IN THE HIGH COURT OF ESWATINI
CASE NO. 4/2010
HELD AT MBABANE
In the matter between:
1. SIFISO SIHLONGONYANE
2. CEDIGUGU SIBHIMBI SIMELANE
Neutral Citation: Rex vs Sifiso Sihlongonyane and Another [4/2010] SZHC 53  (20 March, 2019)
Coram: M. LANGWENYA J.
Heard: 1 November 2017; 26 February 2019; 5 March 2019;
Delivered: 20 March 2019
Summary: Criminal Procedure-Criminal law-accused charged with attempted murder in main count and assault with intent to cause grievous bodily harm in the alternative-actus reus and mens rea essential elements of attempted murder-mens rea not proved- accused found guilty of assault with intent to cause grievous bodily harm.
 The accused persons are charged with the offence of attempted murder. It is alleged that on or about 26 December 2009, and at or near Mbekelweni area in the Manzini region, the said accused person acting jointly and in furtherance of a common purpose did unlawfully and with intent to kill assault and stab Mzamo Dlamini and did thereby commit the said offence.
 The accused persons are also charged, in the alternative, with the crime of assault with intent to do grievous bodily harm. In that upon or about 26 December 2009 and at or near Mbekelweni area in the Manzini region, the said accused acting jointly and in furtherance of a common purpose did unlawfully assault and stab Mzamo Dlamini with the intention of causing him grievous bodily harm.
 The Crown led the evidence of four witnesses to prove its case. Each of the accused led evidence on their own behalf.
 PW Mzamo Dlamini is the complainant in this matter. This witness told the Court that his parental home is at Mbekelweni in Soweto. PW1 knows both the accused persons as they are his neighbours. He also went to school with the second accused.
 On 26 December 2009 he was returning home from a drinking spree at a Gina homestead at Mbekelweni. The accused persons came charging at him and he fled and was chased by the accused. He fled and sought refuge at a Dlamini homestead. It was while he was at the Dlamini homestead that both accused persons caught up with him and assaulted him with sticks and kicked him until he bled. He then fled to a Gwebu homestead where he kicked the door and entered the house unannounced. Make Gwebu was of no help to the complainant as she sent him away. When PW1 left the Gwebu homestead, he was met by the accused as they were waiting outside the Gwebu homestead. The accused continued to beat PW1 with sticks all over the body and dragged him on the ground until his clothes got torn and he suffered injuries at his back. When PW1 was dragged on the ground PW1 was facing up.
 It was the evidence of PW1 that while he was dragged and assaulted with sticks and kicked all over the body by the accused persons, he fainted and only came to when he was at the theatre at the RFM-Nazarene Hospital. The police arrived on the day the complainant was admitted in hospital but because he could not speak, the police left and returned the following day to record a statement.
 PW1 was admitted in hospital for two weeks before he was discharged. It was the evidence of the complainant that he was subsequently admitted at the Mbabane Government hospital and remained there for another two weeks as a result of the injuries.
 While he was at home, he was approached by the parents of the accused persons who implored him to withdraw the matter in exchange for payment. PW1 and his parents declined to withdraw the matter.
 The second accused approached PW1 and reminded him that he went to the same school with this witness; that he did not commit the crime on purpose but it was because he was drunk. The second accused asked to pay PW1 E1,000 (one thousand Emalangeni) for his injuries. The second accused gave this witness E1,000 as a sign of being remorseful. PW1’s mother took the money and thanked the accused and his family for repaying her hospital bills.
 PW1 told the Court that while he was being treated in hospital, he had a pipe inserted on the left hand side and below his armpit. The witness showed the Court a mark on the left side of his armpit. PW1 said he does not recall provoking the accused persons.
 Under cross examination, PW1 conceded that he was drunk on the day of the incident. He stated that even though he was drunk, he was not so drunk as to be unable to see what went on around him. He said he started drinking at around 10pm and was assaulted at around 1am. Before the altercation, PW1 had been with the accused persons at the Gina homestead and he did not engage in a fight with the accused persons.
 When questioned about the motive for the attack on his person, the complainant stated that he thought he was assaulted because his assailants had on a previous occasion accused him of committing a crime at a neighbour’s homestead. It was the evidence of PW1 that while he was at the Gina homestead he was seated with other people including Sunday Bhembe. The accused persons were present but sat with another group of people.
 PW1 denied that he and Sunday were the aggressors. PW1 agrees that Wandile Dlamini was present at the Gina homestead. This witness does not know Sithembile Mndzebele. The complainant did not witness any verbal altercation between Sunday and Sithembile Mndzebele.
 It was the evidence of the complainant that the accused persons’ families did not bribe him in as much as they compensated him for money he had used to pay his hospital bills.
 But for the scar below his left armpit- where the tube was inserted in hospital, and a scar on the face above the left eye, the complainant recovered fully from his injuries.
 The Crown called PW2- Ndida Alice Dlamini who is a younger brother of PW1. On the day of the incident, he received a phone call from his mother and proceeded to the scene where he found the complainant injured, bleeding crying and groaning. PW1 was conscious when this witness arrived at the scene but was in a bad state. PW1 was later taken to the hospital.
 PW3 is Dr. Motum who works at the RFM hospital. He is not the doctor who completed the RSP 88 being the medical report form from the police. The medical report reflected that the complainant presented with blood stained clothing; abrasions all over the body; two lacerations on the forehead, lips and right foot as well as pneumothraxis. It is recorded that the patient claimed to have been assaulted.
 According to the doctor’s opinion, the patient’s condition could be fatal depending on the nature of the weapon used. If the weapon used was wooden, the injury could be rectified. If the weapon used was long and sharp and was aimed particularly at the left hand side of the chest, the patient could bleed and die. If the instrument was short and wooden, there is a chance the patient might not die. The doctor handed in the medical report which was marked Exhibit ‘A’.
 Under cross examination, the doctor stated that the complainant had air in the chest and that an injury pipe was inserted to rectify the injury. According to the doctor, the complainant may have spent more days in hospital if he developed complications as a result of his injuries. The doctor could not say if the patient had complications arising from his injuries because they had looked for his file but could not find it.
 It was the doctor’s opinion that complications flowing from PW1’s head injuries would necessitate that he be re-admitted in Mbabane Government hospital. He could have been referred or transferred to Mbabane Government hospital because the RFM hospital does not have a neuro-surgeon.
 The air in PW1’s chest was a result of a stab injury as a result of a sharp object used. It was the doctor’s opinion that the patient presented with injuries- abrasions and lacerations and air in the lungs. He was of the view that there is nothing that indicates serious injury. The injuries might seem light at the beginning but complications might lead to serious injury.
 It is settled law that a Court is not bound by expert evidence. It is the Court that ultimately assesses the cogency of the expert’s evidence in the contextual matrix of the case with which he is seized. In a case where expert evidence has been introduced, presiding officers are therefore challenged to find means of assessing the inferential force or weight of all the evidence before Court. As it currently stands, the admissibility of expert evidence hinges on fairly simple rules of evidence that affords presiding officers broad discretionary powers.
 The evidence of the doctor is, in my view inconclusive. The doctor stated that the injuries suffered by the complainant could be fatal depending on the weapon used. According to PW3 if the weapon used was wooden, chances of death were remote. If the weapon was long and sharp and was aimed particularly at the left hand side of the chest, the patient could bleed and die.
 There is no evidence that the complainant was stabbed with any weapon. There is evidence that he was kicked and assaulted with sticks cut from a guava tree.
 There is also no evidence that the complainant had complications resulting from the injuries inflicted by the accused because, according to the doctor his file was not found. The Crown has only been able to prove the assault with sticks and not the stabbing of PW1.
 PW4 3458 D/Sgt. Simon Mavuso stated that he is currently stationed at Mafutseni police station. In 2009 he was stationed at Matsapha police station. He is the investigating officer in this matter. On 28 December 2009 he was assigned an attempted murder docket. The victim was Mzamo Dlamini of Nhlanhleni area. He together with 3848 Sgt. Mdvuba Dlamini went to Nhlanhleni where they obtained statements from witnesses. Their investigations led them to the parental homes of the first and the second accused but when they arrived there both accused persons were not at home.
 On 29 December 2009 the first accused was brought to the police station at Sigodvweni by his relatives. He was cautioned by this witness according to the Judges’ rules. The first accused then led the police to KaLaGwebu, eNhlanhleni. On arrival at KaLaGwebu, the first accused was again cautioned and he pointed out a light cane guava stick and a 750ml castle milk stout bottle. PW4 seized the items and handed them as exhibits in the matter.
 On 30 December 2009 the second accused was brought to the police station by his relatives and was accordingly cautioned in terms of the Judges’ rules. He was subsequently charged for the offence.
 PW4 showed the Court a stick which was about 60cms long and of approximately 0.5cm width. The stick was marked Exhibit ‘1’. The witness also handed in an empty bottle of castle milk stout which was marked Exhibit ‘2’. The bottle was not broken. I am none the wiser how a beer bottle used to stab the complainant could have remained intact.
 During cross examination, PW4 stated that there was a fight between the victim and the accused persons during which the victim was injured. The victim was beaten, kicked all over the body. PW4 went to the scene on 29 December 2009. On 28 December 2009 he collected statements.
 The second accused was the first to give evidence as DW1. This witness told the Court that on 25 December 2009 he was at a drinking place kaGina with the first accused and the first accused’s sister drinking beer. It was while they were drinking their alcoholic beverages when they saw Mzamo and Sunday beating Wandile Dlamini. DW1 and DW2 and other people tried to help Wandile who then escaped and Mzamo and Sunday pursued him but were outpaced. On return from chasing Wandile, Mzamo manhandled DW1 while Sunday attacked DW2 and the reason they were attacked, they heard was because they were from the same area as Wandile Dlamini.
 DW1 and DW2 retaliated when Mzamo and Sunday picked a fight with them. The other people who were drinking at the Gina homestead tried to intervene to stop the fight to no avail. The Gina family then threw the warring parties out of their homestead.
 Outside the Gina family compound and at the gate, the fighting intensified resulting in Sunday fleeing the scene. The accused persons fought with Mzamo who also subsequently fled the scene into a Simelane homestead where he was thrown out. Both DW2 and DW1 were in hot pursuit of Mzamo when he fled to the Simelane homestead where they waited for him outside the gate. It was when Mzamo came out the gate that DW2 and DW1 pounced on him again and went with him for a distance of about one hundred metres all the while assaulting him with sticks. The accused persons were not carrying beer bottles while the altercation between them and Mzamo continued.
 When they stopped assaulting the complainant, they left him in a sitting position and he was crying. According to DW1 the complainant was not severely injured when they left him. According to the evidence of the accused it was not their intention to kill the complainant. DW1 says their intention was to assault PW1 and to inflict the pain PW1 had subjected them to when he manhandled and hit DW1 with an open hand at the Gina homestead.
 DW2 is Sifiso Sihlongonyane. He told the Court that on 25 December 2009 he was at the Gina homestead with DW1 and Sithembile Mndzebele his older sister. PW1 and Sunday Bhembe approached Sithembile and a confrontation and commotion ensued. Wandile tried to protect Sithembile. For his troubles, Wandile was assaulted by PW1 and Sunday Bhembe. Wandile fled the Gina homestead and was pursued by PW1 and Sunday who were outpaced by Wandile.
 On return from chasing Wandile, PW1 and Sunday manhandled and assaulted both the accused person and enquired if they ‘knew lithayela’. This was explained to the Court to be in reference to a knife. After the Gina family failed to stop the fight, both the accused, PW1 and Sunday were thrown out of the Gina homestead. When the group was outside the gate of the Gina homestead they continued with the fight which had, at that stage intensified until Sunday fled the scene. The accused continued to fight with PW1 who was unarmed. PW1 then fled to kaSimelane and was pursued by both accused. At the Simelane homestead, PW1 was thrown out by make LaGwebu. PW1 then fled in the direction where the accused were approaching and was apprehended and assaulted further with sticks.
 When the accused left the complainant he was in a sitting position and was crying. PW1 was not in a bad state. DW2 says he only pointed out the sticks and not the beer bottle to the police. Notably, this fact was not put to the investigating officer.
 DW2 was subsequently arrested by the police. His mother went to PW1’s homestead to seek a way forward. DW2 does not know if his mother succeded in finding the way forward because she never gave this witness feedback.
Application of law to the facts
 Attempted murder requires an actus reus and a mens rea. An accused person must appreciate that the injury he intends to inflict on his victim may cause death and regardless inflict that injury recklessly with no regard whether death ensues or not.
 In order to support a conviction for attempted murder it is sufficient if there is an appreciation that there is some risk to life involved in the action contemplated, coupled with recklessness as to whether or not the risk is fulfilled in death or not.
 In casu, the accused persons kicked and assaulted the complainant all over the body with sticks-this constitutes the actus reus. I am unable to hold that the accused persons appreciated that the injuries they intended to inflict and did inflict on PW1 may have resulted in his death for the following reasons: first, the accused state that their intention was not so much to kill the complainant as much as it was to inflict the same degree of pain as the complainant had inflicted on them when he manhandled them and assaulted them with open hands at the Gina homestead. Second, there was a fight between the complainant and Sunday Bhembe on the one hand and the accused persons on the other hand-a fact that is corroborated by PW4 D/Sgt. Mavuso.
 It appears that the complainant and Sunday Bhembe were the aggressors in the larger scheme of the fracas that culminated in the fight involving the accused persons.
 For these reasons, I am unable to hold that the Crown has proved beyond reasonable doubt the commission of the offence of attempted murder by the accused.
Assault with intent to cause grievous bodily harm
 The accused were charged in the alternative with the offence of assault with intent to cause grievous bodily harm (Assault GBH).
 Assault GBH consists in an assault which is accompanied by intent to do grievous bodily harm. What is required is that the accused must have known, or at least foreseen the possibility that his conduct might cause the complainant grievous bodily harm.
 To determine whether the necessary intent was present the Court needs to take certain factors into consideration the following factors: a) the nature of the weapon used and the manner it was used; b) the degree of force used and how such force was used; c) the part of the body aimed at; and d) the nature of injury, if any, which was sustained.
 The list is not numerus clausus.
 Applying the above paragraphs to the present case, can it be said the accused persons assaulted the complainant and also that they had the requisite intent?
 The Crown submitted a medical report outlining the nature of the injuries suffered by the complainant. The medical report indicated that the complainant sustained lacerations and multiple abrasions all over the body. The evidence of the complainant also shows that he was dragged on the ground while being kicked and assaulted with sticks until his clothes got bloodied and torn.
 The accused persons admit hitting, kicking and dragging the complainant on the ground. The accused deny stabbing the complainant with a beer bottle or at all. The fact that the accused assaulted PW1 multiple times with sticks over an extended period of time while he tried to flee from them; the fact that the complainant was not armed with any weapon and the fact that the accused dragged the complainant on the ground with his back rubbing on the hard surface, the accused persons foresaw that the friction between the body and the ground would cause the complainant grievous bodily harm. Accordingly the accused persons had the requisite mens rea in the form of dolus eventualis.
 For the above reasons the accused are found guilty of the crime of assault with intent to cause grievous bodily harm.
JUDGE OF THE HIGH COURT
For the Crown: Mr. M. Dlamini
For the Defence: Mr. B. Phakathi
 Smit v Pretorious and Others (33801/2001)  ZAGPPHC 632.
 Rex v Mndzebele 1970-76 SLR 198 at 199F
 Milton, JRL ‘South African Criminal Law and Procedure: Vol II Common Law Crimes’ 3rd Edition, pages 431-432
 S v Mapasa 1972 (1) SA 524 (E) and S v Dipholo 1983 (4) SA 757(T) at 760E-G.