CRIM.
CASE NO. 68/01
In
the matter between:
REX
AND
MANUEL
JOE SIBIYA
MICHAEL
VINCENT KHOZA-
.
CORAM
K.P. NKAMBULE-J
FOR
THE CROWN MR. MASEKO
FOR
THE ACCUSED PERSONS MR. SIMELANE
RULING
ON EXTENUATING CIRCUMSTANCES 18/6/04
The
Accused were jointly charged with a total of seven counts. They were
found guilty of four counts of murder.
The
Auccused No. 1 maintained throughout the trial that he did not
participate in the commission of the offences. That it was one
Bongani Vilakati who committed the murders and that he and Accused
No. 2 only helped in the burial of the four victims.
1
The
court cannot say anything regarding Accused No. 2's side of the story
because his attorney decided that he was not going to say anything in
defence. However, this court is aware of the fact that when Accused
No. 1 spoke he included Accused No. 2,
In
submission Mr. Simelane for the accused persons told the court that
it must find that there were extenuating circumstances. He stated
that the two were following Bongani's instructions in participating
in the commission of the offences. Indeed Accused No. 1 told the
court that he and A2 were afraid of Bongani who was a violent person.
He told the court that Bongani had two guns. According to Accused No.
1 they agreed to help him in the murders because they were afraid of
him.
Accused
No. 1 however, did not come out clearly when he was asked as to why
he did not report the matter to the elders of the area and the
community police. It is clear from the evidence given by the Accused
that the death of the four deceased persons were specifically thought
out and planned for.
The
court is, however, not at this stage concerned with the legal
culpability of the Accused. They have already been convicted. What we
are now concerned with is the moral blameworthiness of the Accused.
Accused No. 1 states that they were afraid of Bongani Vilakati. It
must be answered in the Accused's favour that at that stage their
power of objective reasoning was impaired by the fear they had. They
were overwhelmed by the constant threats they received from Bongani.
This factor has a bearing on the question of extenuating
circumstances.
The
required proof of the existence of extenuating circumstances is on a
balance of probabilities and not beyond all reasonable doubt. I am of
the view that the accused has, by showing that they were afraid of
Bongani
2
and
the circumstances underwhich the deceased were killed, discharged the
onus of showing that extenuating circumstances exist. I accordingly
find that extenuating circumstances exist in this case.
K.P.
NKAMBULE
JUDGE
3
