Ndzinisa v King (NULL) [1994] SZHC 41 (20 June 1994);

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IN THE HIGH COURT OF SWAZILAND


Crim. Case No. 129/92


In the matter between:


MFANA M. NUZINISA Applicant


And


THE KING Respondent


CORAM : Hull, CJ.


FOR CROWN Mr. Wachira


FOR ACCUSED Mr. Mamba


Judgment (20/6/94)


The accused is charged with having murdered Paul Dlamini at Zombodze in Shiselweni on 29th May 1992.


It is not in dispute that a fight took place between the two young men at the homestead of Mrs. Alice Nkonyane in the late afternoon of that day. During this incident the deceased was stabbed with a knife. Other persons at the scene observed him bleeding heavily from the middle of his chest, and he collapsed and died very soon afterwards. Constable 2146 Dlamini, who saw his body later that evening after it had been removed to a clinic, observed two bleeding wounds in the chest. Dr Berson, the police pathologist, who carried out the post­mortem examination, observed three wounds. One, in the middle of the chest, caused the left lung to collapse. This had caused death. There was another wound on the left, front side of the body, just below the collar bone, and another on the outside of the left arm, a short distance below the top of the shoulder.


Only one of the witnesses called for the Crown claimed to have actually seen the deceased stabbed. He recalled only one stabbing. Nevertheless it is not in real dispute at all that the wounds were


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caused during the fight, and that they were inflicted by the accused. Dr. Berson said that the wounds were consistent with having been inflicted by a bladed instrument. There has been no evidence or suggestion at all that the deceased sustained any of the wounds otherwise than during the incident. The accused has not sought to deny that he in fact caused the death of the deceased.


The crux of the matter is as to how the fight started: in short, who was the aggressor?


It is the case for the Crown that the accused made a murderous, unprovoked attack on the deceased while each of them was at the homestead, at which several people were drinking beer.


The accused gave evidence on his own behalf. His defence, as I understand it in all its aspects, is first that he was not acting unlawfully, because he was defending himself against an unprovoked attack by the deceased, who was assaulting him with a knob-stick; secondly that in any event he did not intend to stab him; and thirdly that, in stabbing him, he did not in fact foresee that he might kill him.


The Crown has the onus of proving beyond reasonable doubt the charge against the accused. In particular it must prove beyond reasonable doubt that he was acting unlawfully - i.e. it must negative any reasonable possibility that he was acting in legitimate self defence -and in any event it must prove beyond reasonable doubt that he had the intention necessary in law to justify a conviction for murder.


The Crown's case depends on the testimony of two relatives of the deceased - namely his brother Bheki and one Khanyisile Nkonyane - as to what they said of the fight and as to the inferences to be drawn from their evidence, and also as to what happened afterwards and the inferences to be drawn from that. It also depends on the evidence of Alice Nkonyane, at whose homestead the incident occurred, as to what she saw afterwards and the inferences to be drawn from that. The Crown also relies on inferences that, it submits, are to be drawn from the later conduct of the accused himself.


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Bheki Dlamini's evidence was that he observed the incident. He said that he and his brother had been having a drink at the homestead. He, his brother and the accused had all been inside one of two buildings on the homestead. They were all drunk, but he himself was not so drunk that he could not walk. As they were about to leave, the accused came up to his brother and stabbed him once in the middle of the chest. The deceased, who had been carrying a knob-stick, then fought back. Bheki intervened to tell him to stop. His brother then collapsed and Bheki went to report the incident.


Bheki indicated that he had been a distance of about 6 metres from his brother and the accused when he saw the latter attack his brother. He was unaware that there had been any prior quarrel and denied that the deceased had started the fight.


Khanyisile Nkonyane said that the accused had been sitting outside the door to the building.


The deceased had been about to leave the homestead. He had gone into the building and the accused had followed him. He then stabbed the deceased in the chest with a red okapi knife that he, the accused, had taken from his right-hand pocket. There had been no prior quarrel between the two men.


The deceased then came out of the building carrying his knob-stick, which had been inside. He looked at his chest and then tried to defend himself, hitting the accused on the head.


Alice Nkonyane, who was evidently in charge of the homestead, came out of the other building and told the deceased that he was not supposed to fight. He told her that he was the one who had been stabbed (though that remark of course is not itself evidence that he was not the aggressor). Then he collapsed.


Khanyisile Nkonyane said that the accused then came over to the deceased and tapped him more than once with the flat side of the knife blade, on the back of the head, saying "I will kill you, my boy". Alice then told the accused to leave him alone because he was dead.


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In cross-examination, Khanyisile said that she had been sitting inside the building into which the men had gone, by the door. She said that she had seen the accused take out the knife. It became apparent, in cross-examination, that she did not actually see the accused inflict any stab wounds but that she was assuming that he had inflicted one, because of what she saw afterwards.


Alice Nkonyane said that when she came out of the other building, she found that the deceased had already been stabbed.


It is clear that she did not see the stabbing occur. She said that Bheki had been with his brother and that when he left, the deceased fell down. At this point, he was kneeling. She said that the accused then kicked him and tapped him with his knife, asking "Are you still being provocative even now, my boy". The deceased then fell down and died.


Alice Nkonyane said that the deceased had a chest wound. She had seen no previous quarrel between the deceased and the accused.


Alice was not challenged in cross-examination as to what she said that she observed when she came outside.


Lushaba Samson,who is a chief's runner, said that the incident had been reported to him. He had gone to the scene and then called the police. Constable Dlamini, who responded to the report, said that he had found the deceased at a nearby clinic. He had instructed Lushaba to gather all the witnesses and to tell them to report to the police. The accused had reported himself to the police station on 4th June 1992 when he was arrested and charged.


The accused, in evidence, said the deceased had three days earlier shown hostility to him. There had been an encounter in which he had alleged that the accused had been spreading rumours that he, the deceased, had been going around with one LaMkhabela, a daughter in law of the chief's runner Lushaba. At the time the deceased had been with six other men, including Bheki, and they had threatened the accused.


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He, the accused, had then reported this matter to the chief's runner, Lushaba.


On the day of the fatal stabbing, Bheki had come up to him three times at the homestead, telling him that the deceased wished to speak with him in some nearby bushes. Then the deceased himself came up to the accused. He began to pull him and then to assault him with a knob-stick.


The accused said that this occurred outside the buildings, the deceased having gone into the building in which on the Crown's case, the men had been at the time of the incident, and having come out with the knob-stick before Bheki approached the accused.


The accused testified that after the deceased attacked him, the two men grappled for the knob-stick. He himself got possession of it and the deceased then produced a knife. He said that the knife fell to the ground. He took it and used it defensively against the deceased. He did not mean to stab the deceased but simply to scare him. He had not intended to kill him. He denied saying afterwards to the deceased the words that Khanyisile claimed he had said, and he said that he did not know that he had used the words that Alice said he had uttered or that he had tapped the deceased with the knife.


He also said that in attacking him with the knob-stick the deceased had knocked him to the ground and he showed me a scar on the top of his head which, he said, the deceased had inflicted on him. The fact that he was injured at some point at least by the knob-stick is supported by Khanyisile, though she nevertheless said that it was the accused who initiated the attack.


As far as his subsequent movements are concerned, the accused explained that he was in some shock afterwards. He was not aware as to what became of the knife. He had nevertheless spent that night at his own homestead, and on the following day he had gone to Manzini where he had matters to attend to. At that stage he had not been aware that the deceased had died. When he learned of this, he had reported himself to the police. He denied that he had been in hiding.


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In the course of cross-examination of Crown witnesses, and particularly of Alice Nkonyane and Lushaba Samuson, defence counsel put it to them in effect that LaMkhabela (who had admittedly been present at the homestead during the fatal incident) had originally made a statement to the police that supported the version of events recounted by the accused, but that later, as a result of pressure, she had given a different story and had then been sent - in effect - by her family to Mhlume (i.e. on the other side of Swaziland). A postponement was granted to the defence to enable her to be summoned as a witness. In the event, defence counsel did not pursue this.


Bheki Dlamini and Khanyisile Nkonyane are relatives of the deceased. Bheki is his brother. It is therefore necessary, obviously, to consider whether they may have ulterior motives for their versions of events. In their demeanour, I found them both to be credible persons, subject to this observation - which is common enough in criminal trials - that it was necessary to bear in mind, on the whole of the evidence, what the court believes each of them actually saw and what they may now assume, in retrospect, is what they saw. Thus, it became apparent that while Khanyisile was saying that she did see the accused draw a knife and she was also saying (clearly because of the events immediately after the stabbing) that the deceased was stabbed, she was not saying that she herself specifically witnessed the act of stabbing.


I could detect no apparent bias in their demeanour . What each of them was saying, clearly, was that the accused made an unprovoked assault on the deceased. Each was also clearly denying any knowledge of prior bad blood, between the two men. Their credibility, as that goes, has to be decided not on their demeanour as such (from which, as I say, I formed no adverse impression) but on the whole of the surrounding circumstances.


Khanyisile did not say that she actually saw a stab wound inflicted. Bheki said that he only saw one wound inflicted. In fact, on the Crown case, three wounds were inflicted - and, clearly, three separate wounds. It necessarily follows that if they are telling the truth as to how the incident occurred, neither of them saw (or at any event now recalls) the whole of the incident.


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Mr. Mamba, for the defence, submitted that it was highly unlikely that the accused would have stabbed the deceased without any prior quarrel (or by implication, I think, any prior provocation).


He also identified what he contended were significant contradictions in the evidence of the Crown witnesses, namely :-


  1. That in her evidence in chief Khanyisile said that Bheki had been behind the building in which the men had allegedly been, whereas in cross-examination she said that he had been inside it;

  2. Bheki said that the deceased already had his knob-stick when he was attacked, whereas Khanyisile said that he picked it up after he was assaulted;

  3. Khanyisile and Alice gave conflicting accounts as to what the accused said when he allegedly tapped the deceased on the head afterwards:

  4. Although Alice said that the accused kicked the deceased afterwards, neither Bheki nor Khanyisile said that this happened.

  5. Whereas in his own evidence, Bheki gave an impression that he and his brother had only just arrived, the testimony of Khanyisile and Alice was to the effect that they had been at the homestead since 1 p.m.


I will also take Mr. Mamba to be contending that because the deceased clearly suffered three stab wounds during the incident but Bheki only described one, Bheki was not telling the truth about the incident.


Mr. Mamba submitted (specifically in relation to the discrepancy as to what the accused said, though I also take this to be a more general submission as well) that; the discrepancies in the Crown case show that the evidence of the Crown witnesses present at the incident has been concocted and rehearsed, Bheki in particular having a motive for lying.


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What Bheki actually said in cross-examination was that he was not sure what time he had gone to the homestead, and that he founds his brother there and also noticed the accused there in the afternoon. I do not consider that it is correct, on a proper consideration of the whole of his evidence, that he gave an impression that he only arrived soon before the incident.


I do not consider either that there is necessarily any inherent contradiction between Bheki and Khanyisile as to when the deceased picked up his knob-stick, or as to the fact that Bheki at Khanyisile did not say that the accused kicked the deceased. Each of these possible discrepancies would be explained if the witnesses were describing what they each saw from their own perception of the incident, at times that differed slightly.


There is a discrepancy between the evidence of Khanyisile and Alice as to what the accused said to the deceased afterwards. It does not necessarily follow, however, that this is material. What each was in effect asserting was that the accused made a remark of an aggressive nature to the deceased, after the stabbing. They were recalling the aftermath of a fatal incident that had just occurred and the recollections of each witness are not that far apart in substance. Both do say that the accused tapped the deceased on the head with the knife. Moreover, Alice's own version was not challenged by Mr. Mamba at all in cross-examination.

There was a discrepancy in Khanyisile's own testimony when, in her evidence in chief, she said that Bheki had been behind the building, whereas in cross-examination she said that he had been inside it.


Nevertheless the two principal Crown witnesses were saying that the accused made an unprovoked attack on the deceased. Defence counsel did not suggest strongly to either of them that they were lying because of partisanship. Alice Nkonyane, who appeared to me to be a credible witness, supports their testimony to the extent that she said that she was unaware of previous trouble. Her evidence that the accused acted in an aggressive manner afterwards is also capable of supporting their accounts to an extent. It was never put to Alice


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that she had a motive for lying. The accused did leave the scene and, by his own account, went to Manzini, and did not report to the police for several days.


I cannot say that, in demeanour, he was patently unconvincing as a witness. He was not the most impressive of witnesses but one reason for that may have been that he was nervous, not because of guilt but simply because he was on trial.


Although in the end, defence counsel did not call LaMkhabela, explaining that she had not been an actual eye witness, there is some evidence (from Constable Dlamini) that there was, afterwards, some controversy about her statement to the police. It was also unsatisfactory, in my view, that the police left it to the chief's runner to gather in the possible witnesses and to tell them to report to the police station. The police themselves ought to have ascertained and interviewed the witnesses as soon as possible, of course.


However Constable Dlamini, who had after 1st June called LaMkhabela again to check her statement, did say in evidence that she reiterated it. That is not evidence that what she said was true, but it does not support the defence contention that she changed her story under pressure. Constable Dlamini appeared to me to be a truthful witness and in answer to a question I put to him, he said that he was unrelated to the people involved. The defence did not pursue the matter. This aspect of which involves essentially, a collateral question, does not in my view detract from the Crown's case as such.


The account given by the accused that he had some days earlier complained to the chief's runner is contradicted by the latter, who appeared to me to be a credible witness, and who said that, to the contrary, he himself had called the accused to see him some time previously about a complaint that he had about the conduct of the accused.


I do not find it easy to understand why, if he had not been the aggressor, the accused should have left the scene on 29th May. There

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was no suggestion that the others present threatened him after the stabbing. He had by his own account previously seen fit to report to the chief's runner the threats allegedly made to him by the deceased. It is difficult to understand too why he left after the deceased had been so gravely injured. That was apparent to the others present. The deceased Was bleeding heavily, and of course collapsed.


The accused's own words to the deceased (as recounted by Alice at least) and his actions, while not in themselves conclusive, tend to show that he was acting aggressively.


In the end, the question is whether the Crown had proved its case beyond reasonable doubt and, if it is reasonably possible that the accused is telling the truth, then the Crown has not done so, and he is entitled to an acquittal.


These questions are not to be addressed, however, theoretically in a vacuum. They have to be weighed and decided on a consideration of all of the evidence. As I have already indicated, this is not the kind of case in which I can say, from their demeanour, that the witnesses or witness for one side or the other are plainly lying. On the whole of the evidence however, I believe the Crown witnesses' testimony to the effect that the accused was the aggressor. I disbelieve his account and I am satisfied that he was acting unlawfully, and thus not in self defence.


I am also satisfied that the inference to be drawn is that he intended to stab the deceased, and that he did so appreciating that he might kill him, but not caring whether or not he did in fact do so. He inflicted three stab wounds. One was to the middle of the chest, collapsing the left lung. Another was also to the chest, though higher up, i.e. just beneath the left collar bone. His actions in kicking the deceased and the words uttered also say something in favour of the Crown's case about his state of mind generally at the time. Afterwards, he made off. I do not believe that he was unaware that he had caused serious injuries. On the contrary, I believe that he knew that he had. On the particular facts of the case, I think that in tapping and speaking to the deceased afterwards, he was disclosing that he knew that he had caused him serious harm. Thereafter I believe that he fled, knowing that to be so.


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I therefore find the accused guilty of murder, as charged, and convict him accordingly.


DAVID HULL


CHIEF JUSTICE