IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CRIM. CASE NO. 192/09
In the matter between:
BONGANI MUNYAMUNYA MAZIYA
Date of hearing : 17, 18 June, 2010
Date of judgment : 28 June , 2010
Attorney Ms. Q. Zwane for the Crown
Accused in Person
 The above-named accused person stands before me indicted on a single count of culpable homicide. The Crown alleges that on 11 April, 2009, he unlawfully and negligently killed one Sibusiso Nkambule at or near Logoba, Manzini District. I shall henceforth refer to the accused as such or simply as Munyamunya.
 When the charge was read to him, Munyamunya, who appeared in person, pleaded guilty to the offence. This plea was accepted by the prosecution. As a result, an agreed statement of facts was prepared, signed and read into the record. It is important to note that amongst other things, the accused, in it, also admitted the constituent elements of the offence wherewith he stands charged.
 The said statement, which was marked Exhibit “A”, reads as follows:-
“BONGANI MUNYAMUNYA MAZIYA(hereinafter referred to as the accused) stands charged with the offence of Culpable Homicide. It is being alleged by the Crown that upon or about the 11th April 2009 and at or near Logoba area in the Manzini region, he unlawfully and negligently killed one SIBUSISO NKAMBULE (herein the deceased). The accused has pleaded guilty to the charge which plea the Crown accepts.
On the 11th April 2009 at White City near KaMndzebele market place at around 2240 hours, the deceased approached the accused person who was standing nearby. The deceased and the accused began to argue about a jacket worn by the accused which belonged to the deceased. The accused irritably took off the jacket and gave it back to the deceased and heated words were exchanged.
The deceased then began hitting the accused with fists and further hit the accused with stones. The accused at this juncture began to cry and went to sit at a distance from the deceased. The deceased followed the accused and further took out a bush knife and hit the accused with its palm and then took out a sjambok and beat him all over the body. The accused at the time was crying and asking the deceased why he was treated this way. The accused then went to sit by a fire nearby trying to avoid the deceased.
The accused then approached Norman Nkambule (Pw1) and requested him to intervene and try to bring peace as he was being assaulted by the deceased. The deceased approached the accused and Pw1. Instead of reaching an understanding the accused and deceased were involved in a heated quarrel. At that moment the accused took out a knife which he had been given prior by his friend (at the time when he was assaulted by the deceased). The knife fell down and when he picked it up the deceased made a remark and asked the accused if the knife was meant for him. The accused in that moment stabbed the deceased once on the body. The deceased fell on the ground and died instantly. The accused took flight and was pursued by people who saw the incident. The police were called and promptly arrived.
Thereafter, the deceased was taken to Raleigh Fitkin Memorial Hospital for certification of death by a doctor.
On the 16th April 2009 at Dups Mortuary in Manzini, Doctor Komma Reddy (Pw4) a police pathologist conducted a post mortem examination on the cadaver of the deceased. PW4 opined that the deceased died ‘due to stab wound to chest”. In stabbing the deceased with a knife resulting in the injury found by PW4 which caused the deceased’s death, the accused unlawfully and negligently cause the deceased’s death.
The accused admits that:-
the deceased is dead;
he committed an unlawful action to the deceased;
he intended to commit the said act as distinct from its consequences;
the said act was the immediate cause of the deceased’s death and there was no novus actus interveniens;
such an act was dangerous in the sense that a reasonable person would inevitably recognize that it caused some prospect harm.
The following will be produced in evidence:-
post mortem report”
 After the said statement had been handed up, together with the exhibits reflected therein, both real and documentary, one question remained torturing my mind and it is this: having due regard to the agreed statement of facts, particularly the numerous assaults to which the accused was subjected by the deceased, does the defence of self-defence not arise in the circumstances? I raised this issue notwithstanding the accused’s guilty plea, appreciating, as I should have that the accused person is unlettered in law and is furthermore, unrepresented.
 Ms. Zwane, for the prosecution, argued quite strenuously that the defence of self-defence, which is a complete defence, should not avail Munyamunya for the reason that at the time that the accused inflicted the mortal stab wound, the deceased had already stopped assaulting him and that he was no longer under any reasonable threat of death or further serious injury at the hands of the deceased.
 The defence of self-defence has been commented upon generously in many jurisdictions. The starting point in this jurisdiction is the Constitution Act, 2005. Section 15 (4) (a) thereof stipulates the following:-
“Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are mentioned in this subsection, a person shall not be regarded as having been deprived of life in contravention of this section if death results from the use of force to such an extent as is reasonably justifiable in the circumstances of the case -
for the defence of any person from violence or for the defence of property;…”
 The defence of self-defence, as enshrined in our Constitution, has been unpacked in other jurisdictions. Because wording, spirit and application appears to be the same, it would not be out of order to briefly advert to the application of the principle of self-defence as accentuated in certain foreign judgments, which provide highly persuasive value for our jurisdiction. I will, for present purpose, have recourse to some judgments from the Republic of Botswana and England, respectively.
 In Magula v The State  1 B.L.R. 209 (C.A.), Tebbutt J.P. stipulated the applicable principles thus at page 212:
“The courts have repeatedly emphasized that in considering whether an accused person has acted in self-defence, the court should not take what has been described as ‘the armchair approach’ to the facts. It is all very well, sitting in the cool, calm atmosphere of the court to opine that the accused should have taken this step or that when faced with an unlawful attack upon him. The trier of fact must, however, try to place himself in the position of the accused in the circumstances that existed at the time. . . It must also be remembered that it is not necessary that the accused person should have feared for his life. He can act in self-defence if he had a reasonable apprehension that the aggressor intended to inflict grievous harm on him. See S v Jackson 1963 (2) S.A. 626 (A).”
 One thing that must be emphasized from this judgment, is that self-defence does not only apply in a situation where the accused has a legitimate fear that he may be killed by his attacker. This is in line with section 15 (4) (a) above. Importantly, it also applies in circumstances where the accused reasonably fears that serious violence to his person resulting in injury may or is likely to eventuate. This is reiterated in the judgment that follows immediately hereafter.
 In Mmoletsi v The State  2 B.L.R. 708 (C.A.) at 712,Dr. Twum J.A. (present Justice of our Supreme Court), stated the following:-
“Under the law of this country, when a person is attacked and fears for his life or that he would suffer grievous bodily harm he may defend himself to the extent necessary to avoid the attack. In plain language, this means that the attacked person would be entitled to use force to resist the unlawful attack upon him. It also means that the degree of force employed in repelling the attack should be no more than is reasonably necessary in the circumstances. The law also means that if killing is perpetrated as a revenge or retaliation for an earlier grievance and there is no question that the would-be victim was facing an emergency out of which he could not avoid serious injury or even death unless he took the action he did, the killing can hardly be described as self-defence.”
 It would not be out of place to conclude this treatise by quoting from Lord Morris in Palmer v R  55 Cr. App. R 223, where His Lordship said :-
“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do what is reasonably necessary. But everything will depend upon the particular facts and circumstances … It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some act of retaliation which is wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression.”
 Taking the above in the proper context, Ms. Zwane argued that at the time when Munyamunya fatally stabbed the deceased, he acted in retaliation or out of vengeance as described in Mmolotsi andPalmer (supra). This is so because she forcefully argued, that at the point when the accused inflicted the mortal stab-wound, the storm, so to speak was over. All that was left were just the minor dying ramblings thereof. Is she correct?
 It would appear to me that Ms. Zwane is correct. It must be stated that the deceased was in his most aggressive element that night. He started his assault on the accused with fists, followed by assaulting him with stones. Then followed an attack with the palm of a bush-knife. At the end of each of these attacks, the accused would go away and the deceased followed him. The last attack was when the deceased assaulted the accused with a sjambok all over the body. The accused, after that baptism, so to speak, went away and sat next to the fire.
 He approached Norman Nkambule (PW1) and requested the latter to broker peace between them. At that point, the two protagonists renewed verbal hostilities. With no physical violence being meted out or reasonably threatened or apprehended, the accused picked a knife and used it to stab the deceased. Munyamunya, argued that he and the deceased were struggling over its possession at that point, but this is not recorded in the statement of agreed facts and I cannot go beyond what is recorded therein in making findings of fact. I also note that this version does not find any credible support in the evidence.
 One cannot help but sympathise with the accused for the violent treatment meted to him by the deceased. What is critical, however, is that at the point when he stabbed the deceased, he was no longer under any physical or threatened attack from the deceased. There is no suggestion that the deceased was carrying a dangerous weapon either with the intention of assaulting the accused with it or reasonably raising the fear that he could use it to at least inflict grievous harm on the accused Munyamunya. The present facts would, in the circumstances, serve to bring this matter within the realms of revenge, for no doubt the serious attacks on Munyamunya had by that time come to an end.
 I accordingly come to the considered view that the stabbing of the deceased by Munyamunya, at the time it occurred, was unlawful and does not find refuge under the full defence of self-defence as adumbrated above. In the circumstances, it would appear to me therefore that the element of unlawfulness, which is the only one that vexed me, was indubitably proved by the Crown and beyond reasonable doubt. In the circumstances, I am well satisfied that all the constituent ingredients of self-defence have been accepted by the accused.
 In Beckford v R  A.C. 130 at 134,Lord Griffiths said:-
“It is because it is an essential element of all crimes of violence that the violence or the threat of violence should be unlawful that self-defence if raised as an issue in a criminal trial, must be disproved by the prosecution. If the prosecution fail to do so the accused is entitled to be acquitted because the prosecution will have failed to prove an essential element of the crime namely that the violence used by the accused was unlawful.”
As indicated above, the prosecution has succeeded in discharging the onus on it in relation to the element of unlawfulness.
 In view of the accused’s plea of guilty; his acceptance of the statement of agreed facts; the acceptance of the constituent ingredients of the offence of culpable homicide, considered in tandem with the reception of the exhibits, to my mind, constitute a proper case in which the conviction of the accused is called for. I accordingly convict the accused of the offence of culpable homicide in accordance with his plea.
JUDGMENT ON SENTENCE
 I now turn to deal with the question of sentence. It has been acknowledged that sentence is the most vexing aspect of a criminal trial. This is because the Court, in arriving at a condign sentence, is in duty bound to bring to bear upon its sentence, three competing and to some extent divergent interests to equilibrium. These are the interests of the public; the interests of the accused and the seriousness of the offence. These are referred to in case law as the triad.
 I will follow the beacons so carefully set out by Jones J. in S v Qamata 1997 SACR 479, in imposing what I consider in all the circumstances of this case, to be an appropriate sentence. At page 480, the learned Judge made the following timeless remarks:-
“It is now necessary for me to pass sentence. In doing so, it is proper to bear in mind the chief objectives of criminal punishment, namely, retribution, the prevention of crime, the deterrence of criminals, and the reformation of the offender. It is also necessary to impose a sentence which has a dispassionate regard for the nature of the offence, the interest of the offender, and the interests of the society. In weighing these considerations I should bear in mind the need:
to show an understanding of and compassion for the weaknesses of human beings and the reasons why they commit serious crimes, by avoiding an overly harsh sentence;
to demonstrate the outrage of society at the commission of serious crimes by imposing an appropriate, and, if necessary, a severe sentence; and
to pass a sentence which is balanced, sensible, and motivated by sound reasons and which will therefore meet with the approval of the majority of law abiding citizens. If I do not, the administration of justice will not enjoy the confidence and respect of society.”
 I have considered the following factors which work in your favour:-
(i) You are a first offender without a recorded blemish;
(ii) You pleaded guilty to this offence, thus exhibiting that you are remorseful for your actions. This plea further served to redeem the Court’s time and spared witnesses the trauma of having to relate and relive as it were, the events in which this sad occurrence took place;
The deceased vexed your spirit enormously by
assaulting you repeatedly and over what appears to have been a prolonged period. He was clearly spoiling for a fight as he pursued you even when you disengaged from his violent retribution on your person.
(iv) I also consider that this killing was not premeditated and that you inflicted only one stab-wound on your tormentor.
(v) I shall also consider that you chanced upon the knife and had not been carrying it on your person during the times of your tribulation and torment.
(vi) You have told the Court that you are 24 years old and you are looking after your grandmother and your uncle’s child, with no one available to look after them.
(vii) I will also consider that you were running a small business at the time of the occurrence of this offence.
 Having said the above, I must record that this is a serious offence that has resulted in the irretrievable loss of a life. This will forever blight your conscience. I must also remark that there are far too many incidences in this country in which lives are brought to an abrupt and painful end through the instrumentality of a knife. This is a general indicator that the Courts may have to stamp out the unlawful killings brought about by the use of knives through stepping up the sentencing regime. It is in society’s interest that such behaviour should, if at all possible, be eradicated.
 It is sad to note that some of the persons to whom you turned in order to try to stem the tide of the deceased’s fury did not manage to quell the storm and cause reason to resume its seat with both of you. It becomes clear that you killed the deceased because you were at the end of your tether.
 In the circumstances, I am of the considered opinion that the following sentence will meet the justice of this case, regard had to all the factors I have adverted to above.
The accused be and is hereby sentenced to five (5)
(2) Three (3) years of the sentence be and are hereby suspended for a period of three (3) years, on condition that you are not during the period of suspension found guilty of an offence involving violence on the person of another and you are sentenced to a custodial sentence therefor without the option of a fine.
(3) The effective portion of the sentence is ordered to run with effect from 11 April, 2009.
(4) The knife be and is hereby forfeited to the State.
DELIVERED IN OPEN COURT IN MBABANE ON THIS THE 28th
DAY OF JUNE, 2010.
JUSTICE OF THE HIGH COURT
Directorate of Public Prosecutions for the Crown
Accused in Person.