THE HIGH COURT OF SWAZILAND
CASE NO. 76/92
the matter of:
O R A M : HULL CJ.
THE CROWN : MR. SIBANDZE
THE DEFENCE : MR. A. LUKHELE
accused is charged with murdering Silver Malindzisa on 11 March, 1992
at Msunduza by stabbing him with a knife.
being arraigned, she pleaded not guilty to murder, by reason of a
lack of intention to kill him, but guilty of culpable homicide. Her
counsel confirmed this plea. The Crown however declined to accept the
plea to the lesser charge and the case proceeded.
is not in dispute that the deceased died as a result of a penetrating
incised wound of the neck with haemorrhaging. In Dr. Berson's post
mortem report, which was admitted by consent as exhibit 1, he
described a wound of 1.0 cm with a track of at least 15cm in length
passing downwards and medially.
is not in dispute that accused inflicted this injury-using the
kitchen or bread knife which has been produced as exhibit 2B.
evidence called by the Crown, apart from that of the police officer
who attended the scene afterwards, was that of a neighbour, Samuel
Dlamini. He had been playing cards with friends.
said that he heard the deceased calling "Why are you hitting me
LaJele." He and his friends went outside. They found the
deceased and the accused fighting and quarrelling over a hammer. The
witness said that the hammer was at first in the possession of the
accused, but then that the deceased got possession of it. He also
said that after that, the deceased hit the accused once with it on
the right side of the head, (indicating the area forward of the right
one of the witness's friends separated the two, taking the hammer and
telling them to return to the house. After that the witness and his
friends went back to their card game.
five to seven minutes later by his reckoning, he heard someone
shouting "They have stabbed the old man". He went out again
to find the deceased by his doorway bleeding and staggering. He sent
somebody to make a phone call to the Emergency Services.
said too that the accused was trying to stop the bleeding with a
cloth that the deceased was in a habit of wearing around his neck,
but by the time the police came, he had died.
accused who is 46, is a slight woman. The witness indicated that the
deceased, who was 57, was a good deal bigger. The police officer who
attended the scene recovered the knife and also a hammer which is
is how the evidence stood when the Crown closed its case. There was
thus no evidence, from the witnesses called by the Crown, that the
accused had in fact inflicted the wound that caused the death of the
deceased. The Deputy Director of Public Prosecutions, however, relied
on the accused's tendered plea as an acknowledgement that there was
no real issue that she had indeed caused his death.
counsel did not seek to have the charge dismissed on any basis that
there was no case to answer. The accused gave evidence on her own
behalf. She said that she had lived with the deceased since 1986, and
that they had been in love. On the day in question, she got up and
had a bath. This disturbed the deceased, who became angry at being
woken up and slapped her, knocking her against a wall, bruising the
side of her face. It appears from the evidence (in which she was not
challenged in this respect) that this may have stunned her for a
she came to, she said she found the deceased trying to lift a hammer.
They struggled with it fetching up outside. The deceased got
possession of it, and hit her on the crown of the head, towards the
rear. Then the neighbours separated them. She noticed as she was
returning to the house that she was bleeding.
said that as he was coming into the house with the hammer, she took
up the knife. She admitted stabbing him with it. She said she thought
she had stabbed him over the left collar bone. She said in her
evidence in chief that she did not know and could not explain why she
had stabbed him, but that it was not her intention to do so. She said
that he fell down, and that she tried unsuccessfully to stop the
bleeding and left him.
cross-examined as to her intentions, she said that she did not mean
to kill the deceased. She said "It was not my intention because
I found it had already happened". She said that the deceased
retained the possession of the hammer after they had been separated
for the first time.
Crown has not in my view proved beyond reasonable doubt that the
accused intended to kill the deceased. In fact the Crown does not so
contend. Its case, as presented, is that knowing that there was a
real likelihood or at least a real possibility that by stabbing him
in that way, she might cause his death, she went ahead and did stab
him in that way and that she did so recklessly, i.e. not caring
whether or not she did in fact kill him. The Crown is also saying
that in doing so, she was acting unlawfully, so that she is therefore
guilty of murder.
defence does not contend that her action was not unlawful. But it
does contend that she had been acting in self defence, and exceeded
the legitimate bounds of self defence, so that she is not guilty of
murder, but only of culpable homicide.
evidence shows that there had been an altercation and that at one
point in time, the deceased hit the accused on the head with a
hammer. It shows that he was bigger than she was and that, as I say,
she herself is a slight woman of middle years. Her account as to how
the altercation began and continued has not been challenged.
words that Mr. Dlamini heard on two separate occasions are part of
the res gestae. They are not in my view sufficient however to show
that the accused's account of events is beyond doubt untrue.
is the fact that Mr. Dlamini said that one of his friends took
possession of the hammer on the first occasion when they intervened.
The accused says that she began to walk back inside. The man who is
said to have taken possession of the hammer was not called by the
prosecution. It is quite possible that the deceased may have
recovered it before he returned to the house.
do not think that the lapse of time of 5 to 7 minutes referred to by
Mr. Dlamini proves beyond reasonable doubt that the accused's version
is untrue. It does bear, I think, on the issue of excessive force by
way of self defence. But Mr. Dlamini did confirm that the deceased
had hit her and that she suffered an injury.
are familiar with such incidents (but which may not be so well-known
to a lay person such as the accused) that a wound in such a location
can very easily penetrate into the vital organs with fatal results.
She only inflicted one wound. I find her account as to her
intentions, in her own words, convincing.
I consider that this has been shown as contended by the defence to be
a case of self defence that went too far, rather than one of murder,
so that the accused is properly guilty of culpable homicide.
acquit her of the charge of murder, but find her guilty of culpable
homicide and enter a conviction accordingly.