IN THE HIGH COURT OF ESWATINI
HELD AT MBABANE
CASE NO. 174/2017
In the matter between
Neutral citation: Rex Vs Lucky Matsenjwa (174/2017) 
SZHC 07 (4 February 2020)
Coram : MAMBA J.
Heard : 06 November 2019
Delivered : 04 February 2020
 Criminal Law – Application for discharge of Accused at close of case for the crown in terms of Section 174 (4) of Criminal Procedure & Evidence Act 67 of 1938 (as amended). Accused facing multiple counts – where prima facia case has been established – application to be dismissed.
 Criminal law – Application for discharge of Accused in terms of 174 (4) of Criminal Law & Procedure Act 67 of 1938 (as amended) – Test – to be discharged if no evidence upon which a reasonable court acting carefully and judicially may convict.
 Criminal Law & Procedure – application for discharge of accused at close of case for the crown – credibility of witnesses to form part of assessment of evidence.
 The accused stands charged with 11 counts. On count 1, it is alleged that he is guilty of the crime of murder in that on or about the 12th day of May 2017 he unlawfully and intentionally killed one Mduduzi Schaza Matsebula (hereafter referred to as the deceased). The crime was allegedly committed at Buka area in the Hhohho Region. The crown further alleges that the accused committed the crime acting either alone or jointly with other persons unknown to the crown, in furtherance of a common or shared purpose.
 The second count is linked to the first one and is said to have been also committed at Buka on 12 May 2017. It is the crime of defeating or perverting the course of justice. The crown alleges, in substance that the accused killed the said Schaza Matsebula in order to prevent him from giving evidence against him (the accused) in a criminal case that was at the time pending before this court – wherein the accused was charged for a contravention of the Prevention of Corruption Act. In other words, this charge is the motive the accused allegedly had for committing the first count.
 On count 4, the accused is charged with the crime of theft of a mobile cellular telephone and pair of shoes belonging to Schaza. The items were valued at E2 000.00. Again, the accused is alleged to have acted alone or jointly with other persons unknown to the crown. This offence was allegedly committed on 12 May 2017. The place is not stated though.
 Count 4 alleges that the Accused during the month of October 2014, in Mbabane, unlawfully and intentionally violated the dignity, repute and authority of this court by ignoring a court order that obliged him to hand over his passport to an investigating Police Officer. The Accused allegedly deliberately and unlawfully failed to do so and is therefore guilty of the crime of contempt of Court.
 Counts 5 and 7 both allege that the Accused committed the crime of Defeating or Obstructing the Course of Justice. Count 5 was allegedly committed in April 2017 in Mbabane whereby the accused “unlawfully and with intent to defeat or obstruct the course of justice requested Ngcebo Vermaak to convince Schaza not to give evidence against the accused person in the trial of the Prevention of Corruption charges.’ It is alleged that the accused knew at the time that the said Schaza was to be a witness at the trial, he, the accused was facing before the court. Count 7 alleges that a similar request and under similar circumstances was made by the accused to Siboniso Simelane in September 2016. This is said to have been done in Mbabane.
 In Counts 6, 8, 9, 10 and 11, the accused faces a charge of Attempting to Defeat or Obstruct the Course of Justice.
[6.1] Count 6 is said to have been committed on 19 May 2017 whereby the accused unlawfully and with intent to defeat or obstruct the course of justice, requested Ngcebo Vermaak, whom he knew then to be a potential witness in the investigation of the circumstances leading to the death of (Schaza) to lie to the investigators that he (the accused) was not in Mbabane on 12 May 2017, whereas this information was to the knowledge of the accused person false and he (the accused person) having been in Mbabane on 12 May 2017.
[6.2] The indictment alleges that a request similar to the one in the preceding paragraph was made by the accused to Mongi Nhlakanipho Simelane on 14 May 2017. That is Count 8. Count 9 alleges that on 15 May 2017 the accused requested the said Mongi ‘to deny knowledge of any information regarding him (the accused) and the deceased to the investigators of the murder of (Schaza).’
[6.3] Count 10 alleges that the accused whilst facing a charge under the Prevention of Corruption Act before the court wherein Schaza was to be a witness of the Crown, ‘the accused unlawfully and with intent to pervert the course of justice, request Thulani Magagula to convince (Schaza) to change his statement he had made in regard to the said charges ---whereas the accused well knew that this was to change a true statement and replace it with a false statement. This charge is similar to Count 7 and is said to have occurred or committed during the month of April 2017 in Mbabane.
[6.4] On Count 11, the indictment states that the accused committed the crime of Attempting to Obstruct or Defeat the course of Justice by ‘unlawfully and with intent to obstruct the course of justice, request one Sibongile Masilela to make a false report to Inspector Solomon Mavuso, an Investigator of the murder case of (Schaza) that (Schaza) and Ngcebo Vermaak were involved in illegal dealing with drugs, whereas at the time the accused made such a request --- he (the accused) well knew that the request was based on false allegations.’
 The crown led a total of 34 witnesses in support of its case. At the close of the case for the crown, the accused applied for his discharge and acquittal on all eleven charges; stating that there was no evidence implicating him on any of these charges. This is an application in terms of or under Section 174 (4) of the Criminal Procedure and Evidence Act 67 of 1938 (as amended). The Application was opposed by the crown; stating that there is, on all 11 counts, ample evidence implicating him.
 Section 174 (4) has been the subject of many court decisions in this court and in South Africa. First, the relevant section states that:
‘If at the close of the case for the prosecution, the Court considers that there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted thereon, it may acquit and discharge him.’
The trial court has the discretion in the matter whether to acquit and discharge the accused. As it is often said and worth repeating herein, the discretion must be exercised judicially and judiciously. A discretion improperly exercised is an abuse of such power and no discretion at all. A proper use of such discretion would, needless to say, take into account all the relevant evidence that is before the court at this stage of the proceedings and also the particular circumstances of each case. (See Masondo Vs In re: S. V. Mthembu and Others (20110 (2) SACR 286 (GSJ  ZAGPHC22; (15 February 2011) at Paragraph 37).
 In Rex V Musa Mdluli, High Court criminal case 169/1998, unreported, the court stated the position of the law (on Section 174 (4) as follows:
‘In the unreported case of THE KING V DUNCAN MAGAGULA AND 10 OTHERS, CRIMINAL CASE NO. 43/96, Dunn J. in my view correctly set out the proper test to be applied. At page 8, the learned Judge states as follows regarding Section 174 (4) of the Act:
“This Section is similar in effect to Section 174 of the South African Criminal Procedure Act 15 of 1977. The test to be applied has been stated as being whether, there is evidence on which a reasonable man acting carefully might convict (R. V. SIKUMBA 1955 (3) SA 125, R v AUGUSTUS 1958 (I) SA 75, not should convict (GASCOYNE v PAUL and HUNTER 1917 TPD 170; R v SHEIN, 1925 AD 9.”
This conclusion is also supported by Du Toit et al, Commentary on the Criminal Procedure Act, P174 and the cases therein referred.
Having set out the test to be applied, there is another vexed question to be decided, namely, whether or not the credibility of Crown witnesses should be taken into account in arriving at a decision whether or not to grant a discharge. In S v NATIONAL BOARD OF EXECUTORS LTD & OTHERS 1971 (3) SA 817, Harecourt J, was of the view that credibility was not an issue that a Judge should consider when deciding a discharge at the close of Crown’s case.
However in S v MPETHA & OTHERS 1983 (4) SA 262 at 265 D – G Williamson J. came to a different conclusion and laid the following proposition:-
“Under the present Criminal Procedure Act, the sole concern is likewise the assessment of evidence. In my view, the cases of BOUWER and NAIDOO correctly hold that credibility is a factor that can be considered at this stage. However, it must be remembered that is not only a very limited role that can be played be credibility at this stage. If a witness gives evidence which is relevant to the charges being considered by the Court then that evidence can only be ignored if it is of such poor quality that no reasonable person could possibly accept it. This would really be in the most exceptional case where the credibility of a witness is utterly destroyed that no part of his material evidence can possibly be believed before credibility can play a role at all, it is a very high degree of untrustworthiness that has to be shown. It must not be overlooked that triers of fact are entitled ‘while rejecting one portion of the sworn testimony of a witness, to accept another portion’ – See R v KHUMALO 1916 AD 480 at 484. Any lesser test than the very high one, which in my judgment , is demanded, would run counter to both the principle and the requirement of Section 174.
The same question arose for decision in the High Court of the Kingdom of Lesotho in the case of REX V TEBOHO TAMATI ROMAKATSANE 1978 (I) LLR 70.
Cotran C.J. stated as follows at page 73 - 4:
“In Lesotho, however, our system is such that the Judge (though he sits with assessors is not bound to accept their opinion) is the final arbiter on law and fact so that he is justified, if he feels that the credibility of the crown witness has been irretrievably shattered to say to himself that he is bound to acquit no matter what the accused might say in his defence short of admitting the offence.’
In the case of the KING v DUNCAN MAGAGULA and 10 OTHERS (supra), Dunn J, was strongly persuaded that this Court should adopt the approach set out by Cotran C.J. above. This is because of the similar position in which Judges in both Kingdoms are placed. This approach has a lot to commend itself for and I respectfully endorse Dunn J’s view.’
See the Judgment by this Court in Rex V Mario Masuku, crim. 348/2008 Para 3 and Rex Mpumelelo Mamba and Others crim. 138/2009. In Rex V Dlamini Mfanasibili 1987 – 1995 SLR (2) 269 at 270, the court specifically held that the credibility of the witnesses for the crown is a factor that must be taken into account in the assessment or evaluation of the evidence before the court. For this reason, I, with due respect, am unable to follow some of the Judgments by this court that appear to suggest that the credibility of the witnesses is not a factor to be taken into consideration at this stage. (Vide also S.V. TEEK 2009 (1) NR 127 (SC).
 In S V Frederiksen (33/2016  ZAFSHC 161; 2018 (I) SACR 29 (FB) (14 September 2017), the court quoting the court in S V Lubaxa 2001 (4) SA 1251 (SCA) said:
‘ Section 174 --- permits a trial court to return a verdict of not guilty at the close of the case for the prosecution if the court is of the opinion that there is no evidence (meaning evidence upon which a reasonable person might convict:
S V Khanyapa 1979 (I) SA 824 (A) at 838 F – G) that the accused committed the offence with which he is charged, or an offence which is a competent verdict on that charge.
 The right to be discharged at that stage of the trial does not necessarily arise, in my view, from considerations relating to the burden of proof (or its concomitant, the presumption of innocence) or the right of silence or the right not to testify, but arguably from a consideration that is of more general application. Clearly a person ought not to be prosecuted in the absence of a minimum of evidence upon which he might be convicted, merely in the expectation that at some stage he might incriminate himself. That is recognised by the common law that there should be ‘reasonable and probable’ cause to believe that the accused is guilty of an offence before a prosecution is initiated --- and the constitutional protection afforded to dignity and personal freedom (S.10 and S.12) seems to reinforce it. It ought to follow that if a prosecution is not to be commenced without that minimum evidence, so too should it cease when the evidence finally falls below that threshold. That will pre-eminently be so where the prosecution has exhausted the evidence and a conviction is no longer possible except by self-incrimination. A fair trial, in my view, would at that stage be stopped, for it threatens thereafter to infringe other constitutional rights protected by S.10 and S.12.’ [S.21 of our Constitution].’
 I now examine the evidence and the quality thereof that has been led by the crown on the various charges already stated.
 It is common cause that at all times material hereto, the accused and the deceased were employed as Police Officers within the Eswatini Royal Police Service. At one stage they worked together within a section or unit that was responsible for the safekeeping or access to fingerprints of convicted persons stored by the Police. At some stage evidence emerged of some tempering or unlawful interference with the fingerprints data and this led to the accused being charged under the Prevention of Corruption Act. His colleague, the deceased became a potential crown witness in the matter. It is alleged by the crown that the relationship between the two became strained because of this.
 The evidence by the crown in respect of Counts 1, 2, and 3 is circumstantial and is in the main based on the strained relationship that existed between the accused and the deceased at the relevant time; in particular 12 May 2017. From the outset, it is noted that there is not an iota of evidence indicating what became of the mobile telephone and shoes belonging to the deceased. They are the subject of Count 3 on the indictment. The only evidence before the Court is that provided by Nomvuyo Dlamini (PW5), the wife of the deceased. She testified that on the Friday in question, the deceased was wearing the relevant shoes when he left the house and also took with him the cellular telephone in question. That was the last time she saw these items. It is common cause that when the body of the deceased was found a few days later, these items were not there. There is no evidence of what became of them or that the accused or some other person or persons, acting in furtherance of a shared or common purpose with him stole these items. Clearly, therefore there is no evidence implicating the accused on this count and he is accordingly acquitted and discharged thereon.
 Counts 1 (Murder) and 2 (Defeating the Course of Justice) are interlinked, and inextricably so. The crown alleges that the accused killed (murdered) the deceased in order to silence him from giving evidence against him (defeating the course of justice).
 Terry Ngcebo Vermaak, also a Police Officer was a close associate or acquaintance of both the accused and the deceased. He was together with the latter, part of the security details responsible for the safety of the Chief Justice of this Court. Vermaak gave evidence as PW7.
 PW7 testified that sometime in April 2017, whilst at Garage Bar he was approached by the accused who requested him to speak to the deceased on his behalf regarding the case, he, the accused was facing and wherein the deceased was a witness. The accused informed PW7 that he had unsuccessfully enlisted the help of several persons, including one Chippa in an attempt to talk to the deceased and urge him not to give evidence against him in the pending case. PW7 said he was reluctant to intercede on behalf of the accused and thus advised the accused to approach him whenever he was in the company of the deceased. This was on the 05 May 2017. Before then, the accused had telephoned PW7 and alleged that the deceased was ferrying or transporting dagga in the official motor vehicle that he used as part of the convoy of the Chief Justice.
 Vermaak also gave evidence that on 12 May 2017, the accused telephoned him and informed him that he was coming to Mbabane that evening and he requested him to arrange that the two of them meet with the deceased over drinks. PW7 agreed to set up this meeting at Solanis bar at about 8 pm. The accused, according to PW7, agreed to this arrangement. PW7 met the accused at Solanis at about 9 pm and the accused requested him to invite the deceased to join them there. About 30 Minutes later, PW7 called the deceased who agreed to join him at Solanis. When the deceased stated that he had no transport to travel to the bar, Vermaak advised him that he would hire a taxi to fetch him from the gate at the Police Camp where he stayed. The accused, according to Vermaak then offered that his brother who was at Galp Filling Station and was driving in a black VW Golf could collect the deceased rather than a taxi. This offer was conveyed by Vermaark to the deceased. However, Vermaak did not say that the driver in the black golf was a brother of the accused. He said the occupants of the car were his friends. The deceased related to him that a black golf car had just gone past the gate where he was. The deceased was then advised to wait at the gate near Mater Dolorosa School. Thereafter the accused left the bar saying he was going to see his girlfriend at a place known as Corporation. Before departing, he gave Vermaak E200.00 to buy drinks for himself and the deceased whilst he, the accused was away.
 Vermaak told the court that after waiting for about 15 minutes in vain for the deceased, the accused and his brother, he telephoned the accused. In response, the accused promised to call him within five minutes, which he did. The accused is reported to have told PW7 that the people in the golf car had lied to him, presumably about offering to transport the deceased from the Police Camp to the bar. He told PW7 that the people had told him that they were then at Ezulwini not in Mbabane. PW7 left the bar at around 1:30 am and went to his house.
 It was the evidence of PW7 that on Saturday i.e. 13 May 2017 at about 9:00 am, the accused telephoned him using a South African mobile telephone number to find out if PW7 had met with the deceased the previous night. The accused further related to this witness that he had had to convey his sister to Nelspruit hospital as a matter of urgency and that is why he had not returned to the bar the previous night. PW7 informed him that the deceased had not shown up at the bar. Later that day at around 3 pm the accused called PW7 again to enquire if the witness had met with the deceased. At this time PW7 was on duty in the Hlatikhulu Area. He said he became worried and suspicious of what might have happened to the deceased. He then decided to relay his fears to his superior in Nhlangano, a Mr Shabangu. This was after failing to speak to Mr Solomon Mavuso.
 PW7 testified further that, using a local mobile cellular telephone number, the accused called him that evening and told him that he must, on being questioned about his whereabouts by the police, deny that the two had met at Solanis the previous night. This conversation between the two was followed by yet another telephone call by the accused the next day (Sunday). The accused enquired if there were any reports concerning the deceased. The next day, i.e Monday, PW7 was summoned to the Mbabane Police Station where he was interviewed and recorded a statement by the police. That was after he had advised PW4 to report the disappearance of her husband to the police. At about 5 pm on that day, the accused telephoned him to find out why he had been called to the Police Station. PW7 informed the accused that he had been asked about the whereabouts of the deceased. In response the accused advised him to deny that the two of them had met in Mbabane on 12 May 2017.
 After the discovery of the body of the deceased, the accused, again using a South African mobile telephone number called PW7 and advised this witness to maintain the denial referred to above. This prompted PW7 to ask the accused as to what had actually happened to the deceased. The accused said he did not know anything.
 According to PW7, the accused called him on the 19th day of May 2017 and told him he was in Nelspruit ‘to cleans’ himself in connection with the matter involving the deceased. When this occurred, Vermaak was in the company of Fikile Masilela. He had his telephone on loudspeaker as he spoke with the accused. Fikile revealed to PW7 that she had been asked by the accused to find out from PW7 why he had been questioned by the police. The accused repeated the allegation that the deceased had been transporting dagga using the official police vehicle. The last time Vermaak spoke to the accused was on 25 May 2017, according to him (PW7).
 Fikile A. Masilela gave evidence as PW22. She materially confirmed the telephonic conversation between the accused and Vermaak referred to above.
 Under cross-examination, it was put to PW7 that the accused was not in Mbabane on 12 May 2017 but was in Manzini at his place of business at KaShali and had guests there until 11:30 pm. It was also put to Vermaak that it was Vermaak who telephoned the accused on 13 May 2017. It was further put to PW7 that at no stage did the accused tell PW7 to deny having been in Mbabane on 12 May 2017 or having been in Nelpruit to cleans himself for what had occurred to the deceased. It was suggested further to Vermaak that the accused was a close friend of the deceased and had no reason to ask for the intersession of PW7 in the circumstances. PW7, however, maintained his evidence in chief. He also told court of certain telephone numbers that were allegedly used by the accused to telephone him.
 PW13 Bhekumuzi Masilela (Derrick) testified that he knew both Vermaak and the accused at the relevant time and that he saw them both together as Solanis Bar on the night of 12 May 2017. He said the time was around 8 – 9 pm. He operated a taxi service on the night and he left the bar after being hired by a certain lady to drive her away. On his return to the bar that night, he did not see either of them at the bar. Towards daybreak, however, he saw PW7 talking to one of the taxi man outside the bar.
 PW13 denied that he was fabricating the version or story that he saw the accused at Solanis on the night in question.
 The presence of PW7 at Solanis and his time of departure therefrom on the relevant night is substantially confirmed by PW10, Constable Sihle Dlamini.
 The evidence of both PW7 and PW13 concerning the presence of the accused at Solanis on the night of 12 May 2017 is, at this stage of the proceedings straight forward and credible. There is nothing to gainsay it. Both witnesses were unshaken under cross examination by the defence. The evidence of PW13 only and merely confirms the presence of the accused and PW7 at the bar and nothing more. Additionally, the presence of PW7 at the bar is confirmed by PW10.
 I have stated above and this is common cause that there is no direct evidence to show what happened to the deceased after he left his house at the Police Camp, until his lifeless body was found at Buka on 14 May 2017. The crown has stated in submission against the application for the discharge of the accused on Counts 1, 2 and 3 that there is circumstantial evidence implicating the accused on these charges. In support of its case, the crown heavily relies on the evidence of PW7 in the following respects that the;
(a) accused was eager to meet and urge the deceased not to implicate him in the case that was pending against him.
(b) accused had solicited the help of several persons to persuade the deceased not to testify truthfully against him.
(c) accused requested PW7 to invite the deceased to Solanis Bar on 12 May 2017.
(d) accused was in Mbabane on the night in question but later urged several witnesses to deny that he was in Mbabane at the relevant time.
(e) accused offered the services of his brother to transport the deceased from the Police Camp to Solanis Bar.
(f) accused left Solanis Bar at night and never returned to honour the meeting with the accused and PW7, which meeting he had been instrumental in setting up.
(g) after the disappearance and death of the deceased, the accused was frantically asking people who were being interviewed by the Investigators, about the nature of those investigations and interviews.
(h) The accused went to Nelspruit to ‘cleans’ himself – following the death of the deceased.
(i) Blood samples found in a black VW golf matched that of the deceased. The crown has submitted that this car is the one that the accused offered to collect the deceased from the Police Camp on the night the deceased was last seen alive.
 Bar the expert evidence on the blood samples referred to above, all the above issues constitute circumstantial material. Taken individually and cumulatively, this material is very poor and weak to be characterised as evidence implicating the accused person in this case. No court acting reasonably and judicially may return a guilty verdict based thereon.
 There is clearly no evidence on how the blood samples came to be deposited in the motor vehicle. Furthermore the crown has not stated when such blood was deposited there. Crucially, there is no evidence that the accused had anything to do with whoever allegedly killed or harmed the deceased at the relevant time. It has to be observed and borne in mind further that the last time PW7 spoke to the deceased, the latter told him that a black VW golf car had gone past the gate where he was.
 The anxiety by the accused to speak to or know about the fate of the deceased before and after his death is also reasonably understandable in view of the pending matter against the accused wherein the deceased was a witness. Such anxiety or eagerness on is part does not point solely to his guilt or want of innocence.
 From the above analysis of the facts and the applicable law, I have no hesitation in holding that no reasonable court, acting carefully and judicially may convict on the evidence presented herein in respect of Counts 1 and 2. The accused is accordingly acquitted and discharged in respect of these counts as well.
 I have already held that the evidence of PW7, PW10 and 13 pertaining to the presence of the accused in Mbabane on 12 May 2017 is credible. I also accept the evidence PW7 that the accused urged him to lie to the police and say that he was not in Mbabane on the day in question. Accordingly there is evidence implicating him in respect of Count 6. His application on this Count is thus refused.
 On the 4th Count, the accused faces a charge of contempt of Court. The evidence on this charge is again straightforward and short and it is this: During a bail application that was moved before this Court by his lawyer, the accused was ordered by the Court to, amongst other things, surrender or handover his passport to the investigating officer – a police man. The order was granted in his absence but in the presence of his legal representative.
 According to the testimony of PW27, Isaac Dlamini, the bail application was granted by the Court on 15 October 2014. This witness further stated that upon the arrest of the accused, he discovered that on 12 November 2014 the accused had not surrendered his passport as ordered by the Court and had used it to leave the country and travel into South Africa. He crossed through the Ngwenya/Oshoek Border Post. There were other dates on which the accused used the passport to travel outside the country. The passport in question was handed in court as Exhibit J and its number is 10010640.
 The evidence by the crown simply amounts to this: the court ordered the accused to surrender his passport to the investigators of his case. He did not or he failed to do so and on 12 November 2014 used his passport to go to South Africa. That, in my judgment falls short of establishing a case for contempt of court by failing to follow an order of court. The crown ought to have led evidence to show that the precise terms of the order of the court had been brought to the attention and knowledge of the accused before he used his passport to travel outside the country. There is no such evidence whatsoever. That the accused person subsequently successfully applied for a variation on 23 January 2015 does not cure this defect in the evidence. The infraction or contempt was allegedly committed on or about October 2014 and the crown led evidence to establish that the accused used the passport on 12 and 13 November 2014. Whether or not Counsel for the accused fully explained the Court Order to him; more specifically about the surrendering of his passport, is wanting in the evidence. In any event, whether such explanation would, if given to the accused by his attorney, suffice is a matter I need not reach a firm conclusion in the circumstances of this case. See P.A. Thomas & Co V Mould  1 ALL E.R 963 at 967.
 For the above reasons, the application for the acquittal and discharge of the accused succeeds and is hereby granted.
 On Count 5 the accused is alleged to have urged or requested Vermaak (PW7) to urge the deceased not to testify against him. This is said to have occurred in April 2017 at the Garage Bar in Mbabane. I have already narrated the evidence of PW7 in paragraph 16 above on this issue and I need not repeat it here. The gist of that piece of evidence is that the accused wanted Vermaak to talk to the deceased and tell him not to testify against him in the case wherein the deceased was a witness. The result was to interfere in the course of justice and was prima facie unlawful. This evidence implicates the accused in an attempt to obstruct the course of justice. Consequently his application for an acquittal and discharge on Count 5 if refused.
 On Count 7, the accused is alleged to have requested Siboniso Simelane (PW6) to ask the deceased to change his statement as a witness in the Prevention of Corruption case that the accused was facing. The offence is said to have occurred in Mbabane sometime in September 2016.
 PW6 testified that he left the Police Service in October 2017 and was now employed by Eswatini Electricity Company. He did not testify about any conversation he had with the accused in 2016. However, he stated that in April 2017 he was approached by the accused who requested him to speak to the deceased and advise him to seek legal opinion on the fact that although he (the deceased) had recorded a statement as a crown witness, he might still be charged and prosecuted based on that statement he had made. This evidence by PW6 does not support the allegation in the indictment. I also do not think that such advice by the accused was unlawful or was an attempt to obstruct or defeat the Ends of Justice. I accordingly hold that there is no evidence implicating the accused on Count 7 and he is acquitted and discharged thereon.
 Mongi Nhlakanipho Simelane was the 9th witness for the crown (PW9). He testified in respect of Counts 8 and 9. He was a close associate of Police Officer 4159 Inspector Simon Malayisha Simelane, and to some extent the accused person. The crown alleges that on 14 and 15 May 2017, the accused unlawfully and intentionally attempted to interfere with the due course of justice by telling this witness to give false information about him to the Police Officers who were investigating the death and murder of the deceased. On Count 8 it is alleged that he had ‘to lie’ to the investigators that he (the accused) was not in Mbabane on 12 May 2017 (whilst on Count 9) he had to deny knowledge of any information regarding him (the accused) and the deceased to the investigators of the murder --- of the deceased.’
 PW9 gave evidence that he used to drive PW8 around and that is how he got used to or became acquainted with the accused who would occasionally telephone him or PW8 and ask him about the whereabouts of the deceased. In the course of one such calls, he asked the accused why the accused was not calling and speaking directly to the deceased because they were both Police Officers. In response the accused told PW9 that the deceased was not taking his calls.
 According to PW9, the accused called him on his mobile telephone at about 8 pm and agreed to meet him and PW8 at the Garage Bar in Msunduza but he, the accused, never came there. On the following day, i.e., 13 May 2017, the accused telephoned this witness to say that if asked if the accused had been in Mbabane the previous day i.e. 12 May 2017 PW9 must say that the accused had called to say that he was held up somewhere and was not in Mbabane. Again, according to this witness, the accused telephoned him on Monday and told him that he must deny that he, the accused, had said anything concerning the deceased.
 Whilst it is clear from the evidence of PW9 that the accused did not honour the appointment to meet him at the Garage Bar on 12 May 2017, it is not evident that he was not in Mbabane on the said night. Similarly, it is crystal clear from this evidence that the accused did not telephone PW9 to tell him that he was held up somewhere and he would not be in Mbabane on 12 May 2017. Therefore to ask PW9 to relate this information to the police was to mislead the police. The same is true of his request that PW9 must not tell the Police that he had said anything concerning the deceased, because he had, inter alia, told PW9 that the deceased was not taking or was refusing to take his telephone calls. Basically, the evidence of PW9 is that the accused told him to lie about him to the police investigators. That is an attempt to defeat or obstruct the course of Justice. That being the case, the application for the discharge of the accused on Count 8 and 9 is refused. There is evidence implicating him on those Counts.
 Thulani Magagula gave evidence as PW11 and his evidence is relevant on the charge in Count 10 where it is alleged that the accused unlawfully and intentionally requested PW11 to urge or ‘convince’ the deceased to change the statement he had made in regard to the trial (of the accused) on the Prevention of Corruption Charges. This crime is alleged to have been committed in Mbabane in April 2017.
 PW11 is a Police Officer. He told the Court that sometime in April 2017 the accused visited him at his house in Mangwaneni. He said the accused told him that he wanted advice from him on how to approach or speak to the deceased who was refusing to talk to him. He said he advised the accused to stop trying to speak to the deceased because the deceased was a witness in the matter that was pending in Court against the accused. The accused, according to PW11 accepted this advice and left. Clearly therefore this cannot be said to have been an improper approach to this witness, let alone a request to ‘convince’ the deceased to change his statement. The crown has in the circumstances failed to lead any evidence in support of Count 10. The accused is accordingly acquitted and discharged thereon.
 On Count 11 the accused is charged with the offence of attempting to defeat the Course of Justice, it being alleged that on 19 May 2017 he unlawfully and intentionally requested one Sibongile Masilela (PW4) to make a false report to Inspector Mavuso, an Investigator in the murder of the deceased, that the deceased and PW7 “were involved in illegal dealing in drugs; whereas this was, to the knowledge of the accused false.’
 PW4 gave evidence that she was related to the deceased and his wife. The accused was well known to her and so was PW7. She stated that on 19 May 2017 the accused, who was commonly known to her as Obama, telephoned her and told her to go and report to Police Officer Solomon Mavuso that the deceased and PW7 were involved in the illegal transportation or conveyance of dagga using the car which was part of the escort for the Chief Justice. He told her that the said Police Officers were transporting the dagga for people of Mgababa Area. He also informed her that at one stage certain men had been seen threatening to stab the deceased with a knife by placing the knife on his neck. Sibongile complied with this request by the accused and reported the issue to Solomon Mavuso.
 Under cross-examination, it was denied by Counsel for the accused that the accused ever said this in respect of either PW7 or the deceased. PW4 was, however, adamant that what she was testifying about was the truth. The crux of the matter though is the allegation by the crown that this allegation by the accused was, to the knowledge of the accused false. That is the sting or substance of the charge. If the allegation was false, then it was an attempt to falsely implicate the two police officers and send the investigators on a wild goose chase. That would be the offence of attempting to pervert the course of Justice. Fatally for the crown though, there is absolutely no evidence that this statement by the accused was false. In the absence of such evidence – of the falsity of the allegations by the accused – the crown has not made out a case against the accused. He is accordingly acquitted and discharged on Count 11.
 In summary, the accused is acquitted and discharged on the following counts; namely:
(a) Count 1 (Murder)
(b) Count 2 ((Defeating the Ends of Justice)
(c) Count 3 (Theft)
(d) Count 4 (Contempt of Court)
(e) Count 7 (Defeating the Ends of Justice)
(f) Count 10 (Attempt to Defeat the Ends of Justice)
(g) Count 11 (Attempting to Defeat the Ends of Justice).
 The application for the acquittal and discharge of the accused is dismissed on the following Counts namely:
(a) Count 5 (Attempting to Defeat the Ends of Justice)
(b) Count 6 (Attempting to Defeat the Ends of Justice)
(c) Count 8 (Attempt to Defeat Course of Justice)
(d) Count 9 (Attempt to Defeat Course of Justice).
FOR THE CROWN: MR M. NXUMALO (WITH HIM MS E. MATSEBULA)
FOR THE ACCUSED: ADV. L.M. MAZIYA (INSTRUCTED BY GUMEDZE)