The accused herein was indicted with the crime of murder it being
alleged that on or about the 10th
April 2008 at or near Mpolonjeni area in the Lubombo Region the
accused unlawfully and intentionally killed Jibho Lucky Dlamini and
did thereby commit the crime of murder.
When the charge was put to him he pleaded not guilty. His attorney
confirmed the plea as per instructions.
The Crown led the evidence of seven witnesses. At the close of the
Crown case the defence tendered a plea of guilty to culpable
homicide as the Crown had failed to prove intention on the part of
the accused. The Crown wisely accepted the plea as in the Court's
opinion it had not proved the intention. The Court thereafter
convicted the accused of the crime of culpable homicide.
The facts of the case were disclosed by PW1. PW1, Celucolo Celani
Dlamini testified that on the 10th
April 2008 the day on which the deceased met his death he and the
deceased were enjoying some drinks. They started drinking at 4.00
p.m. They first drank at Ka Shoba Tavern and then in the evening
proceeded to a Ka Shiba homestead at Mpolonjeni. They went into the
hut where alcoholic brew was being served and purchased some brew.
While they were drinking the wife to the accused, Phumzile Dlamini
who was also in the hut asked to speak to the deceased Jibho Lucky
Dlamini. He complied and left the hut and went outside. He was gone
for sometime and PW1 left the hut and went outside to tell him that
they should leave as it was late. The deceased was talking to the
accused's wife. The deceased replied that he was coming; PW1
returned to the hut. Later, PW1 went outside and talked to the
deceased prevailing upon him to leave. The deceased instead
instructed PW1 to buy some more brew and to find a container in
which to pour the brew while he finished talking with the accused's
wife. PW1 did as instructed.
PW1 testified that the accused was also in the drinking hut. He sent
his daughter to call her mother, his wife. While the child had gone
to call accused's wife, accused left the hut and went home.
Accused's wife and the deceased entered the hut; but left soon
thereafter the deceased accompanying the accused's wife to accused's
home. After sometime after they had left, PW1 also left and caught
up with them before they reached accused's home. PW1 asked the
deceased where he was going to as it was late and they had to go
home. The deceased answered that the accused wanted tobacco and sent
both him and the accused's wife to purchase it. Along the way when
they were about to enter the main road the accused assaulted his
wife with a knob stick. When PW1 tried to intervene the accused
instructed him to get out of the way as he would get injured and PW1
did so. Meanwhile the accused continued to beat up his wife and when
PW1 tried to intervene the second time the accused pushed him away
and he fell. The deceased tried to help PW1 up but all that he saw
was blood oozing from the deceased. PW1 did not know what had
After the deceased was injured, the accused's wife shouted to the
accused that he had injured the deceased. When PW1 tried to go near
to the deceased the latter said he should keep away from him because
the accused had already killed him. PW1 did so.
The accused was arrested on the night of the 10th
April 2008 and charged with the murder of the deceased. The knife
which was used in the commission of the offence was handed over by
the accused to the police. It was handed in as exhibit 1. The
post-mortem report was handed in by consent as exhibit A. The
photographs of the deceased were handed in as exhibit Bl-
The Crown was unable to prove intention. From the evidence adduced
by the Crown it is clear that there was provocation of the accused
by the deceased in making advances to the accused wife. The deceased
was clearly the author of his own misfortune. Clearly the accused
cannot be found guilty of murder; but of culpable homicide.
After the accused tendered the plea of culpable homicide at the
close of the Crown case; the Crown having accepted same; the accused
was acquitted of murder and found guilty of culpable homicide.
I invited Mr. Bhembe to address me in mitigation on behalf of the
Mr. Bhembe asked the court to show mercy because the accused was a
first offender and in all his fifty five years he had never fallen
foul of the law. That showed that the accused was a law abiding
citizen. The accused was remorseful as the deceased was his
neighbour and his death would haunt him forever.
The accused had already suffered a set back because his home had
been burnt to the ground after the incident of the death of the
deceased. The accused has four minor children; three of them were
unable to go to school since his incarceration. The accused earned a
living by building houses before his arrest. His health is ailing.
He was arrested on the 10th
April 2008; and has been in custody since then.
Whilst I appreciate the accused's circumstances I must balance them
with other aspects of the case. The accused took someone's life. His
relatives lost a family member who cannot ever return to them.
Everybody has a right to life and no one has a right to take that
right away. I must also take into account the interests of society.
Society expects the courts to punish people who break the law and
commit such offences. Society also expect the courts to mete out
sentences that will serve as a deterrent to other would be
It is true that the accused was provoked by the fact that the
deceased was dallying with his wife but that was no excuse to take
the law into his own hands by taking the deceased's life. In Siswati
culture there are built in mechanisms as what a husband does to a
wayward wife; without the necessity of taking someone's life. She is
taken to her relatives to be warned.
I sentence the accused to ten years imprisonment without the option
of a fine; three years of which are suspended for one year on
condition the accused is not convicted of any offence of which
assault is an element.
sentence is backdated to the 10th
April 2008. The right of appeal explained to the accused.