IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CRIMINAL APPEAL 41/2010
In the matter between:
DENZEL DUNGUZELA GAMEDZE
v
REX
CORAM : A.M. EBRAHIM J.A.
: S. MOORE J.A.
: I.G. FARLAM J.A.
FOR THE CROWN : D.M. NXUMALO
FOR THE APPELLANT : B.J. SIMELANE
Summary
Culpable Homicide – Appropriate sentence – procedure – imprisonment – suspension of – condition of – vagueness of condition – effect of word violence used – violence covers too wide a scope.
JUDGMENT
Ebrahim J.A
The appellant was convicted of Culpable Homicide. He pleaded guilty and was sentenced to ten years imprisonment of which three years was suspended for a period of three years on condition the accused is not found guilty of an offence of which violence is an element during the period of suspension.
The appellant when pleading guilty admitted the following facts:
“On the 25th of May 2007 the accused went to Logoba where the deceased was staying with her sister, PW3.
Upon arrival the accused found the deceased alone. The accused enquired from the deceased the whereabouts of her sister, who was the accused’s girlfriend. The deceased responded by telling the accused that she, the deceased, did not know PW3. When the accused asked what PW3 said before she left, the deceased responded by telling the accused as to how many times he should be told.
The accused waited about one and a half hours in the house and thereafter asked the deceased to tell him the truth concerning the whereabouts of PW3 as he, the accused, had seen them exchanging bags in town as the deceased told the accused they were just exchanging bags only.
The accused asked the deceased why she did not mention that they had exchanged bags in town at first. The deceased told the accused that she was called by her sister PW3 to bring her bag and he, accused, should have asked her sister. The accused then told the deceased that if she had told him all that at first they would not have gone that far with the conversation. The deceased told the accused that he was failing to treat her sister well as he was ill-treating her. The accused told the deceased that ever since she came to stay in the house there was a lot of trouble between the accused and PW3, that is his girlfriend, as the accused would not find PW3 every time he had visited PW3.
The deceased responded in a very disrespectful manner by telling the accused to sort his problems with PW3. She said, “Ungangizeki wena, sewehlulwe ngusisi utocaphatana nami” (which means stop f-----g me around, you have failed my sister and now you are turning on me. (or words to that effect).) The deceased told the accused that if she knew she would not have left her place of employment to live with PW3 and the accused and had she been able to pay rent in her own house.
The accused became angry and told the deceased to leave immediately but the deceased refused and told him to do whatever he wanted to do to her, that is the deceased. A fight started and the deceased grabbed the accused’s private parts. The accused then took a rope from the shelf and tied the deceased and tightened it until she became weak.
The accused realized that the deceased was not breathing anymore, he then tried to hang her on the roof but he failed as the deceased was heavy. The accused was trying to make it look like a suicide.
The accused stayed in the house until morning and thereafter went to Mafutseni to collect his tools and went to work. The accused surrendered himself to the Manzini Police in the company of PW6 Musa Vilakati on the 1st June 2007, and was released after three weeks.
The accused concedes that there is no novus actus interviens between his unlawful and the subsequent death of the deceased. The deceased died as a result of his unlawful actions. The accused acted negligently when he killed the deceased.
The following will be handed over as exhibits:- the rope, the post mortem report, the statement made to the Judicial Officer, the statement made, agreed and signed by both Counsel and the accused or his representative on the 12th October 2010 at the High Court of Swaziland being a statement read and understood by the accused and his representative.”
The learned judge a quo in convicting the appellant, also had regard to the “salient features of both the post mortem report and, the confession” made by the appellant to the judicial authorities. In particular, the learned judge a quo took cognizance of the assertion by the appellant in his statement that a fight had taken place between the appellant and the deceased immediately prior to her meeting her death. Based on this conclusion the learned judge found in favour of the appellant that there had been an element of provocation in the conflict which took place between the appellant and the deceased. This finding clearly benefitted the appellant when the learned judge came to sentence him.
Dr. Reddy in his post mortem averred:
“1. That she died due to strangulation.
2. There was a contusion of 1 x 1 cms in the middle portion of the nose.
3. There were contusions of 1 x 1¼ cms and ½ x ½ cm on the left cheek.
4. There were ligature marks of ½ cm width, present around the neck, above the thyroid cartilage, with point of suspension on the right side of the neck, below the right eye.
5. Contusion of 3.5 x 1.5 cms, present in the middle portion of the right region.”
In my view it is incorrect to say that the learned judge failed to take into account mitigating features which favour the appellant. He had regard to the fact that the appellant pleaded guilty, that he exhibited remorse and that he voluntarily handed himself to the police and that there had been an element of provocation towards the appellant. He also referred to the personal circumstances of the appellant, but nevertheless correctly held that the appellant had committed a serious and gruesome crime on a young woman of 22 years of age who was five months pregnant and who had met her death by way of strangulation.
Against the background of these facts I am satisfied that the sentence imposed on the appellant is not manifestly excessive and does not induce a sense of shock neither has the learned judge misdirected himself in any way.
A sentence of ten years imprisonment for culpable homicide is not uncommon in serious cases of culpable homicide see MUSA KENNETH NZIMA V REX, 21 of 2007; VUSI MADZALULE MASILELA V REX, 14 OF 2008; LUCKY SICELO NDLANGAMANDLA AND TWO OTHERS V REX, 8 OF 2008; NKOSINATH BRIGHT THOMO V REX, 12 OF 2010. In each of these cases the accused had caused the death of the deceased persons by inflicting stab wounds to them and had received effective sentences of ten years imprisonment save for the case of LUCKY SICELO NDLANGAMANDLA AND TWO OTHERS (Supra) where a sentence of nine years imprisonment had been imposed. In the present case the deceased met her death by way of strangulation which in my view is perhaps an even more gruesome way to meet one’s death.
See also BHEKI MASUKU AND GCINA MASUKU V REX 22 OF 2010 where FARLAM JA stated:
“[18] In recent years this court has on a number of occasions considered the appropriateness of sentences imposed in culpable homicide cases following upon assaults. We are grateful to Ms. Zwane, who appeared for the Crown in this case, for furnishing us with copies of a number of these. The most recent was Lomcwasho Thembi Hlophe v the King, Criminal Appeal 7/2010, a case decided on 27th May this year.
[19] In Para 19 of the judgment, which was delivered by Dr. S. Twum J.A., the following was said:
‘There are obviously varying degrees of culpable homicide offences. As noted above, in the case of Bongani Dumisani Amos Dlamini v Rex [Criminal Appeal No. 12/2005] this Court endorsed a sentence of 10 years imprisonment in what the trial Judge described as an extraordinarily serious case of culpable homicide “at the most serious end of the scale of such a crime.” I respectfully agree entirely with Tebbutt J.A. when he opined that a sentence of 10 years seems to be warranted in culpable homicide convictions only at the most serious end of the scale of such crimes.’
I regard the current case as an extremely serious case of culpable homicide for which the appellant has had an effective sentence of seven years imprisonment imposed on him.
In the case of MUSA BHONDI NKAMBULE V REX Criminal Appeal 6 of 2009 RAMODIBEDI ACJ (as he then was) stated:
“In several of its decisions, this Court has upheld the principle that the imposition of sentence is a matter which primarily lies within the discretion of the trial Court. An appellate Court will not generally interfere with such a sentence unless there is a material misdirection resulting in a miscarriage of justice.
Put differently an appellate Court will not interfere unless the sentence is so grossly harsh or excessive as to warrant interference in the interests of justice. See for example, such cases as Vusi Muzi Lukhele and Another v the King Criminal Appeal No. 23 of 2004; Benjamin B. Mhlanga v Rex Criminal Appeal No. 12 of 2007; Sifiso Zwane v Rex Criminal Appeal No. 5 of 2008; Vusi Madzalule Masilela v Rex Criminal Appeal No. 14 of 2008; Bheki Goodwill Gina v Rex Criminal Appeal No. 2 of 2009.”
I respectfully associate myself with these remarks. The learned judge has not misdirected himself and the sentence he imposed cannot be said to be manifestly excessive. He has not exercised his discretion wrongly and there is no valid basis for interfering with the sentence imposed by the learned judge.
The conditions of suspension however, reflected in the sentence imposed have been too widely stated.
In the case of S. V TAYLOR S.A. 1971 (3) 86 at page 91 paragraph F to G BEADLE C.J. stated:
“Assaults vary tremendously in gravity. An assault may be a very venial offence warranting nothing more than perhaps a very small fine. On the other hand, an assault may be so serious as to warrant in itself a sentence of imprisonment. It is always desirable, therefore, when sentences are suspended on conditions such as those imposed in the present case, that some attempt should be made to confine the types of assaults which would be regarded as breaching the condition of suspension to assaults of a fairly serious kind. For example, a useful formula is to add something such as this: “not convicted of any offence involving an assault for which the accused is sentenced to imprisonment without the option of a fine, or to a fine of $25 or more” If this rider is added to the condition of suspension mere trivial assaults will not bring into operation perhaps a very heavy sentence of imprisonment.”
See also the remarks of the learned Chief Justice in the same case at page 89 when he stated:
“In the case of S. v Davids. supra at p. 570, KANNEMEYER, J., in my view correctly, said:
“Two cardinal rules regarding the imposition of conditions of suspension are that the condition imposed should bear some relationship to the circumstances of the crime which is being punished and that the condition should be stated with such precision that the convicted person may understand the ambit of the condition: R. v. Cloete 1950 (4) S.A. 191 (E); R. v. Mokobori, 1947 (4) S.A. 123 (T). In my view, if conditions of suspension fall to be interpreted, they should be interpreted so as to give them a meaning rendering them appropriate to the circumstances of the crime and certain.” ”
In the case of S. v. MALULEKE (TPD) 1977 (4) 545 ESSELEN J. stated:
“The conviction of the accused is in order but in respect of the condition which was imposed, which relates to the suspended portion of the sentence, the magistrate was asked on review whether the use of the word “violence” is not inappropriate, regard being had to, inter alia, the decisions of S. v. Mxathuli, 1964 (3) S.A. 685 (O) at p. 686; S.v. Victor, 1970 (3) S.A. 184 (R); S. v. Taylor, 1971 (3) S.A. 86 (R).
In reply thereto the magistrate conceded that the word “violence” was inappropriate and suggested the following condition be imposed: “… that the accused is not convicted of the offence of assault with intent to do grievous bodily harm or of any offence involving an assault for which imprisonment without the option of a fine is imposed, which is committed within the period of suspension.””
The comments of JARVIS J. in S. v. VICTOR 1970 (3) (R) 184 at page 185 are also pertinent. He stated:
“The conditions imposed on suspension of a sentence must be definite and unambiguous – see Swift, Law of Criminal Procedure, 2nd ed., pp 660-1, and cases there cited. Although the expression “any offence involving violence” is frequently used in magistrates’ courts in stating the conditions of suspension of a sentence of imprisonment, it was held to be too vague in the case of S. v. Cele, 1964 (1) S.A. 640 (N), and the word “assault” was substituted for the word “violence” in the condition of suspension of sentence”.
Finally I make reference to the headnote in S. v. CELE SA 1964 (1) 640 (NPD) which reads as follows:-
“The accused had been convicted of assault with intent to do grievous bodily harm and sentenced to a fine or alternatively a period of imprisonment. The magistrate imposed an additional sentence the whole of which he suspended on condition that the accused “… did not commit any offence involving violence for which she is sentenced to imprisonment without the option of a fine”. In a review,
Held, regard being had to the meaning of “violence” that the word as used covered too wide a scope.
Held, therefore, that the word “assault” should be substituted for the word “violence’ ”.
I would, therefore, alter the wording of the conditions of suspension in the present case to read as follows:
Ten years imprisonment of which three years is suspended for a period of three years on condition that the accused is not convicted of an offence involving an assault for which imprisonment without the option of a fine is imposed, which is committed within the period of suspension.
A.M. EBRAHIM
JUSTICE OF APPEAL
I agree
S.A.MOORE
JUSTICE OF APPEAL
I agree
I.G. FARLAM
JUSTICE OF APPEAL
Delivered this the day of May 2011.
