Rex v Lukhele (315/2012) [2019] SZHC 40 (21 March 2019);

 

 

IN THE HIGH COURT OF ESWATINI

Held at Mbabane                                                           Case No.: 315/2012

In the matter between

REX

VS

SANDZISO  LUKHELE

Neutral Citation:          Rex Vs Sandziso Lukhele (315/2012) [2019] SZHC 40 ( 21^st March  2019)

Coram:                                                                Hlophe J.

For the Crown:                                                    Mr I.S. Magagula Miss L.     Dlamini

For the Respondent:                                           Mr M. Mthethwa

Dates Heard:                                                       12/09/2018, 28/11/2018, 10/12/2018,  12/02/2019 13/02/2019,

Date Judgement Delivered:                                21^st March 2019                                         

 

 

 

Summary

Criminal Law – Murder – Evidence reveals a deceased person found sodomised and killed using a ligature – Accused implicated in various ways –

Intention to kill – no defence advanced as accused closes case without leading evidence – Testimony  on both charges uncontroverted – Whether intention revealed is dolus eventualis or dolus directus – Evidence against accused both direct and by inference – Accused found guilty on both counts.

 

 

[1]     The accused person stands charged with two counts; namely murder in count 1 and sodomy in count 2.  On the count of murder, it is alleged by the crown that he, on the 4^th October 2012, and at a place called New Village near Manzini City in the Manzini District, unlawfully and intentionally killed one Wakhile Fakudze.

 

[2]     On the sodomy count he is alleged to have had unlawful and intentional sexual intercourse per annum with one Wakhile Fakudze at New Village area in the Manzini District.  This offence is said to have been committed on the 4^th October 2012.

 

[3]     The count of sodomy is alleged per the charge sheet to have been attended by aggravating factors, which are listed as the fact that the accused had not used a condom in the commission of the offence thus exposing the victim to sexually transmitted infections including HIV/AIDS; the accused had tied the deceased around the neck with a shoe lace during the ordeal and the fact that the victim was a boy of eight years of age at the time.

 

[4]     Despite the matter being unusual because of the sodomy charge which was itself committed on an eight year old boy who is also the victim in the Murder charge, the accused person is himself deaf and dumb which necessitated that the expertise of a sign-linguist be engaged to assist and make communication with him effective.  In this regard the services of one Ewert Gwebu, who introduced himself as an employee of the Government of Eswatini, based under the Deputy Prime Minister’s Office, was called and assisted the court interpreting to and from the accused throughout the proceedings. There was also the fact that one of the key crown witnesses, Fanelo Zikhali, was himself deaf and dumb.  The court was again assisted by Ewert Gwebu in the interpretation of his testimony.  His role in the matter shall become apparent as the facts are revealed.

 

 

[5]     The crown led 7 witnesses in all.  I should mention at this stage that despite  what appeared as incriminatory evidence on its face; the accused person’s counsel, Mr Mthethwa informed the court that after their having carefully  considered the matter, his client was not going to give any evidence  in his defence which means that the defence closed its case without leading evidence.

 

[6]     When the trial commenced, the accused pleaded not guilty after which the crown led its witnesses.  Given the fact that the matter remained in court for a considerable period as this court was involved in a lengthy criminal trial which did not enable it sufficient time to concentrate on it.  I will not record the evidence of the witnesses ad seriatim.  Instead I will try the best I can to extract the full effect of the evidence as a whole.  In other words I will record the case revealed by the evidence through the witnesses in a manner  that best revealed the sequence to me.   

 

 

[7]     The evidence is to the effect that on the 4^th October 2012, the accused person who was deaf and dump made a report to the Matsapha Police; in terms of which he stated that whilst playing with the deceased, Wakhile Fakudze, who he said was a friend of his at or near Mhobodleni area next to New Village area, in Manzini, they were allegedly attacked by a big man who was allegedly dressed in a balaclava hat and spectacles.  Whereas the said man grabbed the two of them, he, the accused, managed to escape, but the deceased had allegedly not managed to do so.  In fact as he went to report, he alleged, that the deceased had remained in the hands of the said man such that he did not what had become of him.

 

[8]     The police at the time of the report took it that they had to investigate a crime of kidnapping.  The Matsapha Police to whom the report was made allegedly called the Manzini Police where 4081 Assistant Superintendent R.V,Dlamini, who testified in court as PW7 attended  together with then Senior Superintendent Bizzah Dlamini and 3501 Detective Inspector Mthembu.  There was also in attendance 5430 Detective Constable Msimisi Matsebula and other officers who were apparently from the Matsapha Police Station given that they were there with the accused who had made his report there. 

 

 [9]    The joint Manzini and Matsapha team of Police Officers at Mhobodleni, tried to ascertain from the accused what he alleged had happened.  They were now assisted by officer 5430 Detective Constable Msimisi Matsebula, who was a qualified sign linguist at the time to try and make sense of what was being discussed.  The story that came out of the interview of the accused through the help of officer Matsebula, was the same one as that stated or revealed in the report made to the police whose details are set in the foregoing paragraph.

 

[10]   Although the story was, according to officer R.V.Dlamini, attended by a lot of gaps and inconsistences, they nonetheless acted on it at the time and a search for the deceased who had allegedly been kidnapped commenced.  It was during that search that they found the deceased’s corpse in a bushy area where it was tied with a red cloth on the hands together with a brown shoe lace tied around the neck and onto a tree in such a way that it hanged the deceased. A scenes of crime officer, 2182 Sipho Magagula attended and took photographs of the corpse and how it was tied on to a tree stem with both the red cloth and the shoe lace.  This shoe lace was tied around his neck in such a way that he was literally hanging from the tree stem.

 

[11]   In light of the gaps and inconsistences in the accused’s report or story  according to PW7, officer R.V.Dlamini, they sought the services of one Fanyana Zikhali who gave evidence as PW6.  This witness was a sign linguist specialist who also taught sign language at the Siteki School For The Deaf.  It transpired that he had at some point taught sign language to the accused at the school for the deaf referred to above.  The interview with the accused as assisted by PW6, led PW7 and his colleagues to the shopping complex at a place called Emathangeni.  There they met one Senzo Dlamini, who confirmed having earlier on that day the 4^th October 2012, seen the accused in the company of a boy.  Owing to the fact that according to counsel for the crown, Senzo Dlamini  could not be found, then what is attributed to him is hearsay and cannot be relied upon therefore.  There would therefore be no value in me reciting such.

 

[12]   The clothes worne by the accused as he led the Police to the scene of the crime and as he narrated the story he did was, according to PW7, not consistant with clothes worne by one who had walked or ran where he said he had been chased by the man who allegedly kidnapped the deceased as that area was observed by PW7 to be muddy.  In other words according to PW 7, one who had run in that area or been where he said he had been would not possibly avoid being muddy, raising questions about the accused’s story then.  Following the information they had received from the accused and the said Senzo Dlamini, they took the deceased to his home and left him there with a view to get him the next morning so that they could carry on with their investigation.  They needed to talk to his mother prior given his condition as one incapable of talking.

                                                                                  

[13]   At about 0500 hrs the next morning, PW 7 informs the Court that he and Detective Constable Masiza Dlamini arrived at the accused’s home or the house in which he stayed with his mother.  At that point they were still worried about the inconsistences they had noted in the accused’s report but they were still pursuing the kidnapping charge.  They found his mother having already left for work but his relative called Thembi Myeni was there.  Having explained their mission to Thembi Myeni including having asked for the accused to assist in their investigations officer R.v. Dlamini said he saw a dirty pair of brown boots put together with certain other clothes by the door in the flat occupied by the accused and his mother.  One of the boots did not have its shoe – lace.  The shoe-lace found on one of the boots resembled the one found around the neck of the deceased and apparently used as a ligature to kill him.

 

[14]   The other clothes he saw there was a grey pair of trousers which was also muddied.  There was also a blue t-shirt. All these items had been immersed in mud.  The discovery of these items convinced the police according to PW 7 that they were actually not dealing with a simple case of kidnapping but with a murder suspect.  He said he then called people like Senzo Dlamini who he had repeatedly referred to above and Thembi Myeni in the presence of whom he said he cautioned the accused in accordance with the Judge’s rules, telling him that they were investigating a case of murder and that he was not obliged to say anything and that if he said anything, such would be recorded down and could be used in evidence against him.

 

 

 [15]  PW 7 says that the accused person told them something in the form of a completely different explanation he had earlier made.  The clothes there found together with the boots were all taken and given to the police after the scenes of crime officer had already photographed them.

 

[16]   According to PW 4, 2182 Detective Inspector S. Magagula, he was a Police Officer under the Scenes of Crime Department of the Eswatini Police Force.  On the 4^th October 2012, he was, whilst at his work station, at the Manzini Regional Police Headquarters, called to a scene of crime at Mhobodleni, KaKhoza or New Village, Manzini.  He was called by a Police Officer known as R.V. Dlamini.  He had been called there to attend to a murder crime scene.

 

[17]   Upon arrival at the place, he told court that he was shown the corpse of a boy.  It had a shoe lace around its neck which went on to be tied on a tree stem.  This shoe lace had apparently been used as a ligature in killing the boy.  He also had his hands tied on a guava tree in front of him.  He took photographs of the corpse and the different evidential matters he found on or around it.  The different photographs displayed in Court were marked IFIC 1 – IFIC 6.  He observed that the boy was wearing a red t-shirt and a bluish pair of shorts.  Around the corpse he observed some struggle marks.

 

[18]   PW 4 further told the court on what he did to further collect the evidence at the scene.  He thus confirmed having untied the brownish shoe lace from the deceased’s neck and tree stem.  The red cloth used to tie the deceased on both his neck and the hands respectively was also untied.  He further stripped naked the deceased’s corpse naked particularly as concerns the shorts worne by the latter.  These, items he kept sealed inside some evidential bags which were given certain specific marks by him.  The corpse was taken to the mortuary where after it was taken for a post mortem, which happened on the 11^th October 2018. 

 

[19]   On that day he said he requested for various evidentials items from the pathologist.  These included annul swabs owing to his having suspected that the deceased might have been sodomised prior to being killed.  He further asked for finger nail scrappings which had to be obtained from both hand of the deceased.  He obtained blood samples from the deceased.  He also stripped off the red t-shirt from the corpse during the post mortem.

 

[20]   All the items collected during the post mortem from the corpse were given the following marks:- the brown shoe lace (the ligature) was marked SAM 1; the red t-shirt was marked SAM2; the blue shorts were marked SAM 3; the blood sample taken through the use of a swab was marked SAM 4; the left hand side finger scrappings were marked SAM 5 after the bag was sealed; the right hand side  finger scrappings were marked SAM 6 after the bag they were kept in was sealed; the annul swabs from the deceased’s anus was marked SAM 7;  the other annul swabs was marked SAM 8.  Other exhibit materials were received from the investigating officers after the post mortem exercise. These latter items included a grey pair of trousers, a navy blue t-shirt, a left shoe with a shoe lace and a right handside shoe without a shoe lace.  Each one of these items was sealed in an evidence bag which was marked.  The investigator also gave PW4 some blood samples which he said he did not know where it came from.  PW4 was further given some further finger scrappings from both a left and a right hand.  Again these further items were contained in sealed bags.  The marks on the items contained in these latter sealed bags were placed on there by the investigating officer and not by PW4.

 

[21]   This witness also noticed that the colour of  shoe lace found on the takkie handed over to him by the investigating officer looked similar to that used as a ligature against the deceased in terms of its colour and size.  PW 4 later prepared a covering memorandum which accompanied the items to the Police Headquarters for obvious onward transmission to the Forensic Expert.  An extract from the police register recording the items passed to the Headquarters for onward transmission to the expert was handed into court and was marked as Exhibit D.  Otherwise the other exhibits referred to by the witnesses were not handed over into court because these had already been handed up when the matter was heard before Judge Simelane.  These exhibits, it was explained, could no longer be found when the matter was reheard before this court owing to the fact that when Judge Simelane’s mandate as a Judge was terminated, he had not yet finalized the matter.  The physical whereabouts of all the exhibits was said to be unknown.  Otherwise this witness eventually received all the exhibits taken for forensics in Pretoria after they had already been examined there.

 

[22]   PW3, Eloise Reynolds, was led by the crown as a Forensic Evidence Expert.  She told the court that she was a qualified forensic expect by virtue of her holding a BSC degree in genetics which she acquired from the University of Pretoria.  She testified that she had acted as a Forensics Expert for over ten years, she having started working as such in 2007, although she had a break between March 2013 and October 2016.

 

[23]   She testified that she had, in the discharge of her duties at the Pretoria Laboratory of the South African Police, worked on a file received from the Royal Swaziland Police relating to a murder case under the Manzini RCCI Number 5157/2012.  She was there required to compare certain blood samples as contained in certain swabs with certain reference samples as again contained in certain swabs.  The swabs to be compared with those called the reference swabs were referred to as the crime swabs.  These crime swabs comprised some blood samples and some semen swabs.  The semen swabs were extracted from the victim’s anus.

 

[24]   Her findings were that the semen swabs extracted from the deceased’s (she referred to as the victim’s) anus bore the same DNA as those swabs extracted from the accused’s blood.  What this means in simple terms is that the semen found in the deceased’s anus was from the accused.  It therefore meant that the accused had to explain how his semen had found its way into the victim’s anus.  If there was no explanation or even a reasonable and probably true explanation it would mean that a case had been made for an adverse inference to be drawn against the accused.  I will have to revert to this aspect of the evidence later on.

 

[25]   In his evidence the Pathologist Dr Koma Reddy, who testified as PW1, told the Court that he was a pathologist employed by the Eswatini Police, a position he said he had held since 2001.  He stated his qualifications after which he testified that he conducted a post mortem on the corpse of one Wakhile Fakudze, who was a boy of 8 years. The corpse in question was identified to him by one Nkululeko  Fakudze  who had introduced himself as a father to the deceased.  These findings from the post mortem were recorded in a report filed with the court and was marked Exhibit A.

 

[26]   Owing to his findings that the deceased’s corpse had congested eyes which signified excess blood flow in them; had blue finger nails, had a congested brain with blood spots, had some bleeding spots on the throat at the base of the tongue; had some bruises on the muscles around the neck; had a fractured hayard bone as well as a bruise in the middle of the wind pipe, he had concluded that the deceased had died of strangulation using a ligature around the neck.

 

[27]   Following a suspicion that the deceased had been sodomised, he took certain samples from the deceased’s corpse for purposes of scientific examination.  These included the swabs taken from the anus of the deceased’s corpse.  These swabs he said he later gave to the Investigating Officer, force No.4081.  He thereafter concentrated on his main function which was ascertaining the course of death.  He concluded that the deceased had died of strangulation.  He explained that in this particular trial he did not have the original of the Postmortem Report because that had been handed into court during the earlier trial of the matter before Judge Simelane prior to his ceasing to be a Judge in 2016.  Like in the case of the other witnesses there was no cross examination of this witness by the Crown.

 

[28]   PW 3 was one Gcebile Dlamini who told the court that she used to stay at the same compound with the accused and his mother at a place where they were renting certain flats at Emathangeni area in Matsapha.  She testified  that on the  5^th October 2012, and after she had left her flat trying to rush to work, she saw a lot of people standing at the compound where they were staying.  One of the Police Officers there known as Junior Dlamini, explained to be the same officer as 4081 Detective  R.V. Dlamini, asked her to come to him and ascertain from a certain plastic bag he was carrying what its contents were.  She noted that it carried certain clothes such as a grey pair of trousers, a red t-shirt for males, half boot takkies known as All Stars.  According to her the takkies were grey in colour.  One of them had a shoe lace whilst the other one had no shoe lace.  She however did not know where those items had been retrieved from.  Junior explained to her that they were there investigating a certain offence.  This witness was cross-examined briefly but there was in my view nothing much or of consequence from the said cross examination.

 

[29]   Fanelo Zikhali PW6, testified through the assistance of Ewert Gwebu as he was himself deaf and dumb.  After setting out his background, which included an assertion that he was a sign language teacher at the School for the Deaf in Siteki where he had at some point taught the accused sign language, he testified that he had been asked by the police to assist them translate the interrogation between them and the police.  Other than to repeat that he carried the exercise on different occasions owing to the fact that the first version by the accused was exculpatory before it later amounted to an informal confession which was not admissible, there was perhaps very little value in his evidence particularly now that there was Ewert Gwebu to translate the communication between the accused and the court.  As indicated most of what he said which could have been of value had it not amounted to a confession made by the accused in the presence of the police, was what the accused said implicated himself.  I cannot even repeat such evidence here as it is simply inadmissible in law.

                                                    

[30]   From the evidence before court it is clear that the accused is linked to the death of the deceased in a number of ways.  Firstly he is the one who alerted the police of the whereabouts of the deceased’s corpse although he had  told an obvious lie about the corpse being there which was later exposed for what it was in that regard. This placed a duty on him to give an explanation that was probably true during the trial which he however chose not to do whilst acting through his counsel.  This ofcourse means that an adverse inference had to be drawn against him.

 

[31]   Secondly, the ligature used, which was in the form of a certain shoe lace, traced to shoes worne by him, where only one such shoe lace was found at the accused’s house and among his clothes, making it the only reasonable conclusion that the lace used was the one found missing on the takkies found at his home, plausible.  Again he failed to give any explanation as to what happened to the other shoe lace for fastening his takkies now that only one could be found whilst the other one was found tied around the deceased’s neck at the place where the police had been directed or led to by him.  Further still, in consonant with the set-up at the place where the deceased’s corpse was found, the takkies found at his mother’s flat where he stayed at Emathangeni were found full of mud.

                                     

[32]   Although he was required to give an explanation why his takkies and the others of his clothes found at his mother’s place were full of mud, he could not explain who else had won his said clothes including the takkies in question.  By failing to so explain he left only one conclusion and one conclusion only to be drawn from the facts namely that he was responsible for the death of the deceased.

 

[33]   Fourthly and primarily, his semen was found from the annul swabs taken from the deceased’s anus.  Again the conclusion, to draw, in light of his failure to give an explanation that was reasonably probably true at all on how that came about, is that the accused had firstly sodomised the deceased before killing him or vice-versa.  Further still it is obvious and is the only inference to draw in law, that the use of a ligature to kill the deceased, after it was found tied around his neck, is a clear sign that the intention was to kill the deceased.  In so far as the facts of the matter are concerned, the ligature used in killing the deceased was equivalent to a lethal weapon in terms of its use. So clearly if it was used in the manner it was used in the circumstances, then the intention was to kill the deceased or else it was used recklessly without caring whether or not he died. 

 

[34]   The position of our law is settled that where an accused person fails to give an explanation in a case where a prima facie case has been made against him to which he should have given an explanation that is reasonably probably true an adverse inference  falls to be drawn against him.  See in this regard the unreported judgement in the case of Rex Vs Johannes Mfan’khona Dlamini and Others Criminal Case No 28/2013.  See also S V Changisa (K/S115/201) [2011ZANHC 16 and SV Boesak [2000] ZACC25; 2001 SACR (CC). This becomes apparent in those instances where the accused failed to give an explanation to a prima facie case established by the crown in evidence against him.  See S v Francis 1991 (1) SACR 198 (A).  In this case the following was stated by Small Berger J.A. at page 203 h-j:-

“While an accused person’s failure to testify may in appropriate circumstances be a factor in deciding whether his guilt has been proved beyond a reasonable doubt, this is only so where the state has prima facie discharged the onus upon it.  A failure to testify will not remedy a deficiency in the state case such as the absence of apparently credible implication of the accused (S V Masia 1962 (2) SA 541 at 546 E-F)”

 

[35]   This position was further elucidated in the following words by Langa D P in S V Boesak (Supra) at paragraph 9 when he said:-

“The fact that an accused person is under no obligation to testify does not mean that there are no consequences attaching to a decision to remain silent during the trial.  If there is evidence calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of the accused.  Whether such a conclusion is justified will depend on the weight of the evidence.” (underlining added)

 

[36]   Furthermore, where the conclusion to be drawn from the set of facts is consistant with all the facts and is the only reasonable one to draw, it follows that an adverse conclusion supported by the facts should be drawn against the accused.  It is for instance the only reasonable inference to draw that the shoe lace used as a ligature against the deceased was from the accused and that it was used by him when considering the story he had initially given on how he and the deceased had parted ways coupled with the fact that a lace similar to that used to kill the deceased is found in his mother’s flat where he resided on takkies that are full of mud consistant with that found at the area where the deceased’s corpse was found as well as the fact the other takkie found among those clothes found at his mother’s flat among the muddied clothes had no such a shoe lace on it confirming that the one used to kill the deceased was the missing one.  The case supporting the principle applicable in such matters was enunciated in such cases as R V Blom 1939 AD 464.  See also Rex V Johannes Mfan’khona Dlamini High Court Case No.28/2013 as well as Rex V Musa Fakudze and 10 Others High Court Case No.42/2007.

 

[37]   There can be no doubt that the accused intended to kill the deceased when one considers the ligature used around his neck.  From the evidence of the Pathologist the blood congestion in the eyes and the brain was explained by the pathologist to have been caused by the rapture of the small veins and was an indicator that a lot of pressure was appliied on the deceased.  The same thing could, according to the further testimony of the Pathologist, be concluded from the blood stains found at the base of the deceased’s tongue as found at the by the pathologist during the post mortem exercise.

 

[38]   At best this proves that the killing of the deceased was done with direct intention possibly to cover up the sodomy that been committed on the deceased.  If that is not enough it would at the least show that the intention exhibited by the accused was what is known as dolus eventualis or legal intention as the killing was committed clearly with wreckllessness whether or not death did ensue.

 

[39]   The position of our law is that a person intends to kill another 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.  See in this regard R V Jabulane Philemon Mngomezulu 1970-76 S.L.R 7B-C.

 

[40]   It has also been stated in numerous cases both before this court and the Supreme Court that:

“ In determining 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 in this regard the Judgement in Rex V Thokozani Samson King Joseph Mngomezulu High Court Criminal Case No 481/2010  as well as that in R V Jolly and Others 1923 AD 176 at 187 where the position was stated as follows:-

“The intention of an accused person is to be ascertained from his acts and conduct.  If a man without legal excuses uses a deadly weapon on another resulting his death, the inference is that he intended to kill the deceased.”

Further see Mandla Mlondozi Mendula V Rex Criminal Appeal Case No. 12/2013.

 

[41]   As for the charge of sodomy, it is not disputed that the accused’s semen was found on the annul swabs extracted or taken from the deceased.  The accused chose not to give an explanation at all about that.  This invariably calls for the application of the principle that where the accused fails to give an explanation besides a prima facie case having been made against than him, then an adverse inference should be drawn against him.  He should therefore not escape liability on Count 2 as well.

 

[42]   Although this had not been raised as a defence by Defence Counsel, it does arise from the facts that the accused was 14 years as at the time he committed the crimes.  Whatever the position of the common law on the capacity of such an accused person to commit an offence, that position is no hindrance to this court finding the accused guilty and by extension that he had the requisite criminal capacity when considering the position as espoused by the Children’s Welfare and Protection Act of 2012 per Section 79 thereof which has reduced the mental capacity of children to commit crimes to 12 years. This means that the accused should be taken to have been of full mental capacity when he committed the offence in question.

 

[43]   On account of the foregoing facts and principles I have come to the conclusion that the crown has proved a case against the accused person on each one of the counts he was charged with beyond a reasonable doubt.  Accordingly I find the accused person guilty on both counts and I convict him.

                                                                             ______________________

N. J. HLOPHE

JUDGE – HIGH COURT