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WHAT JUDGE MPENDULO SAID BEFORE PASSING SENTENCE;

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On 17 July 2014, I convicted all four (4) accused persons on both counts of contempt of court. (The task at hand today is sentencing.  In disposing of this task, I take cognizance of the fact that the law demands that I consider the triad, which is the personal circumstances of the Accused, the seriousness of the offence and the interests of the society. 

See Mfanasibili Gule V The King Criminal Case No. 02/11 para. 17 and The King V Sibusiso Xolani Dlamini Case No. 42/11 para 26 and 27.  More to the foregoing is that the sentence is expected to blend in a measure of mercy according to the circumstances.  In the case of S V Harrison 1970 (3) SA 684 (A) at 686 Holmes JA demonstrated this trite principle of law as follows:-  “Justice must be done, but mercy not a sledge hummer is its concomitant.”  I have also armed myself with the oft quoted dictum by Holmes JA in the case of S V Rabie 1975 (4) SA 855 A


“Punishment should fit the criminal as well as the crime, be fair to society and blended with a measure of mercy according to the circumstances.”
[3]Further to the above I lean upon the wisdom that fell from the lips of Tebutt JA in the case of Ntokozo Dlamini and Another v The King Criminal Appeal No. 10/2001.
“The seriousness of their crimes, their moral blameworthiness and their lack of remorse or regret, justify lengthy sentences of imprisonment.  Society would require this court that it marks its severe disapproval of this type of behaviour.  Its sentence must also serve as a deterrent not only to the appellants to abstain from similar behaviours in the future but to others who may have like minded scheme in contemplation.”

It is also important to record upfront that in dealing with sentence in the matter I have duly heeded the salutary caution not to approach such sentence in a spirit of anger.  I have sought to balance all the relevant factors in the matter.  See Xolani Zinhle Nyandzeni v Rex, Case No. 29/2010

 

 In honour of the above trite principle of the law, I have considered the following mitigating factors as adduced by Accused 1-3.  They stated under oath in mitigation as follows:-

(1)    That Accused 2 ( Bheki Makhubu) is 44 years old.
(2)    He is married with four (4 children, who are all school going).
(3)    That he is employed as an Editor of Accused 1.
(4)    That his wife is employed in one of the law firms in Mbabane             as a Personal Assistant.
(5)    That the first Accused is a very small business with a very             minimal income.
(6)    That the first Accused has six (6) employees.
(7)    That the first Accused is published once a month due to financial
    constraints and has a production of 3000 copies a month.
(8)    It was further submitted by Advocate L. Maziya for Accused 1-3
    that the Court should be lenient as the publications in issue are         not as robust as those in the matter that was before the Supreme
    Court.


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