Court name
High Court of eSwatini
Case number
195 of 2005

R v Khumalo (195 of 2005) [2011] SZHC 123 (08 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 123



Case No. 195/05

the matter between





Mamba J

Mr. M. Nxumalo

Mr. M. Dlamini

and Delivered:
June, 2011

on Extenuation, Mitigation and Sentence

Mr Khumalo, upon your conviction for murder on 28 April 2011, your
counsel successfully applied for a postponement till today in order
for him to have time in preparing to assist the court on whether or
not extenuating circumstances do exist in your case. In view of the
importance of the pending inquiry -on extenuation - and the fact that
the court was to be on recess for the whole month of May, I allowed
the application and the matter was postponed to today.

Extenuating circumstances have been described as those factors that
are not too remotely connected with the commission of the offence and
have a mitigating bearing on your moral blameworthiness. In other
words, they reduce or abate your moral blameworthiness; leaving your
legal guilt or liability intact. See R v ZABINE MKHOMBENI DLAMINI,
1970-1976 SLR 440 at 441E-H.

You have given evidence on oath. Three factors in that evidence are
relevant in this inquiry namely : (a) your age, (b) your intoxication
and (c) your reason for killing the deceased, your erstwhile friend
and confidant. It is of course trite that you bear no burden or onus
to satisfy this court on the existence or otherwise of extenuating
circumstances in this case. The duty lies with me. In doing so, I am
not restricted to or bound by the evidence that you have just led,
but I have to consider all the evidence that is before me in this
case. See DANIEL MBUDLANE DLAMINI v REX (Court of Appeal 11/1998,
MPOSTOLI ZAZA SIMELANE v REX High Court Cr. Appeal 25/2008, both
judgments yet unreported. However, in considering your evidence, I do
not think that I am entitled to accept all and every bit of what you
have said. This is also true in respect of the issues in mitigation
which is the next step after this enquiry. I am mindful of the recent
judgment of our Supreme Court in SITHEMBISO SHONGWE v REX, appeal
case number 21/2010 delivered on 31 May 2011, where Justice Farlam JA
with whom Dr. S. Twum JA concurred, stated obiter that " is
not permissible to have regard to what was said by the appellant in
his plea in mitigation in the High Court. In this regard I agree with
ratio decidendi
of the decision of the South
African Appellate Division in S v MOOI and Another, 1990(1) SACR 592
(A) in which it was held at 61 OH that

given in extenuation can not at any stage be relied upon to set
aside, vary or substantiate the preceding finding on the guilt of a
person on a murder charge. This conclusion, one need hardly add, does
not affect the right to apply to lead further evidence..."
Whilst this dictum refers to a court of appeal, it applies with equal
force to a court of first instance.

am therefore entitled to take into account or accept your evidence
led in extenuation or mitigation only insofar as it is consistent
with the findings of fact I have already made in rendering the
verdict. Those findings remain and may not be disturbed by your
evidence at this stage.

The evidence in this case is that at the time of the commission of
this offence you were in your early twenties having been born around
1981. This means that you were about 24 years old at the time of the
commission of the offence in 2005. I note that in your evidence today
you have said you were about 21 years old at the time. I do not think
a firm finding on this issue is essential for purposes of this
enquiry. Whilst I cannot say that you were a baby at 24 years, I am
certain that you could properly be described as youthful.

There is also the unchallenged evidence, that you had taken some
intoxicating liquor in the form of castelo wine at the time of the
commission of this offence and you were intoxicated. I accept that.
I, however, reject your evidence as false that you killed the
deceased after he had attacked you with a knife. The findings of this
court is that you killed him in order to silence him from exposing
your identity and criminal past. Your initial version of course was a
complete or total denial of having killed the deceased. Your
suggestion that you acted in self-defence is clearly a lie and an
after thought and is hereby rejected as it is inconsistent with the
findings of fact this court has already made.

I have referred above to the reason why you killed the deceased. You
perceived him and his new-found friends as a threat to your safety.
Whilst there was no evidence that the deceased intended to expose
your identity and past life, you honestly, even if mistakenly,
believed he would do so. Based on this belief, you decided to
eliminate him to save yourself. You acted on your inherent animal
instinct of self-preservation.

Not without any reservation, I am of the view that your youthfulness,
intoxication and reason or motive for killing the deceased, taken and
considered cumulatively do constitute extenuating circumstances in
this case. Each of these facts taken individually and separately do
not constitute such circumstances though.

In mitigation of sentence I take in your favour the following:

  1. Your

  2. intoxication;

  3. That
    the deceased was once your friend. His death will always, trusting
    you have a conscience, forever haunt you-that you killed someone who
    was once close to you;

  4. Your
    personal and family circumstances which your counsel has urged me to
    consider and the interests of justice as a whole. That, however,
    must be taken and contrasted and compared with the following.

The heinousness or brutality of
the offence you committed. You killed the deceased by striking him on
the head with an axe more than once.

Your motive for killing him. You
wanted to keep a close and tight lid on your identity and criminal
past in South Africa. But there was no evidence that the deceased
wanted to expose this. You acted on your own

After murdering the deceased you
wrapped his corpse in a blanket and carried it in a wheelbarrow and
hid it away from his house in an attempt to distance yourself from
his murder. The corpse was clad only in what was described in
evidence as a BVD - not a Bovine Viral Disease or Boy's Ventilated
Diapers, but a pair of men's trunk in the nature of a Boxer brief
that derives its name from its manufacturers; Bradley Voorhees and
Day. This court cannot ignore that after murdering the deceased you
looted his belongings and gave one of his pair of trousers to Wethu
as a gift. All your actions were heartless and savage.

Your case cries out for a considerable term of imprisonment and
having considered the nature of the offence, the interests _ of
society and justice and your personal circumstances, I am of the view
that a term of 15 years of imprisonment will meet the justice of this
case. This sentence is backdated to the 18
March, 2005; that
being the date on which you were arrested and taken into detention.