IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CRIMINAL TRIAL NO. 60/06
In the matter between:
CORAM MCB MAPHALALA, J
FOR CROWN MR. B. MAGAGULA
FOR DEFENCE MR. S. BHEMBE
 The accused is charged with the crime of Murder in that upon or about the 23rd February 2006 and at or near Luyengo area in the Manzini region, he unlawfully and intentionally killed one Ntombizile Sacolo.
 When he was arraigned before this Court he pleaded guilty to Culpable Homicide; however, the Crown did not accept the plea tendered by the accused and insisted that it will proceed on the charge of Murder. A plea of not guilty to murder was entered on behalf of the accused.
 Three admissions were agreed between the Crown and the Defence in terms of Section 272 (1) of the Criminal Procedure and Evidence Act No. 67 of 1938:
3.1 A Medical Report compiled by Dr. Khambale of Mankayane Government Hospital where the accused was admitted and treated for a snake bite after his arrest. The Report was marked as Exhibit C.
3.2 A Statement made by the Accused before a judicial officer. It was marked as Exhibit A.
3.3 The Post-Mortem Report on the examination of the body of the deceased. It was marked Exhibit B.
 In terms of Exhibit C, the accused was admitted at Mankayane Government Hospital as an in-patient on the 24th February 2006; he was referred to the hospital from Lubulini Clinic. He was being treated for a snake bite; his left leg and left foot were swollen and bleeding with blisters.
 Exhibit B was compiled by Dr. Komma Reddy, a Police Pathologist employed by the Government and based at the Police Headquarters in Mbabane. According to him, the cause of death was multiple stab wounds. The post-mortem was conducted on the 1st March 2006 in Mbabane.
 Exhibit A was recorded by the accused before Magistrate Florence Msibi based at the Manzini Magistrate Court in the presence of a Court Interpreter Xolile Gule; afterwards, all three of them signed the statement.
 The essence of the Statement is that the accused was not compelled to record it; it was made freely and voluntarily without undue influence. Furthermore, the accused was not induced by police threats or promises to record the Statement. At the time he recorded the Statement, he was in his sound and sober senses.
 In the Statement, the accused does not deny stabbing the deceased to death but he raises a defence that he stabbed her after learning that she was in love with another man notwithstanding that she was still his wife; when she confronted her, she was arrogant and bragged about her affair with the other man. She did not deny the existence of the alleged affair.
 The Crown first led the evidence of PW1 Anele Simelane who was a colleague and classmate of the deceased at the University of Swaziland, Luyengo Campus, when the deceased was killed. The deceased was a class representative and part of a study group with PW1, PW2 and PW3.
 He received a cellphone call from a man he didn’t know on Saturday 18th February 2006 asking him to assist the deceased in selecting and buying a computer. The man was using the deceased’s cellphone. He undertook to accompany them to buy the computer on a Tuesday the 21st February 2006.
 He saw the deceased again on Sunday the 19th February 2006, and she borrowed a digital camera he was carrying; it belonged to his friend Musa Dlamini.
 On the 21st February 2006, he went to the deceased’s room to ask if they were still going to town to buy the computer. He found her seated with another man he didn’t know; she was crying. The man told him that they were still busy talking and that they would inform him when they would go to town. However, at 4pm the deceased phoned telling him that they were no longer going to town to buy the computer; she didn’t give reasons.
 On the 22nd February 2006, they held a group discussion with the deceased and Sehlephi Ngobese in preparation for a test the next day; the discussion began at 7 pm till 9 pm. The deceased was absent the next day when the test was being written, and, as group-mates, they reserved a seat for her but she never came.
 After the test, they decided to look for her in her room; he was in the company of Nonhlanhla Fakudze and Thembi Mabuza. The door was locked and neighbours said they last saw her the previous night when she returned from the group discussion. He peeped through the glass on the door and saw her lying on the floor.
 They reported to the warden who opened the door, and she was found dead and covered with a duvet. They reported the incident to the Malkerns Police Station; subsequently, they were called to record statements with the police. He further saw the camera he had given to the deceased at the Malkerns Police Station; he further identified the camera in Court.
 He knew that the deceased was married but he couldn’t recall whether the deceased introduced the man she was seated with in her room as her husband; he was able to positively identify the accused as being the man he found sitting with the deceased in her room on the 21st February 2006.
 He maintained his evidence under cross-examination; he conceded that the deceased had told him the name of her husband as being Goodman Mngometulu. It was put to him that the deceased borrowed the camera to take pictures during the weekend when she would be lobolaed; he denied knowledge of this.
 PW2 Thembi Mabuza, a student at the University of Swaziland, and a former studymate and classmate of the deceased corroborated the evidence of PW1 in material respects. She further testified that on the 21st February 2006, she went to the deceased’s room to submit her assignment as she was their class representative; the deceased opened the door and talked to her outside, and, it was the first time she had not allowed her inside her room.
 PW3 Ngobese Sehlephi, a former classmate and studymate of the deceased testified that on the 17th February 2006 the deceased told her that she was leaving for her marital homestead; this was on a Friday. However, she returned the next day saying they had a misunderstanding with her husband. On the 20th February 2006, she told her that they had resolved their differences with her husband through the phone and that her husband was coming that day to visit her. The husband did arrive and she saw him and the deceased passing her room; she had gone to meet him.
 On the same day, the deceased asked to use her cellphone to call her mother in-law saying her cellphone has been blocked by her husband; she told her mother in-law that her husband had not arrived. She did not explain to her why she was lying to her mother in-law. They tried to unblock her sim-card but to no avail.
 Under cross-examination, she conceded that the accused supported the deceased financially when she was schooling at Ncabaneni High School. She further conceded that she knew that the accused intended to pay lobola to the deceased’s family. However, she denied any knowledge that the accused also supported the deceased’s mother financially. She further denied knowledge that the accused paid a fine in the form of cattle for impregnating the deceased.
 She further testified that when the deceased asked to use her cellphone, she looked upset. Similarly, she was in the same mood when this witness brought her assignment to the deceased’s room. She was restless and not staying with them during the visit by her husband.
 PW4 Simanga Menzi Mohale, a photographer based at Matata Shopping Complex testified that the accused whom he was seeing for the second time met him on the 23rd February 2006 and sold to him a camera for E50.00; he said he needed money to go back to his work place in South Africa. He identified the camera in Court as well as the accused. The camera was later taken from him by the police.
 Under cross-examination, he told the Court that the camera was of poor quality and not worth E50-00; and, that he bought it merely to assist the accused as he needed money to go back to his place of employment.
 It was put to PW4 that the accused never gave the camera to him and that the accused had left it in a bag in a truck driven by PW11 Richard Gina. He denied this and maintained his evidence; and, he further submitted that the camera was later taken from him by the police.
 PW5 Gcinumuzi Doctor Gina who was at the time employed by Illovo Ubombo Sugar Limited testified that the accused arrived at Nsoko on a Thursday in February 2006 and found him seated with his friend. He told him that he had killed his wife at Luyengo; he further told them that he was on his way to Ngwavuma in South Africa. They advised him to report the matter to his parents and then surrender himself to the police; however, he said he was scared to go to the police.
 He further testified that he knew the accused very well and that they were playing soccer together in the same team. He further identified the accused in Court.
 Under cross-examination, he maintained his evidence that the accused found him in the company of Peter Phakathi, PW6. He further conceded that he heard that the accused was supporting his wife financially even when she was at school; during re-examination he said he heard this from the accused’s brother Themba Mngometulu.
 PW6 Peter Phakathi, a photographer and hawker based at Lubuli corroborated the evidence of PW5 in all material respects. He further identified the accused in Court. He explained that even though the accused was speaking to PW5, he heard everything that was being said; he had supported PW5 when he told the accused to report the matter to his parents, then surrender himself to the police. However, the accused had said he was running away to South Africa.
 PW7 Lomataliyane Vilakati, a sister to PW10, told the Court that she identified the body of the deceased at the mortuary; she further attended the post-mortem examination where she noticed several stab wounds on her body and that her stomach was cut open up to her private parts. She confirmed that the deceased was married and that her only child with the deceased had died.
 Under cross-examination, she denied knowledge that the accused was supporting the deceased financially when she was schooling at Ncabaneni High School. However, she admitted being told by her family that the accused was preparing to pay Lobola for the deceased. She further denied when it was put to her that the accused’s family had offered to bury the deceased. Similarly, she denied knowledge that the accused was supporting deceased’s mother financially.
 PW8 Detective Sergeant Sipho Magagula, a Crime Scene Expert testified that he received a report to examine an alleged murder case at the University of Swaziland; he found the deceased lying on the floor facing upwards and he took photos to show the position of the deceased. He photographed the wounds he saw on the body of the deceased; the stomach was cut open to the vagina and intestines were protruding. He also noticed a knife that was on the hand basin and he photographed it as well. Items were scattered all over the room, and, there was a pool of blood next to the body.
 He handed the photographs to Court as part of his evidence, and they were marked as exhibits 1-8. He further handed the knife and was marked exhibit 9.
 PW9 Sub-Inspector Sabelo Webster Methula Force No. 2643, who was the Prime Investigator in the case testified that after receiving a report, he went to the scene with other police officers; and, PW8 arrived shortly to take pictures of the scene and the stab wounds. The body was later taken to the mortuary. He corroborated PW8 with regard to the injuries sustained.
 During his investigation, he arrested the accused at his parental homestead at Ndzevane on the night of the 24th February 2006; they found him in an old shanty hut which had an old bed covered with an old blanket. He was not in his own house even though it was lit. This is where he was bitten by a snake. He was taken to Lubuli Clinic for treatment and later referred to Mankayane hospital. He gave a yellow Sim-card to this witness which was taken as an exhibit in the case.
 Further investigations led to the recovery of a Nokia 2300 from PW11 Richard Vilane and a camera from PW4 Simanga Mohale. Both items were used as exhibits in this case.
 After the accused had been discharged from Mankayane hospital, he made a Statement before Magistrate Florence Msibi.
 The accused identified the camera and cellphone as items belonging to the deceased. He further led the police to the house of PW11 Richard Vilane where the earphone was recovered; it was taken as an exhibit in the case. The camera and cellphone were subsequently identified by PW1, PW2 and PW3 as items belonging to the deceased.
 The accused further handed to the police clothes he was wearing when the offence was committed; and they included a trouser, T-shirt, pair of boots and a dagger knife. All these items were sent for forensic examination to the Scenes of Crime Office in Manzini for onward transmission to Pretoria.
 He handed the exhibits as part of his evidence. The Sim-card was marked exhibit 10, cellphone exhibit 11, camera exhibit 12, code exhibit 13, earphone exhibit 14, trouser exhibit 15, T-shirt exhibit 16, boots exhibit 17 and dagger knife exhibit 18.
 Under cross-examination, PW9 proved to be a consistent, credible and reliable witness; and, I have no reason to doubt his evidence. However, he conceded that the accused had shown remorse during interrogation. He further conceded that the accused related to him the reasons behind the killing of his wife as being the suspicion that she was in love with another man.
 PW10 Ntombikayise Vilakati, the biological mother of the deceased testified that he knew that the deceased was married to the accused; the latter paid Imvimba or a fine for impregnating her. However, she had never met the accused. She further testified that when the deceased was schooling at Ndzevane and Ncabaneni High School she was financially supported by her son Zenzele Sacolo.
 Under cross-examination, she conceded, however, that she didn’t know if the accused rented apartments at Ndzevane and Ncabeneni when the deceased was schooling there. She further conceded that she could not deny that when schooling at Ncabaneni the deceased collected food from her marital home. However, she denied that the accused financially supported her with clothes and food. She further denied that the accused’s family offered to bury the deceased, and said they only came once to mourn her death in the company of the police.
 PW11, Richard Vilane, who was at the time employed by Matata shopping Complex as a driver, testified that on the 23rd February 2006, the accused found him at his place of work and sold to him a cellphone with earphones for E150-00. He further gave the accused a lift to Nsoko and then to his homestead at Ndzevane; the accused was carrying a bag. The cellphone was later taken from him by the police. On another day, the police came to his house with the accused and took the earphones. He identified the cellphone and earphones in court; he further identified the accused whom he referred to as his cousin. He maintained his evidence under cross-examination.
 After the Crown had closed its case, the defence led the evidence of DW1 Beauty Mngometulu, the biological mother of the accused. She testified that the accused rented a room for the deceased at the homestead of Joseph Mngometulu when she was schooling at Ndzevane. She further testified that when she was schooling at Ncabaneni, again the accused rented a room for her at another homestead closer to the school. In both instances, the accused financially supported the deceased. He was working at Mpangeni in South Africa.
 She further testified that her husband John Mngometulu assisted the deceased and signed her scholarship Forms before she enrolled at the University, she would return to her marital home on weekends to stay with the family; the accused would also visit home now and then. She described the relationship between the two families prior to the murder as being cordial and warm.
 She corroborated the evidence of PW3 that the deceased visited her marital home on the 17th February 2006 and returned on the next day instead of the 19th February 2006 on a Sunday as was usual. She had appeared not happy when she asked the witness for bus fare to go back to the University. She left behind the food she had come to fetch. When she confronted the accused, he told her that the deceased was now “playing tricks.” She later phoned her asking the accused to bring her the food at the University; he took the food to her.
 She further told the Court that the accused was the sole breadwinner at home and that his arrest had reduced the family to beggars, dependent on donations. She conceded that the accused and the deceased had only one child who is dead. Lastly, she testified that exhibit 18 was not used in the commission of the offence.
 Under cross-examination, she maintained her evidence. However, she conceded that she cannot deny that Zenzele Sacolo also supported the deceased financially.
 She denied giving clothes to deceased’s mother. She only recalled giving food and a towel to the deceased to give to her mother. She conceded that she was seeing the deceased’s mother for the second time in Court during this trial; the first time was when she went to Ndzevane to mourn the death of the deceased’s child. She further conceded that her family did not mourn her death at her parental homestead because they feared being attacked by university students. They had threatened to do so.
 DW1 was a reliable and credible witness and I have no reason to doubt her evidence.
 The accused opted to give evidence on oath. He told the Court that the deceased was his wife and that they first met when they were schooling at Ndzevane High School in 1998. He confirmed assisting the deceased financially renting her a room at the homestead of Joseph Mngometulu whilst schooling at Ndzevane; he bought her all the necessaries including food, bedding, handigas and cutlery. However, she fell pregnant and had to leave school; the child died shortly after birth.
 He further confirmed that the deceased stayed with him at Richards Bay where he was employed after the death of their child; however, her brother Zenzele Sacolo sent Thulani Dlamini and Maduna Dlamini to fetch her so that she could go back to school; he feared that she might be pregnant again.
 He obtained a space for her at Ncabaneni High School, paid her school fees and rented a room for her at a nearby homestead owned by Josiah Dlamini. When she needed a scholarship to study at the university, he asked his father to sign the Agreement Forms for her; he further gave her E180-00 as an application fee to the university.
 She enrolled at the University of Swaziland in 2004; and, he married her in 2005. He paid E2,500-00 to her family as a fine for impregnating her and for marrying her; the money represented two cows.
 The accused testified of instances and events which led him to suspect that his wife was cheating on him. A friend to his wife Siphesihle Ngobese had confided to him that the deceased took off the ring when he was away. However, he did not call Siphesihle to testify on his behalf.
 On one occasion, he left Richards Bay in the company of his brother visiting his wife; he did not find her at the university. They eventually found her at her sister’s place at Malkerns in the company of another girl and two boys; when she saw them, she ran away and returned minutes later wearing a pinafore on top of the clothes she was wearing pretending she was not with the boys. She was not wearing the ring. A quarrel ensued and she apologized and admitted that one of the boys was proposing love to her.
 In December 2005 and February 2006, they again quarreled when she was receiving anonymous cellphone calls and SMS messages; when asked, she refused to identify the people who were communicating with her. According to him, the SMS was from her lover because it read, “My love when are you coming back. I am missing you.” From the evidence, this was the weekend on the 17th February 2006 when she arrived at her marital home on Friday and left on the next day.
 He conceded that PW1 found the deceased crying when he came to her room on the 21st February 2006; he said they were still busy talking about something.
 Again on the 22nd February 2006, she received a call from her cellphone and went to talk outside the room. When he asked her why she was answering her calls outside, she did not give him a clear answer.
 During his stay at his wife’s room, she told him to hide in the wardrobe whenever there was a knock at the door. No reason was given. This happened on two occasions and he reluctantly obliged and hid in the wardrobe; and he would hear her talking to a male voice. When asked, she never told him who was talking with her outside. He never approached the man because he wanted to avoid a confrontation.
 When hiding in the wardrobe, he saw male clothes; she said they belonged to PW1. However, the clothes were of a bigger size than PW1.
 On the 22nd February 2006, at 7 pm she went for her group discussion at 7 pm promising to return at 09:00pm; however, she returned at 12 midnight. When he asked her why she returned that late, she said he was not her time-keeper. She smelt of a men’s perfume. There was a love-bite on her neck; this convinced him that she was with the man from 09:00pm to 12:00 midnight. Then she received an SMS, he took the phone; she tried to take it back but he pushed her away. She boasted arrogantly that the SMS was from the owner of the clothes in the wardrobe; and, that it was the same man he had spent time with that night. The SMS read, “Love, how are things about your late arrival. I love you so much, from 50 cent”.
 After he had read the SMS, she told him that he could stop paying the Lobolo, then she took a bread knife and stabbed him on his hand; he took the knife from her. He stabbed her below the right shoulder and she fell down; then, he had a blackout. When he regained consciousness, he found himself sitting on the bed holding the knife with blood on his hands. He was too shocked when he saw her lying on the floor; he took a duvet and covered her because she was not breathing. He washed his hands, took his bag, locked the door and boarded a public transport to Manzini, then to Matata Shopping Complex.
 He conceded meeting Richard Vilane and Doctor Phakathi. Police arrested him in the early hours of the next day at his parental homestead. He denied that he was trying to run away as alleged by the police. He further admitted that he was bitten by a snake but denied that he was sleeping in a shack; he said he was sleeping in his niece’s hut and not his own hut. He did not give a reason for not sleeping in his hut. He was treated at Lubuli Clinic and then transferred to Mankayane Hospital. On being discharged, he recorded a Statement with the Magistrate; but she omitted to record that the deceased was the first to stab him.
 He denied selling the camera to PW4; he further denied selling the cellphone and earphone to PW11. However, there is sufficient evidence from PW4, PW11 and PW9 that this did happen.
 The evidence of PW5, PW6 and PW9 corroborates that of PW4 and PW11 that the accused wanted to run away to South Africa; he sold the camera, cellphone and earphones to obtain bus fare to go to South Africa. I reject his evidence that he was not found in a shack or shanty structure, that he was found in a hut belonging to his niece; he was sleeping there alone and his niece was not there. His own hut had lights on with water in a basin indicating that he had washed himself. He was found with his bag full of clothes. He further told the Court that he did not sleep in his hut because he knew the police would come to look for him; he was avoiding police arrest.
 I accept his evidence that he did support his wife financially including paying her school fees; however, there is no evidence that he also supported the deceased’s mother. The deceased’s brother was not brought to court to contradict the evidence of the accused. The deceased’s mother stayed away from the deceased. She stayed at Nhlangano and Mahlangatsha; hence, she could not be of assistance to the Court in contradicting the evidence of the accused and his mother.
 The accused admitted killing his wife and causing twelve multiple stab wounds on her body. In addition, there is a big cut stretching from the stomach to the vagina. He denied that he had mens rea in the form of intention when committing the offence. He said his wife was the first to stab him then he dispossessed her of the knife and stabbed her at the back of the throat just to scare her away, and she fell to the ground; however, there is no such stab wound in the Post Mortem Report. Furthermore, the Medical Report does not mention the alleged stab wound on his hand caused by the deceased. In addition, he did not tell the magistrate of the said stab wound.
 He accused his wife of smelling of a man’s perfume, that before her death, she received an SMS from Fifty Cent and a phone call; however, none of this is mentioned in the confession which was recorded, signed by him and admitted in evidence by consent. He said after stabbing the deceased, she fell down; thereafter, he had a blackout and cannot recall how he inflicted the other stab wounds. Again it is strange that the issue of the “blackout” was never mentioned in his confession.
 It is worth mentioning that in his evidence in-chief the accused testified that the deceased attacked him with a knife and stabbed him on his left hand, then he took the knife and stabbed her on the right shoulder just to scare her. In his confession, he said they ended up fighting with the deceased and in the process, he stabbed her on the back throat. The Post-Mortem report doesn’t mention the said injuries. Clearly there are serious contradictions between the confession and his evidence in-chief.
 I reject the evidence of the accused that he stabbed the deceased just to scare her because after the stabbing, the deceased fell down; this means that the blow of the stabbing was great. This cannot be described as scaring. Similarly, in his confession, he said they ended up fighting with the deceased and he stabbed her; this was before the alleged blackout. It is apparent that the accused stabbed the deceased and in doing so he realized that it might cause death and was reckless whether it would do so.
 I accept his explanation that he supported the deceased as his wife, that he wanted to pay lobolo for her, that he suspected her of infidelity: that he was not putting her ring when he was away, the event of the 18th February 2006 when she had to return to the University abruptly on a Saturday after a quarrel with him over the phone she had received, the incident at Malkerns where he found her with two boys and a girl, the male clothes he found in the wardrobe, the hiding in the wardrobe and the coming back at midnight on the 22nd February 2006 coupled with the arrogant boasting that she was with the owner of the clothes.
 From his evidence, it is apparent that the stabbing was caused by his suspicion of her infidelity. Her late coming at midnight was the climax. In the case of Celani Maponi Ngubane and Two Others v. Rex Criminal Appeal No. 6 of 2006 at page 28 Browde J.A. who delivered the majority judgment stated:
“… No onus rests on the accused to convince the court of the truth of any explanation which he gives. If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.”
74.1 Whilst I accept his explanation that he was provoked by the actions of infidelity of the deceased, I reject his explanation that he had a “blackout”, from the totality of the evidence I am of the considered view that such an explanation is beyond any reasonable doubt false.
 Having said that, it is important to bear in mind that on the day the deceased was killed, the accused was already aware of her infidelity. What she did that day should not have come as a surprise to him.
 The defence has urged the Court to find that the accused was provoked in terms of the Homicide Act No. 44 of 1959; that such provocation should reduce the verdict of murder to culpable homicide.
 Section 2 of the Homicide Act No. 44 of1959 provides that:
“(1) a person who –
unlawfully kills another under circumstances which but for this section would constitute murder; and
does the act which causes death in the heat of passion caused by sudden provocation as defined in Section 3 and before there is time for his passion to cool;
Shall be guilty of Culpable Homicide.
This Section shall not apply unless the Court is satisfied that the act which causes death bears a reasonable relationship to the provocation.”
 Section 3 (1) and (4) defines provocation as follows:
“(1) Subject to this Section provocation means
and includes any wrongful act or insult of such a nature as to be likely, when done or offered to an ordinary person or in the presence of an ordinary person to another who is under his immediate care or to whom he stands in a conjugal, parental, filial or fraternal relation or in the relation of master or servant, to deprive him of the power of self-control and to induce him to assault the person by whom such act or insult is done or offered.
(2) If such act or insult is done or offered by
one person to another or, in the presence of another, to a person who is under the immediate care of such other to whom the latter stands in any relation referred to in sub-section (1), the former is said to give the latter provocation for an assault.
(3) A lawful act shall not be provocation to any
person for an assault.”
 In the cases of Rex v. Aaron Fanyana Dlamini 1979 -1981 SLR 30 at35 A-C His Lordship Cohen A.C.J. said the following:
“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 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.”
 In the case of Rex v. Nkambule Paulos 1987-1995 (1) SLR 400 at 405 F, (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 by Section 2 (2) of the Act that Section 2 shall not apply unless the Court is satisfied that the Act which causes the death bears a reasonable relationship to the provocation.”
 There is no doubt that the words alleged to have been uttered by the deceased when she returned to her room at midnight on the 22nd February 2006 were provocative to the accused; however the severe violence inflicted by the accused on the deceased did not bear a reasonable relationship to the provocation. The provocation was not commensurate with the violence inflicted upon the deceased. A reasonable man in the position of the accused would not have acted in the manner that the accused did. I agree with Rooney J in the case of Rex v. Paulos Nkambule (supra) that the Homicide Act only applies to grave insults likely to deprive an ordinary person of his self-control.
 The fact that the violence inflicted was severe and not commensurate with the provocation establishes the existence of mens rea in the form of intention. In the circumstances, the Homicide Act cannot be applied to reduce the verdict of murder to culpable homicide. Similarly, the defence of provocation cannot avail the accused in the circumstances.
 The Crown has established beyond reasonable doubt that the accused committed the offence charged. The defence admits the existence of “actus reus”; and, the Crown has established that the accused had “mens rea” in the form of “dolus eventualis”. When the accused stabbed the deceased with such a blow that she fell down, he appreciated the possibility of death but he was reckless whether or not death resulted. In the case of Mazibuko Vincent v. Rex 1982 – 1986 SLR 377 at 380 C (CA), Hannah C.J. had this to say:
“A person intends to kill if he deliberately does an act which he in fact appreciates might result in the death of another and he acts recklessly as to whether such death results or not.”
See also the cases of Rex v. Maphikelela Dlamini 1979 – 1981 SLR 195 at198 D (CA), andAnnah Lokudzinga Mathenjwa v. R 1970 – 6 SLR 25 at30 A (CA), R. v. Jabulane Philemone Mngomezulu 1970 -1976 SLR 6 at7B (HC).
 The accused further alleged a defence of SANE Automatism or “blackout”. In the case of R. v. Aaron Fanyana Dlamini 1979 -1981 SLR 30 at33H-34. His Lordship Cohen ACJ stated:
“As far as sane automatism is concerned, the courts have stated that careful scrutiny is required of this defence which has become a popular defence….it might be mentioned that amnesia by itself is no defence to a criminal charge.”
 In the case of Rex v. Johnson 1970 (2) SA 405 at405 -406, Lewis J. stated:
“…amnesia in itself is not a defence to a criminal charge….what it amounts to simply is this; that the accused, if the amnesia is genuine, is a person who cannot remember what happened. Therefore, it is the duty of the jury to scrutinize the Crown Case with particular care to make sure that the crime has been brought home to such a person; it goes no further than that, when it is not associated with any form of mental disorder or unconscious action amounting to automatism.”
 In the case of S. v. Trickett 1973 (3) SA 525 (T) at530C Marais J stated:
“on the other hand, if the defence calls into question the voluntary nature of the act constituting the offences without relying in any way upon a pathological mental condition to explain or prove the absence of a free exercise of will, or even to render acceptable the bona fides of the accused in raising such a defence, it would seem that the onus of proving the presence of a voluntary misdeed would be upon the prosecution.”
 At pages 536H His Lordship stated:
“Defences such as automatism and amnesia require to be carefully scrutinized. That they are supported by medical evidence, although of great assistance to the Court, will not necessarily relieve the Court from its duty of careful scrutiny for, in the nature of things, such medical evidence must often be based upon the hypothesis that the accused is giving a truthful account of the events in question.”
 At page 537D, His Lordship stated:
“The conclusion to which I come is that in order effectively to raise the defence of SANE Automatism such as relied on in the present appeal there must, firstly, be evidence sufficiently cogent to raise a reasonable doubt as to the voluntary nature of the actus reus alleged in the indictment, and secondly, medical or other expert evidence to show that the involuntary or unconscious nature of the actus reus is quite possibly due to causes other than mental illness or disorder.”
 Dumbutshena CJ in the case ofS. v. Evans 1985 (2) 865 (ZS) at 875 defines a “blackout” as a temporary loss of memory, consciousness and vision. His Lordship concludes that a person suffering from a blackout is rendered passive or inactive by the loss of consciousness and is incapable of doing anything.
 It is common cause that the accused has relied on the defences of provocation and “blackout”. From the evidence adduced, it is clear that the accused was provoked, and that he acted in the heat of passion caused by the sudden provocation; however, the nature of the accused’s conduct did not bear a reasonable relationship to the provocation. The accused resorted to a severe form of violence which was not commensurate with the provocation.
 During that rage of anger and provocation, the accused stabbed the deceased and she fell to the ground; he continued thereafter and inflicted eleven more stab wounds after she had fallen to the ground. He alleges that he was conscious during the first stab wound; thereafter, he had a blackout, that is, he suffered from a temporary loss of memory, consciousness and vision. From the evidence adduced, it is clear that when the accused attacked and stabbed the deceased, he was active with no loss of memory, consciousness or vision. In the light of the evidence adduced, I cannot agree that the accused had a blackout. The eleven stab wounds inflicted on the deceased hit the target because the accused could see the target; his vision was not impaired and his memory and consciousness was not affected. The circumstances of the accused can be distinguished from a motorist who suffers a blackout whilst driving and loses control of the motor vehicle and it strays out of the road. In that situation, the driver is no longer controlling the steering and the motor vehicle does not in fact have a driver.
 In coming to this conclusion, I am conscious of his evidence in-chief where he testified that the deceased attacked him with a knife and stabbed him; he dispossessed her of the knife and stabbed her just to scare her away. Thereafter, he had a blackout and doesn’t recall how the other injuries were inflicted. As mentioned earlier, he doesn’t mention the “blackout” in his confession which was admitted in evidence by consent. This indicates that the “blackout” was an afterthought. In his confession, he recorded that after the provocation, they ended up fighting and he stabbed the deceased and she fell down; he took a blanket and covered her body “as I got scared realizing what I had done”.
 In the circumstances, I find the accused guilty of the Crime of Murder.
 The other question for the court to decide is whether or not there are any extenuating circumstances in this matter. Our courts have defined “extenuating circumstances” as any facts bearing on the commission of the crime which reduce the moral blameworthiness of the accused. In coming to its conclusion, the court has to consider three factors: First, whether there are any facts which might be relevant to extenuation, such as immaturity, intoxication or provocation; Secondly, whether such facts, in their cumulative effect, probably had a bearing on the accused’s state of mind in doing what he did; and, Thirdly, whether such bearing was sufficiently appreciable to abate the moral blameworthiness of the accused in doing what he did. The onus of proving extenuating circumstances rests upon the accused: S. v. Letsolo 1970 (3) SA 476 (AD) at476; Philemon Mdluli andOthers v. Rex 1970-1976 SLR 69 at75D (HC); Mbuyisa v. Rex 1979–1981 SLR 283 at285E, (CA); Rex v. Enos Khumbula Shongwe 1977-1978 SLR 60 at61F (HC); Rex v. Maziya Mantolomane andAnother 1987-1995 (2) SLR 318 at319H (HC) and S. v. Diedricks 1981 (3) SA 940 (C) at943.
 In the light of the evidence, it is clear that the accused was provoked, and it is that provocation which led him to commit the offence. Even though the provocation was not commensurate with the violence inflicted upon the deceased, it is sufficient to reduce the moral blameworthiness of the accused. In the circumstances, the accused is convicted of murder with extenuating circumstances.
 In mitigation of sentence, the defence asked the court to show mercy on the accused because he had shown remorse for the offence committed: he pleaded guilty to culpable homicide and the Crown did not accept the plea; and, he admitted killing the deceased. He further submitted that the killing haunts the accused and will continue haunting him for the rest of his life; he argued that this is punishment in itself. The accused undertakes to pay lobola to the family of the deceased as a sign of remorse. The accused was arrested in his prime years and deserves to be given another chance in life. The accused was provoked and lost his self-control because he had invested so much in the deceased by giving her education. The accused was arrested on the 24th February 2006 and has been in custody since then; that the sentence should be backdated to the date of his arrest; that the accused apologizes to society and the family of the deceased. Lastly, that the accused is a first offender.
 In aggravating of sentence, the Crown argued that the accused does not deserve mercy because of the brutal manner in which the deceased was killed.
 This is not an ordinary criminal matter. It is a shocking fairy-tale of a man who natured, nourished, cherished and invested his hope and resources in a woman for a future paradise. When her parents and relatives could not support her, he was the saviour and he supported her financially and paid for her school education. He did not end there but he provided her with all other financial needs, leasing apartments for her and providing for her daily needs. He was also instrumental in her acquiring a government scholarship to pursue her studies at the University of Swaziland. He married her upon her admission at the university as a sign of love and future commitment. However, he betrayed him by her infidelity: the incident at Malkerns, the male clothes in her wardrobe, talking to male lovers outside her room whilst her husband was present sitting inside the room, her cellphone love messages, her escapade with another man till midnight leaving her own man in the room frustrated, her love bites and male perfumes; all these instances paint a gloomy picture of a man betrayed by a woman he had invested his love, his time, his hope, his aspirations and resources to nourish. This case will forever remain a lesson and reminder not only to the accused but to all men like him never to commit the same blunder.
 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 not fit the criminal as well as the crime, be fair to society and be blended with a measure of mercy according to the circumstances.”
 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.”
 In the case of S. v. Harrison 1970 (3) SA 684 (A) at 686, His Lordship Addleson J. said the following:
“Justice must be done; but mercy, not a sledge-hammer is its concomitant.”
 In the case of Musa Kenneth Nzima v. Rex Criminal Appeal No. 21 of 2007, Tebbutt J.A., quoting a judgment in Botswana where Moore J.A. stated the following in the case of Motoutou Mosilwa Criminal Appeal No. 124/05 regarding the question of sentence:
“It is also in the public interest, particularly in the case of serious or prevalent offences, that the sentence’s message should be crystal clear so that the full effect of deterrent sentences may be realized, and that the public may be satisfied that the court has taken adequate measures within the law to protect them of serious offenders. By the same token, a sentence should not be of such severity as to be out of all proportion to the offence, or to be manifestly excessive or to break the offender, or to produce in the minds of the public the feeling that he has been unfairly and harshly treated.”
 Having regard to all these factors the accused is sentenced to seven years of imprisonment backdated to the date of arrest on the 23rd February 2006.
JUDGE OF THE HIGH COURT