THE HIGH COURT OF SWAZILAND
the matter of
THE CROWN : Mr.
THE DEFENCE : Mr.
Stephen Gwebu is accused of murdering Mefika Joseph Sibandze on 1st
February, 1992 by stabbing him in the neck with a knife at the Khoza
bus stop near Manzini.
denies the allegation. He does not dispute that he did stab Sibandze
in the neck at the bus stop or that the other man died as a result of
the stabbing. However, he says that in doing so he was acting in self
Crown bears the onus of proving the charge of murder. It must do so
beyond reasonable doubt.
that means is that it must prove, to that standard, that at the
moment when he stabbed Sibandze, Gwebu either intended to kill him or
actually foresaw the real possibility that he would kill him and, in
that latter case, was nevertheless reckless, i.e. persisting despite
his appreciation of that risk and not caring whether or not he did in
fact thereby kill him. It must also be proved that he was acting
particular, but without limiting these general requirements, the
Crown must in this case prove that it was
the bounds of reasonable possibility that at the time Gwebu was
acting in self defence. The killing of a person in legitimate self
defence is not unlawful, and thus it is not a criminal offence. The
Crown therefore has the burden of disproving self defence beyond
addition to the issue of self defence that has been put forward on
behalf of Gwebu, the court must itself consider whether on the
evidence there is any other defence that is reasonably possible.
Crown's case depends largely on the testimony of two witnesses called
first of these was Douglas Shakoane. In his evidence in chief, he
said that he had been sitting with the deceased at the door of the
witness's house drinking marula. At about 4 oclock in the afternoon,
Gwebu had joined them. He helped himself to some of the marula. The
deceased reminded him that he had not bought it. Gwebu then told the
deceased, according to the witness, that he would not like to see him
again in the area. In short, he was saying that Gwebu took offence.
said that after drinking, Gwebu left and that at about 6 oclock he -
the witness - and the deceased went to the Khoza bus stop.
testified that while they were waiting there, Gwebu suddenly appeared
and stabbed the deceased on the neck.
the course of his examination in chief, Shakoane went on to say that
earlier on the same day he had found Gwebu in possession of one of
the witness's cassettes, which the latter had left in his house. He
also said that he had not fought with Gwebu over the cassette.
testified that after the deceased had been stabbed, he had fallen to
the ground. He also said that Gwebu had used an "Okapi"
knife and he went on to say that the knife was written "Okapi",
that he saw it, that it was red in colour and that it was a folding
knife. When the deceased fell, it was lodged in his neck. He
identified Exhibit 2 as being the knife. This is not in real issue.
in the course of his examination in chief, he said in answer to a
question by the Deputy Director of Public Prosecutions that he saw it
in the possession of the deceased but then, almost immediately, still
in answer to the prosecutor's questions, he said that he had meant to
say that it was in the possession of the accused.
in summary, was the extent of his account in his evidence in chief.
cross-examination, the witness said that he was 22 years old. When
asked where the stab wound was inflicted, he indicated the right side
of the neck. It is not in dispute that the wound was actually
sustained on the left side of the neck. Mr. Matsebula, for the
defence, said that he did not regard the description as material. I
will, however, myself take it as one indication that Shakoane's
evidence should be treated with care.
the question of the nature of the knife, he said that he did not know
this, but assumed that a knife of that kind was an Okapi. He also
said that he did not know if the word was written on it. In fact it
is not. He denied that he had discussed the case with other witnesses
and he denied that he had said in his evidence in chief, at first,
that it had been in the possession of the deceased.
was questioned about his cassette. From this it transpired that in
the morning of the day in question he and Gwebu had had an argument
about the fact that he had found Gwebu playing it. His account was
that Gwebu told him he had taken it from the witness's house.
also said in cross examination that he and the deceased had been
drinking for about three hours. Defence counsel questioned him at
some length about his drinking habits and his estimate of the amount
of beer - and more particularly of marula - that a person could drink
before getting drunk. I accept defence counsel's submission that
Shakoane was concerned to emphasise that marula is a weak drink, and
to overstate the quantity that a person would have to drink before
being affected by it.
answer to a specific question put by defence counsel, the witness
denied that the deceased had joined in the quarrel over the cassette,
but said that he - the deceased - had made the comment that Gwebu
should not have taken the cassette in his absence.
Matsebula put the defence case to Shakoane who denied it in its
answer to a question by the court, the witness said that he had been
told the name of the type of knife by a police officer who came to
second of the two witnesses to whom I have referred was a Miss Thandi
Dlamini. She was a woman, who appeared to me to be in middle age, who
testified that she knew all three of the young men involved, i.e. the
accused, the deceased and Shakoane.
said that on the evening of 1st February, she had been at the bus
stop. The deceased and Shakoane had come there together.
her evidence in chief, she said that while they were standing at the
stop, Gwebu came from behind an electricity pole and stabbed the
deceased in the neck. The latter fell down. Gwebu tried
unsuccessfully to remove the knife, and then ran away. She testified
that there had been no prior fight or struggle (i.e. at the scene)
and that the two men -the deceased and the accused - had not chased
each other at any stage.
cross-examination, the witness said that the three young men had
previously stayed at her parental home. She described accurately the
part of the neck in which the deceased was stabbed. She maintained
her account that Gwebu attacked the deceased suddenly and without
warning, and that the two had not been chasing each other.
Harry Myeni, from Manzini Police Station, gave evidence that on 12th
February 1992 in the morning, Gwebu had come of his own volition to
the police station to report about the incident. In
cross-examination, he agreed that Gwebu had looked very sorry and in
the sergeant's words "at some pain". He said, in answer to
defence counsel's further questions, that Gwebu was sorry because he
knew he was the one who had injured the deceased. He had earlier
said, in cross-examination, that he had advised Gwebu that he could
make a statement to a magistrate, and subsequently in the
cross-examination this was admitted by consent as exhibit 3.
I have already indicated, the evidence as to the nature of the stab
wound is not in real issue. Dr. Berson, the
pathologist, said that on conducting the post mortem, he found a
knife stuck in the neck. The fact that it had stuck in the bone (i.e.
the vertebrate) indicated a degree of force but he could not quantify
that beyond saying that it would have called for some firmness of
to the area around the stab wound, the pathologist described it as
being a "very potentially lethal site" with many nerve
gave evidence on his own behalf.
version of events was that earlier in the day he had been drinking
marula which he had bought, and was playing cassettes. At one point
he sent a friend to Shakoane's room to fetch a tape that he liked.
When Shakoane returned with the deceased, the former accused Gwebu of
to the accused, the deceased joined in the accusations. He struck
Gwebu on the chest with his fist. Gwebu left the homestead. As he did
so, he saw Shakoane give the deceased a knife.
deceased then chased Gwebu, who ran towards the bus stop. But before
he could get there, the deceased got within a few steps of him, so he
turned, held the other man's arm, and took the knife off him.
then ran on to the bus station. He realised that Shakoane was
following the deceased. The deceased grabbed Gwebu's shirt and a
described in the following way what then happened.
said that he tried to frighten the other man but did not
to stab him. He realised that he had stabbed him on the neck. He then
explained that he had meant to stab him on the left shoulder - he did
so by indicating from the witness box the upper portion of that
shoulder, very nearly at the top of the shoulder. Gwebu said that the
deceased tried to avoid this and that he thus stabbed him on the
neck. He lost control of the knife and the deceased fell down.
said that he did not take the knife out because it slipped out of his
hand as the deceased was falling and that it remained stuck in the
other man's neck. Then he ran away.
also testified that the deceased was a bigger man than he is. This is
not in dispute.
confirmed that he had eventually gone to the police and told them
that he was responsible for the episode. He also said that his family
had contributed E100 and a beast towards the funeral expenses.
take both of these things to be adduced to show that he was genuinely
sorry about what had occurred, but I do not take them to be
admissions indicating guilt.
said that if the others had not chased him, he would not have stabbed
the deceased. He did not intend to stab or kill the other man and he
had not intended to injure him grievously.
also said that he had been drunk at the time.
cross-examination it was suggested to him that he was a tsotsi. As I
said at the time, I disregard this suggestion. It was not suggested
that he had not been drunk. He said that Douglas Shakoane was lying.
He also said that Miss Dlamini was not telling the truth and he
suggestd that this
because she had lost income from their rent money, which she had used
to buy liquor.
accused at first agreed in cross-examination that what he had told
the magistrate had been the truth. He said this twice. He was then
asked about that part of his statement to the magistrate in which he
is recorded as having stated "When I got into the bus station at
kaKhoza I hid".
appears to me that, depending on his answer to these questions, that
statement would not necessarily be inconsistent with his evidence in
court. It was not my own impression that in his testimony he was
saying that at some point of time he hid. Nevertheless I do think it
is possible that in explaining to the magistrate that he was trying
to run from the other men, he might have described this as "hiding".
in answer to the Deputy Director's questions, he did not say that
this was what he had meant. He denied having hidden, and he then for
the first time said that he did not know whether he had told the
magistrate that he hid.
weighing the evidence, I consider that it is necessary to treat
Shakoane's testimony with some caution. He is young. He was a friend
of the deceased thus with a possible motive for lying. I have no
doubt that whoever started it, there was an earlier altercation in
which he was involved, which is also a possible motive for malice.
Miss Dlamini also gave evidence as to how the incident at the bus
stop occurred. What she was describing was a sudden attack by the
accused, not the sequence of events as told by him. She was a mature
witness. She described accurately the location of the wound and her
account as to what happened as the deceased fell coincides,
that of the accused.
do not consider that the suggestion that she resented losing rental
income and therefore gave false evidence is a real possibility. I
believe that it was a suggestion that was invented by the accused to
try to undermine her credibility. I do agree with Mr. Matsebula that
it would seem probable, or at least reasonably possible, that in the
way of human nature she had discussed the incident afterwards with
Shakoane but I nevertheless found her to be a credible witness as to
the actual incident i.e. the stabbing. I do not consider that there
is any weight in the submission of defence counsel that in the course
of her evidence she changed her account as to where she and the other
two men were when the accused came to the bus stop. She was
describing a sudden attack by the accused. It is also significant in
my judgment that she was describing an attack on a man who, according
to her evidence, had already come to and was waiting at a bus stop.
think that it is necessary to weigh with some care the significance
of the statement contained in exhibit 3 – the statement to the
magistrate - that Gwebu hid at the bus stop.
his closing submissions defence counsel, dealing with this aspect of
the case, argued that the fact that the statement had been admitted
by consent did not mean that the accused was thereby agreeing that it
accurately set out what he had said to the magistrate.
respect, I am not able to agree with that. The record will show that
when defence counsel sought to examine his own client about the fact
that he had volunteered a statement to the magistrate the court
itself suggested that if the fact of the making of the statement was
it might conveniently be produced by consent. It was nevertheless a
matter for Mr. Matsebula, who is an experienced counsel, (and of
course, as far as the question of consent was concerned, Mr.
Nsibandze). It was so admitted. What was being admitted was the fact
that Gwebu had made the statement to a magistrate. The only issue,
which was expressly reserved by Mr. Nsibandze, was whether or not
what Gwebu told the magistrate was true. Moreover in the first part
of his cross examination, the accused said that he had told the truth
to the magistrate. It was only when Mr. Nsibandze went on to refer to
the sentence in issue that he then took a different line. I am
satisfied that he did make the statement in question to the
the whole of the evidence, I am satisfied beyond reasonable doubt
that Miss Dlamini and, to the extent that his evidence confirms hers,
Douglas Shakoane have given the true version as to what occurred at
the bus stop. I do not believe Gwebu's account that he was pursued
from the homestead to the bus stop where, frightened of the deceased,
and thus acting in self defence, he stabbed him. I believe that the
truth of the matter is that, because of earlier ill-feeling between
the young men, Gwebu himself attacked the deceased at the bus stop
with a knife, stabbing him fatally. I reject the contention that at
that time he was under any apprehension at all of assault from the
deceased. The evidence, in my judgment, shows that he was the
aggressor, i.e Gwebu.
there is the issue of his intention at the time that he inflicted the
wound. The accused himself acknowledged that he intended to frighten
the deceased with the knife and at one point also that he meant to
stab him, though on the shoulder. The wound was inflicted with
sufficient force to cause it to lodge in the neck, in the vertebrate.
from Miss Dlamini that immediately afterwards the accused tried but
was unable to remove it, and that he then ran off. There is the
evidence of Dr. Berson that the area of the wound - i.e. that area of
the neck - is a dangerous one in which to inflict a knife wound. That
medical view of course coincides with common sense.
do not believe the accused's account that he had not meant to do more
than to aim at the shoulder and that the deceased, in effect, ducked
or dodged. I do not believe that he was driven to the point where he
did not know what he was doing or that he was intoxicated to that
point either. His conduct, in coming to the bus stop and at the time
of the stabbing and immediately afterwards, his statement to the
magistrate and his account here show otherwise. There was nothing
accidental about the attack. I am satisfied too that it can not
properly be said that he was acting under provocation so as to affect
his liability on this charge. I am satisfied that the correct
inference is that, angry at the deceased, and meaning to cause him
the kind of injury that he himself knew might well kill him, he aimed
a fairly hard stabbing blow at the other man's neck and thereby did
kill him. In doing so he was acting unlawfully.
therefore find the accused guilty as charged of murder, and convict