Court name
High Court of eSwatini
Case number
225 of 2009

R v Khumalo (225 of 2009) [2011] SZHC 122 (07 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 122












IN
THE HIGH COURT OF SWAZILAND



HELD
AT MBABANE
CASE
NO. 225/09



In
the matter between:







THE
KING







VS







NDABA
KHUMALO







CORAM: SEY,
J



FOR
THE CROWN: MR A. MAKHANYA



FOR
THE ACCUSED: MR. N. MANANA







JUDGMENT
ON SENTENCE



7th
JUNE 2011







SEYJ.



[1]
On the 3
rd
day of June, 2011, this Court convicted the accused of murder with
extenuating circumstances on the grounds that he was drunk when he
committed the offence.















[2]
Once a finding has been made that extenuating circumstances exist,
the Court is at large, without necessarily having to resort to its
constitutional discretion under Section 15 (2) of the Constitution of
Swaziland Act, 2005, to impose any sentence it finds appropriate,
other than one of death.















[3]
In arriving at the appropriate sentence, I have taken into account
all the mitigating circumstances of the accused which said factors
usually influence discretionary sentences. However, I must also not
lose sight of two other applicable factors namely, the gravity of the
crime and the interests of society.







[4]
Ndaba Khumalo, I have carefully considered the mitigating factors put
forward by your defence counsel but I must state that I afford little
weight to your drunkenness as a mitigating factor in the
circumstances of the case.















[5]
In so doing, I place reliance on the guidance given by the Supreme
Court of Swaziland in
Mgubane
Magagula v The King Criminal Appeal No 32/2010
delivered
on the 30
th
day of November 2010. His Lordship
Moore
JA
made
the following pronouncement:



"In
Mbuso Sipho Dlamini v The King Criminal Appeal No. 34/2010
Unreported, I gave guidance, with the concurrence of Ramodibedi CJ
and Ebrahim JA, concerning the weight which must now be afforded by
sentencing judges and magistrates to pleas of voluntary drunkenness
as a mitigating factor:



His
remorse has come at much too late a stage. His consideration of the
dangers inherent in the voluntary and excessive consumption of
alcohol should have been done before he took his first sip. The
subjects of this kingdom must not be made to suffer the loss of their
lives because of persons such as the appellant's continuing abuse of
alcohol, which is a powerful and mind affecting stimulant and
intoxicant. He who continues to abuse alcohol to such an extent that
the control of his voluntary actions is impaired and then commits
serious crimes, must face the full penal consequences of his conduct.
Voluntary drunkenness as a mitigating factor in cases such as this
has lost its efficacy. The judge a quo was fully justified in
affording it but little weight as a mitigating factor in the
circumstances of this case."







[6]
I also have regard to what was said by
Holmes
JA in S
v
Rabie
1975 (4) SA 855 (A) at 862 G
when
he held that:



"Punishment
should fit the criminal as well as the crime, be fair to society and
be blended with a measure of mercy according to the circumstances."







[7]
I must state that your act of murdering the deceased Andile Mncina
was totally reprehensible and unjustified. You simply snuffed out the
life of an innocent little school girl who never knew you and bore
you no grief. You have undoubtedly created a vacuum in the lives of
her family members which will forever remain empty.







[8]
The offence you have committed calls for a very severe sentence which
would curb this type of senseless murder and deter others. In the
circumstance, it is my considered view that a sentence of 18 years
will be appropriate. The said sentence is back dated to the 8/12/08
which is the date when you were deported from South Africa and taken
into lawful pre-trial incarceration in Swaziland. It is so ordered.







M.M.
SEY(MRS)



JUDGE
OF THE HIGH COURT