IN THE HIGH COURT OF SWAZILAND Held at Mbabane Case No.: 241/2017 In the matter between GCINUMUZI MANANA Appelant And THE KING Respondent Neutral Citation: Gcinumuzi Manana Vs Rex (241/2017) [2017] SZHC 148 (20 th July 2017) Coram: Hlophe J. For the Crown: For the Defence: Mr L. Dlamini Miss L. Hlophe Date Heard: 21 st August 2017 Date Judgement Handed Down: August 2017 1
Summary Criminal Appeal against a Magistrate Court s decision Appellant appeals a conviction for rape returned by the Nhlangano Principal Magistrate Although appellant pleaded guilty to rape; he contends that came about because he was not legally represented Claims that sexual intercourse had been consented to and that the court a quo should have picked that from his evidence Whether appellant s contention justified by the evidence on record Appellant s plea of guilty taken together with his failure to give a sound reason why his girlfriend who had consensual sexual intercourse with her in privacy the previous evening would now report a case against him taken together with a failure to put an unequivocal defence the sexual intercourse had been consented to, not consistant with appellant s version No appeal made against sentence Appellant s appeal cannot succeed, and is dismissed. Introduction JUDGMENT ON SENTENCE [1] On the 12 th July 2017, I convicted the accused persons of attempted murder. I am now required by law to pass what I consider to be an appropriate sentence. [2] I acknowledge what has been observed by numerous courts both locally and internationally that this is the most difficult stage in any criminal trial. This is because there are always competing interests in every such trial such that 2
whatever sentence a court passes, can hardly ever satisfy both sides of the competing interests. Whilst one side may view a sentence as being too harsh the other one may view it as being too lenient. [3] To try and meet this obvious challenge I have tried the best I can in this matter to uphold the triad which is a principle that emphasizes the consideration of all the competing interests, namely those of the accused person, those of society and the offence itself. [4] I have done this to ensure that I do not end up giving undue wait to one particular interest at the expense of the others. The following passage from Voet, volume 1 page 57 as quoted in SV Zinn 1969(2) SA 537 (A) is instructive in this regard:- It is true, as cicero says in his work on Duties, BK 1, Ch.25 that anger should be especially kept down in punishing, because he who comes to punishment in wrath will never hold that middle course which lies between the too much and the too little. It is also true that it would be desirable that those who hold the office of Judges should be like the laws, which 3
approach punishment not in a spirit of anger but in one of equality. [5] It is upper most in my mind therefore that as I seek to pass an appropriate sentence, not only to guard against severity but against misplaced pity as well. This I can do by being able to maintain the delicate balance between the two extremes. [6] Having said all I have above, it is important for me to acknowledge that whatever leniency I exercise should be exercised within the proper context and in appreciation of the fact that the offence with which the accused persons have been found guilty of is in a way prescriptive with regards an appropriate sentence in the manner envisaged by Section 313(1) and (2) and 314 (1) of the Criminal Procedure And Evidence Act of 1938. It is prescriptive in so far as it prohibits payment of a fine or the suspension of a portion of a sentence imposed following a conviction for attempted murder. This means that it prescribes a custodial sentence and leaves the court with no discretion in that regard. Sections 313 (1), (2) and 314 (1) provide as follows:- 4
Powers as to Postponement and suspension of sentence. 313 (1) If a person is convicted before the High Court or any Magistrate s Court of any offence other than one specified in the Third Schedule, the court may in its discretion postpone for a period not exceeding three years the passing of sentence and release the offender on one or more conditions (whether as to compensation to be made by the offender for damage or pecuniary loss, good conduct or otherwise) as it may order to be inserted in recognisances to appear at the expiry of such period, and if at the end of such period the offender has observed all the conditions of such recognisances, it may discharge him without passing any sentence. (2) If a person is convicted before the High Court or any Magistrate s Court of any offence other than one specified in the Third Schedule, it may pass sentence, but order that the operation of the whole or any part of such sentence be suspended for a period not exceeding three years, which period of suspension, in the absence of any order to the contrary, shall be computed in accordance with subsections (4) and (5) respectively. Section 314(1) on the other hand provides as follows:- If a person is convicted before the High Court or any Magistrate s court of any offence other than one specified in the 5
Third Schedule, such court may in its discretion order that any fine imposed on such person be paid in instalments on such dates, and during such period, not exceeding twelve months from the date of such order, as it may fix therein. The Third Schedule on the other hand provides as follows:- Third Schedule Offences on conviction whereof the offender cannot be Dealt with Under Section 313 (and 314): Murder Rape Robbery Any conspirancy, incitement or attempt to commit any of the above mentioned offences. [7] The effect of the foregoing provisions of the Criminal Procedure And Evidence Act is that one convicted of an offence mentioned in the third schedule cannot be given a sentence which can be postponed nor one in 6
which a portion can be suspended nor can he be ordered to pay a fine. This means that in keeping with the section, the accused persons in this matter having been convicted of attempted murder cannot have their sentence postponed, nor can they have a portion of it suspended nor can they be ordered to pay a fine. The only sentence envisaged in terms of the section in a matter like the present one is a custodial sentence of whatever length. [8] At the time I listened to argument on sentencing, and after having become aware that neither a suspension of a portion nor payment of a fine would be lawful, I asked Mr Dlamini to address me on the constitutionality of provisions prescribing a custodial sentence, particularly for an offence like the present one. Mr Dlamini argued that there was no unconstitutionality in the section. He argued that the offences listed in the schedule were considered very serious by the Legislative hence the prescription concerned. [9] My attention was drawn to two judgements which had at different times been issued by the Constitutional Court and the Western Cape High Court in the Republic of South Africa. These were respectively the judgements in Buzani Dodo Vs The State CCT 1/01 and that in The State Vs Lunga 7
Paul Luke, Western Cape High Court Case No. SS16/10. It was submitted that in both these judgements the relevant courts in South Africa had found that the section that prescribed sentences in convictions on certain criminal offences were not unconstitutional. [10] The Sections complained of in each one of the said cases were sections 51(1) as read with section 51(3) (a) of the Legislation known as the Criminal Law Amendment Act, 105 of 1997. The reality of these sections is that whereas section 51(1) prescribed that the sentence in certain specified offences (such as murder in certain circumstances) was to be life imprisonment; section 51(3) clarified that where certain substantial and compelling circumstances existed, then life imprisonment was not to be mandatory as the court seized with the matter could impose any sentence it found appropriate. [11] There are in my view obvious differences between the position applicable in the Republic of South Africa and that applicable in Swaziland. This is because whereas the South African position does allow for a lesser sentence than the prescribed one where the court is of the view there are in existence substantial and compelling circumstances, our section 313 (1) and (2) and 8
314 (1) as read with the third schedule to the Criminal Procedure And Evidence Act, make no mention of an exception to the application of the prescription in sentences imposed for the offences mentioned therein. [12] Given that in Sandile Shabangu Vs The King Criminal Appeal Case No.15/07 the Supreme Court had not found it necessary to have the question of the prescribed sentences in terms of section 313 and 314 of our Criminal Procedure And Evidence Act argued and decided if it was unconstitutional, taken together with the fact that I could not have a full and balanced submission on the constitutionality or otherwise of the said sections, I am of the view it would not be safe for me to try and have that constitutional question determined in the present proceedings. I therefore have to approach this matter as prescribed in the said sections 313(1) and (2) and 314 (1) of the Criminal Procedure And Evidence Act of 1938. It suffices that the Supreme Court may, should the matter get to it, find it appropriate to consider this question after fully fledged addresses, perhaps with the assistance of an amicus curiae possibly being appointed by the Chief Justice should he find that advisable to do. 9
[13] Reverting back to sentencing in this matter, it is imperative for me to take into account such personal circumstances of the accused persons as submitted by them and as revealed by the evidence. Both accused persons are first offenders at their current ages said to be 67 years and 76 years respectively. This means that the accused persons have been law abiding citizens until now when they are at the twilight of their lives. I also note that they are both married and that they each cooperated with the court in that they observed all their bail conditions including cooperating with the court during their arrest. They also asked the court to be lenient with them. [14] Specifically applicable to the first accused, he submitted that he is a sickly person who suffers from dizziness (siyeti). He said he was responsible for his grand child as his wife would from time to time be required to spend time away from the homestead, selling handicraft which was their major source of livelihood as elderly people who were not employed. He urged the court to take into account that he was in the situation he was in because of ignorance and because he was trying to comply with a decision of his Umphakatsi. 10
[15] The second accused person on the other hand, submitted that over and above the common considerations applicable to him and the accused, this court should, as specifically concerning him, have regard to the fact that he was an elderly person who was treating himself of cancer, a situation that will worsen to his possible death if he was to be sentenced to imprisonment. He submitted as well that he had cooperated with the court throughout the trial. He further submitted that he was the only one at his home responsible for his livestock for which a single night in custody would result in it roaming freely and causing problems for his neighbours and the public in general. [16] As regards the offences in question, it is not in dispute that the accused persons have been convicted of a serious offence in that they attempted to take a life which is a sacrosanct gift for which no one has the power take away or to even attempt. It is an offence that entails the use of violence. Offences entailing the use of violence are on the rise these days. It is important that this court shows its disapproval of same through the handing down of appropriate sentences that is sentences that are deferent in nature. It makes it worse that in this matter the complainant s parental homestead was being forcefully taken away by the first accused in an apparent abuse of power as an Indvuna or member of the inner council. This should not be 11
allowed to happen in today s world, which is reason enough why this court should nip it from the bud and pass a sentence that has a strong deterrent affect. [17] Although I have also considered the ages of the accused persons in their favour, together with their submission they a sickly elderly persons, I have very little discretion on whether the sentence be a custodial one or otherwise as the sections I have referred to above are very clear. In any event I am sure that the correctional institution is well equipped to meet their special personal circumstances. [18] As regards the interests of society it is clear that society expects to be protected from people like the present accused persons who would use lethal weapons to settle personal scores in situations where they are aggressors. This is in fact despite the fact that in reality the accused persons are elderly persons with the first accused holding a position of responsibility as an Indvuna or a member of the area s Inner Council. In such situations society experts an exemplary sentence which is one that sends a proper message to other would be offenders. It worsens it for them that, they are shown to be 12
people who tried to unlawfully take away land lawfully allocated to orphans or vulnerable children, which society no doubt frowns upon. [19] On the overall, I should say I noted during the hearing of the matter that none of the accused persons expressed their remorsefulness for the situation they found themselves in which could be an indicator they have not learnt their lessons. I will however approach the matter on the basis that they are remorseful and that they could not spell it out because they were not represented. [20] I otherwise find it totally unacceptable that the first accused person as an elderly person found it appropriate to take up without the consent of its owner, the homestead of somebody else. This calls for a sentence that should be reflective in sending a proper message that such conduct will not be tolerated by the courts. It worsens it for the first accused that he is in a position of authority in the area. Ofcourse the same can be said of the second accused from the point of view of the age he revealed as his current one. This age makes society to expect exemplary conduct from him and not what we exhibited. 13
[21] I otherwise note that before they were admitted to bail, both accused persons spent some days in custody which I was informed was five days each and that I must accommodate this in the order I make. [22] It seems to me that whereas the matter in its usual form would most likely require a sentence of between five and eight years, its peculiar circumstances particularly the fact that the Umphakatsi had also played a role in the misunderstanding which ended up fueling the behavior exhibited by the accused persons, a much lesser sentence would have to be imposed. I however cannot help but impose the nature of the sentence as envisaged in terms of the Criminal Procedure And Evidence Act, which is to say it has to be a custodial sentence. [23] Having said all I have above and taking into account all the circumstances of the matter, I am convinced that the following would be an appropriate sentence to impose in these circumstances. 14
[24] First Accused 24.1. The first accused be and is hereby sentenced to three years imprisonment. Second Accused 24.2. The second accused be and is hereby sentenced to three years imprisonment. 24.3. The sentences of the accused persons shall be reckoned in such a way that they take into account the 5 days each one of them spent in custody before being admitted to bail 15