IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CRIMINAL APPEAL NO. 14/2010
In the matter between:
SIBUSISO GOODIE SIHLONGONYANE APPELLANT
VS
THE KING RESPONDENT
CORAM
RAMODIBEDI CJ
MOORE JA
DR. TWUM JA
HEARD : 7TH NOVEMBER 2011
DELIVERED : 30TH NOVEMBER 2011
SUMMARY
Criminal Appeal – murder charge – offence actuated by belief in witchcraft – premeditation and brutality of attack – extenuating circumstances. Sentence of 27 years imprisonment – disturbingly inappropriate. Circumstances in which Appeal Court may interfere with sentence. Sentence reduced to 15 years – guidelines to trial courts.
DR. S. TWUM J.A.
[1] This is an appeal from the judgment of M.C.B. Maphalala J. sitting at the High Court, Mbabane on 24th March 2010. He convicted the appellant of the murder of his grandmother, aged 85 years, with extenuating circumstances, and sentenced him to 27 years imprisonment.
[2] The facts underlying this appeal are that in January, 2009 the deceased, Sophia Siyaya, asked the appellant to cut logs for her. She promised to pay him for his services. A week expired and the appellant had not cut the logs so she went back and asked him if he would not cut the logs for her. After another week had passed and still the appellant had not redeemed his promise, the deceased told the appellant that she had found somebody who had agreed to cut the logs for her.
[3] A few days thereafter, the appellant met a Mr Thulani Dlamini, otherwise known as Stoney, who asked him why he did not cut the logs for the deceased. Stoney is said to have warned the appellant that he should be careful of the deceased as she was bad. Stoney said the deceased told him something and that he wanted to protect the appellant. Stoney was vague but the appellant said Stoney reminded him of certain people who had died and how they died. Upon hearing this, the appellant went to the deceased carrying a bushknife and confronted her. She denied that she intended to kill him. The appellant was not satisfied with her protestations and hacked her to death in the presence of the deceased’s 7 year-old grand-daughter, (P.W.1).
[4] On or about 4th March 2009 the appellant was arrested by the Police. He admitted the killing and he made a voluntary confession statement before a Judicial Officer. He was later charged with the offence of murder and tried before the High Court, Mbabane, on 24th March, 2010 and convicted of murder with extenuating circumstances. He was sentenced to 27 years imprisonment.
[5] On or about 12th November 2010, the appellant appealed to this Court. In his application which I regard as his Notice of Appeal, he said he accepted his conviction but only appealed against the severity and harshness of his 27 year sentence. He added that his main ground for the appeal was that the 27 year sentence was too harsh and severe for him to bear, considering that he was young when he committed the offence. He also said he had two little children to provide for and that he was the breadwinner in his family.
[6] On 18th October, 2011, the appellant’s attorneys, B.S. Dlamini and Associates, filed Heads of Argument on his behalf. In paragraph 2 thereof, it was stated that the appellant, not being satisfied with his conviction (my underlining), and sentence noted an appeal on four grounds. In what I have regarded as his Notice of Appeal, no such four grounds can be found. Rather, he stated:
“I pleaded guilty to the murder charge. Therefore I humbly accept my conviction on the said murder offence but only appeal against the severity and harshness of my 27 year sentence.”
[7] During the hearing of the appeal, the appellant, though unrepresented, did not say that he was complaining about his conviction. Again, he pleaded for a reduction in his sentence. He submitted that at the time of the offence he was immature; being only 24 years old.
[8] At the trial court, the appellant was represented by counsel. There is no place in the transcribed record where the learned judge unfairly or otherwise, interrupted or impeded the appellant in his defence. It was stated on page 2 of the said Heads that it would be contended that “the court a quo exhibited signs of having prejudged the guilt of the appellant by uttering such remarks, yet the trial was in progress.” There is absolutely no evidence on the record of proceedings that any submission made by the appellant’s counsel was shot down as it was further alleged.
[9] It will be recalled that when the appellant was arraigned on a charge of murder, he pleaded guilty to the charge. It was the Crown that refused to accept that plea. The court a quo entered a plea of “not guilty” and a fully-fledged trial was conducted. In these circumstances, there was no need for the judge to have sought to manipulate the proceedings to secure the guilt of the appellant. His voluntary confession which was recorded by the Judicial Officer appears at pages 64 to 65 of the record. It was admitted in evidence as Exhibit 3.
[10] If indeed, the appellant gave fresh instructions to his attorneys to make those very serious and scurrilous allegations of misconduct against the learned trial judge without any scintilla of evidence to support them (as they appear in paragraphs 3-15), then I can only say, it is regrettable and should be deprecated.
[11] Rule 7 of the Court of Appeal Rules, 1971, states that the appellant shall not, without the leave of the Court of Appeal, urge or be heard in support of any ground of appeal not stated in his Notice of Appeal, but the Court of Appeal in deciding the appeal shall not be confined to the grounds so stated.
[12] In the light of this Rule and out of abundance of caution, and bearing in mind that the appellant was unrepresented at the hearing of the appeal, I would have given serious consideration to any act of judicial impropriety in the judge if there was any evidence in support. What is particularly unfortunate is that those allegations were drafted by counsel. It makes the mind boggle how in the light of the very unequivocal confession in the record, the appellant could have instructed his counsel to formulate those charges of improper conduct against the trial judge.
[13] I am satisfied that the trial judge acted with proper judicial decorum and I will proceed to consider the merits of the appeal.
The conviction:
[14] After a very careful review of the record I hold that
(i) the uncontroverted evidence is that the prosecution proved its case of murder against the appellant beyond reasonable doubt;
(ii) that the trial court properly convicted him of murder with extenuating circumstances. The trial judge explained that the appellant was frank, honest and not evasive and that he genuinely believed what Stoney had related to him that his grandmother was going to kill him by witchcraft. That is why he murdered her.
[15] It is now well established in our criminal jurisprudence that belief in witchcraft in murder trials, may be an extenuating circumstance. This principle was effectively resolved by the judgment of this Court in the case entitled Benjamin B. Mhlanga v Rex Cr. Ap No. 12/07 where Ramodibedi J.A. (as he then was) reviewed a number of authorities – such as R v Fundakubi 1948 (3) SA 810 (A); Peter B. Dlamini v The King CA 37/97 (and others), and concluded that an appellant’s belief in witchcraft constituted an extenuating circumstance. The learned trial judge, in my view, applied this principle correctly.
Sentence
[16] The appellant complains that his sentence of 27 years’ imprisonment is unduly severe and harsh. Let me say straight away, that that is a valid complaint. The learned trial Judge carefully noted the list of mitigating factors which counsel for the appellant called to his attention. Against that, the learned trial Judge considered the aggravating circumstances which Crown Counsel submitted, should inform the learned trial Judge in the sentence he would impose on the appellant.
[17] To his credit, the learned Judge considered the triad of sentencing – i.e, “that the punishment should fit the criminal as well as the crime; be fair to society and blended with a measure of mercy according to the circumstances.” What tipped the scale against the appellant was that the Judge felt that he should impose a sentence which would send an appropriate signal to people like the appellant to refrain from such conduct. That is the deterrent factor. That is, of course, relevant. However, modern notions of justice disavow long prison sentences as counter-productive. It would seem then that society had abandoned its responsibility to aim at reforming the accused person. In appropriate cases, it is proper that courts temper the severity of sentences with mercy. I remind myself of the caveat entered by Corbet J.A. in the South African case of R v Rabie (1975) (4) SA 885 (A) to the effect that a judicial officer should not approach punishment in a spirit of anger “nor should he strive for severity; nor on the other hand surrender to misplaced pity. While not flinching from firmness, where firmness is called for, he should approach his task with a humane and compassionate understanding of human frailties and pressures of society which contribute to criminality.”
[18] In the Botswana case of Ntesang v The State (2007) 1 BLR 387 (C.A.) at 390, Lord Coulsfield (J.A.) writing the judgment of the Court said:
“One of the fundamental principles of justice in sentencing is that the courts should strive to impose the right sentence for the particular circumstances of the case.”
[19] Whenever human life is needlessly lost as a result of the criminal, voluntary act of another, it evokes a justifiable feeling of society’s anguish and disapprobation. Killing activated by witchcraft, based, as it is, on supposed super-natural powers may evoke such outrage in the society. In this particular case, the appellant apparently acted with absolute fear of imminent death. Not all persons would succumb to that type of fear. But it is a fact of life which cannot be wished away by very lengthy sentences.
[20] Under section 15(3) of the Constitution, a sentence of life shall not be less than 25 years. In effect, I reckon that the learned trial Judge sentenced the appellant to life imprisonment.
[21] After a very careful consideration of the sentence imposed on the appellant I am persuaded that the sentence of 27 years imprisonment was disturbingly inappropriate. I reduce it to 15 years imprisonment.
[22] The final order of this Court is that the sentence of 27 years imprisonment imposed on the appellant is set aside. In its place a sentence of 15 years is imposed on him. The sentence will commence from 4th March, 2009, the day of his arrest.
_________________
DR. SETH TWUM
JUSTICE OF APPEAL
I agree.
__________________
M.M. RAMODIBEDI
CHIEF JUSTICE
I also agree. ____________________
S.A. MOORE
JUSTICE OF APPEAL
COUNSEL APPELLANT IN PERSON
FOR RESPONDENT MR. BRYAN MAGAGULA
