IN
THE HIGH COURT OF SWAZILAND
CRIM.
CASE NO. 51/99
In
the matter between
REX
VS
MAPHOSUKUFA
MAGONGO
Coram
S.B. MAPHALALA – J
For
the Crown MR. J. MASEKO
For
the Defence MR. G. MASUKU
JUDGEMENT
(11/11/99)
Maphalala
J:
On
this indictment, the accused person is charged with murder of one
Magwazane Magongo at Ngcina area in the Lubombo District on the 6th
September 1998, by stabbing him to death with a knife.
He
denies this charge, Accused through his attorney tendered a plea of
guilty of the crime of culpable homicide. However, this plea was not
accepted by the crown. The crown then led evidence to prove the crime
of murder.
At
the commencement of trial it was placed on record by consent that the
following issues were admitted:
The
identity of the deceased is not in issue
The
cause of death is not in issue
It
was admitted that the knife is the weapon used to kill the deceased.
It
was also agreed that the knife was found in accused homestead in the
presence of his wife LaMaziya who stated that
it
was left by the accused. It had bloodstains on it and it was
recovered on the same day of the incident.
2
The
knife was entered as exhibit "1" to form part of the crown
case. The postmortem report was entered as exhibit "A".
The
crown called a total of five witnesses to prove its case.
The
first witness called was PW1 David Mathunjwa who told the court that
he knew both the accused and the deceased. In the afternoon of the
6th September 1998, he was seated at a certain homestead enjoying
some alcoholic beverages when the accused came along carrying a
knopstick and a knife. This was a Gamedze homestead. PW1 was in the
company of Sisane and LaMaziya. The accused person told them he was
going to stab Sikelela, the deceased and one Landrover. PW1 asked the
accused to hand over the knife to him as he could see that it was
going to land him into trouble. Then the three came along. PW1, the
accused and the others were seated in the kitchen hut imbibing in
this traditional brew called "Emambhawu". The accused then
came out of the hut carrying the knife and approached the three
people. The other two (Sikelela and Landrover) retreated and he
stabbed the deceased. Before the accused stabbed the deceased the
deceased was facing him with his head facing downwards. PW1 told the
court that there was no fight prior to the stabbing. There is nothing
which the deceased said before he was stabbed by the accused.
Sikelela wanted to find out from the accused what they had done.
After that he stabbed the accused on his left breast. Thereafter they
went to call the deceased uncle who instructed them to take the
accused to the police. They got a motor vehicle to the police station
but it broke down along the way to the police station. He told the
court under those circumstances the accused ran away.
He
was the cross-examined by the defence.
It
was put to him that it was not true that the accused was carrying the
knife openly but he had it in his pocket. However, this witness was
adamant that accused person was carrying the knife openly. It was
also put to him that the accused told PW1 that he (accused) prior to
his coming to the Gamedze homestead had survived a serious assault by
three people an hour prior to his arrival at the Gamedze homestead.
To this question he answered in the affirmative. The defence advanced
was that the accused was attacked by the three prior to this
stabbing. These three people at another homestead had made
allegations that of witchcraft. PW1 did not have knowledge of what
happened prior to the accused corning to the Gamedze homestead where
he was with others drinking "Emambhawu" A question was put
that accused never threatened anyone at the Gamedze homestead but the
witness stuck to the story he gave in his evidence-in-chief. He was
further asked about what happened when accused was conveyed to the
police. However, in my view this has little bearing on the matter.
The
crown then called PW2 Khekhe Tsabedze who was at the Gamedze
homestead on the day in question enjoying some drinks with other
people. He testified that he did not see the actual stabbing. He
heard an alarm being raised that the accused was killing the
deceased. He then rushed to the scene where the deceased was. After
the stabbing the accused ran away
3
and
they chased after him until they arrested him at his homestead. The
witness further related at length how the accused escaped from their
custody.
He
was cross-examined briefly by defence counsel but nothing much was
revealed touching on the material aspects of this case.
The
crown then called PW3 Landrover Matse who is a Chiefs runner
(umgijimi). He told the court that on the day in question he was at
the Gamedze homestead when he saw the accused coming from the hut
where people were drinking carrying a knife and he stabbed the
deceased who was outside. The accused then licked the knife and left
the homestead and said those dogs who wanted him should follow him.
PW3 said he did not know why the accused stabbed the deceased. The
deceased had not said anything to the accused prior to the stabbing.
He told the court that the deceased never threatened the accused
person. Prior to that he saw the accused person chasing after
Sikelela and accused was carrying a knife. He asked him why he was
chasing after these children. Accused answered that these people were
being disrespectful and also that they were children of a witch. This
witness then called the boys and asked them what they did to the old
man. They told him that they did not do anything to him. When this
conversation was taking place Sikelela and the deceased were coming
from their father who is the brother to the accused person. The
witness further identified the knife exhibited before court as the
knife, which was carried by the accused that day.
This
witness was cross-examined by the defence where it was suggested to
him that accused was threatened by the three boys prior to the
stabbing. This witness denied this. This witness further confirmed
under cross-examination that the accused licked the knife after
stabbing the deceased.
The
crown then called PW4 Sikelela Magongo who told the court that the
accused person was his uncle. The deceased person was his older
brother. On the 6th September 1999, they went to the Gamedze
homestead in the company of PW3. The accused came out of the hut and
he ran towards them. PW3 retreated and the deceased did not see the
accused advancing towards them. The accused person had a knife with
him and he stabbed the deceased with it and then licked the blood
from the blade. He then went inside the hut to retrieve his
knopstick. This witness told the court that prior to the stabbing
there is nothing that was said between them.
He
further enlightened the court that prior to the incident at the
Gamedze homestead they were at a Matsenjwa homestead where the
accused opened a knife and wanted to stab him. He ran away. The
accused told them that they should leave the Matsenjwa homestead as
he was in a foul mood. He agreed and they left with the others. As
they were walking in some fields the accused came and walked between
them. He opened a knife and chased after them.
This
witness was also briefly cross-examined by defence counsel. It was
put to him that the three (PW2, PW3 and PW4) are the ones who started
the
4
whole
fracas by pelting the accused with stones and insulting him that he
was a "witch". As a result of all this abuse the accused
got so annoyed that he lost his self control. The witness denied all
this and stuck to his story he gave in-chief.
The
crown then called its last witness PW5 3459 Rueben Mbatha who is the
arresting officer. He told the court that he arrested the accused at
the homestead of a certain Thwala who is an inyanga (traditional
healer).
This
witness was briefly cross-examined and nothing of consequence was
revealed.
The
crown then closed its case.
The
accused gave evidence in his defence under oath led by his attorney
Mr. Masuku. He gave a lengthy account on what transpired that day
from the time he was attacked by the three with stones up to the time
he was arrested in connection with this offence. The long and short
of his story is that he was attacked by these people and as a result
of this attack he lost control. He does not deny that he stabbed the
deceased. His defence is that he did so defending himself.
He
was cross-examined at length by the crown. He denied most of the
suggestions put to him by the crown.
The
court then heard submissions from both counsel. The crown is of the
view that it has proved it case beyond a reasonable doubt. It is
common cause that before the stabbing of the deceased there was a
dispute between the two at the Matsenjwa's homestead. The evidence of
Sikelela Magongo has been materially corroborated by that of
Landrover. The accused story cannot be reasonably be true. The
accused person was portrayed as a sickly person suffering from asthma
and is also old and there is no way he could have outran these young
men taken that they were the aggressors. That accused defence of
self-defence cannot stand in the circumstances. The court was
referred to the case of R vs Joan Ndlovu 1970 - 76 S.
L.
R.
389 where the case of S vs Matholeni 1976 (1) S.A. 403 was cited with
approval in this connection.
The
defence on the other hand hold the view that accused was pelted with
stones in the fields and tried to run away to the Gamedze's
homestead. He suffered an unlawful assault from the deceased group
and decided to seek refuge at the Gamedze homestead. As the accused
was relating to the occupants therein what had befallen he saw the
three people who had earlier on assaulted him. In his mind he
believed that these people were coming to kill him. He then armed
himself with a knife and then the fatal stabbing took place. Mr.
Masuku referred the court to the case of Rex vs Zikalala 1953 (2)
S.A. 568 (AD) where Van Der Heever J
A
cautioned that courts must be careful to avoid the role of arm chair
critics wise after the event, weighing the matter in the secluded
security of the court-room, by putting themselves in the position of
the accused at the time of the attack. This does not let in an
5
element
of subjectivity, it only means that the matter is considered
objectively in the particular circumstances of the case, (see also J
M BurcheU South African Criminal Law and Procedure Vol. 1 on General
Principles of Criminal Law (3rd ED) at page 79 and the cases cited
thereat)
All
in all it is Mr. Masuku's contention that these things happened at
the spur of the moment.
These,
therefore are the facts and the legal issues before me. I have
carefully considered them in reaching my conclusion in this case. It
appears to me to be common cause that the accused stabbed the
deceased with a knife in the chest on the day in question. It is also
common cause that the deceased died as a result of the stab wound. It
is also common cause that the knife found in accused homestead was
the knife used by the accused in stabbing the deceased to death. The
parties in this case seem to be at ad iddedum as regards these
material facts. The only point of divergence is - under what
circumstances did the stabbing take place. The crown hold the view
that the accused should be found guilty of murder and that his
defence advanced that of self defence should be rejected as an
afterthought. On the other hand the defence is of the view that in
the circumstances the accused acted in self defence. I respectfully,
disagree with the latter view. Here we have the evidence of a number
of witnesses for the crown who corroborate each other in all material
respects.
PW1
David Matsenjwa who was a truthful and credible witness told the
court he came to the Gamedze homestead carrying a knife and a
knopstick and told the drinking party there that he was going to stab
Sikelela, the deceased and Landrover. When he asked him to hand over
the knife to him for safe keeping as he (PW1) could see that it was
going to land the accused into trouble. The three then approached the
drinking hut and the accused came out with his knife and advanced
towards them. The other two retreated but deceased who was facing
down did not see the knife and was subsequently stabbed by the
accused. There was no fight between the accused and the group of
three prior to the stabbing. PW2 Khekhe, the chief's runner told the
court that although he did not witness the actual stabbing he
answered an alarm that the accused was killing the deceased. The
accused ran away after committing the act. PW3 (Landrover Matse) and
PW4 (Sikelela Magongo) saw the actual stabbing and told the court in
almost the same words that after the accused had stabbed the deceased
he licked the blood from the knife's blade. PW3 has no reason to
fabricate a story against the accused. He is a chief's runner in the
area in charge of enforcing law and order in that area. He has
nothing to gain by giving such damning evidence against the accused.
As for PW3 the accused is his uncle. Although from the evidence there
might appear to have been an altercation between the accused and the
deceased group in my view I do not think the accused was justified in
acting the way he did. In any event it is trite law that any measures
taken by the accused after the complaint's attack has ceased would be
retaliatory rather than defensive an, therefore, unjustified (see J M
Burchell (supra) at page 74 and the cases cited thereat).
6
The
circumstances surrounding the fatal attack do not suggest that the
accused was threatened at that stage. The defence of private defence
cannot exonerate the accused in the present case and it thus fails.
In
the result, I hold that the crown has proved its case beyond a
reasonable doubt that the accused did unlawfully and intentionally
kill Magwazane Magongo by stabbing him with a knife and he is thus
guilty of the crime of murder.
S.
B. maphalala
JUDGE
