8
IN THE SUPREME COURT OF ESWATINI
JUDGMENT
HELD AT MBABANE CASE NO. 20/2022
In the matter between
KHOKHO MACHAMKELA DLAMINI FIRST APPELLANT
LINDA BANELE DLAMINI SECOND APPELLANT
AND
REX RESPONDENT
Neutral Citation: KHOKHO MACHAMKELA DLAMINI & ANOTHER v REX (20/2022) [2024] SZSC (……. JUNE, 2024)
Coram : M. D. MAMBA, J. M. VAN DER WALT AND
J. M. CURRIE JJA.
Heard : 21 FEBRUARY, 2024
Delivered : 10 JUNE, 2024
[1] Criminal law- Murder- Essential elements thereof restated- Appellants repeatedly assault victim with lethal weapons to death. Appellants must have foreseen that victim might die but carried on with the assault recklessly not caring whether death ensues. Indirect intention proven.
[2] Criminal law- Murder- Defence of intoxication. Appellants proven to have taken intoxicating liquor (buganu/marula). Evidence of drunkenness may be viewed or established from the conduct of the appellants before, during and immediately after the commission of the offence.
[3] Criminal law and Procedure- Sentence- Pre-sentencing incarceration to be taken into account in imposing sentence- Section 16 (9) of the Constitution. Such period does not include time spent by the Appellant out of custody on bail.
MAMBA JA.
[1] The Appellants who were jointly indicted on a charge of murder appeared before the High Court on 16 June, 2021. They were co-charged with one Nganono Leo Dlamini who was the Second Accused in that trial. The charge was that they had on 28 January 2016 at Ndlalambi, unlawfully and intentionally killed Bongani Yuki Tsabedze. The Crown alleged further that the Accused persons had acted in furtherance of a common purpose in committing the said crime.
[2] All three persons were represented by one attorney. On being arraigned, they all pleaded not guilty to the charge. A total of six witnesses testified on behalf of the prosecution. The 1st Appellant testified on oath on his own behalf whilst the 2nd Appellant chose to remain silent. Neither Appellant called any witnesses to give evidence in support of their case.
[3] By judgment delivered on the 8th day of July, 2021, the two Appellants herein were found Guilty as charged. Their co-accused, who was the 2nd Accused during the trial, was found Not Guilty and was acquitted and discharged. The Appellants were, after due mitigation, each sentenced to a period of 18 years of imprisonment. The Court a quo also ordered that a period of 24 days must be deducted from the said term of imprisonment to cater for the time the Appellants had spent in custody before being released on bail pending trial.
[4] On or about 10 October 2022, the Appellants filed an application for leave to note an appeal out of time. This application, it is common cause, was successful and the Appellants duly noted their appeal on 26 September, 2023. There are only two grounds of appeal stated in the said Notice of Appeal; namely, that the Court a quo erred in fact and in law in
‘1. …convicting the Appellants of Murder when there was evidence that they were intoxicated when the offence was committed.
2. … not taking into account the period it took the Appellants to be brought to trial when imposing sentence.’
[5] From the above grounds of appeal, it is clear that there is only one ground of appeal on conviction and one ground of appeal on sentence. Additionally, the Appellants do not contend that they ought to have been acquitted and discharged. The ground of appeal is that the Court a quo was in error in returning a verdict of Guilty of Murder in view of the fact that the Appellants were intoxicated when they committed the offence. This ground of appeal was amplified or clarified further in the Appellants’ Heads of Argument. Mr. Mthethwa, Counsel for the Appellants, submitted that because the Appellants were intoxicated or drunk, they lacked the requisite or necessary intent to commit the crime of Murder and that they ‘ought to have been found Guilty of Culpable homicide’. (See para 37 of heads). This ground of appeal is solely based on the issue of intoxication. I shall return to this later in the judgment.
[6] The essential facts in this case are largely common cause and are as follows:
6.1 In the evening of the 28th day of January, 2016, Bongani Yuki Tsabedze (hereinafter referred to as the deceased), was at his home in Ndlalambi enjoying marula beer with some of his friends. These included the 2nd Accused (Nganono Leo Dlamini) and Zwelithini Gama. The deceased was a member of the Eswatini Umbutfo Defence Force and so was Zwelithini Gama (PW4).
6.2 It is not apparent from the evidence led in this case as to what the immediate source of the dispute amongst the Appellants, the deceased and Mduduzi Ndlovu and Gcinile Mdluli was. However, it is clear that the initial conversation was between Gcinile (PW2) and the deceased, when the former requested the deceased to give him a light globe. The deceased advised Gcinile to come for the globe the following day. Gcinile later explained in her evidence that before she came to the home of the deceased, she had been in the company of Mduduzi Ndlovu and his companions and were headed for her house to have supper, but before reaching her house, she went into the deceased’s homestead leaving then outside the gate. A few minutes later, Mduduzi called her on her mobile telephone but she ignored his call and this is what apparently angered him. This evidence was substantially corroborated by PW4. Later, Mduduzi Ndlovu came and shouted angrily at both Gcinile and the deceased. This culminated in the deceased accompanying Gcinile and Mduduzi out of his yard. Gcinile went to her house which was just about 20 metres away, leaving the deceased and Mduduzi and his companions at the gate to the home of the deceased.
6.3 According to PW1 (Sibusiso Mndzebele), the Appellants came to the home of the deceased and positioned themselves at the gate and were shouting and uttering abusive, threatening and insulting words towards the deceased. These words were directed at both the deceased and PW4. The deceased, PW1 and PW4 went to the gate to meet the Appellants and to find out from them what they were complaining about. The deceased was armed with a knobstick. After talking to the Appellants, the Appellants calmed down and the shouting abated or stopped and this caused PW4 and the other persons who had accompanied the deceased to the gate to return to the house leaving the deceased and PW1 at the gate with the Appellants.
6.4 It was the evidence of PW1 that the 1st Appellant suddenly took the knobstick from the deceased and hit him with it on his lower back causing him to instantly fall to the ground. The two Appellants assaulted the deceased repeatedly whilst he lay on the ground shouting for help. The first Appellant assaulted him with the knobstick and the second Appellant used a slasher which he had obtained earlier on from Gcinile’s house. The Appellants assaulted the deceased wantonly or indiscriminately.
6.5 The evidence of PW1 was in all material respects corroborated by the evidence of PW4. PW4 testified that upon hearing the deceased shout for help, he, PW4 armed himself with a spear and ran to the gate where the deceased was being assaulted by the Appellants. PW4 testified that he found the Appellants and the second Accused at the scene and he was able to stab and repel the first Appellant and the second Accused as they aggressively approached him. The deceased was then conveyed to hospital where he was subsequently declared dead.
6.6 Gcinile Mdluli testified that the main leader or initiator of the abusive attack on the deceased was the second Appellant. Gcinile testified that the second Appellant mobilized his co-conspirator and positioned themselves at the gate to the house of deceased where they engaged in the verbal abuse and threats. It was the evidence of this witness that whilst she was in her house, the second Appellant came and asked her to give him an axe or a bushknife. The second Appellant forced his way into her kitchen and there took two slashers. She tried in vain to dispossess him of these slashers. The second Appellant was in the company of Mfanawenkhosi King Hlophe (PW3) and they hurriedly left her house and disappeared. The second Appellant returned later with the two slashers and told her that ‘he had killed the dog’, referring to the deceased. She noticed that one of the slashers was blood-stained. The second Appellant hurriedly left her house but returned later. He disclosed to her that the first Appellant had been injured and he wanted water to clean his wound. Again, the evidence of this witness was in material respects, corroborated by Mfanawenkhosi Hlophe. Hlophe of course, did not witness the assault. He told the Court that he left the scene and parted ways with the second Appellant after leaving Gcinile’s house.
6.7 The Post-mortem examination report in respect of the deceased was handed into Court by Counsel as an exhibit. After examining the injuries on the body of the deceased, the Pathologist came to the conclusion ‘that the cause of death was due to multiple injuries.’ The Pathologist noted no less than six chop wounds on the body of the deceased and these were located on the head, jaw, shoulder and cheek; the upper body of the deceased. There were also contusions observed on the chest.
6.8 It is significant to note, as the Court a quo noted, that there were no stab wounds noted or observed by the Pathologist. This observation was significant to buttress the evidence by the defence that the deceased was inadvertently stabbed with a spear by PW4.
[7] As already noted above, the first Appellant gave sworn evidence in his defence whilst the second Appellant opted to remain silent.
[8] The first Appellant denied ever assaulting the deceased on the fateful night. He informed the Court that together with his friend Mjakajaka, their attention was drawn to the scene of crime by the noise emanating from there. He testified that they were able to calm down the situation but then the deceased suddenly hit the second Appellant on his hand with a knobstick. As they tried to disarm the deceased of the knobstick, PW4 stabbed him, the second Accused and the deceased with a spear. The deceased fell down whilst he and the second Accused managed to run away. He also testified that ‘… we ran away and Linda [2nd Appellant] chased the others with a slasher.’ (Page 42 line 14-15 of Record). After escaping from the scene, he was conveyed to hospital and there had his wound treated. He had been stabbed on the left side of his chest. That was in essence, his evidence before the Court.
[9] The Court came to the conclusion that the evidence by the Crown witnesses was truthful and credible and reliable in respect of the actual involvement and or participation of the Appellants in the commission of the crime in question. The Court also found in favour of the second Accused (Nganono Leo Dlamini) that he was in no way involved in the commission of the crime and he was accordingly acquitted and discharged. The Court came to the conclusion, rightly so in my judgment, that the Appellants were acting jointly or in furtherance of a shared purpose in assaulting the deceased. Each of them took an active part in assaulting the deceased and such assault was unlawful. The first Appellant used a knobstick whilst his companion or co-conspirator used a slasher in committing the offence. Again, both Appellants actively or jointly participated in the verbal vitriol that preceded the physical assault on the deceased. All these facts point to a joint and common cause shared by the Appellants. For this reason, I cannot find any fault with the findings of the Court a quo on this aspect of the case.
[10] One notes of course that the second Appellant did not testify in his defence. He exercised his right to remain silent and he had the benefit of legal representation in this regard. It has to be concluded therefore, that this was a deliberate and informed decision by him. The evidence was, however, overwhelming against him as already narrated herein. In this regard, the Learned Judge a quo concluded that
‘[29] There is no doubt that [the 1st Appellant] acted in common purpose when attacking and killing the deceased. Evidence was [led] that immediately after [the Appellants] had struck down the deceased with the knobkerrie, [2nd Appellant] joined in hacking him with slashers on dangerous parts of the body. I have no iota of a doubt that they had a common purpose to brutalize and to kill the deceased as they did.’
[11] As already stated above, the only ground of appeal on the question of conviction is that the Court erred in returning a verdict of guilty of Murder in view of the fact that the Appellants were intoxicated at the time of the commission of the crime. I examine this briefly in the next segment of this judgment.
[12] I have gone through the evidence in this case and I have not been able to find anything to suggest that the first Appellant was intoxicated when he committed the offence in this case. On being cross-examined, PW1 admitted that Nganono Leo Dlamini, the 2nd Accused, was drunk. He stated this in the following terms:
‘Defence Counsel: In what state was the deceased and others?
PW1: Thulasizwe had not taken liquor as he does not take any.
Defence Counsel: How was 2nd Accused [Nganono]?
PW1: Even though I cannot estimate the extent [of] his drunkenness but he was drunk.’ (See page 15 line 5-9 of Book).
[13] The only evidence relating to the state of sobriety or otherwise of the 2nd Appellant was given by Gcinile Mdluli. She testified that when she tried to persuade him not to arm himself with the slashers, the 2nd Appellant
‘. . . attempted to [hit] me with them. I left him alone. I got threatened as he [was] drunk. They jumped over the fence with King and went out.’ (Page 19 line 8-10 of the Book). Again, in his judgment on sentence the Learned Judge in the Court below made a finding that
‘The Court also considers that the Accused persons are semi-illiterate and were intoxicated at the time of the commission of the offence’.
With due respect, this is a rather generous finding by the Court. Whilst it may be accepted that the Appellants may have taken some liquor at the relevant time, there is no evidence, in my view, that they acted under the influence of intoxicating liquor, buganu (marula in this case). From the evidence outlined above, it is clear to me that the Appellants were not acting under the influence of intoxicating liquor when they committed the crime in this case. They were able to control and even remember all their movements during and after the commission of the offence. They were able to jump over fences and also run away and escape from the scene when they were attacked with a spear by Zwelithini Gama. The second Appellant had the temerity or nerve to brag to Gcinile that he had killed the dog. Additionally, after being stabbed, they immediately sought first aid and speedily rushed to the nearest clinic. All these acts are, in my judgment, not those of a person who is so drunk as to be said to be acting under the influence of liquor. For these reasons, there is no merit in this ground of appeal; that is to say, that the Appellants were so drunk as not to possess the requisite intent to commit the crime of Murder.
[14] In R v Huebsch 1953 (2) SA 561 (AD) at 565, a case to which we were referred by Counsel for the Appellants, the Court made the following pertinent observation:
‘Since, however, the Appellant was found by the trial Court to have been drunk, this Court has to consider on the lines discussed in Rex v Taylor, 1949 (A) SA 702 at 712 & 713, whether the Crown proved beyond reasonable doubt that he was nevertheless capable of forming and did form the intent requisite for the crime of Attempted Murder. The decision depends upon the proper inference to be drawn partly from the impression of the witnesses who saw him at the time but mainly from his behaviour.’
The behaviour of the Appellants, before, during and after the incident, clearly shows in my view that they each had the requisite indirect intention to commit the crime of murder.
[15] In Ntokozo Mhlongo v Rex, (07/2021) [2023] SZSC 55 (04 December, 2023), this Court had occasion to make the following remarks:
‘[18] The distinction between murder with direct intention to kill (dolus directus) and murder with indirect intention to kill (dolus indirectus or eventualis) is settled in this jurisdiction. See Annah Lokudzinga Mathenjwa v Rex 1970-1976 SLR 25 where the headnote reads in part as follows: ‘if the doer of the unlawful act, the assault which caused the death, realised when he did it that it might cause death, and was reckless whether it would do so or not, he committed murder [with indirect intention].’
[19] Clarity on the ruling in Annah (Supra) was provided by this Court in Maphikelela Dlamini v Rex 1979- 1981 SLR 195 @198 where Maisels P. stated as follows:
‘My Brother Dendy-Young has referred to certain remarks and possibilities and appreciation of risks. At 30D of the judgment in Annah’s case to which I have referred the then President of this Court, Mr. Justice Schreiner said: “It has been suggested that a finding that a person must have foreseen or appreciated a risk is not the same as a finding that the person did infact foresee or appreciate the risk: I do not agree. It is not a question of law but of meaning of words. I find it meaningless to say, He must have appreciated but may not have”. In this statement of the law of Caney JA on the same page concurred. Milne JA at 32 also concurred in this statement of the law although he disagreed in regard to certain other aspects of the case itself. He said this at p 32F: “I should like first of all to associate myself very strongly with the learned President’s view that when it is correctly held that a person ‘must’ have appreciated that his act involved a risk to another’s life, it is inescapable as a matter of English, that what is held is that the person did, in fact, appreciate the risk.” I thought it right to mention these matters because for many years to my knowledge Annah’s case has been followed in Swaziland and although I share the regret expressed by Mr. Justice Schreiner in Annah’s case that there may be differences between the law as applied in South Africa, if differences arise they must be given effect to for, as was said by Schreiner P at p 29 of Annah’s case, we are obliged to apply what we understand to be the law of Swaziland, even if divergence from the law of the foundation member of the South African Law Association is the result. I do not wish my concurrence with the result of the appeal as proposed by my Brother Young as being in any way a departure from the principles as laid down in Annah’s case to which I have referred’.
I note here of course that the essential elements of Culpable Homicide were later to be redefined by this Court. In Annah (supra) the Court held that an accused person was guilty of Culpable Homicide whether or not he ought to have realised the risk, “since he had killed unlawfully”. The correct position of the law is that an accused person would only be guilty of Culpable Homicide if a reasonable person would have foreseen such death occurring and the accused failed to foresee this. In short, negligence on the part of the accused must be proven to ground a conviction for Culpable Homicide.’
[16] The second ground of appeal, which is on sentence, is that the Court did not take into consideration the fact that the Appellants had spent sometime out of custody, before being convicted and sentenced. Counsel argued that this is decreed by Section 16 (9) of the Constitution. Counsel submitted that:
‘38. Where a person is convicted and sentenced to a term of imprisonment for an offence, any period that person spent in lawful custody in respect of that offence before the completion of the trial shall be taken into account in imposing the term of imprisonment.’
The argument was developed further and it was suggested that when a person is out on bail he or she is still in custody inasmuch as he has to obey the terms and conditions that regulate or govern his release on bail. I must state from the outset that this is a strange or opaque submission. The case cited and relied upon by Counsel, does not support his argument. In both R v Boy Motsa 1987-1995 (2) SLR 339 and R v Pretorius 1969 (3) SA 152, the Court dealt with and decried the fact that the cases in question had not been tried or prosecuted within a reasonable time, contrary to the right of every accused person to a speedy trial. The Court did not rule that from the date of arrest to the date of sentencing, the period whether in or out of detention must be taken into account in determining the actual custodial period imposed on the convict.
[17] The right to a speedy and fair trial is governed by Section 21 (1) of the Constitution whereas Section 16(9) governs the time or period spent in lawful custody by an Accused person before sentencing; in other words, pre-trial detention or incarceration. These are entirely two different issues. In any event, any person who has been released on bail for a particular crime cannot be said to be in lawful custody for the crime. Where an Accused person is released on bail, either conditionally or unconditionally, pending trial he ceases to be in lawful custody in respect of that crime. (See also Section 16 (7) of the Constitution). Again, Section 13 of the Court of Appeal Act 74 of 1954, although with reference to bail pending appeal, is instructive in this instance. It provides that the time spent by an Appellant out on bail pending appeal shall not be considered or counted as part of any term of imprisonment in respect of his sentence.
[18] In the present case, the Court a quo was alive to the dictates of Section 16 (9) of the Constitution and thus ordered that the time spent in custody by the Appellants before they were released on bail must be deducted from the sentence of 18 years of imprisonment imposed on the Appellants. It is of course not inconceivable in my view that, where the Crown has taken an inordinately long time to prosecute or bring a matter to Court for trial, the Court may rule or find that there has been a failure of justice and thus bar the prosecution from proceeding with the case. This is, however, not the case in this matter.
[19] In Lomcwasho Thembi Hlophe v R Criminal Appeal 7/2010 judgment delivered on 27 May, 2010, this Court had occasion to deal with Section 16 (9) of the Constitution and had this to say thereon:
‘[26] With the passing of the Constitution the whole issue of the commencement of sentences must be reconsidered. Section 16 (9) of the Constitution provides:
“Where a person is convicted and sentenced to a term of imprisonment for an offence, any period that person has spent in lawful custody in respect of that offence before the completion of trial of that person shall (my emphasis) be taken into account in imposing the term of imprisonment.”
It must be emphasized that Section 16 (9) comes under Chapter III of the Constitution which deals with the “Protection and Promotion of Fundamental Rights and Freedoms”. In my opinion, by putting Section 16 (9) in Chapter III, the framers of the Constitution meant to give it added value. Indeed they ordained by Section 14 (2) of the Constitution that “it shall be respected and upheld by the Executive, the Legislature and the Judiciary and other organs or agencies of Government….”
[27] Today, the commencement of sentences has taken a new urgency. It is no longer a matter of practice. The sentencing Court is enjoined by the Constitution to take into account the Accused person’s pre-trial incarceration. It is still true that sentencing is generally, a matter governed by the discretion of the Court. But in my opinion Section 16 (9) of the Constitution has effected a paradigm shift in the trial Court’s discretion in sentencing.
[28] Under the Constitution, it is no longer permissible for a trial Court not to take pre-trial incarceration into account when imposing a custodial sentence on an Accused person. The Accused person becomes entitled ex debito justitiae to be given credit for the pre-trial incarceration. The only question is, how does the Court do that? The section does not use the word “back-date”. There is a presumption that where a new piece of legislation is enacted in place of an old one the law-giver must have known of the existing law. It is legitimate therefore to say that the framers of the Constitution knew how pre-trial incarceration was dealt with before 26th July 2005. The present Section 16 (9) is obviously remedial and must be given a liberal interpretation which achieves the aim of trial Courts taking into account pre-trial incarceration of Accused persons. Pre-trial incarceration, though a matter of legal necessity, must be regarded as an aberration in the criminal justice systems. Modern notions of justice are such that fundamental rights and freedoms of a person should not be frittered away. In my view it will not be an adequate response to Section 16 (9) for a trial judge to impose a sentence without specifically showing on the record how he upheld that imperative in Section 16 (9). The most visible way of doing this, is to order that the period of pre-trial incarceration be deducted from the sentence imposed on the Accused. In practice, evidence is not readily available to a trial Court when an Accused person will be released from jail on account of his having completed serving his sentence.
[29] Under the old law, a sentence is to take effect from the day on which it is pronounced unless the Court expressly orders that it shall take effect from some day prior to that on which it was pronounced. Now it is my opinion that the trial Court must order the deduction of the pre-trial incarceration from the sentence imposed, or he may award a figure and say that but for the fact that he had taken into consideration the Accused person’s pre-trial incarceration, he/she would have been given a higher term of imprisonment. This second option smacks of disingenuity and is for that reason, unsatisfactory. As Lord Hewart C.J. said in Rex v. Sussex Justices ex-parte McCarthy (1924) 1 KB 250 at 259, “it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.” Where the trial Court gives no indication that he applied his mind to Section 16 (9), it leaves room for the real possibility that he acted per incuriam.
[30] In casu, the trial Judge declined the invitation by Crown Counsel to consider ordering the back-dating of the Appellant’s pre-trial incarceration, by a simple “No”. There is a no indication that he actually took the pre-trial incarceration into account as is required of him under Section 16 (9). It is clear that the trial Judge approached the Appellant’s punishment in a spirit of anger. This is an error.
[31] I have already set aside the Appellant’s sentence of 10 years imprisonment and substituted a sentence of six (6) years. This sentence of six (6) years’ imprisonment should be back dated to 17th October, 2007 when she was taken into lawful custody pending her trial. The plea for the payment of fine is not appropriate in the circumstances of this case and it is refused.
The appeal is, to the extent of the changes made in the sentence, allowed. The prison authorities are to note these changes and act accordingly.’
For this reason, this ground of appeal on sentence is without merit and is hereby rejected.
[20] The Appellants have not complained about the term of 18 years imprisonment meted out to them and therefore there is no further need to discuss the issue of sentence in this appeal.
[21] For the above reasons, I would dismiss these appeals in their entirety. Accordingly, both appeals are dismissed.
M.D. MAMBA
JUSTICE OF APPEAL
I AGREE
J.M. VAN DER WALT
JUSTICE OF APPEAL
I ALSO AGREE
J.M. CURRIE
JUSTICE OF APPEAL
FOR THE APPELLANT: MR. X. MTHETHWA
(P.M. Dlamini Attorneys)
FOR THE RESPONDENT: MR. S. MDLULI
(DPP’s Chambers)