Rex v Mndzebele (122/2015) [2018] SZHC 263 (27 November 2018);

 

 

IN THE HIGH COURT OF ESWATINI

JUDGMENT

                   Case No: 122/15

In the matter between:

REX                                                                                                         

AND

SAMKELISO SKUTA MNDZEBELE            

Neutral citation:  Rex vs Samkeliso Skuta Mndzebele [122/15] [2018] SZHC 263  (27th November, 2018)

Coram:                FAKUDZE J.

Heard:                 5/4/2017; 6/4/2017; 25/07/2017; 28/11/2017; 30/11/2017;                                  12/7/2018 and 11/9/2018

Delivered:            27th November, 2018

Summary:           Criminal law: murder – crown should prove its case beyond                                reasonable doubt – accused raises two defences: was not                                                sober because he had smoked dagga on the day the offence was                           committed; and had been provoked by the deceased; the                                                 killing of the deceased was a mistake – defences considered –                               intention to kill proved – crown has proved its case beyond                                   reasonable doubt – the verdict of guilty as charged is entered.

 

JUDGMENT

 

[1]     The accused person is charged with the crime of Murder in that upon or about 18th February, 2015 and at or near Ngwempisana area in the Manzini    Region, the said accused person did unlawfully and intentionally kill Thoko   Msibi and did thereby commit the crime of murder.

 

[2]     When the charge was read to the accused person, he entered a plea that he                   committed the offence but it was not intentional.  The court entered a plea of    not guilty which was confirmed by the Defence.  This was in terms       of      Section 158 of the Criminal Procedure and Evidence Act, 1938.

 [3]    In an effort to prove its case, the Crown paraded nine (9) witnesses.    

          PW1  – Magistrate M. Dlamini

          This witness stated that he was on duty on the 20th February, 2015. The            accused was brought to Him to make a confession.  PW 1 testified that              he enquired about the purpose of the accused’s coming.  A statement  was             recorded by the witness after he had satisfied Himself that the accused          was not forced to approach PW 1 and that the statement, which is a confession,        was freely and voluntarily made by the accused.  After reading out the         statement in court, this witness       handed it in and the defence did not object to      same being handed in.  It was then marked “Exhibit 1.”  This witness had          taken           steps to ensure that the accused understands the contents of the         statement before calling upon the accused to sign it.

 

[4]     The defence counsel was given opportunity to cross examine the witness.          The cross examination centred around the fact that the accused had been        provoked, had smoked dagga and that there was communication breakdown         between the accused and the deceased over some dagga field belonging to    the accused that had been burnt down by the police.  There was no re-        examination.  The witness was then discharged.

PW 2 XOLANI THWALA

[5]     This witness stated that on the 18th February, 2015 at around 1700 hours, he    was requested by police officers from Mankayane Police Station to assist       them.  He stated that he noticed that in the police van there was the accused    person.  He further stated that the accused was well known to him and the accused voluntarily informed the witness that he wanted to show the police     officers a bush knife that he used to assault the deceased with.  He stated that the accused then led them to a forest which is above his homestead where he       pointed out           a bush knife, which was full of blood.

 

[6]     He stated that the police then took the bush knife and then proceeded to the           accused person’s homestead where he gave the police a black and pink    jacket which he alleged that he was wearing on the day of the commission of     the offence.  The cross examination by the Defence only established the fact    that at all times the accused was co-operative with the police.  The witness    responded to this allegation in the affirmative.

 

 

PW 3 – LINDIWE TFWALA

[7]     This witness stated that on the 18th February, 2015, she received a phone call           from the deceased who informed her about the arrival of the police in the           dagga field that was next to her homestead and that she feared that the    Mndzebele boys would attack her as they suspected her to have informed the police about the dagga field.  Her fear came about after someone had     informed her that this was said by the father of the accused at the dip tank on      the previous day.  She further stated that at around 11.30 A.M, she heard someone raising an alarm and she rushed to the deceased’s homestead with    Phindile Mvelase and Simangele Ngubeni and upon arrival, they found Duma          Mamba.  On the ground was the deceased who was bleeding from the head           and the arm. 

 

[8]     On cross examination, this witness maintained her version as per her       evidence-in-chief.  The defence put it to her that when she arrived at the Msibi       homestead she saw two people coming from the Msibi homestead; one was putting on a red T. shirt and the other was putting on a white T. shirt.  It was          further put to this witness that the deceased was outside washing when she    had a confrontation with the accused.  The confrontation was denied by this      witness.  The issue of the deceased’s missing goat and the provocation    was also put to this witness.

 

PW 4 – GCEBUMUZI DLAMINI

[9]     This witness is a brother to the deceased.  He stated in his evidence that on the 17th February, 2015, which was the previous day of the crime, whilst at the    dipping tank, he overheard the father of the accused saying “uma kungenteka emaphoyisa ashise insangu yetfu, kutofa umuntfu” (meaning that if the police        burn our dagga, someone will die).  The witness asked those he was with as     to whom was the father referring to.  Sifiso, PW 5, told the witness that the      father was referring to his sister.  That led to him confronting the father as the    only thing his sister had complained to the witness about was her missing goat.

          The cross examination centred around the issue of the utterances by the   accused’s father that should the police destroy the dagga, someone will die.

 

PW 5 – SIFISO HLATSHWAKO

[10]   This witness stated that on the 17th February 2015 at around 0700 hours          he was at Ngwempisana dipping tank with PW 4 and the father of the accused      who stated that on the Monday police surveyed his boys’ dagga fields.  The    Mndzebeles suspected that the deceased informed the police about the dagga     and that if the police were to burn the dagga field, someone would die.  After         that, a quarrel ensued between PW 4 and the father of the accused.  He further        stated that on the 18th February, 2015, whilst at a Msibi homestead kaBusisiwe      where traditional brew is sold, the father of the accused who was also there,       received a phone call from his wife telling him that his kids had caused some   damage which she did not mention.  The father then left for his homestead.     PW 5 noticed that a lot of people were going to the deceased’s homestead    and he also went there.  He found the deceased lying on the ground dead.  In      cross examination, the defence put it to PW 5 that the deceased had said that           she would inform the police about the dagga fields.  The police came to   inspect the dagga fields before destroying same.  In re-examination it      transpired that what caused the deceased to make mention of the dagga field to PW 5 was the issue of her lost goat which had disappeared in the dagga fields.

 

 

 

PW 6 – 5317 CONSTABLE MDUDUZI MHLANGA

[11]   This witness is the scenes of crime officer.  He took photographs of the   deceased, and the exhibits as well as the surroundings which he presented      before court.  He also presented a sketch plan.  On the 18th February, 2015 at         about          1300 hours, the witness received a report from the Desk Officer that     somebody had been murdered at Ngwempisana.  He went to the scene of crime     in the company of other officers and upon arrival, there were a lot of people      at the homestead of the deceased. 

 

[12]   A relative showed the officers the corpse of the deceased.  It was covered with a kanga.  The deceased was not breathing meaning that she was dead.  He took    photos of the body whilst it was covered and later took photos of the body    whilst it was uncovered.  The deceased body had multiple injuries on the head.  She had a cut on the right hand and it looked as if the hand had been cut.     There was another wound on the left arm.  There were sandals not far from the corpse which were black in colour.  There was also a red hat.  The witness       took photos of the sandals and the hat.  There was a pool of blood on the      ground.

 

[13]   After taking the photos, the witness drew a sketch of the scene which he later           developed into a sketch plan.  The body was then taken to the mortuary.  On    the 19th February, 2015, PW 6 was called by the Investigation Officer into the         murder.  He told the witness that the suspect was there and wanted to point          out something.  When the witness arrived, he found the accused there and the         accused was showing the Investigating Officer and the other officers the bush         knife he had used to kill the deceased.  PW 6 took a photo of the bush knife.           On the 26th February, 2015, the deceased body was taken to R.F.M. Hospital.     The witness asked the pathologist to extract some blood samples from the         deceased body and these samples were sealed.  The Investigating Officer         also gave PW 6 the bush knife which was also sealed.  It was together with a        black jacket which the accused wore on the day of the murder.  The bush     knife and the jacket were put in different seal bags.  The items were then taken           to the Police Headquarters in order for them to be sent to South Africa for           D.N.A purposes.

 

[14]   The sketch plan sketch and the photos were handed in.  The photos were           marked as “Exhibit 2 and the Sketch was marked as “Exhibit 3.”  The Defence did not object to same being handed in.  “Exhibit 3” relates to the scene         of crime and the pointing out.  The witness took the court through “Exhibit    3.”  The measurement (as far as the scenes of crime is concerned) are in meters          A to I and are shown as follows:

Key to Plan

          A – Deceased

          B – Blood

          C – Fixed point 1

          D – Fixed point 2

          E – Red Hat

          F – Black pair of sandals

          G – House

          H – House

          I – Trees

 

Measurements

          A – B  5.1 metres

          A – C  1.4 metres

          A – D  8.8 metres

          B – E  16.5 metres

          C – D  10.2 metres

          E – F    5.6 metres

          B – D  10.1 metres

          A – H   2.5 metres

          A – G   0.5 metres

          B – F   26 metres

 

Pointing out scene

Key to plan

          A – Deceased

          B – Fence

          C – Dagga Fields

          D – Accused homestead

          E – Pointing out scene

 

Measurements

          A – B  88 paces

          B – C  73 paces

          C – D 197 paces

          D – E   97 paces

 

[15]   After PW 6 had testified and before he was cross examined by the Defence,       an inspection in loco was carried out.  The inspection revealed that the         distance where the association meeting as per PW 3’s version was       approximately 2 km from the deceased homestead.  Busisiwe Msibi’s     homestead, the one who raised the alarm, is about 1.5 km from the   homestead of the deceased.    The father of the accused was at Busisiwe     Msibi’s homestead where the traditional brew was sold when the decease           took place.           The pathway above the homestead of the deceased, which the           accused was using during the alleged provocation, was about 300 metres from the           homestead.  The deceased was at her yard at that time.  PW 3 came with Phindile Mwelase to the     deceased homestead using the gate entry point    that leads to the cattle kraal.

 

[16]   During the inspection, the Scenes of Crime Officer, Mr. Mduduzi Mhlanga,           proceeded to give evidence at the scene.  He confirmed the measurements           referred to above. He further stated that on arrival at the deceased homestead, he was shown the body of the deceased which was covered with          a kanga.  The body of the deceased was found in between two houses   which          was a distance of about 5.5 metres.  He also noted a red hat and blood at a   distance of about 16.5 metres from the body of the deceased.  A pair of       black sandals, which was about 5.6 metres away from the hat, was also noted.  There was a pool of blood next to one of the houses.  The sandals           were 22 metres away from the blood. From         the kitchen to the main house, it           is about 70 metres.  From the fence of the deceased homestead to where   the dagga field was is about 73 paces.  From the accused homestead to the     dagga fields is about 197 paces.  From the accused homestead to where the bush knife that was used for committing the     offence was hidden is about 97         paces.  This witness took us to           all the above mentioned sites during           the     inspection in loco.  After the compilation of the inspection in loco          report, it was read into the record of proceedings.  The defence and the     prosecution confirmed its content.

 

[17]   On cross examination of PW 6 by the defence, it was put to him that there was           confrontation between the accused and the deceased before the incident.  It        was further put to the witness that the accused was provoked prior to the       incident and that he was under the influence of dagga.  On the issue of the        pointing out of the weapon that was used to kill he deceased, it was put to the       witness that the accused was not cautioned according to the Judges’ Rules   before pointing it out.  He responded by saying that he accompanied the          investigating officer in order to take photos of the scene.

 

PW 7 – Florence Msibi

[18]   This witness is the deceased sister in law.  She stated that her sister in law           stayed with two minor children as her husband was working and staying in           Matsapha.  On the 18th February, 2015, she received a call from her brother           telling her that an incident had happened at his home.  The witness met the           brother in Manzini who told her that the deceased had been killed.  They then           proceeded to Mankayane Police Station where the Station Commander broke   the news that the deceased had been murdered.  Later, the witness and her     brother went to Mankayane hospital to see the corpse.  She noticed some      wounds that were on the head and the arm.  When asked about how the    relationship between that of the accused and that of hers was, she responded           by saying that it was cordial.  The witness pointed out that there had been        tensions around the issue of the dagga fields.  The deceased had made mention    of these tensions to her prior to her being murdered.  There was also mention of the          issue of the goat that belonged to the deceased which had disappeared          in 2014.  This witness was not cross examined by the defence.

 

PW 8 – Ashley Gunas

[19]   This witness conducted the D.N.A.  He is a Forensic Analyst attached to the           Biology Section of the Forensic Science Laboratory in the South African Police Service.  He holds a Bachelor of Science Degree majoring in Bio     Chemistry and Microbiology which he obtained from the University of         KwaZulu Natal.  Included as part of the above mentioned course is molecular and cellular biology, which is relevant to D.N.A.  He has been attached to the           Biology Section of the Forensic Science Laboratory since 1 July, 2009.  He   has undergone in-house training with reference to serological and DNA     techniques.  He has approximately eleven years experience in biological    sciences.

 

[20]   The witness testified that during the course of his official duties on 25th May,           2015, he received the case filing pertaining to Mankayane (Swaziland) RCCI           126/15 (64322/15).  He then evaluated the results         from the samples that           were subjected to DNA analysis by a process requiring skill in biology.  He used the blood sample that was on the accused jacket marked “MN        2” – evidence sealing bag RSPFSL –      24202.  The next sample is the         reference sample           [10D3AB8125XX] [10D3AB8125EB, “M.M 3” which          was the blood extracted from the deceased body.  The expert then drew up a        Table and then made the     following finding.  

          4.1 The DNA result from the “Jacket” [blood] RSPFSL – 24202 “M.N.    2”) matches the DNA result from the Reference Sample        [10D3AB8125XX]           (10D3AB8125EB “M.M. 3”).

          4.2. The most conservative occurrence for the DNA result from the “Jacket.”       The expert handed in His report and there was no objection from the defence.          Same was marked as “Exhibit 4” by the court. There was no cross         examination of this witness by the defence.

 

PW 9 Dr. Komma Reddy

[21]   This witness examined the body of the deceased.  The post moterm report           revealed that the deceased suffered many injuries on the head which were all           fatal.  Further, it was revealed that the deceased had injuries on the arms with   the left hand almost chopped off.  The following antemortem injuries were    present:-

          1.       Chop wounds of 12 X 1 cms and 10.1 cm, present on the middle portion                  of the top of the head.

          2.       Chop wounds of 9 X ½ cm, 8 X ½ cm and 3 X ½ cm, present on the                           back side of the head.

          3.       Cut wounds of 5 X ¼ cm muscle deep, present on the middle portion of           the left side of the lower jaw.

          4.       Chop wound of 12 X 7 cms, present on the middle portion of the left                          forearm.

          5.       Right forearm is cut in the middle portion and the severed portion is                           hanging with skin.

          6.       A cut wound of 7 X 2 cms, muscle deep, present on the middle of the                         right forearm.

          7.       Cut wounds of 10 X ½ cm, 6 X ½ cm, 16 X ½ cm and 4 X ½ cm, muscle           deep present on the top of the left shoulder.

 

[22]   This witness further stated that injuries 1, 2, 4 and 5 were the most fatal and           severe.  The post mortem report was handed in and marked as “Exhibit 5.”       The defence did not object to it being handed in.

 

PW 10 – 5037 Detective Mduduzi Ndlangamandla

[23]   This witness received a report that death had occurred at Ngwempisana.  He     then went there in the company of Detective Sergeant 2142, Wilmoth     Tsabedze.  This witness also saw hacking wounds on the deceased head and hands.  There were clothes scattered around the yard including her shoes and        a red hat.  Upon inspecting the house, the witness saw some items that were       scattered.  He realised that there had been some struggle.

[24]   This witness conducted interviews with some of the people who had gathered           around the deceased homestead.  They pointed to Skuta Mndzebele who is        the accused person in the case before court.  We then went to the accused      place.  The accused was not there as he had left for Jericho in the Shiselweni    Region.  We then left for Jericho and on arrival, we found accused at a          Mabelesa homestead.  The witness managed to locate the accused because he had his photo.  He then introduced himself and the other police officers who   were accompanying the witness.  The witness told the accused that he was       being investigated for a murder case.  He cautioned him according to the          Judges’ Rules that he was not obliged to say anything and that whatever he           says would be used as evidence against him during the trial.  He elected to say           something and then volunteered to take us to Ngwempisana.  Before being           taken there, the accused was told of his right to remain silent and the right to    legal representation.

 

[25]   On arrival at Ngwempisana, PW 10 secured the services of Xolani Thwala,       PW 2 as an independent witness.  In the presence of Xolani, the witness         cautioned the accused according to the Judges’ Rules that he was not obliged       to say anything and that whatever he says will be used as evidence against him during the trial.  The accused voluntarily led us to a mountain that is above     his homestead.  Xolani and the Scenes of Crime Officer were part of the team.

          At the mountain, PW 10 cautioned the accused that he was not obliged to say           anything or do anything and that whatever he said or do will be used as evidence against him during the trial.  The accused elected to conduct a         voluntary pointing out in the presence of the scenes of crime officer,       Xolani and the witness.  He took a bush knife that was blood stained.  Continuing with the pointing out, the accused led them to his homestead      where still under caution, he pointed out a black and pink sweater that had    blood stains.  The accused had been putting on the sweater on the day of          the incident.  The witness took the sweater as an exhibit to be produced        before court.

 

[26]   The accused was then taken to Mankayane Police Station for further            investigations.  At the police station and in the presence of the accused, the           bush knife and the sweater were sealed separately.  They were then forwarded to the scenes of crime officer who then despatched them to South Africa for          forensic analysis.  At the police station, the witness cautioned the accused   according to the Judges’ Rules that he was not obliged to say anything and    that   whatever he says will be used as evidence against him during the trial.           The    accused elected to say something and that was reduced to writing.  The          accused then requested to make a confession.  He made this request     voluntarily.  The witness then facilitated for the making of the confession         which led to the accused being brought before a magistrate.  As part of his       testimony, the witness presented the shoes and the hat, that were found at the          deceased homestead, the bush knife that was pointed out by the accused,            and the red and black jacket.  These items had been earlier on, presented by      the scenes of crime officer and same had been marked as “Exhibit 3.”

 

[27]   During the cross examination by the Defence it was put to this witness that      the accused was not cautioned during the pointing out, the visit to the scenes          of crime and the investigations.  It was put to the witness that the caution he         administered only dealt with the issue that a statement made by the accused        would be used as evidence against him during the trial.  It did not go further     to touch on the issue of pointing out.  The witness responded by saying that    the caution was properly administered.  On the issue of the confession, it was     said   that the witness did not properly explain to the accused what a      confession is; otherwise he would not have agreed to make it if he knew what     it was.  The          witness responded by saying that many cautions were       administered and the accused was co-operative throughout.  He was also      informed what a confession is all about and its contents before the accused           indicated that he wanted to make it.

 

[28]   After PW 10 had finished giving evidence, the crown closed its case.  An           opportunity was given to the defence to present its case.  The counsel for the           defence indicated that the defence is also closing its case without leading any           evidence or calling a witness.

 

The parties’ submissions

The Crown

[29]   The Crown submits that it has proven its case beyond reasonable doubt.  The

          evidence led shows that it is the accused who committed the offence of     murder.  The accused also recorded a confession before Magistrate M.          Dlamini wherein he stated that he killed the deceased using a bush knife.   The     accused further pointed out the bush knife he used when committing the        offence was later hidden in a mountain above his homestead.

 

[30]   The Crown further submits that the murder of the deceased was premeditated   as it was pointed out by PW 4 and PW 5 that on the previous day they had    overheard the father of the accused stating that should the police burn his son’s   dagga field, somebody was going to die and indeed the deceased was killed.    The accused in his confession stated that he was passing by the deceased          homestead when the deceased told him that the police had done well by       spraying the dagga and after that there was confrontation and the accused          assaulted the deceased on the head.  The accused stated in his confession that he was aggrieved by the police act of spraying his dagga.

 

[31]   It is the Crown’s submission that after the police had sprayed the dagga and     left, the accused smoked dagga and proceeded to the homestead of the   deceased who was in the kitchen cooking and hacked her.  The deceased tried         running away from the accused but could not outpace him as he was      butchering her with the bush knife.  No one from the Mndzebele homestead came to assist the deceased notwithstanding that their homestead was     close by.  PW 5 also gave evidence that the father of the accused received a call       from his wife informing him that the accused had injured the deceased.  The    women that          were about 1.5 km away from the scene of the crime rushed to           the deceased homestead to try to rescue the deceased.  This seeks to prove        that the Mndzebeles knew about what had happened and who had done          it.

 

[32]   The Crown submits that the accused and his family were clearly a menace to     the deceased and her family especially when you look at the proximity of the          deceased homestead to the dagga fields as opposed to the parental       homestead of the accused.  After the commission of the offence, the accused          proceeded to Jericho to a homestead of a traditional healer.  The accused was     found by the police there waiting for his turn to be attended to by the healer.

 

[33]   The injuries inflicted by the accused on the deceased were gruesome.  The          post mortem report indicated that most of the injuries sustained by the deceased were fatal.

 

[34]   The Crown humbly prays that the accused person be found guilty of murder.

 

 

The defence

[35]   The defence submits that the basis for the Crown to contend that the accused    be found guilty of murder is the confession the accused made before PW 1   Magistrate M. Dlamini. The accused states in the confession that he   mistakenly killed the deceased and that he had smoked dagga.  On the basis    of the statement, which it must be noted, has been brought by the Crown as          evidence, mens rea on the part of the accused is eliminated.  It is further contended that since such evidence was brought by the Crown and accepted      by the defence, the fact of the accidental death of the deceased is     common cause.

 

[36]   The defence further submit that once evidence on confession is tendered   everything contained in it should be considered and the court should not          concentrate only on the incriminating aspects and ignore and/or disregard the       exculpatory aspects of it.  Joubert – the Law of South Africa Vol 9 at page       367 paragraph 536 is authority for this proposition where it is stated that “The        whole confession becomes admissible when an accused referred to it directly,      or by way of cross examination ………… The court ……… found that there was no reason why a court should be entitled to have regard to the          incriminating parts of such statements while ignoring the exculpatory parts.”

          Further authority for the proposition is Rex v Mathabane 1945, P.H.H. 52           where it is stated that “a statement made by an accused or any other person           against whom it is sought to be proved must, of course, be read as a whole.”

 

[37]   The defence submits that if the confession is the basis for the Crown’s case,      the other witnesses that were led merely related the circumstances around the           commission of the offence, that is, the pointing out, and their arrival at the           scene after the offence had been committed.  There are no witnesses who witnessed the incident and can dispute the accused person’s version.  The      defence contends that looking at the evidence as a     whole, did the accused   person have the intention to kill the deceased?  It therefore humbly submits      that the accused person did not have the intention to kill the deceased.  In other       words, the accused acted negligently and/or recklessly.

 

[38]   The defence finally submits that the burden of proof in criminal matters lies      with the Crown.  In the present case, the Crown has not proved that the          accused set out to kill the deceased and had the necessary intention to do so.          The accused should therefore be acquitted and discharged in respect of the offence of murder and be found guilty of culpable homicide.

 

APPLICABLE LAW

[39]   Although no witness was brought to testify to the killing of the deceased, there           seems to be no contention that the accused is the one who killed the deceased.  This is evident from what the accused said when he was called upon to plead when he stated that he killed the deceased but the killing was unintentional.  In other words, the killing was a mistake.  The confession, which was         unchallenged by the defence, also confirms the accused’s position that he did         not intend killing the deceased.  The submissions by the defence at the close      of the prosecution’s and the defence’s case also point towards the fact that the          accused was allegedly provoked and that he was under the influence of dagga.  This, according to the defence, vitiates the intention to kill.  Likewise the         D.N.A. points to the accused as the perpetrator.

 

[40]   The question that begs for determination is whether the accused intentionally           killed the accused or not.  If the intention has been established, the accused       will be guilty of murder.  If it is not established he will be guilty of culpable    homicide.  In so making this determination the principles are worth       considering before same are applied to the facts.  In the case of the Director   of Public Prosecutions v Oscar Pretorius Criminal Appeal No. 96/2015,        His Lordship Leach JA observed at page 7 that:-

                   “Murder is the unlawful and intentional killing of another person.  In                           order to prove guilt of an accused on a charge of murder, the state must              therefore establish that the perpetrator committed the act that led to the                death of the deceased with the necessary intention to kill known as                        dolus.  Negligence or culpa, on the part of the perpetrator is                                insufficient.”

 

[41]   The Learned Judge continued to say that:-

                    “In the case of murder a person acts with dolus directus if he or she                     committed the offence with the object and purpose of killing the                                      deceased.  Dolus eventualis on the other hand, although a relatively                              straight forward concept, is somewhat different.  In contract to dolus                             directus, in a case of murder where the object and purpose of the                         perpetrator is specifically to cause death, a person’s intention in the                     form of dolus eventualis arises if the perpetrator foresees the risk of                     death occurring, but nevertheless continues to act appreciating that                             death might well occur therefore “gambling” as it were with the life of              the person against whom it is directed.”

 

[42]   Dolus directus is about the perpetrator purposing to cause death whereas dolus           eventualis is about the perpetrator foreseeing the risk of death occurring,          but continues to act, reckless as to the consequences.  The perpetrator must   therefore (1) foresee the possibility of death occurring, and (2) reconcile with      that foreseen possibility.  In the case of Sihlongonyane v Rex Criminal    Appeal 40/1997, His Lordship Tebbut JA made a clear distinction       between dolus eventualis and culpa when He said at page 5 that:-

                   “It will be appreciated that the cardinal point to the whole concept of                           dolus eventualis is the element of foresight. It is perhaps this that has                             caused the greatest confusion in deciding whether the Crown has                         established dolus eventualis or merely culpa, due it would seem, to a                  lack of a proper appreciation of the distinction between the two.       In                        the case of dolus eventualis it must be remembered that it is necessary                to establish that the accused actually foresaw the possibility that his                       conduct might cause death.  That can be proved directly or by                                   inference, i.e. if it can be said from all the circumstances that the                       accused must have known that his conduct could cause death, it can be               inferred that he actually foresaw it.  It is here that the trial court must                      be particularly careful.  It must not confuse “must have known,” with                      “ought to have known.”  The latter is the test for culpa.  It is an                          objective one.  In our law it is whether a reasonable person in the                        position of the accused ought to have foreseen the consequences of his                 conduct.”

 

[43]   The Learned Judge continued to summarise the essential elements of dolus           eventualis at pages 4 and 5 as follows:

                   “They are: 1 Subjective foresight of the possibility, however, remote of                  the accused’s unlawful conduct causing death to another.  2.                               Persistence in such conduct despite such foresight.  3. The conscious                              taking of the risk of result and death, not caring whether it ensues or                              not.  4. The absence of actual intent to kill.  In the case of dolus                                     eventualis it must be remembered that it is necessary to establish that                              the accused actually foresaw the possibility that his conduct might                        cause death.  This can be proved directly or by inference, i.e. if it can                             be said from all circumstances that the accused must have known that                            his conduct might cause death, it can be inferred that he actually                          foresaw it…………..  The issue of dolus eventualis is whether the                           accused himself or herself foresaw the consequences of his or her                          act………”

 

[44]   A more practical approach to the issue of mens rea or intention was           established by His Lordship Maphalala M.C. B. J, as He then was, in the           High Court case of Rex v Sabelo Kunene Case No. 445/2011 where His           Lordship observed at page 18 what He said earlier in the case of Shongwe        v Rex Criminal Appeal No. 24/2011 at paragraph 46, that:

                   “46. In determining men 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                           inflicted.  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 the body using a dangerous weapon, the only                        reasonable inference to be drawn is that he intended to kill the                                     deceased.  See also Ntokozo Adam v Rex, Criminal Appeal No.                      16/2010 and Xolani Zinhle Nyandeni v Rex, Criminal Appeal No.                          29/2018.

 

[45]   The accused states that he was provoked by the deceased beside the issue of     him having smoked dagga.  In our jurisdiction the defence of provocation calls         for the consideration and application of the Homicide Act No. 44 of 1959.          Section 2 of the Act provides that:

                   “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.
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                   “3 (1)Subject to this Section “provocation” means and includes any wrongful act or insult of such 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 or servant to deprive him of power of self-control and to induce him to assault the person by whom such act or insult is done or offered.

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                   “[36]That key phrase lies in the underlined words: which but for. “A person who otherwise would be convicted of murder, were it not for the saving grace of the statute AND who kills in the heat of passion caused by sudden provocation before there is time for his passion to cool may avoid a conviction of murder.Most importantly, the court must be satisfied that the act which causes death bears a reasonable

relationship to the provocation.Also, that the act of provocation on which reliance is placed, must deprive the accused the power of self-control and to induce him to assault the other.”

 

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time lag between the provocation and the act.This means that there should be no cooling off period.Second, the relationship between the nature of the provocation and the reaction of the accused thereto which brings about the deceased’s death. In other words, there must an element of proportionality between the two.

 

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COURT’S ANALYSIS AND CONCLUSION

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                   “As I was passing by the deceased’s homestead, I saw her outside washing dishes.Upon her seeing me as well she left what she was doing and started shouting something to the effect that what happened to the dagga fields I was growing?She further stated that she had proved me wrong.When she was stating all these, she was not aware that I was hurting inside.I got extremely angry and provoked by her words.I really lost my cool and composure and went to her and upon reaching her I struck her with a bush knife on the head.”

 

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utterances were heard by PW 4 and PW 5.The fact that the Mndzebele family never came to the rescue of the deceased should be another factor to take into account in concluding that the murder was premeditated.As indicated earlier, the accused stated that he stands by his confession.In the confession the accused states that he was provoked prior to the incident.He was passing by the homestead of the deceased to meet a friend who would go with the accused to the forest to cut logs.The utterances that should the police destroy the dagga, someone will die cannot be attributed to the accused since same were uttered by the accused’s father.It would have been otherwise if the words were uttered by the accused.There is nothing that suggests that the murder was premeditated.The intention was in the form of dolus eventualis.

 

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beyond reasonable doubt and the accused is guilty of the crime of murder as charged.I accordingly return the verdict of guilty to Murder.

 

 

 

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M.R. FAKUDZE

JUDGE OF THE HIGH COURT

 

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Defence: N. Ndlangamandla