Court name
High Court of eSwatini

Rex v Magagula and Others () [2000] SZHC 95 (13 November 2000);

Law report citations
Media neutral citation
[2000] SZHC 95
Coram
Sapire, CJ









SWAZILAND
HIGH COURT


REX


vs


JUSTICE
SIPHO MAGAGULA & OTHERS


Cri.
Case No. 75/98


Coram
SAPIRE, CJ


For
Crown Mr. L. Ngarua/


Mrs.
Dlamini


For
Defence Mr. Twala


JUDGMENT


13/11/00


This
is a criminal trial which was commenced before His Lordship the late
Mr. Justice Ben Dunn. The accused were charged under a number of
counts some of which were common to some of them and other counts
related only to specific accused. The first 4 accused, as they then
were, and of them, there are only presently three in the dock, as the
one I am informed has died before this case is completed.


These
3 accused were charged with 2 counts of murder and 2 counts of
robbery. The other accused charged with various other offences to
which I will refer later. The stage at which the trial had reached
when the late Mr. Justice Dunn died was that all the accused had been
found guilty of all the offences with which each of them had been
charged.


2


As
the accused on the first two counts were found guilty of murder the
court commenced dealing with the question of extenuation but nothing
conclusive took place in that regard.


When
the late judge died the matter of this trial was immediately brought
to the attention of the authorities. It was also brought to the
attention of the authorities that the local Criminal Procedure and
Evidence amendment act of 1986 did not provide for a situation where
a trial was interrupted by the death of the presiding officer.


After
the matter had received the attention of the authorities and of the
Law Society an amendment to the act was tabled in parliament and the
matter proceeded very slowly until at last on the 12th July, 2000 the
act no. 3 of 2000 was assented to by His Majesty.


This
act provides that notwithstanding any law to the contrary, if
sentence is not passed upon an accused forthwith upon conviction in
any court or if by reason of any decision of an order of a superior
court on appeal review otherwise it is necessary to add to or vary
any sentence passed on a lower court or to pass sentence of which in
such court any Judicial Officer of that court may in the absence of
the judicial officer who convicted the accused or passed sentence as
the case may be and after consideration of the evidence recorded in
the presence of the accused within a reasonable time pass sentence on
the accused or take such steps as the judicial officer who convicted
or passed the sentence, that is to say the absent judicial officer
could lawfully have taken in the proceedings in question had he not
been absent. Absence in this section means absence by reason of
disability, removal from Swaziland, death, desertion or any similar
happening.


It
is really section 2911 (bis) (a) which is applicable in this case and
although the legislation provides that the proceedings must be
completed within a reasonable time, it is difficult to place the
circumstances of this case within the meaning of a reasonable time.
This matter has been dealt with as soon as the circumstances have
allowed.


3


This
act is to apply in all criminal proceedings before any court
irrespective of whether or not the proceedings commenced before or
after the publication referred to in section 1. The effect is
retrospective and accordingly empowers me to deal with the case from
the point at which circumstances removed the late judge.


This
I proceeded to do. I have had argument from Mr. Twala who appears for
the first 3 accused on the question of whether extenuating
circumstances can be said to exist in relation to the murder which
forms the subject matter of charges 1 and 2.


Mr.
Twala based his argument really on two submissions. In the first
place he dealt with the common purpose to kill and the fact that it
is unclear on the evidence which of the persons involved in the
robbery were armed and fired the shot. This argument cannot commend
itself in view of the authorities on this point. If a number of
accused persons are charged on the basis of common purpose in
connection with the commission of an offence, they are all equally
liable both legally and morally for the harm they do in furtherance
of that common purpose. Thus in this case all those involved in the
murder of the late Messrs Wessels father and son knew that some of
the robbers were armed with pistols or firearms.

They
must have known, that inference is inescapable, that if necessary
those firearms were going to be used and that the death of the
victims or anyone of them could ensue. None of the accused concerned
have come to the witness box to say that they did not know that
firearms were going to be used. None of them have come to the witness
box and said that as soon as they found out that firearms were going
to be used that they withdrew from their common purpose. They have
remained steadfast in their unity in the matter and have not put
anything before the court on which the findings of the late judge
could in any way be discounted. There was a common purpose which he
found they were all parties. They are equally liable no matter who
pulled the trigger when the shots were discharged. He detected little
difference from moral culpability point of view that it was one or
two of the comrades and not all of them who fired the shots.


The
second argument advanced by Mr. Twala was that the accused are
members of an economically disadvantaged group of persons in society.
I am not sure what that means nor is there any evidence to suggest
what the economic status of these people is. Even if they are
unemployed and even if they are from those people


4


who
are at the bottom of the economic scale, that can in no way justify
the callous murder which took place. I need refer only to the fact
that Joshua Senior was shot, when he had already been subdued and
bound. Not only did they shoot, but they shot a man who was bound. In
no way can their poverty or lack of employment be an answer morally
for that callous act.


The
second victim, the son of the first, was summarily shot when he came
upon the scene which had been created by the accused persons.


Nothing
in what I have said is in anyway intended to suggest that there is
any onus on a person convicted of murder to establish any extenuating
circumstances. These are to emerge from the facts of a case as a
whole. A judge would search the facts of a case and if possible will
find extenuating circumstances even if these do not come from the
evidence or argument of the accused person.


In
this case I have done just that, I have gone through the record and I
have considered the judgment of the late Mr. Justice Dunn. I can find
nothing which can be considered as extenuation in the present case.


I
accordingly find that there is no extenuation.


I
have also had submissions in mitigation by the other accused in this
matter and I now will proceed to pass sentence on the various accused
for the different crimes for which they have been found guilty.


COUNTS
14 & 15.


MAINSTAY
VUSI

MAVIMBELA.
KHAZI

MKHWANAZI.


On
these two counts I intend treating the two counts as one for the
purpose of sentence. The accused will be sentenced to 5 years
imprisonment on both counts treated as one for the purpose of
sentencing.


5


I
now proceed to count 13 which concerns accused number 2 ,4 &5 who
are charged with the robbery of Kenneth Mandlakayise Mbuli on the
22nd June, 1997. On this count, again this is a count involving theft
with violence and in view of the association of the accused one with
another in this sort of behaviour the proper sentence in a case like
this cannot be minimized, nothing has been said to me which indicate
any remorse or any facts which reduce the moral capability of these
offences On count 13 three of the accused involved, i.e. 2, 4 and 5
as they were during the trial are sentenced to 15 years imprisonment.


Count
12 involving 2, 6 and 7, The charge is robbery of Dr. Robert
Caithness of Checkers on the 16th July, 1997. Again the charge of
robbery involving violence and again there is nothing to justify it
Again the sentence will be 15 years imprisonment.


There
are further two counts, count 10 & 11 involving accused 2, 5 &
6, again robberies of two women in their home on the 4th July, 1997,
They burst into their home and robbed. They will be sentenced on each
of the counts to 15 years imprisonment.


On
counts 7 & 8 accused no. 2 is charged with the possession of a
firearm and ammunition in contravention of Section 11(1) & 11(2)
in respect of the Arms and Ammunition Act and in his case he will be
sentenced to the minimum sentence which is 5 years imprisonment for
counts 7 & 8 treating the two counts as one for purposes of
sentence.


I
turn now to count 6 and count 5. This concerns accused no. 1. He is
also charged under the Arms and Ammunition act being in possession of
a pistol without a licence and also under 6 contravening 11(2) of the
act found in possession of 17 rounds of ammunition without a permit.
He will be sentenced to 5 years on each count running concurrently.


I
now turn to count 4 dealing with the survivors of 1, 2, 3 & 4.
This deals with the events of the 28th August 1997 at Mount View
where the 4 accused committed a


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robbery
at the home of the Wesseis in the course of which they robbed
Cornelia Griffin.


Before
I continue I must deal with this question which has arisen. One of
the accused has been previously warned of the possibility of being
declared a habitual criminal. In the case which I mentioned
previously of Elvis Vusi Mazibuko and Nhlanhla Masinda Dlamini which
was a judgment of the appeal court of the 31st May, 2000, the judge
who gave the judgment, Beck J

A
said it should be said in conclusion that it is not in my view clear
that it is correct to impose the sentence of imprisonment for a
specified period in addition to making a declaration that the accused
is a habitual criminal.


Section
333(3) of the Criminal Law and Procedure Act of 1938 provides that a
habitual criminal who has been conditionally released and who has
complied with all the conditions of his release for the whole of the
time during which such compliance was recorded shall no longer be
deemed a habitual criminal or liable to suffer any other punishment
in respect of the conviction upon which he was declared to be a
habitual criminal. The judge said that the learned Chief Justice took
the words to mean that other punishment in addition to the
declaration of habitual criminality must be imposed. It seems to me
that it is pointless so to do so if a specific sentence of
imprisonment is imposed in addition to declaring the convicted
accused to be habitual criminal and he is not released by His Majesty
in terms of Section 333 before such sentence expires. That sentence
would have served no purpose. If on the other hand he were to be
conditionally released in terms of Section 333 before such a sentence
has expired and he faithfully complies with the conditions required
of him, he is not liable to undergo any farther punishment. Once
again the imposition of a specific sentence of imprisonment would
have served no purpose. This is what the judge says but I make it
clear he had said it should be said in conclusion that it is not my
view clearly that it is incorrect to impose a sentence of
imprisonment. In fact he is making it clear that this is not a
judgment of the court and that it is obiter and he said that the
question of the proper interpretation of Section 333 of this act was
not argued in the court a quo and is not being argued at all before
us.


It
is not therefore necessary nor is it proper to come to the conclusion
upon this point. It is clear that the judgment is obiter and besides
what the judgment say


7


subject
to what Mr. Twala may say, I do not see any reason to depart from the
original view which I took.


The
robbery of Cornelia Griffin which was part of the events of 28th
August 1997 the accused involved will be sentenced to 15 years
imprisonment on this count.


On
count 3 the same accused committed a robbery on Suzanne Vessels who
was a daughter of the other two victims and that will also carry a
sentence of 15 years each. These two sentences on count 3 & 4 are
to run concurrently.


I
now turn to count 1 & 2 and the accused involved are 1,2 & 4,

I

also want to make it clear that the sentences on counts 10 & 11
that is the robbery of Harriet Wasswa and the robbery of Christine
Wasswa are to run concurrently.


As
far as the accused Anthony Mkhonta is concerned, he has now been
found guilty of the offence which makes the declaration of him a
habitual criminal is desirable. He has been previously warned by the
High Court and the Appeal Court. In 1995 he was sentenced to 7 years
imprisonment on each count of housebreaking which was altered on
appeal to 4 years imprisonment on each count and on appeal the
sentences were to run concurrently with effect from the 7th October,
1994. He was further warned to be declared a habitual criminal if
convicted for theft or where theft is an element of the occurrence.
Robbery is such an offence and he is accordingly declared a habitual
criminal. I will report to the relevant authorities as required of me
of this declaration and your case will be considered by the relevant
committee which considers cases from time to time.


The
initial custodial sentences to be served concurrently by the accused
persons in terms of my judgment this morning are deemed to have
commenced on the date of their arrest. This means that service of
sentences to be served consecutively commences only after the first
sentence has been served.


I
now turn to counts 1 and 2. These are counts of murder and the
Criminal Procedure and Evidence Act in the case of murder where there
are no extenuating circumstances allows only for one sentence. I have
no discretion in the matter and the


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convicted
persons Sipho Magagula, Mainstay Vusi Mavimbela, and Khazi Mkhwanazi,
who have been found guilty of murder on two counts are sentenced as
follows.


On
Count 1, each of the accused mentioned are sentenced to death
according to law.


On
count 2 they the same convicted persons are sentenced to death
according to law.


SAPIRE,
CJ