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JUDGE MUMCY REGRETS ERROR

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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. 

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