IN THE SUPREME COURT OF SWAZILAND
JUDGMENT
Criminal Appeal No. 23/11
In the matter between
JAMES MTHEMBU Appellant
and
REX Respondent
Neutral citation: James Mthembu v Rex (23/2011) [2013] SZSC 03 (31 May 2013)
Coram: RAMODIBEDI CJ, DR TWUM JA, and ODOKI JA
Heard: 2 MAY 2013
Delivered: 31 MAY 2013
Summary: Criminal law – Murder Charge - Appellant convicted of murder with extenuating circumstances and sentenced to 20 years imprisonment – Appeal against both conviction and sentence – On appeal the appeal dismissed in its entirety – Both conviction and sentence confirmed.
JUDGMENT
RAMODIBEDI CJ
[1] The appellant in this matter stood trial before Hlophe J in the High Court on a single count of murder. It was alleged that upon or about 31 May 2008, and at or near Ntabamhloshana area in the Manzini Region, the Appellant unlawfully and intentionally killed one Grace Nkambule (“the deceased”) and did thereby commit the crime of murder.
[2] At the end of the trial, the appellant was convicted of murder with extenuating circumstances. He was sentenced to 20 years imprisonment backdated to 6 June 2008 being the date of his arrest. He has appealed to this Court against both conviction and sentence.
[3] The facts leading up to the deceased’s death were of an extremely horrendous nature by any account. It was a typical murder in the course of robbery. In this regard, the Crown relied principally on the evidence of two accomplice witnesses, namely, (1) the appellant’s own younger brother Thembinkosi Mthembu (PW2) and Sifiso Spikili (PW3).
[4] Apart from minor discrepancies, such as whether a candle light was used inside the deceased’s house or whether it was a cellphone light, the two accomplice witnesses duly corroborated each other in material respects. It was their evidence that on the fateful night in question they had been in the company of the appellant enjoying alcoholic drinks. The appellant then hatched a plan, which was accepted by the accomplice witnesses, that the three of them should go and rob the deceased of her money. Uncontested evidence established that the appellant knew the deceased very well as he had once worked for her previously. He knew that she was a hawker and that she had just come back from Johannesburg in that capacity. The three partners in crime believed that the deceased had money in her possession.
[5] It was not seriously disputed at the trial that in furtherance of the common purpose referred to in the preceding paragraph the appellant and the two accomplice witnesses proceeded to the deceased’s house on the night in question. The appellant was armed with a crowbar which he used to break the deceased’s window. He then entered the house through the broken window. He was followed by PW2 and PW3, in that order. PW2 was armed with a pellet gun, while PW3 carried a bushknife.
[6] Although the initial plan was that PW3 would pin down the deceased whilst the appellant and PW2 took away her money, things apparently did not go as planned. When PW3 pinned down the deceased as planned, she put up a fight, something which must have taken the intruders by surprise. The two accomplice witnesses corroborated each other that the appellant hit the deceased several times with the crowbar he was carrying. At some point, PW3 suggested that the deceased was dead. The three intruders then burned a plastic on the deceased’s legs in order to test whether she was dead. When she made no movement, or showed no reaction, they became sure that she was indeed dead. At that stage, they decided to leave the house. They did not find the money they were looking for.
[7] It is important to observe that the evidence of the two accomplices did not stand alone. Uncontested evidence established that the appellant himself freely and voluntarily, after due caution for that matter, led the police to his homestead where he produced the murder weapon, namely, the crowbar from underneath the bed. His own father, Sindi Khumalo (Sylda) (PW5), gave damning evidence against him that it was him who put the crowbar under the bed. Furthermore, it was not seriously disputed that the appellant was subsequently found in possession of the deceased’s clothes.
[8] Faced with this overwhelming evidence against him, the appellant, who was legally represented at the trial, belatedly tried to raise an alibi as a defence. He suggested that his girlfriend would support the alleged alibi.However, when the girlfriend was made available to him, the appellant failed to call her as a witness. Confronted with this problem at the hearing of the appeal, Mr Manana for the appellant, who represented him at the trial, confirmed that the girlfriend did not support the so-called alibi. Hence, he did not lead her evidence for that reason. In these circumstances, therefore, I conclude that the court a quo was fully justified in rejecting the alleged alibi as false beyond reasonable doubt.
[9] In evaluating and analyising the evidence of the Crown witnesses, the trial court took into account the fact that they were honest and truthful. There is no serious challenge to that finding. Furthermore, the court duly cautioned itself of the danger of convicting on accomplice evidence. It correctly, in my view, considered the fact that the accomplice witnesses in particular corroborated each other in material respects implicating the appellant. It is my considered view that the trial court’s approach in this matter cannot be faulted. Moreover, I consider that the risk of a false implication of the appellant was further reduced by the evidence of both PW2 and PW5 who are close relatives of his. See the celebrated case of Rex v Ncanana 1948 (4) SA 399 (A) which has been consistently followed in this jurisdiction in such cases as Mciniseli Samson Simelane and Others v R 1970 – 76 SLR 278 (CA); Jabulani Mzila Dlamini and Another v Rex, Criminal Appeal Case No. 16/2011; Themba Dludlu v Rex, Appeal Case No. 22/2011.
[10] It follows from these considerations that the appellant was correctly found guilty of murder with extenuating circumstances.
[11] Reverting now to sentence, it is trite in this jurisdiction that the imposition of sentence in a case such as the present one is a matter which lies pre-eminently within the discretion of the trial court. An appellate court will ordinarily not interfere unless there is a material misdirection resulting in a miscarriage of justice. Authorities for this proposition are legion. It shall suffice simply to refer to such cases as Musa Bhondi Nkambule v Rex, Criminal Appeal No. 6/09; Mzila Dlamini and Another v Rex (supra); Msombuluko Mphila v Rex Criminal Case No. 33/12.
[12] In sentencing the appellant, the trial court correctly took into account the triad consisting of the offence, the offender and the interests of society. See for example, R v Zinn 1969 (2) SA 537 (A) at 540. It did not misdirect itself in any way. Accordingly, there is no justification for this Court to interfere with the court a quo’s proper exercise of a discretion in sentencing the appellant.
[13] It cannot be stressed strongly enough that murder committed in the course of a robbery is a very serious offence deserving of an appropriately harsh sentence as a deterrent. It is more so in the present case where the appellant brutally killed a 68 year-old defenceless woman who was sleeping in the comfort of her home. In any event, I consider that the trial court was fully justified in taking into account the fact that in a substantially similar case in Jabulani M. Dlamini and Another v Rex (supra) this Court confirmed a sentence of 22 years imprisonment imposed on the first appellant by the High Court. Indeed, this Court would be failing in its duty if it did not warn would-be offenders, as it hereby does, that in appropriate cases murder committed in the course of a robbery is punishable by death.
[14] In light of the foregoing reasons the appeal must fail. It is accordingly dismissed in its entirety. Both conviction and sentence recorded by the High Court are confirmed.
___________________________ M.M. RAMODIBEDI
CHIEF JUSTICE
I agree ____________________________ DR S. TWUM
JUSTICE OF APPEAL
I agree ___________________________
B.J. ODOKI
JUSTICE OF APPEAL
For Appellant : Mr N.M. Manana
For Respondent : Mr P. Dlamini
