Rex vs Sihlongonyane (353/2013) [2018] SZHC 25 (09 April 2018);

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Criminal Law – Accused charged with the murder of his 17 year old lover – A minor teenager – Accused convicted of murder.

 

 

IN THE HIGH COURT OF SWAZILAND

                                                                              

   

HELD AT MBABANE                                                                     CASE NO.  353/13

                                                                                                                

                                                                                                                                     

In the matter between:           

 

REX

                                                                                 

and

 

                                                                             

MENZI PELICAN SIHLONGONYANE 

 

Neutral Citation                      :           Rex vs  Menzi Pelican Sihlongonyane (353/13 [2018]  

SZHC 25   (12 MARCH 2017)

 

Coram                                     :           MABUZA – PJ

Heard                                      :           02/08/2017; 06/11/2017

Delivered                                :            12 MARCH 2018       ; 9 APRIL 2018

 

 

 

 

 

 

 

SUMMARY

Criminal Law – Accused charged with the murder of his 17 year old lover – A minor teenager – Accused convicted of murder.

 

JUDGMENT

           MABUZA -PJ

[1]     The Accused Menzi Sihlongonyane stands charged with the crime of murder in that on or about the 15th July 2013 at or near Matimatima area in the Shiselweni Region, he did unlawfully and intentionally kill Nkosikhona Mdaka and did thereby commit the crime of murder.

 

[2]     The post-mortem report (Exhibit B) was handed in by consent and it recorded that the cause of death was due to stab wound to neck.  It further recorded that muscles and blood vessels on the left side (internal jugular vein and common carotid artery) were severed.

 

[3]     The stabbing of the deceased was witnessed by PW2 who was with the deceased, she noticed the Accused strike her and she fell down.  He continued assaulting her while she remained fallen.

 

[4]     PW2 had a prior appointment with the Accused.  She informed the Court that the Accused was in her dance group.  And that on the 14th September 2013 (on a Sunday) she received a call from the Accused around 9.00 a.m. who informed her that he wanted to commit suicide.  She asked him why?  And he replied that he was not in a position to tell her.  Because it was late she suggested to him that they meet on the following day.  On the 15th July 2013, he telephoned her and suggested that they meet at his home.  She went there.  Upon arrival she tried to get his attention that she had arrived but he ignored her.  Instead he took out a knife and stabbed the deceased on the neck.  PW2 ran away.  Along the way she met Mangena Sihlongonyane (PW1) and Hoover Kunene going to the scene of the crime and she turned back with them.

 

[5]     PW1 instructed Hoover Kunene to call the police.  Meanwhile the Accused fled the scene.  PW2 says that she waited with PW1 and some neighbours until the police arrived at about 4.00 p.m.  By that time the deceased had died and the police took her remains away.  She says that the knife that the Accused used was an Okapi.  She identified the Accused in the dock.  She knew him previously as he is a dancer in her dance group. 

 

[6]     She says that the stabbing of the deceased took place between 1.00 p.m. to 2.00 p.m.  And that when the Accused fled the scene he took off his top and threw it in a nearby bush.  She identified a pair of jeans that she says the Accused wore on the material day as well as the okapi allegedly used to stab the deceased.

 

[7]     PW1, Mangena Sihlongonyane is the biological father of the Accused.  He testified that on the material day he was at home when Hoover Kunene came shouting that the Accused was assaulting the deceased.  PW1 asked Hoover Kunene to go to the police for help while he ran to the scene.

 

[8]     Upon arrival at the scene he found that the deceased was still alive.  He phoned the police.  By the time they arrived she had died.  He says that when the police inspected her they found that she had one injury on her neck.

 

[9]     He says that the Accused was not at the scene when he arrived and later when the police arrived.  The Accused returned home at night and requested PW1 to take him to the police station.  PW1 instead telephoned the police who later came to collect the Accused and took him into custody.

 

[10]   Before the Accused was taken into custody, PW1 noticed that his clothes were full of blood.  PW1 learnt later after the police had arrived that the Accused had stabbed himself on the stomach in an attempt to commit suicide.  PW1 says that the Accused surrendered a knife to the police, the type which had a button that one presses for it to open.  He says that he (PW1) contributed the coffin and a blanket for the burial of the deceased.

 

[11]   When he was cross-examined he revealed that at the time of her death he had not known the deceased or that she and the Accused were lovers.  He only learnt of this fact when the two families met to prepare for her funeral.

 

[12]   PW4, 5897 Detective Constable Mancoba Fakudze testified that he went to the scene of crime together with three other officers.  Upon arrival at the scene they found the body of the deceased lying on the ground.  They preserved the scene for their scenes crimes photographer.  While there, they received information that the Accused had fled towards Manzana River in the area.  They went to search for him but did not find him. 

 

[13]   They were able to locate him at his home on the following day where they arrested him and later charged him with the murder of the deceased.  He handed a brown okapi knife over to them after the usual caution.  He also handed over a pair of blue jeans which had blood on them.  The blood was not tested.  These items were handed into Court as Exhibits by PW4.  The knife was Exhibit 1 and the jeans Exhibit 2.

 

[14]   PW3, 2750 Detective Inspector, Nhlanhla Mkhabela was the crime of scenes officer who upon arrival at the scene at 17.00 Hrs on the material day took photographs of the deceased.  These she handed in as Exhibit C (a) to (i).  He testified that he examined the deceased and noted a gaping wound on her left neck and two stab wounds on the front part of her neck and below the chin and on the back of her right hand.  She lay in a pool of blood.  He took photographs of the deceased’s stab wound and handed them in as Exhibit C (a) to (i).  The post mortem report confirms the neck wound but not the other wounds.

 

[15]   The deceased was identified by her grandfather Jacob Dlamini and 3165 of Nhlangano police station.

 

[16]   A statement made by the Accused to the Honourable Magistrate P.M. Simelane sitting at Nhlangano on the 16th July 2013 was handed into Court by consent of the parties.  It was marked Exhibit A.

 

[17]   In it the Accused intimates that the statement is made voluntarily without any coercion, threats or promises.  He confirms that he and the deceased were lovers.  At some point the deceased fell pregnant with his child but she had an abortion.  She swore him to secrecy regarding the abortion but he could not mentally let go of the issue of the abortion.  Whenever, they quarreled he would mention the issue of the abortion.

 

[18]   As the love relationship progressed, the deceased began cheating on him and this caused them to quarrel often.  The deceased fell in love with Wandile Mhlongo a university student.  Because of Wandile’s university status, the deceased began despising the Accused and would speak condescendingly towards him.  Her new attitude and new affair made him angry and he felt betrayed.

 

[19]   One Saturday he asked her to meet him on and she agreed but unexpectedly left on the following day which was a Sunday. He phoned her asking to see her but she was with Wandile.  The Accused became confused and as he was studying could no longer continue studying.

 

[20]   When they met, they quarreled during which he again brought up the issue of her abortion.  She spent the night with him.  The following day he refused her permission to go to school as he feared that she was going to see Wandile.

 

[21]   He then suggested that they go and visit a friend of his.  They quarreled while at the homestead because she was saying unsavoury things to him.  They decided to leave that homestead and the quarrel heated up along the way during which he reminded her of the abortion.  She would not stop mocking him.

 

[22]   He recorded that he got extremely angry and lost his senses, took out a knife and fatally stabbed her on her neck.  He was demented with anger by then such that he was not aware of his actions.

 

[23]   Thereafter he ran away towards the river.  He stabbed himself on the stomach.  After dark he went home and requested his father to accompany him to the police station.  However, the police came to collect him and arrested him and charged him with murder.

 

[24]   5897 Detective Constable Mancoba Fakudze (PW4) testified that he arrested the Accused and charged him with murder.  And that the Accused handed over to him a brown okapi knife that had been used in the commission of the crime (Exhibit 1).

 

[25]   The Accused used in his evidence in chief corroborated the evidence of PW2 that he was the one who stabbed the deceased.  He repeated in Court the evidence recorded by the Magistrate on the 16th July 2013.  The reason he gave for stabbing her was that he was provoked by her.  The acts of provocation were detailed by him.  He stated that the day that the deceased spent the night, she received a call in the morning from a male caller and he overhead her make an appointment to meet with the caller at 11.00 a.m.

 

[26]   He forbade her from attending the meeting and she agreed.  But a while later the person called her again and she agreed to a meeting.  After the call she insisted on leaving to go and meet her caller even though he tried to stop her.  He suspected that it was her new boyfriend about whom they had quarreled in the past, a certain Mhlongo man.

 

[27]   On this fateful day the deceased began to say some hurtful things to him.  Because she was angry she began to insult him saying what could she do with a mere Form 4 now that she was interacting with a university student.  And that his family sold fat cakes, she was now involved with people who had cars.  She also informed him that the child she had aborted was not his.  The Accused is squint eyed and the deceased told him that she did not want children from him as they would inherit his squint eyes.

 

[28]   She took her bag and left the house.  He followed.  She continued insulting him and he became heated up and angry.  His head began spinning and he lost his senses temporarily and stabbed her.  He says that he was not aware that he was stabbing her.  He says that he regained his senses a while later while near a local river where he found himself carrying a knife and bleeding from his stomach.  He was unaware how he had gotten injured.

 

[29]   He arose and went home where upon being told that he had killed the deceased asked his father to accompany him to the police station.  His father telephoned the police who came and arrested him for the murder of the deceased.

 

[30]   During cross-examination he explained that the knife that he had used to stab the deceased was already in his pocket because there was a function nearby and he had gone there on Saturday to help skin a beast.  He had gone there again on Sunday and had not changed his clothes.  The Crown challenged his story about the knife as an afterthought and that he had premeditation to killing her, hence the knife.  He denied this.

 

[31]   The Crown put to him that he had intended to kill the deceased and then kill himself hence the aborted attempt at stabbing himself so that the new boyfriend would not have her.

 

[32]   He denied this.

 

[33]   The Crown further challenged his evidence that he became so angry that he lost his senses.

 

[34]   It was put to him that he intentionally killed the deceased, he denied that he had any intention to kill her.

 

[35]   He was asked by the Court why he had stabbed her on the neck and in particular on the jugular and carotid vein as the doctor stated that these were severed.  He responded that he did not know. 

 

[36]   The defence closed its case after the re-examination of the Accused.

 

[37]   The Accused stated in Court that he did not make the statement before the Magistrate freely and voluntarily because he was terrified by threats that he received from two other suspect whom he found in his cell at the police station.

 

[38]   I am not persuaded by his explanation in regard to making the statement before the Magistrate.  In my view he had an opportunity to tell the Magistrate before whom he recorded his statement of his fears of the two suspects but he did not.  He did not state what it was about these suspects that made him make the incriminating statement to the Magistrate.  In any event there was no effort on his part to prove that his statement was in admissible and that it had to be tested in terms of the requirements for the admissibility of confessions and admissions.

 

[39]   Consequently I admit the statement made to the Honourable Magistrate as part of the evidence.

 

[40]   The Accused further denied that he had any premeditation to killing the deceased.  He stated that he already had the knife in his possession before the altercation with her.  He had on the previous day helped some people with skinning of a cow and had taken his own knife to help with the skinning.

         

[41]   The Accused did not call any witness from the homestead of the slaughtered cow in order to support his evidence that he had indeed assisted with the skinning of the slaughtered beast.  I must consequently reject this evidence as untrue which I do and make a finding that the presence of the knife was because he had made up his mind to kill the deceased and commit suicide thereafter.  That is intention.

 

[42]   There is evidence from PW2 that she had gone to meet him because he had reached out to her about the troubled relationship he had with the deceased.  He told PW2 that he wished to kill himself.  He denied this evidence during the trial.  But the evidence shows that he tried to commit suicide by stabbing himself even though his attempt was unsuccessful.  This attempt was done shortly after he stabbed the deceased.  A medical report carried out on him on the 16th July 2013 at 11.06 am. at Nhlangano Health Centre was filed off record.  It recorded that he had two shallow lacerations on his abdomen.  The failed suicide attempt proves that he had intention to kill the deceased and thereafter kill himself.

 

[43]   He admitted in his evidence in chief that he constantly mulled over the issue of the abortion and that this upset him and made him angry.  This evidence shows how angry and unforgiving he was.  Somewhere in his psyche was revenge and when he got the chance he did revenge the death of his child.  Revenge in this instant is the basis of his intention to kill the deceased.

 

[44]   Furthermore, the Accused knew exactly where to strike the fatal blow.  The post mortem report recorded that he struck once and went for the jugular vein and carotid artery which were severed. 

 

[45]   He knew precisely where to strike the deceased and did so.  This fortifies my view that he had the necessary intention.

         

[46]   He pleaded temporary loss of his senses but this is no defence because he was not physically attacked by the deceased who was only 17 years old.  She was barely beyond the age of sexual consent and he being older than her abused her by having sex with her, a minor.  Furthermore, he did not produce any medical evidence to prove his defence of temporary loss of his senses or that his temporary loss of his senses arose from an insanity in the sense recognized by law.

 

[47]   He also raised the defence of provocation, namely that she taunted him until he lost it.  Maybe she did taunt him and maybe she did not, she can no longer speak for herself.  In my view the defence of provocation cannot vitiate his intention to kill the deceased.  He could have slapped her, he could have walked away but he followed her as she was leaving because he wanted to kill her.

 

 

 

 

[48]   In the case of R v Krull 1959 (3) SA 392 (a) AT 399, Schreiner JA stated that:

“Under our system it does not follow from the fact that the law treats intentional killing in self-defence, where there has been moderate excess, as culpable momicide,  that it should also treat as culpable homicide a killing which though provoked was  yet intentional.  Since merely provoked killing is never justified there seems to be no good reason for holding it to be less than murder when it is intended”.

 

          This means that provocation cannot reduce the seriousness of the crime in this case from murder to culpable homicide.

 

[49]   After he had killed her he did not assist her or call for help.  Instead he left her and fled the scene.  This also shows that he wanted her to bleed out and die, which is what in fact happened.   The evidence shows that there were homes nearby including his own home and he could have easily called for help to stop the loss of blood from her.  He did not lift a finger because he had intended her to die.

 

 

 

 

 

[50]   In the result I am satisfied that the Crown has proved its case beyond a reasonable doubt and find the Accused guilty of the murder of Nkosikhona Mdaka, for which he is hereby convicted.

 

 

SENTENCE

9/4/2018

 

          

         Extenuation circumstances   

         Immaturity

 

[51]   Mr. Thomo, counsel for the Accused submitted that the Accused was twenty two (22) years old when this offence occurred.  That his youth indicated that he was immature.

 

[52]   To further add to this immaturity he was still in high school in Form 4.  I am informed by his lawyer that he had learning difficulties in that he failed and had to repeat certain forms many times.

 

[53]   And that this immaturity is evident from the fact that he got romantically involved with a very young girl who was about 16 years old when the relationship started.

 

          Provocation

[54]   Mr. Thomo also argued that the Accused lost his senses because he was taunted by the deceased.  She mocked him that he was cross-eyed; the persistent calls from her boyfriend Mhlongo upset and angered him.  That the accumulation of the above had a bearing on his state of mind in doing what he did.  he was provoked by the deceased.

 

[55]   It is my finding therefore that in view of the foregoing extenuation circumstances have been established.

 

          Mitigation

          Personal circumstances

[56]   The Accused is a first offender and has no previous convictions and that in itself suggests that he has maintained good behavior until this incident.  Mr. Thomo has pleaded for mercy in the sentence.

 

[57]   The Accused was 22 years old when this incident occurred.   Since his release on bail he took the initiative to become an electrician while awaiting his trial.  He began to raise a family and has three minor children.

 

[58]  He has and continued to contribute to the arts by starting a dance group in Nhlangano thus giving his dance colleagues something meaningful to do.

 

[59]   He uses the money from the dance group and as an electrician to support his young family and parents who are both unemployed.

 

[60]   While out on bail he complied with all bail conditions without fail and has always attended court when directed to do so.

 

[61]   He was remorseful during the trial. 

 

[62]   He surrendered to the police.

 

[63]   In passing sentence I have taken the personal circumstances of the Accused outlined above into account.

 

          The crime

[64]   Murder is a heinous crime.  Instead of abating it is getting out of control especially in a small country such as ours which has a population of slightly over one million people.  It is totally debilitating and traumatic to the family, relatives and friends of a deceased.

 

[65]   In this case the deceased was very young and had a long future ahead of her but her life was snuffed out by the Accused who has gone on with his life with ease.  I have no doubt that her parents and family are still trying to pick up the pieces of their lives and trying to adjust to life without her.

 

[66]   The courts cannot assuage their pain or bring back their loved one but can give them some kind of closure so that they too can get on with their lives.

 

          The interests of society

[67]   Society expects the courts to pass sentences that are a deterrent to would be offenders.  Members of the public expect to live in a safe, tranquil and peaceful society.  It is up to the courts to provide society with such an environment.

 

[68]   Having outlined the above, an appropriate sentence in the circumstances would be one of twenty (20) years imprisonment without an option of a fine.

 

[69]   The Accused is sentenced to twenty (20) years imprisonment without an option of a fine, backdated to the 12/3/2018 the date on which he was convicted and taken back into custody.  A further four (4) months are to be deducted from this sentence being the months that he spent in custody before he was admitted to bail.

 

 

 

_______________________

Q.M. MABUZA

PRINCIPAL JUDGE

 

 

 

          For the Crown               :         Mr. P. Mkhatshwa

          For the Accused             :         Mr. V. Thomo