IN
THE HIGH COURT OF SWAZILAND
CASE
NO.115/98
IN
THE MATTER BETWEEN:
REX
VS
JUSTICE
TEYA
MAVIMBELA
CORAM: MASUKU
J.
FOR
THE CROWN: MR
P.
L.
K.
NG'ARUA(D.P.P.)
FOR
THE ACCUSED: MR G.M. MASUKU
JUDGEMENT
ON EXTENUATING CIRCUMSTANCES
26/01/2000
On
the 16th December 1999, the accused was found guilty of having
committed the crime of murder.
With
the assistance of Counsel on both sides, the Court found that
extenuating circumstances were existent and I then indicated that
reasons therefor would follow in due course. These now follow:-
Section
295 of the Criminal Procedure and Evidence Act 67/1938, provides as
follows:-
(1) If
a court convicts a person of murder it shall state whether in its
opinion there are any extenuating circumstances and if it is of the
opinion that there are such circumstances, it may specify them:
Provided
that any failure to comply with the requirements of this section
shall not effect the validity of the verdict or any sentence imposed
as a
2
result
thereof.
(2) In
deciding whether or not there are any extenuating circumstances, the
Court shall take into consideration, the standards of behaviour of an
ordinary person of the class of the community to which the convicted
person belonged.
In
R v VILAKATI AND ANOTHER 1977 - 78 SLR 133 at 134 D, Nathan C.J., as
he then was, stated that in extenuation the question is "whether
there are any circumstances, not too remotely or indirectly related
to the commission of the crime which bear upon the accused's moral
blameworthiness in committing it." In other words, extenuating
circumstances may be referred to as any factors bearing on the
commission of the offence, which morally, although not legally,
reduce an accused person's blameworthiness or degree of
guilt.
In
the case of DAVID KALELETSWE AND 2 OTHERS v THE STATE Criminal Appeal
26/94, a judgement of the Botswana Appeal Court which was adopted by
our Court of Appeal, in DANIEL DLAMINI v REX Appeal Case No. 1l/98,
it was held that the duty to establish whether extenuating
circumstances exist falls upon the Court. This appears to be
supported by the legislative nomenclature in sub section (1) of
section 295 quoted ipsissima verba above. In the case of S v LETSOLO
1970 (3) SA 476 (AD), Holmes J.A. stated that some factors which
might be relevant to extenuation include immaturity, intoxication,
provocation and many others, the list being inexhaustive. It was
argued on the accused's behalf that because of the evidence, which
was accepted by the Court that the accused was inebriated when he
committed the offence in question, intoxication should be regarded as
an extenuating factor in this case.
In
the spirited argument, Mr Ng'arua argued that intoxication per se
should not be regarded as an extenuating factor. What must be shown
is that the cumulative effect of that factor probably had a bearing
on the accused's state of mind in doing what he did. Mr Ng'arua
further argued that if intoxication per se would be held to be an
extenuating factor, that would tend to send wrong signals to members
of the public, namely that if you are inebriate when you commit
the
offence, your crime will inevitably attract a lesser sentence than
that of a sober
counter
part. This submission has a lot to commend itself for.
3
Having
considered the facts in this case, I come to the conclusion, although
not without hesitation that intoxication does in casu rank as an
extenuating factor, regard being had to the evidence that the accused
had been drinking the whole of the previous night and continued to
drink on the day of the deceased's death. No one can be able to
ascertain the effect the consumption of such large volumes of alcohol
had on the accused's state of mind. Certainly, the circumstances in
which the offence occurred is an inducium that the accused may not
have been in full possession of his mental faculties, his sense of
humanity and compassion having been completely switched off. This may
be attributed to the excessive consumption of alcoholic beverages.
In
view of the aforegoing, 1 hold that intoxication does in casu
constitute an extenuating circumstance thus saving the accused person
from mandatory death sentence prescribed by the Criminal
Procedure
and Evidence Act, 67/1938.
T.S.
MASUKU
JUDGE
