King v Tsambokhulu and Others (NULL) [1995] SZHC 103 (03 August 1995);

IN THE HIGH COURT OF SWAZILAND

CRIM. CASE 187/94

In the matter between

THE KING

VS

1. CHARLES TSAMBOKHULU

2. PHILTON FAKUDZE

3. LEVY SHONGWE

CORAM: DUNN ACJ

FOR THE CROWN: MR. NSIBANDZE

FOR THE ACCUSED: MR CELE

JUDGMENT

3RD AUGUST 1995

The body of the deceased Edith Venus Braun, an elderly widow of Forbes Reef was found in a forest in the Luhhumaneni area on Monday 7th March 1994. The police pathologist, Dr Berson, conducted a post-mortem examination of the body on the 9th March 1994. According to Dr Berson the deceased died as a result of multiple injuries. The post-mortem examination report which Dr. Berson handed into court sets out in detail, the injuries that were found on the deceased. The injuries , mainly over the head and neck, were extensive. Dr Berson a highly qualified and experienced pathologist made some comments on the nature of the injuries

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he observed with suggestions as to what could have caused them. He described two of the injuries (wounds 9 and 10) as "knob stick" type 'injuries. He stated that the partial removal of the helix and lobe of the right ear were consistent with the use of a sharp edged instrument. The fracture of the mandible in relation to wounds 13, 14, and 15 and that of the hyoid bone were in Dr. Bernson's view consistent with excessive blunt force injury. He described the fracture of the hyoid bone as a classical example of manual strangulation.

It is common cause that the deceased lived alone at Forbes Reef along the Mbabane Pigg's Peak main road. She was described as a strong willed disciplined and highly independent person. She does not appear to have been popular with members of the Nkhaba community who are settled on Swazi Nation land adjacent to her farm. There appears to have been some ill-feeling towards her following what was seen as a refusal by her to enter into negotiations over a portion of her land which members of the community wished to acquire. According to Ian Cowie who was a tenant on the deceased's estate the relationship between the deceased and the neighbouring community was tense and uneasy.

Sandra Dlamini , an employee of the deceased told the court that she last saw the deceased at about midday, Saturday 5th March 1994. That was the time when Sandra knocked off work. She returned to work at 7.00 a.m. Monday 7th March. The deceased was not at home. Her house was in dissarray. Sandra made a report to the deceased's daughter who was

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employed at Malolotja nature Reserve and to Mr. Cowie. The deceased's daughter Catherine noticed that the deceased's motor vehicle was. not parked at the place where the deceased usually parked it. Catherine checked the logbook which was kept by the deceased and a comparison of the last entry with the mileage reading in the vehicle left a figure of approximately 70km un-accounted for. This resulted in the broadening of the area of the search for the deceased which had commenced after Sandra's report. As indicated earlier the deceased's body was found later that day at Luhhumaneni area.

The three accused stand before me, charged with the murder of the deceased on count 1 and with her kidnapping on count 2. The accused, all represented by Mr. Cele, pleaded not guilty to both counts.

Part of the evidence which the crown sought to adduce in evidence in support of the charges against the deceased consisted of statements which were made by each of the accused to judicial officers. It was the crown's case that these statements amounted to confessions to the crimes with which the accused are charged. The admissibility of those statements was challenged by the defence, necessitating a trial within the trial to determine that issue. I ruled at the conclusion of that trial that the statements had not been proved to have been made freely and voluntary and accordingly that they were not admissible as evidence in this trial. That ruling forms part of this judgment.

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The evidence relied upon by the crown in support of the charges is twofold. Firstly, the crown relies on evidence of the possession by the accused of property which belonged to the deceased and which had been kept in her house. Secondly, the crown relies on evidence of confessions which the accused made to some of the crown witnesses. It will be convenient to deal with the crown's evidence in that order.

Msunduza Mdzebele of Nkomazi area told the court that accused no. 2 was a boyfriend of Phindile Dlamini who lived at Mdzebele's homestead. It was Mdzebele's evidence that he and accused no. 2 had a discussion about old coins during March 1994. Accused no. 2 gave Mdzebele two old tickeys which Mdzebele said he would try to sell in South Africa. Sometime during April, accused no. 2 came with the police to Mdzebele's homestead and asked for the tickeys. The tickeys were given to the police.

Anderson Tsambokhulu, accused no.l's brother, told the court that he and accused no. 1 were at their parental home in the Majozi area when they were visited by accused no.3. Accused no.3 came with some medals which he said they should try to sell in order to get money. Anderson was asked by accused no.3 if he could find a buyer for the medals. According to Anderson, accused no.3 explained that he had collected the medals from the home of one James Sibindzi. The medals which were in a plastic bag, were hidden in the ground at the edge of the yard. Some 4 to 5 days thereafter, the police came with accused no. 1 and 3 and Anderson was asked to produce the medals that were hidden at the edge of the

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yard. There were 6 war medals and an old Chinese coin. The medals were all engraved with the name P.J. Braun and the number 229088.

On the 21st April 1994 accused no.3 led the police to his parental home at Nkhaba area. Certain enquiries were made from his mother which led to the police retrieving a plastic bag. -13 coins and two medals were found in the plastic bag. One of the medals bore the words South African Nursing Council.

The war medals and the nursing medal were identified by the deceased's daughter as belonging to her late father and mother respectively. She explained that the letters P.J. were the initials of Peter Joseph Braun, her father. The number 229088 was his army number. She further explained that her mother had been a nurse and had received a medal from the South African Nursing Council. Catherine and the house maid Sandra identified the old coins as being similar to a collection of coins that were kept by the deceased, which collection had gone missing with the deceased. They were not in a position to identfy the individual coins as such. Their evidence was, however, not challenged or placed in issue.

Turning to the second aspect of the crown's evidence Bethusile Dlamini, a girlfriend of James Sibindzi told the court that she knew the three accused and that they knew her boyfriend. It was her evidence that accused no. 2 came to her home during March 1994. Accused no.2 told her to tell

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James to runaway. He explained that accused no. 1 had been arrested and that he (accused no.1) might tell the police what had happened. According to Bethusile accused no. 2 explained that they had killed Mrs Braun.

Bethusile explained under cross-examination that her boyfriend had told her of his involvement with the accused in the murder of Mrs Braun.

Michael Mbalekelwa Dlamini a preacher and diviner told the court that he was visited by the three accused and a fourth man. They came to the homestead apparently on the directions of accused no.1. Accused no.l explained to Michael that his companions were in trouble and required his assistance. Accused no.2 and 3 and the fourth were asked by Michael to go into a certain room. Accused no.l remained outside but was also asked to join his companions by Michael. The fourth man explained to Michael that they had come in connection with the death of a white woman. He explained that they had not intended killing the woman and had only set out to rob her. The man also explained that they feared that the woman would be able to identify them. The man further explained that they were planning to escape from Swaziland. He said they required to be cleansed to prevent being haunted by the spirit of the white woman and to avoid detection by the police. The white woman was said to have been living at Forbes Reef.

Michael stated that he caused the men to buy a chicken. He slaughtered the chicken and mixed the blood with some muti.

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All the men with the exception for accused no.1 washed in the blood and muti mixture. Accused no.1 stated that he had not been involved and that he had only come to show his companions where Michaels's house was.

Michael was later taken by the Police and detained for two days. This was in connection with the visit to his homestead by the accused.

The cross-examination of Michael was careful and fairly lengthy. He did not come out too well with regard to the fee he charged. He had told the court that his fee was El,00.00 and that he was only paid E50.00. He explained that he realised that he would not be paid the balance and had as a Christian decided not to pursue the matter with the accused. He was not forthright in his explanation for not reporting the matter to the police. Experience has shown that most diviners and traditional healers will only volunteer information about their clients if they are approached after their clients are arrested. It is quite clear that had the accused not been arrested Michael would have looked to them for the payment of the balance of his fee and would in all probability have threatened to report the matter to the police if he was not paid.

Anderson Tsambokhulu, accused no.l's brother and whose evidence I have already touched upon in dealing with the medals which went missing from the deceased's house, told the court that accused no. 1 had confessed to the murder of the deceased. He told the court that accused no.1 had said

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he had been with accused nos.2 and 3 and James Sibidzi. It was his evidence that accused no.l gave details of how the deceased was killed and as to how her body was left in a forest. 'From the account of the murder given by accused no.1 to Anderson, Sibindzi is the one that struck the deceased with an axe.

According to Anderson when accused no.3 came with the medal to his (Anderson) homestead, accused no.3 also confessed to the murder of the deceased by the accused and Sibindzi.

Anderson remained unshaken under cross-examination. It was suggested to him that he had agreed to become a witness and to give false evidence in order to avoid prosecution in a case in which he had been charged with the possession of dagga. He admitted that despite the fact that he had been arrested in about April 1994 he had not at the time of this trial been prosecuted. He denied having fabricated the evidence against the accused.

The investigating officer Assistant Superintendent Ndlangamandla told the court of the arrest of accused no.1 and 3. The two accused were arrested on the 18th April 1994 whilst in detention at Tshaneni Police Station. Accused no.2 was arrested at the homestead of Msunduza Mndzebele on the 19th April 1994. According to Ndlangamandla accused no.3 led the police to his homestead on the 21st April and that is when the 13 coins and 2 medals were recovered from the pit latrine. On the 22nd April accused nos.1 and 3 led Ndlangamandla to Anderson, where the war medals were

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recovered.

It was Ndlangamandla's evidence that the three accused had been cautioned at the time of their arrest, that they were not obliged to say anything to the police in connection with the case they were told was being investigated by the police and that whatever they said would be reduced to writing and could be used at their trial. Ndlangamandla told the court that the accused voluntarily led to the various places where the coins and medals were recovered.

The accused each gave evidence on oath. Accused no.l told the court that he was assaulted by the police and asked if he had seen medals similar to the ones before court. He stated that he ended up saying he had seen similar ones in the possession of his brother Anderson. He explained that Anderson had come home with some medals which he had stolen in a burglary. It was accused no 1's evidence that he then led the police to his home in order for his brother to show the police, the medals. Accused no.l's evidence about the medals was not put to Anderson under cross-examination. Accused no.l did not refer to the evidence of the confession to his brother, in his evidence in chief.

Accused no.2 told the court that it was Mdzebele that had shown him two tickeys and asked if he (accused no.2) could sell them. It was his evidence that he was tortured by the police and questioned about coins. He eventually told them of the coins he had seen in Mdzebele's possession. He explained that he was forced to take the police to

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Mdzebele's homestead. He denied having confessed to Bethusile. He denied having gone to Michael Dlamini's homestead to be cleansed.

Accused no. 3 told the court that he was tortured during the interrogation. He was shown a coin and asked if he had seen similar ones. He was assaulted until he admitted having seen similar coins in his mother's possession. The police then told him to take them to his mother. He was forced to his mother's place. His mother told the police that she had thrown the coins she had, in the pit latrine. Accused no. 2 denied the confession to Anderson and that he had given any medals to Anderson. He denied the visit to Michael Dlamini's homestead.

The accused were all subjected to a lengthy cross-examination. Their denial of the crown's evidence centred on the allegation of torture by the police and that all the crown witnesses had fabricated their evidence. I have considered the evidence and I have no. doubt whatsoever about the truth of the evidence of the crown witnesses. Anderson is the brother of accused no.1 . There can be no reason for him to implicate his brother in so serious a crime solely for the reason of avoiding prosecution for the theft of bicycles and the possession of dagga. Accused no.1 confessed his involvement, in the murder to Anderson. It is a fact that the medals that were taken from the deceased's house were pointed out by accused nos 2 and 3 to the police. Anderson explained the circumstances under which accused no.3 had brought the medals to his homestead. The nursing

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medal found with the 13 coins at accused no.3's homestead belonged to the deceased. Accused no.2 led the police to his homestead. All that the two accused could say was that they were assaulted by the police and questioned about coins and medals. By sheer coincidence they then each remembered somebody whom they had either seen with similar coins or with whom they had had discussions about such coins. I find that it was not just a question of the accused leading the police to where the coins were but a matter of fact that accused nos. 2 and 3 were the person responsible for placing the coins where they were recovered. In the case of accused no. 2 I accept the evidence of Mdzebele that he (accused no.2) left the two tickeys for possible sale by Mdzebele. In the case of accused no. 3 I find that he left the war medals at the homestead of Anderson and that he also left the coins which were recovered in the pit latrine at his homestead. There just cannot be any reason for the crown witnesses to have fabricated this evidence particularly in the light of the fact that all the coins and medals were traced back to the deceased's homestead.

The evidence of the confessions by the accused to Anderson, Bethusile and Michael is in my view overwhelming. Accused nos. 1 and 3 confessed to Anderson and this was coupled with the introduction of the medals by accused no.3 and accused no1's attempt to explain knowledge of the medals by saying Anderson had come home with them after a robbery. Accused no. 2 confessed to Bethusile to tell Sibindzi to runaway and that accused no.l had been arrested.

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Michael was told of the murder. Although accused no.1 denied knowledge of it, he was present at Michael's homestead when accused nos. 2 and 3 were implicated. Whatever, the reason for accused no1's attitude at Michael's homestead, I accept the evidence of his confession to Anderson,

The accused have attempted quite unsatisfactorily to cling onto the evidence of assault which was led in the trial within the trial as an explanation for their confessions and the pointing out of the coins and medals. The pointing out has here been supported by evidence given by the crown witnesses of the prior possession by the accused of the coins and medals which they subsequently pointed out.

I find the three accused guilty of murder as charged on count 1.

Mr. Nsibandze for the crown conceded that there was no evidence to support the charge of kidnapping on count 2. The accused are found not guilty. They are acquitted and discharged on that count.

B. DUNN

ACTING CHIEF JUSTICE