IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CRIMINAL
TRIAL NO. 85/05
In
the matter between:
REX
VS
LOUIS
HOWARD
CORAM: MCB
MAPHALALA, J
FOR
CROWN: A. Makhanya
FOR
DEFENCE: Accused in Person
JUDGMENT
13th
APRIL 2011
[1]
The accused was charged with Culpable Homicide for the unlawful and
negligent killing of Fana Dumisani Mavuso on the 12th
January 2002 at Esitsheni area in the Hhohho Region. The Crown
alleges that the accused unlawfully assaulted the deceased and
inflicted certain injuries which caused his death. He pleaded guilty
to the charge, and, the Crown accepted his plea.
[2]
A Statement of Agreed Facts signed by both the Crown and the accused
was admitted in evidence by consent; and it was marked exhibit 1. The
Statement reads as follows:
1.
It is agreed that on the 22nd
December 2001 the deceased and one Bongani Phiri were at the Phiri
homestead where both of them were residing.
2.
The deceased and Bongani Phiri were sitting on the yard drinking beer
in the afternoon of the day.
Accused
approached the Phiri homestead and jumped over the fence. He
proceeded to where deceased and Bongani Phiri were sitting. Accused
knew both of them and they also knew him. At a distance there was
one Zanele Nxumalo who was sitting.
4.
The deceased then enquired from the accused as to why he jumped the
fence instead of using the gate. Accused told him that he had not
come to him but to Bongani Phiri. Bongani Phiri also asked the same
question as deceased. Accused apologized, but Bongani Phiri who was
drunk, hit the accused with an open hand on the face, and a fight
ensued between them.
5.
The deceased who was also drunk went to fetch a knobkerrie from his
house and hit accused on the back of his head. Accused was able to
take the knobkerrie from deceased because he was drunk. Deceased
happened to fall down and accused kicked him several times on the jaw
using his safety boots. Zanele Nxumalo and Bongani Phiri separated
them. Accused then ran away.
6.
The deceased did not go to hospital until on the 24th
December 2001 when the injuries started complicating. He was admitted
at the Mbabane Government Hospital and he died after two weeks.
7.
The accused admits that the deceased died as a result of his wrongful
and negligent acts. He is remorseful for what happened. Accused was
informed on the 11th
January 2002 of the death of the deceased and he handed himself to
the Lobamba Police.
[3]
A post-mortem report was also admitted in evidence by consent and
marked Exhibit 2. The Post-Mortem report revealed that the deceased
died due to septicaemia,
which
resulted as a complication of multiple injuries. His body was
identified by Welile Zwane, a sister to the deceased.
[4]
The admissions made by the accused were admitted in evidence in terms
of Section 272 (1) of the Criminal Procedure and Evidence Act No. 67
of 1938 which allows the accused in a criminal matter to admit any
fact relevant to the issue before court, and, that such admission
shall be sufficient evidence of such fact. Furthermore, there is no
need for the Crown to lead further evidence in the light of the plea
of guilty to the offence charged in accordance with Section 238 (1)
of the Criminal Procedure and Evidence Act which provides that an
accused who has pleaded guilty to an offence charged other than
murder, may be sentenced by the court for such offence without
hearing any evidence provided the prosecutor has accepted such a
plea.
[5]
The Crown has proved the commission of the offence beyond
reasonable doubt. In addition to the plea of guilty, the accused in
the Statement of Agreed Facts admitted that the deceased died as a
result of his wrongful and negligent conduct of assaulting
the deceased, and, that there was no intervening cause. The accused
admitted that he did jump over a fence at the Phiri homestead and
found the deceased and Bongani Phiri drinking beer. The deceased
asked the accused why he had jumped over the fence, and, the accused
told him that he had not come to him but to Bongani Phiri; the latter
also asked him a similar question, and he apologized. Bongani Phiri
who was drunk hit the accused with an open hand on the face, and a
fight ensued between them. The deceased who was also drunk, went and
fetched a knobkerrie from his house and hit the accused on the back
of his head. The accused was able to take the knobkerrie from the
deceased because he was drunk. The deceased fell down and the
accused inturn kicked him several times on the jaw using his safety
boots. Zanele and Bongani Phiri separated them, and, the accused ran
away.
[6]
In the circumstances the accused is convicted of
Culpable Homicide as charged.
[7]
On mitigation of sentence, it was submitted that the accused was a
first offender, that he was remorseful of his conduct because he
pleaded guilty to the charge and that he surrendered himself to the
police after he was informed of the death of the deceased. The
accused is married with two minor children; he is thirty six years of
age and self-employed as a bricklayer.
[8]
The accused is convicted of a very serious offence in which a human
being was killed. It is true that the accused was first attacked by
the deceased and Bongani Phiri; the latter hit the accused with an
open hand, and the deceased hit the accused with a knobkerrie. The
accused was entitled to defend himself against the unlawful physical
assault; however, he exceeded the bounds of self-defence because
after disarming the deceased of the knobkerrie, he kicked him several
times on the jaw using his safety boots. The accused did this even
though the deceased had fallen down to the ground due to drunkenness.
The accused was aware that the deceased and Bongani Phiri were
drunk, and, there was no need for him to kick the deceased several
times. Furthermore, he had disarmed the deceased of the knobkerrie
and the deceased was no longer a threat to him.
[9]
After assaulting the deceased, the accused ran away; he did not
assist and take the deceased to hospital for treatment. The deceased
did not go to hospital until the 24th
December 2001 when the injuries started complicating. He was admitted
to hospital but died after two weeks.
[10]
Murder cases in this country have increased particularly those in
which people are killed after a very minor quarrel. There seems to be
a reckless disregard of the sanctity of human life in this country.
In the case of Mthaba
Thabani Xaba v. Rex Appeal
Case No. 9 of 2007 at page 6 the court stated the following:
"....it
is of critical importance that the sentencing of an accused person
should be premised on a thorough investigation of all the relevant
facts surrounding the commission of the offence. The personal
circumstances of an accused person obviously need to be taken into
account. However, the degree of his moral guilt is also dependent on
the gravity of the offence as well as the mitigating and aggravating
features of the offence. If the court process does not elucidate
these factors, the court sentencing an offender may fail to do
justice to an accused, or per contra fail to ensure the protection of
the public."
[11]
In the case of Musa
Kenneth Nzima v. Rex Criminal
Appeal No. 21 of 2007, the Court laid down the fundamental guideline
that a sentence of nine years imprisonment is warranted in culpable
homicide convictions only at the most serious end of the scale of
such crimes. The court stressed the individualization of culpable
homicide cases on the particular facts of each case.
[12]
In the circumstances the accused is sentenced to ten years
imprisonment one year is suspended for five years on condition that
the accused is not convicted on an offence in which violence is an
element during the period of suspension.
M.C.B.
MAPHALALA
JUDGE
OF THE HIGH COURT
