... found to have had intention to kill

MBABANE – Lobamba MP Allen Stewart told the court that his brother, John, contemplated marrying Gugu Matsenjwa but changed his mind before he died.

He said it was for that reason that his family declined the request by the Matsenjwa family to marry Gugu to John posthumously. Allen submitted that on the eve of the funeral, the Matsenjwa family arrived and disrupted the proceedings.

He said they were led by Mandla Matsenjwa, the complainant’s elder brother. “They hurled insults at the accused’s family and specifically blamed the accused (Allen) for the decision to refuse to make Gugu a wife. The disruptive behaviour continued the following morning and at the graveyard,” the court was told.

Knife

Allen informed the court that from the graveyard they returned to the homestead for refreshments and the complainant, Sibusiso, charged and hurled insults at him. Allen submitted that he got scared, turned to face Mandla and walked away in reverse. He told the court that he heard someone shouting ‘malume’ and when he turned around, he saw Sibusiso charging at him with a knife in hand. He said he took out his firearm and fired one to four shots in the air in rapid succession.

“PW4 (Mandla) ran away, so did the people behind the complainant, but the latter remained holding a knife. Accused warned the complainant that the gun was real and that if he came closer, he would be hurt. Nonetheless the complainant took one step towards the accused. The accused fired a shot at complainant’s arm to disarm him,” Allen narrated.

He stated that Sibusiso fell and got up again, still holding the knife, he denied that he pursued the complainant. Allen said he was driven to the police station by his cousin, Arnold, who was in the company of another relative,

Samuel Bennett. Allen gave the firearm to Detective Assistant Superintendent Bheki Manyatsi and told him that he had shot a person who wanted to stab him.

Judge Doris Tshabalala said it was not for the court to make any finding on the teka dispute.

Judge Tshabalala said the question for decision by the court was whether in shooting the complainant, Allen acted unlawfully and with the intention to kill, or whether he acted lawfully in self-defence as he claimed.

The evidence of the Crown and defence on the circumstances under which the shooting occurred, was at stark contrast to each other. The Crown’s submission was that Allen shot Sibusiso out of anger caused by their disrespectful conduct and relentless pursuit of the issues pertaining to Gugu and John, despite the Stewart family having communicated their position. The defence submitted that Allen merely defended himself from being stabbed by Sibusiso.

Onus

Judge Tshabalala said the onus was on the Crown to prove Allen’s guilt beyond a reasonable doubt. She said if prima facie evidence had been presented, Allen needed only to give a reasonable explanation to be entitled to an acquittal. The judge said the evidence of Allen’s relatives, Arnold and Samuel Bennett, did not add up. According to the judge, their version was that Sibusiso held onto a knife, ran after being shot and his arm sustained a fracture. This evidence, said the judge, was improbable in the least.

Judge Tshabalala also said Allen’s evidence was that the evidence that the bullet entered Sibusiso’s elbow was not disputed by the defence. However, the judge pointed out that Allen struggled under cross-examination to explain how a bullet fired from the front could enter the back of the arm.

Allen had informed the court that he aimed the gun at Sibusiso’s

raised hand to disarm him and that is how the bullet entered the back of the arm. Allen first told the court that he did not know what happened to the purported knife carried by Sibusiso after the shooting.

The judge also noted that Detective Assistant Superintendent Manyatsi, who was the investigating officer, failed to give evidence showing any investigation of Allen’s claim that Sibusiso tried to stab him with a knife.

TruTh

The officer, according to the judge, contended himself with simply saying that his investigation showed that Allen was not telling the truth. “It will be recalled that PW6 (investigator) discredited himself by denying before the court that the accused told the police, including himself, that he shot a person who tried to stab him. It was only when this witness was confronted with documents stating the same that it became clear that he deliberately suppressed this piece evidence and misled the court on this point,” said the judge.

The judge also said when Allen shot Sibusiso, as evidence showed, he was not in danger. “The accused was in no danger from the complainant when he shot him. The accused was pursuing the complainant,” the judge added. The judge further added that Allen and his two witnesses, Arnold and Bennett, fabricated their evidence in an attempt to assist him to escape the legal consequences of his action. The court found that it was not true that Allen acted in self-defence.

It found that the use of a firearm, a lethal weapon, indiscriminately was sufficient proof of the requisite intention to kill, ‘which is sufficient basis for a finding of guilt for attempted murder as charged’. Allen was represented by Human Rights Lawyer Sipho Gumedze. Crown Counsel Khumbulani Mngometulu appeared for the Crown.