Dlamini v Rex (19/2011) [2013] SZSC 5 (31 May 2013);

group

Full judgment

IN THE SUPREME COURT OF SWAZILAND

JUDGMENT

Criminal Appeal Case No.19/11

In the matter between:

MFUNGELWA SIMON JWANA DLAMINI Appellant

vs

REX Respondent

Neutral citation: Mfungelwa Simon Jwana Dlamini vs Rex(19/11) [2013] [SZSC 5] (31May 2013)

Coram: A.M. Ebrahim JA

S.A. Moore JA

M.C.B. Maphalala JA

Heard: 02 May 2013

Delivered: 31 May 2013

Summary: Conviction for murder with extenuating circumstances – Appeal against sentence of 20 years imprisonment – Appeal dismissed – No misdirection by the trial court – Sentence not manifestly excessive so as to induce a sense shock – Partial suspension of a sentence imposed by the High Court for murder – Precluded in terms of the provisions of section 313(1) of the Criminal Procedure and Evidence Act No.67/1938.

EBRAHIM JA

[1] The appellant was convicted of murder. The Court found extenuating circumstances and sentenced him to 20 years imprisonment and backdated the sentence to the 28^th January 2005.

[2] The appellant has appealed against the severity of the sentence, submitting, that the sentence imposed is “too harsh and severe”.

[3] He has also sought the reduction of the sentence by seeking the suspension of 10 years of the imprisonment of 20 years imposed on him.

[4] In terms of section 313(1) of the Criminal Procedure and Evidence Act No.67 of 1938 this Court is precluded from suspending any part of a sentence of imprisonment imposed on an accused convicted of murder.

This provision provides as follows:

“313. (1) If a person is convicted before the High Court or any magistrate’s court of any offence other than one specified in the Third Schedule, the court may in its discretion postpone for a period not exceeding three years the passing of sentence and release the offender on one or more conditions (whether as to compensation to be made by the offender for damage or pecuniary loss, good conduct or otherwise) as it may order to be inserted in recognisances to appear at the expiry of such period, and if at the end of such period the offender has observed all the conditions of such recognisances, it may discharge him without passing any sentence”.

The Third Schedule stipulates as follows:

“THIRD SCHEDULE

OFFENCES ON CONVICTION WHEREOF THE OFFENDER

CANNOT BE DEALT WITH UNDER SECTION 313

Murder.

Rape.

Robbery.

Any conspiracy, incitement or attempt to commit any of the above-mentioned offences”.

[5] It is not in dispute that the deceased in this case met his death following a brutal attack on him by the appellant.

[6] It is informative to examine the pathologist’s report which reflects the extent of the injuries inflicted on the deceased by the appellant.

The following is outlined in the report:

“Blood stains over scalp, ears, left ankle pus formed abscess over lower abdomen outer aspect 3.9 cms area.

The following antemortem injuries seen:-

Cut wound over right forehead 6 x 1.2 cms scalp deep.
Cut wound over parital region to right ear 8 x 3 cms bone deep.
Cut wound over parital region to occipital region 13 x 2.7 cms bone deep. Fractured skull, torn dura, diffuse mixed intracranial haemorrhage over brain about 200 ml.
Cut wound over right shoulder 7 x 1.2 cms bone deep, left shoulder 6.1 cms x 1.3 cms bone deep. Abrasion right shoulder 7 x 0.3 cms.
Cut wound over back of left ankle 7 x 4 cms bone deep fracture leg bones. Torn tissues nerves, blood vessels”.

[7] It is not in dispute that these injuries were in the main caused with a “bush knife” (an inherently dangerous weapon) wielded by the appellant.

[8] The appellant was far from candid in explaining his reasons for his brutal conduct.

[9] In a statement made to a judicial officer when he recorded a statement from the accused before his trial he said:

“I have come to report that when I got home the day before yesterday, my wife reported to me that a child fell off from a tree and sustained a fracture on the arm.

I then questioned her, how the child sustained the fracture as I had previously warned that children should not climb that tree as it was dangerous. Whilst talking to her she opened the door and went out. I followed her, whilst following her a shadow rose infront of me that shocked me. Then in the process I could not see what the shadow was. I then struck with a bushknife and that is how the person got injured. I then heard from Sidvokodvo Police that the shadow I hit was a human being. I could not see then as it was dark at around 8.00pm. I heard from the police that I struck Sikhosana who then died.

That is all”.

[10] At his trial the appellant deposed that he was under the influence of liquor when he attacked the deceased with a knife. During the course of questioning of the Crown’s witnesses his counsel did not put this assertion to these witnesses. The judge a quo with justification, drew an adverse inference for this failure, concluding that the appellant had obviously made up this defence as the trial proceeded without taking his counsel into his confidence.

[11] The appellant also raised a further defence alluding that he had acted as he did because he suspected that the deceased had been having an illicit relationship with his wife. The learned judge a quo dealt with this defence as follows:

“It is curious to note that the accused has denied ever instructing his counsel to put the allegation of illicit sexual relationship to witnesses. He has specifically denied telling anybody that his wife was carrying out an illicit sexual relationship with the deceased. In fact the accused told the court that he was on talking terms with the deceased and that he did not agree with the suggestion of illicit sexual relationship because in his words ‘I did not find my wife with the deceased’”.

These comments of the learned judge are eminently reasonable.

[12] The learned judge was not impressed with the multiple assertions made by the appellant but nevertheless, rather generously, found there to exist extenuating circumstances in his favour.

[13] In my view the learned trial judge has not misdirected himself in any way and his findings accord with common sense and the acceptable evidence. The sentence imposed is not outside the ranges of sentences imposed for murder in these courts, which range from 14 years to 20 years.

See BHEKIZWE MOTSA v REX

(37/2010) [2012] SZSC 6

(31 May 2012)