- Case summary
- Criminal Law – Sentencing – Considerations of a triad – It consists of the interests of the accused; those of society and the offence itself – How sentence is to be approached – Sentence.
IN THE HIGH COURT OF SWAZILAND
Held at Mbabane Case No.: 91/2011
In the matter between
REX Applicant
VS
SIFISO MATHAMBO VILAKATI Respondent
Neutral Citation: Rex Vs Sifiso Mathambo Vilakati (91/2011) [2018] SZHC 77 ( 6th June 2018)
Coram: Hlophe J.
For the Applicant: Mr M. Nxumalo
For the Respondent: Mr M. Mkhwanazi
Date Heard: 05th June 2018
Date Judgement Delivered: 06th June 2018
Summary
Criminal Law – Sentencing – Considerations of a triad – It consists of the interests of the accused; those of society and the offence itself – How sentence is to be approached – Sentence.
JUDGMENT ON SENTENCING
[1] After returning a guilty verdict against the accused following his plea, I went on to pass what I considered an appropriate sentence. I thereafter indicated I was going to avail my reasons later on. These here are the said reasons.
[2] The accused was convicted of a serious offence which is not just serious because there was a loss of life; but it is also serious because of the gruesome manner in which the deceased’s death came about – all from the hands of the accused. The deceased bore, according to the Post Mortem report, 13 stab wounds which according to the Pathologist were the very cause of her death. This makes it clear that the accused was determined to do what he did. He was only lucky that the Crown accepted his tender of a plea of culpable homicide. I must clarify what to an armchair critic may appear an anomaly. Whereas I could have rejected the plea bargain, I had to be circumspect or be restrained given the understanding that such may have been necessitated by the unavailability of crown witnesses which could have easily led to an acquittal of the accused after a failure to prove the charges had there been insistence on a murder charge. Proceeding with the matter from this premise and concluding it in terms of the tendered plea should therefore be seen in that light.
[3] In order to ensure that the sentence I passed met the delicate balance required of a sentence imposed by a Judicial Officer, I had to consider the triad which is a notion that consists of a consideration of the three competing interests in a matter being those of the accused, those of society and the offence itself.
[4] As against the accused I concluded that he was a relatively young man who was at the prime of his life. He was a first offender, who had always avoided crime until the fateful day of the commission of the offence we are about here which happened at a time he should have been of a matured age. I was convinced that he was remorseful about the offence he had committed when considering the plea he tendered and the general manner in which he had handled himself. He was as of the day of his sentencing said to be responsible for his children who he had to take care of as a single parent after the death of his deceased girlfriend.
[5] What I could say or construe in his favour, is that it was important that I do not lose sight of the fact that he had been convicted of an offence where a life was lost. That life was that of a young woman, with whom he was involved in a relationship. It is clear she was killed because she was perceived as a weaker human being who could not offer as much resistance as possible as male person could have. She was indeed not armed when the tragedy in question befell her. She therefore had to die because she was taken advantage of due to her gender. The killing of women, often in a brutal and heinous manner, which is prevalent and keeps rising often brutally on heinous often, must come to an end. Our courts have a duty to lead the fight weeding out the violence against women. They are tasked to do so by society. They should therefore pass stiff and reflective sentences. These are sentences that should send out an unequivocal message, that such will not be tolerated and that it must stop.
[6] The deceased was made to leave behind the minor child that the accused now wants to ironically use as a reason for him to be given a lenient sentence. This he should have thought about before killing the deceased in the gruesome manner he did. It might be that he felt provoked given that he was allegedly told in the face that he did not father what he had always believed to be his child. Whatever the extent of such provocation it can never justify violence particularly one inflicted so ferociously against an unarmed woman so as to result in a loss of life.
[7] Offences of this nature are prevalent and are also on the rise, requiring that even harsher sentences than before be imposed. This has happened notwithstanding the state having had to respond by enacting legislation to deal with domestic violence and related offences. Although this matter occurred before the coming into effort of such legislation there is no doubt the sentence I pass should reflect the disapproval by the courts of such violence as expressed in the Legislation referred to by enforcing the spirit of it so as to realise the desires of the Legislature.
[8] There can be little doubt that Society, expects the protection of its vulnerable members of which women are. They can only get such protection from the Courts. Accordingly the sentence I pass should be reflective of this expectation from the greater society.
[9] This being a culpable homicide matter, it is a settled position that the sentencing trend of our courts ranges between 1and10 years imprisonment. See Samkeliso Madati Tsela Vs Rex, Criminal Appeal, Case No.20/10 [2011] SZSC13 (31 May 2012). I agree with Mr Nxumalo that this one was on the higher side of the scale such that were it not for the remorse exhibited by the accused and his general cooperation it should have drawn the effective maximum sentence.
[10] I must say the sentence I impose, has as it should been influenced by the considerations that in passing an appropriate sentence, the Court should be guided by considerations of mercy and avoid passing one out of anger or wrath just as it should avoid having misplaced pity. See the judgement of R V Zinn 1969(2) SA 537(A) as well as S V Rabbie 1975(4) SA855. I have therefore tried the best I could in the circumstances to pass what I consider a balanced sentence.
[11] Having considered all I have said, I went on to impose the following sentence which I was convinced was an appropriate one in the circumstances:-
(a) The accused person was sentenced to 10 years imprisonment.
(b) 3 years of these were suspended for 3 years on condition the accused did not commit an offence in which violence was an element within the period of suspension.
(c) Any period spent by the accused person in custody before he was released on bail had to be taken into account in computing an appropriate sentence. I was advised by the crown that this period was that between the 29th January 2006 and the 2nd May 2006. 
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