MBABANE – The Supreme Court of Eswatini has added 15 more years for former politician Ntuthuko Tsembalenkanyeti Michael Dlamini for the murder of three people.
In a rare appeal noted by the Director of Public Prosecutions (DPP), Dlamini who had been serving 20 years for the murders of Themba Tsabedze, Simon Sipho Shongwe and Sikhulu Shongwe on September 7, 2020, as well as a fourth count for being in possession of an illegal firearm, was given 15 more years on top of the sentences on Thursday.
The Acting DPP Lomvula Hlophe had submitted that Dlamini’s conviction on three counts of murder and that of contravening the Arms and Ammunition Act of 1964 should be treated as dolus directus – direct intention – rather than the findings of the High Court’s dolus eventualis – foreseeing the possibility of committing an unlawful act.
Hlophe said when looking at the facts and circumstances, it does not support that finding at least on two of the counts namely the second and third counts. The Crown contended that an inappropriate sentence ended up being imposed and that there was misdirection, urging for setting aside of the erroneous sentences and be substituted with those considered appropriate.
The judgment by Justices of Appeal N. J. Hlophe, with S.J.K Matsebula and J.M. Currie, agreeing, stated that Dlamini’s conviction and sentencing was too lenient.
“There is little doubt in my mind that had the circumstances been different from what they were exposed by the evidence to be in this matter, I would have had no difficulty in imposing a harsher or even a consecutive sentence,” Justice Hlophe said.
The Crown contended that its case was about whether the High Court properly applied law to the facts, adding that it was an error in finding that Dlamini was actuated by legal intention in all the counts of murder.
The Crown also said the sentence imposed should be set aside and replaced with an appropriate one in the circumstances.
“The starting point is the acknowledgement that the imposition of sentence is a matter that primarily lies in the discretion of the trial court and the court of appeal cannot interfere unless the discretion was not judicially exercised, that is to say unless the sentence is vitiated by an irregularity or a misdirection or is so severe that no reasonable court could have imposed it,” the Acting DPP said.
The justices said as a general rule the sentences should be made concurrent, saving Dlamini a collection of 95 years imprisonment. The justices also said that what constitutes exceptional circumstances that will influence a consecutive order of sentence will depend on the peculiar facts and circumstances of each case.
The justices also said that they found the maximum sentences would still not protect the public from the offender for a sufficiently long time.
“Where the aggregate terms of imprisonment is of such severity that it is wholly out of proportion to the gravity of the offences considered as a whole.
“The sentence I contemplate is one where the single sentence would ensure that it is capable of protecting the public for a longtime whilst from the accused including it having to ensure the public will fill he did receive sufficient punishment for what he did whilst at the same time ensuring that the offender is himself protected from the severity that may be brought about by the aggregate of the sentences having to run consecutively which may make it appear like an oppressive sentence was being passed,” Justice Hlophe said.
The appeal succeeded in maintaining the conviction for three murder counts on the basis that counts two and three are altered.
On count one, the new sentence was maintained at 20 years imprisonment; on count two, altered and fixed at 35 years imprisonment; on count three, the sentence was also altered and fixed at 35 years imprisonment; while on on count four, the sentence is maintained that Dlamini must pay a fine of E5000-00 failing which he is sentenced to five years imprisonment.
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