PRISON IS TOUGH - NTUTHUKO; CROWN PUSHES FOR LIFE SENTENCE

MBABANE – “Prison is tough.”

Former Public Works and Transport Minister Ntuthuko Dlamini made this remark yesterday when he was speaking to some of the people who had come to court to give him moral support. This was after the Supreme Court reserved its judgment in the appeal that was filed by the Crown against Ntuthuko’s sentence for the murder of three Luyengweni Inner Council members who were meeting to allocate land in the area to a resident. While Ntuthuko told his relatives and supporters that it was tough to be in prison, the Crown, on the other hand, wants him to be imprisoned for life.

On behalf of the Crown, Advocate Francois Roets said the sentence of 20 years that Ntuthuko is serving for the murder of three council members was strictly inadequate ‘if you kill three people with an illegal firearm’.  The deceased are Sikhulu Shongwe, Simon Dlamini and Themba Tsabedze. They were shot on September 7, 2020 at Mhlabubovu. Yesterday, the Supreme Court heard arguments in the appeal against Ntuthuko’s sentence of 20 years for each of the three murders, which the High Court ordered to run concurrently with the sentence of five years or E5 000 fine for possession of an illegal firearm.

Serve

This meant that Ntuthuko would serve only 20 years in prison for the triple murder. The sentence was issued by Judge Maxine Langwenya. The DPP’s grounds of appeal were that the High Court erred in law in finding that Ntuthuko had intention in the form of dolus eventualis instead of direct intention (dolus directus).  Dolus eventualis is intent in which the perpetrator sees an outcome as a possibility and continues with it. Roets argued that Ntuthuko arrived at the inner council members’ meeting place, called the people he found there timfucuta (chuff) and subsequently shot them. He said when he analysed the judgment of the High Court, Ntuthuko called the Bhunya station commander and told him that there would be bloodshed if he did not come to the meeting area.

“What followed was bloodshed. Dlamini (Simon) was shot in the arm and in the abdomen. His defence was brazen lies. There was no plausible excuse for his conduct,” said the advocate.
He pointed out that the High Court found that the murder was committed with dolus eventualis. “We do not cross roads with the findings of the court a quo (High Court), but the application of the law does not amount to dolus eventualis. The High Court applied the law wrongly.  “There is no elucidation why the judge found that he acted with dolus eventualis. The High Court found that before he left, he gloated. He shot and injured Dlamini (Simon) when he was lying on a rock,” said Roets. He argued that, looking at the bulk of the evidence, it could not be said that Ntuthuko acted with dolus eventualis. He said this was a misapplication of the law by Judge Langwenya.

Judge Nkululeko Hlophe asked if the advocate contended that the sentence should have been more and he agreed emphatically. Judge Hlophe went on to ask how the context in which the incident happened affected the sentence.  “Would it matter if it was so polluted or the background was terrible, should it matter if it is dolus eventualis or direct intention? Should that background have a bearing on the sentence? You concluded that there was killing, but it comes from a terrible background, should the context matter?” Judge Hlophe enquired.

The advocate said there were procedures in place for dissatisfied people and added that the context would have a bearing. Judge Hlophe further asked: “Where do you fault mitigation in this particular context to get to the sentence of 20 years? Would you treat it like a case of a person who simply comes and shoots you? Roets said people contain themselves. He argued that Ntuthuko shot three people who were minding their own business. “He called the police and said blood would flow.  He continued with his diabolic conduct and killed three people. This country still imposes the death penalty in appropriate circumstances,” Roets said.

He submitted that Ntuthuko’s conduct was not a spur of the moment. The advocate stated that Ntuthuko did not take the court into its confidence to say ‘I’m sorry’. “He elected to deliberately lie. He went on throughout the trial to say he acted in self-defence. I don’t close my eyes to that there are land disputes in the country which may arouse people’s tempers. Why did he gloat? He should have realised that he killed three people and said I’m sorry, but he gloated. It should reflect on the sentence,” said the advocate. “If it was not ordered that the sentences should run concurrently, would the Crown have felt the same,” asked Judge Hlophe.

Roets said there would still be a mistake. He said this was a consequential offence. The judge further asked the advocate that if Ntuthuko’s three sentences of 20 years were ordered to run consecutively (one after the other), would the Crown have appealed the sentence? “It is actuated by that he is serving 20 years. If it is the application of law, where do you fault it?” the judge enquired from the advocate.  Roets said if the sentence was much harsher, say 40 to 50 years, ‘but I can’t speak on behalf of the DPP, who took the decision to appeal’. He said he believed that despite the alleged error made by the High Court, 20 years would have never reflected as an appropriate sentence. “(If it was harsher), we would have never appealed, as even the country would be satisfied with the sentence,” said Roets.

In the end, said Judge Hlophe, it is justice being done; manifestly being done. The advocate said appropriate sentences should be issued. Judge Hlophe went on to ask the advocate how he would have ameliorated it. The advocate said previous sentences provided guidance, and 20 years was not adequate in this case. The court reserved judgment in the matter.

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