THE HIGH COURT OF SWAZILAND
AT MBABANE CRIMINAL
TRIAL NO. 105/09
the matter between:
accused was charged with the crime of
Homicide in that upon or about the 27th
November 2008 and at or near Vuvulane Area in the Lubombo region, the
said accused unlawfully and negligently killed Gerali Masinga.
accused pleaded guilty to the offence, and, the
accepted the plea.
Crown then handed into Court a Statement of
Facts signed by both the accused and Crown Counsel. The Statement was
read in court and the accused accepted that the contents thereof were
a true reflection of the statement to which he had agreed.
Crown further submitted into Court the knife
by the accused in the commission of the offence, seven photographs of
the deceased taken from the scene of the crime as well as during
Crown applied to have all the documents and
mentioned in paragraphs 3 and 4 admitted as part of the evidence of
the Crown. The accused did not object, and, these were all admitted
as part of the evidence of the Crown.
Komma Reddy, a Police Pathologist employed by
Government and based at the Police Headquarters in Mbabane conducted
the Post-Mortem Examination; and then he compiled a Report of his
to his Report, the deceased died from
wounds inflicted on the front and left side of the chest which
affected the left ventricle of the heart.
Statement of Agreed Facts provides:
Mathe (herein after referred to as the accused) stands charged with
the offence of culpable homicide, it being alleged by the Crown that
upon or about 27th
November 2008 and at or near Vuvulane area in the Lubombo district,
he unlawfully and negligently killed Gerali Masinga (herein called
the deceased). The accused has pleaded guilty to the charge which
plea the Crown accepts.
November 2008 at Khombaso Market place (Vuvulane) at around 1200
hours the accused and Thandi Dlamini (PW1) were selling various goods
in their respective stands. The deceased who was in a questionable
state of sobriety, approached the accused in his stand and called the
accused a boy and said he was going to piss on him. The accused
pushed the deceased who fell on the ground and upon rising up
manhandled the accused. The accused drew a knife from his pocket and
stabbed the deceased once on the chest. The deceased fell on the
ground with blood oozing from the wound.
who at the time was terrified, ran towards where Vusi Mhlongo (PW2)
and Mabhalane Zwane (PW3) were, and informed them of what had
happened. PW2 and PW3 proceeded to the scene of crime and found the
deceased lying on the ground. The accused was still at the scene of
crime and was dispossessed of the knife by
The police were called and promptly arrived. Pictures were taken of
the body of the deceased and the accused was arrested.
the deceased was conveyed to Good Shepherd Hospital whereat he was
certified dead upon arrival. On the 2nd
December 2008 at Siteki Mortuary, Dr. Komma Reddy (PW7) a Pathologist
conducted Post Mortem examination on the cadaver of the deceased. PW7
opined that the deceased died "Due To Stab Wound To Chest".
stabbing the deceased with a knife resulting in the injury found by
PW7 which caused the deceased's death, the accused unlawfully and
negligently caused the deceased's death.
accused admitted that:
said act was the immediate cause of the deceased's death and there
was no novus
following will be produced in evidence:
accused is accordingly convicted of Culpable Homicide on his Plea Of
Guilty in accordance with Section 238 of the Criminal Procedure and
Evidence Act No. 67 of 1938, and there is no need to hear any
accused was asked to mitigate before sentencing; however,
he declined and said he has nothing to say in mitigation. The court,
however, enquired about her marital status; and he confirmed that he
was married with three children.
Crown, in return, told the Court that the
was a first offender.
Supreme Court, in a number of cases, has held
a sentence of ten years in serious cases of culpable homicide was
proper. In the case of Nzima
v. Rex Criminal Appeal No. 21 of 2007, His Lordship Justice Tebbutt
are obviously varying degrees of culpability in culpable
offence. This Court has recognized this and in confirming a sentence
of ten years imprisonment in what it described as a extraordinarily
serious case of culpable homicide said that the sentence was proper
for an offence at the most serious end of the scale of such a crime."
page 9 of His Judgment, Justice Tebbutt states:
case must be decided on its own facts and therefore a bench-mark of a
certain number of years of imprisonment designed as an indication of
the court's aim to ensure severity in sentences in cases where knives
are used and lives are in consequences lost, without individualizing
the facts of the case and the personal circumstances of the offender,
is not an appropriate approach to sentencing."
agree wholeheartedly with His Lordship Justice
that there are varying degrees of culpable homicide and that each
case has to be decided on its own facts. I further accept that the
Supreme Court has set a ten year period of imprisonment for very
serious cases of culpable homicide.
the present case, the accused was provoked by
deceased but a reasonable man in the position of the accused could
not have reacted the way the accused did.
accused was aware that the deceased was very
and when he pushed him, he easily fell to the ground. Clearly, the
life of the accused was not in danger, and, the deceased was not
armed with any dangerous weapon.
the deceased rose from the ground, it is said,
he manhandled the accused; however, that was as much as a drunken man
could do. The force used by the accused against the deceased was
excessive and clearly not commensurate and proportiate to the alleged
conduct of the accused only shows the ever
habit in this country of stabbing people to death in settling minor
disputes and misunderstandings.
consider this case to be a very serious case of culpable homicide,
and, I consider a sentence of ten years imprisonment to be
appropriate in the circumstances; One year of this period would be
suspended for three years on condition the accused is not found
guilty of an offence in which violence to the person of another is an
element. The sentence is backdated to the date of his arrest on the
OF THE HIGH COURT OF SWAZILAND