R v Dlamini (12 of 2005) [2005] SZSC 7 (14 June 2005)

IN THE APPEAL COURT OF SWAZILAND

This is an appeal against sentence. The appellant appealed before the High Court charged with murder it being alleged that on or about 2^nd of March

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2002 he unlawfully and intentionally killed the deceased Zwakele Sibandze. However on the 7^th February 2005 the Crown and the defence agreed on a statement of agreed facts. On the basis of that statement the appellant pleaded guilty to and was convicted of culpable homicide. The appellant is a first offender and is described in the judgment as being of advanced age. He was sentenced to 10 years imprisonment which was backdated to 2^nd March 2002. The statement of agreed facts reads as follows:-

Upon or about 2^nd of March, 2002, the accused did unlawfully stab Zwakele Sibandze with a knife on the head and inflicted upon him an injury from which he died on the 9^th March 2002.

Upon or about the 2 March, 2002, the accused and the deceased got
engaged in a fight after a misunderstanding regarding shoes which
belonged to the deceased. The accused had borrowed those shoes but
was refusing to bring them back.

The fists brawl between the two was defused by PW1 and the accused
went away, leaving the deceased at his homestead where accused
came to accost him.

.

The accused returned after a short while and without uttering a word, stabbed deceased on the head with a knife and ran away. The knife got stuck on the deceased's head.

The deceased was conveyed to hospital and subsequently transferred

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to a hospital in Pretoria in the Republic of South Africa.

On the 9^tth March. 2002, deceased died due to the head injury inflicted upon him by the accused on the 2^nd March, 2002. "

The trial Court held that although the appellant had been convicted of culpable homicide and not murder, the circumstances under which the crime was committed called for a very severe sentence. He regarded the case as clearly distinguishable from the ordinary case of culpable homicide. In this regard the trial Judge referred to the fact that the appellant had stabbed the deceased after peace had been restored. The learned Judge also had regard to the nature of the injury inflicted which could not be treated in a local hospital and he said that the appellant had inflicted the injury with "your full might". The learned Judge a quo also had regard to the fact that the appellant was a first offender of advanced age and the deceased was his blood relative. The appellant had been in custody since l^st October 2002. In the result the appellant was sentenced to 10 years imprisonment which was backdated to the 1^st October 2002 and not as I earlier suggested March 2002. In my view the trial Court was correct in regarding this case as a very serious case of culpable homicide. At the time of the stabbing the deceased had offered no provocation whatever and the earlier argument had ended. The appellant who appeared before us to argue his appeal has urged that 3 years of the ten years should be suspended. It was rightly stressed that he is a first offender and that is of course a factor which must operate in his favour. On the other hand this is an extraordinarily serious case of culpable

homicide which in my view is right at the most serious end of the scale of

such a crime. I consider that in all the circumstances the sentence imposed by the trial Judge was a proper one and that despite the appellant's argument to the contrary there is no proper basis in law which would justify this Court

in acceding to his request. The sentence which the learned Judge imposed is
a very proper sentence in the circumstances.

In the result the appeal is dismissed and the conviction and sentence are
confirmed and it is ordered accordingly.

DELIVERED IN OPEN COURT ON THE 14^th DAY OF JUNE 2005

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