IN THE HIGH COURT OF ESWATINI
Held at Mbabane Case No.: 435/2014
In the matter between
REX
VS
VUSI ERNEST SHABANGU
Neutral Citation: Rex Vs Vusi Ernest Shabangu (435/2014) [2019] SZHC 246 (10th December 2019)
Coram: Hlophe J.
For the Crown: Mr S. Gama
For the Respondent: Mr X. Mthethwa
Dates Heard: 13/11/2019, 14/11/2019, 20/11/2019, 21/11/2019 26/11/2019
Date Judgement Delivered: 10th December 2019
Summary
Criminal Law – Accused charged with Murder and Assault with intent to cause grievous bodily harm – Proof of Intention to murder cases –Whether intention proved in the matter –Assault with intent to do grievous bodily harm not disputed – Established that the accused intended to injure the complainant in a serious way – Accused guilty as charged.
JUDGMENT
[1] The accused stands charged with two respective counts comprising murder and assault with intent to do grievous bodily harm. As regards Count 1, which is the charge of murder; the accused is alleged to have unlawfully and intentionally killed one Boshiwe Ntshangase who was his maternal grandmother. This offence is alleged to have been committed on the 13th November 2013 at Mambane area in the Lubombo District.
[2] On the other hand, Count 2 arises from an incident in which the accused is alleged to have assaulted his mother, one Thandi Shabangu by hitting her twice with an iron pipe. Otherwise the deceased who is the subject matter of Count 1, is the mother of PW 1 and the maternal grandmother of the accused. The evidence shows that the two offences occurred on the same day and immediately one after the other. Otherwise to prove its case in discharge of the duty placed on it by law, the crown led the evidence of three witnesses namely PW1 Thandi Shabangu; PW2 Rose Mthethwa (nee Mthembu) and PW3, 6817 Constable Phiwokwakhe Dlamini.
[3] According to PW1, it was early in the morning of the 13th November 2013, and whilst they were still asleep in the house, a two – roomed house, with her mother, the deceased when there was a wild banging knock on the door. Still not properly dressed to go out of the house presumably confirming that it was still too early that morning, she went to answer the knock. She had enquired who it was knocking that early and in that manner. A response had indicated the person knocking thereat, to be the accused, her son. Perhaps owning to the state of her dressing at that time she had merely opened the door and rushed back to her bedroom. Her mother was at the time sleeping on a bed in the sitting room which was that at whose door the accused had just been allowed in.
[4] She heard some noise as though utensils were being broken or hit. This was followed by the accused asking in an angry voice wanting to know from the deceased, what it is he had said to her. Before there was an answer from the deceased, she heard her scream after she had been hit on the side of her head. She was already shaking at the time she found her, a sign that she was dying in response to the accused’s strike on the side of her head. The accused was already moving out of the house when she asked him why he had killed the deceased; his grandmother. The accused answered by hitting her twice with the iron pipe used to hit the deceased. This pipe was described as being equal to the accused’s arm in size. It was estimated to have a diameter of 5-8 cm and was about a metre in length. It had a nut bolted on the end used to strike the deceased.
[5] This witness says that from the accused’s two strikes she was injured on both her arms. In fact the blows thrown, she said, were meant for her head, but through raising her hands, she managed to block them, resulting in her suffering permanent injury on one of her fingers which has remained dysfunctional to this day.
[6] PW1 and her mother the deceased were taken to Good Shepherd Hospital in Siteki before being transferred to Mbabane Government Hospital for treatment. Whereas PW1 was treated and eventually released, the deceased died after spending some weeks in hospital.
[7] The medical report was handed into court by consent. It revealed that the cause of death was some complication arising from the injuries suffered by the deceased on the head. This Report was upon being handed into Court marked Exhibit “A”. There was no dispute that the said injuries were those inflicted by the accused on the deceased.
[8] According to PW2, she is one of the women neighbours of PW1, who were in the nearby fields weeding on the 13th November 2013, when she heard an alarm being raised by PW1 at her home. She ran towards that homestead in answer thereto. Upon arrival there, she came across the accused who was known to her as the son to PW1. He had a terrifying look on his face. They had never seen him like that before. He was looking deadly and very angry. Although he had asked her if she was the only one to have responded to his mother’s alarm, she had not responded out of fear. The accused took his jacket and left the premises. She further said that although PW1 was treated and discharged, the deceased was not so lucky as she died in hospital after sometime.
[9] PW3 the Investigating Officer,6817 Constable Phiwokwakhe Dlamini, told the court how he had received a report of serious assaults that had occurred at PW1’s homestead at Mambane area. They responded to the report. On their way to complaint’s home, that is PW1’s home, they met the ambulance conveying the then victims of the accused’s assault to hospital. At the said homestead they were attended by PW2, Rose Mthethwa who related the whole incident to them including who the suspect was. They later learnt where to find the accused after obtaining his full names. Upon finding the accused he was cautioned in terms of the Judges rules particularly that, they were investigating two cases of assault of two elderly women in the form of the deceased and the complainant in Count 2 (PW1 in other words). He was further advised that he was not obliged to tell them anything and that if he did, such would be recorded and could be used in Court against him.
[10] He said that the accused told them something which was recorded in form RSP218. Arising therefrom, the accused led them to his mother’s homestead where at he pointed out the steel or iron pipe used in the assault concerned. It had an estimated diameter of some 5-8 cm; with an estimated length of between half a metre to one metre.
[11] The accused was eventually arrested and charged with two counts of assault with intent to cause grievous bodily harm. The accused was later remanded into custody pending trial. It was after about two weeks that they learnt of the death of the deceased in circumstances which suggested a link between the assault and the subsequent death. This event led to the change in the charges hitherto preferred against the accused. He was later charged with the murder of the deceased.
[12] After the crown had closed its case, the accused was led in evidence after being sworn in. He told the Court that he had been brought up by his late grandmother, the deceased herein at her homestead. Owing to the manner in which his uncle’s wife and the deceased used to trade insults, one referring to the other as a witch, he had grown up knowing his said grandmother to be a witch. After sometime he decided to go to his paternal homestead which was just across the river from where his aforesaid grandmother was staying. It was not very long before his grandmother moved over to stay at the accused’s paternal homestead, which was also known as Thandi Shabangu’s (PW1’s), homestead.
[13] It was after sometime that he started experiencing problems of health which came about with horrible dreams about her grandmother. This raised his suspicions that he was being bewitched by her. These fears and suspicions of his were confirmed after he had gone to consult a traditional healer. Although this traditional healer did not specifically tell him that he was being bewitched by his grandmother, he did suggest it when he told him that he needed to be careful about his grandmother as she was a problem. This angered and frustrated him he said. Moreso, he was angered by the fact that whereas he had already left his grandmother’s place because he believed she was bewitching him, she had followed him and had now joined him at his parental home or at his mother’s homestead.
[14] It was in reaction to this that he said he reported his frustration with the Community Police of Mambane area, who he asked to assist him by communicating his said anger and frustration with his family members. They were in fact being asked to ask his grandmother to leave his homestead.
[15] When these people asked why he wanted his grandmother out of his parental homestead, he told them that the problem he was having with her, was now even bigger because whenever he tried to engage his mother (PW1) on any matter, she would be quick to seek her mother’s (that is the deceased’s ) opinion. Due to the fact that no agreement on a solution could be reached with those people, he had escalated his matter to the area’s Chief at the Umphakatsi or Royal Kraal. Although he was there asked to restate his problem, which he had done, the matter was never finalized because it had last been postponed, with them being informed they would be called back on a future date. He had otherwise advised that his main problem was the fact that his maternal grandmother had been brought to stay at their paternal homestead without them being consulted. His frustration with that he said was the fact that his mother was now colluding with his grandmother to dispose off their family assets without their knowledge or consultation. No solution was reached because the Umphakatsi had asked him to bring his maternal uncle (the brother to his mother) there. This had made him lose faith in the entire process and he had decided not to comply with that directive.
[16] He said he had left his mother’s homestead, (which he referred to as his smaller homestead) to go and stay at what he referred to as his father’s main homestead. He further testified that no sooner had he done so than he started seeing his grandmother visit his main homestead, to his frustration. This conduct of his grandmother was followed by him beginning to have bad dreams night after night as he would wake up and find that he had bouts of sexual intercourse with evil spirits he also described as tokoloshes.
[17] It was after his having woken up to this discovery on one of the mornings that he decided to there and then go to his father’s smaller homestead (that is his mother’s residence) to enquire from his grandmother why she was not heeding his advice. He upon arrival, after knocking by the door, decided to hit his grandmother with the steel or iron pipe he had found within the yard of the homestead. He said he hit her twice on the head. In doing so he said he had not intended to kill her but to force her to leave his homestead. In all that he said he was trying to scare her.
[18] He was on his way out when his mother, PW1, appeared and attempted to block his way by closing the door he had to exit through. To dissuade her from that, he said he hit her twice with the steel or iron pipe. After his mother had been dissuaded from closing the door so as to prevent him from leaving, he managed to exit the house and to leave the homestead.
[19] It was put to him that it was not true that he had killed the old woman because of any belief that she was bewitching him. It was further put to him that if he had such a belief, he would have told the Umphakatsi and the Community Police about it. Although he had said he believed that his maternal grandmother was bewitching him, he said he had not divulged that to the Umphakatsi because he decided to keep that under cover as it was a matter involving relatives yet its implications were far reaching.
[20] It was further put to him that he was making up the story about a belief in witchcraft to conceal the fact that he merely killed his grandmother because she had refused to vacate his mother’s homestead as well as because he thought that whilst there she was always colluding wiith PW1, his mother, to dispose off or to alienate the assets of the homestead, whatever those were. He maintained that was not the case for his hitting her, saying he had abandoned such a thought after he saw that the Umphakatsi was not prepared to help him resolve that matter.
[21] Although I cannot rule out the possibility if not the probability, that she attacked and assaulted her grandmother because he was convinced she was colluding with his mother to dispose off the assets of his homestead, without their consultation, I cannot from the facts, lose sight of the fact that, according to PW1, the accused had notified the Community Police and herself that the deceased was bewitching him. I therefore have to treat him as one who had made that complaint to the Community Police and to the Umphakatsi. The belief in question might have been fueled also by the fact that the accused had only gone as far as standard 2 or grade IV at school.
[22] I cannot help therefore but find that the accused killed his grandmother as a result of a combination of factors being namely that; he resented her being involved in what he believed was the decision making on the alienation or disposal of some family assets together with a belief that she was bewitching him.
[23] There is however in my view, no merit in his major defence which, is that she did not have the intention of killing his grandmother. The position is now settled in our law that intention (mens rea as opposed culpa or negligence) has two forms. These are the so called actual or direct intention (dolus directus) or legal or indirect intention (dolus eventualis). The former type of intention, (actual intention or dolus directus), refers to the intention exhibited or exercised when the accused set out to achieve the consequences of his actions. That is where he sets out to achieve the death of the deceased in a murder case. The second form of intention on the other hand, occurs when the accused foresees the possibility that his actions might result, say in the death of the deceased in a murder case, but he continues to do the act in question reckless as to the consequences. This is often referred to as the legal intention or dolus eventualis. In other words as opposed to direct intention where the accused would often have planned or desired the consequences of his actions, legal intention (dolus eventualis) is an inference drawn by law from the facts of the matter in instances where it becomes clear that the accused, whilst foreseeing the possibility of the consequences complained of occurring, he was reckless as to whether or not such did occur.
[24] In an attempt to distinguish between the two, P.M.A. Hunt in his book, South African Criminal Law and Procedure, Volume 2, Juta and Company, 1982 put the position as follows at page 341;
“1. Intent to kill is tested subjectively: Whether the charge is one of murder or attempted murder, the state must prove either actual or legal intention: Culpa is insufficient. Actual intention exists where X commits the actus reus meaning to kill Y: ‘Where the will is directed to compassing the death of the deceased. Legal intention exists where X commits the actus reus foreseeing that it may cause Y’s death”
See also SVP 1972 (3) SA 412 at 461 and S V Nhlapo 1981(2) SA 744 AD.
The same position was also endorsed in the local Court of Appeal case of Thandi Tiki Sihlongonyane Vs The King, Criminal Appeal Case No: 40/97 [1997] SZSC 35 (24 September 1997).
[25] In Mandla Mlondozi Mendula Vs Rex, Criminal Appeal Case No.12/2013, the Supreme Court had the following to say which is highly relevant to the circumstances of this matter as a principle, establishing the applicable intention.
“In determining mens rea in the form of intention, the court should have regard to the lethal weapon used, the extent of the injuries sustained as well as the part of the body where the injuries were inflicted. If the injuries are so severe such that the deceased could not have been expected to survive the attack, and the injuries were inflicted on a delicate part of body using a dangerous lethal weapon, the only reasonable inference to be drawn is that he intended to kill the deceased.”
[26] In R V Jabulane Philemon Mngomezulu 1970 – 76 SLR at page 7 at B – C, the court quoted with approval the following excerpt from the case of S V Mnisi 1963 (3) SA188 (A) at page 192 F-G:
“A person intends to kill if he deliberately does an act which he infact appreciates might result in the death of another and he acts recklessly as to whether such death results or not.”
[27] In R V Jolly and Others 1923 AD 176 at 187 the same principle was put in the following words:-
“The intention of an accused person is to be ascertained from his acts and conduct. If a man without legal excuse uses a deadly weapon on another resulting in his death, the inference is that he intended to kill the deceased.”
[28] Whatever the accused person said in trying to water down the effect of his actions, it seems to me that he cannot escape a conclusion that he intended to kill the deceased. So serious are the circumstances of this matter that it may well be they do not reveal a case of legal intention or dolus eventualis but that of actual intention or dolus directus. I say this just to underscore how serious the case against the accused is, with the only possible damper on such seriousness being the belief in witchcraft he entertained which was confirmed by the crown’s own witness in PW1.
[29] Having said all I have above, I have come to the conclusion that the accused is guilty of the murder of the deceased, Boshiwe Mkenkana Ntshangase.
[30] With regards the charge of assault with intent to cause grievous bodily harm expressed in terms of Count 2, there is very little to consider there than to observe that the accused himself pleaded guilty to the charge when it was put to him. This was correctly confirmed by his counsel in my view.
[31] It was not only the case of the accused having pleaded guilty to the charge of assault with intent to do grievous bodily harm but I am convinced that the circumstances of the matter did indeed establish the charge concerned as he clearly intended to injure the complainant in a serious way when he hit her with the iron or steel pipe.
[32] Consequently, I have also found the accused guilty as charged in Count 2 and I accordingly convict him of the assault with intent to do grievous bodily harm of the person of Thandi Shabangu.
[33] For the removal of doubt, I have to emphasize that the accused has been found guilty as charged in both Counts 1 and 2.
______________________
N. J. HLOPHE
JUDGE – HIGH COURT
