Rex v Magongo (146/2022) [2023] SZHC 291 (20 October 2023)

# Rex v Magongo (146/2022) [2023] SZHC 291 (20 October 2023) [ __](https://api.whatsapp.com/send?text=https://eswatinilii.org/akn/sz/judgment/szhc/2023/291/eng@2023-10-20) [ __](https://twitter.com/intent/tweet?text=https://eswatinilii.org/akn/sz/judgment/szhc/2023/291/eng@2023-10-20) [ __](https://www.facebook.com/sharer/sharer.php?u=https://eswatinilii.org/akn/sz/judgment/szhc/2023/291/eng@2023-10-20) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://eswatinilii.org/akn/sz/judgment/szhc/2023/291/eng@2023-10-20) [ __](mailto:?subject=Take a look at this document from EswatiniLII: Rex v Magongo \(146/2022\) \[2023\] SZHC 291 …&body=https://eswatinilii.org/akn/sz/judgment/szhc/2023/291/eng@2023-10-20) [ Download DOCX (136.0 KB) ](/akn/sz/judgment/szhc/2023/291/eng@2023-10-20/source) Toggle dropdown * [Download PDF](/akn/sz/judgment/szhc/2023/291/eng@2023-10-20/source.pdf) Report a problem __ * Share * [ Download DOCX (136.0 KB) ](/akn/sz/judgment/szhc/2023/291/eng@2023-10-20/source) * [Download PDF](/akn/sz/judgment/szhc/2023/291/eng@2023-10-20/source.pdf) * * * * * Report a problem __ ##### Rex v Magongo (146/2022) [2023] SZHC 291 (20 October 2023) Copy citation * __Document detail * __Related documents Citation Rex v Magongo (146/2022) [2023] SZHC 291 (20 October 2023) Copy Media Neutral Citation [2023] SZHC 291 Copy Hearing date 19 September 2023 Court [High Court of eSwatini](/judgments/SZHC/) Case number 146/2022 Judges [Magagula J](/judgments/all/?judges=Magagula%20J) Judgment date 20 October 2023 Language English Summary Read full summary * * * Skip to document content ### _HELD AT MBABANE_ _**IN THE HIGH COURT OF ESWATINI**_ _**CASE No**_ _**.**__**146/2022**_ In Matter bet ween: ### REX And ### SEBENELE MAGONGO **Neutral** **citation:**_Re_ _x_ _v_ _Sebenele_ _Magongo_ _(__146_ _/22)_ _SZHC_ _291_ _[2022]__(__20.10.2023)_ **CORUM:** Magagula Z **Date** **heard:** 22.08 .23 & 19.09.23 **Date** **delivered****:** 20.10.23 _Summary:_ _Sentence:_ _Criminal Law_ \- _Culpable Homicide_ \- _accu_ _se_ _d_ _charged with Culpable_ _Homicide_ \- _Accuse_ _d_ _Pleadin_ _g_ _guilty_ _-_ _sta_ _t_ _em_ _e_ _n_ _t_ _o_ _f_ _agree_ _d_ _fact_ _s_ _pre_ _s_ _e_ _nte_ _d_ _-_ _A_ _c_ _u_ _se_ _d_ _foun_ _d_ _guilty_ _of the_ _charge._ _Court_ _con si_ _dered rage_ _of sentencing_ \- _Interest_ _of society not be_ _served_ _by wholly custodial_ _s_ _entence._ _Ac_ _c_ _used_ _sentenced_ _to_ 7 _000_ _.__00_ _fine or_ _5_ _years_ _imprisonment._ [2] Homicide. It is alleged in the in 1ctment as fo llo w s; _"In_ _that upon_ _or out the_ _16_ _th_ _March_ _2022 and at or near_ _Mbadlane area i the Lubombo Region, the_ _said accused_ _person did unto ully and negligently_ _kill one_ _Thabi_ _so_ _Magongo by_ _stra_ _ulating him and did thereby_ _commit the crime of_ _Culpable_ / _omicide"_ When the accused was arraig d in court on the 22nd August 2023 duly assisted by Counsel, he plead I guilty to the charge. [3] The Crown accepted the plea d informed the court that a st at ement of agreed facts would be filed., n the 1 9 t h September the statement of agreed facts was filed and th Crown further submitted a photo album with pictures taken from the ne, a post-mortem examination report, a statement made by the accu . d before judicia l officer, Lungile Shongwe of the Siteki Magistrate cour the affidavit of 7379 Detective Constable Thembinkho si Hlandze, two I amsung cellphones and all these were admitted into evidence by co Ient. [4] The st at ement of agreed fac w hose contents were confirmed by both the accused and his counsel s read into the record as follows: The accused and the decease are brothers. The accused was home with his mother when the deceas came home with one Ncamiso Ndzinisa. The deceased borrowed the cused's house key and went to the house. The accused who wanted o charge his phone followed him and proceeded to retrieve the c deceased was in the kitchen deceased refused to hand o with which he poked the ace rger from his bedro om. At that time the d when accused asked for his key back, the r the keys and picked up a "brick" hammer sed and challenged him to a fight. [5] The deceased proceeded to · the accused on the head with the hammer. A st r uggl e ensued between t two until they were separat ed by Ncam iso Ndzini sa and accused's mot [6] [7] The deceased who was suf ring from so m e sort of mental disorder was encouraged by the mother I take his m edicatio n and also admonished to refrain from taking alcoh I becau se he was noticeably drunk. Accused went back into th house and locked himself in. The deceased managed to unlock the mai oor, entered into the house, armed himself with a bush knife and went to the accu sed' s bedroom demanding that they fight until either of th m died. Sadly, that is what happen ed. The deceased went on to attac I he accused who lost h is temper and fought back. He st r angulat ed the d eased until he died. 8. When the accused realised hat the deceased was no longer struggling, he info rmed the elders wh came to see for t hem selves and concluded that the deceased was dea The alarm was r aise d, neighbours came to assist and member of the P li ce Service were called. 8. The report on post-m o rt e death was "death due to m examination concluded that the cause of ual strangulation" [10) I am of the considered view at the Crown has in the statement of agreed facts as well as the accused own plea of guilty, proved its case beyond reasonable doubt . The accu d is accordingly found guilty of the offence of Culpable Homicide. [11) The verdict was pronounce in court on the 19th September 2023. The acc used bail was then term ated in accordance with Section 145 of the Cr im ina l Procedure and Evid ce Act 67/1938 and remanded into custody pending sentence **JUDGEMENT ON SENTENCE** 12. In Mitigation of sentence it as subm it t ed on behalf of the accused that he is a first offender, had hown remorse by pleading guilty and not wast ing the court's time, he ad a wife and two very young children who all depended on him for ma1 t enance ; t his he did by doing odd jobs for a living. [13) It was further submit t ed th the court should take into account the fact that the deceased w as the a r esso r who first st ruck the accused with the brick hammer then challen d him to a fight while brandishing a bush knife. ' 14. In considering what is appro riate sentence, the court is guided by the wise words of **Ho****l****mes JA** **i****n** **S Rabbie 1975 (4) SA 855** where he said; _"Punishment sh_ _Id fit the Criminal as well_ _a_ _s_ _the_ _crime, be_ _fair to society_ _d be blended with a measure_ _of_ _mercy acco_ _r_ _di_ _n_ _g_ _to_ _the_ I _ircumstances"_ 14. ## Against the accused's person interest of society. A life was accused acted differently su being alive to the fact that t an "arm-chair critic. circumstances, the court must balance the st in circumstances where perhaps had the loss could have been avoided . This, I say court shou ld avoid taking the position of 14. In **S v Zinn 1969 SA** **(2) at** **54** he court admonished that; # _11_ _A Judicial offic_ of anger becaus him to achieve t criminal and the object of senten _s_ _h_ _ould_ _not_ _approach_ _punishment_ _in_ _a_ _spirit_ _being human, that will_ _make it_ _difficult_ _for_ _t delicate balance between the_ _crime,__the terests of society which is his task and the ng"_ [17) And in S v Rabbie (supra) a 865, the court cautions that punishment should not be approached in spirit of anger _**"because he who**_ _**c**_ _**ome**_ _**s**_ _**to punishment with a wrath**_**w** _**never hold that middle course which lies between**_**too** _**much and**_**too** _**I**_ _**tie"**_ ## [18) In this jurisdiction sentencin rends are such that sentences for Culpable Homicide range from zero to en years with each sentence reflecting the seriousness of the off ence. he appeal court had this to say in Musa Kenneth Nzima v Rex Crimin I Appeal no. 21/2007: _"There_ _are_ _ob_ · _usly varying de gree_ _s_ _of culpability in_ _Cu_ _l_ _pable Hamic_ _e_ _offences. This_ _court_ _has recognised this and in_ _co_ _n_ _firmi_ _a_ _sentence_ _of 10 year's_ _imprisonment in_ _what it de_ _scr_ _i_ _d as an extraordinarily_ _serious case of_ _cu_ _l_ _pable_ _homici_ I _said_ _that_ _t_ _h_ _e_ _sentence was proper_ _for an_ _offence "at "he ost_ _serious end_ _of the_ _scale_ _of_ _such_ _a_ _crime"_ _**{See Bongani umsani Amos Dlamini v Rex ca**_ _**s**_ _**e**_ _**no.12/**__**2005 )**__**.**__A ntence_ _of_ _9 year's_ _seems_ _to me also to_ _be_ _warranted in cu able homicide conviction only at the_ _mo_ _s_ _t_ _serious end_ _oft_ _scale_ _of_ _such crimes.__It_ _is certainly_ _not_ _one to be imposed_ _i_ _v_ _e_ _ry_ _s_ _u_ _ch con_ _viction.__The present appeal_ _is_ , ·. # _one such_ _case. A_ re fe rred , it seem the individual _rt from the misdirection_ _to which_ _I_ _earlier_ o _me that in_ _s_ _uffi cient_ _weight was given to cts of_ _the_ _case and to the personal e_ _Appellant"_ [19] Also quoted with approval by ophe J (as he then was) in **Re****x****v****M pend****u****lo****Bonny Ginindza {****1****67 /2017)**[ 1 **20]****SZHC 77** **.** ## [20] [21] ## It seems to me that the offen scale and a custodial senten the appropriate sentence. A Mpendulo Bonny Ginindza ( with money, there are inst custodial one should be serio The present matter is, in my the circumstances of the accused and interests of so custodial sent ence. Factors aggressor, had armed hims ready to fight to the end, t offence and though his acti self defence, he was defendi in this matter is on the lowest end of the s without the option of a fine may not be bserved by Hlophe J (as he then was) in pra) "Even though life cannot be bought ces where an alternative sentence to a ly considered and perhaps even imposed" inion, once such inst ance and I believe that tt er, the personal circumstances of the ety may not best be served by a wholly uch as that the deceased was the init ial with a bush knife and declared himself accused pleaded guilty to a very serious s may have fallen short of the defence of himself. 22. In the result the following se enced is passed against the accused. 1. The accused is s tenced to a fine of E 7 000.00, in default of isonment for a per iod of 5 years. 2. Half the senten is suspended for a period of (3) thre e years on the conditi that the accused is not conv ict ed of an offence in whic violence is an elem ent . 22. On application by Counsel f the accused, there being no objection from the Crown the bail deposit i the su m of E 3 000.00 paid by the accused on 25t h March 2022 is conveIed to be part of the fine. **e****H****ig****h****C****o****u****r****t** * ' < ### _Appearances:_ For the Crown - B.Fakudze (DPP's Cham ber s} For the Defence - M. V Nxumalo 1 #### __Related documents ▲ To the top >