IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CRIMINAL APPEAL NO. 15/10
In the matter between
THEMBINKOSI MARAPEWU SIMELANE 1ST APPELLANT
SABELO BHEKI MASUKU 2ND APPELLANT
AND
REX RESPONDENT
CORAM : RAMODIBEDI CJ
MOORE JA
FARLAM JA
HEARD : 02 NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
SUMMARY
Criminal law – Murder charge – The appellants found guilty of murder with extenuating circumstances – Sentenced to 25 years imprisonment each – Appeal against sentence only – On appeal sentence reduced to 20 years imprisonment for the first appellant and 18 years imprisonment for the second appellant.
RAMODIBEDI CJ
[1] This appeal arises out of a murder charge preferred against the appellants in the High Court. It was alleged in the indictment that upon or about 22 February 2008 and at or near Makhonza area in the Shiselweni region the appellants, acting in furtherance of a common purpose, unlawfully and intentionally killed one Elizabeth Mndzebele.
[2] The appellants were found guilty of murder with extenuating circumstances. They were sentenced to 25 years imprisonment each. They have appealed against sentence only.
[3] The prosecution relied primarily on the evidence of two eyewitnesses namely, Sibongile Mndzebele (PW3) who is the deceased’s daughter and Sibusiso Khumalo (PW4). It was the evidence of these witnesses that in the evening of 22 February 2008 they were seated inside a “cooking hut.” They were cooking porridge. The two appellants suddenly pitched up and confronted the deceased. The first appellant addressed her in these derogatory words: “dog where is our land?” Both appellants then set upon the deceased, assaulting her with burning firewood which they picked up from the fire used to cook porridge. Not only did they assault her all over the body with burning wood but they also kicked her.
[4] The deceased was taken to hospital. It is common cause that she eventually succumbed to her injuries. The post mortem report shows that the cause of death was “due to multiple injuries.” These injuries covered the whole of her body. Her frontal bone as well as the left temporal bone were fractured.
[5] In his evidence, it emerged that the first appellant assaulted the deceased because he alleged that she had sold his grandmother’s land to people unknown to him. He testified that the deceased was a sister-in-law to his grandmother. It would seem, therefore, that the first appellant had a grudge against the deceased.
[6] It follows from this brief outline of facts that the appellants were correctly found guilty of murder. They were, therefore, well advised not to pursue an appeal against their conviction. I turn now to sentence.
[7] As a general principle, sentence is a matter which lies primarily within the discretion of the trial court. An appellate court will not ordinarily interfere with such sentence unless there is a material misdirection resulting in a failure of justice. This principle is now so well-known in this jurisdiction that it requires no further elaboration. It is instructive to stress, however, that in terms of s 5 (3), of the Court of Appeal Act 74/1954 this Court has additional power to quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) as it thinks ought to have been passed. See, for example, Vusumuzi Lucky Sigudla v Rex, Criminal Appeal No. 01/2011.
[9] In paragraph [65] of its judgment on sentence the court a quo stated that it considered the personal circumstances of the accused as well as the interests of society. The first appellant was 25 years of age when he committed the offence. Both his parents were deceased. He was looking after his two siblings as well as his son and paternal grandmother. He was employed in a construction company.
[10] Regrettably, the court a quo made one material omission in its approach to sentence in the matter. It omitted to take into account the fact that both appellants were drunk. They had been drinking Marula from the morning until the early evening of the fateful day in question. This is despite the fact that the court a quo had itself acknowledged this factor when considering the question whether or not extenuating circumstances were present. In this regard the court expressed itself in the following terms in paragraph [61] of its judgment:-
“It is not disputed that both accused had been drinking Marula from the morning until the early evening of that fateful day. I agree with the defence that intoxication in this case could at most be an extenuating circumstance; it is not denied that they were drunk but what is denied is that they were “dead drunk.” In the circumstances, both accused are convicted of Murder with extenuating circumstances.”
I am of the view that the fact that the offence in this matter was committed in these circumstances should have been given some value in fashioning an appropriate sentence. Failure to do so amounted to a misdirection, in my view, thus entitling this Court to interfere with the sentence imposed.
[11] As alluded to in paragraph [5] above, the first appellant had a grudge against the deceased. This factor, too, was not taken into account in sentencing the appellant. Insofar as the second appellant is concerned, the grudge in question did not concern him. Probabilities are that he was dragged into committing the offence by his elder co-accused. Once this conclusion is reached, it follows that there is a need to differentiate between the two appellants in considering an appropriate sentence for each of them. In fairness to him, Mr. Fakudze, for the respondent conceded this point, correctly so in my view.
[12] On the other hand, it must be stressed that the appellants committed a very serious offence. They brutally killed an innocent and defenceless old woman. As the court a quo correctly stated, a deterrent sentence ought to be imposed.
[13] All things being considered, the appeal is upheld. The sentence imposed by the court a quo isset aside and is replaced by the following sentence:-
“Accused No 1: 20 years imprisonment backdated to 22 February 2008.
Accused No 2: 18 years imprisonment backdated to 23 February 2008.”
____________________
M.M. RAMODIBEDI
CHIEF JUSTICE
I agree _____________________
S.A.MOORE
JUSTICE OF APPEAL
I agree _____________________
I.G. FARLAM
JUSTICE OF APPEAL
For Appellants : In person
For Respondent : Mr. S. Fakudze
