THE HIGH COURT OF SWAZILAND
CASE NO. 125/98
the matter between
& 3 OTHERS
MAPHALALA - J
the Crown MR. J. MASEKO
the Defence MR. S. MAGONGO
ON EXTENUATING CIRCUMSTANCES
this stage of the proceedings the court has to establish whether
there are extenuating circumstances for the accused to escape the
sentence of death as prescribed by the provisions of the Criminal
Procedure and Evidence Act (as amended). The proper
of determining extenuating factors was enunciated in the case of the
Appeal Court in Daniel Dlamini vs Rex Appeal Case No 11/98 where
their Lordships after considering a number of decided cases (Biyana
1938 EDL 310 at 311, S vs Letsolo 1970 (3) S.A. 476 (A), R vs
Fundakubi and others 1948 (3) S.A. 810 at 818 and the landmark
decision of the Botswana Court of Appeal in David Kaleletswe and
others vs The State Criminal Appeal 26/94). They came to the
conclusion that no onus rests on the accused person to prove
extenuating circumstances. That it was the duty of the court. In that
case Daniel Dlamini (supra) their Lordships had this to say:
find ourselves in respectful agreement with the conclusion of the
Botswana Court of Appeal that no onus rests on an accused person and,
as mentioned earlier herein, the question of onus is really
inappropriate to the enquiry. This is made clear by what was said in
that case about the duty of the Court".
note in particular the significance which Scheiner J
ascribes to the "subjective side" and that no factor not
too remote or too faintly or indirectly related to the commission of
the crime" and which bears on an accused's moral guilt can be
ignored (R vs Fundakubi (supra).
seems to us that there is therefore an over-riding responsibility on
the Court and its officers - Counsel - to ensure that the second
phase of the process - the enquiry as to the presence or absence of
extenuating circumstances - is conducted with diligence and with an
anxiously enquiring mind. The purpose of the inquiry is inter alia to
probe into whether or not any factor is present that can be
considered to extenuate an accused's guilt within the context and
meaning described above...
all the evidence is in, the Court is obliged to evaluate the
testimony and submissions before it, consider and weigh all the
features of the case, both extenuating and aggravating ...This would
include evidence tendered during the second phase enquiry. It will
then make its "value or moral judgement".
casu the accused gave evidence under oath to prove that there are
extenuating circumstances. His story although it was not put to any
of the crown witnesses and only came at this stage is as follows: He
told the court that on the night before the commission of the
offences he went to his traditional healer (inyanga) for
been seeing this inyanga for sometime in respect of various maladies.
There Had developed a strong bond between himself and his inyanga,
which is akin to that of doctor and patient. The name of the inyanga
was one Sketi Jackson Dlamini who was to be the fifth crown witness
but was not called by the Crown. After he was treated for his
complaint that day the inyanga told him that a certain man by the
name of Elliot Dlamini was bewitching his family (inyanga) and as a
result of this many of his children and those of his brothers have
died. The inyanga then asked if the accused would come to their
assistance. The inyanga asked him if he could help them in killing
this troublesome man. The accused was taken aback and at first
declined to be involved in this scheme. However, after much
persuasion he agreed to be involved. The court asked him what made
him agree and he answered that because he felt that he owed the
inyanga for his treatment he was obliged to help the inyanga. He was
then given directions as to where he would find the man. He was also
given a gun. The inyanga further "cleansed" him with
the cleansing ceremony he felt awesome powers and had so much courage
that he was prepared for anything. He told the court he was not
himself after then. He was in some trance.
following day he. proceeded to Swaziland where he committed the
offence by killing the deceased and injuring the other man. He then
crossed the border back to South Africa and handed the gun to the
inyanga. He went back home to Durban after committing the offences.
appears to me that the defence submissions on this question are based
of this so-called "automatism" (if one were permitted to
use this word) and the accused age. It was submitted that the accused
was 22 years old when he committed the offence. It was argued that
the influence of the "muti" which was administered by the
inyanga on the accused was such that he could not exercise his own
faculties and reason. The court was told that the accused person
believed in the power of traditional medicine such that he would not
be held responsible for his actions.
was further argued in this regard that this story was to be put to
PW5; however, the Crown did not call him. I must say, that this is a
fallacious proposition to make in that throughout the trial accused
was denying having committed these offences or for that matter to
have been to Swaziland. His defence was that he was abducted from
South Africa by the Swaziland Police and brought to this country
where he was forced to make a confession against himself.
view on this matter is that this story is a complete fabrication and
it would be folly for this court to accept it for purposes of
establishing extenuating circumstances. This court is not going to be
hood-winked into believing it. I thus reject it in toto as a complete
fabrication not worthy of any consideration. Even if one were to
examine it one finds so many inherent improbabilities. The accused
tells the court that the before the commission of the offences he was
given the gun by the inyanga and the following day he crosses the
border to Swaziland where he committed the offences. This begs a
question as to who taught him as to how to use it as he had told the
court prior to this; he has never been involved with such things. He
portrayed himself as an innocent young man from Mlazi Location who
was unduly influenced by an older man to commit these offences. With
the greatest respect, I am unable to accept this story.
coming to the accused age as an extenuating factor. The court was
told that when the offences were committed the accused was 22 years
old. In this connection I have sought refuge in South African decided
cases. It appears that in the age group between 18 and 21 the courts
in South Africa have invariable found extenuating factors depending
on the facts of each case (see S v Lekaota 1978 (4) S.A. 684 (A) and
S v Lehnberg 1975 (4) S.A. 553 (a)). It would appear to me that the
age group above 21 years are for all intents and purposes regarded as
adults. I thus come to a finding that the age of the accused in the
present case does not constitute extenuating circumstances.
the totality of things, therefore I find that there are no
circumstances in this case.
passing sentence in this case I wish to make a few remarks. These two
offences indeed were, heinous offences. The deceased, an old man was
killed in cold blood by a man he did not know who deceived him that
he was to go with him to South Africa as his daughter was in trouble.
The complainant in Count two nearly died after being shot three times
by a man he did not know. His only sin was to help this man in
finding the deceased. The complainant was grievously injured such
that he told the court when giving evidence that he had not recovered
two years after the fact. These offences were committed in such a
chilling manner and a lot of calculation on the part of the accused
was applied. Surely, the courts ought to intervene to protect
innocent citizens from unknown gun-totting bandits with unclear
attorney has submitted before the court, that in imposing a sentence
I should consider imposing a life sentence. However I must tell you
that I cannot do that because according to the law I am enjoined by
Section 296 of the Criminal Procedure and Evidence Act to impose the
ultimate sentence, being that of hanging.
soliciting the advice of counsel in respect of how to structure the
sentences, my view is that I am going to sentence you separately.
sentence you to ten (10) years imprisonment.
terms of the Section 297 of the Criminal Procedure and Evidence (as
amended), you are hereby ordered to be returned to a place for safety
where you will be kept until the day of which you will be hanged by
the neck until you are dead.
the Lord be with your soul.