THE HIGH COURT OF SWAZILAND
the matter between:
THE CROWN : MISS NDERI
THE APPELLANT : MR. MAZIYA
was charged with and convicted on a charge of murder. Extenuating
circumstances were found to be present and he was sentenced to 10
years' imprisonment. He now appeals against this sentence.
Appellant advanced a number of personal circumstances which he
contended should move the court to reduce the sentence. However, he
urged us in his written submission to take into account other
"serious extenuating circumstances" which the Court a quo
had failed to place into the scale. In this regard he pointed to the
previous aggressive conduct of the deceased towards him: the fact
that the deceased had falsely accused him of having a sexual liason
with the deceased's wife, and, most importantly that the deceased had
a scuffle which preceded the murder inflicted a penetrating
stab-wound into his (the Appellant's) cheek. This caused him, as he
put it, to "lose his sanity" -particularly as he was under
the influence of liquor at the time.
Court asked Ms. Nderi who appeared for the Crown to address us as
amicus curiae on the question of sentence. She did so because
regrettably, the trial Judge - the late Thwala J - had effectively
denied Counsel who appeared for Appellant in the Court below, the
opportunity of presenting any kind of coherent argument to the court.
The Judge repeatedly interrupted Counsel, argued with him and
harrangued him in such a persistent manner that the hearing on
sentence became farcical. Moreover in his findings on the existence
of extenuating circumstances he says only the following:
You have been convicted of murder. What I have to find now is whether
there are any extenuating circumstances. I have mentioned in my main
judgment that you prepared for this murder and I have also considered
that you received a stab wound before you committed the murder. There
is evidence that you had taken liquor, this very day and this
evidence is from the Crown witnesses.
I have reluctantly come to the conclusion that because you were under
the influence there are
Nderi very fairly pointed out that there was no reference to the
false allegations levelled at the Appellant by the deceased, that the
latter had assaulted Appellant by stabbing him in the cheek, had been
the aggressor in the dispute between them and that it was this
conduct that prompted the Appellant to collect the axe with which he
assaulted and killed the deceased. The events were - as Miss Nderi
indicated - a continuous series of acts without any extensive
"cooling off period."
are indebted to Miss Nderi for her fair and able submissions. We are,
because of the unacceptable conduct of the Court a quo, at large to
determine sentence afresh. Having regard to both the aggravating and
extenuating circumstances we conclude that an appropriate sentence
would be one of 7 years' imprisonment.
conviction on a charge of murder is confirmed. The sentence of 10
years' imprisonment is set aside; in place thereof a sentence of 7
years' imprisonment is imposed.
on this 7th days October 1996.