The King v Simelane (187/2012) [2019] SZHC 68 (29 November 2019);

 

IN THE HIGH COURT OF ESWATINI

   JUDGMENT

     

Case No. 187/2012

 

In the matter between:

 

The King                   

And

 

Siboniso Simelane      

Neutral citation:  The King vs Siboniso Simelane (187/2012) [2019] SZHC 68 (29 November 2019)

 

Coram  : T. L. Dlamini J

For the Crown : Ms E. Matsebula and Mr S. B. Matsebula

For the accused : Mr Ben J. Simelane and Mr S. Mabila

 

Heard : 8/03/2017; 9/03/2017; 13/03/2017; 18/09/2017; 19/09/2017;   21/02/2018; 22/02/2018; 18/06/2018; 1/08/2018; 27/02/2019;  14/03/2019; 17/04/2019  

Delivered : 29/11/2019   

Summary: Accused person charged with murder – Pleaded that he was acting in self defence – His defence being that he was attacked by a mob of hooligans who included the deceased – He also pleaded that the knife he used belonged to the deceased – His evidence was that he dispossessed the deceased of the knife after they wrestled for it and thereafter used it to stab him – Requirements of self defence considered.

 

Held: That the accused is guilty of murder.

 

Held Further: That the fight and other fights that took place on the night in question were caused by the accused, and that this fact is an extenuating circumstance – Accused is sentenced to a custodial term of 15 years imprisonment.

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JUDGMENT

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Background

[1] The accused faces a charge of murder. According to the Indictment, on or about the 16 June 2012 and at or near Ndzevane, Matsapha, in the Manzini Region, the accused did unlawfully kill one THABISO SIBANDZE and did thereby commit the crime of Murder.

 

[2] On trial, the crown led six witnesses while the accused led five witnesses in his defence.

 

[3] In summary, the crown’s case is that Thabiso Sibandze (the deceased) and his friend Sandile Tsela got into a fight with the accused person near a bar known as Mafiri’s bar. The accused was overpowered and he ran away to his house that is nearby the place where the fight took place. He came back armed with a knife that is commonly called a Rambo knife. Another fight ensued. The accused then took out the knife and stabbed Thabiso Sibandze. Thabiso was stabbed several times and he fell and died on the spot.

 

[4] The defence case, in summary, is that Thabiso was killed while the accused was acting in self defence. The evidence of the defence is that the accused was attacked by a mob of hooligans who included the deceased person. The mob of hooligans was estimated to have been around 30 in number, and that the attack lasted about one and half hours to two hours.

 

[5] The accused, according to his defence, was attacked using various weapons. It is also the defence’s case that the accused stabbed the deceased using the deceased person’s own knife. The accused dispossessed him of the knife and used it to stab him.

 

[6] In his evidence, the accused testified that the other stab wounds inflicted upon the deceased were inflicted by the mob while he was holding on to the deceased and using him as his shield after both the deceased and the accused fell down.

 

[7] After hearing evidence, the accused was on the 27 February 2019 convicted of the murder of Thabiso Sibandze. His bail was revoked by the court and he was remanded to custody pending his sentencing. After mitigation, the accused was sentenced to 20 years imprisonment and 5 years was suspended for 3 years on condition that he was not found guilty of another offence where violence is an element. This was on the 17 April 2019. Afterwards, I remembered that in terms of s.313(2) of the Criminal Procedure and Evidence Act of 1938 as amended (the CP&E Act), no portion of a sentence can be suspended in respect of a murder conviction. I will deal with this aspect later in this judgment.

 

[8] On account of the brutal manner by which the deceased was killed, I find it necessary to record the entire evidence of the witnesses. This is meant to give a better picture of the crime and an appreciation of the penalty imposed. This will inevitably result in a long written judgment.

 

Chronology of the crown’s evidence

[9] The crown’s first witness (PW1) was Sandile Tsela.  According to his evidence, he was a friend of the deceased. They were together on the night he was killed.  He testified that on the night of 16 June 2012 he was called by the deceased who was at a bar called Mafiri’s bar at Ndzevane. He therefore went there and arrived when it was going for 10:00pm. He found the deceased injured on the forehead. The deceased informed him, after he asked, that he was hit with a stone by another boy. They then tried to run and look around for the boy but did not find him.

 

[10] They then met the accused who blocked PW1 and asked about what happened. Thabiso was following but at a distance behind. PW1 and the accused talked but ended up in conflict. On catching up with them, Thabiso said that the accused likes causing trouble.  He then told PW1 that they must beat him up. Indeed a fight ensued between them. The deceased thereafter stopped taking part in the fight and left PW1 and the accused fighting. It was PW1’s further evidence that upon realizing that the accused was being overpowered, the accused ran away.  PW1 and the deceased proceeded and walked away. While they walked past the Mafiri’s bar, the accused came back running after them. When they saw him, he was about 15 to 20 metres away and they ran because the accused was then carrying a knife. The accused caught up with Thabiso. While PW1 continued to run away, he then heard the deceased asking the accused person about why he was stabbing him. In his own words, PW1 said “I heard Thabiso asking him ‘why are you stabbing me’”.  It was PW1’s evidence that he did not stop but continued to run to his house where he slept until the next morning.

 

[11] When asked during cross-examination about why PW1 did not stop to help his friend upon hearing that he was being stabbed, PW1 stated that he was afraid of being stabbed as well. PW1 further stated during cross-examination that it did not come to his mind that he should report the incident to the police through the 999 emergency number or report to the community police.

 

[12] It was put to PW1 that PW1, Live Shabangu, Disco Hillary, Taribo and Fash Dlamini were part of a group of over 30 people that assaulted the accused who was trying to rescue Masotja Nhlabatsi. Masotja was said to have been bleeding on the head after having been assaulted by the deceased. PW1 denied and stated that he is not even aware that Masotja was assaulted. He denied that he saw Disco, Taribo and Fash on that day although he heard that Taribo was present on that night. He further denied that a group of people assaulted the accused and said that is untruthful. When it was put to him that the deceased was stabbed in a situation where he was the aggressor, PW1 denied and stated that the deceased was stabbed while they were running away. It was also put to PW1 that the group of people who attacked the accused is responsible for inflicting the many stab wounds on the deceased and that the wounds were mistakenly attributed to the accused since it was dark. PW1 denied and dismissed that evidence as untruthful.

 

[13] The crown’s second witness (PW2) was Thabo Mavimbela. He testified that he knows both the deceased and the accused person. The accused is a community police in the community where PW2 resides. He also testified that on the date when Thabiso was killed, he was at the Mafiri’s bar with Siboniso Dlamini who was also a friend of the deceased.

 

[14] PW2 testified that he came out of the bar toilet with Siboniso Dlamini and they saw the deceased and Sandile Tsela (PW1) fighting with the accused. He stated that the accused was losing the fight and he stopped fighting and ran to his house that is not far from the bar. The accused then came back and challenged them to continue with the fight. The accused and the deceased then fought again, using their fists. The accused then took out a knife and stabbed the deceased. The deceased ran away but the accused chased him and continued to stab him until he fell down near a place where roasted chicken is sold.

 

[15] After the deceased fell on the ground, according to PW2, the accused then stopped stabbing him and went back. The deceased remained on the ground and died on the scene. Thereafter police officers arrived and the deceased was still lying where he fell. The police took pictures of the deceased and thereafter put his body into a plastic bag and loaded it into the police motor vehicle.

 

[16] Whilst led in chief, PW2 was reminded that he testified earlier that when they came out of the toilet bar they saw the deceased and PW1 fighting the accused. He was asked if other people joined the fight. His response was that only Ntokozo joined the fight. Ntokozo asked, according to PW2, why the accused was beaten by PW1 and the deceased.

 

[17] PW2 was also asked in chief if he saw a group of people assaulting the accused before the deceased was stabbed. His response was that he did not see any except PW1 who he pointed out inside court, and Thabiso.

 

[18] During cross-examination, PW2 was asked if he got to know why the deceased and PW1 were fighting with the accused. His response was that he learnt from Siboniso Dlamini that the deceased was causing chaos yet the accused is a community police.

 

[19] It was put to PW2 that his evidence is not consistent with that of PW1 in that PW1 testified that when the accused allegedly came back with the knife, they saw him when he was about 15 to 20 metres away and they ran away from him, whilst PW2’s evidence is that there was first a fist fight before the deceased was stabbed. PW2 responded by stating that he is telling the court about what he saw. His testimony is that PW1 ran away and the deceased remained behind.

 

[20] It was also put to PW2 that a group of over 30 people who were led by the deceased, Live Shabangu, Disco Hillary, Sandile Tsela, Taribo and Fash Dlamini assaulted the accused until he sought refuge at a nearby Nkabindze homestead. PW2 answered by stating that he never saw a group of persons assaulting the accused other than the fight which he witnessed involving the deceased, PW1 and the accused. It was further put to PW2 that an instruction of the defence is that the deceased is the one who was carrying the Rambo knife. PW2’s response was that he saw the knife in the hands of the accused and not the deceased.

 

[21] After the testimony of PW2, the crown made an application in terms of section 220 of the CP&E Act, to submit evidence of DNA analysis of blood specimen retrieved from a knife marked RSPFSL-15079 and from jeans marked RSPFSL-16102, by affidavit, deposed to by 705535-4 warrant Officer Santi Antoinette Mathole of the South African Police Service. The affidavit was made in terms of section 212 of the South African Criminal Procedure and Evidence Act 51/1977.

 

[22] The application made by the crown was not opposed by the defence, and the affidavit was therefore admitted as part of the evidence and was marked as EXHIBIT A. The said EXHIBIT A is in respect of MURDER: MATSAPHA RCC12052/12. It pertains the Murder offence that the accused is on trial for.

 

[23] Warrant Officer Santi Antoinette Mathole, the deponent of EXHIBIT A, is attached to the Biology Section of the Forensic Science Laboratory as a Forensic Analyst and a Reporting officer. He possesses, according to EXHIBIT A, a National Diploma in Biotechnology, majoring in Microbiology and Biochemistry. Part of his training included Molecular and Cellular biology which is relevant for DNA, and when he deposed to the affidavit in February 2013 he had worked as such for eight (8) years (since 2005).

 

[24] According to EXHIBIT A, the DNA result of the knife and the jeans matches the DNA result of the reference sample MAJAHA THABISO SIBANDZE (the deceased), and that the most conservative occurrence for the DNA result from the knife and jeans is one (1) in 28 billion people. This DNA evidence was not challenged by the defence and remains uncontroverted. Put in simple terms, the DNA result is that the blood that was on the knife and on the jeans is that of the deceased person, Thabiso Sibandze.

 

[25] The crown’s third witness (PW3) was officer 5522 D/Constable France Dlamini. He testified that on the 16 June 2012 he was stationed at the Matsapha Police Station and was responsible for taking pictures (photographs), inspecting crime scenes and collecting evidence.

 

[26] He also testified that on 16 June 2012 he received a report from officer 3980 D/Sergeant Mhlanga that someone had been murdered at Ndzevane. They then proceeded to Ndzevane where they found other police officers already at the scene. He named four of these officers by their force numbers and names. He found these officers surrounding the scene which was then handed over to him as he was a scenes of crime officer. He further secured the scene by ensuring that no person would come closer as there were houses nearby. He then came closer to the dead body of Thabiso and inspected it. He found it having several stab wounds. It was lying on the ground facing up and was half naked. The wounds were bleeding. He then marked the wounds that were visible as some were not visible given that it was at night.

 

[27] PW3 Further testified that when he touched the wounds, blood would come out. When he dipped his finger into the wounds, the finger would go half deep into the wounds. There were eight stab wounds according to his evidence.

 

[28] PW3 then handed in a sketch plan depicting the position and place where the dead body of Thabiso was lying. Nothing was contested by the defence concerning the sketch plan and it was admitted as EXHIBIT B following an application by the crown which was unopposed.

 

[29] PW3 testified that the dead body was then ferried to the mortuary by the police. On Thursday 21 June 2012 PW3 attended a post mortem of the deceased body of Thabiso at the Raleigh Fitkin Memorial Hospital (RFM Hospital). It was his evidence that the wounds he observed on the scene on 16 June 2012 were still visible. He then used a camera to take pictures of the dead body showing the stab wounds. Then he requested the pathologist to take the deceased’s  blood sample after the post mortem. The doctor duly obtained the blood sample and sealed it into a blood kit.

 

[30] PW3 further testified that he was then given a blue jeans trouser, a black sweater and a silver knife that has a brown handle by the investigating officer. These were exhibits that PW3 took to the Police Headquarters for the purpose of conducting a DNA analysis.  They were sealed in order to preserve them for the DNA analysis.  

 

[31] It was PW3’s evidence that he then went to print the pictures that he took of the dead body showing the stab wounds. He handed in five pictures which he signed at their back and marked each as FSD 1 up to FSD 5. Picture FSD 1

 shows the entire body lying face up with four brutally inflicted stab wounds. Three are on the chest and one is on the lower side of the left ribs.  The entire chest, left arm and the forehead are covered with blood. Pictures FSD 2 and 3 show the four stab wounds at a very close range. These were huge and open stab wounds. One can see with the naked eye that the wounds are wide open and go deep into the body.

 

[32] Picture FSD 4 shows stab wounds inflicted at the back of the body. One is on the left shoulder and one on the right shoulder. Picture FSD 5 shows a stab wound inflicted on the lower part of the left buttock. A bit of flesh was cut off on that stab wound. These pictures were all put into an envelope and were handed in as part of the evidence. The defence informed the Court that it has no objection to the handing-in of the pictures. The Court duly admitted the pictures as part of the evidence and were marked as EXHIBIT C.

 

[33] PW3 further showed to the Court the exhibits that were given to him by the investigating officer. These were the blue jeans, black sweater and the knife.  The jeans had blood on the legs, particularly on the front. The sweater had blood traces on the arms. The knife was a big Rambo type and was wrapped in a brown bag.

 

[34] During cross-examination, PW3 was asked one question. He was asked if he confirms that by 21:00 hours he was already at the scene and that the deceased was already dead. He answered in the affirmative and confirmed that evidence.

 

[35] The crown’s fourth witness (PW4) was Bhiza Thobela. He testified that he is a community police for Ndzevane. He also testified that the accused person is a community police for Ndzevane as well. His evidence was that on the 17 June 2016 at around 08:00 hours he received a telephone call from one police officer Mr Langa from the Sigodvweni Police Station in Matsapha. Mr Langa asked him about his whereabouts and PW4 informed him that he was at the Mbonjane store which is about 60 metres away from Mafiri’s bar.

 

[36] According to PW4, officer Langa requested him to come near the dip tank which is located around the area where Thabiso was killed. He obliged and went there in the company of Jabulani Manana and Sifiso Sigwane who were also community police members. On arrival they found officer Langa with many other police officers. Officer Langa told PW4 that the police want him to be a witness to what the accused wanted to show to them. The accused showed them a jeans trouser that was placed in a small stream from where it was then retrieved. The jeans had blood on it and the police took it with them.

 

[37] PW4 was asked, whilst led in chief, about how he would describe the demeanor of the accused on that day.  His response was that he looked very sorry. He was also asked if there were any visible injuries that he observed on

the accused on that day. His response was that there is none that he observed save that the accused looked terrified. He confirmed that the jeans trouser that was shown to the court is the one that was retrieved from the stream after being pointed out by the accused. The jeans had blood on its legs.

 

[38] The crown’s fifth witness (PW5) was officer 4000 Detective Sandile Zubuko. He was, according to his evidence, the leading investigator of this case. He testified that on the 16 June 2016 he was on patrol with officer 6824 D/Constable Sibusiso Magagula around Ndzevane area. It was between 21:00 and 22:00 hours when they came to the Mafiri’s bar at Ndzevane to check if it was closed because it operated illegally. They found that the bar had closed. At a distance of about 50 metres after passing the bar they found a group of people. There were police officers as well who were driving in a police motor vehicle from the Matsapha Police Station General Duty department. There was also a body of a half-naked person that was lying on the ground.

 

[39] PW5 also testified that next to the body of the person who was lying on the ground was a pool of blood. When he looked at his body, the person had several stab wounds on the chest. The police officers who they found at the scene were already recording statements. It was PW5’s evidence that he then called the scenes of crime officer 5522 D/Constable France Dlamini. Officer Dlamini came to the scene with D/Sargent Bongani Mhlanga who is now an Inspector. The scenes of crime officer performed his duties and also took pictures of the crime scene. After the scenes of crime officer finished, PW5 and his colleague then took the body to the Nazarene Hospital where the person was certified death by a doctor. Thereafter they took the body to Dups Funeral Mortuary.

 

[40] It was the further evidence of PW5 that they then proceeded to the police station where they found other witnesses who came with the police. These witnesses were recording statements. From the statements that were recorded, PW5 stated that he learned that the suspect is Siboniso Simelane who is a community police for Ndzevane area. Siboniso is someone who the police knew and worked with as a community police. PW5 testified that he had Siboniso’s cellular phone number but when he dialed it, it was not available on the network. Siboniso however called about 30 minutes later and PW5 informed the court that they did not talk but he simply asked Siboniso to hand himself over to the police. They waited for him but he did not show up.

 

[41] PW5 also testified that in the morning of the following day (17 June 2012) he returned to the scene with officer 5135 D/Constable Sihlongonyane. At the scene where the body of the deceased was lying, they found a cellular phone. They took it with them to the Police Station. They then realized that it belonged to the deceased person as phone calls kept coming-in. At the police station they found that the accused was already there and the time was around 08:30 hours. He was with another person by the name of Vusi Khumalo. Vusi Khumalo was the accused person’s landlord and was from the accused person’s home area in Lavumisa.

 

[42] It was PW5’s evidence that he introduced himself to the accused, and that he also introduced the other police officers he was working on the case with. Some were members of the unit known as Lukhozi and were headed by officer 3135 D/Sergeant Mcebo Langa. PW5, according to his evidence, informed the accused about the offence they were investigating, and then cautioned him according to the Judges Rules. They informed the accused about his right to remain silent, and that if he elects to say anything it will be recorded and may be used against him as evidence in court. The accused was also informed about his right to instruct an attorney, and that whatever he may hand over to the police will be produced as evidence in court.

 

[43] Having been duly cautioned as stated above, and acting freely and voluntarily, the accused talked about the offence and implicated himself, according to PW5. The accused then retrieved from his pocket a silver knife whose handle has a khakhi colour and was the Rambo knife type. PW5 stated that the knife had blood stains. The accused then led them to Ndzevane area next to a dipping tank. Near the dipping tank there is a stream wherein the accused pointed out clothing that he was wearing at the time when Thabiso was killed. The clothing was retrieved from the stream in the presence of community police for Ndzevane, one Bhiza Thobela who was in the company of other community police members Jabulani Manana and Sifiso Sigwane.

 

[44] According to PW5, Bhiza Thobela was called by him to be an independent witness in the pointing out of the clothes. The accused pointed out the clothes in the stream again after having been duly cautioned according to the Judges Rules. The item that was retrieved following the pointing out is a blue jeans trouser that had more blood on the right leg, from the knee level to the bottom.

 

[45] Thereafter, the accused, according to PW5, led them to his house where he changed the shoes he was wearing and gave them to the police. He also gave them a black sweater that was dirty with what looked like mud. The police then returned to the police station where they then found the relatives of the deceased.  These relatives identified the deceased as Thabiso Majaha Sibandze of Bhadzeni II, in Mankayane. They were then given the cellular phone that was found at the scene following their request to be given items that belong to the deceased. The accused was then formally charged with the crime of murdering Thabiso Majaha Sibandze. The knife that was handed-in by the accused, together with the blue jeans, shoes (black boots) and black sweater were then handed over by PW5 to a crime scenes officer 5522 D/Constable France Dlamini. These items were then taken to a forensic laboratory for DNA analysis and thereafter returned. They were pointed out in court and handed-in as part of the evidence.

 

[46] The attorney for the accused had no objection to the handing-in of these items. The blue jeans was marked as EXHIBIT D, the black sweater as EXHIBIT E, the black boots as EXHIBIT F, and the knife as EXHIBIT G.

 

[47] Whilst led in chief, PW5 was asked if he observed any injuries on the accused in the morning of 17 June 2012 at the police station. His response was that he never saw even one injury. He was also asked if the accused ever made any complaint about pain that he was feeling or bodily injuries after the incident of 16 June 2012. His response was that the accused never reported a complaint about pain or bodily injuries. Had he reported any pains, as police, they would have taken him to hospital. He would also have been given Form RSP 88 that is completed by a doctor after attending to an injured person. PW5 was further asked if on the 17 June 2012 the accused reported to the police about having been attacked by a mob of about 30 people. His response was that the accused only told them about having had a fight, and did not say anything about being attacked by a mob of about 30 people.

 

[48] During cross-examination, PW5 was asked if he is aware that on the night of 16 June2012 a lady who was at the bar was assaulted by the deceased. From the assault she bled on her nose and was assisted by Ntokozo Hlatshwako who is a community police. PW5 answered by stating that he saw that information in the statement that was recorded by Ntokozo.

 

[49] PW5 was also asked if he is aware that one Masotja Nhlabatsi was assaulted using a stone by the deceased and his gang such that Masotja had to be taken to the RFM Hospital by the police. PW5 answered by stating that he cannot deny that alleged fact as he stated in his evidence in-chief that on his arrival at the scene he found that police officers from the general duty section were already there. PW5 conceded however, that from the statement that was recorded by Ntokozo Hlatshwako, the deceased person assaulted a lady in the bar, and that he also assaulted Masotja Nhlabatsi and one other guy called Sthera Nxumalo, as well as one David Chauke.

 

[50] The crown’s sixth witness (PW6) was Dr Komma Reddy. He is a pathologist. He conducted a post-mortem on the deceased’s body. He informed the court that he conducted the post-mortem on 21 June 2012.

 

[51] PW6 testified that Thabiso died from multiple stab wounds that were eight in total. As part of his evidence, he handed in a post mortem-report that he prepared. The report was admitted as part of the evidence following that the defence did not object to its admission. It was marked as EXHIBIT D.

 

[52] According to the evidence of PW6, the deceased sustained a cut wound in the middle of the forehead. The forehead was fractured and there was bleeding into the brain. Four stab wounds were inflicted on the front of his body. Three of them were on the chest, and one was on the front left-side of the abdomen. Three stab wounds were inflicted on the back of his body. One was on the right shoulder, another one on the lower part of the left shoulder, and one was on the lower part of the left buttock.

 

[53] PW6 testified that the front stab wounds penetrated the body and injured its internal organs. These organs were the lungs and the heart. The right lung had two stab wounds that were each 2 cm deep. He explained that a lung is divided into upper lobe, middle lobe and lower lobe. One stab wound was on the upper lobe and another one was on the middle lobe.  The left lung had a 5 cm length stab wound on the lower lobe. The heart had a 3 cm length stab wound on the atrium and a 2 cm length stab wound on the left ventricle. A mesenteric blood vessel was cut, resulting in an internal bleeding of 200 ml of blood that was found in the peritoneal cavity. There was also 100 ml of blood in the right pleural cavities.

 

[54] PW6 testified that vital organs, viz., the heart, lungs and the brain were injured and that all the stab wounds were fatal. He further testified that excessive force was used by the perpetrator when inflicting these injuries. All the injuries were inflicted while the deceased was still alive (antemortem injuries). He further testified that the injuries were caused by a long cutting instrument like a knife.

 

[55] When asked if there was a chance for the deceased to survive  had he received immediate medical attention, PW6 testified that he could not because the heart was injured as well.

 

[56] In cross-examination, PW6 was asked about the number of internal injuries that were caused since he listed eight external injuries on his post-mortem report. He answered by stating that there were also eight internal injuries. Although they were inflicted externally, they however extended internally. The crown closed its case after the evidence of PW6.

 

 Chronology of the evidence for the defence

[57] The first defence witness (DW1) was Siboniso Simelane, the accused person. He testified that on 16 June 2012 he knocked off from work at Eteni where they do panel beating and spray painting at around 17:00 hours. He proceeded to where the mother of his child resides since she had given birth. About 10 minutes after he had been to where the mother of his child resides, he then received a telephone call from Ntokozo Hlatshwako who is a community police for Ndzevane. Ntokozo asked the accused to come to where he was as there were people who were seriously fighting and would kill each other. The accused then immediately went there as he could tell from Ntokozo’s tone that the situation was seriously bad.

 

[58] The accused testified that whilst going there and just before getting to a store known as Mbonjane Store, he saw one Masotja lying down and bleeding on his face. There were two ladies around him. These ladies asked him to assist and informed him that Masotja was beaten while he was at the Mafiri’s bar. The police had been called but had not arrived yet. The accused was asked to drive him to hospital as he owned a car. The estimated distance between Mafiri’s bar and Mbonjane Store was agreed during an inspection in loco to be about 60 metres.

 

[59] The accused informed the court that Masotja was able to talk at that time although he was weak by then. It was his evidence that Masotja also requested him to assist. He testified that it was a bit dark where Masotja was lying. Other people were now coming closer, and he asked them to assist in carrying Masotja to the light near the store. No one however, was willing to assist. He then carried Masotja without the assistance of anyone. As he carried Masotja, a group of people that included Sandile Tsela, Disco Hillary, Live Shabangu and the deceased, came and attacked him. He was assaulted by these people whilst he was carrying Masotja. They slapped him using open hands and stated that they knew he would be called. He testified that at the forefront was Sandile Tsela, Live Shabangu and the deceased person.  

 

[60] He further testified that these people were armed. Live Shabangu was armed with a knife on one hand and a stone on the other hand. The deceased was also armed with a knife. He told the court that he then started to walk backward as he saw the deceased drawing out his knife. The other people who he said he did not know were carrying slashers. The attackers then started whistling. According to his evidence, the whistling is a sign used to call others. Thereafter, a number of people who were left in the bar came out and joined those who attacked him. When asked about the number of people who attacked him, he stated that they were more than thirty.

 

[61] The accused testified that some of these attackers are people that he had arrested and handed to the police. They assaulted him using fists, logs and slashers and his arms were swollen as he used them to protect himself. These attackers were drunk, according to his evidence. Whilst being assaulted, he walked backward until he reached a gate at a Nkabindze homestead where he was hit against the gate. It was his evidence that he entered the Nkabindze homestead through the gate. At that moment, he was crying and shouting. The attackers cornered him, and were kicking him while he was on the ground where he eventually sat. He then heard the sound of an okapi knife being opened by one of the attackers.

 

[62] The accused also testified that he tried to get up but he fell down as he was seriously being assaulted. The deceased, according to the accused, was at the forefront. He prevented him from escaping. When he tried to get up, he saw a blade of a knife shining against light from the Mbonjane store and was being held by the deceased. The deceased tried to stab him but was unable. He was able to grab the deceased person’s hand and twisted the fingers and the knife fell down. They then wrestled for it and the accused got possession of the knife.

 

[63] He further testified that he then stood up wielding the knife and asked the attackers about what is it that they wanted from him. Whilst wielding the knife, the deceased came straight to him. The deceased jumped and grabbed the accused and they both fell down. The accused testified that he then heard the deceased saying that he has been stabbed by him (accused person). The other attackers then all jumped at the accused. The deceased was, at that moment, trying to separate from the accused but was unable as the accused, according to his evidence, held tight on to him and used him as a shield. It was his evidence that the multiple stab wounds inflicted on the deceased were inflicted by the mob whilst attempting to stab him.

 

[64] According to the accused, one of the attackers shouted and told the others that they will injure Thabiso. The attackers listened and that is how he got the chance to get up and run away. He ran to a nearby Ndlovu homestead where he locked himself inside a toilet.

 

[65] He further testified that he sat in the toilet until he heard the siren of a police motor vehicle. He then came out of the toilet but became afraid to approach the police as the mob was still there and rowdy. He then walked away down the Mbonjane store. He was thinking, according to his evidence, of going to the Sigodvweni Police Station but then decided to first go to his parental home in Lavumisa. He informed the court that he wanted to inform his relatives that he had been attacked before being handed to the police by a Dlamini guy that he was with.

 

[66] He testified that he called officer Zubuko (PW5) who asked him of his whereabouts. He however informed officer Zubuko that he will come to the police station in the morning before 06:00 hours. In the morning he duly handed himself to Sigodvweni Police Station and that is how he was arrested.

 

[67] He was asked in-chief if it is correct, as Sandile Tsela (PW1) testified, that when the fight that involved him started, it only involved the accused, the deceased and Sandile Tsela. The accused denied and stated that Sandile Tsela was untruthful. He also denied that he was overpowered by the two and that he then went away and thereafter came back armed with a knife.

 

[68] The accused also denied the evidence that was given by Thabo Mavimbela (PW2), viz., that the fight was between the accused, Sandile Tsela and the deceased person; that the accused was defeated and went to his house and came back to challenge Sandile and the deceased to continue with the fight against him; that a second fight then ensued; that the accused then drew out a knife and stabbed Thabiso; and that Thabiso ran away but the accused pursued him and continued to stab him until Thabiso fell down.    

 

[69] During cross-examination, the accused testified that he is still a member of the Ndzevane community police, and that as community police they received training from the Royal Eswatini Police Service (REPS) on crowd management, maintenance of law and order, and prevention of crime. Based on the training they received, he was asked about the expected reaction when confronted by a rowdy crowd. He answered by stating that when one is being outnumbered, he has to run away and call the police. He also has to seek assistance from other people and call for a backup of the other community police members. When asked if he employed these techniques in respect of the present case, his response was that he never had the opportunity to do so.

 

[70] When asked about the weapons that were carried by the crowd that attacked him, he testified that they carried knives, slashers and knobkerries, and that he was also being assaulted using kicks and fists. The assault took approximately an hour and a half to two hours. The accused was asked to state the extent of the injuries he suffered as he stated in-chief that he was assaulted until he felt weak. He answered by stating that his arms got swollen as he used them to protect himself, and that he suffered a head injury that resulted in bleeding although he did not bleed profusely. He was further asked if he sustained any scratch marks from a knife given that he was also attacked using knives for a period estimated to an hour and a half to two hours. His answer was that he did not sustain any knife scratch mark.

 

[71] Concerning the head injury, the accused was asked during cross-examination about why he did not mention in his evidence in-chief that he also suffered a head injury. The crown emphasized that an assaulted person cannot forget about a head injury that he sustained and only remember about injuries he sustained on the arms. In response, the accused stated that it is because the assault took place some time ago and this fact came back to his mind whilst being questioned. 

 

[72] The accused was also asked to comment on the evidence of PW5 (investigating officer Zubuko) who testified that he observed no injuries on him, and if he did, he would have issued Form RSP 88 and thereafter take him to hospital. The accused stated that PW5 is untruthful that he had no injuries. He was further asked about why PW5 would lie and tell the court that he had no injuries given that the accused informed the court in his evidence that they had a good relationship with the police. His response was that PW5 said that they were tired and they locked him into the police cell and left. PW5 returned later during that day at around 17:00 hours. The crown put it to the accused that this evidence is an afterthought as it was never put to PW5.

 

[73] The accused was informed that PW5 testified that when the accused came to the police in the morning of 17 June 2012, he handed-in a Rambo knife that he used to kill Thabiso. This was denied by the accused. He stated that he informed the police that he placed the knife at a safe place. He then called one Sixteen Shabangu and directed him to where he placed the knife and asked him to take it and bring it to the police station. His response therefore, was that Sixteen Shabangu brought the knife to the police station after he directed him to where it was and requested that he brings it to the police station. When asked if it was put to PW5 that the knife was brought to the police by Sixteen Shabangu and not by the accused, his response was that it was not.

 

[74] When asked if the knife that is before court is the same knife that he directed Sixteen Shabangu to bring to the police station, the accused informed the court that it looks like it is the same knife. When specifically asked if it is the same knife that he used on the deceased person, the accused conceded that it is the knife he used on the deceased. He also confirmed, when asked during cross-examination, that the clothes which were brought to court as exhibits (blue jeans and black sweater) were his clothes.

 

[75] When the accused was asked about their positions when he stabbed Thabiso, he informed the court that they were facing each other but he did not see where about on the body Thabiso was stabbed.

 

[76] The crown reminded the accused that during his evidence in-chief he testified that he stabbed Thabiso once. The accused denied and stated that he did not mention the number of times that he stabbed him. The accused was asked if it was not his evidence that he stabbed Thabiso once and then used him as his shield. The defence attorney objected and mentioned that the number of times was not mentioned. The crown then asked the accused about the number of times that he stabbed Thabiso. His response was that he does not recall how many times he stabbed him.

 

[77] The accused was reminded that his evidence was that he clung on to the deceased and used him as his shield. He was then asked about the number of stab wounds that were inflicted on the deceased while he held on to him and used him as his shield. He stated that he doesn’t recall but only heard during evidence here in court that Thabiso had many stab wounds.

 

[78] It was put to the accused that the reason there was no blood found on the sweater that he was wearing is because Thabiso never fell on him. His answer was that according to the police, his clothes were taken because they had the deceased person’s blood. It was also put to the accused that on account of the fact that the stab wounds were on the  deceased’s chest and that the blood was mostly on the knees of the accused’s jeans trouser, the reason is because the accused repeatedly stabbed Thabiso whilst pressing him down using the knees. In response the accused said that is incorrect but offered no explanation.

 

[79] The second witness for the defence (DW2) was Ntokozo Hlatshwako. He testified that on 16 June 2012 he was at the Mafiri’s bar with Mduduzi Dlamini. He was playing a game of pool and Mduduzi was drinking. There was also Fash Dlamini, Live Shabangu, Sandile Tsela, Thabo, Ngcu, Disco and Taribo. He saw Thabo assaulting a lady who ended up bleeding. He gave her a tissue to clean herself. The lady then went to the toilet to clean herself. He then saw Thabo assaulting Masotja Nhlabatsi. The two fought using their hands. Thabo was defeated and Masotja then left the bar with Sthembiso “Sthera” Nxumalo, according to DW2.

 

[80] He was asked, while still led in-chief, about what happened thereafter. He stated that Thabiso followed them and they again fought. The defence attorney reminded DW2 that he has been telling the court about Thabo but is now talking about Thabiso. DW2 said that to his knowledge the deceased is Thabiso. The defence attorney then informed DW2 that they should recap the evidence. He asked DW2 about who assaulted the lady who bled due to the assault. DW2 stated that she was assaulted by the deceased person, Thabiso. He was then asked by the court if the names Thabo and Thabiso are both names of one person. His answer was a “NO”. He explained that there is Thabo and there is also Thabiso.

 

[81] The defence attorney asked DW2 about who fought with Masotja Nhlabatsi. His answer was that it is Thabiso the deceased. He was then asked about what happened after Thabiso followed Masotja and Sthembiso. DW2 testified that Thabiso ran after them and that he also followed them. Thabiso caught up with the two and again fought Masotja but was defeated again. Masotja and Sthembiso then continued walking away. Thabiso did not relent but proceeded to follow them. This time he picked up a stone. DW2 further testified that he then asked Fash to intervene as he was Thabiso’s friend, and Fash agreed.

 

[82] DW2 and Fash ran and followed them. Just before Thabiso could hit Masotja with the stone, Fash intervened and stopped him. During that moment, and whilst Fash was talking to Thabiso, Thabiso got an opportunity and hit Masotja with the stone on the face. He hit him on the left side of the face near the ear. Masotja fell down and Thabiso continued to kick him whilst he was down. DW2 then intervened but Thabiso took out a big knife that had a big blade. Thabiso then advanced towards DW2 who, according to his evidence, then walked backwards and left. It was then that DW2 called Siboniso, the accused person.

 

[83]  According to DW2, Siboniso was called because he had a car. He was to assist by ferrying Masotja to hospital as he was injured and lying down. Siboniso came, but left again and said that he was going to his house to fetch car keys. DW2 further testified that Siboniso then called and informed him that Sthera (Sthembile) was being assaulted. After the call, Siboniso returned walking backwards and was being assaulted by the deceased, Live and Sandile. Behind these three (3) was a crowd of other attackers who DW2 estimated to have been around twelve (12) in number. DW2 informed the court that he then sent one Colani to go and call Jabulani Manana who was a community police, while he went to call Bhiza Thobela who is also a community police for the area.

 

[84] DW2 was asked in-chief about how these people were assaulting the accused. His answer was that they used bottles and stones. He was then asked about who assaulted using a bottle. His answer was that the manner by which the assailants threw the bottles, it was not easy to tell who used a bottle. He stated that the accused person was walking reverse whilst the assault took place. He was also asked if any of these attackers were armed. His answer was that both Thabiso and Live Shabangu were armed with knives.

 

[85] DW2 was further asked the whereabouts of the accused when he went to call Bhiza Thobela. His answer was that the accused was at the Nkabindze homestead. He testified that whilst knocking at Bhiza’s door, Bongani Dlamini came and informed him that the accused was being killed as he was then squeezed into a corner. DW2 then went to where the accused was being assaulted. He found Thabiso now assaulting a foreign national named David Chauke. He assaulted Chauke using a beer bottle on the head. When asked about the whereabouts of the other attackers, his evidence was that some were also assaulting Chauke and others were standing there and watching. He then saw people running away and he joined them and ran away. He last saw the accused person, according to his evidence, when he was assaulted at the Nkabindze homestead.  

 

[86] During cross-examination DW2 testified that he had known the deceased for about four (4) months at the time he was killed. He was reminded that in his evidence in-chief he did not mention Thabiso Sibandze but stated that it was Thabo who assaulted the lady. He conceded but mentioned that he made a mistake and confused the names. He was then asked if he also made a mistake that it was Thabo who assaulted Masotja. He agreed.

 

[87] DW2 was asked about why, as a community police, he did not intervene and effected an arrest on Thabiso for assaulting Masotja. He answered by stating that he was afraid. When further asked, he conceded that it is true that he was expected to call the police but he did not.

 

[88] DW2 was also asked about their exact location when Thabiso hit Masotja with the stone and then took out the knife. He was further asked if they were outside of the bar, near the Mbonjane store, or at some other place. He answered by stating that they were next to the Mbonjane store but a little below. He also stated that he saw the knife because it shined against electricity light that was at the nearby Ndlovu.

 

[89] He was further asked about the kind of weapons that were used by the mob when assaulting the accused. His response was that knives, bottles and stones were used. He was then asked about what his comment would be if he were to be told that according to the evidence that has been given, the accused was not assaulted using stones and bottles. He stated that he would be surprised.

 

[90] The witness was told that according to the accused person the assault took place for about an hour and a half to two hours and that during that time no one assisted him. DW2 stated that they were all afraid although they wanted to help. He also conceded that they did not even call the police during that time.

 

[91] DW2 was asked about the whereabouts of the accused at the time that Thabiso assaulted David Chauke. His answer was that he did not notice. He was also asked about the whereabouts of the mob at that moment and what was it doing. He stated that the mob was there in a circle and that Thabiso and David Chauke were inside the circle fighting, with the mob watching.

 

[92] He was further asked if he saw the accused after the night of the assault by the mob. He stated that he saw him at the Sigodvweni Police Station in the next morning at around 09:00 hours. When asked about how close he came to the accused person he stated that he stood about one metre close to him. He was then asked if he observed any injuries on the accused and he stated that he did not.

 

[93] On redirection DW2 was asked about when he was interviewed by the police about this matter. He stated that he was interviewed on the 17 June 2016. He was also asked if what he testified about is what he personally observed or was told about. He stated that he personally observed what he testified about.

 

[94] During the testimony of DW2, the defence attorney made application for an inspection in loco to be conducted. The application was unopposed and it was agreed that it should be held on the 10 October 2017. It was further agreed that DW2 will be excused from the witness stand after the inspection in loco.

 

[95] The inspection was held as agreed. It was observed that the Mafiri’s bar is right next to a driveway whose direction goes East to West and vice versa. The bar is on the North of the driveway. When standing at the entrance of Mafiri’s bar, Mbonjane store is on the West part of the driveway. The estimated distance between Mafiri’s bar and Mbonjane Store was agreed to be about 60 metres.

 

[96]  DW2 was sworn-in at the scene. He continued to give evidence and pointed out that the first fight between the deceased and Masotja took place inside the Mafiri’s bar. The deceased was defeated. Masotja then went out of the bar with his friend Sthembiso (Sthera). The deceased then followed them and caught up with them by the gate of a Simelane homestead that is nearby. The distance from the bar to this gate was estimated to be about 40 metres. This is where a second fight between the deceased and Masotja took place. Again the deceased was defeated and Masotja left. The deceased did not give up. He followed Masotja and picked up a stone this time around. The distance from the gate of the Simelane homestead to where the deceased picked up the stone was estimated to be about 44 metres.

 

[97] The deceased followed Masotja, after having picked up the stone, for a further distance that was estimated to be about 18 metres. The deceased caught up with Masotja and hit him with the stone. There is a Ndlovu homestead next to this place. During this third fight, DW2 testified that it is where he saw the deceased pulling out a knife.

 

[98] Counsel for the Crown asked DW2 to point out the light that enabled him to see the blade of the knife when it was pulled out by the deceased. DW2 pointed a nearby house of the Ndlovu homestead and explained that the house has now been extended. He stated that it had electricity light on the outside wall. He further testified that the light can no longer be seen because the house was thereafter extended.

 

[99] The owner of the homestead Mr Mshiyeni Alpheus Ndlovu came when the inspection party was still at the scene, next to his homestead. This is where the third fight took place. As Mr Ndlovu was to be asked questions, he was first made to take an oath that was administered to him by myself in Siswati. He confirmed that he is the owner of the homestead. I pointed out to him the house which DW2 stated in his evidence that it was extended. I then asked him about when the house was extended. His answer was that he doesn’t correctly recall but it was somewhere between the years 2013 and 2014. He was then asked about where exactly the light was located on the outside wall before the house was extended. Mr Ndlovu stated that there was never a light that was ever fixed outside the structure of that house.

 

[100]  Mr Ndlovu was also asked by counsel for the Crown if the light at the Mbonjane store was able to provide light near his homestead. His answer was that the light at the Mbonjane store has never been able to be a source of light at his homestead, and that this was true even with the lights that were currently mounted at the Mbonjane store. That is how the evidence of Mr Ndlovu ended as he was not asked any questions by the defence attorneys.

 

[101] DW2 was then asked to point out the place where he was when he saw the accused walking backwards whilst being attacked by the mob. DW2 went and stood near the corner of the wall fence for the Mbonjane store. This place was estimated to be about 20 metres from the place where the deceased is said to have picked a stone, and about 38 metres from where the third fight between the deceased and Masotja took place. According to DW2, the accused came walking backwards from the direction where the third fight took place. He was pushed by the crowd until he reached the gate of the Nkabindze homestead.

 

[102] Inside the Nkabindze homestead DW2 pointed a stone which is about the size of a soccer ball and stated that the accused tripped on it and fell whilst being assaulted by the crowd. He testified that after falling down, the accused was helplessly assaulted while on the ground. That is the moment, according to DW2, when he ran away with the intention of calling another community police. When he came back, he found the deceased assaulting David Chauke by the entrance of the Nkabindze homestead. He was asked by the court about the whereabouts of the accused at the time the deceased assaulted David Chauke as he testified that he left him being helplessly assaulted by the crowd. He stated that he was not sure about how and where he was as a lot of people had gathered in that area.

 

[103] DW2 further testified that he then ran away after he saw David Chauke being heavily assaulted by the deceased and his friends. The inspection party was then shown the place where the deceased fell and died. When standing at the entrance of the Mafiri’s bar, that place is on the East of the driveway. The distance from the Mafiri’s bar to the scene where he died is 80 walking paces. The inspection team then walked and passed a dip tank to a stream-like place with grown vegetation where the clothes of the accused were said to have been retrieved by the police. That is where the inspection in loco ended.

 

[104] The third defence witness (DW3) was Anna Zungu. She testified that in June 2012 she resided at Logoba, Ndzevane area, at the Nkabindze homestead. On the night of the murder she saw a group of people coming out of the Mafiri’s bar and were making noise. She estimated them to have been more than 20 in number. It was around 21:00 hours. The people went towards the Mbonjane store direction. She then saw them coming back and were assaulting someone who she later saw to be the accused person. The assault continued until these people entered the Nkabindze homestead.

 

[105] She also testified that the accused was not retaliating but trying to avoid being hit. He would fall and get up while the mob assaulted him. When asked in-chief if these people were armed, her answer was that she saw one person who was carrying a slasher. The group continued to assault the accused until DW3 saw them coming out of the gate and took the dip tank direction while the assault continued. She was inside her house when this occurred and was peeping through the window.

 

[106] Asked during cross-examination, DW3 stated that she saw the slasher in one of the people who assaulted the accused when they were inside the Nkabindze homestead and were at a close range. When asked if she only saw a slasher she answered in the affirmative. She further testified that the accused was assaulted using hands as well.

 

[107] DW3 was asked if she saw any community police within the vicinity when the accused was assaulted. She stated that she saw Ntokozo. She was further asked about where was Ntokozo when she saw him. She stated that he was among the crowd. The court asked her if Ntokozo was part of the people who assaulted the accused. She stated that Ntokozo was not assaulting the accused but she thinks that he was trying to assist him. The crown then asked DW3 if she was now changing her evidence that Ntokozo was part of the crowd. Her answer was that Ntokozo was following the crowd.

 

[108] On being asked if the police came during that night, DW3 stated that she did not see the police as she thereafter went to sleep.

 

[109] The fourth defence witness (DW4) was Bongani Mamba. He testified that in June 2012 he resided at Mbikwakhe and was employed to sell roasted chicken at Mhlaleni. His employer was David Masinga. On the 16 June 2012 at around 09:00 hours while he was roasting the chickens, Live, Sandile and the deceased whose name he does not clearly know came and greeted him as customers. They asked DW4 if there was any food that is ready and he told them that there was only the meat but without porridge at that time. They then asked him about a guy who once worked there and was dark in complexion. He told them that the guy was off duty on that day yet he knew that he had been dismissed. He further testified that these three told him that they want to teach him a lesson, as they were aware that the guy they asked about was dismissed. They believed that DW4 was the cause for his dismissal.

 

[110] DW4 testified that he was then held by Live using the coat that he was wearing and the deceased grabbed him by the nose. Sandile took out a knife and the deceased drew out a knife as well. Live followed suit and also took out a knife. DW4 was asked by the defence attorney to give a description of the knives that each took out. He stated that the deceased took out a knife that is about 15 cm with a gold handle. Live took out a three-star knife and Sandile took out a home-made knife that had a home-made handle.

 

[111] He was asked about what happened after the three drew out the knives and his answer was that he ran away and they chased after him until he reached a place where there is a hammer mill. The three assailants then went back and ate five full chickens that he had already roasted.

 

[112] DW4 further testified that he called and reported the incident to his employer who then sent one Lucky to collect and bring the bones of the chickens that had been eaten by the three, together with the remaining other chickens. He was then asked in-chief if he continued to work on that day. He answered in the affirmative and stated that he worked until around 18:30 hours.

 

[113] DW4 also testified that after knocking off from work he went to the Mafiri’s bar where he found the three who attacked him in the morning. He hid himself and thereafter came out and went to his brother’s place nearby. He came back at around 19:30 hours and went to a spaza near the Ndlovu homestead. Then he heard noise of people shouting and saying “beat him”, “beat him”, “beat him”. When he got closer he found that Siboniso was being assaulted by Sandile Tsela and his friends. The people who attacked Siboniso were estimated by DW4 to more than 20 or 25.

 

[114] The witness further testified that he realized that Siboniso would be killed and he ran to call Bhiza Thobela who was a community police. Bhiza was however not there as he found Ntokozo knocking at the door and there was no response. DW4 then called the police through the emergency 999 number and he was informed that the police were coming.

 

[115] DW4 further testified that the accused, whilst being assaulted, fell on the ground a couple of times and the crowd would kick him. It was his evidence that he doesn’t know how the accused survived the attack because he even fell on his head near a Tsabedze homestead. Every person, according to DW4, who was a part of this group, assaulted and kicked the accused whilst he had fallen down. DW4 then left. After having gone past Bhiza’s house near the Mbonjane store he saw a police motor vehicle speeding towards where the crowd was and the crowd then dispersed. Another police van came at high speed from the Mhlaleni direction and went towards the crowd. DW4 went to his house at that time, according to his evidence.

 

[116] The crown informed DW4 that it was never put to PW1 that they attacked DW4 in the morning of that day. It was therefore put to DW4 that he was never attacked by Sandile Tsela, Live and the deceased person using knives to the point that DW4 was almost stabbed. DW4 maintained that he was attacked by these three. It was further put to DW4 that the evidence he gave is new and is an afterthought. The witness stated that it is not an afterthought.

 

[117] DW4 was asked by the crown to explain in graphic detail how the accused was almost killed by the over 20 people. His answer was that the accused was walking backwards and the crowd tripped him and he fell. They then kicked him while he was down and others assaulted him using fists. Sandile Tsela (PW1) hit him with a knobkerrie on the left arm and Live hit him with the side of a bush knife on the left side of his chest. He further testified that another man who was big in body size stabbed the accused on the head with a knife and that he saw the accused covered with blood after the assault.

 

[118] The witness was asked about why he did not mention in-chief that the accused was stabbed on the head by the man with a big body size and that Sandile hit him using a knobkerrie whilst Live used the side of a bush knife. He answered by stating that he was going to say this when asked by the crown about the things that were used when assaulting the accused.

 

[119] When it was put to DW4 that the accused went to his house, took a knife, came back and chased Thabiso and stabbed him even on his back, the witness denied that evidence and said that it is not true. He was asked by the court why he says that it is untruthful because according to his own evidence he was not there when Thabiso was stabbed and did not see how he was killed. He gave no clear response and there was a little silence at that moment.

 

[120] DW4 was asked about the seriousness of the injuries that David Chauke sustained after the assault and fighting with the deceased. He stated that they were very bad and serious and that he would have died had the police not arrived and ferried him to hospital. The police found Chauke helplessly lying down, according to DW4.

 

[121] He was further asked about the whereabouts of the accused during the time that Thabiso assaulted David Chauke. His answer was that the accused was still being assaulted by the crowd and moving with him towards the dip tank direction.

 

[122] The fifth defence witness (DW5) was Kenneth Zikalala. According to his evidence, he resides at Mhlaleni and that they are neighbours with Bongani Mamba (DW4). Their homesteads are close to the bus stop and they are able to see and hear what is taking place at the bus stop. His homestead is close to the place where DW4 sold the roasted chickens. He testified that on 16 June 2012 he heard noise from the Mhlaleni bus stop. The noise was of people who sounded shocked, just like when an accident has happened.

 

[123] DW5 also testified that he went to the place where the noise was coming and he saw people gathered there. There was a group of young men next to the place where DW4 sold the roasted chickens. He then saw DW4 running across the road. He also saw the group of young men eating meat near the place where DW4 sold the roasted chickens. Among the group of young men he saw Live Shabangu. According to his evidence, these young men looked drunk and were violent. Due to their violence, DW4 had to run away from his place of employment.

 

[124] The witness further testified that after eating the meat he saw the group of young men having a jacket on their hands which they pierced with knives. He was asked in-chief about the number of knives that he saw and his response was that he saw three (3) knives. He was also asked if he ever saw DW4 on that day besides the time when he saw him running away. His answer was that he never saw him but saw him on another day.

 

[125] During cross-examination DW5 was asked about the number of people he referred to as a group of young men. His first response was that he did not count them. He was however asked to give an estimation of the number. He stated that they were plus or minus ten (10). The witness was asked about what would be his comment on the evidence of Bongani Mamba that he was attacked by three people and not a group of people. His response was that he would not agree because he was telling the court about what he personally saw.

 

[126] The sixth defence witness (DW6) was Lizzy Simelane. She testified that she is a vendor and earns a living by selling vegetables at Logoba, Ndzevane area near the Mbonjane store. Her market is also close to the Ndlovu homestead.

 

[127] She testified that on 16 June 2012 she was at her market place. She saw two ladies who were with a man who was injured and bleeding. Blood was flowing on his chest. The accused came from the side of the Ndlovu homestead and took a look at the injured person. He was asked by the two ladies to assist with his motor vehicle and drive him to hospital. A group of people emerged and went to where the two ladies and the accused were standing.  She could not tell what was happening. It was her evidence that she doesn’t know whether the accused person or the two ladies were being assaulted.

 

[128] During cross-examination DW6 testified that she has been doing the vegetables selling business in that place since 1996 and that she is very familiar with the Ndlovu homestead. She was asked if there was any source of light at the Ndlovu homestead in 2012. In response, she stated that there was no light at the homestead in 2012. She was also asked if there was any source of light from the Mbonjane store and she answered in the affirmative. She was then asked to describe the strength of the light from the Mbonjane store. In response, she stated that there was a dim light that faced the Ndlovu homestead. A brighter light is the one that faced the Mafiri’s bar.

 

[129] She was asked to give an estimate of the number of people who she said emerged and went to where the two ladies and the accused were standing. Her answer was that they were approximately twenty (20). When asked if she happened to have seen what was in their possession, she stated that she saw a bush knife.

 

 Analysis of the evidence

[130  According to Dr. Reddy (PW6) who conducted a post-mortem, Thabiso died from multiple stab wounds. The forehead was fractured and there was bleeding into the brain. Three stab wounds were inflicted on the chest. Vital organs of the body, viz., the heart and lungs, were penetrated and injured by the knife. The right lung had two stab wounds that were each 2 cm deep. The left lung had a 5 cm deep stab wound. The heart had a 3 cm stab wound on the atrium and a 2 cm stab wound on the left ventricle. A mesenteric blood vessel was cut. The doctor testified that all these stab wounds were fatal and that excessive force was used by the perpetrator when inflicting them.

 

[131] With regard to how the deceased was stabbed, the accused testified that the deceased was at the forefront of a crowd that attacked him (accused). He (deceased) had a knife in his possession. He tried to stab the accused but was unable. The accused grabbed the deceased person’s hand and twisted the fingers. The knife fell down and they wrestled for it. The accused was able to grab the knife. He then wielded it but the deceased jumped and grabbed him. They both fell down and that is when he heard the deceased shouting, saying that he has been stabbed.

 

[132] Other people who were part of the crowd, according to the accused, took out knives that they wanted to use and stab him. At that moment he clung on to the deceased who was trying to separate from him but could not as he held him and used him as a shield. It was his evidence that the multiple stab wounds were inflicted on the deceased by the crowd while attempting to stab him. When asked about the positions that they were in when he stabbed the deceased, the accused testified that they were facing each other. From the evidence, that is the position they were in when the accused clung and held on to the deceased. Based on this evidence, it is my finding that the crowd could not inflict injuries on the front of the deceased person, particularly on the chest. The injuries ought to have been at the back if the accused person’s evidence is anything to go by.

 

[133] During cross-examination, the accused was asked about the number of times that he stabbed the deceased. His answer was that he doesn’t recall how many times he stabbed him. On the basis of this evidence, and the evidence alluded to in paragraphs [131] and [132] above, it is my finding that the stab wounds that were inflicted upon the deceased person on the chest were inflicted by the accused and not the crowd. These are the stab wounds that penetrated the lungs and the heart, and cut the mesenteric blood vessel as well. The victim could not survive from these stab wounds according to the doctor’s evidence.

 

[134] From the position that the accused held and clung on to the accused, the sweater that the accused was wearing ought to have had a lot of blood on the part that covers the front part of the body. This is because the deceased had stab wounds on the chest and these wounds profusely bled. That was however not the case. The sweater only had blood traces on the arms. The jeans trouser that he was wearing is the clothing that had a lot of blood on the legs. The evidence of the accused that the stab wounds were inflicted on the deceased by the crowd whilst he held on to him and using him as a shield cannot be true. The deceased ought to have had multiple stab wounds at the back of the body, given the manner and brutality that the accused mentioned about the crowd. For this reason, the evidence that the stab wounds were inflicted on the deceased by the crowd is rejected.

 

[135] The stab wounds were shown in EXHIBIT C. There is no doubt in my mind that the wounds were inflicted using the same weapon. The Rambo knife perfectly fits as the weapon that was used. According to the evidence, this weapon was recovered from the accused.

 

[136] On the basis of the evidence placed before court, I find that the accused caused the death of Thabiso Sibandze.

 

[137 The defence case is that the deceased was killed whilst the accused was defending himself. During submissions, the defence attorney submitted that the accused acted in self defence. He was attacked by a mob that included the deceased, and the attack lasted for about two hours.

 

[138] According to the accused, the crowd was a group of more than thirty people. DW2 on the other hand, who confirmed that the accused was assaulted by a crowd of people, estimated them to have been about twelve in number. This is a glaring inconsistency in the evidence of the defence.

 

[139] Coming to the issue of weapons that the attackers used, the evidence of the accused is that the attackers assaulted him using fists and kicks, and they also carried knives, slashers, logs and knobkerries that they used.

 

[140] According to DW2, the accused was assaulted using stones and bottles. When asked if any of these attackers were armed, DW2 stated that Thabiso and Live were each armed with a knife. The evidence of DW3, on the other hand, is that amongst the crowd, she only saw one person who was armed. This person was armed with a slasher. The evidence of these defence witnesses is not consistent, and doesn’t corroborate. There is a glaring inconsistency regarding assortment of weapons that were allegedly carried by the crowd. This inconsistency causes a serious dent on the evidence of the defence.

 

[141] The accused testified that he was assaulted using fists, logs, knives, slashers, knobkerries and was kicked as well. DW2 on the other hand, testified that the accused was assaulted using knives, bottles and stones. When asked by the Crown about what would be his comment if he were told that according to the evidence before court, the accused was never assaulted using stones and bottles. His answer was that he would be surprised.

 

[142] In fact, it was only DW2 who testified that the assortment of weapons used by the crowd were stones and bottles. To put emphasis on his version, DW2 stated that he would be surprised about a version that does not mention stones and bottles as part of the weapons that were used to assault the accused. This is another glaring inconsistency in the evidence of the defence.

 

[143] Explaining the extent of the assault, the accused testified that he was assaulted by the group of more than thirty people for approximately an hour and a half to two hours. He was assaulted using fists, logs, slashers and was kicked while he had fallen down. According to DW2, the accused was assaulted using knives, bottles and stones. It was his evidence that the accused tripped on a stone whilst being assaulted inside the Nkabinde homestead and he fell. He was then helplessly assaulted whilst on the ground.

 

[144] According to DW4, the accused was kicked while he was on the ground. He was assaulted using hands as well. Sandile Tsela (PW1) hit him using a knobkerrie on the left arm and Live hit him with the side of a bush knife. A man who had a big body size stabbed the accused on the head with a knife.

 

[145] In my assessment, the evidence adduced by the crown through PW1 and PW2 was substantially credible, reliable, and corroborative in material respects, save the question of whether there was a fist fight before the accused took out the knife and stabbed the deceased. They testified that the fight was between the accused against the deceased and PW1. They denied that the accused was attacked by a mob of people.

 

[146] Bhiza Thobela (PW4) who was a community police together with the accused testified that he observed no injuries on the accused person in the next morning of 17 June 2017. This evidence was confirmed by officer Sandile Zubuko (PW5) who also testified that there were no injuries observed on the body of the accused person. The accused person testified under cross-examination that he did not suffer any knife scratches although he was being attacked using knives as well for almost two hours. It was also his evidence that he was hit against the gate of the Nkabinde homestead. That is where he was cornered and kicked by the crowd whilst he was on the ground. After the intense assault that took almost two hours, the accused was still able to travel on that same night to his parental home in Lavumisa without seeking medical treatment first.

 

[147] There is no doubt, in my opinion, that had the accused been attacked and assaulted in the manner alleged, he would have been admitted at the intensive care unit in hospital for a couple of days. The evidence that he was attacked and assaulted by a crowd armed with an assortment of weapons for almost two hours is rejected by this court. The evidence of the crown, tendered through PW 1 and PW2 is credible, reliable and corroborative. It is my finding and conclusion that the accused only had a fight with the deceased and PW1.

 

[148] According to the evidence placed before this court, the accused was called to Ndzevane by Ntokozo Hlatshwako (DW2). Ntokozo and the accused were both community police members for the area. Ntokozo was present and he witnessed the assault on the accused. He testified that he was afraid to intervene and help the accused. He also conceded that he did not call the police to help although the assault on the accused lasted almost two hours.

 

[149] My assessment of the evidence is that the behavior of Ntokozo as explained in the above paragraph confirms that the accused was never assaulted by a mob.

 

[150] As a community police, Ntokozo attended trainings conducted by members of the Royal Eswatini Police Service on the management of crowds and violent people. The knowledge imparted to him during these trainings included calling for backup from other community police members and calling for help of the Royal Eswatini Police Service. He however made no attempt to call the police notwithstanding his evidence that the accused was severely assaulted by a rowdy crowd for the estimated period of two hours.

 

[151] The evidence, in my finding, proves beyond doubt that it is untruthful that the accused was assaulted for about two hours by a mob of more than thirty people on the day that he killed Thabiso Sibandze.  

 

[152] When asked during cross-examination about the extent of injuries he suffered given his testimony that he was assaulted until he felt very weak, the accused stated that he suffered a head injury that bled although not profusely. The crown correctly pointed out that this is an afterthought as this evidence was not stated in chief and was not put to the crown witnesses either. In the case of Rex v Simanga Mabaso (108/2012) [2013] SZHC 184 (16 August 2013), this court held that it is trite law that an accused must put his defence to crown witnesses in order for the court to appreciate their response, and that a failure to do so is considered to be an afterthought.

 

[153] Mr Matsebula for the crown correctly submitted that the evidence of DW4 who testified that he was assaulted by Sandile (PW1), Live and the accused in the morning of 16 June 2012 was never put to PW1 and the other crown witnesses. He referred to that evidence as an afterthought.

 

[154] I agree with Mr Matsebula. The court was not placed in a position to assess this evidence based on the witnesses’ reactions to it. Considering that, together with the evidence of DW5 who testified that DW4 was attacked by more than 10 people yet DW4 mentioned only three people, the evidence that there was a rowdy crowd of people on the day and the accused was defending himself from them is rejected.

 

[155] In my assessment of the evidence, the credibility of the defence witnesses is doubtful and questionable. I wish to reflect hereunder, other areas where the defence evidence is contradictory and appears to be untruthful.

 

[156] DW2 testified that the deceased person pulled out a knife when assaulting the accused person near the Ndlovu homestead. It was his evidence that he saw the knife because its blade shined against electricity light mounted at the Ndlovu homestead. During the inspection in loco, he was asked to point out the source of light at the homestead that enabled him to see the knife. He pointed a nearby house and stated that the light was on the outside wall but was no longer there because the house was later extended.

 

[157] Mr Ndlovu, the homestead owner, testified that the house was extended somewhere between 2013 and 2014. He was then asked about where exactly the outside light was mounted on the house. His evidence was that there has never been a light that was fixed outside that house. He further stated that even the electricity light from the Mbonjane store has never been a source of light at his homestead, and that this position is true even with the lights that are currently mounted at the Mbonjane store. This evidence by Mr Ndlovu was corroborated by DW6, who was present on the night that the deceased was stabbed to death. She was a vendor near the Ndlovu homestead and the Mbonjane store. She confirmed that there was no light at the Ndlovu homestead in 2012.

 

[158] DW2 also testified that he went to call Bhiza Thobela when the accused was being heavily assaulted at the Nkabinde homestead. While knocking at Bhiza Thobela’s door, Bongani Dlamini came and informed him that the accused was being killed by the mob and was squeezed into a corner. He then went back to the Nkabinde homestead where he found the deceased assaulting David Chauke. When asked about the whereabouts of the mob at that time, DW2 stated that some members of the mob were also assaulting David Chauke and some were standing there and watching. He then saw these people running away and he joined them and ran away.

 

[159] The evidence of Anna Zungu (DW3), on the other hand, is that she resided in the Nkabinde homestead in 2012. Her evidence confirms that the mob assaulted the accused inside the Nkabinde homestead. Her evidence further stated that the mob continued to assault the accused until she saw them coming out of the gate and taking the dip tank direction while the assault on the accused continued. This evidence given by DW3 and DW2 is inconsistent. According to DW2, the last assault before the mob ran away was on David Chauke. He was assaulted by the deceased who was joined by some members of the mob until these people later ran away. According to DW3, the deceased and other members of the mob assaulted the accused inside the Nkabinde homestead. They continued to assault him until she saw them getting out of the gate and taking the dip tank direction whilst still assaulting the accused. The evidence of DW3 did not even suggest that another person, other than the accused, was assaulted within the Nkabinde homestead. She testified that the accused was assaulted until she saw them going out of the gate and taking the direction towards the dip tank. The accused was being assaulted by the mob throughout this period.

 

[160] DW4 Bongani Mamba testified that in the morning of 16 June 2012 he was attacked by Live, Sandile and the deceased person who were all armed with knives. DW5 Kenneth Zikalala testified that he saw the people who attacked DW4 in the morning of 16 June 2012. Among them is Live Shabangu. These people looked drunk and were violent. When asked during cross-examination about the number of the people who attacked DW4, his response was that they were plus or minus 10. When asked for his comment given the evidence of DW4 who testified that these people were three, his answer was that he would not agree because he testified about what he personally saw. This contradicts the evidence of DW4 who was a victim of the attack.

 

[161] DW4 further testified that after being attacked by Live, Sandile and the deceased in the morning of 16 June 2012, he reported the incident to his employer who then sent one Lucky to bring home the remaining chickens together with the bones of those chickens that had been eaten by the three. Asked in-chief if he continued to work on that day, DW4 stated that he continued and worked until around 18:30 hours. The unanswered question regarding this evidence is; what work did DW4 continued to do given that the chickens he was employed to roast and sell to the public had been taken back home on the instruction of his employer?

 

[162]According to the evidence led, DW4 ran across the road after being attacked by the three drunk young men. DW5 was asked in-chief if he later saw DW4 after having been attacked on that day. His answer was that he never saw him until the following day. This contradicts the evidence of DW4 who testified that he continued to work until around 18:30 hours on that day.

 

[163] Another contradicting evidence shows, in my view, a clear intention to lie on behalf of the accused. During cross-examination, DW4 was informed that evidence which has been given by the accused is that he stabbed Thabiso and then used him as a human shield. In response, DW4 stated that he did not see when Thabiso was stabbed as he had already gone by that time. The crown then put it to DW4 that the accused went to his house, armed himself with a knife, came back and chased Thabiso and stabbed him even on the back of his body. DW4 denied that evidence and stated that it is untrue. He was then asked by the court about why he denies the evidence because according to his own evidence he was not there when Thabiso was stabbed and did not see how he was killed. DW4 gave no answer to this question.

 

[164] On the evidence placed before court, I find that the crown has proved beyond reasonable doubt that the accused killed Thabiso Sibandze.

 

[165] The evidence tendered in defence is that the accused killed the deceased whilst defending himself. This therefore constitutes a plea of self defence. I must now deal with what constitutes self defence and determine if that pleading is sustained on the facts placed before court.

 

[166] According to the legal authors Gardiner and Lansdown in the book South African Criminal law and Procedure, Vol. II, 6th ed. at p.1546, killing in self-defence is in certain circumstances excusable. In order for self-defence to operate as a complete excuse on a charge of murder or culpable homicide, the following conditions must exist. These are; (a) the accused must have been unlawfully attacked, and had reasonable grounds for thinking that he was in danger of death or serious injury; (b) the means used in self-defence must not have been excessive in relation to the danger apprehended; and (c) that the means used must have been the only method, or the least dangerous method, whereby the accused could reasonably have thought that he could avoid the threatened danger.

 

[167] The above cited legal authors further state that “where  a man can save himself by flight, he should flee rather than kill his assailant…But no one can be expected to take a flight to avoid an attack, if flight does not afford him a safe way of escape (p.1547).

 

[168] In R v John Ndlovu 1970 – 1976 SLR 389, per Nathan CJ, as he then was, “A person acting in self-defence may apply force as is reasonably necessary in the circumstances to protect himself against an unlawful threatened or actual attack. The test whether a person acts reasonably in self-defence is an objective one. The force used must be commensurate with the danger apprehended; and if excessive force is used the plea of self-defence will not be upheld.

 

[169] Based on the evidence and my findings, the plea of self-defence has not been proved in casu. The evidence that the accused got into a fight with the deceased and PW1, and that he was defeated in the fight and he went to arm himself with a knife, is credible and accepted by this court. He had the opportunity to flee but decided to arm himself and went back to fight his attackers. He stabbed the deceased even on the back at a time when the deceased was fleeing from him. The plea of self-defence is therefore rejected and accordingly dismissed.

 

[170] In order to secure a conviction, the crown needs to prove intention to kill on the part of the accused. In murder cases, there are two forms of intention. There is dolus directus (direct intention) and dolus eventualis (indirect intention. Dolus directus occurs when the assailant decides and deliberately sets out to kill another person. Dolus eventualis occurs when the assailant has not consciously taken the decision to kill but his action is such that death might result from his act but he nonetheless carries on with such act reckless as to whether death occurs or not. See: The King vs Bongani Bavukile Dlamini (333/2014) [2017] SZHC 143 (01 August 2017).

 

[171] His Lordship Leach JA of the Supreme Court of Appeal of South Africa, in the case of Director of Public Prosecutions, Gauteng vs Pistorius (96/2015) [2015] ZASCA 204 (3 December 2015), stated what I quote hereunder regarding intention in a murder charge:

“[25] …murder is the unlawful and intentional killing of another person. In order to prove the 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.

 

[26] In cases of murder there are principally two forms of dolus which arise: dolus directus and dolus eventualis. These terms are nothing more than labels used by lawyers to connote a particular form of intention on the part of a person who commits a criminal act. 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, … 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 the act is directed… it is necessary to stress that the wrongdoer does not have to foresee death as a probable consequence of his or her actions. It is sufficient that the possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent.” (own emphasis)

 

[172] In the appeal case of Shongwe v Rex (24/2011) [2012] SZSC 43 (30 November 2012) His Lordship M.C.B. Maphalala JA, as he then was, with regard to the determination of intention, stated what I quote below:

“[46] … 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.”

 

[173] Masuku J, in the case of R v Motsa (3/1999) [2000] SZHC 8 (08 March 2000), cites with approval Kotze JA in Rex v Jollyand 1923 AD 176 at 187 who stated what is quoted below:

“The intention of an accused person is to be ascertained from his acts and his 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.”

 

[174] In casu, the accused used a dangerous and deadly knife known as Rambo knife. He brutally stabbed and killed the deceased. He inflicted on the deceased several stab wounds, some of which penetrated the body to the extent of injuring vital internal organs. Two stab wounds that went 2 cm deep were inflicted on the right lung; one 5 cm deep stab wound inflicted on the left lung; the heart was inflicted with a 3 cm stab wound on the atrium and a 2cm stab wound on the left ventricle. The deceased was also inhumanly, brutally and violently stabbed on his back three times while he was fleeing from the accused.

 

[175] For the reasons and findings made in the paragraphs above, I am satisfied that the crown proved beyond reasonable doubt that the accused is guilty of the crime of murder, and is accordingly convicted and found guilty as charged.

 

[176] On the evidence placed before court, it is common cause that the deceased was the cause of the fights that took place on the night he was killed. This comes out from the evidence of PW1, PW2 and PW5.

 

[177] PW1 testified that while he was with the deceased, they met the accused. It was at the instance of the deceased that a fight ensued with the accused. The deceased told PW1 that they should beat up the accused because he likes causing trouble, hence a fight with him started.

 

[178] When PW2 was asked during cross-examination about why the deceased and PW1 had a fight with the accused, he testified that he learnt from Siboniso Dlamini that the deceased was causing chaos on the night that he was killed. The accused, as a community police, was probably intervening to broker peace.

 

[179] When PW5 was asked during cross-examination, he conceded that he gathered from a statement that was recorded by Ntokozo Hlatshwako that the deceased assaulted a lady at the bar. He aslo assaulted Masotja Nhlabatsi, Sthera Nxumalo and David Chauke.

 

[180] On the basis of the above evidence, the conduct and behavior of the deceased constitute extenuating circumstances, as he is the one who caused the chaos and fighting that took place during the night he was killed. I accordingly find the existence of extenuating circumstances.

 

[181] In mitigation, it was submitted on behalf of the accused that he is a first offender, and is married with six minor children who are all attending school. His wife is unemployed and all depend on him for financial support and school necessities. He was self-employed and ran a panel beating garage where he employed six people who are heads of their own families. His incarceration would therefore be prejudicial not only to his family but to the other families as well.

 

[182] It was also submitted that the accused was attacked whilst discharging his duties of being a community police, and that this fact places his case in a better position than that of Rex v Nomsa Ntombencane Mahlaba (116/2009) [2011] SZHC 127 (15 June 2011). In this case the accused and the deceased were a married couple. On 23 June 2009 they had some altercations during which the accused pierced the deceased with a stick three times. The deceased died from the injuries and the accused was convicted of Culpable Homicide. She was sentenced to 5 years imprisonment which was wholly suspended for 3 years on condition that she was not convicted of another offence where violence is an element.

 

[183] The defence attorney implored the court to be lenient and follow the Nomsa Ntombencane Mahlaba (supra) case by imposing a suspended sentence.

 

[184] The crown submitted that as a trained community police, the accused ought to have acted better than he did. His conduct shows that he intended to kill the deceased when regard is given to the numerous stab wounds and the vicious manner by which he inflicted them, yet he was in his sober senses and had not consumed anything alcoholic.

 

[185] The crown also submitted that the killing of people using a knife has become a prevalent offence and a harsh sentence must be imposed by the courts in order to deter other would be offenders. The deceased was young and his relatives looked up to him for future support.

 

[186] The court was referred to the case of Mandla Bhekithemba Matsebula v Rex (02/2013) [2013] SZSC 72 (29 November 2913) where a murder convict’s sentence was reduced from 25 years to 20 years because there were extenuating circumstances. Reference was also made to the case of Somiso Mbhamali v Rex (38/2011) [2013] SZSC 8 (31 May 2013) where a sentence of 20 years was confirmed by the Supreme Court for a murder convict, and to the case of The King v Sibusiso Kukuza Dlamini (242/2017) [2018] SZHC 156 (17 July 2018) where the accused was sentenced to 25 years for murder.

 

[187] In deciding the appropriate sentence, the court is to consider and balance the personal circumstances of the accused, the interests of society, and the seriousness and prevalence of the offence. I have taken into account that the accused is a first offender, married and having minor children who are still attending school and are solely dependent on him for financial support.

 

[188] I have also taken into account that the killing of other human beings using knives has become common and has got to a point where it seems the sanctity of life has become valueless. Society looks up to the courts to protect its members against those who have no regard to the lives of others.

 

[189] The brutality that the accused exhibited when stabbing and killing the deceased is inexcusable and unjustified. This is more particularly because the accused was a community police at the time and every society member looked up to him for protection. He was trained by professional members of the Royal Eswatini Police Service on maintenance of law and order, and on crowd management as well. He ought to have been exemplary when it comes to exercising self-restraint. The court must send a clear message of non-tolerance to people who take the law into their own hands. This is a case where sentence is to be imposed at the highest scale of the range of murder sentences.

 

[190] Taking into account the extenuating circumstances, a custodial sentence of 15 years is, in my opinion, appropriate.

 

[191] In terms of s.313(2) of the CP&E Act, the operation of the whole or any part of sentence cannot be suspended in respect of Murder, Rape and Robbery offences. Now therefore, acting in terms of s.177 (2) of the CP&E Act, which permits the court to amend a mistakenly delivered wrong sentence, I amend the sentence which I pronounced on the 17 April 2019 to 15 years imprisonment. The 5 years which I suspended is hereby revoked.

 

[192] For the avoidance of doubt, the accused is sentenced to 15 years imprisonment. The five years which was suspended is revoked. The imprisonment period is to take into account any period which the accused has spent in custody in respect of this offence.

 

[193] The Registrar of this court is directed to communicate to the Commissioner General of Correctional Services the amended sentence.

 

 ______________________

T.L. DLAMINI

JUDGE – HIGH COURT