Court name
Supreme Court of eSwatini
Case number
11 of 1998

Dlamini v Rex (11 of 1998) [1998] SZSC 30 (29 September 1998);

Law report citations
Media neutral citation
[1998] SZSC 30









IN
THE COURT OF APPEAL OF SWAZILAND


APPEAL
CASE NO. 11/98


In
the matter between:


DANIEL
DLAMINI


VS


REX


CORAM :
R.N. LEON J

A


:
J.H. STEYN J

A


:
P.H. TEBBUTT J

A


FOR
THE DEFENCE :


FOR
THE CROWN :


JUDGEMENT


Leon
J

A:


On
the question of extenuating circumstances the appellant did not
testify and his attorney relied upon the evidence which had been
given. As to that, it was urged on behalf of the appellant that he
had acted under the instructions of Mabuza, who was his employer, and
therefore a person in authority. In dealing with the submission the
learned Judge said this:-


"The
position in this case is that the accused in his confession simply
states that he was told to grab the boy etc. He does not set out what
he subjectively felt at the time. If he willingly followed his
employer's instructions with no threats or warnings up to the time of
the death of the deceased. I can find nothing which can be said to
reduce his moral blameworthiness. The accused has throughout the
trial maintained his innocence. He has elected not to give any
evidence which may assist the Court in explaining the contents of his
confession. I find that the accused has failed to discharge the onus
of establishing extenuating circumstances."


Quite
apart from the question of onus, which I shall deal with later, I am
of the opinion that the learned Judge misdirected himself on the
facts by failing to take into account relevant evidential material
which he ought to have taken into account. It is true that the
appellant himself did not by not giving evidence assist the Court in
any way. But there was evidence


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of
his state of mind. Having convicted the appellant on his own
confessions the Court was bound to have regard to the whole of such
confessions unless any part thereof was so improbable that it could
not reasonably be true. This is not such a case. In his confession to
PW4 the appellant told him that he had acted on the instructions of
his employer, Mabuza and that he had held the feet of the deceased
when they were removing parts of the body because he was afraid. And
he told Joseph Mtshali that he had got into the situation of taking
part in a murder because he was afraid that his employer might chase
him away. Such expressions of fear by the appellant are fortified by
the Magistrate's impression of him being a very humble person and his
educational level was Standard 2. I consider that the learned Judge
ought to have taken into account, at least at the level of it being a
reasonable possibility, that the appellant was indeed afraid of his
employer. Moreover the appellant did not instigate this crime: he was
dragged into it and his role was that of an accessory not a
principal.


I
turn now to discuss the question of onus but it becomes necessary,
before doing so, to say something about the concept of extenuating
circumstances and the duty of the Court in considering this question.
The accepted general definition of an extenuating circumstance is one
which morally, although not legally, reduces an accused person's
blameworthiness or the degree of his guilt (See e.g. BIYANA 1938 EDL
310 AT 311, S VS LETSOLO 1970(3) SA476 (A), R VS FUNDAKUBI AND OTHERS
1948(3) SA810 AT 818 and the landmark decision of the Botswana Court
of Appeal in DAVID KALELETSWE AND 2 OTHERS VS THE STATE CRIMINAL
APPEAL 26/94 where many of the cases on this topic are collected.


In
reaching a conclusion as to whether or not extenuating circumstances
are present t he Court makes a value or moral judgement after
considering all the relevant facts and circumstances both mitigating
and aggravating in order to make such a judgement. In these
circumstances it seems to us to be quite inappropriate to determine
the issue by raising the question of onus. The duty falls upon the
Court.


2


In
South Africa it was consistently held, before the death sentence was
abolished, that there was an onus resting upon an accused person to
prove on a balance of probabilities the existence of such
circumstances. That was based upon the decision in R VS LAMBETE
1947(2) SA603 (A) where Greenberg J

A
held that this conclusion was supported by the general rule that the
onus rests upon the party who asserts the affirmative. With due
deference to so distinguished a Judge we find ourselves in respectful
disagreement.


The
history and the evolution of the topic is fully set out by the
Botswana Court of Appeal in the aforementioned case including the
circumstance, which is an important one, that at the time when
Lambete's case was decided, juries were charged with determining the
facts associated with the commission of the crime. The relevant
provision of the applicable South African legislation (Act 31 of
1917) at the time reads:-


"Where
the jury, in convicting the accused of murder, has in terms of
Section 206(2) expressed the opinion that there are extenuating
circumstances, the Court may impose any sentence other than the death
sentence."


It
was held in Lambete's case that the jury was only entitled to find
such circumstances when they come to the conclusion that such
circumstances exist and are not entitled to do so merely because the
Crown has failed to prove that they do not exist.


We
find ourselves in respectful agreement with the conclusion of the
Botswana Court of Appeal that no onus rests on an accused person and,
as mentioned earlier herein, the question of onus is really
inappropriate to the enquiry. This is made clear by what was said in
that case about the duty of the Court-


"We
note in particular the significance which Schreiner J

A
ascribes to the "subjective side" and that no factor not
too remote or too faintly or indirectly related to the commission of
the crime" and which bears on an accused's moral guilt can be
ignored. (R VS FUNDAKUBI (supra).


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 process -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 inquiry 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


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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 enquiry.
It will then make its "value or moral judgement."


In
making our value or moral judgement we have borne in mind:


1. The
appalling nature of the offence;


2. The
expressed fear of the appellant which would be probable and very real
in a person like the appellant who is a very humble person and of
very limited education;


3. The
fact that the appellant did not initiate this offence but was dragged
into it;


4. The
degree of participation on the part of the appellant.


Our
value or moral judgement is that extenuating circumstances are
present and that the death sentence must be set aside. But the crime
remains a very serious one and a sentence of 15 years' imprisonment
is appropriate.


The
appeal against the conviction fails and the conviction is confirmed.
However we find extenuating circumstances were present. Accordingly
the sentence of death is set aside and is substituted by a sentence
of 15 years' imprisonment.


R.
N
.
LEON

J A


I
agree:


J.
H
.
STEYN

J
A


And
so do I:


P.H.
TEBBUTT J

A


Delivered
in open Court this 29th day of September 1998.


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