PARENTS IN CHILDREN’S KILLING ESCAPE WITH LESSER CHARGES

MBABANE - Women and men who are arrested for the death of children at their hands continue to escape with lesser charges at the High Court.

The court has heard and determined a number of cases where minors had been killed by either their biological parents or stepparents and in most of these matters, it (court) found that there was no intention to kill on the part of the accused persons. According to a legal expert, this is usually caused by either the failure by the Crown to prove the intention to kill or the court having mentally projected itself into the position of the accused at the time the fatal act was done. The latest case is that of Fikile Zodwa Mabila, who had been charged with the murder of her three-year-old daughter, Nothando Thobela, at Maphungwane in the Lubombo Region.

Assaulted

Mabila assaulted the minor with a handle of a mop on her head after she found that she (minor) had soiled herself. After hearing the evidence, Judge Zonke Magagula came to the conclusion that the Crown failed to prove that Mabila had the intention to kill the minor and he proceeded to find her guilty of culpable homicide. Culpable homicide is defined as the negligent unlawful killing of another human being. Notably, the two crimes (murder and culpable homicide) are identical, except that murder requires intention, while culpable homicide requires negligence. In her confession, Mabila stated when she undressed the child, she found that she had soiled herself and this upset her. She stated that she then took a mop and hit the child twice on the head.

In his judgment, Judge Magagula said, on the evidence that was placed before him, he was not convinced that Mabila foresaw the possibility of the resultant death, but she ought to have foreseen that death might result, if a three-year-old was assaulted on the head with a mop handle. “Crown’s case founded on dolus eventualis. The Crown failed to prove that the accused foresaw the possibility that her conduct might result in death. Evidence proves culpa. That the accused ought to have foreseen that their conduct may result in death,” said Judge Magagula. Dolus eventualis or legal intention, is where an accused person can objectively foresee that their conduct is likely to cause the death of another, but proceeds to act, regardless of the consequences of his conduct.

Judge Magagula said there was no doubt and what the court must do, was to try project itself into the position of the accused at the time the fatal act was committed. He highlighted that the court was  informed that Mabila assaulted the minor because;  she ( minor) dropped her shoes on the way  from the clinic and she had to go all the way to the bus stop to look for them and because the minor soiled herself. “She may have acted out of anger but the inference that she foresaw that her actions could result in death of the deceased is,  to me, not only one that can be drawn from the these facts,” said the judge. In another similar case, a woman of Siteki, who fed her two children weevil tablets before swallowing her own in an attempt to commit suicide, was acquitted of murder and attempted murder.

Welile Mkhweli was charged with the murder of her 18-month-old son and attempted murder of her 10-year-old son.  The murder charge was reduced to culpable homicide and the attempted murder to assault. Principal Judge Qinisile Mabuza, in her judgment, said: “I have tried to mentally project myself into the position of the accused at the time she administered the weevil tablets to her children. It is a difficult exercise because I also have to caution myself not to readily accept the accused’s own evidence regarding her emotional stress.”   

Displayed

The court said Mkhweli displayed stress when she gave evidence. The principal judge said she was inclined to find that Mkhweli proved on a balance of probabilities that she was labouring under severe emotional stress when she committed these offences and she was entitled to partial excuse in respect of the count of murder. She said on the second charge which was that of attempted murder, Mkhweli could not be entitled to the defence of partial excuse. Another case is that of a tertiary student who killed his stepdaughter by suffocating her and hung her body on a school fence to prevent it from being eaten by dogs, was sentenced to seven years imprisonment.

This matter was also heard by Judge Magagula, who backdated the sentence of Petros Veli Mfuma, who was 22 years old when he was arrested in December 2019, to the date of his arrest. Mfuma had been charged with murder, but was convicted of culpable homicide. When Mfuma, who was studying Electrical Engineering in a South African college was arrested, he made a confession before Acting Magistrate Justice Mzizi. The confession lasted five hours and Mfuma told the court that he had no intention of killing his stepdaughter. The body of the baby was found near the fence at Bethany Mission Primary School on December 26, 2019 - a day after the murder had occurred.

Argument

Mfuma informed the court that he had an argument with his lover on the day of the incident, which emanated from him ordering her to put on closed shoes as her feet were allegedly cracked. Also there is another case of a woman, who was found guilty of culpable homicide after she threw her newborn baby in a forest. The court in its judgment considered a number of factors, which included that she was jilted by the father of the child while in hospital after giving birth and that she had no means to support the minor as she was unemployed. The alleged father of the child also came and visited her in hospital and denied paternity. In the Mabila case, the accused was represented by Nosisa Hlophe while appearing for the Crown was Senior Crown Counsel Sandile Mdluli.

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