IN
THE COURT OF APPEAL OF SWAZILAND
APP.
No. 49/85
In
the natter of:
MJONISENI
MKHABELA Appellant
and
REGINA Respondent
CORAM: VAN
WINSEN J. A.
WELSH
J. A.
AARON
J. A.
VAN
WINSEN J.A.
JUDGEMENT
(13/3/36)
Appellant
was convicted of the murder of a child, Njani Kunene, and, in the
absence of a finding that extenuating circumstances existed, he was
sentenced to death. His appeal is directed solely to the finding of
the High Court that no extenuating circumstances are present in his
case. The facts relevant to the issue of extenuating circumstances
are the following.
Appellant
made a statement to a Magistrate which amounted to a confession
implicating him in the murder of Njani. Despite objection by counsel
for appellant at the trial, the Court allowed the confession to be
proved. Nothing turns on this issue since in his evidence before the
Court, appellant confirmed much of the contents of the confession.
2
It
appears that Njani was a child of some seven years of age and was the
son of appellant's sister. Appellant had in the spring of 1982
requested Ijani's mother to allow the child to live with him in order
to look after his cattle. She approved of this proposal and from then
on Njani stayed with appellant.
In
1983 Chief Shongwe, under whose jurisdiction appellant lived,
approached appellant and asked him to allow Njani to go to his, the
Chief's, homestead to herd the Chief's cattle, but he refused the
request as he needed the boy himself. Subsequently he was again
approached on behalf of the chief by one Maniki Dlamini who asked if
appellant understood what the chief was saying. This question
elicited an angry response from appellant who stated that the child
was not his. Thereafter the chief ordered him to come at about 5p.m.
with his nephew to "the end of the grazing land fence." He
complied with the chief's request. In his evidence in-chief he said
that he was not told why he should bring the boy. However, in his
confession he had said that Maniki had told him that the boy was
required for muti to strengthen the chief, and he confirmed this
under cross-examination in the High Court.
When
he arrived at the fence, seven people were there, including the
chief, a sangoma and soneone whom he described as "a Zionist."
Both he and the boy were given muti and they were led down the valley
to the rocks near the river where the boy was throttled and, without
going into detail, his body was subsequently put into a sack. There
is no evidence to show that appellant took any part in the killing of
his nephew.
The
motives operating on the mind of appellant in regard to the handing
over of Njani appear more fully from his confession.
3
Therein
he says that after he had refused the first tine to hand over the boy
and when he was subsequently again apprcached by the chief, he was
offered an ox by the latter if he would agree to the handing over. At
the sane tine he was threatened that if he maintained his refusal he
would be chased away from the chief's jurisdiction. Despite this
promise and threat he did not give his consent to the handing over.
The pressure on him was, however, maintained by another visit from
Maniki. On this occasion he seems to have thrown in his hand and he
responded to the renewed request by saying "since they had
appointed me as the chief's runner they can do as they please with
the child as my leaders but I was not happy about it." After
appellant had already handed over Njani he was promised five head of
cattle by the chief and E200 by Maniki.
Appellant
gave evidence in extenuation of his conduct and testified the he had
lived all his life within the jurisdiction of chief Shongwe and the
latter had threatened to drive him. out if he failed to comply with
his, the chief's, request. He further testified that he was cscared
of the chief whom he regarded as his senior and of whom he was a
subject. He said he had no option but to obey him. He was also scared
to report to the police the fact that he was being threatened by the
chief.
The
trial court held that appellant had failed to discharge the onus
resting upon him to prove the existence of extenuating circumstances.
The fear that he would be expelled from the jurisdiction of the chief
did not, in the opinion of the Court, serve to reduce his moral
blameworthiness since it only served his self-interest.
In
my view this is too harsh a view to take of appellant's conduct. The
appellant appears to be a simple peasant who at no stage in his life
enjoyed the benefit of any formal education.
4
The
bonds of tradition could be expected in such a person powerfully to
affect the course of his conduct. Indeed it is to his credit that he
resisted the pressure brought to bear upon him to the extent that he
did. To expect him to report his chief to the police and inform then
of the latter's plans in regard to the boy would, I think, be flying
in the face of the tradition of loyalty to his chief and would would
have constituted a course of conduct that would have taxed the
emotional resources of a much more sophisticated individual than
appellant was.
That
appellant played no part in the murder of his nephew is also a
factor, which tends towards extenuation. All the above circumstances
qualify to be regarded as "factors not too remotely or too
faintly or indirectly related to the commission of the crime"
with which he was charged, Rex vs FUNDAKUBI 1948 (3) S.A. 810 (A) at
page 818. Collectively regarded they in my view constitute
extenuating circumstances and the Court a quo erred in not treating
then as such. The sentence of death passed by Court is set aside and
a sentence of 8 years imprisonment is substituted therefore..
I
agree
WELSH
J.A.
I
agree
AARON
J.A.
