FROM THE HIGH COURT, MAGISTRATES COURT 11yrs for killing ‘troublesome’ countryman
MBABANE – A Mozambican national, who killed his ‘troublesome’ countryman at Madonsa in Manzini, has been sentenced to 11 years imprisonment.
Judge Ticheme Dlamini yesterday issued the sentence after convicting Mario Zavale on April 11, 2023, of the murder of January Muthuki. Both Mozambican men resided at Madonsa.
According to the evidence brought before court, Zavale and Muthuki, with other friends, were together in the evening of July 23, 2016, drinking beers until it was time for them to retire to bed.
Zavale, together with one of the friends, Celumusa Dlamini, went to the flat of the former to sleep. While inside Zavale’s flat, they were joined by another friend, Maninya Da Silva.
A few minutes after the arrival of Maninya, the court was told, Muthuki came and knocked at the door but Zavale refused to open for him.
Refused
Judge Dlamini said the reason Zavale refused to open the door, according to the evidence, was because Muthuki was troublesome once he got drunk. Muthuki did not take kindly to the act of refusing to open for him and he started kicking the door until it broke open and he entered into the flat.
“While he was kicking the door, the accused took an iron rod that he used to assault the deceased when he succeeded to forcefully gain entry into the flat.
Celumusa tried to intervene and separate them but he failed.
“He, however, was able to push them out of the flat and the fight continued outside. The accused then shouted for his knife, according to the evidence, and went inside the flat and armed himself with a knife. He came out of the flat and stabbed the deceased,” reads part of the judgment.
Zavale and Muthuki were both taken by the police to the Raleigh Fitkin Memorial (RFM) Hospital in Manzini, where the former was treated and discharged. Muthuki was admitted to the hospital and later died.
According to the evidence of the pathologist, who also prepared a report on the death, Muthuki was injured in the right lung and his left cheek was swollen, while the face was pale, among other injuries.
Having considered the evidence, Judge Ticheme said the court found that mens rea, in the form of dolus eventualis, was present, resulting in Zavale being convicted of murder.
Mens rea refers to the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused. Dolus eventualis means intent in which the perpetrator sees an outcome as a possibility and continues with it.
The judge also said, in considering an appropriate sentence for the offence, he was bound to consider the triad. This involves balancing the offence, the interest of society, and the personal circumstances of the accused, in order to come out with the appropriate sentence to impose.
The Crown submitted that Zavale used a dangerous weapon to kill his countryman. Crown Counsel Mbutfo Mbingo submitted that the weapon was used on a delicate part of the body, and the resultant injury penetrated the right lung. Mbingo also stated that the offence was of a serious nature as it involved the loss of a life.
The Crown further submitted that Zavale did not make any means to ascertain the extent of the injuries sustained by Muthuki, and did not attempt to find means by which he could be rushed to hospital.
“This conduct, according to the Crown, indicates that the death did not occur by mistake,” Mbingo said.
He implored the court to impose a harsher sentence.
The Defence Attorney, Linda Dlamini, on the other hand, urged the court to impose a sentence that was blended with leniency. He submitted that Zavale was a first-time offender, with a minor who would be turning 12 years in September this year.
Rehabilitated
Linda told the court that Zavale committed the offence at a youthful age of 28 years, and that the more than six years he had already spent in a Correctional facility had, to some extent, rehabilitated him. He further submitted that Muthuki was the aggressor, and that they were drinking alcohol on that day.
Judge Dlamini said he considered Zavale’s personal circumstances as well as that the offence was most serious as it involved the taking away of a human life; a life that is protected by the Constitution of the country. The judge said Zavale made no attempt to ascertain the extent of the injuries he inflicted upon Muthuki and he sought no help to take him to hospital.
“The offence rendered a minor fatherless, and permanently deprived the child of the support of a father. The sanctity of life needs to be respected and protected. The courts are the institutions upon which society looks up to for protection of human life and against other transgressions.”
The court backdated the 11-year sentence to July 23, 2016, being the date on which Zavale was arrested.