Masilela v King (NULL) [1994] SZHC 54 (16 August 1994);

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IN THE HIGH COURT OF SWAZILAND


HELD AT MBABANE


CRIM. T. NO, 219/93


In the matter between:


VUSI MASALEBONA MASILELA


Vs


THE KING


CORAM : A.F.M. THWALA


FOR THE CROWN : MR. SIBANDZE


FOR THE PLAINTIFF : MR. DHLADHLA


JUDGMENT 16/08/94


The accused is charged in count 1 with attempted murder in that he attempted to murder Albert Magongo a taxi driver, and in count 4 with robbery that he robbed the same person the taxi and the car radio. In count 5 he is charged with house breaking with intent to steal and theft, in that he broke into the house of Ndzinisa and stole a shotgun.


The Crown led evidence of the two complainants. Magongo was hired from Siteki taxi rank to a place which is about 1 km from Siteki to a certain home by a small boy. When he approached that place, there was a bush and the boy intimated that he could not open the gate, Magongo the taxi driver must help him to open the gate. Magongo suspected and closed all the windows leaving the window on the side where the boy sat. He drove on. When he was about to reach the gate he noticed a hat. He commented about this hat but the boy did not comment. When they were close to the gate, he asked the boy to alight and open the gate. When the boy slowly tried to alight, he. heard a noise, He saw somebody appearing from the bush with a gun,


2


The boy was still at the door. The person fired at a close range. Not noticing that he had been injured, he tried to reverse and collided with a tree. He then opened the door and ran away. He was helped by soldiers to take him to Good Shephered Hospital. He was later transferred to Mbabane and then taken to the Republic of South Africa.


In South Africa when he was operated, they took off the rubber which is the tip of the bullet of a shotgun which indicates that the shot was fired at a close range and because the rubber penetrated the arm. He is on his point of recovery. He came back. When he inspected his taxi where the police had taken it, he found that the radio casette had been removed.


Ndzinisa gave evidence to the effect that on the day in question in January he left his house with the windows closed and doors closed and went to get fertilizer where the people of that area were given fertilizer. When he came back, he found his windows disturbed. When he got into the house, he found his shotgun missing. He had left the shotgun on top of his bed. He then after some days took Musa Mbhamali, the accomplice witness to the soldiers. When he explained to the soldiers his predicament, the soldiers took Musa and Ndzinisa and went to look for the accused on the information they got from Musa. They went to the bushes. Musa communicated with the accused. They were using whistles. The accused was then arrested. He was fond in possession of a shotgun which had its butt and barrel cut. He was then taken to the soldiers camp. He was later taken to the Chief. He was finally taken to Siteki Police. At Siteki police, he was taken either by Dumsani first or sub-inspector Dlamini. Sub-inspector Dlamini questioned him and the accused led him to Big-Bend. Musa was also present. At a certain bush in Big-Bend they were shown the piece of the butt, the barrel and a hack-saw. Dlamini took possession of those. They are marked exhibit 4 the three of them. The butt belong to the shot gun and the barrel. He took it to Siteki. Dumsani Dlamini gave his evidence that the accused took him to a place where he found the car radio.


3


But he was not satisfactory as to how he spoke to the accused and how he was taken there, but the fact remains that the radio was found and it is exhibit 2. The exhibits and the injury to the taxi driver have been proved to this Court. Most of the exhibits are real evidence. The gun belongs to Ndzinisa and it was taken from Ndzinisa's house. The radio was taken from the taxi where Magongo was shot and injured.


The Crown led the evidence of an accomplice witness which is a young boy of 14 years who testified that the accused invited him that they must go to Siteki where there is money. They went to Big-Bend then to Siteki. They went to a certain Kraal where they found children and asked a certain boy to give them money. When the boy said there was no money, accused threatened to shoot this boy. Then the boy gave them E50. It transpired that in the summary of evidence or what he told the police was that they got E43 from a girl, but this charge has not been preferred by the Crown. Whether it was E50 from a boy or E43 from a girl, we are not much concerned because if the charge was preferred, there would be complaint and other people would clarify the situation.


From there the accomplice witness says they went to a friend of the accused where they spent most of the day after spending some of the money in buying two loaves and two cartons of milk. Then they spent most the day there. In the evening, the acccused gave him E5 to go and hire a taxi and bring it to that place. When they came to that place, he told the taxi driver that he could not open the gate. The taxi driver was driving slowly because the road was net good. When approaching the gate, the accused appeared and pointed the gun at the door according to the accomplice. He then shot Magongo, the taxi driver. Then they alighted and ran away. Accused called him and he came to him. The accused tried to start the taxi but failed. The accused then took off the car radio and they left.


4


On their journey, the accused hid the car radio. Then they travelled to Big Bend until they reached Big-Bend in the morning hours. He was then sent by the accused to buy a hack-saw. He was to go to Lamatata although they were near the Big-Bend Sugar Mill.


In cross-examination, it came out that he took a bus to Lamatata. He did not volunteer it or he was not led as to how he got to Lamatata. This hack-saw which was bought at Lamatata was used to saw the barrel and the butt. The hack saw together with part of the butt which was cut off and the barrel were shown to the police by the accused. Although this witness is young, he seems to be clever enough or versed in what the accused was doing. His evidence has been corroborated by real evidence. He went to hire a taxi sent by the accused, the accused used a shotgun to shoot the taxi driver. "I went to hire a taxi then accused shot the taxi driver". The accused removed the car radio. "I was hired by a small boy to take him to a certain home then I was shot" . The car radio I noticed later when I was from hospital. I think that is the corroboration of the small boy. A shotgun was used. The accused was in possession of a shotgun. It is undisputed evidence. Then the other aspect of his corroboration is the finding of the hack-saw or exhibit 4 which is the butt, barrel and hack-saw then his arrest, that is the soldier and Ndzinisa. Then he led his evidence which is a bare denial. He also said most of the witnesses were telling lies. When you turn this, he was telling lies himself. When you take his evidence in conjunction with the Crown Evidence, you can use his lies as a corroboration of the accomplice witness because this is a bare-denial.


I find that the Crown has proved count 1, the attempted murder, count 4, the robbery and 5 house-breaking. I find the accused guilty as charged.


A.F.M. THWALA


JUDGE