Court name
High Court of eSwatini
Case number
47 of 2018

Rex v Malindzisa (47 of 2018) [2021] SZHC 1 (27 January 2021);

Law report citations
Media neutral citation
[2021] SZHC 1
Coram
Fakudze, J

 

IN THE HIGH COURT OF ESWATINI

                 JUDGMENT

Held at Mbabane       Case No. 47/18

In the matter between:

REX

AND

SIBUSISO SANDILE MALINDZISA

Neutral citation: Rex vs Sibusiso Sandile Malindzisa [47/18 [2021] SZHC 01 (27th January, 2021)

Coram: FAKUDZE, J

Heard:  2nd December 2020

Delivered:  27th January, 2021

 

 

 

SENTENCE

 

[1] The accused has been convicted of the crime of murder.  A determination   must be made whether there are extenuating circumstance or not.

 

EXTENUATION

[2] The applicable test in determining whether there exists extenuating  circumstances or not in any particular matter is whether facts before it in  their cumulative effect probably had a bearing on  the accused’s state of  mind in doing what he did; viz, the court ought not to decide on a single  factor in isolation to the others before making a finding on the matter.

 

[3] In the present case and in as far as extenuating circumstances are concerned,  the parties agree that the accused was relatively of youthful age at the time  of the commission of the offence.  His level of education is also another  consideration.  The fact that he was a farm labourer indicates that he was not  all education.  I therefore rule that there are extenuating circumstances in  this case.

 

SENTENCE

[4] It is trite that courts have been implored to approach the matter of sentencing  with great care.  I must take into account the interests of the individual, the  interests of society and the crime itself.  See Rex V Samkeliso Madati  Tsela  Criminal Case No. 166/2008.

 

[5] Concerning the interests of the accused, I have taken into account the  following:

 (a) The accused is a sole bread winner at home.  Eight (8) people are    dependant on him for survival including his old aged mother; The    mother is also sickly;

 (b) One of the dependents is a school going child whose educational    needs are met by the accused;

 (c) On the issue of the commission of the offence, accused’s counsel    submits that there is evidence that shows that the deceased provoked    the accused.  There were arguments between the two pertaining to the    missing fertilizer.

 (d) The accused is a first offender and relatively young.  He has a bright    future ahead of him;

 (e) The accused is not a sophisticated member of society.

 

[6] As regards the interests of society and the offence itself.  I have taken into  account that:

 (a) The accused has been found guilty of a serious offence of murder;

 (b) The killing of the deceased was brutal as evidenced by the post     mortem report.  The fatal wounds were severe and were as a result of    sharp  and deep cuts to the body.  The most serious ones was on the    head and the hand.

 (c) Although the accused raised the defence of provocation,      evidence tendered by the Crown established that there was no     provocation.

 

[7] The personal circumstances of the accused person, whatever they may be  cannot outweigh the demand that such conduct should be visited with a  harsh and deterring sentence (see Sabelo Kunene v Rex (2016) [2017] (11  October 2017) SZSC page 13 paragraph 24.

 

[8] In imposing a proper sentence, this court takes into account the sentencing  trends by our courts in similar matters as well as the circumstances of the  matter at hand.  Based on the above mentioned considerations I am of the  view that a sentence that fits the accused in light of the seriousness of the  crime of murder and theft vis-à-vis the interests of society is that of twenty  three  (23) years imprisonment without the option of a fine. 

 

 

 

 The sentence shall take into account the period the accused spent in  custody prior to the conclusion of this trial.

 

 

 ______________

      FAKUDZE J.

             JUDGE OF THE HIGH COURT

Rex:        T. Mamba

Accused: S. Mabila