Court name
High Court of eSwatini
Case number
25 of 2010

R v Mazibuko and Another (25 of 2010) [2011] SZHC 97 (05 April 2011);

Law report citations
Media neutral citation
[2011] SZHC 97













IN
THE HIGH COURT OF SWAZILAND











CASE
No. 25/10



HELD
AT MBABANE











IN
THE MATTER BETWEEN:















SIBONISO
MAZIBUKO



SIYABONGA
SIERA MOTSA



VS











THE
KING







CORAM



Hlophe,
J







For
Crown
Mr.
M. Nxumalo







For
Defence
Mr.
B.J. Simelane











JUDGMENT
ON THE EXISTENCE OR OTHERWISE OF EXTENUATING
CIRCUMSTANCES AND SENTENCING











1.
On the 24
th
February 2010, I handed down a judgment in this matter wherein I
found the two above accused persons guilty of murder and robbery.







2.
Following subsequent addresses or submissions by both counsel, I came
to the conclusion that on the question of the existence or otherwise
of extenuating circumstances, there were such circumstances. I by and
large agreed with the submission by Mr. Simelane for the accused
persons, that extenuation in the matter could be found from the fact
that the accused persons were 16 and 17 years respectively which
brought about the legally recognized extenuating circumstances called
youthfulness and immaturity. I also found that over and above these
circumstances there was also that they were actually found guilty of
murder on the basis of common purposes which indirectly means that
their degree of participation was not as high as that of the fourth
accused person and the fact that evidence does not therefore
establish their intention as
dolus
directus
but
clearly as
dolus
eventualis.







3. In
R
vs Hugo 1940

WLD
285
at 286
,
Schreiner J
(as
he then was) attempted to define extenuating circumstances by relying
on the dictionary definition of same which says that it is
"
circumstances
which lessen the seeming magnitude of an offence which tend to
diminish culpability
".
The said Learned Judge however was quick to argue that such a
definition was not very helpful because for one to consider a
circumstance as having the effect of lessening culpability, one must
know what the ordinary degree of culpability is. The Learned Judge
further observed the fact that simply because one can imagine worse
or diabolical murders than the one under consideration does not or
would not make one conclude that extenuating circumstances are
present.







4. In
my view the most helpful definition was that advanced by
Lansdown
JP
in
R
vs Biyana 1938 EDL 310

who
said that,



"An
extenuating circumstance...is a fact associated with the crime which
serves in the minds of reasonable men to diminish, morally albeit not
legally, the degree of the prisoner's guilt
."



5. In
S
vs Letsalo 1970 (3) SA 476 (AD) at 476 G-H
,
Holmes JA
stated
the following:-



"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 a trial court has to consider-



(a)
Whether there are any facts which might be relevant to extenuation,
such as immaturity, intoxication or provocation (the list is not
exhaustive);



(b)
Whether
such facts, in their cumulative effect, probably had a bearing in the
accused's state of mind in doing what he did;



(c)
Whether such bearing was sufficiently appreciable to abate the moral
blameworthiness of the accused in doing what he did.



6. I
have no doubt that the accused persons in this matter had in their
favour certain facts which lessened their moral blameworthiness on
the basis of their youthfulness for in my view it would take an
immature person to allow himself to be directed to commit serious
crimes as those the accused are shown to have been directed to commit
by the fourth accused who appeared an accomplished criminal and
eventually escaped from lawful custody. The absence of factors
justifying a finding of
dolus
directus
only
puts the cumulative effect of the factors lessening the moral
blameworthiness of the accused in this matter beyond doubt. According
to
P.M.
Hunt,
The
South African Criminal Law and Procedure Juta and Company, 1982

at
pages 384 and 385 respectively, absence of factor establishing
dolus
directus
and
the youthfulness of an accused persons are examples of extenuating
circumstance.







7.
These factors were well established herein and I have no doubt they
had a bearing on the accused persons' state of mind at the commission
of the crime.







8.
I have therefore come to the conclusion that there were extenuating
circumstances in this matter which lessened the blameworthiness of
the accused. I can only add by way of emphasis that it was in fact
mere consensus that extenuating circumstances did exist herein.



Sentence:



9. As
concerns the issue of sentencing I must commence by thanking both
counsel for their invaluable assistance in the submissions they made
including the authorities they referred me to.







10.
By way of comment, I must say that this stage is difficult in any
criminal trial because the Judicial Officer is required to balance
three competing interests which are the interests of the offender,
those of the community or society as well as the crime itself. These
competing interests are in law called a triad.







11.
The idea behind sentencing is that none of the foregoing interests
should be given more and or undue consideration over the others. It
is for this reason that in a number of cases such as
R
vs Zinn 1969 (2) SA 537 (A)

sentencing
should not be approached in anger nor should the sentencing court
have misplaced pity. In fact the authorities concerned talk of the
sentencing court having to maintain a delicate balance between the
said competing interests. This is what I set out to achieve in the
sentence I meted out against the accused persons in this matter.







12.
As concerns the interests of the accused persons I was informed,
without it being disputed, that both of them were 16 and 17 years of
age respectively at the time of the commission of the offence. This
it was submitted means that the court has to be merciful to them from
the point of view of their having been youthful and immature and
therefore impressionable at the time, as well as the fact that they
still have a long life ahead and could therefore reform and become
better citizens in future. The thrust of the argument being that this
court should give them a sentence that gives them a chance in life.
This I must say I did take into account and construed it in the
accused persons' favour.







13.
I was further urged to take into account, and I did in the sentence I
pronounced, the fact that both accused persons were first offenders
who had been good all the years of their lives until the day they
committed the offences forming the subject matter of these
proceedings.







14.
I also took into account the fact that their degree of participation
in the murder offence in particular was not as deep as that of the
fourth accused person who rendered the fatal blow. In short, I took
into account that their liability for the crime of murder lied more
on the doctrine of common purpose as in my view they had, by being
armed and setting out to rob, foreseen that such weapons could be
used, even with fatal consequences should there be resistance thereto
but carried on or persisted to associate themselves with the plan
without caring or with recklessness whether or not such consequences
do result.







15.
I was further urged to take into account, and I did, the fact that
the crimes for which the accused persons were convicted of were not
pre-planned but same arose at the spur of the moment with the accused
persons trying to take what they considered to be a chance. This
consideration and the others raised above made me consider that the
sentence I give them should not be one that breaks them but one that
reforms them. This consideration however had to be taken in context
which is what I tried to do.







16.
Whilst I had to consider the foregoing, particularly those in the
accused persons' favour, I did not have to loose sight of the fact
that he accused persons had been found guilty of a serious offence.
Society requires to be protected from people like the accused persons
who would want to keep them in perpetual fear. This expectation
therefore requires that such people be kept away for a long time.







17.
Besides being serious, the offences concerned are prevalent as there
is hardly a week that ends without a robbery or murder being reported
in the country. In such circumstances a deterrent sentence becomes a
must for the courts to give so that a proper message is sent out
there to other would be offenders.







18.
The accused persons did not show any remorse but instead sought to
maintain their stance of dissociating themselves from the crime even
after overwhelming evidence had been availed.







19.
I further considered the fact that the deceased had not provoked the
accused persons in anyway. He was only unfortunate to have his car
develop mechanical problems at that place and time.







20.
Although each matter has to turn on its own circumstances, I note
that a murder arising in the course of a robbery has always been
treated seriously by our courts. See in this regard
Rex
vs Maponi Celani Ngubane and Others Criminal Trial No.46/2002

where
the accused who killed the deceased in the course of a robbery was
sentenced to a life imprisonment. I could not however give a similar
sentence taking into account the age of the accused persons at the
time of the commission of the crime as well as their degree of
participation. On the sentences for murder as a serious offence, see
also such cases as
Rex
vs Dumsani Fakudze Appeal Case No.9/2000
and
Rex
vs

Khanyakwezwe
Dludlu
High Court Case No.6/2008
.



21.
Similarly on the robbery counts I considered previous sentences as
can be seen in previous judgments where sentences often range between
6 and 10 years in serious robbery cases like the present. See in this
regard such cases as
Rex
vs Maponi Celani Ngubane
[supra).
Rex
vs Msibi Cobra and 4 Others High Court Case No.66/1990
,
as
well as
Rex
vs Mthembu Richard and Others High Court Case No.88/1990
.







22.
As the offences were committed as part of a single transaction, I
ordered that the sentences imposed on the accused persons run
concurrently. Again taking into account the age of the accused
persons at the time, including the submission by the crown that they
were first offenders, I ordered as well that their sentences be
backdated to the day of their arrest.







23.
By way of summary this is the sentence I imposed on the accused
persons:-











1.
On
Count One
:-



Both
accused are sentenced to fourteen (14) years imprisonment.



1.
On
Count Two
:-











Both
accused (1 & 3) are sentenced to seven (7) years imprisonment.



3. The
sentences aforesaid are to run concurrently.



4. Both
sentences are backdated to take effect from the dates of their
arrests which are respectively the 9
th
and 8
th
January 2008.











Dated
at Mbabane on this the ..5th...day of April 2011.











N.J.
HLOPHE



JUDGE
OF THE HIGH COURT