R v Ngcamphalala and Others ((149/08)) [2010] SZHC 115 (26 July 2010);

                       

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE           CRIMINAL TRIAL NO. 149/08

 

 

In the matter between:

 

 

REX

 

 

VS

 

 

1. ISAIAH NGCAMPHALALA

2. JOSEPH MAHLALELA

3. THEMBI KUNENE

 

 

 

CORAM                                                MCB MAPHALALA, J

 

FOR CROWN                                        MS. N. HLOPHE

 

FOR DEFENCE                                            MR. G.N. LANGA

 

 

 

JUDGMENT

26^th JULY 2010

[1]    The accused were charged with murder in that upon the 18^th April 2007 and at Mayaluka area in Big Bend in the Lubombo Region, the accused, each or all of them acting in furtherance of a common purpose unlawfully and intentionally killed Nhlanhla Tsabedze.

 

[2]    The accused pleaded guilty to Culpable Homicide and the Crown accepted their plea.

 

[3]    A Statement of Agreed Facts, signed by the Crown as well as the accused was admitted in evidence.  It states as follows:

       

“Isaiah Nkosinathi Ngcamphalala, Joseph Zikhali Mahlalela and Thembi Kunene (herein referred to as Accused 1, 2, and 3 respectively) stand charged with the offence of Murder which charge has been reduced to Culpable Homicide. The accused have all individually pleaded guilty to the lesser charge of Culpable Homicide, which pleas the Crown accepts.

        The accused admit the following:

On the 18^th April 2007 the accused persons were at Mayaluka when the deceased who was mentally challenged came to the house of Accused 3 with the intention of throwing human waste as he would usually do.  The deceased would throw human waste also at the house of Accused 1, a number of times.  Accused 1 chased the deceased but the deceased outran him and hid in a house belonging to a ZCC.  The accused persons looked for him and found the deceased in the house of the ZCC where they grabbed him and came out with him where they assaulted him with a knobkerrie.  Accused 3 further assaulted the deceased with a broom stick.  PW1 and PW3 advised them not to assault the deceased but instead call the police.  The accused persons never took his advice and continued to assault the deceased.

The accused further admit that the deceased was tied both hands on the back and on the legs with a rope and they assaulted him all over the body.

On the 27^th April 2007 a post mortem examination was conducted on the body of the deceased by Dr. R.M. Reddy (PW9), a police Pathologist who opined that the cause of death was due to ‘Multiple Injuries’.  The accused agree that the post mortem report be admitted as part of the evidence.

 

Accused 1, and Accused 3 are out on bail whilst Accused 2 was arrested on the 20^th April 2007 and has been in custody ever since.  The accused persons are remorseful for their actions

 

The accused persons admit that:

• The deceased, Nhlanhla Tsabedze is dead.
• They committed the unlawful and negligent act on the deceased and there was no legal justification.
• The injuries inflicted by them were the immediate cause of deceased’s death and there was no novus actus interveniens.
• The act of assaulting the deceased with a knobkerrie on the body was dangerous and foreseeable in the sense that a sober and reasonable person in the circumstances of the accused persons would recognise that it carried some prospect of fatal harm. 

 

The following will be produced as evidence.

• Post-Mortem Report
• Photographs of the scene of crime
• Knobkerrie”

 

[4]    A Post-Mortem Report was admitted in evidence by consent, and it is marked Exhibit 1; it was compiled by Dr. Komma Reddy, a police Pathologist employed by the government. He concluded that the cause of death was “Due to Multiple Injuries” inflicted upon the deceased.  Five injuries were incurred on the deceased, namely lacerated wounds over scalp with subdural haemorrhage over brain, abrasions over forehead, intermingled contused abrasions over upper and lower limbs, two ribs fractured and laceration over left ankle.

 

[5]    After considering the evidence before me, I am satisfied that the Crown has proved the commission of the offence beyond reasonable doubt.  Accordingly, I find the accused guilty of Culpable Homicide.

 

[6]    In mitigation, it was submitted on behalf of the First accused that he was 33 years of age, has four minor children to support including his elderly mother, and that he is employed by Illovo Ubombo Sugar Ltd.

 

[7]    It was contended on behalf of the Second Accused that he is 35 years of age, both his parents have died, he is a Mozambican National having come to this country to seek employment, and that he has been in custody since 20^th April 2007 because he does not have money to pay bail.

 

[8]    The Third Accused is 31 years of age, she has two minor children to support, she is employed as a maid, prior to her release on bail she had been in custody for 18months having been arrested on the 20^th April 2007, and that she is a sickly person as she was once involved in a motor vehicle accident.

 

[9]    All accused are first offenders.

 

[10]  I have considered the personal circumstances of the accused as well as the interests of society.  The accused are charged with a very serious offence in consequence of which the deceased died.  The deceased was mentally challenged.  It is apparent from the evidence that the accused were provoked by the action of the deceased; however, the violence they inflicted upon the deceased was not commensurate with the provocation.  It is also the evidence of the Crown that an attempt was made by two Crown witnesses to advise the accused to stop assaulting the deceased and report him to the police but they ignored the advice and proceeded to assault the deceased.

 

[11]  For provocation to avail as a defence to an accused, he must commit the act which causes death in the heat of passion caused by sudden provocation before there is time for his passion to cool.  Most importantly, the act which causes death must bear a reasonable relationship to the provocation.

       

• Sections 2 and3 Homicide Act No. 44 of1959
• Rex v. Aaron Fanyana Mabuza 1979-1981 SLR 30 at35 A-C.
• R. v. Nkambule Paulos 1987 – 1995 (1) SLR 400 at405 F, G (HC).

 

[12]  In the case ofR. v. Aaron Fanyana Mabuza (Supra) at 35 A-C, His Lordship A.C.J. Cohen Stated:

       

“The nature of the accused’s conduct must bear some relationship to the insult (or wrong) done to him.  It is not every case where there has been provocation which entitles the resort to a severe form of violence…. to establish absence of intention… the provocation must have been commensurate with the violence following on it…. if the violence bore no reasonable relationship to the provocation, it was not such as would have been resorted to by a reasonable man.”

 

[13]  In the case of R. v. Nkambule (supra) at405 F, G His Lordship Rooney J stated:

 

“It is a fact of life that people abuse and threaten each other in confrontation.  The Homicide Act only applies to grave insults likely to deprive an ordinary person of his self-control.

 

In any event, it is provided by Section 2 (2) of the Homicide Act that Section 2 shall not apply unless the Court is satisfied that the act which causes death bears a reasonable relationship to the provocation.”

 

[14]  In the circumstances, I will sentence the accused to nine years imprisonment four of which are suspended for five years on condition that they are not convicted of an offence in which violence is an element.  The sentence of the First Accused will commence on the 28^th June 2010 but will also take account of the eight months he spent in custody; the sentence of the Second Accused will commence on the 20^th April 2007 being the date of his arrest.  The sentence of the Third Accused will commence on the 28^th June 2010 but will also take into account the eighteen months she spent in prison prior to being released on bail.

 

 

 

M.C.B. MAPHALALA

JUDGE OF THE HIGH COURT OF SWAZILAND