R v Shongwe ((189/07)) [2010] SZHC 84 (03 June 2010);

                       

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE              CRIMINAL TRIAL NO. 189/07

 

 

In the matter between:

 

 

REX

 

 

VS

 

 

MANQOBA SHONGWE

 

 

 

 

 

CORAM                                    MCB MAPHALALA, J

 

FOR CROWN                            MR. M. MATHUNJWA

FOR DEFENCE                                ACCUSED IN PERSON

 

 

JUDGMENT

DATE: 3^RDJUNE 2010

 

 

 

 

[1]    The accused is charged with Culpable Homicide in that upon or about the 9^th September 2006 and at or near Hhelehhele area in the Hhohho Region, he unlawfully and negligently killed Nongwane Malambe.

 

[2]    During Trial, the accused pleaded guilty to the charge, and, the Crown accepted his plea.

 

[3]    A Statement of Agreed Facts signed by both the Crown and the accused was read in Court.  It provides that:

 

“On the 9^th September 2006 and at Hhelehhele area in the Hhohho district at about 1800 hours, the accused was sent by one Zani Magongo to go and call a certain Thulani.  Along the way to where he had been sent, the accused met the deceased.  An altercation ensued between the two which almost led to a fight.  The accused ran away from the deceased taking the direction he was coming from.  The deceased chased after him (accused) but could notcatch up with him as the latter was able to outrun the former.

 

The accused came across a wood.  He picked it up and a stone, and then proceeded back to the direction where the deceased was.  The accused met the deceased and started chasing after him as the deceased was running away from the accused.  The accused caught up with the deceased and assaulted him once with the wood on the head and the deceased fell on the ground and died.  The accused ran away from the scene.

 

PW1 Futhi Vilakati (nee Lukhele) and PW7 Nomsa Siphiwe Shongwe who had been watching the incident closely as it unfolded came to the deceased and discovered that he was dead.  The police were called who promptly arrived and took the deceased’s body to Pigg’s Peak Government Hospital where he was certified dead.  The accused was subsequently arrested the following day.

 

On the 1^st September 2006 at Pigg’s Peak Government Hospital Mortuary, Dr. Komma Reddy, a Police Pathologist, conducted a post-mortem examination on the cadaver of the deceased.  He opined that the cause of death was “Due to Injury to Head”.

 

By assaulting the deceased with the wood in the manner he did, resulting in the injury found by Dr. Komma Reddy, the accused unlawfully and negligently caused the deceased’s death.

 

The accused admits that:

• the deceased is dead
• he committed an unlawful act
• he intended to commit the said act as distinct from its consequences
• The said act was the cause of the deceased’s death and there was no Novus Actus Interveniens.
• The said act was dangerous and a reasonable person would realize that it carried some prospect of harm.”

 

[4]    The accused has confirmed that he has read and understood the Statement of Agreed Facts; he further confirmed to have signed it.  The statement was admitted in evidence.

 

[5]    Two photographs of the deceased taken on the scene were admitted in evidence by consent and were marked as Exhibits 1 and 2 respectively.

 

[6]    The Post-Mortem Report compiled by Dr. Komma was also admitted in evidence by consent and is Marked Exhibit 3.  According to the report, the deceased died “due to injury to the head”.

 

[7]    The evidence adduced by the Crown does prove beyond reasonable doubt the commission of the offence by the accused.  The Statement of Agreed Facts has given sufficient particulars of the events leading to the commission of the offence.  In the circumstances, the accused is convicted of Culpable Homicide.

 

[8]    In mitigation, the accused asked for a lenient sentence on the basis that he was only seventeen years of age when he committed the offence and that because of his youth he was not capable of making proper decisions.  He told the court that he was a first offender and had never been convicted of an offence.  The accused is a sole breadwinner with a live-in lover and two minor children to support; she is expecting a third child.  He is self-employed with a vegetable garden from which he makes a living.  The accused undertakes not to commit a similar offence in future; he regrets having committed the offence.  He supports five of his siblings who stay with him and their parents have died.  In school, he went as far as Standard Seven.

 

[9]    In addition, the accused told the Court that when he hit the deceased with the wood, he acted in self-defence.  There was an altercation between the two men; the accused ran away, and, the deceased chased after him.  During the chase, the accused picked up a stone and wood and hit the deceased with the wood in self-defence.  He denies chasing after the deceased.

 

[10]  In coming to a proper sentence, I will take into account the interests of society as well as the personal circumstances of the accused.  It is true that there is a sharp increase in cases of murder in this country; however, it is equally correct that each case is different with its particular facts and the individual circumstances of the accused.  I accept that the accused was very young at the time of commission of the offence and there is no doubt that his sense of judgment was influenced by his youth.  He was attacked by a thirty-four year old man who chased after him carrying a stone and when he got hold of a stone and wood, he defended himself against the unlawful attack.  He is a first offender and has pleaded guilty to the offence charged.  When pleading in mitigation, he was remorseful to the extent of making an undertaking that he will never commit a similar offence in his life.  He is a responsible young man looking after five siblings, a live-in lover and their two children; he makes a living by growing a garden in his neighbourhood.

 

[11]  I agree with the sentiments made by His Lordship Holmes J.A. in the case ofS. v. Rabie 1975 (4) S.A. 855 (A) at862G:

 

“Punishment should fit the criminal as well as the crime, be fair to society and be blended with a measure of mercy according to the circumstances.”

 

[12]  In the same case, Corbett J.A. who concurred with the reasoning of Holmes J.A., stated at page 866:

 

“A Judicial officer should not approach punishment in a spirit of anger because being human, that will make it difficult for him to achieve that delicate balance between the crime, the criminal and the interests of society which his task and the objects of punishment demand of him.  Nor should he strive after severity; nor, surrender to misplaced pity.  While not flitching from firmness, where firmness is called for, he should approach his task with humane and compassionate understanding of human frailties and the pressures of society which contribute to criminality.”

 

[13]  In the case of S. v. Harrison 1970 (3) SA 684 (A) at686, Addleson J stated:

 

“Justice must be done; but mercy, not a sledge-hammer, is its concomitant.”

 

[14]  This is not a case requiring a custodial sentence because of the facts of the case and individual circumstances of the accused. A sentence of five years imprisonment wholly suspended for four years is appropriate on condition the accused is not found guilty of an offence in which violence is an element.

 

 

 

 

 

M.C.B.  MAPHALALA

JUDGE OF THE HIGH COURT

OF SWAZILAND