No review for ‘Bizzah’s 23-yr sentence
MBABANE – The Supreme Court has made certain Sibusiso Kukuza Dlamini’s long stay in prison.
The court yesterday dismissed Sibusiso’s review application of his conviction and sentence by the High Court. At the High Court, Sibusiso, popularly known as ‘Bizzah’, was convicted by Judge Titus Mlangeni of the murder of Lungi Hleta on Boxing Day in 2005.
Hleta was suspected of stealing E3 000 from Sibusiso’s spaza shop at Mbhuleni. Judge Majahenkhaba Dlamini said he did not believe that in a spaza shop at Mbhuleni, there could have been that amount left open for the taking by any casual visitor.
Judge Mlangeni sentenced Sibusiso to 25 years. He filed an appeal at the Supreme Court, which set aside the conviction of murder without extenuating circumstances and the sentence of 25 years.
Conviction
These were substituted with a conviction of murder with extenuating circumstances and he was sentenced to 23 years imprisonment. The judgment was upheld in other respects.
The review was heard by Judge Dlamini, together with Judge Stanley Maphalala andActing Judges Mbutfo Mamba, Judith Currie and Andreas Lukhele. Sibusiso was represented by Xolani Mthethwa. Principal Crown Counsel, Absalom Makhanya, appeared for the State.
The murder trial commenced on May 7, 2018, which was 13 years after the offence was committed. On appeal, Acting Judge Mabandla Manzini noted the long delay in the start of the trial and said the court was not aware of the reasons for the delay. The accused went nine years without prosecution, and the charge was altered to murder from culpable homicide. Prosecution began four years after the charge had been altered.
In the review judgment, Judge Dlamini said: “This is a matter that should worry and concern the Crown; it should not be business as usual where the prosecution has been delayed to the extent that it could reasonably be said that justice has been denied.
“For 13 years the applicant had a charge of a very serious nature hanging over his head like a Sword of Damocles.”
The judge said had the matter of the delay been duly raised at the hearing, ‘I would have seriously considered reducing the term of imprisonment by no less than five years’.
When the review was argued, Sibusiso said the Supreme Court on appeal failed to take into account factors that affected his mind to determine whether he subjectively foresaw that his conduct would result in the death of Hleta.
He argued that it appeared that the court had regard to the nature of the weapon used when committing the offence, to come to the conclusion that he must have appreciated that his conduct might result in Hleta’s death, and was reckless whether death resulted or not.
He further submitted that the court came to the conclusion that the failure to cross-examine one Sabelo Dlamini on his testimony that he assaulted Hleta with an iron rod, meant that the contention that the Crown failed to establish dolus eventualis could be sustained.
Conduct
In law, dolus eventualis is where an accused person can objectively foresee that his conduct is likely to cause the death of another, but proceeds to act regardless of the consequences of his conduct.
Sibusiso argued that the court, having been seized with the enquiry or question whether the Crown had established dolus eventualis, had to enquire into factors which may have affected his mentality at the time he committed the offence, in determining whether he subjectively foresaw that his conduct would result in the death of Hleta.
“By having regard only to the nature of the weapon used and the nature and situation of the fatal injury, this honourable court limited its enquiry in determining whether the Crown had established dolus eventualis. “It is argued that though having regard to the nature of the weapon, and the part of the body where the injury was inflicted assisted the court in its inferential reasoning that these are not the only factors that the court should have regard to.
“It is argued that the court should also have regard to factors which may have affected the mentality of the particular accused at the time he committed the fatal act, determining whether he subjectively foresaw that his conduct would result in the death of the deceased,” argued Sibusiso.
He submitted that he was provoked by Hleta’s conduct of stealing his money and cigarettes, such that he found him and it was confirmed by one of the witnesses that he was the one who had stolen the items, and he assaulted Hleta with open hands.
Principal Crown Counsel Makhanya argued that the court had to ask itself whether or not in the current matter had there been manifest injustices committed by it. Further, according to the Crown, whether or not Sibusiso was in effect seeking to reargue the appeal which had already been dismissed by it.
Dismissed
The Crown said Sibusiso sought to reargue the whole appeal that was dismissed by the Supreme Court. “He has failed to show that there is manifest miscarriage of justice,” argued Makhanya.
He said the court had stated that the test for dolus eventualis in its judgment. Makhanya also submitted that the court had reiterated the High Court’s findings that Sibusiso failed to cross-examine Sabelo Dlamini of the Supreme Court’s judgment on the appeal.