Court name
High Court of eSwatini
Case number
155 of 2007

R v Gamedze (155 of 2007) [2011] SZHC 99 (06 April 2011);

Law report citations
Media neutral citation
[2011] SZHC 99













IN
THE HIGH COURT OF SWAZILAND



Held
at Mbabane







Criminal
Case No: 155/2007











REX



Versus



DENZEL
DUNGUZELA GAMEDZE







Coram: Hlophe
J.







For
the Crown: Mr. M. Nxumalo







For
the Defendant: Mr. B. J. Simelane







JUDGMENT











[1]
The accused person appeared before me charged with the offence of
murder, it being alleged by the Crown that he, the said accused had,
on the 25
th
May 2007, and at or near Logoba area in the Manzini Region,
unlawfully and intentionally killed one Bongile Jabulile Mabuza and
had thereby committed the crime of murder.



1.1.
I must clarify that this matter having been dealt with as a culpable
homicide, I had, in avoiding delay and anxiety to all the parties
concerned, delivered an ex tempore judgment and indicated that my
reasons would follow. This judgment comprises such reasons.



1.2.
Owing to what transpired in Court when the matter was heard, it is
important for my Judgment to give a background to this matter so as
to put issues in proper







[2]
When the charge was put to the accused person he informed the Court
that he was denying having intentionally killed the accused and said
no more. Owing to the confusing manner of the accused's plea, I had
to ask him about three times on what he meant by saying that he
denied killing the deceased intentionally. Instead of clarifying what
he meant by that he was to inform the Court eventually that his knees
had just become weak and asked that the matter be postponed to some
future date. In fact for this to be put in proper perspective the
following has to be disclosed.











[3]
The accused was represented by Attorney Mr. B. J. Simelane whilst the
Crown was represented by Crown Counsel Mr. M. Nxumalo. I must say
that up to that point the Court had not been informed by defence
Counsel that there was anything wrong healthwise, with the accused.
In fact the Court had already been informed by both Counsels that the
accused person was to plead guilty to the lesser crime of culpable
homicide which was to be accepted by the Crown. The Court had already
been informed that a statement of agreed facts had already been
prepared. In fact the matter had been postponed the previous day for
this purpose. It was for this reason I found it confusing when the
accused person's plea was neither an unequivocal plea of not guilty
nor was it one of guilty to culpable homicide in line with the
information the Court had already received from both Counsel earlier
that day as well as on the previous day when the matter had to be
postponed to enable the Attorneys prepare the statement of agreed
facts.











[4]
Furthermore the allegation by the accused that his knees had just
given in did not make sense given that it had in fact taken him time
to express it after I had repeatedly asked him to explain what he
meant by saying he denied killing the deceased intentionally. It
sounded as an after thought of sorts to me, by the accused to force a
postponement of the matter, particularly because upon noting that he
was not forthcoming, his Attorney Mr. Simelane had asked to assist
and had approached him and had a short discussion with him which I
had allowed. Mr. Simelane, had not on his return informed the Court
of having been informed by the accused of any sudden ill-health or
problem with his knees which I have no doubt he would have done given
his experience. Instead Mr. Simelane informed the Court that there
was nothing wrong with the accused except that it was the manner in
which the accused expressed himself and nothing more. The accused's
subsequent and sudden statement expressing ill-health did no more
than confirm my fears amidst the surprise with which it took all
parties concerned including his own Counsel.











[5]
Even after the intervention by his Attorney, who had a brief
discussion with him, the accused, still maintained his strange plea
and said that he was pleading not guilty to having intentionally
killed the deceased. I sought clarity from him and my intention at
that stage was to enter a plea of not guilty to murder and have the
matter proceed as a trial when the accused indicated, in answering my
question that he was not feeling well and could not talk that day,
which as I have already stated was very strange because he had not
indicated that to his Attorney just then.











[6]
Answering a further probe on what the accused person's problem was,
he clarified to the Court that the problem was not quite with his
speech but with his knees which he said had just given up, whilst his
body was left shaking.











[7]
This shaking body I must say I had not observed. When asked why he
had not informed his Attorney who had approached him to seek clarity
when he had already failed to clarify what exactly he was saying in
his plea between that of not guilty to murder or that of guilty to
culpable homicide, he had not been able to make himself understood.











[8]
I have left out the fact that the matter had initially been given
some three days as trial dates with the previous day to this one
having not been utilised for that purpose because both Counsel had
informed Court they had already agreed on proceeding with the matter
on the basis of culpable homicide after the Crown had indicated it
would accept such a plea when tendered. The matter had therefore been
postponed the previous day to this day so that it could proceed on
those basis which however the equivocal plea by the accused was
hindering.











[9]
I had made up my mind to enter a plea of not guilty to murder so that
a full blown trial be embarked upon when I was urged by both Counsel
to adjourn the matter and afford them an opportunity to discuss it as
well as afford Mr. Simelane an opportunity to take instructions. I
had made it clear at that stage that they should not make it sound
like the accused was being forced to take a particular plea suffice
it to say that there had to be sound reasons for the postponement of
the matter to some other future date particularly because it was not
appropriate to postpone matters for the asking as this tends to lead
to a backlog which the Courts have to fight against.



[10]
I must also clarify that because of the manner in which he handled
himself which sounded consistent with an attempt to evade trial, I
indicated to Counsel that it was my consideration not to extend his
bail. In fact I suspected that he wanted to elope and avoid trial
altogether. I was however clear that if any medical attention would
be required by the accused he would have to be afforded same in
custody. I otherwise granted the adjournment I had been asked to
grant.







[11]
What is important is that the accused person, after this adjournment
indicated that he was pleading guilty to culpable homicide. I had to
enquire from him several times if this plea was being made by him
freely and voluntarily which he confirmed. His Attorney also
clarified that the matter was indeed being proceeded with on the
basis of culpable homicide in keeping with his instructions.
Consequent thereto the Crown read the statement of agreed facts.















[12]
The contents of the said statement were as follows:-















"On
the 25
th
of May 2007 the accused went to Logoba where the deceased was staying
with her sister, PW3. Upon arrival the accused found the deceased
alone. The accused enquired from the deceased the whereabouts of her
sister, who was the accused's girlfriend. The deceased responded by
telling the accused that she, the deceased did not know PW3. When the
accused asked what PW3 said before she left, the deceased responded
by telling the accused as to how many times he should be told.











The
accused waited about one and a half hours in the house and thereafter
asked the deceased to tell him the truth concerning the whereabouts
of PW3 as he, the accused had seen them exchanging bags in town as
the deceased told the accused they were just exchanging bags only.











The
accused asked the deceased why she did not mention that they had
exchanged bags in town at first. The deceased told the accused that
she was called by her sister PW3 to bring her bag and he, accused,
should have asked her sister. The accused then told the deceased that
if she had told him all that at first they would not have gone that
far with the conversation. The deceased told the accused that he was
failing to treat her sister well as he was ill-treating her. The
accused told the deceased that ever-since she came to stay in the
house there was a lot of trouble between the accused and PW3, that is
his girlfriend as the accused would not find PW3 everytime he had
visited PW3.



The
deceased responded in a very disrespectful manner by telling the
accused to sort his problems with PW3. She said,
"Ungangizeki
wena, sewehlulwe nausisi utocaphatana nami" (which means
stop
fucking
me around, uou have failed

mu
sister
and now uou are turning on me.) (or words to that effect).

The deceased told the accused that if she knew she would not have
left her place of employment to live with PW3 and the accused and had
she been able to pay rent in her own house.











The
accused became angry and told the deceased to leave immediately but
the deceased refused and told him to do whatever he wanted to do to
her, that is the deceased. A fight started and the deceased grabbed
the accused's private parts. The accused then took a rope from the
shelf and tied the deceased and tightened it until she became weak.











The
accused realised that the deceased was not breathing anymore, he then
tried to hang her on the roof but he failed as the deceased was
heavy. The accused was trying to make it look like a suicide.











The
accused stayed in the house until morning and thereafter went to
Mqfutseni to collect his tools and went to work. The accused
surrendered himself to the Manzini Police in the company of PW6 Musa
Vilakati on the 1
st
June 2007, and was released after three weeks.











The
accused concedes that there is no
novus
actus interviens

between his unlawful act and the subsequent death of the deceased.
The deceased died as a result of his unlawful actions. The accused
acted negligently when he killed the deceased.











The
following will be handed over as exhibits:- the rope, the post mortem
report, the statement made to the Judicial Officer, the statement
made, agreed and signed by both Counsels and the accused or his
representative on the 12
th
October 2010 at the High Court of Swaziland being a statement read
and understood by the accused and his representative."







[13]
The statement was confirmed by the accused's Attorney as being in
accord with his instructions. Owing to the previous hesitation
exhibited by the accused person I enquired from him personally if he
understood the contents of the statement which he also confirmed
including that same reflected his instructions to his Attorney.











[14]
In line with the established procedure and practice before this Court
which is governed by Section 238 read together with Section 272 of
the Criminal Procedure and Evidence Act 67 of 1938, I found the
accused guilty of culpable homicide on the basis of his plea. In fact
Section 238 (1) of the Criminal Procedure and Evidence Act 67 of 1938
provides as follows:-



"Conviction
of accused person on a plea of guilty or evidence of confession"



"238
(1) If a person arraigned before any Court upon any charge has
pleaded guilty to such charge, or has pleaded guilty to having
committed any offence (of which he might be found guilty on the
indictment or summons) other than the offence with which he is
charged, and the prosecutor has accepted such plea, the Court may, if
it is:-(a) the High Court or a Principal Magistrates Court, and the
accused has pleaded guilty to any offence other than murder, sentence
him for such offence without hearing any evidence."







[15]
On the other hand the relevant portion of Section 272 of the Criminal
Procedure and Evidence Act 67/1938 provides as follows:-



Admissions



"272
(1) In any Criminal Proceedings the accused or his representative in
his presence may admit any fact relevant to the issue and any such
admission shall be sufficient evidence of such fact...."











[16]
I came to the decision to convict the accused on the basis of his
plea of guilty to culpable homicide after having convinced myself
that the agreed facts taken together with the contents of the
post-mortem report and the contents of the confession, disclosed the
offence concerned in keeping with the observations of the Supreme
Court in the case of
Zwelithini
Dlamini v The King Criminal Appeal Case No. 5 of 2008,



where
Zietzman JA stated the following:-











"When
a case has to be decided on a statement of agreed facts, it is
necessary that sufficient particulars
of
the event be included in the statement not only to prove the guilt
of
the accused, but also to enable the Court to determine what will be
an appropriate sentence."











[17]
As these do not appear
ex
facie
the
statement of agreed facts as reproduced above, it is imperative that
I set out what I consider to be the salient features of both the
Post-mortem Report and the Confession.











The
Post-mortem Report as compiled by Dr. Komma Reddy, and handed into
Court by consent, provided the following as having been reported or
noted by the Pathologist on the body of the deceased:-







1.
That she died due to strangulation



2.
There was a contusion of 1 x 1 cms in the middle portion of the nose.



3.
There were contusions of 1 x ^ cms and
Vi
x
Vi
cm
on the left cheek.



4.
There were ligature marks of
V2
cm
width, present around the neck, above the thyroid cartilage, with
point of suspension on the right side of the neck, below the right
eye.



5.
Contusion of 3.5 x 1.5 cms, present in the middle portion of the
right region.











[18]
The confession provided the following which does not appear on the
statement of agreed facts and I believe same was left out by mistake
given that the said confession was itself filed by consent for its
contents to be considered. In my view the contents of the confession
should supersede where the statement of agreed facts is silent
because it is entered to be taken into account as part of the
evidential material. The confession:-



1.
Does not say anything about the accused having been insulted with the
words "
ungangizeki
wena, sewehlulwe ngusisi sewutocaphatana nami" fi.e "stop
fucking

me
around,
you have since failed my sister and you are now mocking me or turning
on me or words to that effect).



2.
The confession also does not mention the grabbing of the accused by
his private parts.



3.
It also does not mention a fight between the two. It does however
mention the offending talk by the deceased which could amount to
provocation.











[19]
I have also observed that the statement of agreed facts and the
confession do not explain the interterm injuries recorded above,
which however I have no doubt were inflicted during the scuffle
between the accused and the deceased.











[20]
Although I have found the accused guilty of culpable homicide on the
basis of his plea, it is important for me to mention the facts of the
matter as indicated above that this is one of the most serious cases
of culpable homicide which is at the most serious end of the scale as
observed by Tebbutt JA in
Musa
Kenneth Nzima v Rex Criminal Appeal Case No. 21 of 2007



at
page 8 when he said the following: -



















"There
are
varying degrees
of
culpability in culpable homicide offences.



This
Court has recognised this and
in
confirming a sentence
of
10 years imprisonment in what it described as an extra ordinarily
serious case
of
culpable
homicide said that the sentence was proper for an offence at the most
serious end
of
the scale
of
such a crime."











[21]
I say this matter is at the most serious end of the scale becase of
the foregoing and the following:-











21.1
The deceased is not shown to have been armed. In fact the number of
the ante mortem injuries observed by the Pathologist confirm that she
was more on the receiving end. I say this further because the accused
did not disclose in his confession or in the statement of agreed
facts where or what injuries he sustained. In fact what the facts of
the matter bring about is that he was angry perhaps because he
thought the deceased influencing his girlfriend badly against
him and the provocative response by the deceased did not help
matters.



21.2.
After having inflicted such an assault on her body as borne out by
the ante mortem injuries, there is no reason why he would have gone
on to strangle her to death with a rope. Such a death should be one
of the most gruesome ones.











[22]
Lastly, I mention that in my view the accused was lucky that the
Crown accepted the Plea of Guilty to culpable homicide which could on
its own have been influenced by a number of factors on the part of
the Crown such as the unavailability of witnesses. It is for this
reason I find it unsafe or not advisable to criticise the handling of
a matter in this manner by the Crown unless I have all the facts at
my avail. It may be that faced with a situation (e.g unavailability
of witnesses) it was safer for it to at least obtain a conviction for
a lesser offence than have an acquittal of the accused.







Sentence







[23]
It was indicated by the Crown that although the accused had an 18
years old assault record such was as good as none because of its age
and he was therefore as good as having no record of previous
convictions. This I have taken into account in the accused person's
favour. This factor I weighed against his current reputed age of 45
years and noted that although he apparently had some assault record,
it was very old to stand, which means that he had been able to
conduct himself well since then until now.











[24]
I further took into account that although the accused had initially
wanted to make it look like the deceased had committed suicide he had
subsequently become remorseful and had handed himself over to the
Police. He also no doubt indicated his remorse by pleading guilty to
the offence of culpable homicide. Although, it is not all the time
when an accused person pleads guilty that he is remorseful as in some
instances he does so because of having no options, I have accepted as
persuaded that in this one the accused pleaded guilty because of
remorse for what he had done.







[25]
This approach by the accused has not only helped the Court conserve
its time, but has also saved the witnesses and the deceased's
relatives from reliving the unpleasant incident and reopening healing
or healed wounds.







[26]
I have also taken into account that unjustified and gruesome as the
deceased's death was, there was an amount of provocation that had
been directed by the deceased to the accused including the fact that
they appear from the facts of the matter to have had a tenuous
relationship.











[27]
I was also urged to blend justice with mercy in the sentence I was
issuing against the accused. I was also asked to give him a sentence
that gives him another chance in life as opposed to breaking him. I
did take these submissions into account.







[28]
I however, had to consider that the accused committed a serious
offence where the life of a 22 years old woman was lost. I have not
been shown that the deceased was armed with anything so as to deserve
to die let alone in the gruesome and painful manner she did. I cannot
accept a real fight would have ensued between the accused a male who
at the time was at the prime of his life and the deceased, a young
five months pregnant woman of 22 years. This to me depicts a
senseless killing of another human being.







[29]
The killing of people, particularly women, by men is on the rise.
This necessitates that an appropriate message is sent out there,
particularly to other would be offenders that such killing is not
acceptable and will be dealt with harshly by the Courts, who can no
longer tolerate it.











[30]
Society expects all its members including women to be protected and
that they must be able to lead a life free from fear of being
assaulted and killed.







[31]
I have mentioned the foregoing being fully aware of the difficulties
brought about by this stage of criminal proceedings to Judicial
Officers. I therefore cautioned myself against striving for severity
just as I tried not to be overly lenient.







[32]
I have in fact tried very hard to maintain the delicate balance I am
required to maintain in terms of the triad which comprises the
interests of society, the offender and the crime itself. I had
cautioned myself against giving too much weight on any of the
competing interests as observed in such cases as
R
v Zinn 1969 (2) SA 537 (A).











[33]
I was also alive to the fact that as I pass the sentence in this
matter same, should take into account the main purpose of punishment
which according to
S
v Rabie 1975 (4) SA 855 (A)
is
to be deterrent, reformative, preventive and retributive. The case of
S
v Khumalo and Others 1984 (3) SA 327 (A)
is
also instructive in this regard.







[34]
It is for this reason that the sentence I gave in this matter, and
notwithstanding the facts exhibiting it as one of the most serious
cases of culpable homicide, I found it appropriate to give the
accused a chance in life after he would have served ;his term by
suspending a portion of it. I also ensured that the sentence takes
into account the fact that the deceased's relatives and society at
large do not find it meaningless so as to lose faith in the Justice
system. I have also tried to ensure that other would-be-offenders are
discouraged from committing the same offence and I had no doubt this
could only be achieved through sending the correct message.







[35]
Consequently it was for taking into account all the foeregoing
factors that I imposed the following sentence which I considered to
be appropriate :-











35.1.
The accused is hereby sentenced to 10 years
imprisonment.



35.2.
Three of the said years will be suspended for a period of 3 years on
condition that the accused is not convicted of an offence that
involves violence to a person of another.



35.3.
The accused was only in custody for a short period said to be 3 weeks
and I therefore could not realistically talk of any backdating,
particularly taking into account that a portion of the sentence was
suspended.















Dated
at Mbabane on this 06
th
day of April 2011.







N.
J. HLophe J



JUDGE