HIGH
COURT OF SWAZILAND
CRIMINAL
CASE NO.81/03
In
the matter between:
REX
VS
ERIC
MDUDUZI ZIKALALA
CORAM
: MATSEBULAJ
FOR
THE CROWN : MS. LUKHELE
FOR
ACCUSED : MR. SIMELANE
JUDGEMENT
25™ MAY 2004
You
stand charged with the crime of culpable homicide. The allegation
being that upon or about the 6th April 2003 and/at or near Matsapa
area in the District of Manzini the accused did unlawfully kill
Lungile Maseko' and did thereby commit the crime of culpable
homicide.
2
When
the charge was put to the accused, he pleaded guilty to culpable
homicide. The accused is represented by Mr. Mngomezulu who confirmed
the plea of guilty to culpable homicide by the accused. The Crown
then indicated that they were accepting the plea to culpable homicide
as charged and therefore there was no need especially in the High
Court to lead evidence to prove the commission of the offence as it
happens in the Magistrate Courts.
The
High Court then is obliged to proceed to deal with this matter and
dispose of the case without hearing any further evidence but a
practice has evolved in terms of which the Crown and the defence
prepare what we refer to as statement of agreed facts. This statement
is prepared from the nature of the charge sheet and the summary of
evidence. That is necessary in order to place the court in a position
which both counsel who have at their disposal the evidence which was
supposed to be led agree upon and they place the court in the same
position in which the court will understand what happened.
The
agreed facts are such that they encompass the indictment as framed.
And by consent the Crown has also handed in the report on post mortem
examination. I have gone through the summary of evidence and have
looked at the statement of agreed facts. The court is satisfied
therefore that the plea to culpable homicide is justifiable in the
circumstances of this case. The court consequently finds you guilty
of culpable homicide.
JUDGEMENT
ON MITIGATION
You
have been convicted as charged of culpable homicide. Your counsel Mr.
Mngomezulu has advanced certain factors in your favour which he asked
the court to take into account in considering what an appropriate
sentence would be. Similarly, the Crown has also advanced certain
factors which should be taken into account in arriving at an
appropriate
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sentence.
Factors which the court will take into account in the interests of
the society in which you live.
In
these conflicting interests that is those of the accused and those of
the society and also the prevalence of the crime of which you have
been convicted will be taken into account in order to arrive at a
just sentence. It is not good at this stage to take into account the
interests of the accused person and completely ignore those of the
society and also the prevalence of this type of crime especially
where the sanctity of life is affected and a human being has lost his
life.
JUDGMENT
ON SENTENCE
We
do not exercise our discretion arbitrarily, we go in accordance with
the law which has been blessed by His Majesty and passed by
parliament. They are aware that His Majesty too does not rule
arbitrarily but he also has a number of advisors. For people who are
members of the society to say why did this Judge not sentence a
rapist to hang is misunderstanding the laws of the country. It is
upon that individual to read the laws and understand. We can only do
that if you as members of the public had given the parliamentarians
to pass laws that those rapists should hang. Then only and only can
we pass sentence which you would like us to pass provided you have
gone to your representatives in Parliament and asked that the laws
can be changed to suit your desires.
In
a case of culpable homicide these courts, especially the High Court
has discretion. Sometimes we can refuse to give an accused an option
of fine and send him straight to jail without an option of a fine but
the sentence should not be more than the sentence that should be
given to a person who is charged and convicted of murder
.
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I
am explaining this because there might be certain people present here
who are related to the deceased who might have a feeling that the
courts are too lenient on people who kill other people.
You
have been convicted of a very serious crime. You have brought about a
death of a human being. Judging by your age and the fact that she,
according to the addresses by your counsel, that deceased bored you
one child. One can safely say that she was at the prime of her life
when you took her life.
Your
counsel has informed me that you had engaged in a spree of drinking
intoxicating liquor. It is difficult for me to consider that in your
favour, the habit of drinking excessively because that in itself an
evil that society must try by all means to uproot and get rid of.
People who voluntarily engage in this habit are known to commit all
sort of evil under the guise that they were under the influence of
liquor. In my view, that can never be taken in your favour in order
to justify a lenient sentence.
You
voluntarily lifted up a glass or whatever you were using. That first
sip you took ended up in the loss of life, you are the architect of
your own misfortune. You were one of the few fortunate people to have
respectful employment i.e. being a warder. I take it into account
that you are likely to lose your employment as your counsel has
indicated. However, as I have indicated and hasten to add that you
are your own architect of your own misfortune. It is unfortunate that
you have minor children who are innocent and as a result of what you
did they will have to suffer. I take into account that you have shown
remorse before this court for the crime you committed by pleading
guilty and coming up with an open heart.
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Your
counsel has asked me to suspend the sentence wholly or a portion
thereof and impose an alternative for you to pay a fine. As a first
offender I take that into account. However, Mr. Fakudze on behalf of
the Crown has also pointed out that the deceased you killed had
relatives who will feel aggrieved if you are given a very lenient
sentence. He went on and I agree with him that there is no amount of
money that can be paid in order to compensate the relatives of the
deceased or to bring back her life. Hence the importance that people
who engage in drinks be careful how they go about - they must not do
so that at the end of the day someone loses one's life.
I
do not believe that story that she had been engaged in illicit sexual
intercourse with your relative because if you were drunk you could
easily have mistaken things and come up with that story. I say this
because you had beaten her heavily that she had to, at the end of the
day admit that she had committed the illicit act.
This
court must also take into account the prevalence of these crimes that
is killing of members of the society. The High Court is mainly busy
with crimes committed against other human beings by some of the
people like yourself who kill them. Considering all the factors in
your favour and those against you, the Court impose the following
sentence as an appropriate one:
You
are hereby sentenced to pay a fine of E5 000 (five thousand
Emalangeni) in default of payment to undergo an imprisonment for
three years in jail. You are further sentenced to an imprisonment for
three years without an option of fine. This last mentioned sentence
is suspended for a period of three years on condition that you are
not convicted of any crime of which violence is an element in respect
of which you are sentenced to an imprisonment without
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an
option of fine and committed during the period of suspension of this
sentence.
J.M.MATSEBULA
Judges
