The court..., returned a verdict of guilty to the lesser charge of culpable homicide as pleaded.The defence counsels addressed the court on mitigation....,.For the first accused, additionally, the fact that the offence was not pre-meditated but rather one that arose from an act of provocation was equally regarded as ...
The court..., returned a verdict of guilty to the lesser charge of culpable homicide as pleaded.
The defence counsels addressed the court on mitigation....,.
For the first accused, additionally, the fact that the offence was not pre-meditated but rather one that arose from an act of provocation was equally regarded as a factor to be stirred into the pot of leniency.
The court's attention was drawn to the case of S v Silent Kazembe HH378-15 in which the court held that provocation, or the lack of premeditation, should not be ignored when determining an appropriate sentence.
In that case, which had come on review from the lower court that the latter had imposed a sentence of seven years imprisonment. On review, the court, in analysing mitigatory factors, reduced the sentence to three years.
Counsel for the first accused highlighted, however, that, in that case, the accused had compensated the deceased's relatives and assisted at the funeral - factors which may have further nudged the court towards a more lenient altered sentence.
The accused herein was said not to have been in a position to render such assistance because he was in custody at the time of the funeral....,.
Counsel for the State highlighted, that, equally aggravatory was deemed to be the absence of compensation of any sort paid to the deceased's family in keeping with cultural expectation where a loss of life has been inflicted. This was said to be indicative of a lack of contrition on the part of both accused persons....,.
I turn now to the State's counsel's proposition, that, in deciding on the appropriate sentence some weight should be attached to the fact that neither of the accused have paid any compensation to the deceased's family and neither did they assist in burying the deceased.
State prosecution is indeed at the core of the official criminal justice system in bringing those who commit crimes to book. It is just as true that criminal prosecutions, in the context of the official law, are not the sole determinants of justice. Influenced by deep-seated customs and traditions, people often draw on their own norms of compensation where there has been a killing. These norms centre on reparations rather than retribution: see S v Silent Kazembe HH378-15 where the accused had assisted at the deceased's funeral with cash and a beast and had also been charged three beasts as compensation.
There are clearly positive aspects in the conscious effort to incorporate aspects of the traditional justice system in the formal criminal justice system in the State's reasoning on sentence. It increases the legitimacy and relevance of the criminal justice system as a whole in a context where parallel systems of law in essence remain very real in the lives of the people.
But, there is also need to appreciate the fuller picture.
It is important to recognise that the wider family, as opposed to the accused, is often at the centre of these payments.
In casu, the accused were said to be young and would hardly have accumulated any assets of their own. No doubt, the harsh economic climate will have had an impact on the ability to pay. As such, poverty per se should not be a reason for imposing a harsher sentence. In any event, the payment of reparation under customary norms is not time bound. The sins of the father are said to affect generations.
Also, too lengthy an incarceration for culpable homicide, founded as it is on negligence and recklessness as opposed to actual intention to kill, would merely delay the accused's availability to put into motion that which the official justice system does not achieve.
