Nkambule v Rex (07/15) [2015] SZSC 24 (09 December 2015);

 

 

 

IN THE SUPREME COURT OF SWAZILAND

 

JUDGMENT

 

 

Criminal Appeal Case 7/2015

In the matter between:

 

 

ZWELITHINI MACUMBANE NKAMBULE              Appellant

 

VS

 

REX                                                                                                   Respondent

 

 

Neutral citation:     Zwelithini Macumbane Nkambule vs Rex (7/2015) [2015]       [SZSC 24]   (9^th December 2015)

 

Coram:                       S.B. MAPHALALA AJA,  N.J. HLOPHE AJA and M. J. MANZINI AJA

                                   

Heard:          26^th   November 2015                     

Delivered:     9^th  December 2015

               

Summary:     Criminal Law and Procedure – Appellant convicted of murder with extenuating circumstances and sentenced to 35 years – this court finds “there is a striking disparity between the sentence passed and that which the Court of Appeal would have passed – sentence reduce by 10 years imprisonment.

 

 

JUDGMENT

 

MAPHALALA AJA

 

 [1]      This appeal was  directed only to sentence. The Appellant was  indicted with the crime of  murder and convicted of the same on 26^th August, 2013. It  having been found by the High Court that there were no extenuating circumstances,  was sentenced to Thirty Five (35 years)  imprisonment.

 

[2]       In the Court a quo the Crown led evidence of 6 witnesses and closed its case. The Appellant gave evidence under oath and did not call any witness in his defence.

 

[3]       The brief facts of the matter are that the Appellant was a live-in lover to the deceased and they had two (2) children in that relationship.  The Appellant would quarrel with the deceased and from time to time  they would separate. This happened on a number of occasions. It was also in evidence that the families of the parties would intervene to bring peace to the couple.  On the day of the incident the two parties were living in separation and were not in talking terms. The incident took place at the home of  the deceased’s aunt where there were other relatives partaking in  Marula beer. The Appellant would leave the group on occasion to the mountain until on the last occasion  he came back with a  slasher and struck  the deceased several times.            The Appellant after having struck the deceased in full view of those that were there including  the deceased uttered words “that is what I do to prostitute” jumping over the corpse after  and opening his radio dancing  after leaking  blood on the slasher. The Appellant was caught in this frenzy of celebration which is difficult to understand. 

 

[4]       The High Court found the Appellant guilty of murder without extenuating circumstances. The Appellant was sentenced to 35 years imprisonment.   

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

[5]       The Appellant noted an appeal on the sentence only and his ground of appeal was that the sentence imposed by the court a quo was severe and harsh and that it induced  a sense of shock. That it was  more punitive than rehabilitative.

 

[6]       The Appellant further advanced an argument that the Court a quo erred by failing to find the existence of extenuating circumstances in the matter. However, in the arguments before us on the 26 November 2015, where Miss Ndlangamandla who appeared for the Appellant  abandoned this aspect of the matter and therefore no further  mention will be made in this regard.

 

[7]       The attorney for the Appellant argued strenuously for a reduction of the sentence citing the cases of Zwelithini Tsabedze vs Rex Supreme Court Case No. 32/2012 (unreported) at page 15 and that of Lomcwasho Thembi Hlophe Criminal Appeal No. 7/10.

 

[8]       After a very careful and anxious consideration of the case in hand and guided   by the  legal authorities I have cited above, I am persuaded that the sentence of 35 years is disturbingly impropriate and ought to be reduced. A sentence induces a sense of shock where  “there is a striking disparity between the sentence passed and that which the Court of Appeal would have passed”.

 

[9]       The sentencing range suggested in previous matters before this court such as the case of Samkeliso Madati Tsela vs Rex Criminal Appeal Case No. 20/2010 [2012] SZSC 13  was 15 – 25 years for crimes similar to the case in casu.

 

[10]     In the result, for the aforegoing reasons the Appellant’s sentence is reduced by a period of 10 years to be 25 years imprisonment backdated to the date of arrest of the Appellant.

 

 

                                                                                    _______________________                                                                                S.B. MAPHALALA

                                                                                    ACTING JUSTICE OF APPEAL

 

I AGREE                                                                   ________________________

                                                                                    N.J. HLOPHE

                                                                                    ACTING JUSTICE OF APPEAL

 

 

 

I ALSO AGREE                                                      _________________________

                                                                                    M. J. MANZINI AJA

                                                                                    ACTING JUSTICE OF APPEAL

 

For the Appellant:                Miss N. Ndlangamandla

 

For the Crown:                      Miss A. Matsebula