I N TH E HIG H COUR T O F SWAZILAN D RE X
V s
JAB U LOMKHAMBATSIMKHONT A Crimina l Case No . 206/2005
Cora m S.B. MAPELALAL A - J Fo r ihe Crown MR . N . DLAMIN I
Fo r the Defence MR . B. SIMELAN E
REASON S FO R SENTENC E
6 t h Marc h 2007
[i ] The accused person is charged with the murder of her own child in tha: upon or about the 25~ September 2004. at or near Langa area, in the L^romb o region, the accused did intentionally and unlawfully kill one
Njjkuthula Shongwe. Th e accused tendered a plea of guilty in respect of the lesser offence of culpable homicide which was accepted by the Crown. The co m proceeded to convict the accused person of culpable homicide. Crown Camsel has read into the record a statement of agreed facts as follows:
1. Upon or about the 26" September 2004 and at or near KaLanga area in the Lubombo Region, the accused did unlawfully and negligendy kill one Nokuthula Shongwe a female minor aged eight (8 ) years old.
2. The accused admits that the cause of death of the deceased is as a result of injuries, which were inflicted by her (accused) and further that there are no intervening achons. which caused-the death of the deceased other than the actions of the accused.
3. The accused runher admits that the deceased was her biological child.
4. On the fateful evening the deceased had gone to play with other children from neighbouring homesteads and had" returned home to the accused late in the evening. Th e accused was angered by the deceased coming home late in the evening yet the accused had previously warned the deceased about her coming home late.
5. The accused hhen gave the deceased a tongue-lashing and at that time the accused was already carrying a rope which she used to tie the deceased around the neck. The deceased thereafter died from this action.
6. Ween the accused was tying the deceased with the rope around her neck, the deceased screa—ed and informed the accused that she was hurting her.
The accused subsequently realized that the deceased had suddenly died and removed the rcce.
S. The accused hai no intention of killing die deceased but was only trying to instill discipline to his:
9. Upon realiz-r^ that the deceased hac stnee died, the accused thereafter went to a netghbouring relative to report "he incident. Further the accused requested the relatives to assiit her (accused) in calling the police.
10- The accused has been in custody since Z6 3 September 2004.
'-1 • The rtost morte r report ii handed ir by consent to be marked by this Honourable
[2] At this stage of the proceedings, the court has to pass an appropriate sentence. Three competing interest arise for the proper balance by the court. These zre referred to in legal parlance as the triad. The nature of the crime, interest: of the society and the interest of the accused. These were stated in the judgment of Jones J in the case of S vs Qamata 1987 (1) S.A. 479 at 480 where ±e learned Judge in that case made the following remarks:
is now necessary for me to pass sentence. It is proper to bear in mind the chief objectives of
~mina l punishment namely, retribution, the prevention of crime, the deterrence of criminals, and He reformation of offender. It is also necessary to impose a sentence, which has a dispassionate jigard for the nature of the offence, the interests of the offender, and the interests of the society, ii weighing these considerations I should bear in mind the need:
z- to show an understanding of and compassion for the weakness of human beings and the reasons why they commit serious crimes, by avoiding an overly harsh sentence;
r to demonstrate the outrage of society at the commission of serious crimes by imposing an appropriate and, if necessary, a severe sentence; and
i to pass a sentence, which is balanced, sensible, and motivated by sound reasons and which therefore meet with the approval of the majority of law-abiding citizens. If I do not, the aaxninistration of justice will not enjoy the confidence and respect of society.
[3] Factors in mitigation of sentence on behalf of the accused person were advamed from the bar by Mr. Simelane as follows: (i ) that the accused has three i3) other minor children; (ii ) that the accused was unemployed at the time cf her arrest; (iii ) that accused is 29 years old and (iv ) that she was pumsrmg the child and unfortunately she overdid it.
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[4] Indeed this is a very sad state of affairs where a mother kills her own child within the rubric of chastisement. It is further difficult for the court to pass sentence in these circumstances. The accused has been in custody since the 25 m September 2004, and in my humble vie w the period she has been in custody has taught her valuable lessons on the sanctity of life.
[5] In the circumstances of the case I find that the following sentence will meet the justice of the case.
'Th e accused is sentenced to 7 years imprisonment, 5 years'of which is suspended for a period of three (3 ) years on condition that accused is not convicted of an offence in whic h violenc e is an element committed during the period of suspension. Th e sentence is backdated to the 25 t h September 2004.
JUDGE