HIGH COURT OF SWAZILAND
the matter between:
the Crown: Ms S.M. LaNgwenya
the Accused: In person
accused persons stand before me charged on two counts. On the first
count, they are indicted with attempted murder, it being alleged that
on or about 1st March, 2000, and at or near Sicunusa in the
Shiselweni District the said accused persons, acting in common
purpose did wrongfully, unlawfully and with intent to kill one Thandi
Ntwanyana Dlamini stab her with a knife and pelt her with stones.
the alternative, they are charged with assault with intent to cause
grievous bodily harm. The same allegations made in relation to the
main count are repeated and I need not repeat the same.
Count 2, the accused are charged with the crime of arson, it being
alleged that upon or about the 1st March, 2000, and at or near
Sicunusa in the Shiselweni District the said accused persons, acting
in common purpose did unlawfully and with intent to injure Thandi
Ntwanyana Dlamini in her property, set on fire and thereby damaged
and burned to the ground two huts being immovable property of the
said Thandi Ntwanyana Dlamini.
accused persons, who were unrepresented throughout the trial were
informed of their rights to legal representation but indicated that
they were going to conduct their own defence. The charges having been
read out to them they indicated that they understood the same and
pleaded as follows :-
count one, both pleaded not guilty.
the alternative count, they both pleaded guilty.
count two, they pleaded not guilty.
support of the charges, the Crown paraded five witnesses, whose
evidence is chronicled herein below.
was Nompumelelo Cynthia Nyawo of Sicunusa. It was her testimony that
she knew the complainant Thandi Ntwanyana Dlamini (herein after
referred to as "PW 3") and also knew both accused persons.
She testified that A2, came to PW 3 and asked why she had accused him
at having eaten her chicken. Later, he came back with A1. A2 was
carrying a knobstick which A1 took away and went into PW 3's cooking
hut. A1 then assaulted PW 3 asking why she had lied against A2. He
assaulted her on her head and she fell down. A1 then proceeded to a
hut which belonged to PW 1's grandfather, retrieved a glowing piece
wood and set PW 3's cooking hut on fire. He proceeded to close the
door whilst PW 3 was inside so that she could not come out.
the hut was collapsing, PW 3 managed to open the door and came out.
She carried a sponge which she used as shield to ward off stones with
which she was being pelted by both the accused persons. PW 3 went
into her sleeping hut whereupon A1 went to close the door, took some
burning grass from the cooking hut and set alight PW 3's sleeping hut
in which she was. As it was collapsing, PW 3 again managed to come
out and she threw out some property which was in the house with her
husband's assistance i.e Sam Nyawo. Soon thereafter, members of the
vigilantes came and A1 took to his heels. He was however arrested by
them and taken away. PW 3 was later taken by the vigilantes to
was PW 1's evidence that this occurred at or about 15h00 and she was
about four (4) to six (6) metres away from PW 3's hut when A1 came
and that she was grinding some maize at the time and was in the
company of Gabisile and Xolani Mntshali. It was her further evidence
that PW 3 sustained a head injury as a result of the assault by Al.
She further testified that she did nothing to assist PW 3 because she
feared that the accused would also assault her. According to PW1, the
stones with which PW 3 was pelted were obtained from an old hut which
had become derelict.
cross-examination, A1 denied taking the knobstick from A2, alleging
that he found it on the ground. This PW 1 denied, maintaining her
evidence in chief. She further denied as put to her, that A1 took the
knobstick after PW 3 had assaulted her with an axe and that she
assaulted PW 3 in self-defence. PW 1 told the Court that she never
saw PW 3 assaulting A1 as both were inside the cooking hut. She
however maintained that A1 never picked up the knobstick from the
ground. PW 1 confirmed that A1 assaulted PW 1 until she fell down and
that when she went to investigate, A1 pushed her outside and asked
what she (PW 1) was looking for.
denied having closed the door to the cooking hut, and further denied
going to look for a glowing piece of wood from another hut. PW 1
maintained her evidence in chief. PW 1 further testified that A1 used
a wire and piece of rope on the door to secure the cooking hut door.
Nothing of consequence was asked by A2.
2 was Absolom Yawa Nyawo, who testified that he lives in Sicunusa and
is an elder brother to A2. It was his evidence that he last saw A2 in
the year 2000 and that was after latter had burnt down huts at their
homestead. He testified that he knew A1. He testified that on the
fateful day, he saw A2 coming home with Al. A1 went into a hut and
there assaulted PW 3 with a knobstick, whereupon, he PW 2 intervened
by holding A1 forcing him out of the hut. A1 then went into another
hut took a glowing piece of wood and set the hut alight and when it
was about to collapse, PW 3 got out and ran into another hut. A1 also
set that other hut alight and from which hut PW 3 again emerged. PW 3
then ran away but she was caught by the accused and PW 2, with the
assistance of one Dumisani rescued her.
2 testified that the reason advanced by A1 for assaulting PW 3 was
that she had accused A2 of eating her chicken. It was PW2's further
evidence that when he restrained A1 from assaulting PW 3, he Al
pretended to comply but again reverted to his attacks on PW 3. PW 2
confirmed PW 1's evidence regarding PW 3's injury on the head, the
arrival of the vigilantes, the running away of A2. He also told the
Court that as A1 was assaulting PW 3, A2 was collecting stones and
throwing them at the hut in which PW 3 was.
cross-examination, PW 2 was asked by A1 if the door to the cooking
hut was closed as PW 3 was in it and the answer was in the negative.
It was his evidence that A1 assaulted PW 3 before she assaulted him
with an axe. No questions were forthcoming from A2. Responding to
questions by the Court, it was PW 2's story that when the cooking hut
was burning, the door thereof was ajar. Regarding the sleeping hut,
PW 2 told the Court that that door was closed by PW 3 in a quest to
prevent the accused persons from entering therein.
3 also testified. It was her evidence that she knew the accused
persons and PW 1 and PW 2. She testified that on the 1st March 2000,
on a Wednesday, she was from the fields and discovered that one of
her chickens was missing. She looked for it unsuccessfully. She
called upon the person who took it to return it, failing which she
would consult the diviners who would identify the culprit after which
she would report the matter to the RSP.
she was dishing food in her hut, A2 who was carrying a knobstick,
approached and stated that he had learnt that she (PW 3) had accused
him of stealing her chicken and her response was that she had not
mentioned the name of the culprit. She further told A2 that she had
seen a trail of feathers leading to a certain hut, which A2 denied.
PW 3 and A2 then went to the latter's hut and there found some
feathers inside. PW 3 returned to her cooking hut to dish food. As
she did so, she heard stones being thrown at her and A1 came in with
a knobstick and assaulted her with it. A2 was at the time throwing
stones. PW 2 rushed into the hut and intervened and dispossessed him
of the stick. By this time, PW 3 had fallen down next to the
fireplace where she was picked up by PW 2. He pushed Al outside the
this juncture, and while PW 3 was protesting at being assaulted
because she had mentioned nobody's name in connection with the
disappearance of the chicken, Al produced something like a knife and
assaulted her with it on the forehead. She however did not see what
it was as she was by then bleeding profusely. She cried and shouted
as a result. She then took an axe and used its back to hit A1 in
self-defence. A1 went out and fell outside. As she tried to strike
him there once more, PW2 restrained her. A2 was still pelting her
with stones. This prompted PW 3 to close the door in order to avoid
the stones hitting her but to no avail. A1 then closed the door to
the hut from outside and secured it. This was after A1 had gone to
fetch a glowing wood from hut of PW3's father-in-law and set the hut
alight. PW 3 tried to force the door open without success.
Eventually, the door did open and PW 3 came out with a sponge which
she used to ward off blows from the accused persons. She moved into
another hut as the accused continued pelting her with stones.
2 then shouted words to the effect that it has gone into this hut.
Bring the fire. We are soldiers and today, you have eaten your last
meal. Because you say we have eaten your chicken, we want to kill
you. PW 3 retorted that she had mentioned nobody's name regarding the
disappearance of the chicken. The hut was then set alight. Al secured
the door which rendered it difficult for PW 3 to escape. Eventually,
the door gave way and she came out as the hut collapsed. When she
emerged, A2 said, "There it runs, go in the other directions and
stop it", in reference to her. She ran away and was assisted by
the vigilantes. She hid in a bushy area but saw Al climbing on rocks
frantically searching for her.
3 was later taken to Mankayane Police in a motor vehicle. A1 was also
in there but he escaped and went back to his homestead. She was later
seen by a doctor at Mankayane who sutured her and admitted her for a
whole week. It was her further evidence that she sustained injuries
all over the body which injuries still affect her even now as there
are certain activities or chores she cannot perform. PW 3 related an
incident in which A1 had knocked on her door and pretended to be a
policeman. He accused her of saying that they had eaten her chickens
and that he would arrest her and later kill her. As regards the
events in question, it was PW 3's testimony that she was unaware of
the reasons why A1 had acted in the way he did as she had done
nothing to provoke him.
cross-examination, A1 denied securing the door of the cooking hut
with a wire. This, PW 3 maintained had happened. Asked how she could
see that the door was secured as she was inside, PW 3 stated that she
tried to open the door without success and she was called upon to
apply force to get it open. It was further put to A1 that the door
was open when the hut was burning but this PW 3 denied.
on the other hand denied having referred to PW 3 as "it".
He denied going with PW 3 to see the feathers in his hut. PW 3
maintained her evidence in chief. It was also suggested to PW 3 that
she accused A2 of having sold her chicken in order to obtain some
liquor. It was also suggested to her that she had mentioned A2's name
in the disappearance of the chicken. It was further suggested to her
that she had said that she wished the deceased had died where he was
working, which indicated to A2 that she was accusing him for the
disappearance of the chicken. These issues were emphatically denied
by PW 3. That was the extent of PW 3's testimony.
4 was Patrick Mkhipheni Motsa, a member of the vigilantes. He
testified that he saw the Nyawo homestead in billows of smoke and
proceeded there to investigate. On arrival, he found A1 swearing
obscenities in the yard but it was not immediately apparent to him as
to who the addressee was. A1 was visibly angry. PW 4 informed A1 that
he was a member of the vigilantes and had come to inspect the damage
and to arrest A1. PW 4 further, testified that A1 was uncooperative
and advised PW 4 against involving himself in a matter with which he
had nothing to do. PW 4 drew nigh to A1 but the latter picked up a
torch cell and threatened to assault PW 4 therewith. A1 then ran away
but was apprehended by PW 4.
was taken and caused to board a vehicle which was to convey him to
the Police Station but it broke down and A1 escaped. He was taken to
the RSP the following day.
cross-examination, A1 denied having shouted obscenities at the Nyawo
homestead. He stated that he was just standing. He A1so denied
running away when the vehicle broke down, suggesting instead that he
merely went home to sleep and told PW 4 so. PW 4 maintained his
evidence in chief regarding the above issues. The Court then enquired
from the PW 4 as to why he decided to arrest A1. His response was
that he had received a report from a boy from the Nyawo homestead to
the effect that A1 was attacking PW 3 and had burnt down two huts.
5 was 3421 D/Constable Patrick Dlamini of Gege Police Station. It was
his evidence that on the 2nd March 2000, he received a report and
actioned it. He proceeded to the Nyawo homestead and found two huts
destroyed by fire but there were smouldering coA1s though. He was
told that the suspect and the complainant had been conveyed to
Mankayane Police Station, a fact he later confirmed. He proceeded to
Mankayane where he cautioned A1 in terms of the Judge's Rules and
arrested him. On arrivA1 at Gege, A1 was interrogated and asked to
hand over the weapons that he had used to assault PW 3 but he stated
that he used stones not a knife and knobstick as A1leged. He was
thereafter formA1ly charged.
A2, PW 5 stated that he received information that the latter was in
the Republic of South Africa at a place cA1led Mampondweni. PW 5
reported to the Piet Retief Police and requested them to accompany
them to a compound where A2 was identified PW 5, cautioned him in
terms of the Judge's Rules, arrested him and brought him back to
5 further testified that he extracted two burnt pieces of wood and
some grass used for thatching both of which had been burnt and these
were handed in as exhibits. They were collectively marked Exhibit 1.
The Court mero motu questioned PW 5 about the procedure for arresting
suspects who are in the Republic of South Africa but who are A1leged
to have committed crime in Swaziland. PW 5 informed the Court that
they cross the border and fetch the suspect with the assistance of
the South African Police Services, and that in most
the suspects cross the border illegally and are therefor charged
under the South African Immigration laws.
medical report was thereafter handed in by consent in terms of the
provisions of Section 221 for the C.P. & E, the Accused having
been duly warned of their rights. The said report reflects that PW 3
who is around 59 years was examined on the 2nd March 2000 at
Mankayane Hospital. Her clothes were bloodstained. It also records
that she had sustained facial lacerations and laceration of left hand
fourth finger. There was also an injury on left leg but no bone
injuries were observed. The Doctor opined that injuries were
consistent with a case of assault as alleged.
this juncture, the Crown closed its case and I indicated that from
the evidence led, there was a prima facie case against both accused
persons. I accordingly called both of them to their defence.
of Crown's Evidence.
is my considered view that the Crown's evidence was in large measure
credible, reliable and corroborative. I was impressed by all the
Crown witnesses, particularly the manner in which they adduced their
evidence. In my view, they were forthright and answered questions put
to them without difficulty. Having said this, I must however point
out that evidence of the complainant, PW 3 was not entirely
satisfactory for reasons that I will enumerate below.
she denied having accused A2 of stealing her chicken. She did however
proceed to state that she went with A2 to his house and there saw
feathers, thereby indicating that A2 was the culprit. PW 1 also
testified that A2 came and asked PW 3 why she had accused him of
eating her chicken. There is no record that she had denied accusing
A2 of having eaten the chicken.
I formed the impression that PW 3 was guilty of exaggerating the
injuries she sustained together with their effect on her health. The
medical report only indicated injuries on her head, left 4th finger
and the joint above her foot. Had the injuries been as serious as PW
3 contends, the medical report could have reflected these. It is not
a person in PW 3's position to see his/her assailant handed down a
stiff sentence for injuries he/she sustained at the latter's hands.
One way of so doing is to exaggerate the nature, extent and effects
of the injuries. I therefor take due caution of PW 3's evidence in
accepting the nature and extent of the injuries she sustained,
particularly viewed against the contents of the medical report.
PW 3 stated that Al used a sharp instrument, which she suspects to
have been a knife to stab her on her forehead. She conceded however
that her face was full of running blood and her vision was thereby
impaired. It would be dangerous in my view to rely on her evidence
and conclude that A 1 stabbed her with a knife in the circumstances
as she could not see it neither was a knife found in A1's possession
during his arrest, which according to the evidence, was effected
reasonably soon after the huts were burnt down. I say this cognisant
also of A1's story, in which he stated that he never used or carried
a knife but used the sharp end of the knobstick, which inflicted the
injury on PW 3's forehead.
accused's explanation is reasonably possible in this regard. Had a
sharp instrument like a knife been used, this would normally be
included in the medical report but such a finding is however
conspicuously missing. It is also noteworthy that PW 5 testified that
when he interrogated Al, he asked him to produce a knife but Al said
he did not used one to inflict the injuries on PW 3. He stated that
he had used stones only, an assertion later proved false in A1's
questioning as it is apparent that he also used a knobstick to
assault PW 3.
more fundamental difficulty with the Crown's evidence that I noted
was in relation to the question whether or not the doors to both the
cooking and the sleeping huts were closed by A2. PW 1 and PW 3 stated
that after setting both huts on fire, Al secured the doors with PW 3
inside, intending that she should die inside the huts.
2 on the other hand testified that A2 never closed and secured the
doors. In respect of the cooking hut, it was his evidence that the
door was open whilst the hut was being razed down by fire. This is
also A1's story as put to the Crown's witnesses. Regarding the door
to the sleeping hut, PW 2 testified that it was PW 3 herself who
locked the door from inside and this was to prevent A1 and A2 from
attacking her any further.
am inclined to believe PW 2 in his account in view of this serious
inconsistency in the Crown's evidence. I do so because in her own
evidence, PW 3 stated that she tried to close the door to the cooking
hut in order to stop the stones that were being thrown at her by Al
and A2, although she said she never managed. PW 2 and A1 say that the
door was open throughout.
it is conceivable, in respect of the sleeping hut that PW 3 would
close the door behind her as she was running away from her
assailants, who she alleges were continuously pelting her with
stones. The only way for her to remain in a place of safety was to
secure the door behind her, thereby keeping A1 and A2 and the stones
this element about closing both doors when the houses were being
burnt down been included in the statements by the witnesses, then I
am of the view that these allegations, in view of their seriousness
would have been made in support of facts from which it could be
inferred that the accused persons harboured an intention to kill PW
3. These were not included in the charge sheet and in my view, this
detracts from the veracity of PW 1 and PW 3's stories. I accordingly
reject the evidence of PW 1 and PW 3 in this regard on the aforesaid
the foregoing imperfections noted in the Crown's case, I have no
qualms in finding the balance of the Crown's evidence worthy of
credence. It is now trite that the Court is at large, whilst
accepting one part of a witness' evidence to reject another portion
and this is at what I have done. See R v KHUMALO 1946 AD 480 at 484.
indicated earlier, at the close of the Crown's case, I formed the
view that the Crown had made out a sufficient case requiring the
accused persons to be called to their defence. I said so mindful of
the question of A2's arrest and with which I propose to deal
circumstances of A2's arrest have been outlined above. The question
to be decided is as follows: - was A2's arrest in the Republic of
South Africa lawful. If not, what are the
for the unlawfulness of the arrest on his conviction? I may well add
that I raised this question mero motu when PW 5 gave his evidence. I
did so because the accused were unrepresented. Had they been
represented, this would have been an issue to be raised at the stage
of pleading, in terms of Sections 155 of the C.P. & E, in respect
of which this Court's jurisdiction to try him would have been raised.
It is my view that notwithstanding the provisions of Section 155
regarding the stage where the Court's jurisdiction is attacked, that
the Court is at large, where the accused persons are unrepresented to
raise the question mero motu as soon as it arises and this is what I
sought to do. In point of fact, the Court of Appeal in BONGANI
MKHWANAZI v REX , APPEAL CASE NO. 125/98 (per Steyn J.A.), delivered
on the 27th November, 2001, held as follows regarding the proper
interpretation of Section 155, regarding when a plea to the Court's
jurisdiction should be properly raised. The Crown had contended that
the plea should be raised ab initio. Steyn J.A. stated the following
at page 11 of the judgement:-
would in any event seem to us to be unacceptable to interpret the
relevant provision of the Criminal Code in this restrictive manner.
The question of the presence or absence of jurisdiction may only
become apparent during the course of the trial and to preclude it
from being raised when it is obvious that to continue would only lead
to a mistrial being decreed on appeal, would clearly be
the instant case, the question arose just before the Crown closed its
case and that is when I raised it, with instructions to Crown Counsel
to address me on its effects to the trial of Accused 2.
question arose for decision is S v EBRAHIM 1991 (2) SA 553 (per M.T.
Steyn J.A.), where it had been alleged that the accused had been
abducted from this country to stand trial in the Republic of South
Africa. In R v BONGANI MKHWANAZI & 3 OTHERS, CRIM. CASE
NO.125/98, Maphalala J. also had occasion to consider this matter.
v EBRAHIM (supra) is unfortunately reported in Afrikaans and no
translations are available. It does however appear from that case, if
my understanding is correct, that the applicable principles are the
is a distinction between the apprehension of a person in a foreign
State and his subsequent transportation to another country by a
private citizen acting on his own from the situation where the said
person is apprehended and transported to another country by or with
the connivance of an official of the country to which the apprehended
citizen is returned.
the former case, the person apprehended cannot object to the court's
jurisdiction to try him for a criminal offence in a country to which
he has been brought after his unlawful apprehension;
the latter case, the jurisdiction of the Court to try him is
assailable because the apprehension of the person concerned involves
a breach of international law.
the evidence of PW 5, it is clear that A2 was apprehended and
arrested in the Republic of South Africa by the R.S.P. He was
thereafter brought into Swaziland and detained by the R.S.P. From the
foregoing, it is my view that this case does not fall within the
category of matters in respect of which persons are apprehended by a
private citizen. It falls squarely within the second category as it
appears that there was some assistance by the S.A.P.S.
Crown referred the Court to an agreement which was signed by His
Majesty King Mswati III and the then President of the Republic of
South Africa, Mr Nelson Mandela. It sets out a procedure for dealing
with cases in which persons are required for criminal cases in either
country amongst other issues. That procedure is provided for in
Article 3 in the following terms:-
arresting, detaining, guarding or keeping in custody any person
suspected of having committed any offence contemplated in Article 3
(1) (a) and taking such steps as the hosting police service is
authorised to by municipal law of its country in order to effect any
such person's extradition for trail (sic) in a court of competent
the foregoing, it is clear that the terms of the agreement were not
followed in that the R.S.P, proceeded into South African territory
and there arrested A 2. In terms of the agreement, the suspects are
to be arrested and detained by the S.A.P.S., which process is then
followed by extradition procedures. It is my finding that whatever
the nature of assistance by the S.A.P.S, did not cure the breach of
is clear therefore that in casu, there was a breach of the principle
of sovereignty of nations. In particular, the sovereignty of the
Republic of South Africa was in my view breached. This, according to
the authorities can be a ground for this Court to decline to exercise
its jurisdiction over an accused person. See also NDLOVU AND ANOTHER
v MINISTER OF JUSTICE & ANOTHER 1976 (4) SA 250 (N) and NDULI AND
ANOTHER v MINISTER OF JUSTICE v ANOTHER 1978 (1) SA 893 (A). As a
mark of the high regard that this Court attaches to the principle of
sovereignty of nations, the Court hereby declines to continue
exercising its jurisdiction over A2. In that event, he is acquitted
and discharged of all the Counts on which he was indicted.
however wish to stress that the R.S.P, must ensure that in obtaining
suspects from South Africa, who are Swazi Nationals or other
nationals, the agreements, treaties and the respective laws of both
countries governing extradition and related matters are adhered to. I
am of the view that the fact that a Swazi National who is a suspect
in respect of a criminal case in Swaziland does not thereby entitle
the R.S.P, to jettison the agreements, treaties and the laws
applicable thereby breaching South Africa's sovereignty. In any case
in which this is done, the Courts should decline to exercise their
jurisdiction and in this way, the R.S.P, will also learn to
appreciate the seriousness and the impact of the agreements, treaties
and legislation in question.
an aside, the copy of the agreement to which I referred to does not
appear to have a date of commencement, which might have been the
result of an oversight. I am not certain as to whether the same holds
true for the original. I have, notwithstanding that omission
proceeded on the basis that the agreement is valid and in force. I
have not been called upon to decide its validity but the
Attorney-General may well be advised to consider this issue and cause
remedial steps, if appropriate to be taken to deal with the omission.
2, due to the Courts declinature to exercise its jurisdiction on him
is acquitted and discharged on all counts. This acquittal, it must be
understood is not on the merits of the matter. It may be open to the
Crown to bring him to justice for his alleged actions, provided he is
not arraigned and brought to Court by means or procedures which would
lead the Court to refuse to exercise its jurisdiction as in casu.
accused's rights at this stage of the trial were fully explained to
them. They signified to the Court that they understood same. In
exercise of those rights, Al elected to adduce sworn testimony,
whilst A2 elected to remain silent. Nothing further needs be said in
this regard about A2, in view of the decision to which I arrived
regarding his arrest and his subsequent acquittal.
will only confine myself to the salient features of A 1's evidence
and they run as follows: On the day in question Al and A2 woke up
early in the morning to work in forests. PW 3 heard when Al came to
fetch A2 in readiness for departure for the forest swearing at A2,
calling him by his mother's private parts. She asked A2 where her
chicken was and latter denied knowledge of it. She then accused A2 of
having stolen it and further referred to him as a dog thief. Incensed
by PW 3's actions and words A2 wanted to fight PW 3 but A1 dissuaded
him from doing so, insisting that they proceed to work, which they
did. As they left, PW 3 shouted, saying that she wonders where A2
will sleep on his return from work in the evening.
returned at around 16h30 and they parted at A2's home. Shortly
thereafter, A2 called A1 and they proceeded to A2's and found that
the door had been interfered with. It had not been closed as A2 had
left it in the morning suggesting that some person had entered his
hut. PW 3 confessed to having done so and that she was looking for
her chicken. PW 3 stated further that she had not found the chicken
but its feathers in A2's hut.
invited PW 3 to come and inspect the hut but PW 3 refused to do so.
A2 said there were no feathers in the said hut. PW 3 then told them
that she had found the chicken among the others, whereupon A2
retorted that PW 3 had tarnished his name. PW 3
by saying that A2 is in the habit of stealing her chickens and
thereafter bartering them and receiving liquor in exchange.
3 was carrying a bush-knife, which she was sharpening with sandpaper.
A2 then swore at PW 3 and PW 3 advanced and attempted to strike A2
with the bush-knife unsuccessfully. As Al went past PW 3's hut, PW 3
assaulted him with the back of an axe on the head and he fell down.
As he arose, PW 3 advanced. Al saw a knobstick on the floor which had
been in A2's possession earlier. A1 wielded it sideways in order to
prevent PW 3 assaulting him any further. PW 3 was hit with the sharp
side of the knobstick on the forehead, which injury she claims was
caused by a knife. PW 3 thereafter ran into her cooking hut and threw
burning pieces of wood at A1. A1 threw the same back at her. He
thereafter realised that the hut was burning with PW 3 inside. The
fire started burning on the roof above the door.
moved away form the hut and PW 3 then ran out of the burning hut and
entered into another. Due to the close proximity of the burning hut,
a second hut in which PW 3 was also caught fire. PW 3 managed to
escape and she, PW 2 and her husband removed some items from the
burning hut. Thereafter, the vigilantes arrived and enquired as to
what happened. PW 3's husband told the vigilantes that a fight had
broken out between A1, A2 and PW 3, whereafter, Al was arrested.
Later, he was conveyed to Mankayane hospital where he was sutured and
thereafter handed over to the RSP.
questions were posed to Al by A2. In cross-examination by the Crown,
Al stated that he was in good terms with A2 and the relations between
Al and A2's families were cordial. A2 stated that PW3 was old enough
to be his mother and respected her and would at times assist her with
insecticides for use in her fields. A1 stated that his first
involvement in the fracas was as a result of PW 3 assaulting her.
When asked where she was when PW 3 assaulted him, he stated that he
was at her door passing by.
denied having gone into PW 3's hut armed with a knobstick and using a
sharp instrument to assault the deceased. He further denied having
pelted her with stones alleging that he only threw burning pieces of
wood at PW3. He conceded that he did later consider that the hut
would burn down as a result of his actions i.e. throwing the burning
pieces of wood at it. Al also denied having secured the door of the
that it was open throughout and that had it been secured, PW 3 would
not have managed to escape. A1 also denied having set both huts on
fire. He further denied that he swore at PW 3. He stated that he
never intended to see the huts burn down but appreciated that if he
used fire on a thatched roof, the huts would burn down. He then
closed his case.
of A1's evidence.
was very poor as a witness. In my mind, it was very clear that he
lied at times. In this regard, it is untrue that he was assaulted by
PW 3 first. The Crown's evidence is in this regard is very clear and
was not controverted by Al. I find for a fact that A1 assaulted PW 3
first with a knobstick and that she acted in self-defence when she
assaulted him with the back of an axe.
A1 lied when he alleged that PW 3 assaulted him as he was walking
past her hut because under cross-examination, he later stated that
she assaulted him at the door of her hut and that he was not passing
by the hut but was actually trying to assault her, whilst standing at
the door of the hut.
was in certain instances, uncomfortable and very shaky and I noted
this in particular when he was subjected to scorching
cross-examination by Ms LaNgwenya. This uncomfortableness is in my
view not to be associated with stage fright as the accused was
exceedingly calm in his evidence in chief. He began to overheat under
the cases of S v P 1974 (1) SA and R v DOMINIC MNGOMEZULU AND OTHERS
CRIM.CASE NO.94/90, it was authoritatively stated that, the defence
case must be put to the Crown's witnesses in order for the Court to
see their reaction thereto. It was stated that where there is a
failure to put the entire defence case, the Court is at large to
regard the portions not put as an afterthought.
am mindful that the accused persons were not represented and would
not have been expected to understand such lofty principles of
conducting a criminal trial. Their rights to cross-examination were
fully explained to them and they indicated that they understood their
rights. That being the case, though unrepresented, they should have
had no difficulty
putting their case sufficiently to the Crown's witnesses,
particularly in view of the intelligent and relevant questions put by
Al to the Crown's witnesses.
that only emerged in A1's evidence in chief are the following: -
PW 3 assaulted A1 first;
the hut caught fire as a result of Al throwing back burning pieces of
at PW 3;
PW3 threw burning pieces of wood at Al.
the sleeping hut was burnt as a result of its close proximity to the
PW3 was asked to inspect A2's hut with A1 and A2 but she refused;
A2's house had been broken into and that PW 3 confessed to having
the chicken reported to have been missing by PW 3 was eventually
by her; and
PW 3 was carrying a bush-knife and that she attempted unsuccessfully
assault A2 with it.
list is endless. It is however clear in my mind that these were all
crucial issues which A1 knew and would have had no difficulty in
putting to PW 3, in particular. As a result, the Court was denied the
opportunity of seeing her react thereto. I must perforce regard these
issues as an after thought as I hereby do.
question to now consider is whether it can be said that the evidence
led by the Crown proves commission of the offences wherewith the
accused person is charged beyond a reasonable doubt. I will analyse
the issues relating to Count 1 first.
applicable principles in matters of attempt were considered at length
by Niles Duner J. in S v GCABASHE 1997 (2) SACR 106. See also the
authorities therein cited.
R v SCHOOMBIE 1945 AD 541, at 545 - 6, Watermeyer C.J. stated as
seem to fall naturally into two classes: (a) Those in which the wrong
doer, intending to commit a crime, has done everything which he set
out to do but has failed in his purpose either through lack of skill,
or of foresight, or through the existence of some unexpected
obstacle, or otherwise, (b) those in which the wrong doer has not
completed all that he set out to do because the completion of his
unlawful act has been prevented by the intervention of some outside
S v DuPLESSIS 1981 (3) SA 382 (A) at 399 H - 400B, Corbett J.A. (as
he then was) developed the principle as follows:-
the decision in any particular case as to whether or not, at the
moment of interruption or prevention, the conduct of the accused has
progressed beyond the stage of preparation and constituted a
commencement of the consummation must in the last resort become a
factual enquiry relating to the particular circumstances of the case
in which the following factors, amongst others, would play a part:
whether at that stage the accused had made up his mind to commit the
crime, the degree of proximity or remoteness which that arrested
conduct bore to what would have been the final act required for the
commission of the crime and, generally, considerations of practical
common sense. I doubt whether any greater precision than this can
ever be achieved."
question in this case is as follows: regard had to the allegations
made in the charge sheet, can it be said that the accused persons set
out to kill the deceased and were stopped dead in their tracks by the
timely intervention of PW 2? Whether the accused had at the stage of
intervention made up his mind to kill PW 3 is a question that has to
be answered in full appreciation of the attendant facts of this case.
my view, it cannot be said in casu that A1 had made up his mind to
kill PW 3. In this regard, I must consider the nature of the weapon
used, the area on the body where the injuries were inflicted and the
nature and extent of those injuries. In casu, as I held earlier,
there is no evidence that Al ever had or used a knife, which can be
regarded as a fatal weapon (considered of course together with the
location of the assault on the body and the
and the extent thereof). A1 used a knobstick with which he hit PW 3
on the head. There is no indication from the medical report or
otherwise that the wound had possible fatal consequences.
other injuries were themselves not of a severe nature i.e. on the
lower pat of the leg and the 4th finger on the left hand. There is no
indication that these were serious injuries and from which an
intention to kill can be inferred. Furthermore, had it been A1's
intention to kill PW 3, he could have done so even after the
intervention of PW 2. He could for instance have attacked PW 3 inside
both the cooking hut and the sleeping hut but he did not.
cannot be said, as Ms LaNgwenya argued that the intention to kill
should be inferred from his setting the huts alight and locking the
doors to the huts. I say so primarily for two reasons. First, I have
rejected the evidence of PW 1 and PW 3 to the effect that the doors
were secured by Al for reasons aforementioned.
had it been the Crown's case that in addition to the allegations made
in Count 1 and from which an intention to kill could be inferred,
specific allegations relating to the burning of the huts and the
securing of the doors by Al should have been specifically averred. An
accused person must know from the allegations contained in the
indictment the case that he is to meet in order to adequately prepare
for it. It would be unconscionable, indeed unjust, for the Court to
allow factors which could and should have been pleaded but were not,
to be used as a basis to convict an accused of a crime when these
only come to light in evidence.
view of the nature and extent of the injuries as reflected in Exhibit
"A", the nature of the weapon I found for a fact to have
been used, it is my finding that the Crown has failed in making out a
sufficient case for the conviction of the accused person on Count
One. I however do find him guilty on the alternative count of assault
with intent to cause grievous bodily harm and to which both had
crime of arson consists in one unlawfully and intentionally setting
on fire immovable property an immovable structure with intent to
injure another. See R. v DUMSANE SOLOMON DLAMINI 1979-81 SLR 193 (per
is in my view abundantly clear that the elements of this offence have
been proved by the Crown beyond a reasonable doubt. The evidence of
PW 1 was very clear in this regard, namely that the accused went to
her grandfather's hut and took burning pieces of wood and set the
cooking hut alight. This evidence was corroborated by PW 2. Al did
not contest their evidence in this regard until his sojourn in the
witness box. As indicated earlier, his explanations as to how the
cooking and sleeping huts were set alight I have rejected as an
afterthought. In this regard, it is my view that PW 1, PW 2's
evidence in this regard, which stand uncontroverted must stand.
is also worth referring to excerpts from my notes in which a battle
of wits between Ms LaNgwenya and Al is recorded, regarding this
aspect of the matter.
evidence on the record is that you set both huts on fire and you did
not dispute this?
I did not know that there was a fire lit somewhere else in the
homestead. I did not dispute this because it is our first time to
appear in Court.
burnt down the two huts with intent to see them burn down?
was not intended.
did you think would happen if you used fire on a thatched roof?
occurred after that it was going to burn.
the foregoing, and in view of the entire evidence, it is my finding
that the accused person intended burning the huts to the ground. No
other conclusion can in the circumstances be reached than that he
burned the huts intentionally and in order to get even with PW 3 who
had falsely accused his friend of eating her chicken. Al went to
another hut, picked up pieces of burning wood, set the roof of the
cooking hut alight and after that hut was razed to the ground, he
took burning grass from this hut and set the other alight. This is a
case of actual intention. At the least Al ought to have foreseen and
in fact did foresee the consequences of his act but was reckless as
to whether they materialised or not.
the entire episode was unintended, A1's actions would have suggested
otherwise. He did nothing to assist PW 3 as she was caught in the
burning hut. He also did not bother to assist in putting out the fire
or in salvaging whatever items could be salvaged from the cooking
hut. According to the evidence, no property was actually salvaged.
What I have just said above applies with equal force to the cooking
hut. Furthermore, nowhere in the evidence neither the Crown's nor the
defence case can it be shown or suggested that the accused person
exhibited any signs of remorse, particularly in regard to the arson.
To the contrary, the evidence is that A1 was in a belligerent and
highly abusive mood.
S v V 2000(1) SACR 453 at 455 a - c Zulman J.A. stated the applicable
principles at the close of the entire case as follows :-
is trite that there is no obligation upon an accused person, where
the State bears the onus to convince the Court. If his version is
reasonably possibly true he is entitled to his acquittal even though
his explanation is improbable. A court is not entitled to convict
unless it is satisfied not only that the explanation is improbable
but that beyond any reasonable doubt it is false. It is permissible
to look at the probabilities of the case to determine whether the
accused's version is reasonably possibly true but whether one
subjectively believes him is not the test. As pointed out in many
judgements of this Court and other courts the test is whether there
is a reasonable possibility that the accused's evidence may be true.
full appreciation of the import of the above excerpt, I am of the
view that A1 is guilty as charged. He is guilty of assault with
intent to cause grievous bodily harm and arson respectively.