IN THE COURT OF APPEAL OF SWAZILAND
HELD AT MBABANE
Criminal Appeal Case No. 9/2004
In the matter between
ABEL D. MAKHABANE Appellant
And
THE KING Respondent
Crown LEON, JP
BECK, JA
ZIETSMAN, JA
JUDGMENT
LEON, JP
This is an appeal against sentence.
The appellant, a first offender was convicted of murder in the High Court.
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Extenuating circumstances having been found, the appellant was sentenced to thirteen years imprisonment which was back-dated to the 9th April 2003 which was the date of the appellant's arrest.
It is common cause that for many years there was bad blood between the deceased and the family of the appellant. It was believed by members of the appellant's family that the deceased had, through witchcraft, caused the death of the appellant's uncle. Indeed it was common cause that because of what I have set out above, the deceased had been forced to leave the area where he and members of the appellant's family lived. This was some years before the deceased was murdered.
On the 4th February 2003 the appellant came across the deceased and asked him whether he was the person who had killed his father (meaning uncle). The deceased did not reply.
What happened thereafter need only be referred to briefly. The appellant proceeded to stab the deceased a number of times without any provocation from the deceased. There was some suggestion by Mr. Lukhele on behalf of the appellant that some other assailant may have been involved but that is nothing more than a conjectural or speculative possibility not a reasonable one. Indeed it is common cause that the
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appellant caused the death of the deceased and the post mortem report reveals about 20 stab wounds. The appellant himself did not remember "how many times" he had stabbed the deceased.
The evidence reveals that the appellant had consumed a fair amount of marula beer between 3 pm and sunset that afternoon and that he was at any rate to some extent under the influence of liquor when he committed this offence. That factor may well have played a part in this brutal murder.
However, the learned trial judge took into account in favour of the appellant the following:-
He was a first offender
There was no evidence of premeditation
He had consumed liquor on that day.
Although it is not mentioned in his judgment on sentence, it is clear from his judgment on the merits that the learned judge was fully aware of the bad blood to which I have earlier referred.
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I have been unable to find any misdirections on the question of sentence and Mr. Lukhele was unable to point to any.
But Mr. Lukhele urged that every sentence should be tempered with mercy and that in this case a sentence of 10 years imprisonment would reflect that.
In the absence of any misdirection we can only interfere with the sentence if it is so excessive that it reveals a striking or startling disparity between the sentence which we would have imposed and that which the learned judge imposed. There is no such disparity.
I have done my best to bear in mind what Mr. Lukhele has submitted, but I remain unpersuaded that there is any basis upon which this court can interfere with the sentence.
The appeal is dismissed. The conviction and sentence are confirmed. DELIVERED IN OPEN COURT THIS .. ..DAY OF NOVEMBER 2004
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R.N. LEON, J.P.
I AGREE C.E.L. BECK, J.A.
I AGREE
N.W. ZIETSMAN, J.A.