THE HIGH COURT OF SWAZILAND
the matter between
THE CROWN: MR. NSIBANDZE
THE ACCUSED: MR CELE
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
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
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
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
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.
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.
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
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.
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.
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
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.
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.
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.
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
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
explained under cross-examination that her boyfriend had told her of
his involvement with the accused in the murder of Mrs Braun.
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.
stated that he caused the men to buy a chicken. He slaughtered the
chicken and mixed the blood with some muti.
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 later taken by the Police and detained for two days. This was in
connection with the visit to his homestead by the accused.
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.
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
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.
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.
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.
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
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.
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
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
homestead. He denied having confessed to Bethusile. He denied having
gone to Michael Dlamini's homestead to be cleansed.
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.
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
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.
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.
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
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.
find the three accused guilty of murder as charged on count 1.
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.