IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CRIMINAL TRIAL NO. 61/09
In the matter between:
REX
VS
MFANUKHONA DLAMINI
CORAM MCB MAPHALALA, J
FOR CROWN MR. S. FAKUDZE
FOR DEFENCE MR. B. SIMELANE
JUDGMENT
26 JULY 2010
[1] The accused was charged with Murder in that upon or about the 8th November 2008 at or near Hlahlayibovu area in the Shiselweni Region he unlawfully and intentionally killed Sibusiso Dlamini. He pleaded guilty to Culpable Homicide and, the Crown accepted the plea.
[2] A Statement of Agreed Facts was read in Court, and, it provided the following:
“Whereas the accused is charged with the crime of Murder, he pleads guilty to Culpable Homicide and the Crown accepts the plea.
And now it is agreed that:
The conduct of the accused was both unlawful and negligent.
The deceased died as a direct result of the unlawful and negligent conduct of the accused.
The deceased died due to haemorrhage as a result of penetrating to aorta (blood vessel) as a result of conduct of the accused when he stabbed the deceased with a knife.
On the fateful day, the accused siblings were engaged in a fight and the accused stepped-in to intervene. The deceased was one of the fighting duo and he was older than his opponent.
The accused produced a knife and stabbed the deceased after he failed to stop the fight between his brothers, and, the deceased was now also turning his attention to the accused as well. The deceased fell down and the accused walked away and sat a distance away.
When stabbing the deceased, the knife was stuck and it remained lodged into deceased’s body. The knife was removed by PW1 who gave it to the accused after he (accused) demanded it back. The accused then threw the knife down next to the deceased who was still lying down.
The deceased died on the sport on the fateful day after being stabbed by the accused.
The accused was arrested on the same day 8th November 2008 and has been in custody ever since.
This statement and the report on the post-mortem examination on the body of the deceased are submitted by consent to form part of the evidence.”
[3] A post-mortem report was admitted in evidence by consent, and it was marked Exhibit 1. The deceased died due to haemorrhage as a result of a penetrating injury to the aorta.
[4] In the light of the Statement of Agreed Facts, the Post-Mortem report as well as the plea, the Court is satisfied that the Crown has discharged the onus of proving the commission of the offence. The accused is convicted of culpable homicide. It is common cause that the accused was intervening in the fight between his siblings; after failing to stop the fight, he produced a knife and stabbed the deceased who was older. The deceased and his sibling were not armed, and, there was no imminent danger to the accused. A reasonable man in the position of the accused would not have stabbed the deceased as he did but would have continued intervening failing which to call for assistance. There was no justification for the accused to have acted the way he did.
[5] In mitigation of sentence the defence submitted that he was a first offender, that he was twenty four years of age and still young and needed to be afforded another chance in life, that since he was young he deserved a reformative sentence, that his plea of guilty demonstrated remorse, that he had been in custody since his arrest on the 8th November 2008, that society will always stigmatize him for having killed his own brother.
[6] The accused committed a very serious offence. This was a brutal and unprovoked attack on the deceased. The deceased was not armed and there was no danger to either the accused or the other sibling. The conduct of the accused was reprehensible and it demonstrates a lack of respect for the sanctity of life. The reckless and, inconsiderate and casual use of knives in killing innocent people has reached alarming proportions; it is a cause for concern. In as much as the individual circumstances of the accused will be considered when passing sentence herein, the interests of society will likewise be taken into account.
[7] It is now settled that sentences in culpable homicide cases is ten years for the most serious cases. See the cases of Vusi Madalule Masilela v. Rex Criminal Appeal No. 14/08, Musa Bhondi Nkambule v. Rex Criminal Appeal No.6/09 as well asMusa Kenneth Nzima v. Rex Criminal Case No. 21/07. This precedent is subject to the peculiar facts of the case and the personal circumstances of the offender.
[8] In the circumstances, the accused is sentenced to ten years imprisonment four years suspended for five years on condition that he is not convicted of an offence involving violence during the period of suspension.
M.C.B. MAPHALALA
JUDGE OF THE HIGH COURT OF SWAZILAND
