THE HIGH COURT OF SWAZILAND
Case No. 10/93
the matter between:
CROWN Mr. Sibandze
DEFENDANT Mr. Ntiwane
(27/6/94) (ex tempore)
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.
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.
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
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.
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.
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.
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
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.
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.
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.)
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.
stabbing the deceased after he had tried to pull her away from the
homestead, the accused had accordingly been acting in self-defence.
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.
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.
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.
Tsabedze also had said that she and her husband had followed together
some distance behind the deceased man, as he went towards the
They had found him standing there when they reached it, and they had
then began to walk past him before the fatal incident occurred.
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.
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
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
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.
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.
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.
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.
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
one part of her evidence that the whole of her evidence is false.
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
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.
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
and he was also saying that he saw the incident at the homestead
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.
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.
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.
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
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.
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.
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,
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