THE HIGH COURT OF SWAZILAND
T. NO. 203/95
the matter between:
THE CROWN: MR. WACHIRA
THE DEFENCE: MR. FINE
accused is charged with the murder of Allen Khumalo. The doctor's
evidence was handed in by consent. The report states that the cause
of death was multiple injuries. At page 2 the doctor summarizes his
findings as follows:
Abrasions above lateral aspect left eyebrow, just lateral to the
right eyebrow, (small area) and medial border right upper arm
proximal third. Bruising 2 areas over the posterio lateral aspect of
the right buttock mid third region, below the right anterior iliac
spine and over the right anterior axillary fold. And at page 3 The
Skull subaponeurotic haemorrage left frontal region laterally,
occipital region left side and right occipital region laterally skull
and Chest Wall Fracture: Left ribs 2-11 posterior third and 8, 9, 10
fractured in midthird. Fracture right 3rd rib , proximal third.
Marked intercostal haemorrage in relation to the fracture sites. In
the Pleural cavities right he found large volume of free blood
present. In the abdomen there was a large amount of blood, large
amount of partially digested food with alcohol odour. That is what
the doctor's report states.
Crown then called Zephaniah Magagula. His evidence is that he saw two
cars. They passed each other in the opposite direction. The one which
was going towards Manzini was a Mercedes and the one going upwards
was a van. The mercedes then turned and followed the van. This was at
the T-junction where this happened next to the bar. He then walked
and followed these cars. He found them next to St. Pauls or the
church , they were parked. It took him about 6 minutes from where the
cars started chasing each other to where they had parked. The
mercedes was then parked facing Manzini and there were some Shangaans
there. He was able to identify the driver as the accused. He then
drove off. The Shangaans were helping or were trying to help the
deceased, the driver of the van. He suspected that they may
pick-pocket the driver of the van and he reported to the security
guard. The security guard was pw5. Then he left leaving the
Crown then called Alex Sithole who testified that he saw the two cars
and the van following each other. They stopped at the gate or near
the gate. The driver of the mercedes alighted and pulled out the
driver of the van and assaulted him. They went there and intervened.
The driver of the mercedes then drove off.
helped the driver of the van who is the deceased and put him on the
driver's seat. He was with pw3 Maria and Sargo. After they had helped
the driver, they then left. immediately they left, a policeman came
and searched them. He was invited to go and demonstrate how the cars
were parked. he demonstrated where the cars were parked and how they
were parked. I must mention at the inspection the accused parked his
mercedes where during the cross examination it was alleged it was
parked. There was a ditch next to where he parked. The purpose of the
cross-examination was to establish that two cars could not park
parallell there because there was this ditch. I must also mention
that in his evidence he gave a different story.
Crown then called Jao Msimangu. There is no material difference in
their evidence except the positions of the cars pointed different
spots. He confirms the evidence of Sithole that the driver of the
mercedes parked and opened the door and pulled the driver and
assaulted the van driver. They both say that the driver said he was
driving a government car he coula not pay for the damage. They warned
him to take the driver to the police. He also confirms that when they
left the deceased after they had helped him into the car, they were
searched by the police.
witness also says he took the keys and left them on the floor of the
van. This is not true because the accused said he took the keys to
the police, but this is not material defect. The two confirm seeing
the cars and the cars stopping and the driver of the mercedes who is
the accused then assaulting the deceased who is the driver of the
van. In short the two Shangaans saw the driver of the mercedes
assaulting the deceased. It is not denied that they were there.
the time when pw1 Magagula passed there, they were in the process of
helping the driver of the van into the van. That is why he said the
driver was hanging out of the door. This is confirmed by pw5 that is
the security guard ana Assistant Superintendent Dlamini, who found
the deceased in the car on the driver's seat. That explains why pw1
said that he found him hanging at the door. According to the accused
he left him on the ground. Assistant superintendent Dlamini then
handed the matter to the traffic police. The traffic police took him
(the deceased) to Manzini. There is no evidence that he was assaulted
at the police station and that he received any injuries on the way.
Crown has also led the evidence of Mondlane who was an inmate of the
cell. Mondlane said nobody assaulted the deceased in the cell.
accused gave evidence. His evidence supports pw1 that the two cars
passed each other in the opposite direction and the other car turned
and followed the van. He also confirms that they stopped near the
Methodist Church. He went to the van driver but he denies that he
assaulted the driver. The Shangaans say he assaulted him.
evidence confirm that the cars started from near the Bar (i.e.
Mthunyelelwa Bar)according to pw1, and they stopped next to the
Methodist Church, and accused went to the van but he does not
describe what happened.
to him he took the keys to the police because appeared drunk, he
could not talk to him. Now the Court has to decide whether the
accused assaulted the deceased. The two witnesses who gave evidence
that the accused assaulted the deceased do not know the accused and
they have no reason to tell lies against him . They were
cross-examined and they explained the events as they happened
especially Sithole. The other factor which must be taken into account
is that the deceased was driving and he collided with accused's car
and accused's car followed him and stopped him while driving. He
drove from next to Kamthunyelelwa Bar up to the Methodist Church.
After the accused had gone to him and taken the key according to the
accused he was left there. By then he could not speak nor walk. The
Shangaans say he assaulted him and he even tried to put him
underneath the mercedes and attempted to run him over. He was left
there and helped by the Shangaans into his car. This person was
driving up to that point. After the assault he could not stand up or
speak. The extent of injuries is described by the doctor. I am asked
to make an inference that the van driver (that is the deceased) might
have received the injuries before he collided with the accused's car,
that he was able to drive with these injuries, and that he might had
been assaulted by the Shangaans.
those are possibilities. Difford's case does not mean that I can come
and say I shall go to the moon tomorrrow and that I must not
disbelieve that because it is a possibility. The inferences referred
to in Difford's case are inferences which can be drawn on a set of
facts in a particular case.
we have the evidence that the deceased was injured to this extent,
and he was seen by the Shangaans being assaulted by the accused. We
also have evidence from the accused and the Shangaans and pw1 that
the cars were stopped at the Methodist Church.
was only when the accused left that the driver of the van, (the
deceased) was left helpless and could not stand up or speak. The
shoes he wore or bare feet could cause the injuries which were found
by the doctor. I mention the shoes because it was said sandals, and I
also mention them because when I wanted the police to identify what
the accused was wearing he began with sandals. It was surprising for
a police when you ask him what a person was wearing to begin with
shoes. That also confirms my thinking that if the deceased did not
die in police custody, this case may not have come to this court
because I cannot see what is important with shoes when you ask what a
person was wearing.
have also been asked to disbelieve one of the Shangaans because he is
a convicted person. When he saw the accused and the deceased he was
not a convicted person and he had nothing to gain. Mondlane is also a
convicted person, when he saw the deceased, he was in the cell. That
does not make him a liar.
this court, and it is known to everybody, prosecutors bring people
who are accomplices to give evidence and the court admits that
evidence. Many people who have been convicted give evidence in this
court. It was only by chance that these people were still serving
when they came to give evidence. So there is no substance that the
court must not believe these people because they are convicted
deceased died as a result of the blows delivered by the accused. The
reason being that the deceased collided with his car. The accused
must have been angry and annoyed. The accused demonstrated in court
that he is not a reliable witness. He said he was not annoyed when
his car was bashed by the van driver. It was the annoyance which led
him to assault the driver. If he was not annoyed he could have pulled
the driver into his car and taken him to the police.
I am asked to find him guilty of murder. 1 do not think in the
circumstances of this case he should be found guilty of murder. If he
ran over the deceased I would find him guilty of murder. The assault
was brutal. He had no right to assault the deceased, the police could
deal with the deceased but through extreme provocation and pride
according to the Shangaans 'you are driving a government car, you are
not even going to fix my car' then he assaulted him.
think because of the provocation and his going to the police after
the assault does not show an intention to kill though he was
reckless. May be he went to the police because he is known. They know
him through the sandals he wear.
find the accused guilty of culpable homicide.