IN THE HIGH COURT OF ESWATINI
Held at Mbabane Case No.: 175/2014
In the matter between
Neutral Citation: Rex vs Phiwokwakhe Masilela (175/2014)  SZHC 119 ( 01st July 2019)
Coram: Hlophe J.
For the Crown: Miss B. Ndlela
For the Respondent: Mr S.Maseko
Dates Heard: 01/04/19, 08/04/19, 19,06/19, 20/06/19
Date Judgement Delivered: 01 July 2019
Criminal Law – Murder – Consists of the unlawful and intentional killing of another human being – Intention that suffices in proving murder can either be direct or indirect, that is respectively dolus directus or dolus eventualis (legal invention) – Whether intention has been proved in the circumstances.
Criminal Procedure – Although he has no duty to prove his innocence, an accused has a duty to put his case to the crown witness during his cross – examination of them – Effect of failure by an accused person to put his case to crown witnesses discussed.
Circumstances of the matter reveal negligence as the form of men rea – Culpable homicide as opposed to murder is the appropriate conclusion to reach – Accused convicted of Culpable Homicide therefore.
 The accused person stands charged with murder it being contended that he, on the 18th February 2014, at Nyakatfo area in the Hhohho Region, unlawfully and intentionally killed one Ester Mavuso, an adult female person. When the trial commenced, the accused pleaded not guilty.
 In an attempt to discharge the duty placed on it by law – that is the duty to prove the accused person’s guilt beyond a reasonable doubt – the crown called 5 witnesses in all. These witnesses were PW1, Dr Koma Reddy the Pathologist who examined the corpse of the deceased; PW2 Nkosingiphile Mhlanga; PW3 Sibongile Mkatane, PW5 5810 Detective Constable Sizwe Mazibuko as well as PW4 6418 Constable Mduduzi Masango (both from Buhleni Police Station). There was also entered by consent the Medical Report prepared by Dr E.S. Marpfela, the Medical Doctor who attended the deceased at Mkhuzweni Clinic before she died. This Report was marked as Exhibit “C”.
 The evidence of the crown reveals that on the fateful day, the 13th February 2014, the accused and PW2 his brother in law, left the homestead of the accused and went to a certain Mvila homestead, which is situated at Nyakatfo area to ask for maize which could be used to feed the accused’s family. At this homestead they drank two jars of marula beer, which it is common cause was highly potent. It should be noted that (a case put to the witness, was that they had taken four (4) jars of marula beer which is, a version supported by the witness’s own statement to the Police. It is plausible therefore to accept that they took four jars of the potent marula brew).
 The accused and PW2 later left for the homestead of Litjelenyoni Mhlanga, where further jars of marula brew were taken. According to PW2, there developed a misunderstanding between him and the accused, his brother in law. This misunderstanding culminated in the accused hitting him with an open hand. This made PW2 leave the said homestead and went to his home where he immediately went to sleep. He was still asleep in his house when the door to it was forced open with a loud bang by the accused. He started assaulting him(PW2), dragged him outside by his leg. He thereafter led him away whilst continuing to assault him. This incident was witnessed by PW3, Sibongile Mkatane, the mother to PW2, who testified in court to confirm same.
 Pw2 was still being assaulted and led away as they passed the homestead of Chambers Mhlanga, who was to be later known as the husband to the deceased. Observing the accused assault PW2, who she referred to as her son, Chambers Mhlanga’s wife, Esther Mavuso she stood up and challenged the accused to desist from assaulting PW2. She called, PW2, to enter her homestead, whilst shouting at the accused not to enter it. PW2 managed to free himself and entered the said homestead. The deceased, whilst shielding PW2, who was now behind her, from the accused through raising as a sign he was not welcome there her hands, was hit once on the abdomen with an estimated long log by the accused. Reacting to that strike, the deceased screamed out aloud claiming that the accused was killing her. For same reason, the blow appeared to be more than normal or to have hit a very delicate or abnormal part of the deceased’s body as she had also defecated on herself at that time.
 The accused behaviour prompted Chambers Mhlanga run to his house or its kitchen whereupon he picked up his own weapon with which he struck the accused once causing him to flee leaving the deceased, Ester Mavuso screaming on the floor. She was eventually attended to and taken to the hospital at Mkhuzweni Health Centre, that evening. She was released after being attended to by nurses, who directed she be brought back the next morning for attention by the Doctor. Although she was brought back she never recovered as she eventually died.
 Following the death of the deceased, the accused was arrested and charged with murder, it being alleged he had killed the deceased Ester Mavuso.
 It was put to PW2 that the deceased was actually hit with an iron rod by the Chambers Mhlanga at the time he hit the accused. It was further put that as a result of the strike the deceased had screamed out loudly as she collapsed. PW2, to whom the version on how the deceased had been struck the fatal blow by her husband Chambers Mhlanga was put, denied that version and maintained the version he had stated in his evidence in chief and remained unshaken in my view in that regard. He insisted that Ester Mavuso had already been hit by the accused and was on the floor when Chambers Mhlanga ran to the house or kitchen to fetch his weapon with which he hit the accused.
 According to the Pathologist, the deceased’s death had been caused body “a blunt injury to the abdomen”. Otherwise two antermarterm injuries were found on the deceased’s corpse. These were a linear contusion of 3 x ¼ cm and ½ x ¼ cm contusion present on the lateral side of the lower jaw. The other injury which was to the abdomen of the deceased’s corpse was a contusion of 25cm x 9 cms which was present on the left side of the abdomen where it was laterally placed. On the portion of the report that talks of the condition of the intestines and mesentery, it was stated as follows; “mesenteric blood vessels ruptured. Two loops of small intestines ruptured”. The pathologist described this latter one as the fatal injury in his report.
 The conclusion of the pathologist on what the fatal injury wound was and how it was caused was not challenged in so far as the version of the defence was not put to him, to enable him react thereto. In other words his version stood unchallenged on what caused the injury that killed her including the contention that it had been placed there laterally something that would not have been possible if it was inflicted through a struck by Chambers Mhlanga which had already struck the accused himself so viciously that his teeth had to be taken out of their position.
 The medical report of the doctor who examined the deceased before she died, that is when she was brought for treatment after the assault on her, Dr E.S. Mapfela, was handed in by consent. It described the nature of the injury or bruise found on the deceased’s body in the following words:- “Bruised left lateral subcostal area of abdominal wall.” In other words he observed that the deceased had a bruise or injury that had been effected in a sideways manner on her abdomen.
 The point being made here is that it is a bruise effected with an object that landed in sideways manner from the strike as opposed to one that landed on a top down manner on the body of the deceased, particularly her abdomen, whilst she was standing. This finding by the medical doctor was not challenged through a different version being put to the crown witnesses or through a sound explanation on how it would otherwise have occurred. The only attempt at how the alleged injury could have been effected by Chambers Mhlanga’s strike on the accused was woeful and it could not make any sense at all. As regards the medical report was itself handed in by consent, which means that it stood unchallenged.
 In the testimony of the investigating officers, there was no difficult, in having the suspect in the assault of the deceased arrested. PW5 corroborated the testimony of PW2 on how the deceased was taken to Mkhuzweni Health Centre including when and how she eventually died as well as how the accused was arrested. There was not much cross examination of this witness.
 The accused person gave sworn testimony which means that he was subjected to cross examination. He mainly confirmed the version of PW2 his brother in law, on how they had gone to the Mvila and Litjelenyoni homesteads including what they did there in the form of the marula brew jars they there took, except for minor immaterial differences. He also testified how he eventually fetched PW2 from his homestead whilst asking him about his shoe that he did not find outside Litjelenyoni Mhlanga’s house. The accused differed sharply from PW2’s version, particularly on how the injury on the deceased came about. He told the court that the deceased was injured outside the compound of Chambers Mhlanga’s homestead. He denied that the injury had been effected through the log that had been handed into court as Exhibit 1. He first said that the injury on the deceased’s abdomen had been effected through his having fallen on her as he was himself being hit by the deceased’s husband Chambers Mhlanga, by means of an iron rod
 In this regard he contradicted the version that his counsel had put to PW2, that the deceased’s injury had arisen from a strike by Chambers Mhlanga with an iron rod. Upon hearing this being put to him, he once again changed his version and now said that the injury had been caused by a strike by Chambers Mhlanga with an iron rod when he struck him with it on the side of the head or face or jaw. In other words the injury on the deceased was a result of the same strike that had been effected on him by Chambers Mhlanga. It was unclear how the strike that hit him with so much force on his own version could have still retained the same force to injure the deceased in the manner shown by the pathologist.
 This became confusing as it was contradictory to what he had said initially. The court sought to understand how a strike directed at him, could after having hit him with so much force as to loosen his teeth could have gone on to hit the deceased with such deadly force as to cause a rapture of the mesenteric blood vessels and that of the two loops of the intestines as found by the Pathologist. He was asked to demonstrate how it all happened and he had a very serious difficulty in doing so. It was further put to him that was not the version put to crown witnesses on how the injury on the deceased had been effected. For the sake of clarity, Chambers Mhlanga had come in between the two of them with the deceased when he struck him and the deceased with the iron rod. It was unclear if not impossible how the deceased would have been hit on the left handside of her abdomen if they were facing each other from the demonstration given or made by him.
 The position of our law is now settled that an accused person, although having no duty to prove his innocence, he does have a duty to put his case to the crown witnesses as at the time they give their testimony; that is during their cross examination by him or his counsel. A failure to do so would allow an adverse conclusion to be drawn against the accused. See in this regard Rex Vs Thokozani Joseph King Mngomezulu Criminal Case No 481/2010. Furtherstill an attempt to put a material version that had not been put to the crown witnesses amounts to an after thought and is not admissible. The case of Dominic Mngomezulu and Others V Rex, Criminal Appeal Case No.94/92, instructive in this regard.
 In so far as the accused failed to put his version on how he contends the fatal strike on the deceased was caused, I cannot help but reject his version, whilst upholding or accepting that of the crown on how the fatal blow was effected on the deceased which is that she was hit by the accused with the log entered on record as exhibit 1. The version of the crown is further corroborated by the fact that both the Medical Doctor and the Pathologist found that the injury on the deceased was laterally placed which means that it could not have been caused by the fall on the body of the deceased by the accused.
 Furthermore, the injury could not have arisen from the same strike that allegedly hit the accused from Chambers Mhlanga causing him a dislocation of his two teeth if it went on to hit the deceased so ferociously and viciously that she had to have raptured vessels and intestines.
 I should further reject the accused’s version because of its being riddled with contradictions; from the accused person himself as he tried to explain how the fatal injury was effected on the deceased. Whilst she admittedly has no duty to prove his innocence, she is obliged to give an explanation that is reasonably possibly true, See in this regard Rex V Mfanukhona Johannes Dlamini Criminal Case 28/13 and the authorities therein cited. A confused and contradictory explanation by an accused who decides to give one is no explanation at all and cannot stand. If there was no question in law on whether from the circumstances of the matter it can be said that murder as an offence had been proved, this would have signaled the end of the matter. I must therefore turn to this question at this point.
 Having noted and accepted that the deceased had been hit once on the abdomen by the accused, the ferocity and viciousness of the strike notwithstanding, I enquired from the parties counsel during submissions if it could be said that murder had been proved in such circumstances. Miss Ndlela for the crown, did not hesitate to state that, the circumstances proved more culpable homicide than murder. Similarly Mr Maseko who represented the accused confirmed that if his client could not be acquitted on the basis of his submission that no offence had been proved to have been committed by his client, then murder as an offence could not be sustained from the facts as opposed to culpable homicide. I thank both counsel for their assistance in this regard particularly in remembering that the practice of the law is not about a winner or loser than it is about securing justice; no less no more.
 The answer on why it would have to be culpable homicide as opposed to murder can be found on intention. The position of our law is settled that murder consists in the unlawful and intentional killing of another human being, which is different from culpable homicide which is the negligent killing of another human being. From the circumstances of the matter, the unlawfulness of the killing is or cannot be in issue. The issue is over intention, that is having found that the accused is the one that landed the fatal blow, was that indicative of an intentional strike or a negligent one?
 In our law, intention, otherwise known as dolus, is divided into two parts, namely direct intention (dolus directus) and indirect intention (dolus eventualis). The latter specie of intention has also come to be known as legal intention.
 In simple terms, direct intention or dolus directus which is also referred to as intention proper, consists in a case where the accused is shown as having planned or desired the consequences of his actions. Without wasting time there was not even a suggestion here that the accused planned or desired the death of the deceased.
 On the other hand legal intention (dolus eventualis), occurs or consists in a case where the accused although he may not be shown to have planned or desired the consequences of his actions, he cannot avoid liability for them on the grounds that he foresaw the possibility of the consequences occurring or resulting from his actions but was reckless on whether or not they did occur. In this instance intention is a conclusion attributed by law from the circumstances of the matter. See in this regard Thandi Tiki Sihlongonyane V Rex case no.40/97. This position was expressed in the following words in the said case:-
“….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. It is well settled in South Africa and it is the same in Swaziland, that the test of the foresight or foreseeability which the accused must have in order to constitute dolus eventualis is a subjective one. (See R V Nsele 1955 (2) SA 145 (AD) a decision that has consistently been applied in South Africa since then….and Annah Lokudzinga Matsenjwa V R 1970 – 76 SLR 25 at 31 B-F (in Swaziland)…”
 In Rex V Sabelo Kunene Criminal Case No.445/2011, the court had the following to say with regards when and how intention is to be inferred:-
“In determining mens rea in the form of intention, the court should have regard to the Lethal weapon used, the extent of the injuries sustained as well as the part of body where the injuries were inflicted..”
 The same position was put somewhat differently in Mazibuko Vincent V Rex Criminal Appeal 1982 – 1986 SLR 377 at 380 A where the following was said:-
“A person intends to kill if he deliberately does an act which he appreciates might result in the death of another and he acts recklessly as to whether such death results or no.”
 Reverting to the facts of this matter, it is not in doubt that save for the severity and ferocity with which the strike on the deceased’s abdomen was effected by the accused, there is a doubt on whether the accused can be said to have foreseen the death of the deceased from his assault. It is not all the time that people struck on the abdomen are killed such that the accused may be said not to have foreseen the death of the deceased. Of course the viciousness or ferocity or severity in the strike on the deceased can easily be attributed to the four plus several other unknown jars of marula beer the accused had taken earlier on that afternoon running into that evening from the Mvila and Mhlanga homesteads.
 If I cannot accept that the accused intended by means of either dolus directus or dolus eventualis to kill the deceased, I should then find that he was negligent in hitting her in the manner he did both from the point of negligence quo or from the point of his having done what he did under the influence of alcohol which would have no doubt diminished his mental faculties or his appreciation of situations.
 Consequently, on the basis of the foregoing I have come to the conclusion that the accused person cannot be found guilty of murder but instead be found guilty of culpable homicide of which I accordingly convict him. In other words I have found the accused guilty of the negligent killing of Esther Mavuso.
N. J. HLOPHE
JUDGE – HIGH COURT