Extenuating circumstances

THE HIGH COURT OF SWAZILAND

CRIM. CASE NO. 49/99

In the matter between

REX

And

SHAKES NKULULEKO SHALAMBA DLAMINI

JETHRO BOY SIMELANE

THOMAS SDUMO DLADLA

VINCENT MDUDUZI DLAMINI

Coram S.B. MAPHALALA – J

For the Crown MR Z. MAGAGULA

For the Defence MR. VILAKATI (Accused No.

1 and 3

MR. SIMELANE (Accused No.

2 and 4)

_____________________________________________________________________

RULING ON EXTENUATING CIRCUMSTANCES

(27/09/2001)

At this stage of the proceedings the court has to establish whether or not there are extenuating circumstances for the accused persons to escape the sentence of death as prescribed by the provisions of the Criminal Procedure and Evidence Ac (as amended). The accused persons having been convicted of the murder of one Fritz Koch on the 25th September 1997, at Big-Bend Barclays Bank in the Lubombo Region.

The proper approach of determining extenuating factors was enunciated in a relatively recent case by the Court of Appeal in Daniel Dlamini vs Rex Case No. 11/98. In that case their Lordships after considering a number of decided cases of Biyana 1938 E.D.L 310; S v Letsolo 1970 (3) S.A. 476, Rex vs Fundakubi and others 1948 (3) S.A. 810 and the landmark decision of the Botswana Court of Appeal in David Kaleletswe and others vs the State Case No. 26/94 came to the conclusion that no onus rests on the accused person to prove extenuating circumstances. That it was the duty of the court. In that case (Daniel Dlamini) (supra) their Lordships had this to say:

“We find ourselves in respectful agreement with the conclusion of the Botswana Court of Appeal that no onus rests on an accused person and, as mentioned earlier herein, the question of onus is really inappropriate to the enquiry. This is made clear by what was said in that case about the duty of the Court:

“We note in particular the significance which Scheiner JA ascribes to the “subjective side” and that no factor not too remote or too faintly or indirectly related to the commission of the crime” and which bears on an accused’s moral guilt can be ignored. (R vs Fundakubi (supra).

It seems to us that there is therefore an over-riding responsibility on the Court and its officers – Counsel – to ensure that the second phase of the process – the enquiry as to the presence or absence of extenuating circumstances – is conducted with diligence and with an anxiously enquiring mind. The purpose of the inquiry is inter alia to probe into whether or not any factor is present that can be considered to extenuate an accused’s guilt within the context and meaning described above ... when all the evidence is in, the Court is obliged to evaluate the testimony and submissions before it, consider and weigh all the features of the case, both extenuating and aggravating ... This would include evidence tendered during the second phase enquiry. It will then make its “value or moral judgment”.

According to C.R. Snyman in his work titled Criminal Law (2nd ED) at page 425 the Court must assess accused’s “moral guilt” or blameworthiness by considering his state of mind at the time when he committed the murder, not the unlawfulness of his conduct. The court must therefore apply a subjective test to determine whether extenuating circumstances are present. It must consider the particular accused’s state of mind at the time when he committed the offence, not how the fictitious reasonable man would have behaved in the circumstances (see S vs Mkize 1953 (2) S.A. 324 (A) 335 – 336). The nature of the murder and the manner of its commission are relevant to the general enquiry into extenuation (see S vs McBride 1988 (4) S.A. 10 (A)).

The court invited counsel in its quest to determine the existence or otherwise of extenuating circumstances in this case. Mr. Vilakati for accused no. 1 and 3 advanced a number of reasons to his contention that there are extenuating circumstances in this case. Firstly, he contended that in casu the fact that causing death was not the accused persons’ principal aim. (see S vs DeBruyn 1968 (4) S.A. 498 (A)). That the firearm in this case was introduced merely to scare the deceased and after which the deceased was to be freed. In the plans hatched by the accused persons and PW5 and PW6 no one ever suggested that someone was to be killed. Therefore there was no pre-mediation on the part of the accused person as to the murder. To support the latter proposition Mr. Vilakati directed the court’s attention to the case of S vs Mlambo 1960 (2) S.A. 55 (W).

Secondly, Mr. Vilakati submitted that the court has to look at the degree of participation by the respective accused persons. That in casu the degree of participation by accuse no. 1 and 3 was minimal as reflected in the evidence of PW5 and PW6. To buttress his point in this regard he cited J.R.L. Milton South African Criminal Law and Procedure (2nd ED) at page 386.

Thirdly, he argued that the court should also take into account the youthfulness of the accused persons as a factor in extenuation. To this end he cited C.R. Snyman (supra) at 426 and the case of S vs Mohlobane 1969 (1) S.A. 561 (A).

Lastly, Mr. Vilakati argued according to the evidence when accused no. 1 fired the gun his intention was to warn the deceased and not to kill and thus his intention was dolus eventualis which could be taken as an extenuating factor. To this end he cited the cases of S vs Sigwadla 1967 (4) S.A. 566. He further cited the cases of Ndimande VR 1970 – 76 S.L.R 100 and that of R vs Jabulane Philemon Mngomezulu 1970 – 76 S.L.R 6. In the latter case was held that if a person deliberately does an act which he in fact appreciates might result in the death of another and he acts recklessly as to whether such death results or not, the inference is that he intends to kill. Where a court finds such a constructive intention, and not a true positive desire to kill, the absence of a desire to kill might be regarded in the circumstances of a particular case as extenuating circumstances. In the case of Ndimande (supra) it was reasoned that the fact that death was not aimed at is relevant, in the accused’s favour, to the issue of extenuating circumstances but such fact does not of itself and considered in isolation, connote a lesser degree of blameworthiness than in a case where death was aimed at.

Mr. Simelane for accused no. 2 and 4 aligned himself with the submissions made by Mr. Vilakati.

I have considered the submissions made by counsel and my view is that there are extenuating circumstances in this case for the accused persons to escape the ultimate sentence of death. I agree in toto with the submissions made by Mr. Vilakati that the cumulative effect of the factors he has outlined amount to extenuating circumstances. I found the following to be such factors:

I thus find that there are extenuating circumstances in respect of all the accused persons. For them to escape the full rigours of the provisions of the penal code.

S.B. MAPHALALA

JUDGE

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