IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CRIM.APPEAL CASE NO: 16/10
CITATION:  SZSC 10
In the matter between:
NTOKOZO ADAMS APPELLANT
THE KING RESPONDENT
CORAM: RAMODIBEDI, CJ
FOR THE APPELLANT MR. S. HLANZE
FOR THE RESPONDENT MR.S. FAKUDZE
Criminal appeal – conviction for murder without extenuating circumstances – tension between S. 296 (1) of Criminal Procedure and Evidence Act and S. 15 (2) of the Constitution – mandatory death sentence repealed – appellant sentenced to 30 years imprisonment – appeal against sentence – reduced to 20 years
DR. S. TWUM J.A.
 In January 2005, Mr. Mciniseli Mashinini employed the appellant as a househelp in his homestead in the Mnyokane Area in Hhohho region. The appellant had before then been working in one of the homesteads in the neighbourhood. He looked after cattle there. It would seem that the appellant was a friend of Mr. Mashinini’s son.
 The appellant’s duties in his new employment included the fixing of fences, gardening and household chores. Mr. Mashinini was married to Make Dudu Masuku. Mr. Mashinini himself worked as a heavy duty truck driver in South Africa. The appellant lived with Make Dudu Masuku and her children in the Mashinini homestead. The appellant helped to look after the couple’s youngest child.
 At all material times, Make Dudu Masuku was heavily pregnant. She was expecting the baby on or about the 24th July 2006. This was not to be. Tragedy befell her and the foetus. As matter turned out she was brutally murdered by the appellant.
 The appellant claimed that on 24th day July 2006 Make Dudu Masuku sent him on some errand. He said when he returned she yelled at him that he had kept too long. He added that Make Dudu Masuku had been displeased with him, complaining that he was lazy and was only interested in her food. The appellant said as a result of her attitude towards him his stay in the homestead was no longer comfortable.
 The appellant said on the fateful day when Make Dudu Masuku yelled at him he became angry. He said there was a knife on the floor. He gave the impression that he picked up the knife and stabbed her many times with it. That is not true in its essential details. All other witnesses during the appellant’s trial said it was a spear, a more lethal weapon, that was used to stab her. The post mortem report revealed that he inflicted about 13 stab wounds.
 Make Dudu Masuku was mortally wounded but before she died she managed to phone her husband in South Africa on his cell phone. She told him that the appellant was killing her.
 Upon receipt of this piece of bad news, Mr. Mashinini immediately phoned a friend of his who lived in another homestead in the area, told him what his wife had reported to him and asked him to rush to his homestead to find out what was happening to his wife.
 Make Dudu Masuku was taken to a hospital but she ultimately died from her wounds. The foetus she was carrying also died.
 On 28th July 2006, the appellant was arrested and charged with the murder of Make Dudu Masuku. On 31st July 2006, he made a statement before a Judicial Officer in which he set out his version of the events leading to the deceased’s death. However, during his trial he disavowed the confession that he killed the deceased in that statement. Rather, he claimed that he was threatened by the police who forced him to confess. He claimed that his said confession was not made freely and voluntarily. Additionally he set up an alibi to the effect that he was sent by his employer, PW4, to take a suitcase full of dagga to a Dlamini man whose name he did not know, in South Africa. He said he did not use the approved routes and that he did not return to the Kingdom until the 27th of July. Consequently he could not have killed the deceased. He was innocent and not guilty of the charge.
 After a very lengthy and hotly contested mini-trial in which defence counsel subjected the Judicial Officer to a gruelling and searching cross-examination, the confession statement was admitted into evidence as freely and voluntarily made by the appellant. After a full trial the appellant was convicted of the murder of Make Dudu Masuku on 3rd March 2010 by the High Court presided over by M.C.B. Maphalala J., without extenuating circumstances. He was sentenced to 30 years imprisonment without the option of a fine. The sentence was ordered to commence on the date of his conviction - 3rd March 2010.
 On 31st March, the appellant, through his pro deo counsel, filed Notice of Appeal against sentence only.
 On 27th September 2010, pro deo counsel filed “Appellants Heads of Argument.” Subsequently, counsel filed Amended Heads of Argument. Paragraph 2 of the Amended Heads of Argument stated:
“The appellant now appeals against the finding that there were no extenuating circumstances as well as against the sentence imposed by the Trial Court.”
 Even though I have considerable misgiving whether grounds of appeal may be amended without a proper Notice of Motion applying for leave so to do, I will waive the apparent irregularity and deal with the said amendment.
 Extenuating Circumstances – Before I consider whether the judge a quo misdirected himself in holding that there were no extenuating circumstances, I wish to set out the following guiding principles
A good starting point for a discussion of this ground
of appeal is section 295 (1) of the Criminal Procedure and Evidence Act (67/1938) as amended by P.47/1959. This sub-section provides:
“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.”
The Legislature has not defined what circumstances are extenuating circumstances and it is left to the Court to decide whether there are such circumstances in each particular case.
In the South African case of Rex v. Fundakubi and Others 1948 (3) S.A. 810 (AD) Schreiner JA writing the judgment of the Supreme Court quoted with approval the remarks of Lansdown JP, in general, on the subject of extenuating circumstances, and, in particular, on witchcraft, as such a circumstance:
“In our view an extenuating circumstance in this connection is a fact associated with the crime which serves in the minds of reasonable men to diminish, morally albeit not legally, the degree of the prisoner’s guilt. The mentality of the accused may furnish such a fact. A mind (which) though not diseased so as to provide evidence of insanity in the legal sense, may be subject to a delusion, or to some erroneous belief or some defect, in circumstances which would make a crime committed under its influence less reprehensible or diabolical than it would be in case of a mind of normal condition. Such delusion, erroneous belief or defect would appear to provide an extenuating circumstance.”
In determining the existence or non-existence of extenuating circumstances the court was to consider:
Whether there are any facts which might be relevant to extenuation, such as drug abuse, immaturity, intoxication, provocation, belief in muti or witchcraft.
Whether such facts, in their cumulative effect, probably had a bearing on the accused’s state of mind in doing what he did.
Whether such bearing was sufficiently appreciable to abate the moral blameworthiness of the accused in doing what he did.
In deciding (c) the trial Court exercises a moral judgment. If the answer is yes, it expresses its opinion that there are extenuating circumstances.
In practice, every factor that is prayed in aid of a submission, must of course, be based on some factual foundation. Hence, if it is submitted for example, that the appellant was provoked, there must be evidence of circumstances out of which the court may determine whether, in fact, there was provocation.
The general rule is that it is for the accused to lead evidence which would show extenuating circumstances in the crime of murder even though it is also true that the court is not limited to circumstances appearing from the evidence led by or on behalf of the defence. On the contrary, the court must also have regard to all the relevant evidence, including even the evidence led on behalf of the Prosecution. The time for gauging the existence of the extenuating circumstances, is of course, the time of the commission of the crime. This means that there must have been a real possibility that the accused at the time of committing the crime was in fact in a state of mind which lessened his moral blameworthiness.
In sum, the court probes the mental state of the accused to determine extenuating circumstances.
Finally, it is well settled that this Court will not interfere with a trial court’s finding of absence of extenuating circumstance unless such finding is vitiated by misdirection, irregularity or is one to which no reasonable court could have come.
 In casu, the trial Court’s determination that there were no extenuating circumstances is being challenged by the appellant in his amended Heads of Argument, primarily because it is claimed that court failed to give sufficient weight to the fact that the appellant was a young man aged 17 at the date of commission of the crime and that he was immature.
The Age of Appellant
 One fundamental problem I have with this case is that little or no factual foundation was laid for the age of the appellant which is a kingpin of the challenge. The record shows that the appellant did not give any evidence of his age, real or presumptive during the entire trial before the court a quo. At page 54 of the record, the appellant’s counsel merely suggested to PW1 (the Judicial Officer before whom the appellant made what was later admitted in evidence as a confession statement), without any subsequent evidence being tendered, that the appellant was 17 years of age. Of course, PW1 was in no position to accept or deny that suggestion. No portion of the form used in taking the statement required that the appellant’s age be recorded. (See pages 22-26 of the record). Again, at pages 10 of the missing portion of the record which was subsequently produced, defence counsel submitted to the learned trial judge that “the accused at the time of the commission of the offence was of a relatively young age of 17 years.” At page 11 of this inserted record, counsel for the appellant further told the court: “My Lord, from the beginning of this matter, from his arrest up until this day of his appearance in court, the accused has been treated as a major whereas of this date the accused is 21 years old and still a minor.” Finally, on the issue of the appellant’s supposed age, at page 79 of the record, defence counsel asked PW3 (the investigating officer): “How old did he tell you he was”? Answer: “My Lord, although I could not be certain, but he was less than 20 years, except if I would be given an opportunity to see or check our register where his age was written.” Question: “So you recorded the age of the accused in the Police register”? Answer: “Correct my Lord.” Curiously, this offer was not pressed by counsel for the defence and the opportunity to establish some basis for the appellant’s presumptive age was missed.
 Section 340 of the Criminal Procedure and Evidence Act provides:
“If in any criminal proceedings, the age of any person is a relevant fact of which no or insufficient evidence is available in such proceedings the court may estimate the age of such person by his appearance or from any information which may be available, and the age so estimated shall be deemed to be such person’s correct age.”
The trial Court was not called upon and it did not, suo motu, estimate the appellant’s age. Nonetheless at paragraph 72, page 352 of the record, the learned trial judge wrote: “In mitigation, it was argued on behalf of the accused that he was twenty one years of age when he committed the offence and that he was semi-illiterate having obtained standard two at school.” Obviously, the learned trial judge accepted that age and based the sentence imposed on the appellant partly on it. It is debatable whether that satisfies section 340 of the Criminal Procedure and Evidence Act.
 At paragraph 12.3 of the amended Heads of Argument, counsel for the appellant disputed the accuracy of the record by saying that “it was never contended by Defence Counsel that the appellant was twenty one (21) years old when the offence was committed as appears in the learned judge’s reasons at page 352 of the record.” Surely, this is not the proper way to challenge the accuracy of the official record of court proceedings. In the absence of a proper challenge to the correctness of the record, I am unable to discount what the learned trial judge wrote.
 I must hasten to add that in the Respondent’s Heads of Argument it was conceded at paragraph 2 (page 3) that, the appellant was 17years of age when he committed the offence and that he was 21 years old during his trial. ‘Therefore the court a quo did indeed misdirect itself regarding the appellant’s age during the time of the commission of this brutal murder.” In my view, that settles the age of the appellant.
 On the substantive issue of the relevance of the alleged minority of the appellant, counsel for the Respondent submitted in the Respondent’s Heads of Argument that youth in itself was not an extenuating circumstance but it might, in conjunction with other factors, amount to an extenuating circumstance. Indeed, the court a quo itself applied its mind to the matter and quoted with approval the dictum of Absalom Thwala J in the case of Nkosi Sifiso v Rex 1987 – 1995 (4) SLR 303 at 309 F thus:
“Youth alone cannot be an extenuating circumstance. It may be if, combined with other factors, it had an effect on the accused’s state of mind and emotions.”
 In order to provide the factual foundation for establishing the presence of extenuating circumstances, defence counsel submitted that:
The appellant was young and therefore susceptible of immaturity.
PW4 employed the appellant to grow dagga but he was never paid for the job.
 I will deal first with the claim of immaturity. For that submission, it was suggested that the appellant did a whole range of household chores in the homestead and therefore that meant that he was immature. It was further suggested that the appellant was made to look after the deceased’s youngest child apparently because he was immature. Surely, no parent will in practice, leave his child in the care of an immature person. The claim of immaturity and how it influenced the appellant’s conduct in the commission of the crime is taken a stage further in paragraph 9.4 of the Appellant’s Amended Heads when it was argued that he was semi-illiterate and had no understanding of certain matters. Finally, it was said that he was affected by his social background in that at his age he was not living with his parents but working in different homesteads; “which is something that could have influenced his conduct.”
 Counsel for the appellant also argued at paragraph 9.1 of the Heads that there was no motive for the murder except that “the appellant became angry after being treated unfairly by the deceased”. That may be true. Curiously paragraph 9.1 ended with counsel submitting that the appellant’s confession statement itself further demonstrated the immature manner in which the offence itself was committed.” This is highly debatable.
 There is no evidence that he suffered any delusions or erroneous belief or some defect of the mind as a result of his age. For example, it was not alleged that the appellant thought the deceased had bewitched him or put him in muti. There was no evidence that he was under the influence of alcohol or drugs at the time of the commission of the offence. There was no evidence of his mental age being below his alleged chronological age of 17. Indeed, he did not even evince youthful exuberance in his lifestyle.
See (i) S v. Letsolo ( 1970 (3) 476
(ii) S v. Ngoma (1984) (3) SA 666 (A) C
 The appellant claimed that PW4 made him grow dagga but he was never paid for the job. The court a quo pointed out that PW4 denied the claim when it was put to him in court and no evidence was led to contradict him. In any event, even if this were true, that was no reason why he would rather attack PW4’s pregnant wife. There is absolutely no evidence that his alleged employment to grow dagga without any payment had any effect on his state of mind or emotions that goaded him to murder the deceased. If he wanted to leave the homestead, there is no evidence that the deceased would have stopped him. Indeed, the alibi shows that he was earning money from that illegal trade and he was even willing to have a blind date in South Africa with a man he had never met except that he would drive a white van. Of course, the entire alibi was rejected as untrue.
 I have given this ground of appeal a very detailed and careful consideration. I have come to the conclusion that the learned trial judge erred when he held that there were no extenuating circumstances. Prima facie, a young man, as the appellant was, is presumed to be immature. He said as a result of the deceased’s unfair treatment he was no longer happy in the homestead. It is probable that therefore he harboured a deep emotional turmoil. I give him the benefit of the doubt that indeed his immaturity made him react the way he did when he was reprimanded by the deceased that he had kept too long in returning from an errand. It is clear that he was further anguished by the deceased’s claim that he was merely eating her food. It is my view that cumulatively these matters had a bearing on the accused’s state of mind in killing the deceased.
 For these reasons this ground of appeal succeeds. The verdict of the court a quo is set aside. The verdict of this Court is that the appellant is guilty of murder with extenuating circumstances.
Appeal against sentence
The other ground of appeal was against the sentence of 30 year’s imprisonment passed on the appellant. I will discuss the merits of this ground anon. In the meantime, it behoves me to comment briefly on the effect of S. 15 (2) of the Constitution on S. 296 (1) of the Criminal Procedure and Evidence Act of 1938.
 In paragraph 75 of the judgment the learned trial judge stated that the case was a proper one in which he should impose a capital punishment as he had convicted the appellant of murder without extenuating circumstances. The learned judge continued in paragraph 76 thus: “notwithstanding the mandatory nature of section 296, section 15 (2) of the Constitution provides that the death penalty shall not be mandatory.”
 In my judgment, section 15 (2) clearly amends section 296 (1) of the Criminal Procedure and Evidence Act. Section 2 (1) of the Constitution enacts that it is the supreme law of Swaziland and if any other law is inconsistent with it that other law shall, to the extent of the inconsistency be void. Since S. 296 (1) provides that the death sentence shall be passed …. (mandatory) and section 15 (2) provides that it shall not be mandatory, that part of S. 296 (1) which mandates death by hanging upon an offender convicted before or by the High Court of murder, is inconsistent with S.15 (2). The result now is that the death sentence is not mandatory. The Constitution has enacted a paradigm shift. Under the old sentencing regime S. 296 (1) of Criminal Procedure and Evidence Act, the High Court was bound to pass the death sentence unless it could find the existence of extenuating circumstances in respect of the murder. Trial judges had to make difficult moral judgments in borderline cases in order to avoid passing the death sentence. Now that is removed.
 Further, as S. 15 (2) of the Constitution is placed under the rubric of “Protection and Promotion of Fundamental Rights and Freedoms” it acquires added value under S. 14 (2) of the Constitution by the additional provision that it shall be respected and upheld by the Executive, the Legislature and the Judiciary……”.
 Of course, the death penalty has not been abolished. A trial judge in murder cases may still impose it but in my view, he must provide good and substantial reasons why that penalty is imposed. A fortiori, he may do so without even considering whether or not there were extenuating circumstances since the proviso to S. 295 (1) of the Criminal Procedure and Evidence Act says that any failure to comply with the requirements of the section shall not affect the validity of the verdict or any sentence imposed as a result.
 However, as long as S. 295 of the Criminal Procedure and Evidence Act is extant and not in conflict with S. 15 (2) of the Constitution, it may be advisable for a court trying murder offenders to comply with S. 295 (1) of Criminal Procedure and Evidence Act. The presence or absence of extenuating circumstance may fortify a decision to impose or not to impose the death penalty. In my judgment, there are now two separate and independent pathways to sentencing in convictions of murder – either through S. 15 (2) of the constitution, directly, or by the regime regulated by sections 295 and 296 of the Criminal Procedure and Evidence Act of 1938 (as amended). The relationship between the newer pathway under S. 15 (2) of the Constitution and the older regime under SS. 295 and 296 is that a finding by the court that there are no extenuating circumstances does not end the search for justice. The court will do well to remember that the death penalty is no longer mandatory and it may still consider imposing any sentence other than the death penalty.
 Severity of the sentence of 30 years imprisonment
As I have pointed out above, the trial judge thought that this was a case deserving of the imposition of the death penalty. That is the reason he gave for imposing the sentence of 30 years’ imprisonment.
 There is no doubt whatsoever that this was a particularly
heinous crime. The details of the murder chronicled at pages 16-21 of the record make chilling reading. The multiple stab wounds unleashed on a woman who was 9 ½ months pregnant were gruesome and horrendous in the extreme. There was a wound on the cheek, there were wounds on both sides of the chest, the middle portion of the abdomen, the right side of the abdomen, two stab wounds in the lungs, a stab wound in left of the heart, on the back, leg, the loin region and arms. They were directed at vital and vulnerable organs of that poor and helpless pregnant woman.
Unfortunately counsel for the appellant could not focus on what punishment was appropriate in the circumstances by submitting in paragraph 29 of the Appellant’s Heads of Argument that the learned judge failed to consider other sentencing options available to the court. Section 296 (2) lists “imprisonment” as the first option after the death penalty and as far as that goes I am persuaded that the learned trial judge chose the correct sentencing option.
 It was further submitted that the sentence of 30 years imprisonment was unreasonable and disturbingly inappropriate. I agree that 30 years imprisonment is unduly long and could expose this particular offender to hardened criminals. But it must be borne in mind that there is a need to consider the gravity of the crime and the interests of society and that in this case, the offence called for a very severe sentence. In my view that is one way in which the courts can hope to curb this type of murder to deter others who may be tempted to kill others needlessly. I will reduce the sentence of 30 years imposed on the appellant to 20 years from the date of his conviction and sentence to take account of human frailties.
 The sentence will be further reduced by the actual number of days the appellant spent in lawful pre-trial incarceration. The position is not clear from the record. The Director of Public Prosecutions and the Appellant’s counsel should together work out the number of days and inform the Registrar of this Court who will issue the appropriate warrant to the Authorities of the Correctional Services.
DELIVERED IN OPEN COURT ON 30TH NOVEMBER 2010
DR. SETH TWUM
JUSTICE OF APPEAL
I agree: M.M. RAMODIBEDI
I agree: I.G. FARLAM
JUSTICE OF APPEAL