IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CRIMINAL TRIAL NO. 233/08
In the matter between:
REX
VS
SIPHO MBHOBHO NKAMBULE
CORAM MCB MAPHALALA, J
FOR CROWN MR. S. FAKUDZE
FOR DEFENCE MR. B. SIMELANE
JUDGMENT
2nd AUGUST 2010
[1] The accused was charged with Murder in that upon the 6th December 2007 and at Musi area in the Manzini region, he unlawfully and intentionally killed Kukhanya Khumalo. He pleaded guilty to Culpable Homicide, and the Crown accepted the plea.
[2] A Statement of Agreed Facts was submitted in Court and signed by both parties. It states as follows:
“Sipho Mbhobho Nkambule, (hereinafter referred to as the accused) stands charged with the offence of Murder. He has pleaded guilty to the lesser charge of Culpable Homicide, which plea the Crown accepts.
On the 6th December 2007 at Musi Area in the Mankayane sub-region, Manzini region at around 1300 hours, the accused in the company of a number of people including PW2 and the deceased, were imbibing in traditional Swazi beer at Madoda Mabuza’s (PW1) homestead. For reasons unknown to the Crown, the deceased suddenly and without notice slapped accused very hard with an open hand on his face.
At that moment the accused did not retaliate, but reported to PW1, as the owner of the homestead, that the deceased has slapped him for no apparent reason. The accused person then paced up and down (10 metres both ways) loudly speaking to himself that the deceased was challenging him. At that moment the deceased was quietly standing by the gate.
A few minutes later the deceased rejoined a group of four people and continued imbibing in the traditional Swazi beer. The accused then quickly approached the deceased with an okapi and stabbed him once on the back just below the shoulder. The police were called and they took the deceased to Mankayane Hospital, where he was certified dead on arrival.
The police then returned to Musi area and proceeded to search for the accused who was found at his homestead. He was promptly arrested and the okapi knife seized from him. At that moment the okapi knife was wiped clean with no bloodstains on it. The date when the arrest was effected on the accused was still the very same 6th December 2007.
On the 13th December 2007, Dr. Komma Reddy (PW7), a police Pathologist conducted a post-mortem examination on the corpse of deceased. He opined that the cause of death was ‘Due to stab wound to the back side of the chest’.
By stabbing the deceased with a knife resulting in the injuries found by PW7, the accused unlawfully and negligently caused the deceased’s death and there was no legal justification for accused’s illegal conduct as the deceased at the crucial time immediately preceding the stabbing was not a threat to the accused.
The accused admits that:
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the deceased is dead;
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he committed the unlawful and negligent act on deceased;
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the said act was the immediate cause of deceased’s death and there was no novus actus interveniens;
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such act was dangerous in the sense that a reasonable person would recognize that it carried some prospect of fatal harm.
The following will be produced as evidence.
[3] A Post-Mortem Report was admitted in evidence by consent and it was marked Exhibit 1. The report stated that the cause of death was ‘Due to Stab Wound to the Back Side of the Chest’.
[4] The knife used in the commission of the offence was admitted in evidence by consent; it was marked Exhibit A.
[5] The accused pleaded guilty to the charge and there is no need for the Crown to lead further evidence. The Statement of Agreed Facts does outline in detail the circumstances leading to the death of the deceased; the evidence in the Statement is corroborated by the Post-Mortem Report. A reasonable man in the position of the accused would not have acted in the manner that he did. The deceased and the accused were drinking traditional liquor with other people when the former slapped the latter very hard on the face with an open hand. The accused did not retaliate but reported the incident to the owner of the homestead. The deceased by then was standing quietly by the gate. When the deceased realised that the accused was not retaliating, he rejoined the group of four men who were drinking the traditional beer.
[6] The accused without uttering a word pounced on the deceased and stabbed him once on the back below the shoulder. It cannot be said that the accused in stabbing the deceased acted in the heat of passion caused by the sudden provocation and before there was time for his passion to cool. There was time which lapsed between the assault upon the accused and the stabbing of the deceased. Furthermore, it cannot be said that the act which caused the death bore a reasonable relationship to the provocation in accordance with Section 2 of the Homicide Act No. 44 of 1959. The deceased was not armed and he did not pose any threat to the life of the accused.
[7] In the case of R. v. Aaron Fanyana Mabuza 1979 – 1981 SLR 30 at35 A-C His Lordship Cohen A.C.J. 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…. The use of an insulting epithet would not constitute adequate provocation to reduce the crime from murder where the accused has drawn a lethal weapon and killed the provoker…. if the violence bore no reasonable relationship to the provocation, it was not such as would have been resorted to by a reasonable man.”
[8] In the case of Rex v. Paulos Nkambule 1987 – 1995 (1) SLR 400 at405 F, G (HC), 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 that Section 2 shall not apply unless the Court is satisfied that the act which causes death bears a reasonable relationship to the provocation.”
[9] The defence of provocation cannot avail the accused in the circumstances. The accused is convicted of culpable homicide.
[10] In mitigation of sentence, the defence submitted that the accused was provoked and that the deceased is the author of his own destiny, that the accused had been drinking alcohol for a better part of the day, that he is illiterate and doesn’t have a wife or children, he was self-employed as a cobbler, that his plea of guilty shows remorse, and that he is a first offender, that the accused has been in custody since his arrest on 6th December 2007 and that his sentence should be backdated to the date of arrest.
[11] In passing sentence, I will take into account the personal circumstances of the accused as well as the interests of society. However, the accused overreacted in using the knife; a reasonable person in his position would not have acted in the manner that he did. There is a sharp increase of cases in this country where knives are used to kill innocent people in settling minor disputes.
[12] The accused will be sentenced to ten years imprisonment three years of which will be suspended for five years on condition that he is not convicted of an offence involving violence during the period of suspension. The sentence will commence from the date of arrest on the 6th December 2007.
M.C.B. MAPHALALA
JUDGE OF THE HIGH COURT OF SWAZILAND
