In a stinging criticism, the court castigated the country’s prosecution services for how slow it was in bringing a murder suspect to trial.
By Carmel Rickard
Eswatini’s highest court has strongly criticised that country’s prosecution service for how long it took to bring a murder case to trial. Writing a review judgment in that case, the court called the 13 years it took to begin the trial ‘a form of torture’ for the accused in the matter, adding that the delays were unconstitutional.
A full bench of the supreme court confirmed the revised 23-year sentence imposed on appeal, adding that if the question of the prosecution’s delays had been raised during the hearing of the review, it could have ‘seriously considered’ reducing the sentence by at least five years.
The court called these delays ‘not only a form of torture’ but also unconstitutional because it contravened ‘the speedy trial’ requirements of the country’s supreme law.
Though the court ultimately confirmed the conviction and sentence of the accused in the case, the judges said that if the question of the delayed trial and the infringement of the accused’s fair trial rights had been raised at the review hearing, the court would seriously have considered reducing the term of imprisonment by at least five years.
The review application was brought against the prosecution by Sibusiso Dlamini, convicted of murder. He was accused of assaulting and murdering Lungi Hleta in December 2005. At the end of his trial, Dlamini was found guilty of murder without extenuating circumstances and sentenced to 25 years in jail.
He was convicted of assaulting Hleta with an iron rod after he accused Hleta of taking some money and cigarettes from his
Giving evidence some 14 years later, a witness who had been 12 years old at the time of the incident, said she had been left to keep watch over the shop while Dlamini went out. She said she did not know how much money Hleta had taken, but that she knew Hleta and that he was known in the neighbourhood.
According to Dlamini’s testimony, he was told that Hleta had taken E3,000 which Dlamini said he later found in Hleta’s pockets, on the same day that Hleta allegedly took the money and was assaulted.
Judge M J Dlamini, who wrote the supreme court’s unanimous decision, said that ‘speaking for himself’, he did not believe that any spaza shop in Mbhuleni would have left that amount available for the taking by ‘any casual visitor’.
Dlamini’s main ground of appeal and review was that he had been wrongly convicted of murder instead of culpable homicide and that he had never intended to kill Hleta. Moreover, according to Dlamini, the evidence ‘did not support murder’.
After his original appeal, to a single member of the supreme court, Dlamini’s conviction of murder without extenuating circumstances and his sentence of 25 years were set aside. Instead, he was convicted of murder with extenuating circumstances and his sentence was set at 23 years.
Before a full bench of the supreme court, Dlamini argued that the murder ‘did not qualify to be a murder but to be culpable homicide. The reasons are that the killing of the thief who stole from my spaza shop was not premeditated and neither was it intentional.’
Judge Dlamini stressed that ordinarily, judgments of superior courts were ‘not reviewable’ and the law under which the supreme court could review its own decisions provided a special jurisdiction within ‘tight and restricted boundaries’. The effect of this was that any alleged error grounding a possible review ‘must be patent or exceptional and cause manifest injustice’ to the applicant.
The judge said that the basis of the review in fact amounted to a re-appeal and that this was not the purpose of the section under which the review/appeal was brought.
Miscarriage of justice
The issues raised by Dlamini in his review application had been ‘adequately dealt with’ by the supreme court in the first appeal. ‘To reopen this point would not be a review but a second appeal. I can find no basis for holding that this court on appeal, erred as asserted. … In other words, I find no reviewable error.’
The purpose of the section under which the review had been brought was ‘not to eliminate all errors on appeal. Humans being fallible, that would be impossible.’ The judge said he could find no ‘patent or exceptional circumstances that have occasioned a miscarriage of justice.’
Further, there was no obligation on the court to review its earlier decision. The law provided that the court ‘may’ review a decision, but that implied that the applicant would first have to make out the case for review.
‘If grounds for review were not to be exceptional, there would be review of all decisions of the court: that would be unbearable.’
The supreme court’s review jurisdiction was not to be ‘lightly resorted to or employed’, and the court said it had not been persuaded that the high court and the supreme court on appeal had erred in finding Dlamini guilty of murder.
Having confirmed the conviction and sentence of the accused, the supreme court went on to its criticism of the prosecution for its extreme delays in prosecuting the case.
Judge Dlamini recalled that the supreme court judge who heard the appeal, acting supreme court judge Manzini, noted that the murder trial had only begun ‘13 years after the deceased met his death.’
Judge Manzini had further written, ‘The inordinate delay can hardly be said to be in line with the age-old adage that justice delayed is justice denied, particularly for the relatives of the deceased. We are not aware of the reasons for the long delay, but it is not acceptable.’
Judge Manzini also noted that soon after the death of the deceased, the accused was charged with culpable homicide and released on bail. It was only nine years later, that the charge was changed to murder. And only some four years after that, that the prosecution eventually began.
In his judgment on the review application, Judge Dlamini commented that, as his colleague Judge Manzini had already pointed out, there had been no explanation for the delayed prosecution.
‘Needless to say, this is a matter that should worry and concern the crown; it should not be business as usual where 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 the Sword of Damocles.
‘That in my view is not only a form of torture, but it is a contravention of the speedy trial required by the constitution. Any form of denial of justice should not be taken for granted. Had the matter been duly raised at the hearing, I would have seriously considered reducing the term of imprisonment by no less than five years.’ (