IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CRIMINAL TRIAL NO. 73/09
In the matter between:
MBONGENI MFANASIBILI MATSEBULA
CORAM MBC MAPHALALA, J
FOR CROWN MR. M. MATHUNJWA
FOR DEFENCE ACCUSED IN PERSON
11TH JUNE 2010
 The accused was charged with Culpable Homicide in that upon or about the 19th December 2008 and at or near Maphungwane Etingodvweni Area in the Lubombo region, he unlawfully and negligently killed Jabulani Ndzimandze. He pleaded guilty to Culpable Homicide, and the Crown accepted the plea.
 A “Statement of Agreed Facts” signed by the Crown Counsel and the accused was presented in Court. The Statement reads as follows:
“Mbongeni Mfanasibili Matsebula (hereinafter referred to as the accused) stands charged with the Crime of Culpable Homicide. He has pleaded guilty to the charge, which plea the Crown accepts.
On the 19th December 2008 at Maphungwane, Etingodvweni area in the Lubombo Region, PW1 (Fani Jabulani Matsebula) who is accused’s natural father and stepfather of the deceased enquired from the deceased why he had taken his handsaw without his permission. The deceased responded that he will not get it.
In the evening while PW1 was on his way to attend a funeral at Lundushula Matsebula’s homestead, the deceased came running after him and told him to repeat what he had said earlier on. The deceased then assaulted PW1 with fists and further kicked him until PW1 fell.
PW2 (Idah Bikwaphi Myeni), the natural mother of both accused and deceased heard PW1 shouting and asking deceased why he was assaulting him. PW2 proceeded to where PW1 was and found the deceased kicking PW1. The deceased insulted and threatened PW2 after she had shouted at him to stop kicking PW1. PW2 then ran back to her homestead. The accused who was in the company of Nkosinathi Patrick Maziya and Sifiso Maziya heard PW2, her mother shouting. The accused ran taking the direction to his parental homestead. The accused arrived where the deceased was assaulting PW1, his father.
The accused then stabbed and chopped the deceased with a bushknife on the cheek, chin, chest and on the neck. Thereafter, the accused went home where he reported to PW2 that he had killed his brother, the deceased whom he had left on the ground bleeding. The accused also told PW4 Gideon Maphilibane Matsenjwa that he killed the deceased after he found him assaulting his father.
The accused then handed a bushknife to PW4 which is the exhibit that he used during the commission of the offence. The chief’s runner then arrested the accused and handed him over to the members of the Royal Swaziland Police together with the bushknife.
On the 23rd December 2008, Dr. Komma Reddy (PW5), a government Pathologist conducted a Post-Mortem examination on the cadaver of the deceased. He opined that the deceased died ‘Due to Multiple Chop and Stab Wounds’.
By assaulting the deceased with the bushknife in the manner he did, resulting in injuries found by PW5, which caused the deceased’s death, the accused person unlawfully and negligently caused the deceased’s death, in that there is no legal justification for his conduct.
The following will be produced as evidence:
 The Post-Mortem Report was admitted in evidence by consent and was marked Exhibit 1. The Post-Mortem examination was conducted by Dr. Komma Reddy, a Police Pathologist on the 23rd December 2008; the body had three stab wounds, and four chop wounds. The cause of death was “Due to the Multiple Chop and Stab Wounds”.
 The bushknife was also admitted in evidence by consent and marked Exhibit A.
 In the light of the Statement of Agreed Facts, the Post-Mortem Report and the exhibits, I am satisfied that the Crown has proved the offence of Culpable Homicide beyond reasonable doubt. I convict the accused of Culpable Homicide on his plea of guilty.
 In mitigation, the accused submitted the following factors: First, that he was a first offender; Secondly, he pleaded guilty to the offence as a sign of remorse; Thirdly, that he acted in defence of his father who was being assaulted by the deceased; Fourthly, that he is a sickly person infected with HIV and Aids pandemic; Fifthly, that he has been in custody since his arrest on the 19th December 2008; Sixthly, that he is married with two minor children; and, that he is the sole breadwinner in the family and his wife is unemployed.
 In arriving at a proper sentence, I will take into account the personal circumstances of the accused as outlined above as well as the interests of society. It is apparent from the facts of this case that the accused acted in defence of his father who was being assaulted by the deceased with kicks and fists. However, it is clear that the accused used excessive force in the circumstances. The test whether an accused has exceeded the bounds of self-defence is an objective one. The Court must consider all the surrounding factors operating in the mind of the accused at the time that he committed the offence:
Shiba v. R. 1977-1978 SLR 163 at168 (CA) andR. v. Mgilija Same Dlamini and Others 1970 – 1976 SLR 53 at54.
 The accused inflicted three stab wounds and four chop wounds on the deceased and left the deceased on the ground bleeding to die. He never offered any help to him notwithstanding that he was his step-brother.
 Furthermore, there is no evidence before Court that the deceased used any weapon against the accused or his father. A reasonable man in the position of the accused would not have used the deadly weapon and inflicted such fatal injuries on the deceased. A reasonable man in the position of the accused would have attempted to intervene in the dispute failing that to use a reasonable amount of force commensurate with the attack.
 In the circumstances, I sentence the accused to eight years imprisonment, four of which are suspended for five years on condition that the accused is not convicted during the period of suspension of an offence in which violence is an element of that offence. The sentence is backdated and will commence on the day of arrest on the 19th December 2008.
JUDGE OF THE HIGH COURT OF SWAZILAND