IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CRI. APPEAL NO. 13/2010
In the matter between:
BADELISILE MKHULISI APPELLANT
CORAM : RAMODIBEDI CJ
: MOORE JA
: FARLAM JA
FOR THE APPELLANT : IN PERSON
FOR THE CROWN : MS. L. HLOPHE
HEARD : 2 NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
Offences of Culpable Homicide are of varying degrees of seriousness – Sentences must therefore reflect the degree of seriousness in each particular case – Culpable Homicide arising from attempts to procure an abortion to be treated for sentencing purposes as serious cases of abortion aggravated by death – Sentence of 9 years imprisonment set aside – Sentence of 6 years imprisonment substituted.
 The appellant was indicted upon the allegation that, on or about the 6th March 2006, she unlawfully killed Thuli Siyaya. The police carried out investigations. The report on post-mortem examination which was conducted upon the body of the deceased by Police Pathologist Dr. Komma Reddy, found post-mortem lividity present in the dependent parts of the body. There was no evidence of any external ante-mortem injuries to the body; but “blood stained amniotic fluid was present at vagina”. Under the heading ABDOMEN, Dr. Reddy recorded: “uterus is containing a dead female foetus of about 7½ month’s duration and about 500 ml of blood stained amniotic fluid.” The pathologist formed the opinion that death occurred prior to his examination and that the cause of death was due to intra-uterine bleeding.
 Having charged the appellant with the offence of culpable homicide, the onus lay upon the prosecution to prove that the appellant did unlawfully and negligently kill Thuli Siyaya. In discharging that burden of proof beyond a reasonable doubt, the crown relied not only upon the evidence of its own witnesses, but also upon the out of court statements and sworn testimony of the appellant herself.
 The Pathologist Dr. Reddy submitted his report in the course of his oral testimony in court. It was duly admitted as Exhibit A. The cursory cross-examination of this witness by counsel for the appellant did not impair the efficacy and credibility of this witness’ expert evidence in any way. The judge a quo accepted it fully as he was entitled to do.
 Almon Dludlu is a retired correctional services veteran of 35 years’ service. He knew the appellant sufficiently well for about two to three years to call at her homestead at about 8:00 a.m. on the 6th March 2006, to ask for some water with which to take his medication. While he was there, he saw the appellant, her daughter and the deceased who looked well and was wearing a nice dress. He soon left for the showground where he had been assigned to work guarding seats as there was to be the King’s birthday celebration.
 After some 30 minutes at work the daughter of the appellant asked him to go and assist them. When he got to the appellant’s homestead, the appellant asked him to assist her to carry the deceased out of the house. Mr. Dludlu refused because earlier the deceased was seen by him to be well, and now she had changed. The appellant and her daughter took the deceased out of the house. Mr. Dludlu recalled that he had seen the deceased wearing a nice dress only 30 minutes earlier, but she was now clad only in a petticoat and looked dead. He accordingly notified the police.
 Inspector Vusi Dlamini received the report. He rushed to the house of the appellant in company of the police officers. There he saw the lifeless body of the deceased lying upwards naked save for a petticoat. The appellant was present when he got to her house. He first took her to hospital for examination and thence to the police station to record a statement. The deceased was in due course confirmed to be dead by doctors.
 The inspector cautioned the appellant according to the Judges Rules. She gave him a “spade” and a white cup which he took to the police station as exhibits. He eventually charged her. Before doing so however, at the request of the appellant, he facilitated a meeting between the appellant and Nomsa and Khanyisile Siyaya who were sisters of the deceased. He left these three ladies alone in a room. Intermittent checks disclosed that they were talking to one another.
 The “spade” and white cup were forwarded to Leonard Themba Dlamini who is a Forensic Chemist in the Royal Swaziland Police attached to the forensic laboratory at Police Headquarters, Mbabane. As permissible under section 220 (4) of the Criminal Procedure and Evidence Act 67/1938, the Forensic Chemist performed an analytical examination on the exhibits which had been taken from the home of the appellant by Inspector Vusi Dlamini. These exhibits contained Traces of Ethyl Stearate which is an Irritant and of Dioctyl Phthalate which is a toxic/poisonous substance and also a carcinogen. He then swore an affidavit as required by section 220 (4) referred to above, which was admitted in evidence. There was no cross-examination of this witness.
 Khanyisile Siyaya is the sister of the deceased. She is one of the two sisters of the deceased to whom the appellant spoke at the police station. She related how the appellant apologized for killing their sister but explained that the deceased had asked her to pierce her meaning to perform an abortion upon her. At first the appellant demurred because, as she said, people were dying. On the following day, a Monday, the deceased again went to the home of the appellant who put a spade enema on the vagina of the deceased who lost strength and died.
 The appellant gave evidence. She admitted giving the deceased the imbita. She claimed to be a traditional doctor who mixed herbs. She also swore that she had a licence to treat people. However, she did not say what authority issued the licence nor did she produce it in evidence. She testified that she gave her sponge to Nomsa who administered it to the anus of the deceased. She also administered umhlabelo to the deceased and imbita to spade and drink.
 The then counsel for the appellant had filed grounds of appeal against both conviction and sentence. But when the appellant appeared before the court in person, she indicated that she was abandoning her appeal against her conviction and was pursuing her appeal against sentence only. The grounds relied upon were:
The court a quo erred in law and in fact in imposing a custodial sentence on the appellant, considering the appellant’s fragile health and age.
The court a quo erred in law and in fact in imposing a sentence of 9 years imprisonment on the appellant, such sentence being too harsh in the circumstances.
 In dealing with the matter of sentence, M.C.B. Maphalala J considered in mitigation the submissions of the appellant that she was a sickly 64 years old when she was sentenced, who looked after her six grandchildren. He also noted that she had a previous conviction for an illegal abortion: but the record does not indicate that he took into account the fact that the appellant was convicted some 3½ years previously and sentenced to a fine of E300.00 or three month’s imprisonment. The court had awarded a rather lenient penalty which suggests that it did not view the case as falling within the more serious examples of that offence.
 The trial judge rightly took the view that the appellant should not have acceded to the importunities of the deceased to help her procure an abortion because people were dying. She should not have administered traditional medicine to the deceased because it was poisonous. He considered the matter to be a serious case of culpable homicide because the deceased was pregnant at the time of her death with a 7½ month of the foetus which also died. The appellant, said the judge, was known to conduct illegal abortions, and had a previous conviction for that offence. Abortion, he wrote, was a criminal offence.
 The learned judge sentenced the appellant to 9 years imprisonment, “two of which are suspended for three years on condition the accused is not convicted of any offence in which human life is lost during the period of suspension”. He ordered that “the sentence will commence from 17th March 2010” without giving any reason for not ordering that it commence on the 6th March 2010 when the appellant was arrested.
 The court a quo cited the case of Musa Kenneth Nzima v Rex Criminal Appeal No. 21/07 as authority for the proposition that “a sentence of nine years imprisonment is warranted in Culpable Homicide convictions at the most serious end of the scale of such crimes”. In reaching this conclusion, the court did not take into account sufficiently or at all, the fact that offences of culpable homicide are not all of the same nature, and fall into differing categories of seriousness attracting differing levels of penal awards.
 The opening sentences of Nzima immediately illustrated its stark difference from the case at bar. They read:
“A drunken fracas ended in the stabbing by the appellant of a 19 year-old man, Njabulo Masuku, in the abdomen. He died later in hospital from the wound.
The appellant was, as a result charged in the High Court with murder. He pleaded guilty to culpable homicide, which plea was accepted by the Crown, and was sentenced by Mamba J. to nine years imprisonment.”
 The deceased in that case was not armed when the appellant stabbed him and was not attacking the appellant at the time. He had, said the learned trial judge, shown little remorse as he claimed that he was not to blame for the death of the deceased. A knife had been used and there was “a prevalent or rampant and easy use of knives to deal with minor disputes and disagreements”. The judge in Nzima was in error when he treated surgical wounds as if they had been inflicted by the appellant. As Tebbutt JA saw it:
“using his erroneous statement in this regard as an aggravating factor in the consideration of sentence was a misdirection by the learned judge.”
 Tebbutt J.A. also pointed out on page 5 of his judgment:
“The learned judge is also not correct when he says the appellant showed very little remorse. He never shied away from the fact that it was he who had killed the deceased and I have earlier quoted his expression of sorrow at what had occurred. This, too, was a misdirection.”
 Tebbutt J.A. was in sympathy with Mamba J’s disquiet as to the prevalent and “easy” use of knives in drunken disputes and brawls. The learned justice of appeal, bringing to bear his vast appellate experience in criminal jurisdictions of Southern Africa subscribed “to the view that the only way in which the courts can attempt to curb this tendency is by imposing sentences of sufficient severity to hopefully deter this practice”.
 Cognizant of the duty of a sentencer to bear in mind the frailties of human nature, and that an appropriate sentence should be blended with a measure of mercy according to the circumstances - See S v Rabie 1975 (4) S.A. 855 (A) at 862 G per Holmes J.A. – and that a judicial officer should not approach punishment in a spirit of anger, Tebbutt J.A. wrote at page 7 of his computer judgment:
“I also cite, with approval, what was said in a judgment in Botswana where Moore J.A. stated the following in THAPELO MOTOUTOU MOSILWA Criminal Appeal No. 0124/05 regarding the question of sentence:-
“It is also in the public interest, particularly in the case of serious or prevalent offences,that the sentence’s message should be crystal clear so that the full effect of deterrent sentences may be realized, and that the public may be satisfied that the court has taken adequate measures within the law to protect them from serious offenders. By the same token, a sentence should not be of such severity as to be out of all proportion to the offence, or to be manifestly excessive or to break the offender, or to produce in the minds of the public the feeling that he has been unfairly and harshly treated.”
In this session of this Court a number of cases of culpable homicide have come before us where, from the sentences imposed, a benchmark of 9 years imprisonment seems to have been applied by trial courts. It is the sentence imposed in each case. In one case a sentence of 10 years imprisonment was imposed, one of which was conditionally suspended.””
 There was clearly a lingering disquiet in the mind of Tebbutt J.A. because, as he put it at page 8:
“There are obviously varying degrees of culpability in culpable homicide offences. This 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). 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.” [Emphasis added]
 Tebbutt J.A. was equally troubled by another principle which lies at the heart of the instant appeal when he wrote at page 9:
“Apart from the misdirections to which I earlier referred, it seems to me that insufficient weight was given to the individual facts of the case and to the personal circumstances of the appellant.”
 At page 9 of his compelling and authoritative judgment Tebbutt J.A. succinctly condensed the relevant factors involved in the case before the court and pithily applied the appropriate penalty in this way:
“The appellant in a drunken moment of negligent behaviour, for that was what he was convicted of, stabbed a man who was his relative and neighbour once in the abdomen, leading to the latter’s later death in hospital. It was his first offence in what was obviously an otherwise crime-free life of 30 years. He was, he said, very sorry for what had occurred. To send this man to prison for nine years was, in my view, excessively harsh and lacked the quality of mercy which, as set out above, should temper a sentence. As was said in S v Harrison 1970 (3) SA 684 (A) at 686 A, quoted in S v Rabie Supra at 861 H-862 A:
“Justice must be done, but mercy, not a sledgehammer, is its con-comitant”.
Having regard to all the factors in this case I am of the view that a sentence of 6 years imprisonment would appropriately meet all the criteria I have referred to above.””
 Encapsulated in similar fashion, the essence of the instant case is that the appellant who was then about 57 years of age saw herself as a traditional doctor who mixed herbs. She believed she had a license to heal people. The deceased approached the appellant to help her procure her own abortion. There is no evidence that either party knew that the foetus was some 7½ months old. The appellant refused at first but was later persuaded to help the deceased out of her problem. The appellant attempted a procedure involving the use of an abortifacient concoction which turned out to be poisonous. The deceased appears to have died rather suddenly from bleeding in the uterus. The appellant was, on the evidence, an unqualified person performing an abortion on an isolated occasion without profit. She had been sentenced on 2006-09-18 to 3 months’ imprisonment or E300.00 fine for the offence of Abortion General. This penalty suggests that the offence may not have been a serious one.
 In the Privy Council case of Reyes v R (Belize)  UKPC 11 (11 March 2002) their Lordships were considering the appropriate penalty for murder. Theirs was a ground-breaking judgment which has already saved, and will in the future, spare many persons from what used to be regarded as the mandatory penalty of death for murder.
 By a critical analysis of the Constitutions and the relevant statutes, their Lordships concluded that it was now the duty of the judge in cases of murder to determine whether in the particular circumstances of the case before him, death was the appropriate penalty. See also Fox v R (Saint Christopher and Nevis)  UKPC 13 (11 March 2002); Hughes, R v (Saint Lucia)  UKPC 12 (11 March 2002).
 Although Lord Bingham of Cornhill was writing for the court in the context of a conviction for murder, his analysis is equally apt in determining the appropriate penalty for culpable homicide which, like murder and cancer, cover a wide variety of factual characteristics involving levels of gravity ranging from the most egregious to those bordering upon inadvertence or an ache. In equal measure, culpable homicide includes cases of the grossest negligence bordering upon recklessness as well as those where the negligence is so slight as to be just on the wrong side of an accident or mishap. The Privy Council’s analysis is applicable mutatis mutandis to the offence of culpable homicide, and I apply it with the necessary adaptations, to the case of culpable homicide before this court.
 The relevant excerpt of the advice of the Privy Council is to be found in Reyes v R at paragraphs 10 – 16 under the caption “The Penalty for Murder.” The exposition of these principles is so lucid and timeously relevant to the offence of culpable homicide in this Kingdom of Swaziland that I set it out in its entirety:
“The Penalty for murder
10. Under the common law of England there was one sentence only which could be judicially pronounced upon a defendant convicted of murder and that was sentence of death. This simple and undiscriminating rule was introduced into many states now independent but once colonies of the crown.
11. It has however been recognized for very many years that the crime of murder embraces a range of offences of widely varying degrees of criminal culpability. It covers at one extreme the sadistic murder of a child for purposes of sexual gratification, a terrorist atrocity causing multiple deaths or a contract killing, at the other the mercy-killing of a loved one suffering unbearable pain in a terminal illness or a killing which results from an excessive response to a perceived threat. All killings which satisfy the definition of murder are by no means equally heinous. The Royal Commission on Capital Punishment 1949 – 1953 examined a sample of 50 cases and observed in its report (1953) (Cmd. 8932) at p. 6, para. 21 (omitting the numbers of the cases referred to):
“Yet there is perhaps no single class of offences that varies so widely both in character and in culpability as the class comprising those which may fall within the comprehensive common law definition of murder. To illustrate their wide range we have set out briefly …the facts of 50 cases of murder that occurred in England and Wales and in Scotland during the 20 years 1931 to 1951. From this list we may see the multifarious variety of the crimes for which death is the uniform sentence. Convicted persons may be men, or they may be women, youths, girls, or hardly older than children. They may be normal or they may be feeble-minded, neurotic, epileptic borderline cases, or insane, and in each case the mentally abnormal may be differently affected by their abnormality. The crime may be human and understandable, calling more for pity than for censure, or brutal and callous to an almost unbelievable degree. It may have occurred so much in the heat of passion as to rule out the possibility of premeditation, or it may have been well prepared and carried out in cold blood. The crime may be committed in order to carry out another crime or in the course of committing it or to secure escape after its commission. Murderous intent may be unmistakable, or it may be absent, and death itself may depend on an accident. The motives, springing from weakness as often as from wickedness, show some of the basest and some of the better emotions of mankind, cupidity, revenge, lust jealousy, anger, fear, pity, despair, duty self-righteousness, political fanaticism, or there may be no intelligible motive at all.
A House of Lords Select Committee on Murder and Life Imprisonment in 1989 observed (HL Paper 78-1, 1989 in para. 27:
“The Committee consider that murders differ so greatly from each other that it is wrong that they should attract the same punishment.”
 An independent enquiry into the mandatory life sentence for murder sponsored by the Prison Reform Trust and chaired by Lord Lane in 1993 reported, at p. 21:
“There is probably no offence in the criminal calendar that varies so widely both in character and in degree of moral guilt as that which falls within the legal definition of murder.”
It made reference at page 22 to research showing that in England and Wales “murder is overwhelmingly a domestic crime in which men kill their wives, mistresses and children, and women kill their children.”
 Judicial statements to the same effect are not hard to find: see, for example, in Ong Ah Chuan v Public Prosecutor  AC 648, 674, per Lord Diplock; R v Howe  AC 417 at 433 F, per Lord Hailsham of St Marylebone LC; Rajendra Prasad v State of Uttar Pradesh  3 SCR 78 at 107, per Krishna lyer J. The differing culpability of different murderers is strikingly illustrated by statistics published by the Royal Commission on Capital Punishment on pp. 316-317 of their report referred to above: these show that of murderers sentenced to death and reprieved in England and Wales between 1900 and 1949 twice as many served terms of under five years (in some cases terms of less than a year) as served terms of over 15 years.
 This problem of differential culpability has been addressed in different ways in different countries. In some a judicial discretion to impose the death penalty has been conferred, reserving its imposition for the heinous cases. Such was the solution adopted in South Africa before its 1993 constitution, when it was held that the death penalty should only be imposed in the most exceptional cases where there was no reasonable prospect of reformation and the object of punishment would not be properly achieved by any other sentence: State v Nkwanyana 1990 (4) SA 735 at 743E-745G. Such is also the solution adopted in India where the rule has been expressed by Sarkaria J in the Supreme Court in Bachan Singh v State of Punjab  2 SCC 475 at 515 in these terms:
The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.
While considering the question of sentence to be imposed for the offence of murder under section 302. Penal Code, the Court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the Court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose the death sentence.”
 In other countries the mandatory death sentence for murder has been retained but has only been carried out in cases which are considered to merit the extreme penalty. Such was the case in the United Kingdom when the death penalty was mandatory of those convicted of murder and sentenced to death in England and Wales between 1900 and 1949, 91% of women and 39% of men were reprieved: see report of the Royal Commission, at p. 326. No convicted murderer was executed in Scotland between 1929 and 1944: ibid, at p. 302. Such has also been the practice in many other countries. In Yassin v Attorney General of Guyana (unreported), 30 August 1996, Fitzpatrick JA, sitting in the Court of Appeal of Guyana, said at pp. 24-25 of his judgment.
“Add to this the notorious fact that in Guyana for some years as a matter of executive policy the death penalty is only implemented in some, not all, cases of persons convicted of murder, and the ‘sifting out’ of those cases in which the [offenders] are found not to warrant the ultimate penalty is done by means of the exercise of the prerogative of mercy rather than by amendment of the law relating to capital punishment.”
The Board was told that there has been no execution in Belize since 1985.
 In other countries a distinction has been drawn between murders, described as capital (or first degree), which carry the mandatory death penalty and others (non-capital or second degree) which do not. Such was the solution applied in the United Kingdom between 1957 and 1965. It is a solution favoured by a number of American states. And it is the solution adopted in 1994 by Belize, as noted above. Even where a murder is classified as capital or first degree, the prerogative of mercy may be exercised to mitigate the extreme penalty.”
 Professor D.A. Thomas was at the time when he wrote the book “Principles of Sentencing,” which was first published in 1970 by Heinemann Educational Books Ltd in Great Britain, a fellow of Trinity Hall, and Assistant Director Research Institute of Criminology, Cambridge, England. He was later to become the Sentencing Editor of Archbold Criminal Pleading Evidence & Practice 2005 and one of the Commonwealth’s leading experts on all aspects of sentencing in criminal trials in the courts of law.
 At page 84 of his scholarly work Professor Thomas considered the question of manslaughter – culpable homicide in our jurisdiction – arising from attempts to procure miscarriage. Describing the approach adopted by the courts of England and Wales, the learned author wrote:
“Cases of manslaughter arising from abortions tend to be sentenced on much the same basis as cases of procuring miscarriage where death has not resulted. In all instances of manslaughter in this category, the emphasis is on deterrence, and the sole question the length of sentence. The range of sentences appears to correspond with that in cases of simple abortion, allowing for some aggravation in the case of manslaughter. As is illustrated below abortions are effectively divided into three broad categories for the purpose of sentencing – the highly organized professional (not normally medically qualified) making very substantial profits; the woman performing abortions fairly frequently for small sums of money (again not qualified) and the unqualified person performing an abortion on an isolated occasion without profit. The same distinctions are made in cases of manslaughter”.
 Professor Thomas also cited at pages 30 and 84 op. cit. the, apparently unreported, case of Miller 28-11-66 of 39/66 where a woman of sixty-two who pleaded guilty to the manslaughter of a girl of twenty was sentenced to four years imprisonment. Her sentence was affirmed upon the footing that she “must have known of the criminal nature of the matter and the danger attendant upon such matters by reason of her previous conviction.” This case is almost upon all fours with the instant appeal.
 In mitigation, the court took account of the appellant’s age, and that she had had a difficult life looking after her daughter in chronic ill-health. The offence was aggravated, however, by evidence that the appellant had procured miscarriage on other occasions.
 In Mdluli v R Appeal No. 9/2001;  SZSC 28, available on line at the Swazilii Swazi Legal Information Institutewebsitewww.swazilii.org/sz/judgment/supreme.court/2001/28 Browde JA with whom Tebbutt and Beck JJA concurred, thought that a sentence of five years imprisonment would have been a condign sentence for a nurse – acquitted because of insufficient evidence – if she had performed an abortion upon a young woman at the instigation of that woman’s mother.
 There was however, a sufficiency of evidence against the woman’s mother that she prevailed upon her daughter to have the abortion and had been a party to the performance of the abortion and had buried the expelled foetus in her homestead. The court reduced the sentence of five years imprisonment which had been imposed by the trial judge. This court concluded that the appropriate sentence was one of three years imprisonment.
 Reference to the cases involving offences of procuring an abortion have been helpful on the premise that culpable homicide arising out of unsuccessful attempts at procuring abortions ought to receive penalties approaching the lower end of the scale of penalties for culpable homicide. As Professor Thomas has illustrated, culpable homicides falling within this category have been treated in the United Kingdom as punishable at the upper end of the scale for offences of abortion. Upon the authority of Nzima – see paragraphs  et seq – that is the way in which culpable homicides stemming from attempted abortions should be treated in this Kingdom.
 The cases which have been available for study all indicate that a penalty of nine years imprisonment in the circumstances of this case is wholly inappropriate and warrants the intervention of this court. In the peculiar circumstances of the appellant who, at the age of sixty-four, must be approaching the end of her natural life, having regard to the life expectancy in Swaziland, a sentence of six years imprisonment, two of which are to be suspended, is in the judgment of this court, the appropriate penalty for this particular case of culpable homicide.
 It is the order of this court that:
The appeal against sentence is upheld and the order of the court a quo on sentence is set aside.
The appellant is sentenced to six years imprisonment two of which are suspended for a period of two years upon condition that the appellant be not convicted of any offence involving an abortion or an attempt to procure a miscarriage.
JUSTICE OF APPEAL
JUSTICE OF APPEAL
Delivered this the day of November 2011.