THE HIGH COURT OF SWAZILAND
AT MBABANE CRIM. T. NO. 167/94
the matter between:
THE CROWN: MR. NGARUA
THE DEFENCE: MR. SMITH
accused are charged in count 1 with murder in that on the 4th
October, 1991 they murdered Siphiwe Magongo. In count 2, no. 1 is
charged with the crime of robbery in that on the 4th October, 1991 he
robbed Jabulane Zwane of one jacket.
post mortem report was handed in by consent. The cause of death is
stated as multiple injuries. Paragraph 2 of the report which is
headed "External Appearance" reads as follows:
abrasion forehead right side, periorbitally bilaterally, both cheeks
side of the neck bilaterally, more marked left side, over and below
the point of the chin, around the left shoulder region posterior
aspect left elbow region, lateral
chest left side, distal third, lateral aspect pelvis, prcximal third,
lateral aspect left knee joint medial aspect right knee joint to
right of the umbillicus medial aspect left breast, lower border right
breast, posterior aspect right elbow region, lateral aspect of chest
and abdomen, right side".
abrasions over the back have a linear appearance and those over the
face and left side of the neck are confluent areas. Blood specimen
were taken from the deceased and both accused.
Crown called Themba Dlamini the Chemist from the police. He received
the blood samples of the deceased, accused no. 1 and no. 2. He also
received a blood stained jacket marked Gabangani Matsenjwa, a blood
stained skipper, white in colour marked Billy Magagula and blood
stained brown shoes marked Gabangani Matsenjwa. He analysed the blood
samples. His findings were as follows:-
blood samples from deceased body was group A negative. The blood from
accused no. 1 was group B negative and the blood from no. 2 was group
O negative. The blood samples were found to be human blood. The blood
stains from the maroon jacket marked Gabangani Matsenjwa and the
blood stains from the shoes marked Gabangani Matsenjwa were group A
negative and matched with the deceased blood".
blood sample on the white skipper was not conclusive. He was
cross-examined and stated that he did the tests carefully and that he
repeated them several times to exclude any mistakes.
next witness was Constable Ezrome Simelane who said he went to the
scene of crime and found the dead body. He was told that the deceased
was Siphiwe Magongo who stayed with Mashaba. He went to Mashaba's
place. He then arrested no. 2. He cautioned him. He told him that no.
1 knew about the crime. He asked him to give him the clothes he was
wearing the previous day, i.e. the day the crime was committed. He
gave him a white skipper which was torn on the shoulders. It had what
appeared to be stains of blood. He also arrested no. 1. He cautioned
no. 1. He then told him that no. 2 committed the crime. He gave him a
pair of brown shoes and other items of clothing. The pair of shoes
had blood stains and human hair. The accused were then detained in
different police stations. He was cross-examined about the hair. He
said he did not know what happened to it. He handed it to
Sub-inspector Dlamini. He confirmed that the accused pointed at each
other. It must be observed here that he did not mention any injury on
no. 2's head.
Dlamini stated that on 5th October, 1991, he went to the scene of
crime. He observed blood stains which led to a maroon track suite. He
also found a white shirt, a pair of white shorts and a belt. These
were female clothes. These were the clothes which the deceased wore
the previous day.
then went to deceased body which was lying facing down. She wore
black pantihorse and a pant. She had no clothes on the upper part. He
handed all the exhibits to the laboratory. It must be pointed out
here that the shorts, white shirt and the hair were not examined by
the chemist. No reason was given by the police witnesses. They were
not among the list which was given to Themba Dlamini the chemist.
called Jabulane Zwane who had made a report the previous night that
he was robbed of the track suite top. He identified the track suite
found at the scene. He said he called accused no. 1 but this is
denied by Jabulane Zwane. He was cross-examined. He said when the
collected the exhibits, there were no suspects. he called Jabulane
Zwane who had made a report the previous day. He identified the track
suite. He said it had no blood when it was taken from him. He also
said there was an independent witness who was called to say he saw
the robbery. This witness was also not cross-examined about the
injury on no. 2. If no. 2 was injured and had a bandage, he must have
most probably mentioned the injury.
Zwane stated that a person came to him at Litchfield Grocery. He
grabbed him and clapped him. He pulled him. He asked what he was
doing, he did not answer him. He then hit back. They fought until
people separated them. The person took the top of the track suite.
The person was walking alone at the Grocery. Jabulane said he was
with four other boys. Jomo Maseko told him that no.l was Gabangani
went to the company of Security Guards and asked them to help him
take his track suite from no. 1. He could see no.1 when he made the
report to the Security Guards. The Guards told him to go to the
police. He went to the police and made a report. He gave them the
name of the accused. The police told him that they would call him
when they get the track suite. They told him that they know no. 1. He
was then called by the police. He identified the track suite. The
track suite was then dirty. He denied that no.l was present when the
was called at the Police Station.
cross-examination he described the fight. He told the court that he
let loose the track suite when no.l held it. He said he was seeing
no.l for the first time that day. He was then told his name by Jomo
Maseko. Maseko and he left no.l outside the Grocery and went to the
Security Guards and asked them to assist him. They told him to go to
the police. He said there was electric light. He denied that he is
mistaken about the identity of no. 1. He also confirmed that he did
not see no.l at the police station. he estimated the time to be about
Tala stated that he arrived at the bar at about 8:00 P.M. He saw the
deceased who was standing with no. 2. The deceased was no. 2's
girlfriend. He then saw no.l and no. 2 chasing the deceased. The
deceased raised an alarm. He was then cross-examined. He stated that
he came at about 8:00 p.m. and the chase started at about 9:30 p.m.
The bar closes at midnight. He denied that he was drunk when he saw
the accused chasing the deceased. He said he was outside the bar.
2 was also outside. He stated that he did not see any quarrel at the
bar between no. 2 and the deceased. He did not see the deceased hit
no. 2. He did not see any blood. It was put to him that the accused
and the deceased walked normally. He confirmed that they were chasing
the deceased. He said no. 2 and the deceased were standing outside.
No. 1 came out when the chasing started. He told the court that he
was estimating time. This witness gave his evidence well except that
he said there was no due box at the bar.
body of the deceased was discovered by witness Elphas Msibi. There
was no eye witness to the actual killing.
first witness for the defence was no. 1. He said he came to the bar
at about 6:00 p.m. and was with his friends. He said he remained at
the bar for about three house He stated that he separated with no. 2
when no. 2 was already injured. The bar was about to be closed. He
said no. 2 was with the deceased in the bar. They sat at the corner.
He saw no. 2 giving the deceased money to buy beer. He did not
explain how he saw this when he was at the corner. He said that after
that there was a noise. He went to no. 2 and the deceased. He asked
no. 2 what was happening. No. 2 told him that they were quarreling
over change. He asked the deceased why he was not giving no. 2 his
change. The deceased had a stick which she hid behind her legs. The
deceased then hit no. 2 with the stick. According to him this was
happening at the corner where no. 2 was sitting with the deceased. He
does not explain at what stage they went outside.
deceased then said she had done wrong to hit no. 2. No. 2 was then
bleeding. She said they must go to Mashaba's place. She was going to
give them money. They went to Mashaba who told them that he had no
money. He said they must report to the Security Guards. He was going
to give them the money the following week. He denied that they chased
the deceased and that the deceased raised an alarm. He said they
walked normally to Mashaba's house. He denied going to the Restaurant
and robbing and fighting Jabulane Zwane. He said they did not reach
the Security Office because no. 2 was bleeding profusely. He left no.
2 to look for transport to take him to hospital. He left no. 2 with a
group of people, Mashaba and the deceased. He got transport and came
back. He did not find no. 2. He does not know the name of the driver
who offered him transport. He thought no. 2 had gone to hospital.
When he came with the transport, he found the deceased, but did not
ask the whereabouts of no. 2. He asked the crowd of people. Mashaba
was also present. He then went home. He was arrested the following
day. He saw no. 2 at Malkerns. He had a plaster on his head. He did
not tell Constable Simelane that no. 2 knew about the crime.
cross-examination, he said he spoke to no. 2 when he quarrelled with
the deceased. He was sitting at one corner and no. 2 and deceased at
another corner. The distance between them was the court's length. He
said he could see all that no 2 was doing although there were tables
and people dancing between them. He saw no. 2 when he gave money to
the deceased. He said the blood from his shoe came from no. 2 because
he was holding him.
denied that the blood group was confirmed by the chemist as the group
of the deceased. No. 2's group is 'O'. If it came from no. 2, it
would be group 'O'. He denied that he robbed Jabulane Zwane. He did
not give any reason why Zwane picked on him.
2 stated that he went to Litchfield Bar at about 6:00 p.m. He saw no.
1 in the bar drinking with his friends. He saw the deceased who was
his girl-friend. He drank with her inside the bar. He quarrelled with
the deceased over the change. They then went outside. No. 1 then
joined them. He asked what was the quarrel about. He told no. 1 that
it was over the change. The deceased then hit him with a stick on the
head. The deceased then said she was sorry. She then invited them to
go to Mashaba's house to get money. They went to Mashaba's house.
Mashaba told them that he had no money. He was going to give them the
following week. He denied that he assaulted or killed the deceased.
He said he wanted money to buy the last drink. Mashaba said they must
go to report to the Security where he would pay the money the
following week. When they thought of going to the Security office, he
was then bleeding too much. No. 1 then went to look for transport to
take him to hospital. No. 1 took some time to come back. They waited
for him at Mashaba's house. They left and found Fraser and Vusie who
gave him treatment. He then went home. It has been established from
Fraser that he shares a boundary with Mashaba. He did not return to
Mashaba's place. He was arrested by Constable Simelane. He gave him
the white skipper. The skipper was soaking in blood. The blood came
from his wound.
must be observed here that the skipper had a few stains of blood. If
it was soaking, it would appear on the skipper. He denied that he
mentioned no. 1 to Simelane. He left the bar with no.1 at 9:00 p.m.
cross-examination, he said the deceased hit him with the stick when
they were outside. He did not see where she picked the stick. She
then invited them to go to Mashaba who would give them the money. He
denied that the deceased was chased and raised an alarm. He was taken
by Vusi to his home. When asked by the court he said the police did
not take him to hospital because they were still investigating. He
said he told his attorney about the injury. He was surprised why he
did not question the police about Fraser and Vusie. He told Inspector
Dlamini. He was surprised that Dlamini was not cross-examined by his
attorney about the treatment.
third defence witness was Fraser Ngwenya who stated that at about
9:00 p.m. he met no. 2 walking like a drunk person. He saw that he
was injured. He took him to his house. The wound was not big. He
removed his hair and put a plaster on the wound. He gave him some
pain killers. He took him half way past Litchfield Bar. He then left
with Vusi. He said if there were people next to Mashaba's place could
have seen them.
cross-examination he said he was not related to the accused. He saw
the accused coming from Mashaba's side. He was drunk. His clothes had
blood. He had blood on his face. The clots of blood on his hair were
dry. He shaved him and had to use water to remove the clots which had
dried up from his hair. The bleeding was not profusely.
stopped it and put a plaster on the wound which was small. He said
no. 2 hanged his head on the right side but there were no stains of
blood on the right side of the skipper. He denied that he discussed
the case with the accused.. He said the wound was small, it did not
warrant to go to the clinic. He said if there were people in the
vicinity, he would have seen them. He did not see no. 2 sweating.
Vusi Ginindza confirmed that no. 2 was treated and taken home. He
thought that no. 2 was drunk.
name of Mashaba was mentioned by a number of witnesses but he was not
among the witnesses. The court then discovered that he was first
arrested and released. The police and prosecutors did not call him as
court then called Mashaba as its witness to clarify some points. It
was revealed that he was in court when Tala was giving evidence but
did not remain for the rest of the trial.. His presence in court did
not affect his evidence because what the court wanted was supported
by the accused. He said deceased entered his house and threw her
shoes. She then went out. Two men were shouting outside The two men
were no. 1 and no. 2. He came out. The two men told him not involve
himself because he was not where they were coming from. They said
they were taking her to the police. They said they had quarrelled
with her. He said the accused were normal but they were shouting.
There was no light there. They took her and went towards the
security. He fetched his jersey and followed them but did not find
them at the security offices.
by the defence he said the deceased came running and opened the door
and threw her shoes. He went out to see what was happening. He saw
the accused. They left with her. They pulled her. He said she was her
lover. He then followed them to the security offices but did not find
them. The deceased did not explain what was happening. No money was
mentioned by any of them. He was also cross-examined by crown counsel
and confirmed what he said in his evidence in chief and
cross-examination by defence. He confirmed that the deceased wore
white shorts but did not remember what she wore on top. He denied
that the deceased was left with him, no. 2 and other people.
is the evidence which was led at the trial. The accused do not deny
that they left with the deceased from the bar to Mashaba's place.
They introduced the injury to no. 2 during the course of their
defence. They also led evidence of Fraser and Vusi in its support.
What is surprising is that the defence did not cross-examine the
police about the injury on no. 2. The skipper which the accused said
was soaking in blood does not support his version. The chemist was
not able to make any conclusion on the blood which was on the skipper
because there was not enough blood. The defence did not question the
police and the chemist about the soaking blood. With this in mind the
court will examine the case of each accused and assess whether their
version can be reasonably true.
have said that time is not very important in this case because most
of the witnesses estimated time. All the events could not happen at
the same time.
example, Jabulane Zwane estimates time to be 8:00 p.m. when he was
robbed by no. 1. This is a fact that he was robbed or fought with
someone. This is confirmed by the police because he reported the same
night. No. 1 estimates that he arrived at the bar at 6:00 p.m. and
remained for three hours which means he remained until 9:00 p.m. No.
2 estimates that he arrived at 6:00 p.m. but does not state when he
left. Tala arrived at about 8:00 p.m. The accused chased the deceased
at about 9:30 P.M. Fraser and Vusi met no. 2 at about 9:00 p.m. It is
clear that all these times are estimated. No reliance can be placed
1 is first met by Zwane at the grocery. He fought with Zwane. Zwane
reported to the police the same night. His story is supported by the
police who told him that they knew the accused. They would call him
after they had arrested him. Zwane was given the name of the accused
by Jomo Maseko. He was called by the police to identify the track
suit which was found at the scene of crime. He last saw it when no. 1
left with it.
1 and no. 2 admit that they were in the bar with the deceased. They
were also seen by Tala. The only dispute is whether they left the bar
chasing the deceased or walked normally. No. 1 told the story that he
was sitting at a corner which is the length of this court from no. 2
but was able to see what no. 2 was doing even though there were
tables in between and people dancing. He was able to see no. 2 giving
the deceased money to buy beer which started the quarrel. They
described the fight which was rot witnessed by Tala. The observation
of no. 1 inside the bar cannot be easily believed.
went to Mashaba's place. Their arrival is confirmed by Mashaba. Their
story that they went to Mashaba to get money at the invitation of the
deceased is not supported by Mashaba. Mashaba said they were in a
fighting mood. They told him not to involve himself. They said they
were taking the deceased to the police. They went towards the
security offices pulling the deceased. He followed them to the
security but did not find them. The deceased was last seen by
Mashaba. leaving with the accused.
1 told his story that he left no. 2 with Mashaba, the deceased and
other people to look for transport. He got transport but did not find
no.2. He asked the group of people and got no answer. He did not ask
the deceased and Mashaba even though they were present. He does not
know the name of the driver who offered him transport. He then went
home. This story is hard to believe when one takes into account the
description of the injury by Fraser, the evidence of Mashaba and that
no. 1 did not know the person who offered him transport.
next day the body is found. The track suit which he took from Zwane
is found at the scene. When he is arrested by Simelane, he points at
no. 2. He gives the police the shoes he was wearing on the previous
day. They are found with blood which is the same group with that of
the deceased. He maintains that the blood came from no. 2. whose
blood group is different from that of the deceased. He maintains that
Simelane is telling lies that he mentioned no. 2. The evidence shows
that there are many factors which shows that no. 1 is a liar. The
factors show that his evidence cannot be reasonably true.
story of no. 2 is like that of no. 1 that he arrived at the bar at
about 6:00 p.m. He does not mention his time of departure. He
describes the quarrel with the deceased. He describes how he was
assaulted by the deceased. He says he was not annoyed by the assault
by the deceased. They walked normally to Mashaba's place. They were
told to go to security offices as I described in the case of no. 1.
Mashaba does not support this story. I have already described what
happened in case of no. 1. The two were the last people to be seen by
Mashaba leaving with the deceased. What is surprising is that his
defence counsel did not question the police about the injury. The
accused then said he left when no. 1 did not return with transport.
This story is not supported by Mashaba. The question of people
remaining with no. 2 is not supported by Fraser and Vusi because they
say they did not find any people in the vicinity of Ksshaba's house.
They met the accused no. 2. They did not know where he was coming
from. He did not tell them how he recieved the injury. According to
Fraser, there were dry clots of blood on his hair which show that he
was not bleeding profusely at the time. He did not tell them where he
was coming from at that time. Mashaba had seen him leaving with the
deceased. His story, taking it together with that of no. 1 and
Mashaba's evidence cannot be easily believed. If he met Fraser and
Vusi, it must have been after the deceased was killed.
find that the two accused are responsible for the death of the
deceased. I have now to consider whether they had an intention to
kill. It is clear that they were at the bar for a long time. The
nature of the injuries show that the deceased was dragged either
before she died or after her death. The post-mortem does not show any
blows or hard blows. I have come to the conclusion that because of
the amount of liquor they had taken, they are guilty of culpable
count 2, I am satisfied that no. 1 was properly identified. I find
him guilty of robbery as charged.