I GET FLASHES OF THABANI’S LIFELESS BODY - DAD

MBABANE - “Following the discovery of my son’s body, I have never had any peaceful sleep.

“I constantly dream about the scene of his discovery.” These submissions were made by the father of the late Thabani Nkomonye, in his application to be allowed to file a letter of demand and institute legal proceedings against government. “I constantly have flashes of his picture lying there lifeless in the thorny thicket,” submitted the father. In motivating the application, Dumisa Nkomonye, brought it to the attention of the court that he had been hospitalised due to depression and he also suffered and continue to suffer from high blood pressure. “Sometimes I have to resort to sleeping drugs in order to attain sleep as I have developed insomnia. At times, I resort to drinking alcohol in order to get sleep as I am scared that I have taken too much sleeping tablets. My life has changed drastically and I am no longer a happy person,” submitted the father.

Thabani’s body was found near Nhlambeni on May 13, 2021, after, according to the coroner’s report; he had been flung out of the Mazda Demio he was driving when it was involved in an accident. Following the findings of the coroner, Thabani’s father and his (Thabani’s) mother, Siphiwe Mkhabela, want to serve a letter of demand to government but they are now time-barred as the 90 days from the date the alleged wrong occurred had elapsed.

Demand

The Limitation of Proceedings act of 1972 provides that if a person wants to sue the government for a civil wrong, she or he has to serve the attorney general (AG) with a letter of demand within 90 days from the date the alleged civil wrong occurred. The applicants (Dumisa and Siphiwe) want the High Court to declare Section 2(1) of the Limitation of Proceedings act of 1972 unconstitutional. Respondents in the matter are the Government of the Kingdom of Eswatini, National Commissioner of Police William Dlamini and the attorney general (AG).
Dumisa narrated to the court that on May 8, 2021, a black Mazda Demio with registration number VSD 584 AS, driven by his son Thabani, was involved in an accident near Nhlambeni along the MR 9 public road.

He told the court that the accident was attended to by the Matsapha Traffic police officers; Bhoncozi Kunene, Isaac Msibi and officer Thusi, who alleged that they came across the accident, while conducting a routine patrol around Hobile – Masundvwini. According to the applicant (Dumisa), the car was then towed to the Matsapha Police station at the instruction of the three police officers on the same night where it was discovered. He said the police alleged that the driver of the vehicle was not in the vehicle or around the scene and despite diligent search by them he was not found. The applicant recounted that his family then went to report Thabani as a missing person on May 11, 2021 at the Manzini Police Station. He brought it to the attention of the court that on May 13, 2021, the Manzini police called him and his family to advise that they had located Thabani’s car at Matsapha Police Station and it had been involved in an accident.

He alleged that together with some family members, they went to the Manzini Police Station for a formal report and it was agreed that they should proceed to the scene of the accident with the police. These are allegations whose veracity is still to be tested in court and the respondents are yet to file their papers. “Upon arrival at the scene of the accident, and hardly three minutes of my search, I discovered my son’s body dumped in a thicket of thorny shrubs (lusekwane) with his foot visibly protruding from the thicket. I collapsed on the ground as I was shocked and I cried heavily. Thabani’s mother came behind me and witnessed the body and she too fell on the ground and started crying,” submitted Dumisa.

Restrictions

He submitted that because of the COVID- 19 restrictions at that time, it became difficult for the family to congregate and to mourn the death of Thabani. He said their bereavement was a difficult era. “As if to add salt to the wound, on the May 21, 2021, during the memorial service of my late son, at St Paul’s High School in Manzini, without any provocation or justification whatsoever, the police invaded the memorial service and fired tear gas canisters and rubber bullets on us and dispersed all the mourners. “The shock and indignity I experienced is indescribable,” averred the applicant. He highlighted that the discovery of his son’s body on May 13,2021 sparked a nation-wide uproar which culminated into protests hash tagged ‘Justice for Thabani’, since his death was questionable to them and to the public at large.

Dumisa  submitted that on May 17, 2021, a coroner was appointed in terms of Section 26 of the Inquest Act, 1954 by the then acting prime minister to conduct an inquest into the circumstances surrounding his death. “The said inquest took its toll on us as his immediate family particularly myself and his mother. I could not believe that my beloved son had pre-deceased me, more so in the manner that he did and also because I had to be reminded about his passing every day when the witnesses were making their submissions and the public making comments on social media platforms about his death on a daily basis,” contended Dumisa.  According to Dumisa, the coroner confirmed in her report when making her findings that the Matsapha police were negligent in handling the accident scene and particularly did not follow procedure when conducting the search for Thabani at the accident scene.

Confined

He said the coroner found that instead of instituting a search party within eight hours of the accident and conducting a search within a 100 metre radius of the scene, the police confined themselves to a seven metre radius while Thabani’s body was found within 18 metres of the accident scene. “The police’s negligence is a factual, direct and legal cause of the damages I have suffered as result of the shock and psychological stress I have undergone and continue to undergo as a result of me discovering my son’s body in a thorny thicket,” submitted the applicant.  It was his contention that had the police conducted a proper search for Thabani at the time of the accident and followed proper procedure in doing so, he would not have suffered the shock and psychological trauma he allegedly suffered during the time when his son was reported missing to the time of his discovery. He argued that had the police followed the laid down procedure, he would not have suffered the shock and psychological trauma as well as the post traumatic consequences arising from him discovering his lifeless body near the accident scene.

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