IN THE HIGH COURT OF ESWATINI
JUDGMENT
Held at Mbabane Case No. 208/2014
In the matter between:
REX
VS
AYANDA NKHAMBULE
Neutral citation: Rex vs Ayanda Nkhambule & 3 Others [208/2014] [2021] SZHC 50 (12 April 2021)
Coram: FAKUDZE, J
Heard 30th March, 2021
Delivered: 12th April, 2021
RULING
RE: APPLICATION IN TERMS OF SECTION 174 (4) OF THE CRIMINAL PROCEDURE AND EVIDENCE ACT, 1938
INTRODUCTION
[1] Initially, the Application was directed at accused 2 and 4 following the closing of the Crown’s case. All the accused stand charged with the crime of Murder of one Sikhumbuzo Nkhambule. They all pleaded not guilty when arraigned and the prosecution called six (6) witnesses in a bid to prove its case against the accused.
[2] On the day that the Application was to be argued, the Prosecution Counsel indicated that he is no longer opposing the discharge and release of the 4th Accused, Mncedisi Gadlela. He therefore stands acquitted and discharged of the crime of murder. This Application is now only directed to the 2nd accused. The evidence of four crucial witnesses will be summarised.
SUMMARY OF EVIDENCE
PW 1 – Zakhele Nkhambule
[3] PW 1 was Zakhele Nkhambule who initially was accused 3. He was turned into an accomplice witness. His evidence was that him, accused 1, accused 2 and accused 4 proceeded to a nearby shop to buy airtime and cigarettes. Him and accused 4 went inside the shop leaving accused 1 and 2 outside. When he came out of the shop, he found Sikhumbuzo Nkambule (the deceased) and one Bonkhe Gamedze and accused 1 requested to talk to the deceased. They proceeded to talk behind the shop. Accused 2 and 4 took their journey home followed by accused 1 and the deceased. The two were having a chat and they were about 60 metres away. When accused 2 and 4 were half way the sports ground he (PW1) heard someone raising an alarm and shouting for help. It was already dark. PW 1 ran back to the place where the alarm was coming from and found accused 1 and the deceased wrestling. He then pulled accused 1 away. He left the deceased standing. He also stated that Lindokuhle Gadlela had been seen by accused 1 and 2 and when he saw them, Lindokuhle ran away and outpaced the two.
[4] On cross examination he maintained that accused no. 1 and the deceased were following them, that is the PW 1, accused 2 and 4. They never participated in the conversation between accused 1 and the deceased. He further stated that there was no conceived plan to attack the deceased.
PW 2 was Bonkhe Gamedze.
[5] He said that on the evening of the 23rd May, 2014, he saw the four accused persons arrive at the shop. Accused 1 and 2 were seen by him chasing Lindokuhle Gadlela who outpaced them. When they came back to the shop, they requested to see the deceased but Accused 4 never participated. They went behind the shop with the deceased and conversed there. PW 2 then heard an alarm after sometime and went in the direction from which it came. He found the deceased lying on the ground in a pool of blood. He then called the deceased’s brother, Philane Nkhambule and the police. No one else was found at the scene.
[6] Under cross examination, this witness conceded that it was already dark and he could not witness some of the events. He insisted that Mncedisi Gadlela was not there. He further confirmed that at the scene there was no one there other than him. He also did not see anyone flee the scene and that he last saw the three men behind the shop. He did not see Sikhumbuzo, the deceased walk towards the playground. When it was put to him that the deceased was with Ayanda when he was going to the playground, this witness said he did not see this happen.
PW 3 – SIHLE ZWANE
[7] PW 3 He stated that around 1845 hours he proceeded to the scene crime. He is a police officer. He went to scene after being told of what had happened. He presented a photo album of the scene.
PW 4 ZWELISHA DLAMINI
He said that he was at the shop on the day of the incident. Four gentlemen, whose names he did not know, came to the shop. He only knew Thokozani, accused 2. They approached Lindokuhle Gadlela and chased him. Later they asked for the deceased and they all took him out of the shop. They took him behind the shop. After that they went to the playground. Later, an alarm was raised by the deceased. Whilst shocked by the alarm, one of the four men came and they asked him that since they took someone to the playground what has now happened? He said he had seen someone lying on the ground covered with blood. When he and the other person he was with went there, they found Sikhumbuzo lying on the ground. He emphasised that he knew Thokozani and the other three boys who came with him. They had grown together in the same area.
[8] On cross examination, he was asked who else was he with at the shop. He said he was with Bonkhe Gamedze and Lindokuhle Gadlela. When asked where was Sikhumbuzo when the four entered the shop, he said that he was inside. When asked if Sikhumbuzo showed some resistance, he said that he showed some signs of uneasiness. It was put to him that Ayanda had been stabbed the previous week and the deceased had had a hand in this. PW 4 said that he did not know anything about this.
THE LAW
[9] Section 174 (4) of the Criminal Procedure and Evidence Act, 1938 reads as follows:
“If at the end of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted thereon, it may acquit and discharge him.”
[10] In the case of King v Lucky Matsenjwa Criminal Case No. 174/2017 (unreported), His Lordship Mamba J. stated as follows:
“The right to be discharged at the stage of the trial does not necessarily arise, in my view, from considerations in relation to the burden of proof (or its concomitant, the presumption of innocence) or the right of silence or the right not to testify, but arguably from consideration that is of more general application. Clearly a person ought not to be prosecuted in the absence of a minimum of evidence upon which he may be convicted merely in the expectations that at some stage he might incriminate himself. That is recognised by the common law that there should be “reasonable and probable” cause to believe that the accused is guilty of an offence before a prosecution is entitled – and the constitutional protection afforded to dignity and personal freedom (S. 10 and S. 12) seems to re – inforce it. It ought to follow that if a prosecution is not commenced without that minimum evidence so too should it cease when the evidence finally falls below that threshold. That will pre-eminently be so where the prosecution has exhausted the evidence and a conviction is no longer possible except by self-incrimination. A fair trial in my view, would at that stage be stopped, for it threatens thereafter to infringe other constitutional rights protected by S. 10 and S. 12 (S. 21 of our constitution).”
APPLICATION
[11] It is common cause that the person who caused the death of the deceased is accused 1. Accused 1’s attorney put it to some of the Crown witnesses that accused 1 had stabbed the deceased because he had earlier tried to kill the accused using a knife supplied by the deceased to Lindokuhle Gadlela. The deceased also allegedly grabbed this accused by his testicles resulting in this accused stabbing him to set himself free.
[12] On the issue of whether accused 2 participated in the murder of the deceased, evidence was led which established that accused 2 participated in the chase of Lindokuhle Gadlela together with accused 1. Lindokuhle outpaced them. It has also been established that accused 1 together with accused 2, 3 and 4 went with the deceased behind the shop. Later the deceased was heard raising an alarm. Accused 3 has been turned into a state witness and he only implicated accused 1. Accused 4 has been acquitted and discharged after the Crown has conceded that there is evidence linking him to the crime. The only one who remains is accused 2. The only link between this accused and the crime is that this accused participated in chasing of Lindokuhle Gadlela. If accused 1 and 2 successfully caught Lindokuhle and finally killed him, accused 2 would have a case to answer based on the doctrine of common purpose. The role played by accused 2 after the failed chasing is not at all different from that of accused 4. Since accused 4 has been acquitted and discharged, it follows that accused 2 should also be acquitted and discharged. I am convinced that no reasonable court, acting reasonably and judicially may convict on the evidence presented herein against accused 2. Accused 2 is therefore acquitted and discharged of the crime of murder of Sikhumbuzo Nkhambule. The Application by accused 2 in terms of Section 174 (4) of the Criminal Procedure and Evidence Act, 1938 is successful.
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