Court name
High Court of eSwatini
Case number
262 of 2009

R v Shabalala (262 of 2009) [2011] SZHC 167 (15 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 167
Coram
Mabuza, J

 

IN THE HIGH COURT OF SWAZILAND

 

HELD AT MBABANE               CRIM. NO. 262/2009

 

 

In the matter between:

 

 

REX

 

v

 

PETROS MAZEZE SHABALALA

 

                                               

 

CORAM                                   :         Q.M. MABUZA –J

FOR THE CROWN                             :         MR. B. MAGAGULA OF THE

                                                          DIRECTORATE OF PUBLIC

                                                          PROSECUTIONS CHAMBERS

FOR THE ACCUSED                :         MR. J. MAVUSO OF JUSTICE

                                                          MAVUSO & COMPANY

                            

 

 

JUDGMENT  15/6/11

 

 

[1]    The Accused was charged with the crime of Culpable Homicide.  When the charge was put to him he pleaded guilty and the Crown represented by Mr. B. Magagula accepted the plea which was confirmed by his Attorney, Mr. J. Mavuso.

 

[2]    Dr. R.M. Reddy the police pathologist gave evidence in respect of the cause of death which he stated to have been due to traumatic intracranial haemorrhage.  He stated that the fatal injury was inflicted on the deceased’s head and was consistent with having been caused by a blunt object like a fist or a kick.  He handed in the post-mortem report; (Exhibit “A”).

 

[3]    A statement of agreed facts (Exhibit B) was handed in by agreement of the parties and was read into the record.  The statement sets out the events that took place prior to the death of the deceased.

 

[4]    On the 27th July 2009 the Accused went to chop some fire wood for cooking.  He went with two of his children namely the deceased (6 years old) and a younger child.  The children were offspring of himself and his second wife who had recently died during February 2009.

 

[5]    After he had chopped the wood he instructed the two children to help carry some of the wood.  The younger child obliged but the deceased refused.  The deceased had previously refused to be sent on errands by the Accused.

 

[6]    The Accused beat the deceased with a stick and when it broke he grabbed him up side down by one leg and kicked him on his head as it dangled down.  The kicks on the head resulted in injuries being inflicted on the deceased’s forehead, side and back of the head.  The deceased’s teeth also broke.

 

[7]    In the evening the Accused cooked supper and ate with the younger child but the deceased did not eat anything.  After supper they all went to bed but during the night the deceased kept groaning until at about 4.00 a.m. when he became silent altogether.  The Accused lit the room and noted that the deceased had died.  At about 5.00 a.m. he reported the deceased’s death to the neighbours and the matter was ultimately reported to the Bhunya Police.

 

[8]    The Accused admits that the death of the deceased was brought about as a result of his unlawful and negligent conduct.  He admits further that there is no intervening cause of death.

 

[9]    The Accused gave evidence in mitigation and testified that he was born in 1939 and virtually had no education as he schooled up to standard 4 many years ago.  Initially he had two wives but the younger of his wives had died during 2009 leaving him with four small children who included the deceased.  From his senior wife he has nine adult children. At the time of the deceased’s death  his younger wife had recently passed away and he was in deep grief for her.  Because of his grief and his having to mother and father his young children, he could not cope.  The role of mother was alien to him and he had nobody to help ease the pressure from him.  He had  nowhere to place the children either.  He was under tremendous mental and emotional stress.

 

[10]  He stated that he was not formally employed but made a living through cutting firewood and selling it.  He was arrested on the 31st July 2009 and released on bail on the 11th September 2009.  Two of the children were now living with a relative of his late wife at Sigangeni where they were attending school.  The youngest and last born lived with its maternal grandmother.

 

[11]  Even though the Accused cut a sorry and forlorn figure the court must also consider that he took an innocent young life.  Mr. Magagula correctly pointed out that he had a duty to protect the deceased and should have known that his boots were dangerous as a weapon for chastisement.  He could have used another stick after the first one had broken and not used the deceased’s head as a football.  He could have also picked up the wood himself or used other methods of discipline. 

 

[12]  I have also to consider the interests of society in passing sentence.  Society frowns upon parents who mete out excessive corporal punishment upon children.  In this instance the Accused exceeded the bounds of discipline; his chastisement  led to the death of the deceased.

 

[13]  In passing sentence I have taken into account that the Accused caused the death of his own child and this deed will haunt him for the rest of his life.  When the statement of agreed facts was read into the record it did not detail the way in which he had meted out the punishment on the deceased.  However, when he gave evidence in mitigation he was very candid and honest in his response to the questions put to him by me.  He gave a graphic demonstration as to how he had assaulted the deceased.

 

[14]  This case is distinguishable from other cases where attorneys mitigate on behalf of their clients thus depriving the court of observing essential features of the case such as the demeanour of the Accused, his manner of giving evidence and his personal remorse etc.  In this case I was able to observe all these characteristics myself and was able to form my own impressions of the Accused because he gave evidence in mitigation himself.  Unlike in previous cases in present case the pathologist gave evidence in respect of the cause of death and his general findings.

 

[15]  The impression the Accused left the court with was that of deep sorrow, regret and remorse.  The Accused is a first offender and he is now 72 years old, it will serve no purpose for me to give him a long custodial sentence.  He has otherwise brought up eleven (11) children altogether: eight into adulthood without any mishap except for the unfortunate 12th child; the deceased.

 

(a)    The Accused is sentenced to seven (7) years imprisonment without an option of a fine.

 

(b)    Forty three (43) days are hereby deducted from the sentence being the number of days he spent in custody before he was released on bail.

 

(c)    Two years of the sentence is hereby suspended for two years on condition that the Accused is not convicted of a crime of which assault is an element.

 

 

 

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND