IN THE HIGH COURT OF ESWATINI
Criminal Case No. 406/2014
In the matter between:
Neutral Citation: Rex V Sabelo Dlamini [406/2014] SZHC 163  (12 July 2018)
Coram: M. LANGWENYA J.
Heard: 11 July 2018
Delivered: 12 July 2018
Summary: Criminal law-Criminal Procedure-accused charged with murder but pleads guilty to culpable homicide-section 155 of the Criminal Procedure and Evidence Act 1938 invoked-statement of agreed facts tendered in court- accused convicted on basis of his own plea and on content of statement of agreed facts-Evidence in mitigation of sentence evaluated in light of the ‘triad’ principle- culpable homicide found to be of a serious nature-accused sentenced to term of ten year imprisonment.
 The accused was charged with the offence of murder. In that upon or about 4 October 2014 and at or near Mbasheni area, in the Hhohho region, the said accused did unlawfully and intentionally inflict injuries on the body of Sandile Dlamini from which injuries the said Sandile Dlamini died on 6 October 2014 whilst undergoing treatment at Mkhuzweni Health Centre.
 When the accused was arraigned he pleaded guilty of culpable homicide. The Crown accepted the plea. In this vein, section 155 of the Criminal Procedure and Evidence Act applies and states as follows:
‘That the accused may plead that he is guilty of the offence charged, or with the concurrence of the prosecutor, of any other offence of which he might be convicted on such indictment or summons’.
Accordingly, the court accepted the accused’s plea and proceeded on a charge of culpable homicide.
 The Crown submitted a statement of agreed facts signed by both counsel for the Crown and the Defence. The autopy report was also handed into court by the Crown. The statement of agreed facts was marked as exhibit ‘A’ and the autopsy report was marked exhibit ‘B’.
Both documents were handed into court with the consent of both counsel for the Crown and the Defence. The Court duly admitted same as evidence.
The statement of agreed facts was read out in court by the Crown and its contents were confirmed by the defence counsel.
 The Court enquired from the accused personally if he was conversant with the contents of the statement of agreed facts and whether he had any objections to it being admitted into court as evidence. The accused said he was aware of the contents in the statement of agreed facts and also pointed out that he had no objection to it being admitted into court as evidence.
 The common cause factors are that the on the evening of 4 October 2014 the accused arrived home in a questionable state of sobriety. The accused approached his mother-Zodwa Shabangu and Bonginkosi Dlamini and demanded to be given food. When he was given the food, he spilled it on the ground and was helped by Ngcebo Dlamini to clean up the place by removing the food he had spilled.
 The accused’s mother then left the kitchen and went to her grass thatched hut. The accused followed his mother to her hut and threatened to burn the hut. In the hut, the accused took out his gun light to set the grass thatched hut on fire. The accused’s mother ran out of the hut and raised an alarm calling the deceased to come to her aid.
The deceased is the eldest brother of the accused.
 When the accused’s mother was raising the alarm, the deceased, Mlungisi Dlamini (PW2) and Bonginkhosi Dlamini (PW3) in the summary of evidence came out to investigate what was happening.
The accused’s mother asked the deceased to calm the accused to no avail.
When the deceased reasoned with the accused, he became more aggressive. The accused went to his house and returned with an axe, accosted the deceased and hit him in the abdominal region with the blunt side of the axe. The axe was presented in court and was marked as exhibit ‘1’. It was a lethal weapon which appeared to be sharp on one side.
 The deceased collapsed to the ground and had difficulty breathing. The accused attempted to hit the deceased even when he had fallen to the ground but was stopped by Bonginkhosi Dlamini and Mlungisi Dlamini who dispossessed him of the axe.
At the time the axe was taken from the accused, he was violent and wanted to assault anyone he came across.
 After the deceased had collapsed, Zodwa Shabangu sought and found transport to convey the deceased to Mkhuzweni Health Centre. The deceased was admitted and treated at the hospital where he spent two nights before he died.
The matter was reported to the Buhleni Police. The accused was arrested on 6 October 2014.
 Dr. R.M. Reddy, a police pathologist conducted a post mortem examination on the body of the deceased on 10 October 2014 and determined the cause of death to have been due to traumatic rupture of intestine.
Section 221 (1)(a) of the Criminal Procedure and Evidence Act, 1938 provides as follows:
In any criminal proceedings in which any facts are ascertained-
- By a medical practitioner in respect of any injury to, or state of mind or condition of the body of, a person, including the result of any forensic test or his opinion as to the cause of death of such person;
Such facts may be proved by a written report signed and dated by such medical…practitioner, as the case may be, and that report shall be prima facie evidence of the matters stated therein:…
 Based on the above provision, I have accepted the autopsy report without the doctor handing it in court because both counsel for the Crown and the Defence consented to it being so admitted. Accordingly the court accepts the autopsy report as prima facie evidence of the cause of death of the deceased. The autopsy report was marked exhibit ‘B’.
I am satisfied that the Crown has proved the commission of the offence beyond reasonable doubt. This I say based on the evidence before court and the plea of guilty tendered by the accused. The accused is found guilty of culpable homicide.
 The Crown submitted that the accused does not have previous convictions.
In mitigation of sentence, it was submitted on behalf of the accused that:
He is remorseful
He is twenty-nine years of age, unemployed and a first offender
That he has since stopped imbibing in alcohol
That he is unsophisticated for lack of formal education
He does not have a wife. He also does not have children
 That he was arrested on 6 October 2014 and released from custody on 31 March 2016 after successfully moving an application under section 136 of the Criminal Procedure and Evidence Act, 1938.
On 12 January 2018 the accused was taken into custody after he was found in possession of dagga. He remains in custody to-date.
 I was addressed by both counsel on the issue of sentence. The Crown submitted that the court should mete out an appropriate sentence ranging between ten years and fifteen years. It was the Crown’s submission that the accused committed a serious offence where a life was lost and that a stiff sentence should be passed to deter other would-be offenders. It was contended by the Crown that in previous decisions in similar cases, the High court and the Supreme Court has passed sentences ranging from ten years to fifteen years in similar cases.
 The defence submitted that in similar cases, the courts in our jurisdiction have meted sentence ranging from six years to ten years. The court was implored to consider the personal circumstances of the accused as outweighing the other two aspects of the triad and pass a sentence that is on the lower side of ten years.
I turn now to consider the ‘triad’ which is the personal circumstances of the accused, the offence and the interests of society. I acknowledge and accept the favourable circumstances of the accused and what was said on his behalf.
 With regard to the offence itself, I regard it to be a reprehensible and cowardly attack, a constant reminder and evidence of the fact that violent behaviour is easily resorted to by people of questionable sobriety instead of seeking to keep the peace in a family set-up. The accused had no reason to resort to the assault of his older brother who was doing no more than keep the peace between the accused and his mother.
 With regard to the interests of society, I note that the members of the accused’s family have a right to live their lives peacefully and unharmed. Society requires that this right be recognized and that a person who violently causes the death of another should be punished.
 The death of the deceased in the hands of his brother was a tragedy not only for the deceased’s family but for the accused as well. A human life was violently taken as the death of the deceased was a result of a severe and negligent assault. The accused hit the deceased with the blunt side of an axe on the abdominal area with great force. The degree of culpability was therefore high.
In the case of S v Naidoo and Others the following was said with regard to the sentence for culpable homicide:
‘ The circumstances in which the crime of culpable homicide may be committed range across a wide spectrum. At one end is the case where a momentary lapse in concentration on the task at hand has a tragic result. Neither the lapse nor the failure to foresee the consequences of it is deliberate. Yet they have resulted in a loss of life. They could just as easily not have had that result. Sentencing fairly and appropriately in such a case is one of the law’s most difficult tasks. The culpa may have been slight but the result stirs an understandable call from society at large (and a fortiori from those close to the deceased) for the sentence to visit tangible retribution upon the culprit. Balancing the need for a sentence that on the one hand, will not appear to rate the loss of life with all the attendant trauma to those to whom the deceased was near and dear as not too serious against, on the other, the need to calibrate the degree to which the accused’s conduct deviated from the standard of care expected of a reasonable person and, if it is found to be slight, to also reflect that adequately in the sentence to be imposed, is inherently difficult. The outcome will often satisfy neither those close to the deceased nor those close to the accused, being too lenient in the eyes of the former and too severe in the eyes of the latter. But that does not absolve a court from its duty to strive as best it can to achieve a proper balance between those objectives.’
 At the other end of the culpable homicide spectrum is the type of case where the accused deliberately assaulted the deceased but has not been convicted of murder because the State has failed to prove beyond reasonable doubt that death was actually foreseen as a reasonably possible consequence of the assault. Because it should have been foreseen a verdict of culpable homicide is returned. Here there is more involved than culpa. An assault has been committed. Dolus is present. A deliberate attack upon a person’s bodily integrity which was intended to harm has resulted in the most irredeemable harm of all: death. Few would quibble at the justness of substantial custodial sentences for that type of culpable homicide. But even within that class of case there are distinctions to be drawn. Was a weapon used? Was there provocation? How great was the negligence in failing to foresee that death would result?’
 In our jurisdiction, I have found a number of decisions where the High court and the Superior court have handed down sentences ranging from nine years to ten years for culpable homicide.
The sentence of ten years in culpable homicide cases is considered proper for an offence at the most serious end of the scale of such a crime.
In the present case, the Court has taken into account all the considerations of the ‘triad’ principle. The accused has been found guilty of a serious offence which claimed the life of his brother. From the statement of agreed facts, it is apparent that when the accused assaulted the deceased with the blunt side of an axe, the latter was unarmed and the accused himself was not in danger.
 Even after the accused had inflicted the serious injury on the deceased and the latter had collapsed to the ground, the accused was not perturbed as he made no attempt to assist the deceased, he neither raised an alarm nor sought help from other people to transport the deceased to the hospital. Instead, the accused is said to have wanted to inflict more injury on the deceased even when he lay on the ground. I do not see how the conduct of the accused in this regard should not be considered aggravating and rendering this case one of the most serious cases of culpable homicide.
 Having regard to the authorities to which I have referred and all the circumstances of the case, I am of the view that direct imprisonment for a period of ten years backdated to 6 October 2014 is a fitting sentence. The sentence will take into account the period the accused spent in custody from 6 October 2014 until 31 March 2016 when he was released in custody following his successful application invoking section 136 of the Criminal Procedure and Evidence Act 1938.
JUDGE OF THE HIGH COURT
For the Crown: Ms. L. Dlamini
For the Defence: Mr. S. Gumedze
 2003 (1) SACR 347 (SCA) at paragraphs  and 
 See: Musa Kenneth Nzima v Rex Criminal appeal No. 21/2007; Petros Mangisi Masuku v Rex Criminal Appeal case No. 11/2008; Vusi Madzalule Masilela Criminal Appeal case No. 14/2008 and Lucky Sicelo Ndlangamandla and Two Others, Criminal Appeal case No. 8/2008 as well as Rex v Nkosinathi Bright Thomo High Court Criminal Case No. 203/2008.
 Kenneth Nzima v Rex Criminal Appeal case No. 21/2007.