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SIBUSISO KWESU NKAMBULE v REX [2001] SZHC 6 (1 November 2001)

Sentence – where knife used

Crim.Case No.88/01

In the matter between:

SIBUSISO KWESU NKAMBULE

VS

REX

CORAM : MASUKU J.

For the Crown : Ms N. Lukhele
For the Accused : In person

JUDGEMENT ON SENTENCE

1^st November 2001

You have been convicted of the crime of culpable homicide. By any standards, this is a very serious crime which involves the taking away the God given right of life of another person. You should not take away what you have not given.

In assessing the appropriate sentence, I will take into account the useful remarks of Jones J. in S v QAMATA 1997 (SA) 480 at 499. The learned Judge had this to say: -

“In weighing these considerations, I should bear in mind the need-

beings and the reasons why they commit serious crimes, by avoiding an overly
harsh sentence.

imposing an appropriate, and, if necessary, a severe sentence; and

© to pass a sentence which is balanced, sensible, and motivated by sound reasons
and which will therefore meet the approval of the majority of law abiding
citizens. If I do not, the administration of justice will not enjoy the confidence
and respect of society.”

I have elicited factors that weigh in your favour in view of your age and also considering that you are unrepresented. Ms Lukhele has also been of great assistance in this regard and the Court marks its appreciation to her for her fairness.

Factors that weigh in your favour are the following.

-Your age, which is 15
-You are a first offender
-You have exhibited signs of penitence
-You never intended to commit this crime
-That this incident will haunt you for the rest of your life

That having been established, there is nothing to gainsay the fact that this offence is serious. Too many lives have been lost in Swaziland using knives, particularly the Okapi, which you also used to stab the deceased. It is probably high time that the sale of this brand of knives be banned in view of the havoc and pain its use has occasioned to many families in this Kingdom.

I can do no better than quote from an excerpt by Dunn J. in THE KING vs DUMISA TITO SIMELANE & ANOTHER CRIM. CASE NO. 122/96, (unreported) where the learned Judge had this to say at page 2 – 3:

“There are far too many cases of innocent lives being taken in this country with
the use of knives. Time and again one finds people readily resorting to the use of
knives at the lease provocation or for the most trivial reasons. Invariably, the
person who is convicted cuts a sorrowful and pitiful figure as it dawns on him in
the course of the trial that indeed, the reason for having used the knife was a
senseless and most trivial one. This factor alone makes the task of the Court in
determining an appropriate sentence most difficult. The Court is at that stage
faced with the immediate pleas and concerns of the particular accused appearing
before it.

There is of course the other side of the coin and that is the feelings of the relatives
of the person whose life has been taken. Those feelings are rarely ever placed
before the Court unless of course those relatives or some of them were witnesses
to the incident and were called to give evidence in Court. In that way, the Court
can get some measure of their feelings.”

The provocation in this case and the ensuing fight did not require the use of any weapon. The practice of carrying knives engenders a false sense of superiority and security and often prompts the armed person to invite trouble, in order to enable him to unleash his deadly weapon on an unsuspecting adversary.

Carrying a knife for no reason when attending a social gathering is totally out of order. You have ruined your record at such an early age. Do not however run from your mistakes – learn from them and they will make you, better-not bitter. Turn your scars into stars and preach the gospel that the carrying and use of knives unnecessarily propels one into a collision course with the wheels of justice.

The sentence I intend to impose is one that will in my view serve an individual and general deterrent. It will take into account the seriousness of the crime the interests of society and be flavoured with mercy.

I have considered in this case, the provisions of Section 305 and 306 of the C.P.&E as possible sentences. These are in my view unsuitable in your case in view of the seriousness of the offence and the fact that if I were to impose them, to many, it will seem as though justice has not been done and people, particularly the deceased’s relatives may be tempted to take the law into their own hands. This would indeed be highly regrettable.

You are hereby sentenced to seven (7) years imprisonment four (4) of which be and are hereby suspended for a period of three (3) years. The suspension is subject to the condition that you are not, during this period, to be convicted of an offence in respect of which violence to another is an element. The sentence be and is hereby backdated to 28^th September 2000, being the date of your arrest. I further order that you be kept at the Juvenile Correctional Institution to serve your sentence there. Should you attain the age of eighteen (18), whilst in custody, which is unlikely, you are to be transferred to the Young Peoples’ Correctional Institution.

T.S. MASUKU

JUDGE