Dlamini v Rex (30/11) [2013] SZSC06 (31 May 2013);

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Full judgment

IN THE SUPREME COURT OF SWAZILAND

JUDGMENT

Case No: 30/11

In the appeal between:

ELVIS MANDLENKHOSI DLAMINI APPELLANT

VS

REX RESPONDENT

Neutral citation: Elvis Mandlenkhosi Dlamini vs Rex(30/11) [2013] SZSC06 (31 May 2013)

CORAM: A.M. EBRAHIM, JA

M.C.B. MAPHALALA, JA

B.J. ODOKI, JA

Heard : 03 May 2013

Delivered : 31May 2013

Summary

Criminal Procedure – sentence – appellant convicted of murder with extenuating circumstances and sentenced to fifteen years imprisonment – appeal against sentence – held that the sentence imposed by the Court a quo is within the accepted range of sentences for such offence in this jurisdiction – no misdirection by Court a quo – appeal dismissed and sentence confirmed.

JUDGMENT

M.C.B. MAPHALALA, JA

[1] The appellant was convicted by the Court a quo of murder with extenuating circumstances; he was sentenced to fifteen years imprisonment. He lodged an appeal against sentence on the ground that it was “too harsh and severe”.

[2] During the hearing of the appeal, the appellant reiterated mitigating factors which he had advanced during the trial. He contended that the offence was not premeditated, that he was a first offender and capable of reforming to a better person, that he was a breadwinner in the family with four minor children to support, that he was remorseful during the trial, and that he co-operated with police investigations. He pleaded with this Court to reduce the sentence by five years. However, he overlooked the fact that the Court a quo had considered these mitigating factors when imposing the sentence.

[3] The appellant did not advance any reasons why he felt that the Court a quo had misdirected itself when imposing the sentence or why he felt that such a sentence had resulted in a failure of justice. He did not disclose any facts or circumstances showing that the trial Court did not exercise its discretion judiciously. It is apparent from the judgment of the trial Court that the learned judge in sentencing the appellant to a total of fifteen years imprisonment properly considered the triad consisting of the crime, the offender as well as the interests of society as laid down in S. v. Zinn 1969 (2) SA 537 (A).

[4] The facts in this matter are common cause. The deceased and the accused were in a love relationship, but, they were not married to each other; they had a minor child aged about seven months at the time. The deceased was employed in a shop in Manzini and the appellant was not employed. They resided in an apartment rented by the deceased at Makholweni area on the outskirts of the city of Manzini; the apartment was owned by PW3 Rose Mdziniso who was also the landlord.

[5] On the 2^nd November 2007 the appellant brutally and fatally assaulted the deceased using an iron rod which was subsequently admitted in Court as an exhibit. The reason for the assault, according to the appellant, was that he had seen the deceased in the afternoon of that day alighting from a motor vehicle, an Isuzu Van, allegedly belonging to the deceased’s male employer; and, that when he enquired from her where they were coming from, the deceased became agitated and shouted at him. The appellant contended that the deceased’s behaviour made him angry, and, he suspected that the deceased and her employer were having a love relationship. However, PW1 Ncamsile Masango and PW2 Sisana Busisiwe Zwane disputed the evidence of the appellant that the deceased’s employer was a male or that the deceased was cheating on the appellant as alleged; they testified that the deceased’s employer was Nomsa, a female. The appellant failed to dispute the Crown’s evidence in this regard.

[6] It is apparent from the evidence that when the deceased and the appellant returned to the apartment later that day, they had a serious argument leading to the physical assault on the deceased. PW3 testified that when she arrived at home from town, she was told by neighbours that the deceased and the appellant had been fighting. She found the deceased standing next to the gate and crying; the deceased told her that she had been assaulted by the appellant.

[7] PW1 also testified that on this particular day, she saw the appellant in the late afternoon chasing after the deceased towards PW3’s house. The deceased was crying, asking the appellant for her child’s clothes. The landlord pushed her away, and the appellant pulled her back into their apartment by force and locked both the burglar door as well as the wooden door. The time was after 5 pm, but before sunset.

[8] PW1 went to fetch the deceased’s sister, PW2 from her residence nearby; upon her arrival, PW2 knocked at the deceased’s apartment and asked her to open the doors. She replied in a very low voice telling them to inform the appellant to open the doors so that she could say her last words. When PW2 heard this, she was overwhelmed with emotion, and, she cried aloud hysterically.

[10] When PW1 and PW2 realised that the appellant was not willing to open the doors, they went to a nearby Police Post at Fairview North in Manzini to report the incident. They came back with a police officer Constable Mbatha using a police motor vehicle; and, they knocked at the door. The police officer introduced himself and ordered the appellant to open the doors but he did not. Instead, the appellant switched off the lights. The police officer tried to open the wooden door and to break the burglar door but he failed to do so; then he called for assistance from other police officers. Meanwhile the deceased was crying inside the apartment saying that the appellant was strangling her; in addition, she was heard saying that she wanted to relieve herself in a toilet, and, that she also needed water to drink.

[11] After calling for reinforcement, the police officer urged the appellant for the second time to open the doors but he did not. Immediately thereafter, the police contingent arrived at the scene, and, knocked at the wooden door. However, the appellant did not open the door. They called him by name telling him to open but he did not open. The police broke the wooden door forcing the appellant to open the burglar door. By that time a large number of community members had gathered at the scene. When seeing the deceased lying critically injured on the floor and facing upwards, the community members shouted in disbelief and retreated.

[12] The police asked for the deceased’s relatives to come forward, and both PW1 and PW2 responded. Inside the apartment the situation was in disarray and items were scattered all over the floor. The deceased’s face was swollen, with blue eyes, a deep wound on the head and on her waist, there was a torn skirt with a protruding rustic. In addition there was a smell of faeces in the apartment; and blood was scattered all over the room. The deceased’s face was turning blue; she was still, quiet and not breathing. The police with the assistance of PW1 and PW3 wrapped the deceased with a blanket and put her in the police motor vehicle. The deceased was certified dead upon arrival at the Raleigh Fitkin Memorial hospital in Manzini.

[13] During evidence in-chief the appellant testified that it was the deceased who did not want to open the doors partly because she did not want the appellant to be arrested and partly because she wanted reconciliation with the appellant so that he could forgive her for cheating on him. This evidence was disputed by PW1 and PW2; when they knocked and asked the deceased to open the doors, she told them that they should ask the appellant to open the doors because she was not in a position to do so. The Court a quo was correct in rejecting the appellant’s evidence in this regard because the appellant refused to open the doors on three occasions when the police ordered him to do so; hence, they ended up breaking the wooden door to gain entry into the apartment.

[14] PW4 Detective Constable Nkosinathi Ngozo was part of the police contingent which was called to the scene by Constable Mbatha. PW4 arrived at the scene with Detective Constable Adverb Dlamini, now deceased. On arrival they introduced themselves to the appellant and further knocked at the door. The appellant did not open the door; after ten minutes, they informed the appellant that they would now break the door and enter forcefully. They broke the door using a log and the appellant was forced to open the burglar door.

[15] The injuries sustained by the deceased were both serious and fatal; they were properly described by all four Crown witnesses. In particular PW4 testified that the deceased was lying down facing upwards in a pool of blood, there was human waste around her, she was half-naked, and blood was sprinkled all over the room; there was a wound on the head, neck and thighs. The deceased’s face and neck were swollen; the wounds were consistent with physical assault. The deceased’s eyes were changing their colour to blue, and, she was neither talking nor breathing.

[16] Similarly, the post-mortem report concluded that the cause of death was due to multiple injuries. The pathologist further noted the following ante-mortem injuries present: first, lacerated wounds of 4 x 1 cms and 4 x 3 cms present on the right side of the forehead; secondly, left side of the face swollen and the bones of the left cheek fractured; thirdly, contusions of 2 x 1 cms and 2 x 1.5 cms present on the front and middle portion of the right leg; fourthly, contusions of 3 x 1 cms, 2 x 1 cms present on the front and middle portion of the left leg; fifthly, the frontal bone was fractured; sixthly, extradural and intracerebral haemorrhages present; seventh, petechial haemorrhages present; eighth, mesenteric blood vessels ruptured; ninth, the right lobe of the liver was ruptured.

[17] The trial Court correctly rejected the appellant’s evidence that the deceased talked to him when they were inside the police van and asked for forgiveness for cheating on him. It is apparent from the evidence of all four Crown witnesses that the injuries sustained by the deceased were so severe that she could neither talk nor breathe and that she was certified dead upon arrival in hospital. The extent of the injuries is corroborated by the post-mortem report which was admitted in evidence by consent.

[18] The appellant does not deny that he assaulted the deceased and caused her death. His defence which was put to Crown witnesses was that he saw the deceased alighting from an Isuzu Van allegedly belonging to her male employer and he suspected that she was cheating on him. However, this evidence was disputed by PW1 and PW2 on the basis that the deceased’s employer was Nomsa, a female.

[19] The Court a quo was further correct in rejecting the evidence of the appellant as an afterthought that she was cheating with Sive Dlamini because that was never put to Crown witnesses. The appellant testified during the defence case that he gave permission to the deceased to visit her parental homestead. In the evening he followed her in order to ascertain if she had arrived safely; however, she did not find her at home and PW2 told him that she had gone with Sive Dlamini. He further alleged that the deceased only returned to her parental home during the next morning, and that she did not talk to him. The appellant did not put to PW2 or remind her that he had visited her parental home and found that the deceased had gone overnight with Sive Dlamini; and, that PW2 provided him with accommodation for the night.

[20] Furthermore, the Court a quo was correct in rejecting the evidence of the appellant that the deceased had received an SMS text message, “thanking her that she had pleased him and made him happy”. The implication was that the deceased was cheating on him with the person who had sent the message; however, the name of the owner of the cellphone or his cellphone number was not disclosed by the appellant. This evidence was correctly rejected as an afterthought because it was never put to Crown witnesses.

[21] The appellant further testified that the deceased admitted to him on the day in question that she had a series of sexual encounters with her male employer; and, that this admission was made during the assault on the deceased in the apartment. Again this evidence was not put to Crown witnesses and the Court a quo correctly rejected it as an afterthought. Similarly, the evidence by the appellant that it was the deceased who locked the burglar door as well as the wooden door because she wanted to make an admission of her infidelity with her male employer was correctly rejected as an afterthought; it was not put to Crown witnesses.

[22] It is a trite principle of our law that the defence case should be put to the prosecution witnesses otherwise the defence evidence would be considered as an afterthought if disclosed for the first time during the accused’s evidence in-chief.

[23] His Lordship Macdonald JP in S. v. P. 1974 (1) SA 581 (RAD) at 582 said:

“It would be difficult to over-emphasise the importance of putting the defence case to prosecution witnesses and it is certainly not a reason for not doing so that the answer will almost certainly be a denial. The Court was entitled to see and hear the reaction of the witnesses to the vitally important allegation that the appellant was not even in possession of red sandals on the two occasions he was alleged to have worn them at the river. Quite apart from the necessity to put this specific allegation, there was in my opinion, a duty to put the general allegation that there had been a conspiracy to fabricate evidence. It is illogical for counsel to argue that there is a sufficient foundation in fact for a submission that the possible existence of such conspiracy is such as to cast doubt on the whole of the State case but insufficient fact on which to cross-examine the principal State witnesses. The trial court was entitled to see and hear their reaction to an allegation that they had conspired with the persons and for the reasons mentioned in the course of the trial. They may have been able to satisfy the court that an opportunity to enter into such a conspiracy never existed. So important is the duty to put the defence case that, practitioners in doubt as to the correct course to follow, should err on the side of safety and either put the defence case, or seek guidance from the court.”

See also the case of Rex v. Dominic Mngomezulu and Others Criminal case No. 94/1990 (HC) at pp 16-18.

[24] The appellant did not put to Crown witnesses that after the admission of the alleged infidelity by the deceased, he slapped her twice; and that thereafter, she grabbed his testicles and further tried to assault him with the iron rod. He further claimed that he disarmed her and hit her with the iron rod several times. Strangely enough, the appellant admitted that when Constable Mbatha knocked at the door, he had already assaulted the deceased and she was bleeding; but he never opened the door in order to enable the deceased to get medical assistance. Similarly, he did not deny that he strangled the deceased even though she was bleeding or that PW1, PW2 and Constable Mbatha were outside the apartment at the time trying to gain access to the apartment.

[25] In light of the evidence adduced, the Court a quo correctly convicted the appellant of murder with extenuating circumstances. I agree with the trial Court that the appellant believed that the deceased was cheating on him when he allegedly saw her alighting from the Isuzu bakkie. Such a belief, however unreasonable in the circumstances, could have had a bearing on his moral blameworthiness.

[26] The Court a quo was correct in finding that the appellant had mens rea in the form of dolus eventualis. It is apparent from the evidence that the appellant, at about 5 pm, chased after the deceased towards the landlord’s apartment. The landlord pushed her backwards, and, the appellant pulled her forcefully to their apartment notwithstanding her resistance. The appellant locked both the burglar door and the wooden door to their apartment. He assaulted her repeatedly and consistently with an iron rod; she sustained serious injuries including a fractured skull and the rapture of the right lobe of the liver and of the mesenteric blood vessels. The appellant admitted that the deceased bled profusely due to the injuries sustained; however, notwithstanding this, he refused to open the doors and afford medical assistance to the deceased. Instead the appellant proceeded and strangled the deceased; PW1 testified that the deceased spoke from inside the apartment that the appellant was strangling her. Clearly the appellant foresaw the possibility of his conduct resulting in death but he persisted reckless whether death ensues or not.

[27] Tebbutt JA in Thandi Tiki Sihlongonyane v. Rex Criminal Appeal No. 40/1997 at page 4 of the judgment summarised the essential requirements of dolus eventualis. He stated the following:

“They are:

Subjective foresight of the possibility, however remote, ofthe accused’s unlawful conduct causing death to another;

2. Persistence in such conduct, despite such foresight;

The conscious taking of the risk of resultant death, not caring whether it ensues or not;

4. The absence of actual intent to kill.”

[28] At page 5 of His judgment, His Lordship stated:

“In the case of dolus eventualis it must be remembered that it is necessary to establish that the accused actually foresaw the possibility that his conduct might cause death. That can be proved directly or by inference, i.e. if it can be said from all the circumstances that the accused must have known that his conduct could cause death, it can be inferred that he actually foresaw it.... The issue in dolus eventualis is whether the accused himself or herself foresaw the consequences of his or her act...”

[29] It is trite law that the imposition of sentence lies within the discretion of the trial Court, and, that an appellate Court will only interfere with such a sentence if there has been a material misdirection resulting in a miscarriage of justice. It is the duty of the appellant to satisfy the Appellate Court that the sentence is so grossly harsh or excessive or that it induces a sense of shock as to warrant interference in the interests of justice. A Court of Appeal will also interfere with a sentence where there is a striking disparity between the sentence which was in fact passed by the trial court and the sentence which the Court of Appeal would itself have passed; this means the same thing as a sentence which induces a sense of shock. This principle has been followed and applied consistently by this Court over many years and it serves as the yardstick for the determination of appeals brought before this Court. See the following cases where this principle has been applied:

Musa Bhondi Nkambule v RexCriminal Appeal No. 6/2009
Nkosinathi Bright Thomo v RexCriminal Appeal No.12/2012
Mbuso Likhwa Dlamini v RexCriminal Appeal No. 18/2011
Sifiso Zwane v RexCriminal Appeal No. 5/2005
Benjamin Mhlanga v. Rex Criminal Appeal No. 12/2007
Vusi Muzi Lukhele v RexCriminal Appeal No. 23/2004

[30] The Trial Court was alive to the caution made by Ramodibedi JA, as he then was, in the Court of Appeal of Botswana in Bogosinyana v. The State (2006) 1 BLR 206 (CA) at page 6 where the learned judge of Appeal had this to say:

“It is equally important to bear in mind that punishment should fit the offender as well as the crime while at the same time safeguarding the interests of society. It is thus a delicate balance which should be undertaken with utmost care. In this regard it is important to remember the age-old caution not to approach punishment in a spirit of anger. The justification for such a caution, as one seems to have read, lies in the fact that he who comes to punishment in wrath will never hold the middle course which lies between too much and too little.”

[31] Similarly, Moore JA in the Botswana Court of Appeal in the case of Mosiiwa v The State (2006) 1 B.L.R. 214 at p.219 made the following caution which the judge in the Court a quo seems to have heeded:

“It is also in the public interest, particularly in the case of serious or prevalent offences, that the sentence's message should be crystalso that the full effect ofdeterrent sentences may be realized, and that the public may be satisfied that the Court has taken adequate measures within the law to protect themof serious offences. By the same token, a sentence should not be out of all proportion to the offence, or tobe manifestly excessive, or to break the offender, or to produce in themindsof the public the feelingthat he has been unfairly and harshly treated.”

[32] In S.v. Rabie 1975 (4) S.A. 855 (AD) at p. 866 Holmes JA had this to say:

“A judicial officer should not approach punishment in a spirit of anger because being human, that will make it difficult for him to achieve that delicate balance between the crime, the criminal and the interests of society which his task and the objects of punishment demand of him. Nor should he strive after 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 the pressures of society which contribute to criminality. It is in the context of this attitude of mind that I see mercy as an element in the determination of the appropriate punishment in the light of all the circumstances of the particular case.”

[33] It is apparent from the judgment of the trial judge that he did consider the triad in arriving at the sentence of fifteen years imprisonment. The judge a quo took into account the personal circumstances of the appellant that he was a first offender, relatively young, the sole breadwinner of four minor children and that the death of his girlfriend in his hands would haunt him for the rest of his life.

[34] Similarly, the trial judge took into account the fact that the crime committed by the appellant was serious and committed in a gruesome manner and without any justification. The appellant did not only assault the deceased repeatedly and consistently over a long period of time with an iron rod but he locked the doors to ensure that nobody could save her from the brutal assault. When she was bleeding profusely with a fractured skull and raptured internal organs, he continued assaulting her and, in addition to strangling her. He denied her an opportunity for medical assistance by refusing to open the doors to PW1, PW2 and the police; when the doors were eventually opened, she couldn’t breathe or talk and was certified dead upon arrival in hospital.

[35] Needless to say that there is, regrettably, a growing trend in this country in the killing of women by their spouses and male friends with impunity and without lawful cause. It is a frightening development against the women folk requiring the urgent attention of the Courts as well as society as a whole. In all these deaths the women are not armed, and, being the weaker sex, they are unable to defend themselves. In the present case as in many others, the assailant has no remorse for what he has done. The Courts have a duty to uphold the Constitution by protecting the right to life.

[36] This court has been consistent with sentences imposed on convictions of murder with extenuating circumstances; they range from fifteen to twenty years depending on the circumstances of each case. In the case of Mapholoba Mamba v. Rex Criminal Appeal No. 17/2010, the Supreme Court reduced a sentence of twenty-five years to eighteen years. In the case of Ntokozo Adams v. Rex Criminal Appeal No. 16/2010, the Supreme Court reduced a sentence from thirty years to twenty years imprisonment. In Khotso Musa Dlamini v. Rex Criminal Appeal No. 28/2010, the Supreme Court confirmed a sentence of eighteen years imposed by the Court a quo. In Mandla Tfwala v. Rex Criminal Appeal No. 36/2011 a sentence of fifteen years was confirmed. In Sihlongonyane v. Rex Criminal Appeal No. 15/ 2010 a sentence of twenty years was reduced to fifteen years.

[37] In Ndaba Khumalo v. Rex Criminal Appeal No. 22/2012 a sentence of eighteen years was confirmed. In Zwelithini Tsabedze v Rex Criminal Appeal No. 32/2012 a sentence of twenty-eight years was reduced to eighteen years. In Sibusiso Goodie Sihlongonyane Criminal Appeal No. 14/2010 a sentence of twenty-seven years was reduced to fifteen years. In Thembinkosi Marapewu Simelane and Another Criminal Appeal No. 15/2010 a sentence of twenty-five years was reduced to twenty years. In Mbuso Likhwa Dlamini v. Rex Criminal Appeal No. 18/2011 a sentence of fifteen years was confirmed. In Sibusiso Shadrack Shongwe v. Rex Criminal Appeal No. 27/2011 a sentence of twenty-two years was reduced to fifteen years.

[38] In the circumstances the trial judge did not misdirect himself in imposing the sentence of fifteen years. Accordingly, the appeal on sentence is dismissed.