Rex v Dlamini (187 of 2014) [2021] SZHC 18 (22 February 2021)

IN THE HIGH COURT OF ESWATINI

witnesses immediately after the incident was consistent. The witness's identification of the Accused is found to be both credible and reliable.

JUDGMENT

1. The Accused pleaded not guilty to a charge of murder of an elderly woman, Tfutsile Manana, who was related to him, aged 75, allegedly committed on the 17 December 2013 at Ebuseleni, in the Shiselweni region. The Crown led evidence of 12 witnesses, at the end of which the Accused was called to his defence, the court having dismissed an application for his discharge made in terms of Section 174 (4) of the Criminal Procedure and Evidence Act of 1937, as amended.

2. PWl, Dr R. M. Reddy who conducted a post-mortem examination on the body of the deceased and complied an autopsy report, noted the following antemortem injuries: scalp contusion, thin subdural haemorrhage clot over brain base; wound under chin, wound on both cheeks and front neck; contused neck on both sides of neck, fractured cartilage, congestion of larynx trachea; contused area over upper left thigh-are black; on dissection he noted contused area of chest soft tissues. PWlconcluded that the cause of death of the deceased was due to complications from multiple injuries.

3. PWS, Majahonke Shongwe was a 14-year-old great grandson of the deceased who lived with her in a two-room house. He witnessed the attack on her on the night of the 17^th December 2013. PWS who was 10 years old at the time of the incident gave description of the house as a two-room, had two doors one main entrance door and another linking living room to the bedroom. He stated as they slept in the bedroom an intruder gained entry to the house by breaking a window of the other room, and then proceeded to

their bedroom. PWS rose and fled with the deceased in tow behind him. They both exited the bedroom door into the kitchen/living room, heading for the main door.

4. The intruder intercepted the deceased and grabbed her. PWS stood at the open entrance door, for a while observing his granny and the attacker, and saw that it was the Accused. The intruder manhandled the deceased, strangling her. PWS ran off shouting for help, and got to a Nkambule's homestead. PWS stated that he readily identified Accused as the attacker because he was well-known to him from an early age,¹ in the village.

5. PWS reported to Sabelo Nhleko² and her partner Sipho Nkambule ³ that the Accused was attacking and killing his great grandmother. The couple accompanied PWS to his uncle, Zombeni's home where he repeated contents of the report to Thulisile Manana⁴ who came to meet them at the gate, and then to Thulisile's husband Zombeni who was deceased's son. Zombeni was not called as witness because of health issues.

6. A team comprising PWS, Sabelo Nhleko, Sipho Nkambule, Zombeni, and his wife Thulisile, proceeded to the scene but, the deceased was nowhere to be found around her home. They searched for her to no avail until they retired for the night. The next morning PWS together with the the previous night's search team returned to the scene to continue the search. Zombeni's wife joined them later at the scene.

¹ PWS's early age.

'PW2.

³ PWlO

⁴ Nee Khumalo, PW3.

7. While approaching deceased's home they spotted the deceased crawling on her knees towards her house. During that time the Accused appeared from the side road and came to where they were standing. The Accused directed a question to PWS asking who was it that he said wanted to kill his great grandmother. It transpired ⁵ that Accused's confrontation followed from a conversation that Accused overheard between Zombeni and someone⁶ they went past, wherein the former mentioned PWS's report that the Accused attacked them with the deceased. While giving evidence-in-chief PWS said that his response to the Accused's question was that it was him, the Accused. He said that was his response despite that he was terrified of the Accused. The Accused then became aggressive and wanted to assault PWS. Zombeni cautioned the Accused that assaulting PWS would be tantamount to admission of guilt. The Accused joined PWS's entourage to deceased's house where they found the deceased struggling to climb steps leading into her house without success.

8. The deceased was carried and placed inside the house. PWS observed that deceased's neck and face were swollen. More people came to the scene including PW3. Police arrived and required PWS to narrate the incident in the presence of the crowd including the Accused. Eventually the deceased was taken away to the hospital.

9. PWS said he was able to identify the Accused at night with the help of light from the open door. There was additional light from the window that the assailant broke and used to enter the house. According to PWS there was moonlight outside. PWS's evidence that there was moonlight was supported by Sipho Nkambule who testified s PWlO.

⁵ During cross examination of PWS.

⁶ One Zandile Mvakali or Vilakati.

10. PW5 stood firm through a lengthy, intense and probing cross examination on his identification of the Accused. It was pointed out that it was not possible for him to identify the intruder at night with no artificial light in the house. He stated that he stood on the door steps with the open entrance door from where he looked with interest to see who the person was and what was happening to his granny. He did this within the quick sequence of the events which terrified him - the intruder breaking the window and entering their room, grabbing the deceased as she tried to flee and throttling her.

11. It was highlighted under cross examination of PWS that during the second trip to the scene and before meeting up with the Accused, PWS and others⁷ came upon one Zanele Mvakali standing in her yard, and that Zombeni had a chat with her in which he told her that PWS named the Accused as the assailant. It was put to PWS that it was after he overheard the conversation between Zanele and Zombeni that the Accused confronted first, Zombeni on why his name was mentioned, and then PWSon why he named the Accused as the attacker. The point that the defence sought to highlight was that PW5's response to the Accused was that he named him because the attacker was tall like him. PWS conceded that he played down his identity of the Accused and that it was out of fear of the Accused who was aggressive towards him and wanted to assault him. Questioned repeatedly by defence counsel, PWS insisted that he played down or backtracked on his positive identity of the Accused only out of fear induced by Accused's hostile approach. He testified that the presence of his uncle Zombeni gave him no sense of security against looming assault by the Accused who came straight to him in a threatening manner. It is noted that there was no dispute by the defence

⁷ Decease's son Zombeni, PW2, Sabelo and husband Sipho Nkammbule.

that Zombeni uttered words of caution to the Accused that if he assaulted PW5, that would be tantamount to admission of guilt. Zombeni's undisputed utterance gives credence to PWS's assertions that the Accused acted in a manner that made the witness believed that he was about to assault him. PW5' s feeling of intimidation by the presence of the Accused is also given as an explanation by the witness for his reluctance to implicate the Accused later when police openly interviewed him in front of a crowd that included the Accused. Despite this indication of deviation by PW5 from prior evidence on his identification of the Accused as the attacker, PW5 emerged as a tiuthful reliable witness. His explanation that he later did an about-face on the identity of the attacker due to intimidation by the Accused's aggression is not out of the ordinary, and did not taint his overall credibility as a witness.

12. PWS's evidence included loco inspection of the scene at deceased's house at Ebuseleni which was attended by the Accused, defence and Crown Counsels. At the scene PW5 pointed the room where they slept, which had the main/entrance door, two windows. From this room there is also a door leading to the adjacent room with two windows as well. The Court's observation of the scene clarified PWS's description in his oral evidence. The crown and defence posed questions and sought necessary clarifications.

13. PW2, Sabelo Irene Nhleko was member of community police. She was the first person, together with her partner, Sipho Nkambule⁸ to whom PW5 came and reported the attack on the night of the incident. Her evidence supported that of PW5 that he named the Accused as the person that was strangling the deceased. She and PWlO took PW5 to his uncle Zombeni Manana's

homestead where PWS repeated the report, first to Zombeni 's wife, PW3. A crew comprising Zombeni, PW3, PW2 and her husband, proceeded to the scene with PWS. However, they did not find the deceased at home. The only sign of her was her head scuff at the door, at about 21:00 hours.

14. The following morning the team went back to the scene to resume the search. They saw her from a distance crawling from bushes towards her house, about 400 metres away. The deceased was speechless, had injuries including a swollen head and neck. She was assisted into her house.

15. Police came to the scene and took her away. Five days later PW 2 learnt that she had died at Hlatikulu hospital. PW2 knew the Accused from his early childhood.

16. PW2's evidence under cross examination was that earlier in the evening on the day of the incident the Accused was at her home around 17:00 hours to buy beer and a cigarette which he consumed there. Accused left at about 20:00 hours, indicating that he was heading home at Mabhenyane's homestead.

17. PWl0, Sipho Nkambule's⁹ evidence supported that of PW2 and confitmed the report made by PWS. The highlights of his testimony are that PWS knocked at their door crying, and raising alarm, inyanzaleyo. PWS narrated that a person was strangling his granny at home. Asked who the assailant was, PWS responded unequivocally that it was Mabongi, the Accused. Having taken PWS to the home of deceased's son Zombeni, PWS repeated in tears the report that the Accused was strangling the deceased. They¹⁰

⁹ PW2's life partner.

¹⁰ PWlO, PW2, PW3, PWS.

proceeded with the Manana's to deceased's home where a search for her was conducted but the deceased was not found.

19. The following morning PWl0 solicited help of neighbours to search for the deceased. When he subsequently saw the deceased at her home she was speechless and in a grave condition. Explaining under cross examination why they torch light during the search for the deceased PWl0 stated that it was drizzling and that moonshine was occasionally on and then off.

20. PW3, Thuli Khumalo, nee' Nkambule, was deceased's daughter in law. She confirmed the coming of PW2, PWS and PWl0 on the night of the 17 December 2013, and what these witnesses related, in particular PWS's report that the Accused was strangling and killing the deceased, the futile search for the deceased which was called off till the next morning. After the deceased was found speechless with injuries, she and her husband who was deceased's son accompanied her in the police van to the hospital where she was admitted.

21. When PW3 and her husband visited her the next day¹¹ deceased had regained her speech. She sat up on the bed and narrated how the attack unfolded. They visited her again the next day,¹² and the deceased repeated the story that she narrated the previous day. This convinced PW3 that the deceased's story was true and that was not hallucinating the previous day. PW3 and her husband conveyed what the deceased told them to the police. When they visited her on the 5^th day, they learnt that she had passed away.

¹¹ 19 December 2013.

¹² 20 December 2013.

22. Defence counsel cross examined PW3 extensively on the contents of the statement that the witness made to the police on what she said the deceased told them at the hospital concerning the attack, including damaging allegations she made concerning the Accused.

23. The crown sought to introduce through the evidence of PWl !, Constable Bheki Tsela a statement obtained from the deceased in hospital, which implicated the Accused on the basis that it was a dying declaration. Laying the foundation for a decision whether the statement was admissible, the witness told the court that on the 20 December 2013 he received a message from Hlatikhulu hospital that the deceased had regained consciousness. He and another officer paid her a visit. She was lying in her bed, the top part of her body covered in bandages. She had swollen neck and face. She talked with difficulty and they had to take breaks during recording of her statement. Her voice was shaky and complained of extreme pain of which she said death was a better option. This gave the witness impression that she had given up hope to live. Although her condition looked bad the witness personally believed she would recover and survive. She narrated the events of the night of the 17 December 2013. The witness believed her statement to be true.

24. The alleged oral statement of the deceased to the police officer was excluded as hearsay because it failed to meet the requirements of a dying declaration, as an exception to the rule against hearsay. The court noted that the condition of the deceased as described by the witness was that she was in grave pain. Expression of pain alone does not necessarily give rise to the inference of anticipation of death. The deceased is quoted as having said she preferred death to the pain she was going through. I tend to agree with defence counsel

there was no indication from deceased utterances that she was anticipating imminent death.

Defence case

25. The Accused gave evidence in his defence. He denied committing the offence charged. He denied entering deceased's house, and attacking her. On the night that the attack took place he spent the early part of the evening at PW2's house drinking beer and smoking cigarettes he had bought there. From there he went to his grandfather Mabhenyane's home where he stayed at the time. According to his evidence under cross examination he anived at Mabhenyane's at 20:00 hours questioned further he changed and said that he arrived before 21:00 hours.

Analysis and Findings

26. The case centres on the identity of the Accused as the assailant of the deceased, by a single, 10-year-oold witness. The question is whether the evidence of identification of the Accused by PWS is sufficient. The defence submits that it is not. The crown's submission on the other hand is that the witness's testimony is sufficient and that it is competent for the court to convict on the basis of a single young witness's unconoborated evidence.

27. Section 236 of the Criminal Procedure and Evidence Act 67/1938 indeed provides that it is competent for a court to convict the evidence of a single witness. The courts have unpacked this provision and interpreted it to establish conditions under which conviction can be based on such evidence. The court in Rex v Mandia Eric Mkhonta¹³ confirmed this position with

¹³ Criminal Case No. 422/10

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regard to acceptance of a single witness to found conviction. MCB Maphalala J as he then was, quoted with approval from the decision in Khumalo & others v Rex¹⁴ wherein competency of a single witness and the conditions applicable for conviction based on it were restated thus,

"It is competent for the court to convict on the evidence of a single witness testimony ...but it is established law that such a conviction can only follow if the evidence of a single witness is clear and satisfactory in every material respect. "

28. In Khekhe Simelane & Four Others¹⁵ Leo JP quoted from the judgment in S

v Saul & others¹⁶ wherein Diemont JA state that,

"There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness ...the trial judge will weigh merits and demerits, and having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that truth has been told. The cautionary rule referred to by de Villiers JP in 1932 ...may be a guide to a right decision but it does not mean that the appeal must succeed if any criticism, however slender, of the witness's evidence were well founded ...It has been said more often than once that the exercise of caution must not be allowed to displace the exercise of common sense. "

¹⁴ 1979-81 SLR 259 at 264.

¹⁵ Appeal Case No. CA8/2000.

¹⁶ 1981 (3) SA 172(A) at 180E-G

29. Leon JP's conclusion concerning the above South African Appellate decision was that it was plainly right and that it must be applied and followed by the Court of Appeal ofEswatini.

30. The court was impressed by PW5 Majahonke as a steady credible witness with a reasonably good memory. He came across as a youngster with above average intellect. All the smTounding facts favour his version than the denial ofthe Accused. All the witnesses to who he first reported the incident shortly after the occurrence testified that he said the same thing that Mabongi was killing his great grandma by strangling. Indeed, the witnesses who came to the scene testified that the deceased had a swollen neck, among other injuries. Antemortem injuries recorded by PWl who performed post­ mortem examination on the body of the deceased include extensive injuries in the area of the neck, for instance: scab-formed-wound underneath the chin and on the front of the neck; contused area on both sides of thyroid cartilage, and fractured cartilage.¹⁷ PWS's evidence was clear that before he ran off to seek help, he stood by the door and looked to see what was happening to the deceased. He had a good look of the perpetrator with the help of moonlight filtering through the open door and the broken window that the intruder gained entry through. PW5 disputed what was put to him under cross examination that there was no moonlight because it was raining that night. The presence of moonlight was confirmed by PWl0 Sipho Nkambule who stated that it was drizzling that night with intermittent moonlight.

31. The Accused was not an impressive witness, he was shifty in his evidence. His explanation that he went home at 20:00 hours or 21:00 hours is not inconsistent with nor does it rule out his presence at scene of the crime. PW5

¹⁷ See page 2 of Exhibit "A" the Post-mortem report.

estimated that he and deceased went to bed around 20:00 hours. The attack could have been at any time thereafter. It is also noted that according to PWS he had already fallen asleep when the assailant pounced on them. He said the sound of breaking window woke him and the deceased up from sleep. There was an indeed an opportunity for the Accused to commit the crime after leaving PW2's home, be it that he left at eight or nine pm.

32. The court accepts the evidence of PW5, and finds that totality of the crown evidence proves beyond a reasonable doubt that the Accused assaulted the deceased, causing her injuries that led to her death a few days later. The nature of the assault was so severe that the deceased could neither walk or talk following the assault. The Accused should have realized that the assault on the deceased which focused on the upper part of her body, especially the neck, head, and chest could lead to her death, but nevertheless proceeded with disregard whether death ensued or not. Exhibit "A," Post-mortem report findings are instructive on the intention of the assailant in this case. In addition to injuries quoted in the preceding paragraph [29] of this judgment, it is further noted that the attacker inflicted fatal injuries that resulted inter alia, with scalp contusion and subdural haemorrhage over the brain. There was further contusion on the area of the chest.

33. Murder is the unlawful killing of a human being with intent to kill. For intention the requisite legal element is dolus which can take two forms - dolus directus and dolus eventual is. In the former the accused would be found to have directed his will to cause the death of the deceased, with actual intention to kill. In the latter the accused foresees the possibility of his act

resulting in death, yet he persists in it reckless whether death ensues or not.¹⁹ There is insufficient evidence of direct intention on the part of the Accused in this case. However, the extent of the assault on the deceased leads to a conclusion that the Accused must have foreseen the possibility of death of the deceased form his actions yet he persisted. In keeping with the subjective test it is apparent, from the evidence of the injuries that such foresight by the Accused existed. It is the conclusion of this court that indeed the nature of intent in this case was in the category of dolus eventualies.

[36] It is the finding of this court that the Accused is guilty of murder as charged.

Verdict: Guilty of murder.

D Tshabalala Judge

For the Crown: Ms B Ndlela-DPP's Chambers

For the Defence: Mr X Mthethwa - Bhembe Attorneys.

¹⁹ See Thandi Tiki Sihlongonyane Case No.40/97

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