THE HIGH COURT OF SWAZILAND
T. NO. 91/94
the matter between:
: A.F.M. THWALA
THE CROWN : MR. D. LUKHELE
THE DEFENCE : MR. M. NSIBANDE
accused are charged with the following counts: In count one they are
charged with the murder of Jobha Simelane on the 20th October, 1993.
On the second count they are charged with assault with intent to
cause grievous bodily harm to one Khanyisile, the daughter of the
the third count they are charged with assault with intent to cause
grievous bodily harm on Annah Simelane, the wife of the deceased.
post-mortem report was handed by consent, which shows that the cause
of death was intracranial haemorrhage and fracture of the skull,
which suggests that the weapons which were produced here i.e. the
bolted stick and the bush-knife were used. The report shows that
several vicious blows were delivered on the deceased.
Crown led four witnesses who all gave substantially the same
evidence. Khanyisile gave evidence that the accused came armed and
found her and her mother herding cattle. She was assaulted by the two
accused, but they did not use the bush-knives on her. After the
assault she left and went to look for her father. She did not see the
assault on her mother. Her mother gave evidence that she was
assaulted by accused no.2. Accused no. 1 did not assault her.
Khanyisile left and found her father on the way. She accompanied him
but on their way home they met the two accused. The two accused
according to Khanyisile assaulted the deceased. Accused no. 1 threw a
stone which hit the deceased and he stood on a crutching position.
They then assaulted him with the bolted stick and the bush-knives She
raised an alarm to the Magagula's who came ana were chased away by
accused no.2. They continued to assault the deceased until he was
cross-examination she was not shaken, and she did not show any bias.
Although the defence say there are some discrepancies, those
discrepancies are something which happen to any witness unless he has
memorised the evidence. The mother who had a difficulty in talking,
also gave substantially the same evidence and she did not show any
bias. That is substantially the case for the Crown.
would appear that there was a misunderstanding or bad blood between
the two families. It appears that there was a dispute over a barbed
wire. The two accused gave evidence to the effect that their sons
reported that the deceased took a barbed wire from them. They then
decided in the evening to go and mend part of the fence using
carried the weapons which were exhibited in this court. When they
found Khanyisile, they spoke to her and she insulted them. Then
accused no. 2 had to hold her with her clothes, according to
Khanyisile she was assaulted. Accused no 1 also assaulted her. After
she had left, they went to her mother who was herding cattle
according to them. Her mother also insulted accused no. 2. A fight
started. They then left and met the deceased. Again the deceased also
insulted them according to them.
the cross-examination, it appears that there was a series of quarrels
between the' two families. The fact that they carried these weapons
means that they were going to fight, and as it did happen they fought
and after that they went to report to the police. Accused no. 1 was
reluctant to tell the court as to how many times he hit the deceased.
But at the end of it all the defence admitted that they assaulted the
deceased, but they were povoked by the Simelane family. The question
which is left with the court is whether this is murder or culpable
homicide. The defence referred this court to the case of MANZINI vs
THE KING 1967 SLR 179. In this case the appellant had assaulted his
mother. The mother had called him a witch. In the interim he tried to
commit suicide. The court found that the verdict should be culpable
homicide. The Judge said at page 182.
question whether or not there has been time for passion to cool must
however be judged not by mere computation of hours or minutes, but by
a consideration of the circumstances of the particular case. An act
of provocation may set in motion a chain of events covering an
appreciable period of time which keep the passion alive and prevent
it from cooling.
accusation of witchcraft, more particularly one which is repeated,
would be to a primitive Swazi, a very serious accusation calculated
to cause great anger, as it obviously did in the case of the
his anger was still simmering the struggle took place between himself
and Thumbumuzi in which the latter tried to take away the piece of
wire. While this was in progress, there occured the act of
interference by the person who had made the repeated and wounding
accusations of witch craft. It was that act of interference which
seems directly to have provoked the fatal attack on the deceased".
this case while Thumbumuzi was taking the wire from the appellant,
the mother appeared at that stage, then the appellant attacked her.
The Court Judge applied the "Homicide Act" to reduce the
crime from that of murder to culpable homicide. One factor which
influenced the court was that one assessor asked the appellant if he
had "elulaed" the deceased and he said no. The court there
took the view that the appellant was not given a chance to answer as
to why he did not "elula" his mother. The trial court
called an executive officer who was a former police in that case.
They asked her if you dont "elula" a person, what is your
intention? The officer said "You intend to kill him". The
trial court took that fact into account and that is why appeal court
aid there was a mis-direction, so it reduced the case to culpable
homicide. Then we have a case of RV AARON MFANYANA DLAMINI 1979-1981
SLR 30 who was tried by COHEN J. In this case the wife of the accused
was sent by a certain district officer who was then his boy friend at
to go and fetch the children of their marriage from the accused. In
the interim the accused said in anger "Look here, this is my
wife even if you know her as Maqhobolwane's wife, that does not
matter. First of all Maqhobolwane took my wife from here and put her
in his own place, and now he sent a motor vehicle to fetch my
children". Then the woman started saying "we have not come
to try cases here, give us the children". In anger the accused
stabbed the woman ten times. He was very angry but Cohen J, found him
guilty of murder. I was of the view that this was the case which
should have been decided under the "Homicide Act". At page
34 he says:
it was urged that the accused acted under extreme provocation when he
assaulted the deceased and that therefore the verdict should be
reduced to one of culpable homicide. Indeed Mr. Thwala for the Crown
was inclined to support this view point, and one of my assessors
infact recommended that that should be the verdict. The other
assessors and I however, disagreed and concluded that this was the
case of murder with extenuating circumstances. The Law dealing with
the defence of provocation is set out in the Homicide Act, 44/1955
and briefly provides as follows:"The killing of a person as a
result of provocation suffered by the accused is reduced to the crime
of culpable homicide if the lethal act was committed:
the heat of passion caused by sudden provocation, and
there was time of his passion to cool.
3 (1) of the Act defines "provocation" to mean and include
(c) any wrongful act or insult of such nature as to be likely, (d)
when done to an ordinary person, (e) to deprive him of the power of
self-control, (f) and to induce him to assault the person by whom
such act or insult is done. (I have here extracted from ss 2 and 3 of
the Act only certain relevant references in them and have divided
these into paragraphs (a) to (f).) Sub-seetions(3) and (4) of s3 are
however also relevant. The former is to the effect that "an
ordinary person means an ordinary person of the class community to
which the accused belongs," while the latter states that "a
lawful act shall not be provocation for an assault". He
continues that the defence submission on the question of provocation
was that the accused had been provoked by reason of the fact that the
deceased lover had arranged for ana sent the deceased to him in that
the accused was further provoked by the request that he deliver the
children to the deceased. Both Mr. Erasmus and Thwala submitted that
neither the educational qualification nor his environment affected
the issue as to whether he was an ordinary person in terms of the
Thwala in particular suggested that the class of community to which
the accused belong was indeed the entire Swazi population, and that
any Swazi would have been provoked. I do not think that the community
was intended by the Legislature to refer to the entire Swazi Nation.
If this was the Legislature's intention, it would have been stated
we are dealing with ordinary Swazis. They are not primitive Swazis as
those Judge of Appeal Roper referred to in Manzini's case. These are
ordinary Swazis, they should have had time to cool. They prepared for
this and set out to fight. I think that their case is better than
that of Aaron where there was extreme provocation, but the Judge
found him guilty of murder.
the same way I find the two accused guilty of murder.
of the lack of medical evidence, I find the accused in count 2,
guilty of common assault. And I find accused no. 2 guilty of common
assault in count 3.