IN THE HIGH COURT OF SWAZILAND
Crim. Case No. 10/93
In the matter between:
NIKIWE ELSIE SIHLONGONYANE
CORAM : Hull, CJ.
FOR CROWN Mr. Sibandze
FOR DEFENDANT Mr. Ntiwane
Judgment (27/6/94) (ex tempore)
The accused Nikiwe Elsie Sihlongonyane is charged with having murdered Bheki Daniel Ntshangase on 4th January 1993 near Mhlaleni in the Manzini district. She has pleaded not guilty.
It is not in dispute that in course of the incident to which the charge relates, the accused stabbed the deceased three times with an Okapi knife near the homestead of a Mr. Twala, thereby killing him.
Some of the circumstances leading up to the stabbing are also undisputed. The accused, her sister, the deceased and a Mrs. Tsabedze were all employed by a security company. On the day in question, the sister of the accused, Mrs. Tsabedze and the deceased were brought home from work from Matsapa in the company vehicle. They were dropped off at the Mhlaleni bus stop, at the turn off to Nhlangano. The sister got out. As Mrs. Tsabedze followed, the door banged against her. Although the accused and Mrs. Tsabedze had once been on good terms, their relationship had soured and there had also been past
differences between her sister and Mrs. Tsabedze. The latter thought that the sister had slammed the door against her on purpose. They exchanged words - the sister of the accused and Mrs. Tsabedze - and then they began to go separate ways. The accused, who was off duty on that day but waiting at the bus stop, went over to Mrs. Tsabedze, having first spoken to her own sister.
An altercation occurred between them. Mrs. Tsabedze's husband Mr. Ndwandwe, who was also waiting at the bus stop for his wife, and the deceased himself then intervened, separating the women. Then the accused and her sister walked to the home of the former's boyfriend -the boyfriend of the accused - which was at the homestead of a Mr. Twala, a little distance away from the Mhlaleni bus stop.
The deceased and Mrs. Tsabedze and her husband took the same route, coming along behind the two young women. I will address shortly the question of just how closely they were following behind the two sisters. At the homestead, the accused went into her boyfriend's hut. She came out again and went to the edge of the homestead where the deceased, Mrs. Tsabedze and her husband were standing. I would just like to rephrase that. To that extent that I am now summarising the undisputed evidence, I would like to rephrase it in the following terms: She then went to the edge of the homestead where, on the evidence of all the witnesses, the deceased was standing, and where at that time Mrs. Tsabedze and her husband were also present. Words were then exchanged between the accused and the deceased. Mr. Twala, who was sitting with friends at the homestead, came over and intervened. The fatal stabbing occurred very shortly after that.
It is the Crown's case that at the bus stop Mrs. Tsabedze had complained that the sister of the accused had shut the door on her, that the sister apologised sarcastically (or ironically) and that the sister then went off. The accused, who had seen the exchange, then took it upon herself however to come over and intervene. She had attacked Mrs. Tsabedze. when the latter's husband and the deceased tried to stop her from doing so, the accused then attacked the deceased, hitting him and threatening him. Thereafter as the deceased, Mrs. Tsabedze and her husband were making their way soon afterwards past Mr. Twala's homestead the accused, having already
reached it, came out again and abused the deceased, accusing him of interfering in other people's business. It was at that point that Mr. Twala intervened, saying that he did not wish to have a disturbance on his homestead, and the deceased, Mrs. Tsabadze andher husband then began to move on. As they did so, however, the accused attacked the deceased again, this time with a knife, killing him.
The defence's case is that when the accused came to ask Mrs. Tsabedze at the bus stop why she was abusing her sister, the other woman - Mrs. Tsabedze - attacked her, striking her on the forehead with a baton - a security baton. The accused defended herself and Mrs. Tsabedze's husband and the deceased, seeing that Mrs. Tsabedze was getting the worst of the fight, then came to her aid - the older woman's aid.
The deceased had also been in possession of a security baton which he had used, inflicting injuries on the head - the back of the head of the accused - in two places, to the right of the back of her head. These injuries bled, and as a result bloodstains accumulated on the blue T-shirt which has been produced in this trial as exhibit Dl, which she says she was then wearing. When she and her sister had gone on to her boyfriend's home, the deceased, Mrs. Tsabedze and her husband had followed them, going along together, close behind them, in a hostile mood. (Well, on my summary of the facts, her name was given as Sakili Tsabedze, but it will be understood that I am referring to the wife of Mr. Ndwandwe.)
The accused had gone into her boyfriend's hut, and had then gone out to meet the other three at the edge of the homestead, because she believed they were following her aggressively, and that they might come into the homestead and damage the hut. After Mr. Twala had intervened, the deceased at Mrs. Tsabedze's instigation had tried to pull the accused away from the homestead. Other people who had seen the earlier incident at the bus stop, had followed them to the homestead and were in effect, I think, milling around, exacerbating the situation and anticipating trouble.
In stabbing the deceased after he had tried to pull her away from the homestead, the accused had accordingly been acting in self-defence.
So again, in this case, as in the previous case involving a murder charge in this Court the central issue is "Who was the aggressor?" The Crown has the onus of proving the charge - all the essential ingredients of the allegation of murder - beyond reasonable doubt, and in particular of proving that the accused was acting unlawfully - i.e. of negativing any reasonable possibility that she was acting in self defence.
In the course of his final submissions, the Deputy Director of Public Prosecutions said that Mrs. Tsabedze and her husband should be treated as partisan witnesses. By that I understood him to be saying that, while he was not conceding that their accounts were untrue, they were nevertheless clearly not detached, independent witnesses. I agree with that approach. At the trial, Mrs. Tsabedze acknowledged that there had been previous animosity between the two sisters and herself. Her own evidence was that she had become angry when the door slammed, and while I do not wish to overstate this, it was also to the effect that she did feel bitter about what happened.
In one respect, I do not believe that she was being candid in her testimony. She undoubtedly said, at one point in her evidence, that as the two sisters walked away towards Mr. Twala's homestead, the deceased followed at a distance of about one metre. Then, during cross examination, she sought to change this testimony, saying that she was referring to the sequence of events after he had reached the homestead. But it was never the Crown's case and nor did the the Crown evidence otherwise support the proposition that the deceased had followed the accused away from the homestead after the incident there. In observing the witness giving evidence, it appeared to me to be quite clear that she changed her evidence in this respect, as she realised the possible implication of admitting that the deceased was walking right behind the sisters on the way to the homestead, namely of course that he had wished to continue the confrontation.
Mrs. Tsabedze also had said that she and her husband had followed together some distance behind the deceased man, as he went towards the
homestead. They had found him standing there when they reached it, and they had then began to walk past him before the fatal incident occurred.
Mr. Ndwandwe supported his wife's evidence. He denied that he had discussed the case with his wife during the period of more than one year that had elapsed before it eventually came on for trial. If that was so, they would have been an unusual couple in my view. It was apparent to me during his evidence, quite apart from the inherent improbability that they had not discussed it, that they had . talked about her evidence about the distances between the principals in the incident at different times. Thus he spoke at one point of a distance of one metre - I am quoting - "one metre" or "a metre" - whereas it was clear from other parts of his evidence that he himself was accustomed to speak of distances in terms of paces, and indeed I think that he himself was unaccustomed to referring to metres. He also used a measure that his wife had referred to in her own testimony on the previous day, namely the distance from the witness box to the main road.
The husband and wife had both said in their evidence that, at the bus stop, the deceased had not assaulted the accused but had simply intervened to stop her attacking Mrs. Tsabedze, whereupon she the accused had charged the deceased with interfering in the affairs of other people, and had struck him with his sister's security baton. The accused and her sister told a different story, saying that the deceased had attached the accused with his baton, causing her to bleed from the back of her head on to her T-shirt as I have already indicated.
whatever the truth of that, which is a matter to which I shall return shortly, I do believe that after the events at the bus stop the deceased, Mrs. Tsabedze and her husband together followed the two sisters to the homestead, intending to continue the dispute there, though not necessarily to use violence. Mr. Twala, the homesteader, who appeared to me to be a straightforward, indeed rather robust, independent and credible observer, said that the five persons arrived by the homestead in a group. It had been Mrs. Tsabedze's evidence
that, after the incident at the bus stop, the accused had indicated that she intended to wait for the others as they came past that homestead. But the evidence was that this was only one of the routes that Mrs. Tsabedze was accustomed to use when going to her own home from the bus stop. That of course raises the question, unanswered upon the evidence, as to how the girl would have known that on this day they were going to come pass Mr. Twala's house. Then, as I have already mentioned, there was Mrs.Tsabedze's evident concern to deny that the deceased had been following the accused and her sister very closely.
Finally there is the evidence of virtually all of the witnesses who saw these events that the deceased himself stopped and stood by the Twala homestead when he reached it - in other words, that he did not simply proceed by it on his way to some other destination.
So, as I have said, I think the truth of this matter was that the deceased, Mrs. Tsabedze and her husband did in fact follow the sisters to their homestead, intending to continue the altercation. By altercation, I want to make it absolutely clear that I simply mean to continue an argument between the protagonists in this affair.
The crux of the matter is, however, as to the cause of the events that then unfolded by Mr. Twala's homestead. Specifically, it is as to whether it is reasonably possible that, in stabbing the deceased by the homestead, the accused was then acting in self-defence, which is the nature of her defence - or whether, even that is not a reasonable possibility, it is nevertheless reasonably possible that she lacked the necessary mens rea for criminal liability. In the context of this case, I wish to make it clear at this point that what I am speaking about, in that regard, is whether or not there is a reasonable possibility that she is not guilty of murder, but rather guilty of culpable homicide, because she was acting under provocation.
Mrs. Tsabedze and her husband both insisted the deceased did not assault the accused by the homestead. 1 do not believe that they simply walked past the deceased. I think that they were there with him. It does not follow, however, because the witness is untruthful
in one part of her evidence that the whole of her evidence is false.
There was at the homestead an independent witness, namely Mr. Twala. He said that the accused had gone to her boyfriend's hut on arrival, and that she had then gone back to the group with her hand in her pocket. He had then intervened, striking the accused twice with a stick, and telling the group to leave. The accused had then gone on towards the deceased, stabbing him twice from the back, and then once in the chest as he turned. Mr. Twala, an independent witness, testified firmly that the deceased had not assaulted the accused at his homestead.
The accused and her sister both said in their evidence that, unsighted by Mrs. Tsabedze, the deceased had attacked the accused at the homestead and had then attempted to pull her away from it to where the crowd was gathering. Mr. Ntiwane argued that, on the evidence, there was a time when Mr. Twala may not have seen what was happening, or indeed did not see what was happening. He was submitting that Mr. Twala may not have seen or did not see the deceased assault or pull at the accused. He also relied on Dr. Berson's evidence that it was possible that the deceased had been stabbed by a person whom he was confronting - the wounds to the back and the arm having been inflicted over the shoulder of the deceased, as it were, by a person he was facing throughout.
I do not believe the evidence of the accused or her sister in this regard. No one other than those two defence witnesses, including Mr. Twala and including the prison officer Mr. Meshack Dlamini who came upon the accused after the event - soon after the event - (both of whom were clearly independent witnesses) observed that the accused was bleeding from the back of the head. The apparent blood stains on her T-shirt, which she produced as exhibit Dl, are largely on the left side of it, whereas the injuries that were said to have bled were on the right of her head. I think that it is probably the case that the deceased did not attack the accused at the bus stop as she had said, although as will be come apparent I cannot exclude that as a reasonable possibility. But whether or not he did - whether he did it or not - I do not believe that he caused the bleeding which she claimed ensued, and whether or not he assaulted her at the bus stop Mr. Twala was nevertheless saying firmly that he did not do so at the
homestead, and he was also saying that he saw the incident at the homestead clearly.
The evidence for the Crown, or indeed as a whole, does not show or give to any inference or any proper inference that he was unsighted at any material time. Mr. Twala did not say or suggest either that the deceased or the other people with them were threatening to come to the hut of the boyfriend of the accused. What he said was that the accused herself came home, went to her hut, and then came back to where the group was standing at the edge of the homestead.
For a proper consideration of the reasonable possibility of self-defence, I will assume that the deceased did in fact assault the accused at the bus stop as she claimed, although I do find that improbable. I will also take into account the whole sequence of the events from and including the incident at the bus stop itself, and the fact (as I believe) that after the sisters had began to walk to the homestead the deceased, Mrs. Tsabedze and her husband followed them closely, meaning to continue the quarrel. I will also specifically disregard Mrs. Tsabedze's account that the accused had indicated that she would wait from them by the homestead, i.e. as they passed it.
Nevertheless, on the evidence, I do not believe that the accused acted as she did because she perceived any threat of attack or a further attack. On the evidence, I reject that as a reasonable possibility. I believe that she was acting solely in anger.
A possible and a potentially difficult question of provocation does, however, arise on the evidence, again taking into account the whole sequence of events from and including the incident at the bus stop. It is difficult in my view, because on one view of the evidence I think it is possible to say and I think many people would say that this was really a case of murder, with extenuating circumstances that flow from the youth of the accused. But, as I say, 1 think the evidence does give rise to a question as to whether it might be reasonably possible that there was some provocation. There is no doubt that the accused did in fact lose her temper, and attack the deceased at the homestead of Mr. Twala. On the most favourable
interpretation to the accused, what happened was that the deceased at the bus stop had intervened in this dispute between herself and Mrs. Tsabedze, assaulting the young woman, and had more or less immediately afterwards followed her closely to the homestead in a hostile mood, quarrelling with her but not, however, attacking her there.
As I have indicated, it is a borderline situation which involves giving the accused on the whole of the evidence, in my view, very much the benefit of a reasonable doubt. On her own sister's evidence, the accused herself had in one way interfered in the tragic chain of events leading up to the death of the deceased, by intervening - by taking it upon herself to intervene - in a quarrel had already occurred (and indeed had concluded) between her sister and Mrs. Tsabedze. But this is a criminal trial, and indeed I am concerned to make this point clear for the benefit of any members of the family of the deceased who may be in court: under the system of justice which this court applies, it is for the Crown (as I have already indicated) to prove beyond any reasonable doubt the guilt of an accused person -in particular to eliminate any reasonable possibility that the accused may have been acting under provocation. That is the law and there are also considered reasons why that standard is adopted. And what it means is before a person can be convicted of a certain offence the court must be sure - morally certain - that the person is in fact guilty of that particular offence.
At the time of this tragedy, the accused was no more than eighteen years and probably seventeen years old. I do not wish the members of the family to think that I believe that this is what actually did happen. I think it is improbable but I am bound to say that it is reasonably possible that the deceased may himself have hit the accused at the bus stop; and I do in fact believe that, in the company of Mrs. Tsabedze and her husband, he followed the accused and her sister closely to the homestead in a quarrelsome mood (by which I mean intending to continue the dispute between the parties in which he as well as the accused had intervened at different times). Another, strictly unrelated fact is that just before she had attacked the deceased with a knife, Mr. Twala also intervened, striking the young girl twice. I think the truth of the matter is that at that stage,
being a young and immature person, she lost control of her temper, and giving her the benefit of a reasonable doubt - but as I say, a fairly stretched reasonable doubt, if I may so - I do hold that it is reasonably possible that she was acting under provocation. I would in any event add that if I had been sure in my mind that it was murder, I would have regarded this as a case, because of her young years and immaturity, as one in which the question of extenuating circumstances would have played an important part in sentencing. And I want to make it clear for the benefit of any of the family of the deceased who may be present, for this is a criminal trial as to liability, that I am in no way denigrating the gravity of the fact that the deceased has lost his life. But in those circumstances, I find the accused not guilty of murder but guilty of culpable homicide and I convict her accordingly.