Court name
High Court of eSwatini
Case number
81 of 2010

R v Mtsetfwa (81 of 2010) [2010] SZHC 145 (16 September 2010);

Law report citations
Media neutral citation
[2010] SZHC 145
Coram
Masuku, J

 

IN THE HIGH COURT OF SWAZILAND

HELD AT MBABANE                           CRIM. TRIAL NO. 81/10

In the matter between:

 

THE KING

VERSUS

SANDILE MBONGENI MTSETFWA

 

Dates of trial: 13, 15 July, 2010

Date of judgment:   16 September, 2010

 

Mr. M. Nxumalo for the Crown

Mr. O. Nzima for the Accused

 

JUDGMENT

 

MASUKU J.

 

[1]    The above-named accused person, Sandile Mbongeni Mtsetfwa, stands before me indicted on a single count of murder, it being alleged by the Crown that on or about 7 July, 2009 and at Mpolonjeni area in the Hhohho District, he unlawfully and intentionally killed one Cebile Dlamini.  The accused, upon being required to plead, pleaded not guilty to the offence, thus joining issue with the Crown.

 

[2]    It is fair to say that the facts that need to decided in this matter fall within a very narrow compass. This is so for the reason that most of the facts giving rise to the charges are fairly common cause, or are not seriously contested. I should mention even at this nascent stage that there are matters on which there was, at the end of the evidence, a divergence in some aspects of the versions of the two sets of witnesses. In view of the common cause issues, I shall not, unless I deem it necessary, have to resolve those issues in dispute.

 

        Common Cause Issues

[3]    The accused and the deceased were lovers, who intermittently lived together. The accused was at the time of the occurrence of the offence employed in the Republic of South Africa, in Pretoria, while the deceased lived in the country. On days preceding the fateful day, the accused had visited Swaziland and he and the deceased were in Mpolonjeni. On that day, apparently following a misunderstanding between the two, the accused inflicted stab-wounds on the deceased from which she eventually died.

 

[4]    According to the autopsy report, which was admitted by the consent of the parties, the deceased died due to “heamorrhage as a result of penetrating injuries to the lungs”. The following ante-mortem injuries were observed by the pathologist on the deceased’s cadaver:

(a)    penetrating wounds over the front of the right chest below the clavicular region;

(b)    penetrating wounds over front left chest below clavicular region;

(c)    contused abrasions over the right side of abdomen

(d)    contused abrasion over left side abdomen front area

(e)    cut wound over back right chest middle

(f)     cut wound over left forearm lower third.

 

[5]    As indicated, it is not in dispute that the deceased is dead and that she died as a result of some of the ante-mortem injuries inflicted by the accused on her on the fateful day using the instrumentality of a knife. Furthermore, the identity of the knife by which the deceased’s death was brought about is not disputed.

 

[6]    The only questions requiring an answer are: (i) whether the accused killed the deceased intentionally and (ii) whether there was any justification for the killing, whether in full or partial. These questions, it would seem to me, tend to coalesce. The accused, it would appear from his evidence, contends that he did not intend to kill her, which should be understood in the circumstances to mean that he killed her as a result of an accident. He also appears to contend that he was, to some extent, provoked by the deceased.

 

        Evidence Led by the Prosecution

[7]    In order to return an answer to the above questions, it would be imperative to have regard to the salient portions of the evidence led. In a bid to prove that the accused killed the deceased intentionally, the Crown paraded four witnesses. The first, (PW1), was Magistrate Xolisa Hlathswayo, who is a judicial officer based at the Mbabane Magistrate’s Court.

 

[8]    The upshot of her evidence was that on 9 July, 2009, she recorded a statement from the accused in which he confessed to have stabbed the deceased to death. She further established and was satisfied that the confession was made by him freely and voluntarily without any inducement, pressure having been applied or promises having been made to him. I must mention that this confession statement was admitted by the defence and it accordingly forms part of the record. I may have to have recourse to it in order to draw whatever reliance and assistance I properly may in ultimately deciding on the live issues as foreshadowed in the foregoing paragraphs.

 

[9]    PW2 was May Harriet Fakudze, a resident of Mpolonjeni. She testified that on the day in question, she was at her home. In the afternoon, she heard a voice of a woman shouting for help. Trying to establish where the noise emanated from, she saw the accused dragging the deceased. The former was carrying a knife. It was her evidence that the deceased was shouting saying, “I told you that I don’t want you anymore”. At that point, she saw the accused lifting up the knife and she also saw it descending. This prompted her to call the police on her mobile telephone.

 

[10]  She testified further that she saw some people who were trying to come to the deceased’s rescue but the accused chased them, scaring them away with the knife. At that point, the deceased got hold of the knife and threw it some 8 metres or so away. The accused went to retrieve same whence it had fallen and he came towards the deceased who was next to a water tap. He stabbed her on the left side of her neck, culminating in her falling to the ground. She kicked into the air. At that point, she heard the accused saying, “The dog has died”. He then stabbed her on the back once again and twisted the knife inside her body. Thereafter, he licked both sides of the bloody knife and then drank some water from the tap.

 

[11]  After that, the accused ran away. PW2 continued to call the police to alert them of the tragedy that had occurred. When the police eventually arrived, she narrated to them what had happened. Later, the accused came back to the scene in the company of some members of the community police. The members of the public also congregated in the area. By this time, the accused, who had been under police arrest, was already manacled and was inside the police van. The members of the public then proceeded to yank the accused from the police van and assaulted him severely. He, by a stroke of some luck, managed to make his escape sure and went back into the police van.

 

[12]  In cross-examination, a number of issues were put to this witness. In particular, it was put to PW2 that before the stabbing took place, the deceased had assaulted the accused; that the deceased was drunk; that the deceased had taken the accused amount of E250.00; that she had disappeared the previous day without telling the accused of her whereabouts and that when the accused went looking for her, he found her talking to a man who was a lorry driver next to a river. PW2 protested her innocence of all these allegations put to her. Regarding the one that she had assaulted him, she testified that she did not see this incident.

 

[13]  PW3 was Makhosonkhe Dladla, who described himself as the deceased’s brother, which I understood to be her half-brother. It was his evidence that on the fateful day he was also at Mpolonjeni. That day, the accused came and requested PW3 to accompany him to a Madolo homestead where the deceased was rumoured to be. On arrival there, they learnt that she was at Ntambane River where they indeed found her at a truck which was loading timber. PW3 went to call her and she came to the accused. PW3 remained at the truck.

 

[14]  The deceased later called him and informed him that that the accused was carrying a knife and wanted to stab her with it. It is PW3’s evidence that he admonished the accused dare not to stab or harm her with it. The accused undertook not to do that. The accused then asked the deceased and PW3 to go together with him to PW3’s mother so that they could talk to her regarding their misunderstanding. On arrival, the deceased told her mother that she was no longer interested in a relationship with the accused and that she had told this to a Mr. Madolo.

 

[15]  When they got to the gate, the accused started to pull the deceased by her neck and PW3 intervened by pulling the accused’s hand away from her neck. The accused threatened to stab him. When they had reached home, the accused wanted to stab her within the Skonela yard.  Seeing this, it is PW3’s evidence that he thereupon prevailed on the accused and the deceased to move out of that yard. He then stabbed her on her palm and they went out of the yard. When they moved out of the yard, the accused stabbed the deceased on the left side of the collar bone and also inflicted another wound next to her breast. He was not certain though on which side the latter injury was inflicted.

 

[16]  PW3 continued to testify that the accused went with the deceased next to the tap where he again stabbed her but this time on her back. He thereupon licked the knife and drank some water and chased PW3 and the other people in that area. The accused thereafter waved at PW3 and then walked away and returned as described by PW2 to the scene. I will not repeat this evidence. PW3 testified that the deceased appeared to be inebriated. It was also his evidence that the accused did not tell him the reason why he wanted to stab the deceased.

 

[17]  Though confirming that they went to their aunt’s place, it was PW3’s evidence that they did not speak to her as the accused began to pull the deceased away even before they could engage the aunt in question. PW3 denied that his aunt had chased the two away, telling them as alleged, that they should go away from her home in order to solve their problems. PW3 denied that the deceased had at any time assaulted the accused as had been suggested to PW2. Finally, it was his evidence that the accused had stabbed the deceased six times.

 

[18]  In cross-examination, PW3 testified that at the time of her death, the deceased was 26 years old. The issues put to PW2 regarding the deceased not having slept at home and having taken the accused’s money e.t.c. were also put to PW3 and he stated that he did not have any knowledge of these issues. PW3 admitted that when he went to call the deceased from the river, she voluntarily went to the accused. It was his evidence that as they walked from the truck, the deceased was telling the accused that she had jilted him and it was his evidence that the accused’s disposition changed from that time onwards.

 

[19]  It was suggested to PW3 that the deceased was in her aggressive element on the day in question and PW3 denied knowledge of this. He vehemently denied that when he and the accused arrived at the river, the deceased was engaged in a conversation with the truck driver. It was put to him that the accused did not know where the deceased had spent the previous night and he stated that she had slept at the Skonelas. Finally, it was put to the said witness that the accused did not intend to kill the deceased and he stated that he did not know. This was the extent of PW3’s evidence.

 

[20]  The next witness was 4353 Detective Sergeant Musa Pascal Mabuza. He was the officer who conducted the investigations in this matter and he adduced formal evidence. It was his evidence that he found the accused already in custody. He testified about how he had seized items of clothing from the accused after cautioning him in terms of the Judges’ Rules. He also testified that he retrieved a knife from the accused person having duly cautioned him in accordance with practice. There was nothing of consequence elicited from him in cross-examination. All I may mention is that there was a mistake in his evidence regarding some of the items seized. Nothing turns on the mistakes though as the defence did not take issue therewith.

       

        Close of Case for the Prosecution

[21]  At this juncture, the Crown closed its case and the accused, upon advice, elected to adduce sworn evidence. There was, in view of the admissions made by the defence, no application in terms of section 174 (4) of the Criminal Procedure and Evidence Act, 1938 for the accused’s acquittal and discharge at the end of the prosecution’s case. The accused was accordingly called to his evidence. I presently turn to consider the salient aspects of his evidence.

 

        Defence Evidence

[22]  The accused gave a long and detailed account of the events leading to this unfortunate incident. I will, in an attempt to confine myself to the major issues, avoid chronicling his entire evidence. I will outline the important aspects thereof.

 

[23]  The accused testified that he was born on 12 July, 1989 and that he lived at Nkoyoyo with his mother. He did not know his father. He did not complete even his primary school education because his father, who had been responsible for providing his schooling needs, just disappeared without trace. Regarding the events in question, it was his evidence that he and the deceased had a misunderstanding on the fateful day.

 

[24]  He testified that the deceased had left the house where they both lived on a Sunday afternoon without telling him where she was going. On her return, she started blaming him for not having prepared any food and asked him what he had eaten since morning of that day. The following day, the deceased was still not there and the accused was forced to gain entry into their house through a window because she had gone away with the keys thereto. In addition, she had taken his money amounting to E250.00 from the house without his permission. It was his evidence that this was the money he had placed aside for his transport needs as he had to return to Pretoria where he was employed during the time in question.

 

[25]  His efforts to trace her at her parental home proved futile as her people did not know where she was. He had made an arrangement that members of her family would alert him by a mobile telephone in the event they managed to get in touch with or to see her. By Tuesday, He further testified, she had not returned. This, coupled with her having locked the house and gone with the keys and her further decision to take his money infuriated him. On Tuesday morning, he further testified, he fed his chickens with spoilt a cabbage and he used a kitchen knife to cut up the cabbage. He inadvertently forgot to take the knife back to the house but put it on his side when he left the house.

 

[26]  Since he was not hearing from the deceased family regarding her whereabouts, he decided that he would go there to enquire regarding the latest developments, if any. He was informed that she had been seen at a Madolo homestead. He eventually traced her to the river, where he went in the company of PW3 as earlier recorded. It was his evidence that he found her engaged in a conversation with the driver of a truck that was at the river. When they eventually met, he testified, she was intoxicated. She kept quiet and asked after a few minutes from the accused why he did not greet her. He responded by asking how she expected him to greet her as she had left without saying where she was proceeding to. He also asked if she thought what she had done was appropriate behaviour.

 

[27]  At that point, the deceased saw the knife on his hip and beckoned PW3 to come. She reported to him that the accused was carrying a knife in order to do her harm. It is the accused’s evidence that he informed the deceased that he had taken the knife with him by mistake and had forgotten to leave it at the house. PW3 pleaded with the accused to do her no harm, which he undertook not to. The accused then suggested that they should go to the deceased’s home so that they could speak to her aunt.

 

[28]  On the way, it is his further evidence, he asked her why she had left with the key. She responded by saying that though she had gone with the keys, the accused had alternative places to sleep with his other paramours. On the way, she was busy complaining and laying blame on the accused and the accused made it a point to tell her that he did not attach any significance to what she was saying and that all he wanted was his money so that he could return to Pretoria. In response, the deceased told him that she would never give him the money and that if he wanted it, he should go to his paramours. He protested his ignorance regarding the allegations of infidelity leveled against him by the deceased.

 

[29]  It was the accused’s further evidence that the deceased had in the past assaulted him on occasions, particularly when she had imbibed alcohol. When they arrived at her home, they met her aunt to whom it was reported that they had a misunderstanding hence he had decided that it would be better for them to come to her perchance she would be able to talk some sense into the deceased. The deceased’s aunt tried to talk to the deceased but she would hear nothing of what was being said. In apparent exasperation, the deceased’s aunt decided to ask them to leave her home, stating that violence appeared imminent from the tension that was evident.

 

[30]  As they vacated the yard, the deceased, he testified, slapped her with an open hand. The accused took her hand in his and asked why she was assaulting him and she became aggressive. She took the knife from the accused and threw it away. The accused broke free from her grip and went to collect the knife from whence it had fallen. It is his evidence that having taken the knife, he thought she would be afraid of coming to him but it was not to be. She then charged at him and knowing her propensities i.e. that she would assault him as she had done on previous occasions, he scared her away with the knife but she was accidentally stabbed at that moment.

 

[31]  It was his evidence that by this time, it appeared that she had been stabbed and he had not been aware. She again came forcefully charging at him and she got stabbed the second time and it was then that the accused realized that she had been seriously injured by the knife in his possession. He went and stood in front of her, having realized that he had seriously injured her. He asked if she had realized what she had done; that she had led him into temptation, whereupon she responded by saying that it was at that stage water under the bridge so to speak and that all that the accused could do at that point, would be to bid her farewell. It is his evidence that he then held her close to him, hugged and kissed her.

 

[32]  He walked with her for a short while but she ran out of strength, fell down and collapsed, falling on her face headlong in a sloppy area and thereupon gave up the ghost. He turned her position the other way. It is his evidence that he then turned around and went away. He intended going home to tell them that he had committed a grievous error and had injured somebody. He did not however reach his home as he was intercepted on the way as he was blood-stained. The people who intercepted him brought him back to the scene in a motor vehicle. There he was eventually arrested, beaten by the community members and eventually taken into the custody of the Mbabane police. I need not chronicle the rest of the evidence as it is not critical to the determination of the live issues.

 

[33]  The accused, in cross-examination, largely stuck to his evidence in-chief like a postage stamp to an envelope. It was put to him that the deceased had not at any point assaulted him and that she had never assaulted him even before the day in question but he maintained his evidence. He was asked why he took the knife and went back to the deceased after she had thrown it away. He reasoned that he thought she would be afraid and would not persist in assaulting him as she had apparently intended. He confirmed that she was not carrying any weapon in her hands. He denied that he had chased PW3 away when he tried to rescue his sister.

 

[34]  Asked as to why he did not go to report the misfortune to the deceased’s aunt, the accused testified that he feared that he would be assaulted by the deceased’s relatives. He particularly denied when put to him that he pulled the deceased out of the Skonela homestead with the intention of ending her life. He also denied that he had premeditated the killing when put to him. He further denied that he foresaw that his actions would result in the deceased’s death and further denied uttering the words to the effect that the dog had died. This was the extent of the important aspects of the evidence led.

 

[35]  It is opportune to decide the legal questions posed earlier now that all the evidence has been narrated. The first question is whether there is any credence to the accused’s version that he stabbed the deceased accidentally as he claimed. The answering of this question will obviously have a bearing on whether the Crown has succeeded in proving that the accused killed the deceased intentionally so as find the accused guilty of the crime of murder beyond reasonable doubt.

 

        Accident

[36]  The defence of accident is not unknown to the law although it is not, as far as I know, a common feature in the law in this country. In the Botswana case of The State v Modise Mokwadi Fly CHFT-0000057-07, I had occasion to deal with the defence of accident. I state, however, that the said defence is provided for in the Penal Code, Cap. 08: 01 at section 8 (1). This is not the case in this country. That notwithstanding, I know of no law that precludes this Court from dealing with the defence if properly raised as it appears to be a defence at common law.

 

[37]  In Black’s Law Dictionary, an accidental killing is defined in the following manner: i.e. “an act which is lawful and lawfully done under the reasonable belief that no harm is possible”. In the case of State v Ndiwenyu [1990] B.L.R. 409 at 416, Gyeke-Dako J. in dealing with this defence, cited with approval the works of Stephen, Digest of Criminal Law, 9th ed, where the learned author stated as follows:

 

“… an effect is said to be accidental when the act by which it is caused is not done with the intention of causing it and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it.”

 

 

[38]  In concluding the remarks on the issue, the learned Judge in Ntesang said the following at page 407:

 

“… in my view, therefore, the meaning to be attributed to the expression ‘event occurs by accident’ is a result which is caused by an unforeseeable occurrence.”

 

In summing up the position in the Fly judgment, (op cit) at page 90, [para 169], I said:

 

“I would, however, wish to dissect the statement from Stephen (supra), a little further, by saying that there appears to be two cognate elements to an accident. First, there must be no intention on the part of the doer to obtain the results of his action. In other words, the results of his actions must be unintended by him or her. Second, is the foreseeability test, which necessarily invokes the concept of a reasonable man, i.e. whether a person of reasonable prudence would have foreseen the harm and taken reasonable precautions to guard against it eventuating. It is against both yardsticks that the defence raised by the accused ought to be considered in casu.”

 

I reiterate the above remarks as apposite even in the present case.

 

[39]  In applying the legal approach espoused above, the question to be posed is this: can it be properly and correctly said that the accused’s action of stabbing the deceased the multiple times that he did, as evidenced by the autopsy report, indicate that his actions were lawful and lawfully done under a reasonable belief that no harm was possible? Put differently, can it be said that the fatal stabbing of the deceased by the accused was caused by an unforeseeable occurrence? Furthermore, can it be said that the injuries suffered by the deceased were such that a reasonable man acting prudently would not have prevented them from occurring?

 

[40]  I think not. There are a number of factors that heavily militate against a finding that the deceased died as a result of an event that occurred by accident. The evidence narrated above, clearly defies such a conclusion. In the first place, there is no indication that the stabbing was lawful in the circumstances. The only event in which it would have been lawful for the accused to have inflicted the fatal injuries is if the accused had acted in self-defence. To the extent that such a defence is touted, I would disagree with its application in this case and for reasons that I shall briefly enumerate in due course should it become necessary that I do so.

 

[41]  Furthermore, the autopsy report reflects that there were several wounds found on the deceased’s cadaver which were inflicted by the accused’s knife. These wounds are not disputed by the accused as having been so found nor is it denied that he inflicted the same. The nature, seriousness and number of the stab wounds, particularly considered in appreciation of the position on the deceased’s anatomy where they are located,  clearly show that the death of the deceased could not, regard being had to the definition of accident stated above, conceivably have occurred as a result of an accident. This defence must, in my considered judgment fail and I so hold.

 

[42]  In particular, it is clear that the said wounds would, regard had to, the evidence, their number, seriousness and location, appear to have been caused by deliberate goal-oriented actions of the accused. Secondly, it is clear that a reasonable person who exercised reasonable prudence, would not have caused the said serious injuries so many times and on such sensitive members of the deceased’s anatomy.

 

        Self-defence

[43]  I now turn to the defence of self-defence, which was suggested as being open to the accused in this matter. I have recently had occasion to deal with that defence in the case of R v Bongani Munyamunya Maziya Crim. Case No. 192/09. The first thing to note and which I pointed out in that judgment, is that the defence in question has since the promulgation of the Swaziland Constitution, found a constitutional basis in section 15 (4) thereof. In essence, the said provision states that a person shall not be regarded as having been deprived of life in contravention of the said section if the person dies as a result of force to such an extent as is reasonably justified in the circumstances for the defence of any person from violence.

 

[44]  I proceeded to consider a number of judgments from other jurisdictions in which the whole concept of the defence fell for determination. These included the cases of Magula v The State [2006] 1 B.L.R. 209 (C.A.); Mmoletsi v The State [2007] 2 B.L.R. 708; Palmer v R [1971] 55 Cr. App. R 223. In the Magula case, (supra) Tebbutt J.P. speaking for the majority of the Court, enunciated the applicable principles in the following terms at page 212 of the judgment:

 

“The courts have repeatedly emphasized that in considering whether an accused person has acted in self-defence, the court should not take what has been described as ‘the armchair approach’ to the facts. It is all very well, sitting in the cool, calm atmosphere of the court to opine that the accused should have taken this   step or that when faced with an unlawful attack upon him. The trier of fact must, however, try to place himself in the position of the accused in the circumstances that existed at the time. . . It must also be remembered that it is not necessary that the accused person should have feared for his life. He can act in self-defence if he had a reasonable apprehension that the aggressor intended to inflict grievous harm on him. See S v Jackson 1963 (2) S.A. 626 (A).”

 

[45]    In Mmoletsi, (supra) Dr. Twum J.A. said the following regarding the proper application of this defence:

 

“Under the law of this country, when a person is attacked and fears for his life or that he would suffer grievous bodily harm he may defend himself to the extent necessary to avoid the attack.  In plain language, this means that the attacked person would be entitled to use force to resist the unlawful attack upon him.  It also means that the degree of force employed in repelling the attack should be no more than is reasonably necessary in the circumstances.  The law also means that if killing is perpetrated as a revenge or retaliation for an earlier grievance and there is no question that the would-be victim was facing an emergency out of which he could not avoid serious injury or even death unless he took the action he did, the killing can hardly be described as self-defence.” 

 

 

[46]  It is important to point out as I do that the above judgments are reflective of the interpretation of the Constitution and the Penal Code of the Republic of Botswana. Be that as it may, the Constitution and Penal Code of Botswana do not brook any significant departure from the relevant provisions of our Constitution as abridged above. Furthermore, both of their Lordships served or presently serve in our Supreme Court. I am of the view, in the circumstances that the statements of the law quoted above are accurately reflective of the law of this country as well.

 

[47]  The question crying out for determination at this stage is whether it can be correctly asserted that the accused in this matter acted in self-defence proper regard being had to the nature of the evidence led. I am of the considered opinion that in view of the statements of the law adumbrated above, the accused cannot be properly regarded as having acted in self-defence and the reasons for so holding presently follow.

 

[48]  In the first instance, I will, in the accused’s favour, without necessarily holding that it is so as a matter of fact, proceed on the premise of his evidence that the deceased assaulted him with an open hand and which infuriated him and also caused him to apprehend that the deceased would, as he alleged, assault him as she had done on previous occasions, considering that she was inebriated on that day.  Did those factors, without more, serve to bring the facts of the case within the rubric of the defence in question? My answer is an emphatic No!

 

[49]  Although the deceased was admittedly older than the accused, it is plain that she was a woman and less endowed than the accused in terms of physical strength. Furthermore, the deceased was unarmed. Even if the accused felt threatened by the deceased striking him with an open hand and whatever flashbacks he had about the previous assaults he may have received at the hands of the deceased, there can be no doubt that his action of resorting to use the knife, was in the entire conspectus of facts, not only unnecessary but wholly disproportionate as well. The degree of force allegedly applied by the deceased on the accused did not, on any scale, warrant the resort by the accused to the knife.

 

[50]  The defence of self-defence would be liable to fail for other reasons as well. It is clear that the accused could have been able to leave the deceased if as he perceived, she was in her aggressive element. That would have extinguished any chances of a fight or physical confrontation. The evidence however shows and I find for a fact that it is the accused who dragged the deceased out of the Skonela homestead, thus igniting a physical confrontation. It is clear that he was angry by this time and had been told by her that he had been jilted by her and had disappeared with his money and found days later with a man and in his subjective view, suggesting inappropriate behavior on her part. His actions in the circumstances cannot be properly regarded as having been in self-defence. He, as stated by Twum J.A., would appear to have acted in revenge for an earlier grievance.

 

[51]  I would accordingly hold, as I hereby do, that the accused in the instant matter, did not act in self-defence. This leads me to answer the question whether there was a complete defence to the killing in the negative. I should also hasten to add that given the matrix of the evidence led in its entirety, it cannot be said either that the partial defence of provocation should avail the accused person.

 

[52]  I do admit and hold that from the evidence, the deceased’s actions did serve to provoke the accused. Her leaving the house for days locked without her disclosing her whereabouts; her taking of the accused’s money as alleged by the accused; her angry responses to him when he taxed her about her disappearance; jilting him and striking him with an open hand would, in my view have caused the accused to be provoked. The question is whether the provocation in question would meet muster in so far as the provisions of section 2 as read with section 3 of the Homicide Act, 1959 are concerned, so as to reduce the crime from that of murder to culpable homicide.

 

[53]  Section 2 of the Homicide Act reads as follows:

 

                “(1) A person who –

  1. unlawfully kills another person under circumstances which but for this section would constitute murder; and
  2. does the act which causes death in the heat of passion caused by sudden provocation as defined in section 3 before there is time for his passion to cool;

shall be guilty of culpable homicide.

 

(2) This section shall not apply unless the court is satisfied that the act which causes the death bears reasonable relationship to the provocation.”

 

Section 3 (1) defines provocation as meaning and including any wrongful act or insult of a nature as to be likely, when done or offered to an ordinary person or in the presence of an ordinary person to another who is under his immediate care or to whom he stands in a conjugal, parental, filial or fraternal or in relation of master and servant, to deprive him of the power of self-control and induce him to assault the person by whom such act or insult is done or offered.       

 

[54]  As foreshadowed in paragraph 52 above, I would find that the cumulative effect of the deceased’s actions described in the said paragraph, did serve to provoke the accused within the meaning of the section in question. The main question and to which an answer ought to be returned, is whether the deceased’s actions described above do bear, as required by section 2 (2) above, a reasonable relationship to the accused’s action.

 

[55]  This relationship may be considered, in my considered view, at two different levels.  First is the time lapse, if any, between the provocation and the act which causes death.   In other words, the time lag between the two must be reasonable.  If for instance, a person is sufficiently provoked today but does the act which brings about death the following day, may, in the circumstances, be adjudged not to bear a reasonable relationship because there will have been time for his passion to cool.

 

[56]  The second, it would appear to me, is the relationship between the nature of the provocation and the reaction of the accused thereto which brings about the deceased’s death. In this regard, there must be some element of proportionality between the two. As to the issue of whether there is proportionality, this is a question of fact that has to be decided by the Court in the light of all the evidence before it. In this regard, there would be no proportionality in cases where the provocation is slight but the reaction is severe and completely out of touch therewith.

 

[57]  In the instant case, I am of the considered opinion that considering the cumulative acts of provocation by the deceased mentioned earlier, the accused’s reaction in stabbing the deceased and the numerous times he did and furthermore in the sensitive parts of her body that he did, bring this case out of the realms of reasonable relationship in the second sense referred to above. I am, for the foregoing reasons of the persuasion that the provocation that the accused suffered at the hands of the deceased, does not serve in the circumstances, to reduce the crime from murder to culpable homicide.

 

[58]  There are, as I indicated earlier, issues of divergence of evidence between the Crown’s witnesses and the defence. In this regard, four particular issues spring out. First, PW1 alleged that after stabbing the deceased, the accused uttered words to the effect that “the dog had died”. This was denied by the defence. Also, there was evidence that after stabbing the deceased, the accused proceeded to lick the blood from the knife. This was also vehemently denied by the defence.  Lastly, the question of whether the accused and the deceased saw the deceased’s aunt and whether she refused to entertain their misunderstanding.

 

[59]  Last, the Crown sought to have the Court draw the inference that the accused carried the knife with the clear and settled purpose of ending the deceased’s life with it. I am unable to agree with that argument. I say so for the reason that there is no proper basis on which to reject the accused’s version of how the knife ended up in his possession as palpably false. Evidence suggests that the accused only started getting agitated once he had found the deceased and after she had uttered some unpleasant words to him and told him that she did not want him in her life anymore. There is no suggestion or indication that the accused knew that the deceased would do this beforehand. Furthermore, I do take into account that the accused’s version was that he angered by the deceased’s disappearance and by her taking his money but it is clear from the evidence that when they met for the first time, he did not threaten or cause apprehension by his conduct that he was out on a mission to exterminate her life. I would, for that reason, not entertain the Crown’s entreaties in that regard.

 

[60]  Regarding the accused’s alleged utterances mentioned above, it would seem curious to me that PW1, who was some distance away, was able to hear these yet PW3,who was closer to the action and who was a relative to the deceased, did not mention same in his evidence. Even then, if PW1’s evidence in this regard is to be believed, those utterances would have to be viewed in the context of the entire circumstances of the provocation offered to the accused by the deceased and not from the position or perspective that the accused was happy with the accomplishment of his mission and the manner in which he did it. His subsequent conduct in co-operating with the police and making a confession and the regret reflected in his confession statement, would appear to be at variance with and not support the conclusion that he had finally achieved what he had from very early in the day, namely, the brutal ending of the deceased’s life.

 

[61]  It would appear to me that similar considerations should apply to the accused’s alleged licking of the knife. This, if it happened, and I make no firm conclusion in that regard, would be explained by the seething anger the accused was operating under and as a result of the cumulative acts of provocation by the deceased as enumerated earlier in the judgment. That too should not, in my considered view, be seen as being the result of the accused, sealing off his mission with a sign of machismo and licking the victim’s blood as a toast in satisfaction for a job well done.

 

[62]  In all the circumstances of the case, I come to what I consider the inexorable conclusion that the accused is guilty of the crime of murder. I find for a fact that it was his unlawful actions that brought about the death of his girlfriend. I also find that he had no legal justification in full or otherwise for doing what he did. It is also my finding that in view of the weapon; the number of stab wounds he inflicted on the deceased; their seriousness and the places where some of them were found on the deceased’s cadaver, the ineluctable conclusion is that he at the least foresaw the prospect of harm but was nonetheless reckless as to whether death did or did not occur. He is therefore guilty of murder and legal intention i.e. dolus eventualis is present.

        See S v De Bruyn and Another 1968 (4) SA 498 (A) 510.

[63]  In the premises, the indubitable conclusion is that the accused is hereby adjudged guilty of the crime of murder wherewith he was charged. I accordingly return that certitude of guilty to murder.

 

JUDGMENT ON EXTENUATION

 

[64]  What are extenuating circumstances? What I consider to be the most classical definition of extenuating circumstances, fell from the lips of Holmes J.A. in the celebrated case of S v Letsolo 1970 (3) S.A. 476 A.D. at 476 F-H, where the legendary Judge of Appeal said:-

 

“Extenuating circumstances have more than once been defined by this Court as any facts bearing on the commission of the crime which reduce the moral blameworthiness of the accused, as distinct from his legal culpability.  In this regard the trial Court has to consider:-

 

  1. whether there are any facts which might be relevant to extenuation such as immaturity, intoxication or provocation (the list is not exhaustive);
  2. whether such facts, in their cumulative effect, probably had a bearing on the accused’s state of mind in doing what he did;
  3. whether such bearing was sufficiently appreciable to abate the moral blameworthiness of the accused in doing what he did.

 

In deciding (c) the trial Court exercises a moral judgment.  If the answer is yes, it expresses its opinion that there are extenuating circumstances.”

 

 

[66]  In the Botswana Court of Appeal case of Fly v The State (CLCLB-099-08) [2010] BWCA, at paragraph 35, Dr. Twum J.A. added a further factor which may be considered as extenuating.  The learned Judge of Appeal said:

 

“Low education, coupled with a rustic background may do!.”

 

 

[67]  In yet another Botswana Court of Appeal case of Tsobane v The State, the Court said at page 20-21 of the judgment:-

 

“In conducting its enquiry, the court must do so with diligence and an anxiously enquiring mind…  The Court must in its enquiry, as set out above, consider and weigh all the features of the case – both extenuating and aggravating – and then make a moral or value judgment as to whether extenuating circumstances exist or not…  Should the court be in doubt as to whether such circumstances exist or not and such doubt is reasonable and not the doubt of a weak or ‘vacillating mind’ it should give the benefit of the doubt to the accused.”

 

 

 

[68]  The above cases are generally accurately reflective of the position in this jurisdiction as well, save the Constitutional paradigm shift ushered in this country by section 15 (2) of the Constitution, which provides that this Court is not obliged to hand down a death sentence in every case.  This is so in my view even where there are no extenuating circumstances and that in that regard, the Court exercises a discretion.  See in this regard the judgment of this Court in R v Celani Maponi Ngubane Criminal Case No.42/2002. There is in my view one other important point to be made and I do so presently.

 

[69]  Whatever the weight of judicial authority may have been previously, the Court of Appeal of this Kingdom stated unambiguously and with finality in Daniel Dlamini v Rex Appeal Case No. 11/98 that no onus rests on the accused to prove the existence of extenuating circumstances.  That Court correctly in my view, followed the Botswana Court of Appeal judgment of Kelaletswe and Another v The State [1995] B.L.R. 100 (C.A.)

 

[70]  In the Kelatetswe case (supra), the Botswana Court of Appeal pronounced the proper approach to the question of extenuating circumstance in the following language at page 124 A-C:-

 

“It seems to us that there is therefore an over-riding responsibility on the Court and its officers-Counsel-to ensure that the second phase of the enquiry as to the presence or absence of extenuating circumstances-is conducted with diligence and with an anxiously enquiring mind.  The purpose of the enquiry is inter alia to probe into whether or not any factor is present that can be considered to extenuate an accused’s guilt within the context and meaning described above…when all the evidence is in, the Court is obliged to evaluate the testimony and submissions before it, consider and weigh all the features of the case, both extenuating and aggravating…This would include evidence tendered during the second phase of the enquiry.  It will then make its ‘value or moral judgment”.

 

       

 

[71]  Turning to the instant case, it is clear that when this offence was committed, the accused was about 20 years old.  That being the case, there can be no doubt that as a result of youthfulness, he acted immaturely in stabbing the deceased and eventually bringing her life to a painful end.  Furthermore, it is clear from the judgment on conviction that the deceased had provoked the accused in the various manners set out in paragraph [52] of the main judgment.  

Furthermore, with regard to the excerpt from the Fly judgment quoted above, it is in my view clear from the evidence that the accused was also afflicted by law education, having not gone beyond the third grade.  His encounter with the class room was brief indeed. 

 

[72]  That being the case, I am of the considered opinion that extenuating circumstances, being youth, immaturity, law education and provocation are extant.  I pronounce this opinion as required by section 295 (1) of the Criminal Procedure and Evidence Act, 1938, as amended.

 

[73]  In the circumstances, it is my considered view that the Court is at large, even without having to consider the constitutional discretion reposed in it by the Constitution, to pass a sentence on the accused person other than the death sentence.  I presently proceed to deal with the question of sentence.

 

JUDGMENT ON SENTENCE

 

[74]  Sandile Mbongeni Mtsetfwa, you have, notwithstanding your plea of not guilty, been convicted of the offence of murder.  The stage has now been set for this Court to impose upon you what it considers to be a condign sentence.  The sentence will, as is common practice, take into account the seriousness of the offence, the interests of the society and your own personal interests and peculiar circumstances.

 

[75]  Putting the above interests into the balance sometimes constitutes a vexing and demanding task for the reason that the three components necessary for arrival at the appropriate sentence pull in different directions.  This is by no means an easy feat.  No wonder Leon J.P. said the following in Enock Mabuyakhulu and Three Others v Rex Criminal Appeal No.24/2000 at page 10 of the cyclostyled judgment:-

 

“Sentencing an accused person is not exact science but the Court must do its best to balance the various and sometimes competing considerations of the crime, the criminal and the interests of society.”

 

 

[76]  In the appeal of Chicco Manyanya Iddi and Two Others v Rex Criminal Appeals No. 03, 09 and 10/2010, Moore J.A. stipulated in clear terms what the responsibility of a trial Court at this closing stage of the trial is.  At page 27 – 28 [para 45 – 46] of the cyclostyled judgment, the learned Judge of Appeal said:-

 

                “A sentencer must consider:

  1. The penalties and other forms of treatment

prescribed by the legislature

  1. The circumstances of the case
  2. The circumstances of the offender, and
  3. The interests of the society at large.

 

Under the above broad headings the court must also consider such factors inter alia as:

 

  1. the evidence in mitigation
  2. the effect of the offence upon the victim and the community
  3. whether the offender had made reparation or has compensated the victim
  4. the effect which the sentence my have upon continuing relationships between the offender and the victim e.g. in cases of domestic violence
  5. the prevalence of the offence at the time of its commission
  6. the potential for inflicting harm upon the innocent and the vulnerable
  7. its potential for undermining the integrity of the society and its public officials”.

 

I will, from the array of factors outlined by the learned Judge of Appeal, consider those factors that are relevant to the present enquiry and will apply same in a quest to determine what is your just dessert in the circumstances.

 

[77]  I shall commence with factors that weigh in your favour.  First, I will consider that you are a first offender with no previous record of a conviction.  Second, I will consider your youthful age at the time of the commission of this offence and the effect immaturity, as a result of your age may have had a role in you committing this dastardly crime.  Third, I shall consider the fact that you co-operated with the police and proceeded to record a confession statement before a Judicial Officer.

 

[78]  Also falling for consideration is the fact that the deceased had also provoked you in respect of her behaviour and some of the words she uttered to you.  This, still does not serve to justify your violent conduct.  Lastly, I will also consider that this offence does not appear to have been pre-meditated.  Your attorney has also conveyed to the Court on your instructions that you are very sorry for what you did and that you have learnt your lesson from the deceased’s death.

 

[79]  Having had regard to the foregoing, one thing remains clear- this is a very serious offence which was perpetrated in a brutal manner and brought about by the use of a dangerous weapon.  Any offence, particularly one which results in the death of the victim is on any scale serious and one generally warranting the retributive and deterrent aspects of criminal punishment to be augmented.  The Court should, in its sentence, clearly record its firm commitment to the principle of the sanctity of life.

 

[80]  What is particularly disturbing is the ubiquity of such offences in our society where men kill their loved ones.  Just in the last session alone, more than 90% of the criminal trials I dealt with involved the killing of women by their lovers.  Less than a month ago, I tried a somewhat similar case of R v Mfanyana Ngudze Simelane Criminal Trial No. 207/09 where in a drunken state two lovers fought resulting in the woman’s death.

 

[81]  Concerned by the prevalence of such offences in our society, I was constrained to remark as follows at page 16 [para 25 and 26]:-

 

“Too many women in this country are killed by the very hands of men who profess to love them.  This is a paradox and a contradiction.  A strong and constant message must be sent to the men folk that women, like men, are equal bearers of rights, some of which are enshrined in the Constitution of this Kingdom.  They are not mere chattels or second-class citizens, who may be abused, beaten, killed and maimed with impunity.

 

Men’s physical strength must not be abused by them flexing their muscles at defenceless women at will.  Men who engage in such conduct against women are cowards!  Real men report any misunderstandings they may have with their loved ones at numerous channels available at the family and social levels.  Real men avoid taking the law into their own hands.  It is in this wise that I make a clarion call upon our society to treat and regard men who do abuse their loved ones with great opprobrium.”

 

 

I reiterate these sentiments.  It is high time that homes cease being boxing stables, with women serving as punching bags and worse, homes becoming killing fields.

 

[82]  Understandably perturbed at the high and yet rising loss of life as a result of homicide cases in the Republic of Botswana, Dr. Twum J.A. made the following apposite and lapidary remarks in Gaonakala v The State Criminal Appeal No. CLCLAB – 052-06 at page 13:-

 

“The greatest menace to our society is the degree of permissiveness which pervades every facet of our lives.  The fundamental freedoms enshrined in our constitutions will be meaningless if there are no human beings to enjoy them.  In my view, the element of deterrence is one of (sic) important factors to be taken into account when determining an appropriate sentence.  Limbs may be rehabilitated and bones may be reset but death is too finite!  The Courts must not relent in their determination to use the machinery of the law to protect life.”

         

[83]  As I close, I also have to caution myself against an ever-present urge in such cases, to approach sentencing in an angry and venomous spirit on account of the sheer brutality of the offence.  Mercy, as it has always been said, is a concomitant of justice.  See S v Rabie 1975 (4) SA (A) 862 at 866 B.  I will also consider that the fact the deceased, your lover, died at your hands, will constitute an Albatross on your conscience, occasioning mental anguish, thereby constituting some sentence of its own.

[84]  Concerned at the lack of uniformity in sentencing of accused persons in respect of the so-called crimes of passion and of which the present one is, the Botswana Court of Appeal set out some sentencing guidelines which would, in my view redound to uniformity and a certain degree of consistency.  I say a “certain degree” because no two cases can be the same in every respect.  In this regard, in Ntesang v State [2007] I B.L.R. 387, Lord Coulsfield J.A. said:-

 

“One of the fundamental principles of justice in sentencing is that the court should strive to impose the right sentence for the particular circumstances of the case.  On the other hand, it has always been recognized that it is salutary for the courts to aim at a measure of uniformity in sentencing, whenever this can reasonably be done.  There is, inevitably, a degree of tension between these principles, and it is the duty of the court to try to reach a just sentence by giving each the weight which seems proper in the particular case.  In a case of this kind, the factors which are likely to weigh most heavily with the court are, on the one hand, the vital need to protect the lives of members of society, and particularly women, so eloquently expressed by the judge in the present case, and, on the other the natural impulse to show mercy as is possible to a young person who has committed a crime, albeit a heinous one, under extreme emotional pressure.  It is obvious, from the sentences passed in the cases mentioned above, that different people can reach quite different results in balancing these factors.  It does seem to me, however, that sentences of 12 years and 25 years must represent extremes beyond which a reasonable person could not possibly go in a case of this kind.  In Philaye v The State (above) Akiwumi J.A. remarked that this Court had supported sentences of about 15 years and rejected a submission that 18 years would have been appropriate.  It has not been the practice, as I understand the position, for this Court to set out guidelines for proper sentencing, as is done in some other jurisdictions, and the determination of the proper sentence is a matter for the individual judge.  I think, however, that, looking to the decision in Philaye together with the cases which have come before us, it would be said that any judge who has to deal with a case of this kind would do well to start by thinking of a sentence in the region of 15 to 17 years, subject, of course to adjustment upwards or downwards, in the light of any particularly significant circumstances in the case before him.”

 

       

The decision by the learned Judge of Appeal would readily commend itself to me and would serve to offer guidance in the sentencing regime involving matters such as the present.  I accordingly adopt His Lordship’s reasoning.

 

 

 [85]In the light of the issues mentioned earlier, including the provocation, youthfulness; the pressure brought to bear upon you before the commission of this offence and the fact that you are a first offender, rehabilitation should be given due weight as well.  In the circumstances, I am of the view that a sentence that fits you, the seriousness of the crime and the interests of the society is the following:-

 

You are hereby sentenced to twelve (12) years’ imprisonment, which sentence be and is hereby back-dated to 7 July, 2009, being the date of your incarceration.

 

DELIVERED IN OPEN COURT IN MBABANE ON THIS THE 17TH DAY OF SEPTEMBER, 2010.

 

 

 

________________________

T.S. MASUKU

JUSTICE OF THE HIGH COURT

 

 

Director of Pubic Prosecutions for the Crown

Messrs. Attorneys Nzima and Associates for the Accused