Rex v Maseko (419/2010) [2018] SZHC 225 (11 December 2018);

 

                                                IN THE HIGH COURT OF ESWATINI

JUDGMENT

                                                                                      CASE NO.419/2010

HELD AT MBABANE                                                         

In the matter between:

REX

Versus

NKOSINGIPHILE SAMUEL NKONKA MASEKO

Neutral Citation:  Rex vs Nkosingiphile Samuel Nkonka Maseko [419/2010]                                    SZHC 225 [2018] (11 December 2018)

Coram:                   M. LANGWENYA

Heard:                  3, 4 December 2018

Delivered:             11 December 2018

Summary:              Criminal law-accused charged with murder-pleads guilty-pleads                        provocation-requisites of provocation discussed-accused                                                convicted of murder with extenuating circumstances in light of                                       provocation-accused sentenced to twenty years imprisonment.

JUDGMENT

 

[1]     The accused is charged with murder, it being alleged by the Crown that on 1           March 2010, at eNdlembeni area in the Manzini region, the accused         unlawfully and intentionally killed Takangwane Mabuza. The accused    pleaded guilty to the offence charged.

 

[2]     The Crown led the evidence of four witnesses to prove its case. The accused     was the only witness for the defence.

 

[3]     This case is a text book example of a family feud that escalated resulting in       the death of the deceased. At eNdlembeni area in eVusweni there is a family of Lozingwe Maseko. Lozingwe Maseko had five wives excluding women he      sired children with and whom he never married. The first wife was LaMabuza,          the second wife was LaGamedze, the third wife was LaMasilela, the fourth wife was LaMamba and the fifth wife was LaNhlabatsi.

 

[4]     The crime which is the subject of this matter involves the alleged murder of           LaMabuza (the deceased) by the accused.

 

[5]     PW1 Musa Richard Maseko is a son of the deceased and an older brother of     the accused. PW1 and the accused’s father is Lozingwe Maseko who is now            deceased. The accused’s mother is Emmelinah Zwane and is not married to   Lozingwe Maseko. La Mabuza, La Gamedze and La Masilela are now   deceased.

 

[6]     La Gamedze did not have biological children of her own. The accused and his           sister were fetched from Bhunya and three cattle were paid to Emmelinah           Zwane’s marital home in order to have the accused and his sister relocate and   live with Lozingwe Maseko and La Gamedze at eNdlembeni. For all intents    and purposes, the accused considered La Gamedze to be his mother since he         lived with her from the time he was about seven years old and in primary        school.

 

[7]     The first wife is said to have left eNdlembeni when her husband married La           Gamedze. La Mabuza relocated to Sidvwashini, in Mbabane where she lived     with PW1 and his siblings. It was on the death of both La Gamedze and her    husband that La Mabuza returned to eNdlembeni. She first lived in the homestead that was used by La Gamedze and the accused and only moved out    when she had finished building her home below that of La Gamedze in 2010. The accused remained at La Gamedze’s household when PW1 and the         deceased moved to their new home.

 

[8]     The relationship between the accused, PW1 and the deceased was   acrimonious when La Mabuza relocated to Vusweni, eNdlembeni and took         over La Gamedze’s household. The acrimony deepened when, at the           instruction of the deceased PW1 took all the property that belonged to        Lozingwe Maseko from La Gamedze’s household and placed it at La Mabuza’s household. PW1 told the Court that he took the property from La Gamedze and La Masilela’s households on the strength of a directive from the      Master of the High Court. The Master of the High Court, so the evidence goes           called a next of kin meeting where La Mabuza and La Masilela were         appointed as executors. The next of kin meeting was attended by all concerned        including the accused and PW1-so the evidence goes. Cattle, motor vehicles        and other property was subsequently taken from La Gamedze’s home and          from La Masilela’s home to La Mabuza’s home- much to the consternation of         the accused. The property was never distributed by the Master of the High         Court. The Master is said to have stated that the property would be distributed       once Lozingwe Maseko’s gratuity was paid out. The gratuity was, however      never paid out. The straw that broke the camel’s back was when a grinding    machine (Bethany) was removed from La Gamedze’s household while the     accused was away at work at Palfridge.

 

[9]     PW1 and the accused also had a conflict over the family fields. At some point   the conflict over the fields was reported by PW1 to the Vusweni Royal kraal.         PW1 ploughed the family fields and the accused planted in the fields that had   been ploughed by PW1 without the latter’s knowledge and consent. The ruling      of the royal kraal was that both the warring factions should remain at their    designated households. That if either party wanted to go to either household,     they should do so in the presence of a member of the community police. The       ruling by the royal kraal was issued before the grinding machine (Bethany)    was taken from La Gamedze’s household.

[10]   On the fateful day of 1 March 2010 PW1 was not at home when he received     a telephone call from his wife informing him to rush home as there was a   problem with his mother. PW1 indeed rushed home and found his mother        lying face down in the fields. Because his mother was epileptic, he lifted her.   He observed blood clots coming out from her mouth and nostrils. He also        observed stab wounds on her neck. PW1 was frightened when he realised that        his mother was dead. He then left the deceased lying in the field.

 

[11]   PW1 enquired from Chaka Tsabedze who was herding cattle nearby about        who had committed the act. He was informed that the accused was responsible         for the death of the deceased. PW1 then reported the matter to the police who     came to the scene and later recorded a statement. PW1 told the police that he    suspected the accused had committed the offence because his mother and the accused did not see eye to eye.

 

[12]   PW2 Thuli Nomcebo Zwane-nee Maseko resides in the same neighbourhood     with the accused at eNdlembeni, Vusweni area. She knows the accused because when she married into a Zwane homestead, he found him living in a     Maseko homestead and immediately related to him as a brother as she is a        Maseko by birth. It was the evidence of this witness that the accused’s          parents-La Gamedze and Lozingwe Maseko were good people who also related well with   her. The accused is also a good person according to the evidence of this witness. The accused was a councilor-lihlombe lekukhalela and encouraged    PW2 to join the councilors as a member.

 

[13]   On 1 March 2010 PW2 was from attending a councilors’ meeting at Vusweni           royal kraal when the accused followed her to her homestead. PW2 updated       the accused about the meeting since he had not attended same. The accused   did not appear to be his usual self as he looked confused and not paying      attention to what she was telling him. The accused then confided to this      witness that he had ‘injured’ the deceased. He told PW2 that they were        fighting over a grinding machine (Bethany) which had been removed from          make La Gamedze’s household by the deceased. The accused said he now did          not have a grinding machine to grind his maize for mealie-meal.

 

[14]   The police subsequently came and arrested the accused at the home of PW2.

 

[15]   PW3 5522 D/Constable Frans Dlamini is a scenes of crime officer based at           Matsapha Police station. On 1 March 2010 he was on duty when he received    a report of an alleged murder at eNdlembeni. He proceeded to the scene of crime with 3135 Sergeant Langa (who is now an inspector). The scene of        crime was a maize field below a Maseko homestead. He found a lot of people   at the scene of crime. He introduced himself as a police officer, took charge       of the scene and secured it. He saw an elderly woman lying in a pool of blood.       He examined the body of the elderly woman and found that she was not breathing. The body had wounds on the chest, back and shoulder and a big cut         on a small finger. He suspected that a bush knife had been used.

 

[16]   He photographed the scene and the body of the deceased and handed over the           scene to the detectives.

 

[17]   PW3 handed into court six photographs which were marked FSD 1, FSD 2,     FSD 3, FSD 4, FSD 5 and FSD 6.

 

[18]   Photo FSD 1 shows the deceased lying facing down in a maize field; FSD 2           shows the deceased facing up; FSD 3 shows the deceased’s body has three        stab wounds on the chest; FSD 4 shows the deceased’s body has wounds on the shoulder; FSD 5 shows a cut on the small finger of the deceased’s hand;        and FSD 6 shows the body of the deceased has multiple wounds at the back.          The photographs were collectively marked exhibit ‘B’.

 

[19]   On 4 March 2010 PW3 went to the RFM hospital when the post mortem           examination was conducted on the body of the deceased. Blood samples were           taken from the deceased to be examined. D/Sgt. Langa handed to this witness           exhibits which were sealed. The exhibits were a brown pair of shoes, blue           shorts, maroon T-shirt and a sharp object like a black spanner and a slasher.    The exhibits were taken to the police headquarters.

 

[20]   The post mortem report was admitted in evidence by consent and it was marked Exhibit ‘A’. The cause of death was due to multiple stab wounds to         chest. The following injuries were observed by Dr. Komma Reddy on the        body of the deceased: first, stab wounds of 1x1/2cm, 1x3/4cm, with sharp     margins, present on the front and middle portion of the right side of the chest,        4cms and 10cms, from the mid-line, 39cms and 49cms from the umbilicus.       Second, stab wound of 2x1/2cms, with sharp margins, present on the front and     middle portion of the chest, in the midline, which is 33cms from the umbilicus.      Third, a stab wound of 3x1/2cm, with sharp margins, present below the right nipple, 11cms from the midline and 32cms from umbilicus. Fourth, a stab       wound of 1x1/2cms, with sharp margins, present adjacent to the left nipple.        Fifth, a stab wound of 1x1/2cms, muscle deep, present on the front portion of           the left shoulder. Sixth, multiple stab wounds (6) of 1x1/2cm, with sharp           margins present on the left side of the back in the upper half portion. Seventh,           multiple stab wounds (9) of 1x1/2cm with sharp margins present on the right   side of the back in the upper half portion. Eighth, cut wound of 3cms length, with sharp margins present on the medial side of the palm of the left hand in   the middle portion. Last, a cut wound of 2cms length, with sharp margins,          present on the front and lateral side of the left forearm in the upper portion.

 

[21]   PW4 3135 D/Inspector Langa stated that he is now based at Siphofaneni           Police station. On 1 March 2010 he was based at Matsapha Police station           when he received a telephone call that an alleged murder had been committed    at Vusweni. He proceeded to the scene with Constable Matfonsi, constable Mngometulu, constable Mkhweli as well as Inspector Gilbert Kunene. At the       scene of crime PW1 showed the police a field which was a short distance from     his homestead and told the police that is where the body of the deceased was.

 

[22]   At the scene of crime the police found the deceased lying face-down and the      time was about 230pm. The deceased’s body had three stab wounds at the      back. The maize plants around her had been destroyed-a sign that there was a          struggle before the deceased died. The body of the deceased had multiple stab    wounds which had been inflicted with a sharp object.

 

[23]   PW4 and the police officers he was with went to PW2’s homestead where         they found the accused. PW4 introduced himself and the team to the accused   and informed him why they were looking for him. PW4 cautioned the accused     according to the Judges’ rules. After the accused was cautioned, he elected to say something on the basis of which he was arrested. He subsequently led the   police to his homestead where he was again cautioned in terms of the Judges’      rules and informed of his constitutional right to remain silent. The police         requested Mahlabane Tsabedze-an elder in the community to observe the       pointing out by the accused.

 

[24]   At his homestead, the accused pointed out a maroon T-shirt, navy blue faded           shorts which had blood stains, a pair of brown leather shoes and a black           slasher. The accused further led the police to an area which is a short distance           from his homestead and next to Magwava Dlamini’s homestead. Magwava           Dlamini was present and observed the pointing out by the accused. Before the           accused pointed out anything at this stage, he was again cautioned according    to the Judges’ rules that he was not obliged to point out anything and that if         he did, whatever he pointed out will be seized and used in Court as evidence.      The accused went to a tree and took out a sharp metal object-which is a plug     spanner which had been sharpened at the back. PW4 seized the plug spanner.

 

[25]   The accused was taken to Matsapha Police station where he was detained           pending his appearance in Court. The accused was subsequently cautioned in           terms of the Judges rules and questioned in light of the evidence at PW4’s           disposal. The accused was charged with the offence of murder. After the accused was charged, he was informed of his right to make a statement before      a judicial officer.

 

[26]   The accused subsequently made a statement before a judicial officer in     Matsapha. The statement before the judicial officer was handed into Court by consent and is marked exhibit ‘C’.

 

[27]   PW4 handed in the exhibits namely: the brown pair of shoes which were marked exhibit 1; the black slasher was marked exhibit 2; the maroon t-shirt        was marked exhibit 3; the navy blue shorts were marked exhibit 4; and the        plug spanner was marked exhibit 5.

 

The case for the Defence

[28]   The accused said in 2010 he was resident at eNdlembeni, Vusweni and that           currently he lives in Bhunya. The accused stated that at eNdlembeni he lived     with his father Lozingwe Maseko and his mother LaGamedze. It was the          evidence of the accused that LaGamedze was not his biological mother and   that his biological mother is Emmelinah Zwane who never married Lozingwe           Maseko.

 

[29]   The accused told the Court that he was adopted (wafakwa esiswini) by           LaGamedze because the latter did not have children of her own. The accused     and his sister were taken from their biological mother’s place at Bhunya when         they were young to live with LaGamedze.

 

[30]   It was when the accused’s father died that LaMabuza and PW1 came to live      with the accused at LaGamedze’s homestead. Life became unbearable for the   accused as he became a stranger in his homestead. He had to get permission         from LaMabuza to use property which he hitherto had used without having to          ask for permission to do so. The property belonged to LaGamedze who was living there with the accused’s father. LaGamedze was also dead when       LaMabuza relocated to eNdlembeni.

 

[31]   The accused’s father had built a house (lilawu) for the accused. It was the only           house that remained standing after LaMabuza and PW1 destroyed all the           houses when they moved into their new homestead below LaGamedze’s           homestead. LaMabuza and PW1 took property that belonged to LaGamedze’s           household when they moved to their new homestead-this included cattle and           motor vehicles.

 

[32]   The accused subsequently got a job at Palfridge. He returned home on a   Saturday to find the grinding machine missing. He did not ask PW1 and        LaMabuza about the grinding machine (Bethany) on the Saturday he made the      discovery. On Sunday, he went to church and did not ask about the   Bethany.  He, instead went to grind his maize elsewhere on the Monday of 1          March 2010. It was when he returned from grinding his maize that he went to         LaMabuza to ask if she knew where the grinding machine (Bethany) was.

 

[33]   The accused found the deceased at the maize field and asked her about the           machine. The deceased’s response was to ask the accused why he was looking for the grinding machine because it belonged to her. The accused asked why he had not given him prior knowledge that she was going to remove the          machine; he also told La Mabuza that it was not the first time she had taken      property that his father had left for him at LaGamedze’s household. LaMabuza         is said to have told the accused that he is selfish; that the white motor vehicle was given to her son.

 

[34]   The accused says he was angered by LaMabuza’s assertion that the grinding           machine (Bethany) belonged to her because he knew the Bethany to belong to           LaGamedze’s household. An argument between the accused and the deceased           ensued. The accused informed the deceased that he was finding it difficult to           respect LaMabuza as his mother because every time he returned home he           found his property taken by her and her son. The deceased is said to have           responded by saying she was authorized by the Master of the High Court to     take whatever property she wanted from the accused’s person’s household.

[35]   It was the accused’s evidence also that the deceased once told him that his           father was Macondzekufeni Maseko and not Lozingwe Maseko. The accused           reported the insult to the family and was advised by the family not to pursue    the matter.

 

[36]   The accused says he was angered by deceased’s reference to a certain           Mkhatshwa. The deceased is said to have told the accused that she would talk to Mkhatshwa. When the accused enquired how Mkhatshwa featured in the          estate of his father-LaMabuza stammered and did not come out clear. It        transpired that Mkhatshwa was an attorney that the deceased had retained to        represent her in the matter pertaining the estate of her husband.

 

[37]   The accused says he told the deceased that on 1 March 2010 he had come to     get an explanation from the deceased about the property that had been taken          by the deceased from LaGamedze’s household. After a heated argument, the      accused stabbed the deceased with a plug spanner. He says he had kept the    plug spanner in his pocket, lost his mind and found that he had used it.

 

[38]   Under cross examination the accused conceded that on the fateful day when      he went to confront LaMabuza he was carrying a plug spanner and a slasher.        The accused said he carried the tools to do some work and it was a       coincidence that he then used them in the commission of the crime charged.         It was his evidence under cross examination that he was not armed but carried    the tools in order to fix a machine. What machine and where the machine        was located that required to be fixed is not stated by the accused.

 

[39]   It is clear though that the accused accosted the deceased and found her in a           maize field where she was weeding her field. It is also clear that the accused           went to the deceased’s homestead without being accompanied by a member      of the community police-much against the directive of the Vusweni royal     kraal. In my considered view, the accused was spoiling for a fight with the         deceased.

 

[40]   Under cross examination the accused stated that ‘ngaphunyukelwa simo ngoba tento takhe betilumela kimi ngekutsi atsi angisiye umntfwana wa       Lozingwe Maseko’.-that he lost his cool because the deceased’s actions caused     him grief especially when she said he was not Lozingwe Maseko’s son. The     accused further stated under cross examination that he hacked the deceased   with a slasher and left her helpless and sprawled in the field. The accused said       he was too shocked and afraid to call an ambulance.

 

[41]   It is apparent from the evidence that the accused stabbed the deceased with a    plug spanner and also hacked her with a slasher-hence the actus reus is not in dispute. What remains to be determined is whether the accused had the        necessary mens rea to commit the offence. The accused has pleaded      provocation by the deceased. He argues that the deceased once said he is not          a son of Lozingwe Maseko but is a son of Macondzekufeni Maseko; that          the deceased took all the property that his father had left for him and that       the final straw was when the deceased deprived him of the grinding machine (Bethany) and left him with no machine with which to grind his maize for     mealie-meal.

 

[42]   The accused pleaded provocation. Section 2 and 3 of the Homicide Act No.      44 of 1959 provides the following:

          ‘[2] (1) A person who-

1. Unlawfully kills another under circumstances which but for this section would constitute murder; and
2. Does the act which causes death in the heat of passion caused by           sudden provocation as defined in section 3 and before there is time      for his passion to cool;

     Shall only be guilty of culpable homicide.

     (2)     This section shall not apply unless the Court is satisfied that the act           which causes the death bears a reasonable relationship to the                     provocation.

     3.       (1) Subject to this section, ‘provocation’ means and includes any                        wrongful act or insult of such a nature as to be likely, when done or         offered to an ordinary person or in the presence of an ordinary                 person to another who is under his immediate care or to whom he                      stands in a conjugal, parental, filial or fraternal relation or in the                       relation of master and servant, to deprive him of the power or self-           control and to induce him to assault the person by whom such act                      or insult is done or offered.’

 

[43]    In R v Dutty[1] Devlin J defined provocation in the following terms:

              ‘Provocation is some act or series of acts, done [or words spoken]                       [by the dead man to the accused] which would cause in any                                reasonable person, and actually causes in the accused, a sudden and         temporary loss of self-control, rendering the accused subject to                  passion as to make him or her for the moment not master his mind.’

 

[44]   For the defence of provocation to apply and succeed the loss of self-                           control must be associated with the act which causes death.  This is not so

          in this case.

 

[45]   In assessing what is reasonable, in the circumstances, the Court has to take       into account the characteristics of the accused as might affect the gravity of    the provocation.

 

[46]  An established principle of our law is that the defence of provocation can only         avail the accused where the act which causes death occurs in the heat of   passion caused by sudden provocation. In addition, the provocation should be    commensurate with the violence inflicted upon the deceased. The provocation      should result in a loss of self-control to such an extent that the mental element       requisite for murder is not present[2].

 

[47]   From the evidence it is apparent that the accused was, at different times prior   to the fateful day provoked by the deceased. However, the defence of provocation cannot avail the accused in the circumstances for two reasons:          first, the accused did not act in the heat of passion caused by sudden     provocation. The accused says in his evidence he discovered that the grinding         machine had been removed from his home on Saturday but only confronted the deceased to enquire about it on the following Monday. It is the evidence   of the accused that he was angry at the deceased for having said he was not a son of Lozingwe Maseko-a matter which had previously been addressed at           family level. From these instances, there is evidence that after the said           provocation, the accused had time for his passion to cool. Second, the violence           and injuries inflicted on the deceased were not commensurate with the           provocation. The accused conceded as much under cross examination. The           accused inflicted multiple injuries on the body of the deceased with a plug           spanner and a slasher-evidence that is confirmed by Dr. Komma Reddy in the           autopsy report. In the circumstances, the accused was not entitled to kill the           deceased.

 

[48]   Clearly, the death of the deceased was foreseeable. The weapons used in the           killing of the deceased were lethal; and the deceased was stabbed multiple           times on the chest-a part of the human anatomy that houses delicate organs.     The deceased was also hacked with a slasher and left for dead. The extent of the injuries           sustained were serious and fatal, showing a reckless attitude on      the part of the accused whether or not death of the deceased resulted.

 

[49]   A person intends to kill if he deliberately does an act which he in fact           appreciates might result in the death of another, and, he acts recklessly as to           whether such death results or not.

 

[50]   I accordingly find the accused guilty of murder with extenuating factors.

 

Sentence

[51]   I, however accept for purposes of extenuating factors that the accused was           provoked. Provocation of the accused is capable of reducing his moral           blameworthiness because it naturally has an effect on his state of mind.

 

[52]   At the time of the commission of the offence the accused was thirty-two years   of age; he is not married and does not have children. The accused was arrested      on 1^st March 2010 and released on bail on 11 January 2011this means he was   in custody for a period of 10 months and 10 days.  The accused is a first        offender. At the time of the commission of the offence, the accused was         employed at Palfridge and lived alone at his parental homestead.  Prior to      getting a job at Palfridge the accused          was wallowing in poverty. The      accused, through his attorney submitted that       he is remorseful.  He cooperated     with the police during the investigation of the matter.  He goes to church      and the death has weighed heavily on his soul. It was submitted that the           court should be lenient in sentencing the accused and tamper its      punishment with mercy.  The court was entreated to consider the fact     that it          is the misunderstandings and troubles he had with the deceased      which are a great factor in the commission of the offence charged.

 

[53]   In considering the triad, I accept that the offence committed by the accused is    very serious when taking into consideration that a human life was lost. What makes this offence more tragic is that it involves members of a family-a son     and his step-mother. The deceased was an elderly woman of seventy-one years      at the time of her death. Sons ought to look after their parents and protect       them. Instead of looking after his step-mother, the accused visited violence on      the elderly and defenceless woman and murdered her in the process.

 

[54]   Society expects the Courts to show its abhorrence at the loss of life of any           person even more so the loss of life of an elderly and vulnerable woman at the           hands of her step son.

 

[55]   I have considered the personal circumstances of the accused coupled with the           impression I have of him that he lacks remorse and feels justified to have           committed the crime he did. It is my view that a substantial term of           imprisonment will give the accused time to ponder and reflect on what he has           done and hopefully realize that no matter the provocation and anger-it is never           open to anyone to take the law into their own hands. I also consider that during           his sojourn in the correctional facility he will learn his lesson through the           hardship he will experience there and will have time to reflect upon his    actions.

 

[56]   For your own peace of mind, and as a church goer I would urge you to offer     an apology to your family, if you have not done so already. This will not bring      the deceased to life but it will allow you to live peaceably going forward and would be a sign of your remorse. I have no doubt that this incident will haunt         you for the rest of your life.

 

[57]   Having made the observation above, I consider in your favour that you are a              first offender and that you pleaded guilty thereby redeeming the Court’s time.

 

 

 

 

 

 

[58]   I consider the following sentence to fit you, the offence and to take into    account the interests of society: You are hereby sentenced to twenty years   imprisonment; and the 10 months and ten days spent in custody prior to your          release on bail will be taken into account in computing the period of     imprisonment.

 

 

 

______________________

M. LANGWENYA

JUDGE OF THE HIGH COURT

 

For the Crown:         Mr. M. S. Dlamini

For the Defence:       Mr. S. A. Lokothwayo