Times Of Swaziland: JUDGE MUMCY REGRETS ERROR

JUDGE MUMCY REGRETS ERROR
================================================================================
BY TIMES REPORTER on 13/10/2021 08:32:00


MBABANE – “I regret the error.”
Judge Mumcy Dlamini now wants the Supreme Court to correct her judgment where
she inadvertently wholly suspended a sentence of a murder accused. The judge has
since written to the registrar of the High Court, asking her to place the matter
before the Supreme Court. “Kindly place before the Supreme Court the matter
for correction of sentence which was inadvertently suspended at my instance,”
reads part of the minute dated September 11, 2021.
Memo
In the memo, Judge Dlamini highlighted that her attention had been drawn to
Section 313 of the Criminal Procedure  and Evidence Act No. 67 of 1938. Section
313 (2) of the Criminal Procedure and Evidence Act provides that: “If a person
is convicted before the High Court of any offence other than one specified in
the third schedule, it may pass sentence but order 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 sub-sections (4) and (5) respectively.”
Judge Dlamini said now that she was functus officio, it was her considered view
that the Supreme Court was the only competent court that could correct what she
described as the travesty of justice. “By copy hereof the chief justice’s
attention is humbly drawn to this matter,” concluded the judge. Judge Dlamini
sentenced Musa Zibunywana Nkomo to five years and suspended the entire sentence
for a period of five years on condition that he was not found to have committed
an offence involving violence against another.
Nkomo, who is a seasonal cane cutter was found guilty of murder, in that on
October 4,2015, near Lusoti Village in the Lubombo Region, he killed Bongumusa
Tsabedze using a stone.  He had been arrested with Mduduzi Sonnyboy Mamba, who
was, however, acquitted.  The incident is said to have happened after a drinking
spree at KaMgico, which is a popular drinking spot in Simunye.
In her judgment, Judge Dlamini highlighted that the triad principle was at the
backdrop of her mind as she considered the appropriate sentence in this matter.
She said on the first principle, which was personal circumstances of the
accused, it was common cause as submitted by the defence that Nkomo was of
youthful age during the commission of the offence. It was also brought to the
attention of the court that the accused had set out on a drinking spree in the
company of other youth on the fateful day.