Criminal Law – accused charged with murder – defence case not put to Crown witnesses – allegations made for the first time during re-examination of the accused, that he acted out of anger and in defence of his property.
Crown case based on dolus eventualis – evidence of the Crown proving dolus eventualis beyond reasonable doubt – a verdict of culpable homicide not supported by the evidence.
Accused found guilty of murder as charged.
IN THE HIGH COURT OF ESWATINI
CRIMINAL CASE NO.242/17
In the matter between:
SIBUSISO KUKUZA DLAMINI
Neutral Citation: The King vs Sibusiso Kukuza Dlamini (242/17)  SZHC 156 17 July 2018
Coram: MLANGENI J.
Heard: 7th May 2018, 21st June 18 and 5th July 2018
Delivered: 17th July 2018
Flynote: Criminal Law – accused charged with murder – defence case not put to Crown witnesses – allegations made for the first time during re-examination of the accused, that he acted out of anger and in defence of his property.
Crown case based on dolus eventualis – evidence of the Crown proving dolus eventualis beyond reasonable doubt – a verdict of culpable homicide not supported by the evidence.
Accused found guilty of murder as charged.
 For a relatively young Lungi Hleta, one moment of mischief cost him his life, literally. He died at the age of twenty-four years. The accused was operating a make-shift retail shop, colloquially referred to as ‘spaza’ at Mbhuleni area, Matsapha. Two young girls were keeping watch over the accused’s spaza while he was away getting ready to go on a trip to purchase stock from wholesalers. The deceased, Lungi Hleta, apparently taking advantage of the young girls, helped himself to cigarettes and money in cash that was in the spaza. He was well-known to the young girls who were of the same neighbourhood with him. The accused, upon his return to the spaza, was informed by the girls about what had happed while he was away. The accused went in search of Lungi Hleta, found him relaxed in a nearby home and brought him to the spaza shop. The girls confirmed that Lungi Hleta was the wrongdoer. Thereafter, all hell broke loose and the accused assaulted Lungi, to the extent that he was later admitted at the Raleigh Fitkin Memorial Hospital in Manzini where he died a few days later, as a result of the injuries sustained at the hands of the accused, in a classic case of self-help.
 Sibusiso Kukuza Dlamini now stands accused of murder in that on the 26th December 2005 and at or near Mbhuleni area, he “did unlawfully and intentionally kill one Lungie Hleta and thus committed the crime of MURDER.” He pleaded not guilty to the charge.
 He faces three other counts. Count two is contempt of court which is in respect of his failure to attend court on the 12th December 2017, wherein a sick note was presented on his behalf claiming that he was indisposed when that was not the case in fact. Count three is in respect of forgery of the note that purported that he was indisposed on the particular day, and count four is uttering a forged document well knowing that it was forged. The sick note purported to be issued by the surgery of Dr Wasswa of Mbabane. The Crown drew the court’s attention to suspicious circumstances surrounding the accused’s non-attendance, and upon application that Dr Wasswa be ordered to attend court in order to say something about the sick note, the doctor did attend court on the 14th December 2017 and informed the court that the sick note was not genuine. It is obviously on the basis of the doctor’s evidence that at the trial the accused pleaded guilty to counts two, three and four. I raised with Mr. Makhanya for the Crown, the question whether or not there was duplication (sometimes referred to as splitting) of charges in respect of counts three and four. After being referred to legal authorities I was satisfied that duplication of charges had not occurred and I duly convicted the accused on his own plea in respect of counts two, three and four. It is acceptable to charge forgery and uttering as separate counts, but it is proper that sentences for the forgery and uttering of one and the same document should run concurrently.
The trial then proceeded in respect of the charge of murder.
 PW3 is Hlengiwe Dlamini. Under oath she stated that she is twenty-five years old and stays at Kwaluseni. In the year 2005 she was about twelve years old. That is when the deceased died. She stated that the accused lives in the same neighbourhood with her, and that in a respectful manner she regards him as her uncle. The accused was operating a spaza shop at his home in the same area. On the day the deceased was injured she and one Simisile Dvuba were asked by the accused to look after his spaza shop while he (the accused) was making arrangements to go and buy stock for the spaza shop. The two girls obliged. Simisile was a bit younger than PW3.
 While the accused was away the deceased came to the spaza shop and helped himself to cigarettes and some money in cash. The witness does not know the amount of money that was taken by the deceased. Later on the accused came back to the spaza shop and the two girls made a report to him that the deceased had taken cigarettes and money from the spaza shop. The accused then left and came back later, with the deceased. He asked for confirmation that the deceased is the one who had taken cigarettes and money. The two girls confirmed that he was the one. There and then the accused assaulted the deceased with open hands on the face. At that stage the two girls, apparently unable to countenance the confrontation, ran away to their home or homes. When PW3 came back to the place later, there were Police. The Police did not record statements from the girls, the reason given being that they were too young for that.
 Cross-examination of this witness by the defence was very brief, and I capture it hereunder:-
Q: You said you reported to the accused about the items that were stolen – what was the accused’s reaction?
A: He said “where is he?” We told him that we did not know where he was. I am not sure how he took it.
Q: Was the assault linked to the stolen items according to your understanding?
Court: Did the accused know the deceased when you described him to him?
There was no re-examination.
 PW4 is Sabelo Dlamini. Under oath he stated that he resides at Kwaluseni, and he knows the accused. They are next-door neighbours who share a boundary fence. He also knew the deceased and they lived together in the same homestead at the time the deceased met his death. On the fateful day this witness was with the deceased when the accused came and dragged the deceased to the spaza shop, saying that the girls had told him that the deceased had helped himself to some items at the spaza shop. Thereafter, the accused and the deceased came back to the home. As they were coming back the accused was assaulting the deceased with an iron rod, all over the body. The rod was short, less than one metre in length. The thickness of the rod was about two centimetres. It was a round bar. The witness continued to state that the deceased eventually lay down. One Colile phoned the Police and they came and took the deceased to hospital. When the Police took him he was lying on the ground, facing upward. This witness also got into the Police motor vehicle to accompany the deceased to hospital. At the time the Police took the deceased to hospital the accused was no longer there. The Police left the deceased and this witness at RFM hospital, Manzini. The deceased was admitted, and the Police later came back to pick the witness up. After some days the witness heard that the deceased had died in hospital while undergoing treatment.
 After the incident and the subsequent death of the deceased the accused was not seen in the vicinity. He never came to the deceased’s home to talk about the incident, this despite the fact that these were neighbours of very close proximity. He did nothing to assist with funeral arrangements or with anything else. The witness stated that the relationship between him and the accused was a good one, and that the deceased and the accused were in good terms prior to the incident that is the subject of this trial.
 Cross-examination of this witness was also relatively brief, and I capture it in full below:-
Q: You did not notice any injuries on deceased?
Q: Do you know what was the bone of contention?
A: Deceased went into the accused’s spaza shop.
Q: What exactly happened?
A: There were commodities for sale in the spaza.
Q: Were you present when deceased entered the spaza shop?
There was no re-examination of this witness.
 PW1 was Dr R.M. Reddy, who has been a Police Pathologist in this country since the 28th April 1994. His qualifications are well-documented in this jurisdiction. He stated under oath that he is the one who performed a post-mortem examination on the cadaver of the deceased. This he did on the 5th January 2006 in Manzini. I take this to mean the RFM mortuary. The doctor found multiple serious injuries on the body of the deceased and concluded that he died as a result of these injuries. He handed in his written report by consent, and it was marked Exhibit “A1” and “A2”, “A1” being handwritten and “A2” being the typed version of the handwritten one. The doctor observed six different injuries on the body of the deceased, and these are listed at page two and page 5 of the report. Below I quote the report verbatim:-
“1. On reflection scalp contusion present, 7.3cm with subdural haemorrhage clot about 210ml.
2. Scab formed wound over lip 3 x 1.1cms present.
3. Scab formed wound 1cm over right cheek, neck 1.1cms present.
4. Surgical wound over right chest front 3 x 1.7cms present cavity deep.
5. Abrasion scab formed over right thigh front 1.5cms area present.
6. Abrasion scab formed 1.2cms with blister over right leg present with broken leg bones, effusion blood with soft tissues of leg, foot present.
 The doctor stated that injury No.1 was fatal; No.6 was grievous and can lead to complications resulting in death. These two injuries, he observed, were caused by a blunt object. He observed that injury No.1 was the worst as it occasioned brain damage, further stating that most victims do not survive such an injury because the size of blood clot was enormous. The right leg was broken.
 I observe that the injuries differ significantly in sizes – the longest one being 7.3cm (No.1, on the scalp) and the shortest being 1.1cm (No.3). Other sizes are 3.1cm, 3.17cm, 1.2cm and 5.1cm. It is reasonable to infer that different assault weapons were used. Clearly, the deceased was assaulted most savagely and it is best not to imagine the pain that he experienced in the few days that he lived after the assault.
 This witness was not cross-examined by the defence. The last witness of importance was PW5, 4412 Detective Constable Simiso Mamba. Under oath he stated that his workstation is Matsapha Police Station, that he is one of the officers that investigated the matter and that he is the one who charged the accused. He stated that his investigations established that the deceased was assaulted by the accused and he was informed that an iron rod was used. However, upon interrogation of the accused he produced a broken concrete brick the size of a paver. He did not produce the iron rod. The brick was handed in and marked “Exhibit 1”. Its colour was greyish and the estimated weight was 2.5kg. It is certainly heavy enough to occasion extensive damage on the human body, even if moderate force was used.
 This witness, together with two other Police officers, went to Mbhuleni Area on the day after the assault incident, in search of the accused. They did not find him. On the 5th January 2006 information was received by the investigation team that the deceased had died. It was not until the 11th January 2006 that the accused was arrested by one Constable Gladman Mavuso, and the witness PW5 continued with investigations. The accused led the investigation team to his home at Mbhuleni where he retrieved the concrete brick, after due caution in terms of the Judges’ Rules. The accused, whose home is in the small area of Mbhuleni, was not located for a period of sixteen (16) days calculating from 26th December 2005 to 11th January 2006. Since PW5 is not the arresting officer, the court does not know where the accused was arrested, but this aspect is of no significance in the matter.
 Cross-examination of this witness by the defence was also relatively brief, and I capture it in full below:-
Q: In chief you presented an exhibit – is it the only exhibit you got from the investigation?
Q: You learnt about an iron rod, I put it to you that that was hearsay evidence?
A: Not correct. It transpired during the investigation.
Court: Did you attempt to find the iron rod?
A: Yes. He alleged that he used the brick only.
There was no re-examination, and at this stage the Crown closed its case.
 I observe, in passing, the unmistakable fact that the defence case, whatever it is, was not put to the Crown witnesses. This, in part, is the reason I reproduced all the questions and answers in cross-examination, my task obviously being made easier by the brevity of cross-examination.
 From the evidence that was led by the Crown, its case can be summarised as follows. When the accused was informed about what the deceased had done he immediately took the law in his own hands and assaulted the deceased all over the body, and thereby inflicted fatal injuries upon him. The concrete brick that was pointed out and retrieved by the accused was in all probability used by the accused, hence the reference by the doctor PW1 to a “blunt object.” According to PW4, Sabelo Dlamini, an iron rod was also used. He saw this happening and he described the iron rod in detail. Because he was in good neighbourly terms with the accused he had no reason to fabricate the evidence of an iron rod. The assault happened in broad daylight.
 Further, the dimensions and sizes of some of the injuries are consistent with an iron rod, e.g. 7.3cm in respect of the fatal injury on the scalp (injury No.1), the injury on the right thigh which was 5.1cm (injury No.5) and the injury on the right chest which was 3 x 1.7cm (injury No.4).
 The Crown case is that of dolus eventualis, that in inflicting the injuries upon the deceased the accused appreciated that death might result from such injuries but nonetheless proceeded to assault the deceased. The law in this regard has been stated in numerous decisions in this jurisdiction and elsewhere. I will make reference to some judgements shortly. In legal submissions the Crown emphatically stated that the accused was, on the evidence before court, reckless in his assault of the deceased. In the case of R v MNDZEBELE Nathan CJ., as he then was, had this to say:-
“……a person has the necessary intention to kill if he appreciates that the injury which he intends to inflict on another may cause death and nevertheless inflicts that injury, reckless whether death will ensue or not”.
 In the case of THANDI TIKI SIHLONGONYANE v REX the Court of Appeal, per Tebbut JA, stated the position in the following manner:-
“……dolus eventualis is where the accused foresees the possibility of his act resulting in death, yet he persists in it reckless whether death ensues or not.”
In this case the Court identified characteristics which constitute dolus eventualis as follows:
- Subjective foresight of the possibility of death, however remote it might be;
- Persistence in such conduct, despite such foresight;
- The conscious taking of the risk of resultant death, not caring whether it ensues or not:
- The absence of actual intent to kill.
 In R v MDUDUZI D.J. ZWANE Masuku J. stated the position in the following terms:
“In my view, intention in the form of dolus eventualis is borne out by the weapon used, the force applied and the number of blows administered, considered in tandem with the area of the deceased’s anatomy to which the blows are directed”.
 In a recent judgment I found that the above authorities are very instructive on the subject. In the present case the deceased died due to multiple injuries, and the doctor identified six (6) different injuries on different parts of the body, including one fatal one on the head. It is my view that the accused appreciated that the injuries could lead to death but nonetheless proceeded to inflict them, to the extent that the deceased lay on the ground, motionless, facing upward. The accused’s behaviour after the incident is consistent with an appreciation of the seriousness of the injuries that he had inflicted upon the deceased. He did nothing to assist the deceased who had been rendered helpless, he did not contact the deceased’s family which was in the neighbourhood, he did not report the matter to the Police, he did not even check the deceased in hospital. What he did was to remove himself from the vicinity and was arrested about two weeks after the incident. At that stage the deceased was already dead.
 The defence evidence was presented by the accused under oath. He was the only witness for the defence. His evidence is that he was self-employed at the time, operating a spaza shop at Matsapha. It is common cause that the said spaza shop is right at the accused’s homestead. He proceeded to state that he needed to go to buy stock, and he asked two young girls who lived in the neighbourhood to keep an eye on the spaza shop while he was away to buy stock. He went into his house to get ready for the journey to buy stock. Before he departed one of the girls informed him that Lungi Hleta had taken E3, 000.00 and cigarettes. It is important to note that PW3, Hlengiwe Dlamini, did not mention the amount of E3, 000.00. This amount was specified for the first time by the accused in his defence. Neither was this aspect put to the said witness, for her to comment on the said amount.
 The witness proceeded to state that upon receiving the report he then went to look for Lungi Hleta. He found Lungi Hleta at Colile’s home, relaxing in the company of Colile and Sabelo Dlamini, who testified for the Crown as PW4. Sabelo Dlamini is the one who told the court that he saw the accused assaulting the deceased with an iron rod all over the body, until he lay on the ground, facing upward.
 Accused proceeded in evidence to state that upon finding the deceased with Sabelo Dlamini, he asked the latter for permission to take the deceased with him and together they went to the spaza shop, where the two girls confirmed that the deceased is the one who took money and cigarettes from the shop. Accused further states that he demanded the money and cigarettes from the deceased and slapped him twice with open hands on the face. He proceeded in his evidence as follows:-
“As I tried to search him he knocked me on my forehead with his forehead, such that I got hurt in the mouth. He then ran away. As he ran away his head got knocked by the door frame of the spaza. I pursued him. He was holding his head and running away. As he ran he fell on concrete blocks that remained unused when the spaza shop was built. I caught up with him and held him. When I searched him I found money in a Swazi bank plastic bag. I also found cigarettes. I counted the money and found that it was all there.”
 His further evidence is that Sabelo Dlamini and Colile then came and he asked Colile to call the Police, and her response was that she had already done that. After a while Police arrived and took the deceased to hospital and Sabelo got into the Police car as well and accompanied the deceased. After some days the Police came, arrested him and charged him with assault with intent to cause grievous bodily harm. Two weeks later Police came and told him that the victim had died. He was then charged with murder. Responding to the evidence of Sabelo Dlamini that he assaulted the deceased with an iron rod, the accused said that the evidence about an iron rod is not true, what is true is that the Police took a piece of concrete brick and left other bricks. He further stated that the theft of the cigarettes and the money hurt him very much as the money was the only amount that he had. He concluded by saying that he did not expect the deceased to die.
 Cross-examination by Mr. Makhanya was quite extensive. In answer to a question the accused stated that he was forty-five years old in 2005, that the deceased was indeed his close neighbour, that he was older than the deceased and that they grew up together. It was put to him that he was more than ten years older than the deceased and he denied this.
 Below I capture some questions and answers during his cross-examination:-
Q: I put it to you that you were more than ten years older than the deceased.
A: Not true
Q: When the deceased died he was twenty-three years old and you were forty-five years?
A: I was estimating because it is a long time ago.
Q: Sabelo Dlamini said there was a ceremony at the homestead where him and the deceased were, you came and took the deceased and assaulted him with an iron rod several times?
A: He did not say so. He said I was holding an iron rod, which I did not hold.
 It is on record that Sabelo Dlamini was specific and unequivocal that the accused assaulted the deceased with an iron rod all over the body, until the deceased lay down, that the Police found him lying down facing upward. It follows that the accused’s denial that Sabelo Dlamini did say this is not just futile, it is also an adverse reflection upon his credibility. More questions and answers during cross-examination follow below:-
Q: In what state was the deceased when taken to hospital, according to Sabelo Dlamini?
A: I don’t recall.
Q: Sabelo said the deceased was in a bad state when he was taken to hospital, because of the assault with an iron rod?
A: Not true. I did not use an iron rod. I just wanted the money.
 It is also on record that the accused stated in his evidence in chief that he recovered all the money from the deceased. In his own words:-
“……I counted the money and found that it was all there. It had not been used.”
 This does, in fact, make sense because the events appear to have happened within a short period of time, and the deceased had not had much time to spend the money.
 Reacting to the doctor’s evidence that established multiple bodily injuries upon the deceased - on the head, the lip the neck, the right cheek, the chest, the right thigh and the right leg, the accused stated for the first time during cross-examination that the said injuries were caused by the door frame of the spaza shop as the deceased was running away from him, and that in the process he fell upon unused concrete blocks and also got injured there. What follows are some relevant questions and answers.
Q: The doctor said the deceased died because of multiple injuries.
A: I think it is the door frame and the bricks. He hit hard on two bricks.
Q: Hlengiwe Dlamini (PW3) did not mention that the deceased hit a door frame?
A: Because she had left. She left when I slapped the deceased.
Q: Why was it not put to Hlengiwe that some injuries were caused by the door frame?
A: Because Hlengiwe was not there.
 It was also put to the accused that after assaulting the deceased he moved himself from the vicinity, and that is why Police did not find him there when they picked up his victim and took him to hospital. It is on record that the accused was arrested about two weeks later – on the 11th January 2006, this despite the fact that his home was at Mbhuleni, not more than five kilometres from Matsapha Police Station, as a crow flies. The Crown sought to establish that in the intervening period of about two weeks the accused was on the run, and this was because he fully appreciated the consequences and seriousness of what he had done to the deceased.
 I make reference to more questions and answers during the accused’s cross-examination, below:-
Q: In the period before the deceased died did you bother to check him in hospital, as he was your neighbour?
A: No. I did not think he was going to die.
Q: The reason is that you did not care whether he died or not.
A: I cared. It didn’t cross my mind, I didn’t think the injury was serious.
Q: Did you go to talk to his parents about what had happened?
Q: The reason is that you wanted to deal with him yourself, and you indeed dealt with him and killed him.
A: Not true.
 Re-examination by defence counsel was brief. Accused was asked whether he had any intention to kill the deceased, and he answered in the negative. He was further asked if his actions were due to anger and provocation and that he acted in defence of his property. At this stage the Crown raised an objection, on the basis that if there were such grounds of defence they should have been put to the Crown witnesses and presented during the defence evidence in chief.
 No other witness was introduced by the defence, and its case was closed at this stage.
 The defence case, whatever it is, was not put to the Crown witnesses. It was not put to PW3, PW4 and PW5 that the accused did not assault the deceased with an iron rod. It was not put to PW3 or PW4 that the deceased, while attempting to get away from the accused, knocked his head against the door frame of the spaza. It was also not put to PW3 and PW4 that as the deceased was running away from the accused he fell on concrete blocks and hurt himself. These averments, coming for the first time during the defence case, are clearly an afterthought and I treat them as such. But even if they had been put to the Crown witnesses they would be falsified by the nature and grievousness of the injuries on the body of the deceased, as shown by the post-mortem report, taking into account various locations of the injuries on different parts of the deceased’s body. These injuries cannot be caused by one knock on the door frame and one fall on concrete blocks.
 As stated above, during re-examination of the accused by his defence counsel he stated, for the first time, that his actions were the result of anger due to provocation, in that his property was taken – i.e. the money and the cigarettes. The Crown objected to this evidence, coming as it did for the first time in re-examination. I upheld the objection. Yet if the accused was unrepresented I might have dealt with it in a different way. But even if such evidence were to be accepted, that he was acting in defence of his property, it would be defeated by his own evidence that he recovered all the money and the cigarettes. His reaction would, in any event, be highly disproportionate to the interest that he was seeking to protect.
 The Crown has established dolus eventualis. The accused has not presented an acceptable explanation for his savage and sustained assault upon the deceased. Even if his version of events had been properly put before the court, it is not reasonably possibly true and it is clearly falsified by the evidence of the Crown.
 During legal submission it was argued for the accused that he should be found guilty of culpable homicide, because he did not intend to kill the deceased. This submission overlooks the established position that intention can be direct (dolus directus) and indirect (dolus eventualis). In the present case the evidence of the Crown establishes dolus eventualis beyond reasonable doubt.
 I accordingly find the accused guilty of the murder of Lungi Hleta.
For the Crown: Mr. A. Makhanya
For the Accused: Mr. L.N. Dlamini
 Exhibit “A2”- post mortem report.
 R v CHIKWATA 1952 (1) SA 368; R v BEYERS 1956 (2) SA 91.
 S v VAN NIEKERK 1980 (1) SA 594; R v CHIKWATA, supra.
 1970-76 SLR 198 at p199
 Appeal case No. 40/97, at p3.
 Criminal Trial No. 68/09, unreported.
 THE KING v MFANAWEYISE SIYABONGA MNDZEBELE (88/11)  SZHC 81 (7th May 2018).
 See R v MAXWELL NKAMBULE (333/14)  SZHC 60, and the authorities cited therein.