THE HIGH COURT OF SWAZILAND
AT MBABANE CRIM. T. NO. 136/94
the matter between:
THE CROWN: L. NGARUA
DEFENCE: MR. A. CELE
accused are charged with the crime of murder in count one and robbery
in count two in that on 3rd April, 1994 they murdered Donkana Shiba
and robbed him Ms car.
post-mortem report handed as an exhibit by consent was marked exhibit
'C'. the cause of death is stated as gunshot wound of the neck with
haemorrage. Paragraph 20 of the report which described the external
appearance and condition of limbs. It states that:
the back of the neck, just to the left of the midline and 4,0 cm
below the external occipital protruberance is a 5 x 5 mm wound with a
small collar of abrasion. A track passes downwards, slightly to the
right, passes through the cervical spine, with vertebral fracture and
in ward bevelling of bone fragments. There haemorrage in the line of
the track. (2) Just below the point of the chin, 1.5 to the left of
the midline is a 7 x 1 mm irregular wound. The track from wound (1)
enters and passes through the mouth and exists through wound 2.
Ballistic Expert report was also handed in by consent and handed in
by consent and marked exhibit 'B'. The examination of the exhibits
was done by warrant officer Cornelius Lourens Stander Uitenweerde who
states that he received one .38 SPL calibre model 27 revolver, serial
no. AA150393. One .38 calibre fired bullet and one .38 SPL calibre
fired cartridge case.
examination of the .38 revolver he found that it was in working
order. The .38 calibre fired bullet was fired from the .38 revolver.
He could not establish whether the .38 SPL fired cartridge case was
fired from the .38 revolver.
crown led the evidence of detective Constable Ephraem Dlamini. He
stated that on 4th April, 1994, he went to where deceased body was.
He examined it and found that it had wounds on the back of the neck
and the chin.
wounds looked like gunshot wounds. He also noticed wheel marks next
to the body. He then went to a place where it was reported that there
was a car parked. The car was a colt grey in colour, registration
number, JWX331T. Its doors were open. On the driver's seat there was
blood. He then handed the car to the Scenes of Crime Unit.
then arrested no. 1 at his home. He introduced himself as a police
officer. He cautioned him according to the Judge's Rules. On 9th
April, 1994 he took him to the kraal of Thokoza pw5 Jabu Mkhwanazi.
He gave him a revolver-wrapped in a plastic. The revolver was found
in a near by field. It was a .38 serial no. 150393. He also took him
to the toilet where he retrieved a bunch of keys. He was helped to
take out the keys by Sonyboy Dlamini who gave a long stick to use. He
took possession of the revolver and the keys.
then went to Pongolo where with the help of R.S.A. police he arrested
no. 2. He searched no. 2's house. He found an empty cartridge of .38
in a jacket pocket. No. 2 told him that the jacket belonged to no. 1.
He also cautioned no. 2 according to the Judges rules. He then took
no. 1 and no. 2 to deceased's car and his home. At the car he used
the keys given to him by no. 1 to open the doors and to start the
engine of the car. At the deceased's home, he used the keys to open
the doors of the deceased house. The keys were identified by the
deceased's wife. He handed the exhibits to Nhlengethwa who took them
to Pretoria Forensic Examination.
cross-examination, he denied that he was implicating no. 1 to help
Thokoza and Sonnyboy. He maintained that he was with other officers
when no. 1 produced the exhibits. He admitted that he arrested Elija
Shiba and kept him for sometime until he was released on the orders
of the DPP. Lindiwe Ngwenya gave him the description of no.2. She
told him where to find no. 2. He also told the court that the spent
bullet and empty catridge were not returned from Pretoria.
Patrick Mamba confirmed the evidence of Detective Constable Dlamini.
He confirmed that he accompanied him throughout the investigation.
Constable Nhlengethwa stated that he went to the scene. He took
photographs of the scene. He found a spent .38 bullet in the car. He
took the exhibits to the ballistic experts in Pretoria. The spent
bullet and empty catridge were not returned from Pretoria. The
photographs and the plan were handed by him as exhibit 'A'.
Mkhwanazi who is also known as Thokoza told the court that no. 1 and
no. 2 were at her home on 3rd April, 1994. They left at 6:00 pm. No .
1 did not return. She saw him in the morning while she was in a bus.
cross-examination she maintained that Sonnyboy was her son. He was
not a Mkhonta. She denied that she asked the police to help her in
implicating no. 1. She also stated that she was not present when no.
1 gave the exhibits to the police. She was not cross-examined about
no. 1 coming to her home to fetch his trousers although the defence
knew that it would be alleged that no. 1 only went to her kraal to
fetch his trousers with the police.
last crown witness was Lindiwe Ngwenya. She stated that she saw no. 1
and no. 2 on the evening of the 3rd April, 1994. A masuku boy, no. 2
held her hand and greeted her. He asked where she was going. She told
him that she was going to Mbulungwane. He told her that he was going
to ask for a lift for him from a car which was coming. She told him
that she did not like lifts at night. He then stopped the car. He
said the driver must give her a lift. The driver said he was going to
Mbelebeleni. He asked the driver to drop her at Mafehla. She got into
the car and sat next to the driver. The accused also got into the car
and sat on the rear seat. The man behind the driver fired a shot and
said to the deceased he must give them the car. No. 2 held her and
pulled her to the bush and had sexual intercourse with her. No. 2
told her that he was working at Pongolo. She was able to identify no.
2 because he is like his brother who was her former boyfriend. This
was confirmed by no. 2 and Mfuneni Mamba a witness called by the
court. In cross-examination it transpired that she did not identify
no. 1 positively when she saw them during the shooting. She only
presumed that the person she saw at the Police Station was the person
who was with no. 2. She had no difficulty in identifying no. 2. The
crown then closed its case.
the close of the crown I indicated that the court would like to call
Lindiwe's boyfriend to establish if she went to him that night and
that she was out that night.
1 gave evidence on oath. He stated that he visited his mother at the
kraal of his stster Thokoza. No. 2 brought a. message to him about
his sister who was at Hlathikulu hospital. He left her kraal between
5 and 5:30 p.m. He did not state how many days he spent at Thokoza's
kraal. He denied that he pointed the gun and the keys to the police.
stated that the police implicated him in order to save Elija Shiba.
Thokoza and Sonnyboy asked the police to implicate him. He said he
only went to Thokoza's kraal to collect his trousers because his
track suit was dirty. His counsel did not cross-examine the police
about the visit. In short his defence is a bare denial against the
evidence of pointing given by the police.
also called Miriam Dlamini to show that Sonnyboy Dlamini is not the
son of Thokoza. She confirmed that but was not able to confirm that
no. 1. Thokoza and Sonnyboy were not in good terms with no. 1.
2 also gave evidence on oath. He admitted that he visited no. 1 at
Thokoza's kraal to deliver a message from his sister. They left
Thokoza's place before sunset. They parted with no. 1 along the way.
He went home and went to work at Pongola the following day. He denied
that he was present at the killing. He did not see Lindiwe Ngwenya
that night. He confirmed the police evidence that they arrested him
at Pongolo. They found a .38 empty cartridge in a jacket pocket
belonging to no. 1. He denied having sexual intercourse with Lindiwe
and identifying himself to her. He also denied that he told her that
he was working at Pongolo. He confirmed that he looks like his
brother. He also corfirmed that the police opened the doors and
started the engine with the keys. He also confirmed that the police
opened the doors of deceased's house with the keys. He distanced
himself from the killing.
court then called Funani Mamba, the boyfriend of Lindiwe Ngwenya. He
confirmed that she came back on 3rd April, 1994 at right. She was
shivering. She then told him something in the morning. He then told a
certain woman what she told him. The woman went to the police. That
led to the arrest of no. 2 at Pongolo. His evidence supports the
evidence of Lindiwe that she came to his place of work that night. He
also supports her that no. 2 looks like his brother. No. 2 said he
did not know Lindiwe's boyfriend and that the shop had no security
guard which was a lie.
have now to test the evidence of the crown and that of the defence
and see which is better. The crown evidence against no. 1 is that he
left Thokozani's place with no. 2 on the night of the killing. When
he was arrested, he pointed the gun which was used in the killing. He
also pointed the keys belonging to the deceased. It is also supported
by Lindiwe that a gun was used. The deceased was shot at the back of
the neck. The post morterm. also supports Lindiwe's evidence. Lindiwe
positively identified no. 2. No. 1 also also confirms that he left
Thokoza's kraal with no. 2. The bare denial by no. 1 cannot stand
against the evidence led by the crown. No. 2 has been identified by
Lindiwe Ngwenya. The evidence confirms that he left Thokoza's place
with no. 1. He was seen by Lindiwe at the killing. What Linidiwe told
his boyfriend led to his arrest. Lindiwe's evidence is supported by
his arrest, her boyfriend, the medical evidence and that he was with
no. 1 on the night of the killing. No.
stopped the car in order to carry out their intention to kill and
robbed the deceased. There was no reason for them to board the car if
they did not want to rob the deceased.
find that the crown has proved its case. The accused are guilty of
counts 1 and 2.
IN EXTENUATING CIRCUMSTANCES
accused have been found guilty of murder and robbery. The accused
were free to give evidence to show on the balance of probabilities
that extenuating circumstances exist. They elected not to give
evidence. Their counsel addressed the court. He argued that the
motive for the killing is not clear because the car which was subject
of the robbery was left near the scene. There is no evidence of
premeditation to commit, the crime as the car came by chance at the
spot where the killing took place. He also argued that because of the
absence of planning it cannot be said that the murder was committed
for the purpose of robbery. He submitted that the accused were under
the influence of liquor and liquor can be taken into account when
considering whether there are extenuating circumstances. He further
submitted on behalf of no. 2 that the degree of his participation in
murder can constitute a factor which can be considered as an
crown relied on the fact that the accused have not given evidence to
establish on the balance of probabilities that there are extenuating
circumstances. The crown alleged that the accused had failed to show
the court that they had no evil intent or malice in the killling.
court has now to consider all the relevant circumstances in
determining whether there are extenuating circumstances in the
present case. It cannot limit itself in the lack of motive,
premeditation, liqour influence and less participation by no. 2.
These factors are not supported by evidence from the accused and were
just given by counsel in his address.
accused still maintain that they are ignorant and they have been
framed by the police. There is evidence that the accused were from a
beer drink when the murder was committed but there is no evidence of
the degree of drunkenness. The weapon which was used was not obtained
during the drinking. The killing did not start from the quarrel which
arose during the drink. According to the accused, there was no
killing which was caused by their state sobriety. On the point of
absence of premeditation, the gun was carried by no.1. The court
cannot speculate why he carried the gun and why he used it for the
killing. As there is no evidence from the accused, the court cannot
conclude that the accused just carried the gun innocently.
degree of participation of no. 2 that he was not the person who
actually shot the deceased, and that he was from a beer drink taken
together may be considered as constituting extenuating circumstances
even though it presented in argument by counsel not supported by
reading the decisions R.V. TAYLOR L948 4 SA 702 AT PAGE 705; R.V.
MLARADZO 1966 2 SA 702, S V NDLOVU 2 692 AT PAGES 695-696 and S V
Sebeko 1968 1 SA 495....
have come to the conclusion that there are no extenuating
circumstances in respect of no. 1 and reluctantly found extenuating
circumstances in respect of no. 2.