to be ascertained from his acts and conduct. If a man without legal excuse uses a deadly weapon on another resulting in his death, the inference is that he intended to kill the deceased.”
 There can be little doubt that death would result from the banging of a person’s head against the wall and for same to be done at least three times on defenceless woman, there can be no other inference to draw than that the person responsible was reckless and did not care whether death or did not result from his actions. In the same vein I am convinced that the accused in the circumstances of this matter by banging the deceased against the wall was using a deadly weapon against the deceased without any legal excuse.
 I agree with Miss Matsebula that the passage extracted from the judgement in Mandla Mlondozi Mendula Vs Rex Criminal Appeal Case No.12/2013, expressed in the words that follow herein below is quite apposite to the matter at hand and captures the true position:
“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 inflected. 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 body using a dangerous lethal weapon, the only reasonable inference to be drawn is that he intended to kill the de deceased.”
 I have no doubt that the accused cannot lawfully escape responsibility for the death of the deceased, particularly a conclusion that he intended the death of the deceased. Consequently, the accused is found guilty of the murder of Nokulunga Ndwandwe.
JUDGE – HIGH COURT