R v Ntai (CRI/T/110/2002)

Case No: 
Media Neutral Citation: 
[2004] LSHC 144
Judgment Date: 
17 November, 2004




In the Matter Between:





Delivered by the Honourable Ms Acting Justice N. Majara on the 17th November 2004

The accused was charged with the murder of one 'Makakana Nkholise at ha Koali in the district of Quthing. He pleaded guilty to the lesser charge of culpable homicide and I convicted him and sentenced him to imprisonment for a period of seven (7) years imprisonment half of which I suspended for five (5) years on condition that accused was not found guilty of any offence involving violence committed during the period of suspension. I stated that my reasons would follow. I now proceed to give my reasons.


On the date of hearing, Ms Maqutu who was representing the crown accepted the accused's plea. She then informed the court that in terms of the provisions of Section 240 of the Criminal Procedure and Evidence Act 1981, it was not necessary that she outlines a summary of the facts. The section in its subsection (1) (a) provides as follows:

"If a person charged with any offence before any court pleads guilty to that offence or to an offence of which he might be found guilty on that charge, and the prosecutor accepts the plea the court may if it is the High Court, and the person has pleaded guilty to any offence other than murder, bring in a verdict without hearing any evidence:..."

The court however ordered that the crown should outline the summary of the evidence so as to be able to appreciate the facts of the case which would in turn enable it to return a proper verdict and appropriate sentence. The facts were that on the 25th July 2001, the accused and the deceased who were lovers went out to a drinking place and consumed some alcohol. Both then left the drinking place together. Later on, the accused was seen brutally assaulting the deceased and despite several attempts to stop him, accused refused to stop. The accused was hitting the deceased with his bare hands. The deceased was later found dead at her home.


The medical report showed that the deceased had multiple lacerations on the face and neck and that there was constriction around the neck. The post- mortem report showed the cause of death as respiratory failure.

On the basis of the evidence, I found the accused guilty of culpable homicide. This is because although his actions were unlawful, he did not exhibit the intent to kill the deceased. However, from the medical evidence and the evidence of the eyewitnesses, accused applied such extreme force including strangling the deceased that he ought to have foreseen that either serious injury and/or death might result from his actions. Human experience is such that strangling someone, over and above repeatedly hitting them, especially when that person is a female who is physically weaker than the assailant, is likely to cause death in the eyes of a reasonable man. See the case of S v Dube 1973 (3} SA p 153. There is therefore no doubt in my mind that the cause of death was the multiple injuries found all over the deceased's upper body. I therefore found the accused guilty of culpable homicide.

In mitigation, the defence counsel, Mr Mpaka informed the court that the accused was drunk when he committed this offence. He also showed that his pleading guilty to culpable homicide was a sign of remorse on his part. Accused was also said to have a family and young school-going children. The


court was also asked to take into account the fact that accused had been incarcerated in prison since 2001 and that as he is the sole breadwinner for his family and as a result since his incarceration, his youngest child has not been able to attend school. Lastly, the court was informed that the accused is willing to "raise the head."


In passing sentence I took into account all the factors raised in mitigation by the defence lawyer and the fact that accused is a first offender. I also considered the fact that the deceased has also left her family behind who are still grieving her loss. I also took into account the fact that she was a defenceless woman, yet the force that the accused used to assault her was brutal not to mention that despite attempts to stop him, he refused.

Although intoxication does somewhat lessens the blameworthiness of a person, I do not think that using it as a mitigating factor should be encouraged by the courts. People should be responsible enough to know whether or not they can handle alcohol. They should not be allowed to escape appropriate punishment for their actions for reasons of drunkenness especially where such actions exhibit an attitude of violence against women. It is the duty of society and the courts to make sure that any form of violence especially


against women and children is fought at all costs. The incidence of violence against women in all forms is escalating at an alarming rate to say the least. It is therefore up to the courts to pass exemplary and deterrent sentences to discourage this sort of behaviour and attitude.

However, the court does appreciate the remorse shown by the accused by his pleading guilty and therefore saving the court's time and by expressing the intention to "raise the head." In the circumstances, I imposed sentence in the following terms:

Seven (7) years imprisonment half of which is suspended for five (5) years on condition that accused is not found guilty of any offence involving violence committed during the period of suspension. The period that the accused has already spent in prison is to be taken into account when his sentence is computed.

My Assessors agree.



For the Crown : Ms Maqutu

For the Defence: Mr Mpaka