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
