IN THE HIGH COURT OF ESWATINI
Case No. 155/2013
In the matter between:
Neutral citation: Rex v Dumsani Dlamini (155/2013)  SZHC 151 (15 August 2019)
CORAM : T.L. DLAMINI J
Heard : 10 - 11 July 2019
Delivered : 15 August 2019
Summary: Criminal law and procedure – Accused person charged with Murder – On the date of commencement of trial, the crown made application for amendment of the charge to Culpable Homicide – The accused pleaded guilty to the Culpable Homicide charge – The crown accepted the plea without leading evidence – A statement of agreed facts was prepared and presented to court.
Held: That the accused is found guilty of Culpable Homicide on his own plea – Sentenced to seven years imprisonment. Two years suspended for three years on condition the accused is not found guilty of another offence where violence is an element.
 The accused was initially charged with Murder. In terms of the indictment, upon or about 26 March 2013 and at or near Nkamanzi area in the Hhohho region, the accused did unlawfully and intentionally kill one MUSA DLAMINI, and did thereby commit the crime of MURDER.
 At the commencement of trial on the 10 July 2019 the crown made application for amendment of the charge to Culpable Homicide. The charge (Culpable Homicide) was then put to the accused and he pleaded guilty. The plea was confirmed by the defence attorney.
 A statement of agreed facts, which in law takes the place of evidence, was prepared and handed to the court by the parties’ attorneys. The statement was read for the record and the accused confirmed it as a true reflection of the facts of the case before court. The statement of agreed facts is reproduced below:
“STATEMENT OF AGREED FACTS
1. Dumsani Dlamini (hereinafter referred to as the accused person) stand charged with the offence of Murder in that upon or about the 26th March 2013 and at or near Nkamanzi area, in the Hhohho region, the said accused person did unlawfully and intentionally kill one Musa Dlamini and did thereby commit the crime of Murder.
2. The accused pleads guilty to unlawfully and negligently killing the deceased. In effect accused pleads guilty to a lesser offence of Culpable Homicide which the crown hereby accepts.
3. On the 26th March 2013, the accused while at Nkamanzi area he quarreled with the deceased in the presence of PW1 Thabsile Mlotsa who was across at her homestead but within hearing distance. The accused is said to have been hurling insults at the deceased but she could not hear what the deceased’s responses were. Part of the insults was that the deceased was bewitching the accused. These two have a history of quarreling over goats belonging to the accused which are said to have been destroying the deceased’s fields.
4. There was an exchange of words which culminated to a fight resulting in the accused hitting the deceased with a stone on the head and he fell down. Accused was heard saying ‘ngimshayile vele ngoba uyangiloya’ by PW2 Doctor Dlamini.
5. After accused was assaulted with the stone on the head he fell down on the ground. PW1 Thabsile Mlotsa went towards them and found the deceased lying on the ground and the accused leaving the body. PW1 asked the accused why he was assaulting her husband and the accused responded by insulting her saying ‘Fuseki golo …’ and then proceeded to his home.
5.1 PW1 raised an alarm and PW2 Doctor Dlamini came and examined the body and said that he was dead. PW2 then called the police who came and took accused and the deceased was taken to the mortuary.
6. Before the body of the deceased was conveyed to the mortuary, the scenes of crimes officer was called to take photographs of the scene, including the stone used to assault the deceased. It is unfortunate that the photographs went missing.
7. It is further agreed that:
7.1 The deceased died as a result of the accused person’s unlawful and negligent conduct.
7.2 The accused person’s conduct was the immediate cause of the deceased’s death and there was no intervening act.
7.3 The accused intended to commit an act as distinct from its consequences.
8. The following will be produced in court as part of the Crown’s evidence.
8.1 Statement of agreed facts.
8.2 Postmortem report by Dr. R.M. Reddy.
8.3 Stone (exhibit used to assault the deceased)
Dated at Mbabane on the 9th July 2019
 The statement of agreed facts was signed by the attorneys of both parties. The postmortem report and stone that was used to assault the deceased, both items mentioned in paragraphs 8.2 and 8.3 of the statement of agreed facts, were handed-in and admitted as part of the crown’s evidence.
 The postmortem report confirms the cause of death as “due to head injury”. On the basis of the postmortem report, there is no doubt that the deceased died from the head injury that was inflicted upon him by the accused person as admitted in terms of paragraph 7.2 of the statement of agreed facts. In terms of s.221 (1) of the Criminal Procedure and Evidence Act of 1938 as amended (hereinafter referred to as the Act), a report signed and dated by a medical practitioner shall be prima facie evidence of the matters stated therein. On the basis of this provision, the postmortem report is conclusive of the cause of death.
 The court, acting in terms of s.238 of the Act, convicted the accused on his own plea of guilty to the charge. The section provides that if an accused pleads guilty to a charge and the crown accepts the plea, this court may sentence the accused for such offence without hearing any evidence. It provides as quoted below:
- 238 (1)If a person arraigned before any court upon any charge has pleaded guilty to such charge, or has pleaded guilty to having committed any offence (of which he might be found guilty on the indictment or summons) other than the offence with which he is charged, and the prosecutor has accepted such plea, the court may, if it is-
- the High Court or a principal magistrate’s court, and the accused has pleaded guilty to any offence other than murder, sentence him for such offence without hearing any evidence; or
Provided that if the offence to which he has pleaded guilty is such that the court is of opinion that such offence does not merit punishment of imprisonment without the option of a fine or of whipping or of a fine exceeding two thousand emalangeni, it may, if the prosecutor does not tender evidence of the commission of the offence, convict the accused of such offence upon his plea of guilty, without other proof of the commission of such offence, and thereupon impose any competent sentence other than imprisonment or any other form of detention without the option of a fine or whipping or a fine exceeding two thousand emalangeni, or it may deal with him otherwise in accordance with law.
 Following the court’s pronouncement of the guilty verdict, and acting in terms of s.145 of the Act, the court terminated the accused person’s bail. The section provides that a plea entered by the accused, if the matter is heard by the High court, has the effect of terminating his or her bail if he or she had been admitted to bail. The accused was therefore ordered to be detained in custody until the trial is concluded. Herein below I quote the provision:
145. If the accused is indicted in the High Court after having been admitted to bail, his plea to the indictment shall, unless the court otherwise directs, have the effect of terminating his bail and shall thereupon be detained in custody until the conclusion of the trial in the same manner in every respect as if he had not been admitted to bail.”
 Following the conviction, the court heard submissions on mitigation on the following day, viz., 11 July 2019. It was submitted that the accused is a first offender, and is an old citizen who has not been on the wrong side of the law until this unfortunate incident. He has shown his remorse by pleading guilty and did not waste the court’s time and resources. To further demonstrate how remorseful and sorry the accused and his family are, they contributed a substantial amount towards the burial costs of the deceased.
 It was also submitted that the accused is a family man and a breadwinner. His wife is unemployed and that they have eight young children who are school going and are entirely dependent on him for support. It was further submitted that the accused fully cooperated with the police, and even pointed out the stone that he used to strike the deceased. Lastly, it was submitted that the accused was arrested on the same day he killed the deceased. Soon afterwards he was granted bail. It was argued that the six years waiting period for his trial to commence has been hanging over his head like a sword ready to strike at any moment. This is punishment on its own, argued the defence attorney.
 The crown confirmed that the accused is a first offender. It submitted that as much as the accused pleaded guilty to the charge, and that the plea is a sign of being remorseful, the court should not turn a blind eye to the fact that the accused committed a serious offence where a life was lost. The deceased was deprived of his right to life that is guaranteed by the Constitution of the country.
 The crown also submitted that the offence is prevalent in the country and the court must therefore impose a stiffer sentence in order to deter would be offenders from committing similar offences.
 The court was urged to also consider the conduct of the accused soon after committing the offence. It was submitted that at the time of committing the offence, the accused was 42 years old. He therefore was matured enough to appreciate the consequences of his conduct. After having seriously injured the deceased on the head, he left him to bleed to death on the ground. He never attempted to give first aid or make means to have the deceased assisted. This demonstrates that he never cared whether the victim died or not, argued the crown. It was further argued that the fact that the accused suspected that the deceased was bewitching him, and that the two had previous quarrels regarding goats belonging to the accused that were alleged to have been destroying the crops of the deceased, that did not give the accused the right to take away the life of the deceased.
 In determining the appropriate sentence, I am required to take into account the personal circumstances of the accused, the offence and the interest of society. This is known as the triad in legal parlance. I am to evenly balance the circumstances of the accused, the prevalence and seriousness of the offence and the interest of society.
 The fact that the accused is a first offender, and is also a family man who has eight young children who are school going and are dependent on him for maintenance and support, and that he has demonstrated his remorsefulness by contributing to the burial costs and pleading guilty to the charge, have been considered by this court in his favour.
 The court has also taken into account the fact that the killing of people by other human beings is now prevalent, and the courts are expected to play an important role by imposing sentences that would deter other would be offenders. The prevalence of the offence is to be dealt with, in most cases, by removing the offenders from society. That is achieved when lengthy custodial sentences are imposed upon the offenders.
 The taking away of a human life is against the interests of society. It is for this reason that the right to life is protected and guaranteed by the supreme law of the country. S.15 of The Constitution of the Kingdom of Eswatini, 2005. The courts are expected to meet these societal interest by appropriately dealing with all offenders of the law. Any failure on the part of the courts would lead the people to taking the law into their own hands.
 In determining sentence, the court must evenly balance the personal circumstances of the accused, the nature, circumstances and prevalence of the offence, and the impact of the offence on the community, its welfare and concern. R v Mkhwanazi (75/2005)  SZHC 25 (07 February 2006), paragraph  thereof. What in actual fact is taken into consideration is the crime, the offender and the interest of society. These are considerations that must be evenly balanced and are known as the triad.
 In the appeal case of Nzima v R (21/2007)  SZSC 35 (14 November 2007), Tebbutt J.A. quoted Holmes J.A. in S v Rabie 1975 (4) S.A. 855 (A) at 862 (G) who said the following about punishment:
“Punishment should 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 appeal case of Nzima v R (supra), Tebbutt J.A. states what I quote below:
“There are obviously varying degrees of culpability in culpable homicide offences. The court has recognized this and in confirming a sentence of 10 years imprisonment in what it described as an extraordinarily serious case of culpable homicide said that the sentence was proper for an offence ‘at the most serious end of the scale of such a crime’ (see BONGANI DUMSANI AMOS DLAMINI v REX CA 12/2005).” (own emphasis)
 Tebbutt J.A. further stated that “A sentence of 9 years seems to me also to be warranted in culpable homicide convictions only at the most serious end of the scale of such crimes. It is certainly not one to be imposed in every such conviction.”
 When I take into account the cause of the quarrel that led to the assault of the deceased person, as stated in the statement of agreed facts, I am of the opinion and finding that the accused is lacking in self-restraint, and is to some extent bully. He believed that he had to physically deal with the deceased because the deceased was bewitching him (per paragraph 4 of the statement of agreed facts). He went on to insult the wife of the deceased after he had inflicted the fatal injury on her husband. He also left the deceased lying on the ground and proceeded to his home, without any care about his condition.
 Having taken into consideration all the factors stated in the paragraphs above, the following order is issued:
- The accused is sentenced to seven (7) years imprisonment. Two (2) years is suspended for a period of three (3) years, on condition that the accused is not, during the period of suspension, found guilty of another offence wherein violence is an element.
- The sentence period is backdated to take into account any time that the accused spent in custody in respect of this offence.