THE HIGH COURT OF SWAZILAND
T. NO. 122/94
the matter between:
: A.F.M. THWALA
THE CROWN : MR. WACHIRA, MR. SIMELANE, KILUKUMI
DEFENCE : MR. A. LUKHELE, MR. FINE
accused are charged with the murder of Phineas Msweli on the 9th
June, 1994 at accused's farm in the Shiselweni region.
is no eye witness except accused. The witness who work for the
accused who was supposed to give evidence for the Crown, did not come
to give evidence. Sub-inspector Thomas Simelane gave evidence that
accused no.l and no. 2 came to Lavumisa police station on the 9th
June, 1994. They met the Station Commander. The Station Commander
then told him that accused no.l was reporting the death of his
employee at his farm. He said the deceased was found in his house.
Accused no. 2 assaulted him with a whip. Accused then handed the whip
to the police which is exhibit 1. He made a statement to the police
to that effect the same day.
Simelane then kept accused no. 2 in custody for further
investigation. He then went to accused no.1's kraal accompanied by
him. No.l showed him the decead's body in a hut in the compound. He
inspected the body. He found bruises on the left arm and eyes. He
turned the body and found bruises from the waist downwards. The
deceased was heavily bleeding as he put it. The body was wet as if
water was poured on it. Accused no. 1 also showed him two puppies and
a small bottle of poison in the hut of the deceased. He took the
deceased's body to hospital. He then continued with investigations
while accused no. 2 was in police custody. He took statements from
witnesses. As a result of his investigation, he arrested accused no.l
on the 14 June at his home. He cautioned accused no.l according to
Judges Rules. No.l gave him a cable, exhibit 2, and a horse pipe,
exhibit 3. He then took him to Lavumisa police station.
must be observed here that no.l did not mention any property stolen
by the deceased from his farm. According to him the deceased was
assaulted by no. 2 for having been found in no. 1's house. I did not
refer to the statement which no.l wrote at the police station because
I do no approve of the procedure.
witness was then cross-examined. He said he thought the water was
poured on the deceased when he was dying as it is usual to pour water
on a dying person to resurrect him. As a result of what he was told
by Mbhamali, PW2, he then went to the mortuary and took stomach
contents of the deceased for analyses.
Mbhamali said that on the 9th June, 1994 no.l and 2 and Mduduzi
Simelane and the deceased came to his home. No.l asked him to speak
to the deceased who was found in his house. He said he had heard that
the deceased sold his corrugated iron and a door to a person who was
driving a green van. The deceased had told no.l that the van did not
belong to Mbhamali. He observed that the deceased did not look well.
He could not sit properly, and his left arm was swolen. He did not
breathe properly. No. 1 informed him that he had beaten the deceased.
His arm was injured when he tried to ward off the blows. He said no.l
showed him a cable. It was a white cable. He identified the cable in
court. A white man PW3 came and spoke to them. He asked no.l if he
had beaten the deceased because if he beat him, he should admit
everything. No.l said he had already beaten him. He saw a tin of
poison on the bench. He told no.2 to watch the deceased not to drink
the poison because he looked angry and upset.
was cross-examined by the defence counsel. He said that the deceased
sat at the back of the van with no. 2 and Mduduzi Simelane. He could
not see how the injuries were on his buttocks. The deceased admitted
that he was in no.1's house. He told no.l to take the deceased to the
next witness was Jacobus Delpond. His evidence did not ad anything
except that it confirmed that employees are froked by their masters
in that area.
next witness is Dr. Ravula, a police pathologist. I have summarised
his evidence as it is in the post mortem
I do not propose to read it here. He said he examined the other parts
of the body and found nothing abnormal, and said in his experience he
had encountered only-six cases where people died after throbbing on
the buttocks. In the present case, the back of the trunk is included.
He was not throbbed on the buttocks only. The doctor did not conduct
other tests because he was satisfied with the cause of death. He also
stated that they do not have equipment to conduct certain tests. That
concludes the evidence for the Crown.
no. 2 was acquitted at the close of the Crown case. The application
for the discharge of accused no. 1 was refused. The accused elected
to give evidence on oath. He stated that the deceased was found in
his house. His wife reported that the deceased had been found in the
house. He asked the deceased if he did enter the house. He admitted.
He said he wanted money. He failed to produce the key which he used
to enter the house. He also admitted that he stole a number of items
from him. He told him that he sold his corrugated irons to a man who
drove a blue or green van. Mduduzi told him that the deceased gave
him E5 as a bribe for him not to report him. This was the first time
for Mduduzi to mention the E5 to him.
deceased also admitted that he poisoned the puppies because they ate
his porridge. The deceased asked him not to take him to the police,
but to beat him. He promised to show him all the items he had stolen.
He then asked the deceased to lie down. The deceased asked him not to
beat him on the body but on the buttocks. He then hit him with
pipe exhibit 3, three times, and a number of times with the cable,
exhibit 2. He did not intend to kill him. He did not cause any
serious injuries on him. He denied that he inflicted the injuries
which were listed by the doctor in the post-mortem. He admitted
taking the deceased to Mbhamali and to various places which were not
confirmed by independent witnesses. He denied everything which was
said by Simelane the police officer. His evidence showed that he had
no respect for the police. He went on to give a long story which was
totally lies. He did not listen to the instructions given by his
counsel. He went on to give a long story. He also attempted to
deceive the court that the deceased drank poison. In
cross-examination he fed poorly. Even when he was cross-examined by
the court he made long winded statements. He said the police told
lies because they do not like him. The cross-examination was a lot of
lies. No reliance could be made nor proof could be found in his
cross-examination. The defence then closed its case.
crown asked the court to find the accused guilty of murder because he
was reckless in administering blows. I do not agree that he intended
to kill. The area in which the blows were aimed although some covered
the trunk were not aimed at the vital parts of the body. The act he
did was unlawful. The deceased died as a result of his unlawful act.
The defence asked me to find the accused guilty of common assault on
the ground that the crown has not proved the cause of death and that
the intention to do grievious bodily harm has not been proved. I
accept the docotr's evidence that the cause of death was as stated in
his report. There are cases in which medical evidence is not
essential in order to establish the cause of death in case of an
unlawful killing. In the present case we have the opinion of the
doctor. IN REX VS NGONGONYANE NKAMBULE 1976 SW LAW REPORTS page 11,
the Judge held that there are cases where a person has been convicted
for the killing in circumstances where the medical evidence has been
inconclusive. He referred to the case of REX VS MLAMBO 1957 SOUTH
AFICAN LAW REPORTS AT PAGE 727 APPALLENT DIVISION. In the present
case the accused assaulted the deceased. The Medical confirms that.
The accused confirms it also. It is only submitted that the medical
evidence is not conclusive because the doctor did not do certain
tests. I do not think that it was necessary because the doctor did
not find anything abonormal with other organs. Although I accept the
evidence of the cause of death.
want to deal with the submission of the defence that actual intention
is necessary in order to convict for assault with intent to do
grievous bodily harm. Actual intention that you must prove the
intention to do grievous bodily harm separately. This submission is
wrong. He referred the Court to the case of REX VS STRYDOM 1956 (3)
SA LAW REPORTS AT PAGE 681 where Justice Dowling held that actual
intention was necessary as opposed to legal intention. In REX VS
BUSSON 1961 (3) SA LAW REPORTS 279 AT PAGE 282 Justice Dowling said
court must be satisfied that the necessary intent has been proved.
The intent which I have found to be proved is what may be called
constructive intent such as was dealt with in REX VS HOUST. If in a
charge of assault with intent to do grievous bodily harm, the intent
must be proved
actual fact, then it would not be permissible under the provisions of
section 205 sub-section (1) of Act 56 of 1955 to bring a verdict of
"guilty of assault with intent to do grievous bodily harm".
In the present case, for as it is stated in Naidoo's case, conviction
of a crime different from that alleged is only lawful by reason of
section 205 if the evidence proves the commission of such a different
crime in which the crime charge is included. In REX VS STRYDOM 1956
(3) SA LAW REPORTS AT 681, I held Sitting as a single Judge on circut
that the intent in the case of assault with intent to do grievous
bodily harm must be proved as an actual fact and that the reasoning
in REX VS HOUST could not be applied mutatis mutandis to the offence
of assault with intent to do grievous bodily harm.
further consideration, I have come to the conclusion that in holding
this, I add, and that the judgment of the High Court of Southern
Rhodesia in REX VS EDWARDS 1957 II at page 113 is correct. See also
STATE VS SKHUNYANA & OTHERS 1961 III SA at page 5 52 and BACHELOV
& HUNT SA CRIMINAL LAW & PROCEDURE VOL. 1 at page 117.
the cause of death was not true, he could be found guilty of assault
with intent to do grievous bodily harm , not common assault as
submitted by defence counsel. The defence also raised consent as a
defence. The deceased did not consent to the flobbing. There is
evidence that the deceased preferred to be shot rather than to
flobbed the way accused flobbed him. In the case of STATE VS COLET
1978 (3) SA LAW REPORT at 206, the headnote states the principle as
policy does not recognise an agreement by-servant that his Master may
inflict corporal punishment upon him as a defence to a charge of
assaulting a servant. The process of the Law is there , not only to
punish the guilty, but for the protection of an accused person, and
he is not permitted to consent to the withdrawal of that protection
even though he personally may prefer to be dealt with summarily by
his master rather than face a possible prison sentence at the hands
of the court. To hold otherwise could lead to the undermining of the
whole fabric of criminal justice. Even where the relationship of
master and servant does not exist if an assault is such as to be
likely or intended to do bodily harm, then the consent of the
complainant is no defence".
this instance, the accused could not raise this as a defence. We only
heard from him, we do not know whether the deceased did consent.
come to the conclusion that the deceased died as a result of an
unlawful assault by the accused. I find the accused guilty of