SWAZILAND HIGH COURT
Held at Mbabane
Criminal Trial 127/2002
In the matter between
Coram ANNANDALE, ACJ
For the Crown Ms N. Lukhele
For the accused Mr. S. Bhembe
JUDGMENT ON EXTENUATION 7 OCTOBER 2004
Following the conviction of the first two accused of the crime of murder, prior to proceeding to the imposition of sentences on the other counts of robbery and the firearm related convictions, it first has to be
determined whether extenuating circumstances in respect of the first two accused person exist or not.
Section 295 of the Criminal Procedure and Evidence Act, 1938 (Act 67 of 1938) (The Act) reads that:-
"295. (1) If a court convicts a person of murder it shall state whether in its opinion there are any extenuating circumstances and if it is of the opinion that there are such circumstances it may specify them:
Provided that any failure to comply with the requirements of this section shall not affect the validity of the verdict or any sentence imposed as a result thereof.
(2) In deciding whether or not there are any extenuating circumstances the court shall take into consideration the standards of behaviour of an ordinary person of the class of the community to which the convicted person belongs."
The effect hereof is that in the event that it is found that no extenuating circumstances exist, the court is obliged to impose the ultimate
penalty. This is due to the prescriptive wording of Section 296(1) of the act, which reads that:-
"296. (1) Sentence of death by hanging shall be passed by the High Court upon an offender convicted before or by it of murder, and sentence of death by hanging may be passed by such court upon an offender convicted before or by it of treason:
Provided also that where a court in convicting any person of murder is of the opinion that there are extenuating circumstances it may impose any sentence other than the death sentence."
The legal position in the Kingdom is thus that where a person has been convicted of murder, the court is not at liberty to impose any other sentence than capital punishment unless extenuating circumstances are found to exist.
Before proceeding on an evaluation of what is before the court to make a determination of the issue, it is once again important to restate, and emphatically so, that the accused person has no onus or burden of proof to establish the presence of extenuating circumstances, nor does the crown bear
an onus to prove otherwise. It is the duty of the court to so determine the question of whether there exists morally, not legally, any issue or issues that reduces the moral blameworthiness, or the degree of his guilt, to the extent that it may be found to be an extenuating circumstance. In this regard, the Court of Appeal of Botswana has collated and considered a plethora of relevant authorities where the above position has been determined in David Kaleletswe and 2 others vs The State in Criminal Appeal case 26 of 1994.
The Swaziland Court of Appeal referred to Kaleletswe in Daniel Dlamini vs Rex in Appeal Case No. 11 of 1998 and added, on the question of onus, as follows:-
"In reaching a conclusion as to whether or not extenuating circumstances are present the court makes a value or moral judgment after considering all the relevant facts and circumstances both mitigating and aggravating in order to make such a judgment. In these circumstances it seems to us to be quite inappropriate to determine the issue by raising the question of onus. The duty falls upon the court."
That this duty of the court is onerous and not to be lightly dealt with bears no argument. It literally means that the difference between life and death has to be determined.
In S v Mkize 1953(2) SA 324(A) at 335 - 336 it was held that the state of mind of the accused at the time he committed the offence must be considered and not how the 'reasonable man' would have behaved - a subjective test. It is more the moral guilt or blameworthiness which is assessed, rather than the unlawfulness of the act. This does not serve to take away the perspective of the nature of the crime of murder in itself, nor the manner in which it was done - these factors remain relevant to the general enquiry into extenuation. See for instance S v McBride 1988(4) SA 10(A).
In order to determine the presence or absence of extenuating circumstances, it does not help to use a 'check list' against which the court can work as no such comprehensive list can be compiled to start with. Relevant factors may range from the relative immaturity of the accused, intoxication or provocation. It would also include the cumulative effect of relevant factors including pre-meditation, the objective of the accused, the circumstances under which it was committed and so forth. It also requires
that the state of mind of a convicted accused be considered to determine if it was sufficiently appreciable to abate the moral blameworthiness of the accused in doing what he did, which requires a moral judgment - see S v Letsolo 1970(3) SA 476 per Holmes JA.
In S v Arnold 1965(2) SA 215(c) it was held by Steyn J (as he then was) that where the court found a constructive intention to kill and not a true positive desire to kill, it might be regarded in the circumstances of a particular case as an extenuating circumstance. It is, in my respectful view correct to say so, but it does not automatically follow as necessary consequence, as each case has to be individually determined.
In the present matter, it was found that prior to the murder, the other accused were aware that the first accused had a lethal weapon with him, which might be put to use during the robbery, despite their apparent agreement to somehow constrain the use of excessive violence. They recklessly continued to rob the deceased's vehicle, shooting him in the process. As held in the judgment, all the indications are that it was the first accused who fired the lethal shots.
One of the main questions to decide, for the present purpose, is whether it could be said that the first and second accused actually wanted the driver of the vehicle to die or not. Their primary motive was robbery and not murder. The killing of the deceased, however tragic and reprehensible, was incidental to the robbery and not the other way around. Criminally, both are liable and both were convicted of murder. When extenuation is under focus, a different yardstick is used.
On a thorough application of my mind, I inevitably came to the conclusion that in the case of the first two accused persons, both convicted of murder, it is by necessity that extenuating circumstances must be found to exist. In coming to this conclusion, all of the abovestated facts, issues and principles have been carefully weighed without over or underemphasizing any of it.
In the result, extenuating circumstances having been found to exist, the court shall now proceed to consider appropriate sentences for each accused person, such sentences to be within the discretion of the court and not the mandatory death penalty.
The matter is postponed for hearing of argument and/or evidence in respect of sentence, on a date to be arranged by the Registrar. The accused persons shall remain in custody.
JACOBUS P. ANNANDALE
ACTING CHIEF JUSTICE