THE HIGH COURT OF SWAZILAND
Case No. 208/94
the matter between:
THE CROWN: MR. NGARUA
DEFENCE: MR. E. MAZIYA
accused is charged with the murder of Mbongiseni Shiba Sibandze. The
accused is a young girl who according to her evidence will finish 15
years in September this year. The deceased was a boy of 17 years as
is estimated by the doctor.
medical report was handed in by consent and marked exhibit 'A' . The
doctor states that the deceased died of shock and haemorrage as a
result of stab wound to the left lung and heart.
Crown then called two witnesses. Then the accused gave evidence. The
Crown evidence is substantially the same with that of the accused
except the description of the stabbing and the assault. Zethu Mavuso
gave evidence that on the previous day, the accused told her that the
deceased was smelling because he did not wash.
the following day, the deceased and Zethu went to the river. The
deceased went to fetch water with a wheel-barrow. After filling the
containers, he started pushing the wheel-barrow home. Before he
proceeded far, the accused and Dorothy came to the river. Zethu told
the accused that the deceased said he would get her because of what
she said to him the previous day. The deceased then came back and
asked the accused why she said he was smelling and did not wash. The
accused said 'ask your friends, I did not say this'. The deceased
then assaulted the accused. He then again left her. He proceeded to
the wheel-barrow. The accused uttered some words and the deceased
said 'Are you still grumbling'. The accused then said 'come, I am
going to stab you'. The deceased then broke two sticks and went to
the accused. The evidence here is not the same. The accused said that
the deceased assaulted her, while Dorothy and Zethu say the deceased
did not assault the accused. At that moment the accused opened the
knife. The accused confirms that when she opened the knife she was
not being assaulted by the deceased. Dorothy told the deceased that
he must not go near the accused she is carrying a knife. The deceased
said 'she can not stab me' or, 'I can not be stabbed by this thing'.
According to Zethu, the deceased turned away ready to go. According
to Dorothy, the deceased stood facing the accused. The accused then
stabbed the deceased on the chest.
is no dispute that the deceased was stabbed on the chest. This is
supported by the doctor's evidence in that the deceased died as a
result of an injury to the left lung and heart. After the stabbing
the deceased held his chest and started walking and said 'You will
send me to hospital'.
accused said 'I have no money to send you to hospital'. The deceased
walked for a few metres and fell. He stood up and walked a few metres
and fell down and died.
accused is old enough to have apreciated that when she stabbed the
deceased on the vital parts of the body, the deceased would die.
There was no cause to stab the deceased with a knife. The deceased
used his hands and he also picked up the two small sticks. There was
no cause of defending herself with a knife. According to the Crown
evidence, when the deceased was stabbed, he was not assaulting the
accused. This shows that the accused had an intention to kill the
deceased, or she delivered the blow on the vital parts of the
deceased's body not caring whether he dies or not. The deceased then
died. She had a. chance of running away. I find the accused guilty of
murder as charged.
accused is 14 and will be 15 in September this year. I am not able to
postpone sentence because this crime is listed on the third schedule
which means that the court cannot impose a suspended sentence or
postpone the sentence. The deceased is a female. I cannot impose a
sentence of whipping. That could help because it would be an
effective sentence. What is left for me is Section 296 of Act 67 of
1938 which states that the court cannot impose sentence of death to a
person who is under the age of 18. It also empowers the court to
sentence such person to be detained at His Majesty's pleasure and if
so sentenced, he shall be detained in such place and under such
conditions as His Majesty may direct, and whilst detained shall be
deemed to be in full custody.
shall write a report to the Prerogative of Mercy so that this case
comes before His Majesty as soon as possible. You have been in prison
since the 30th June, 1994. The Prerogative of Mercy will make its
recommendation to His Majesty. You will be returned to prison and
kept at His Majesty's pleasure.