IN THE SUPREME COURT OF SWAZILAND
Held at Mbabane Criminal Appeal Case No.12/2011
In the matter between:
MBUSO CHASHA MABUZA Appellant
And
THE KING Respondent
CORAM: FOXCROFT J.A.
MOORE J.A.
FARLAM J.A.
Appellant in person
Mr. D.M. Nxumalo for the Crown
REASONS FOR JUDGMENT
FOXCROFT J.A.:
[1] At the hearing of this matter, the appellant intimated that he wished to appeal against the sentence imposed, particularly in regard to the question of backdating. The matter had come before us through the direction to the Registrar by the learned Judge a quo, expressed as follows in paragraph [23] of his judgment of 16th December 2010.
“If the accused has not appealed this judgment, the Registrar of this Court is ordered to submit this judgment to the Supreme Court for its consideration. It is in the interests of justice that this error be corrected.”
[2] The appellant was granted leave to appeal, insofar as that was necessary, and was kindly assisted by Mr. Nxumalo in placing this appeal before the Court. Mr. Nxumalo had already properly submitted that the appeal ought to be allowed in order to correct the error which had been brought to this Court’s attention by Mamba, J. The appeal was allowed for the reasons which follow.
[3] What had occurred on the 15th November 2010 was that the appellant was sentenced to a term of five years imprisonment of which a period of six months was conditionally suspended for three years. Mamba, J. stated ex tempore that the suspended portion of the sentence was to compensate the accused for the period which he spent in custody before being released on bail. The warrant of 18 November 2010 reflects the sentence as follows:-
“Five (5) years imprisonment, six (6) months suspended for three (3) years, five (5) months served in custody included in the six (6) months of suspension, on condition accused is not found guilty of an offence of which violence to another person is an element.”
Upon reflection, the learned Judge a quo realized his error. A suspended portion of a sentence might be brought into operation upon breach of a condition of suspension and the “compensation” for backdating (a Constitutional imperative, section 16 (9)) would not be achieved.
[4] In our view the sentence imposed should have been backdated by five months since that was the period spent in custody and the period of six months imprisonment which was suspended should not have been ordered. Since the judge a quo clearly treated the suspension for the most part as “compensation” for non-backdating of the sentence, he would not have suspended the sentence if he had backdated it.
[5] To leave the sentence at five years imprisonment backdated by a period of five months would leave the appellant in a possibly worse position to that in which he was before the appeal. At best for him he might have served four years and six months of the five year sentence, that is if he were not to break the conditions of suspension. At most the sentence would be five years. If a five year sentence is now backdated by five months, his sentence is four years and seven months, one month longer than the original best sentence. To prevent this inequitable sentence possibility, I propose to deduct one month from the original sentence of five years imprisonment. This will also, in effect, reflect the intention of the learned Judge a quo.
[6] Accordingly, the appeal was allowed and it is ordered as follows:-
-
The sentence of the Court a quo is set aside and substituted with the following
-
The accused in Criminal Case No.193/09 is sentenced to four (4) years and eleven (11) months imprisonment backdated to the 18th June 2010 to take into account the period of five (5) months spent in custody before the completion of his trial on 18th November 2010.
_______________________
J.G. FOXCROFT
JUSTICE OF APPEAL
I agree
____________________
S.A.MOORE
JUSTICE OF APPEAL
I agree
______________________
I.G. FARLAM
JUSTICE OF APPEAL
DELIVERED IN OPEN COURT AT MBABANE ON 31ST MAY
2011.
