IN THE SUPREME COURT OF SWAZILAND
CRIMINAL APPEAL NO.14/2011
HELD AT MBABANE
In the matter between:
LOUIE HOWARD : APPELLANT
REX : RESPONDENT
CORAM : RAMODIBEDI, CJ
: EBRAHIM, JA
: FARLAM, JA
FOR APPELLANT : IN PERSON
FOR RESPONDENT : MR. A. MAKHANYA
HEARD : 3 NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
Criminal Appeal – culpable homicide – sentence reduced – commencement of sentence – section 16(9) of the Constitution – procedure – imprisonment – suspension of – condition of – vagueness of condition – effect of word ‘violence’ used - violence covers a wide scope.
 The appellant was convicted of culpable homicide and sentenced to –
“Ten years imprisonment one year is suspended for five years on condition that the accused is not convicted of an offence in which violence is an element during the period of suspension.”
In essence the appellant appeals only against the sentence imposed on him.
 The Crown’s case against him was based substantially on the statement of agreed facts settled between him and Crown counsel. This was admitted in evidence, without any objection.
 The appellant admitted the following facts –
“STATEMENT OF AGREED FACTS
The accused is charged with the crime of culpable homicide. When the charge was put to him, he pleaded guilty and the Crown accepted the plea.
It is agreed that on the 22ndDecember, 2001 deceased and one Bongani Phiri were at the Phiri homestead where both of them were residing.
Deceased and Bongani Phiri were sitting on (sic) the yard drinking beer in the afternoon of that day.
Accused approached the Phiri homestead and jumped over the fence. He proceeded to where deceased and Bongani Phiri were sitting. Accused knew both of them and they also knew him. At a distance there was one Zanele Nxumalo who was sitting. (sic)
Deceased then enquired from accused as to why he jumped the fence instead of using the gate. Accused told him that he had not come to him but to Bongani Phiri. Bongani Phiri also asked the same question as deceased. Accused apologized, but Bongani who was drunk, hit accused with an open hand on the face, and a fight ensued between them.
Deceased who was also drunk went to fetch a knobkerrie from his house and hit accused on the back of his head. Accused was able to take the knobkerrie from deceased because he was drunk. Deceased happened to fall down and accused kicked him several times on the jaw using his safety boots. Zanele Nxumalo and Bongani Phiri separated them. Accused then ran away.
Deceased did not go to hospital until on the 24thDecember, 2001 when the injuries started complicating. (sic) He was admitted at the Mbabane Government hospital and he died after two weeks.
Accused admits that deceased died as a result of his wrongful and negligent acts. He is remorseful for what happened. Accused was informed on the 11thof January 2002 of the death of the deceased and he handed himself to the Lobamba Police.
(signed by accused) (signed by the Crown)
FOR ACCUSED FOR THE CROWN”
 Against the background of these facts it is clear that the appellant was properly convicted of culpable homicide. It is apparent, however, that the pathologist’s report tendered in evidence reflects that the post mortem was carried on the deceased on the 16th January 2003. This is clearly nothing more than a typographical error. The statement of agreed facts explicitly outlines the details of events that occurred and there can be no doubt that the post mortem must have been carried out in January 2002.
 Crown counsel, to his credit has conceded that the sentence imposed on the facts of this case is on the harsh side. He stated:
“In the instant appeal, Respondent concedes that the sentence is harsh. The trial court misdirected itself in not taking into consideration that appellant was a first offender, deceased was the aggressor by hitting appellant with a knobkerrie. Appellant had apologized for jumping the fence, deceased did not go to hospital after sustaining the injuries and that appellant handed himself to the police after he had learnt that deceased had died.”
 I share his views and am satisfied that the sentence imposed needs to be adjusted. In my view a sentence of seven years imprisonment with one year suspended would meet the justice of this case. There is however a further complication as no account has been taken of the time the appellant was in custody. We are told he was in custody from 11th January 2002 to the 11th July 2003, a period of eighteen months before being granted bail. He was ultimately sentenced in the High Court on the 13th April 2011.
 Before making the necessary adjustment to what I consider to be the appropriate sentence in this case, I draw attention to the wise words expressed by my brother Dr. Twum, JA in the case of LOMCWASHO THEMBI HLOPHE (Appeal Case No.7/10) where he stated:
“ “COMMENCEMENT OF SENTENCES”
After the court a quo had imposed the sentence of 10 years imprisonment on the accused the following dialogue between Crown counsel and the learned trial judge appears at page 11 of the record:
CC: “Is it back-dated?”
CC: “As the court pleases.”
Before the promulgation of the Constitution on 26thJuly 2005, the matter of back-dating of sentences was regulated by section 318 of the Criminal Procedure and Evidence Act No.67/1938 as amended (see P.49/1964). It reads:
“Subject to sections 300(2) and 313, a sentence of imprisonment shall take effect from and include the whole of the day on which it is pronounced unless the court, on the same day on which the sentence is passed, expressly orders that it shall take effect from some day prior to date on which it is pronounced.”
 In the case of ROBERT MAGONGO VS REX (Appeal Case No. 33/00) the court discussed the obligations of a trial court in regard to the back-dating of sentences when an accused person has been kept in custody awaiting trial. Three scenarios emerged. The trial court could order that the sentence passed be backdated or it could specifically order that that sentence be not back-dated or it could simply not mention it at all. This Court said it had become customary in this jurisdiction to back-date custodial sentences to the date of accused person’s arrest. In another case, MANDLA N. MATSEBULA VS REX (Appeal Case No.6/02) the court made similar remarks and confirmed that over the years this jurisdiction had developed a consistent practice that, where appropriate, sentences are back-dated to the date of the arrest of an accused. It explained that the practice developed, no doubt, because of the lengthy delays to which criminal trials are so often and so regrettably subject. The practice was to avoid the perhaps unanticipated prejudice of pre-conviction incarceration per incuriam not being taken into account by the sentencing Judge. Obviously, by back-dating sentences, a court ensures that an accused is not unfairly penalized because of the lengthy periods of pre-trial incarceration. It must be noted that section 318 of the Criminal Procedure and Evidence Act, referred to above, specifically empowers a court to direct that the sentence of imprisonment it imposes on an accused should take effect from the day it is passed.
 With the passing of the Constitution the whole issue of the commencement of sentences must be reconsidered. Section 16(9) of the Constitution provides:
“Where a person is convicted and sentenced to a term of imprisonment for an offence, any period that person has spent in lawful custody in respect of that offence before the completion of the trial of that person shall (my emphasis) be taken into account in imposing the term of imprisonment.”
It must be emphasized that section 16(9) comes under Chapter III of the Constitution which deals with the “Protection and Promotion of Fundamental Rights and Freedoms.” In my opinion, by putting section 16(9) in Chapter III, the framers of the Constitution meant to give it added value. Indeed they ordained by section 14(2) of the Constitution that “it shall be respected and upheld by the Executive, the Legislature and the Judiciary and other organs or agencies of Government…”
 Today, the commencement of sentences has taken a new urgency. It is no longer a matter of practice. The sentencing court is enjoined by the Constitution to take into account the accused persons’ pre-trial incarceration. It is still true that sentencing is generally, a matter governed by the discretion of the court. But in my opinion section 16(9) of the Constitution has effected a paradigm shift in the trial court’s discretion in sentencing.
 Under the Constitution, it is no longer permissible for a trial court not to take pre-trial incarceration into account when imposing a custodial sentence on an accused person. The accused person becomes entitled ex debito justitiae to be given credit for the pre-trial incarceration. The only question is, how does the court do that? The section does not use the word “back-date”. There is a presumption that where a new piece of legislation is enacted in place of an old one the law-giver must have known of the existing law. It is legitimate therefore to say that the framers of the Constitution knew how pre-trial incarceration was dealt with before 26thJuly 2005. The present section 16(9) is obviously remedial and must be given a liberal interpretation which achieves the aim of trial courts taking into account pre-trial incarceration of accused persons. Pre-trial incarceration, though a matter of legal necessity, must be regarded as an aberration in the criminal justice system. Modern notions of justice are such that fundamental rights and freedoms of a person should not be frittered away. In my view it will not be an adequate response to section 16(9) for a trial judge to impose a sentence without specifically showing on the record how he upheld that imperative in section 16(9). The most visible way of doing this, is to order that the period of pre-trial incarceration be deducted from the sentence imposed on the accused. In practice, evidence is not readily available to a trial court when an accused person will be released from jail on account of having completed serving his sentence.
 Under the old law, a sentence is to take effect from the day on which it is pronounced unless the court expressly orders that it shall take effect from some day prior to that on which it was pronounced. Now it is my opinion that the trial court must order the deduction of the pre-trial incarceration from the sentence imposed, or he may award a figure and say that but for the fact that he had taken into consideration the accused person’s pre-trial incarceration, he/she would have been given a higher term of imprisonment. This second option smacks of disingenuity and is for that reason, unsatisfactory. As Lord Hewart CJ said in REX VS SUSSEX JUSTICES EX PARTE McCARTHY (1924) 1 KB 250 at 259, “it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.” Where the trial court gives no indication that he applied his mind to section 16(9), it leaves room for the real possibility that he acted per incuriam.
 In casu, the trial Judge declined the invitation by Crown counsel to consider ordering the back-dating of the appellant’s pre-trial incarceration, by a simple “No”. There is no indication that he actually took that pre-trial incarceration into account as is required of him under section 16(9). It is clear that the trial Judge approached the appellant’s punishment in a spirit of anger. This is an error.”
I concur with the learned views of Dr. Twum JA as expressed so eloquently by him.
 There is a further aspect of sentencing procedures which I believe I should highlight again. In the case of DENZEL DUNGUZELA GAMEDZE CRIMINAL APPEAL NO.41/2010, I stated:
“The conditions of suspension however, reflected in the sentence imposed have been too widely stated.
In the case of S VS TAYLOR SA 1971(3) 86 page 91 paragraph F to G Beadle CJ stated:
“Assaults vary tremendously in gravity. An assault may be a very venial offence warranting nothing more than perhaps a very small fine. On the other hand, an assault may be so serious as to warrant in itself a sentence of imprisonment. It is always desirable, therefore, when sentences are suspended on conditions such as those imposed in the present case, that some attempt should be made to confine the types of assaults which would be regarded as breaching the condition of suspension to assaults of a fairly serious kind. For example, a useful formula is to add something such as this: “not convicted of any offence involving an assault for which the accused is sentenced to imprisonment without the option of a fine, or to a fine of $25 or more.” If this rider is added to the condition of suspension mere trivial assaults will not bring into operation perhaps a very heavy sentence of imprisonment.”
See also the remarks of the learned Chief Justice in the same case at page 89 when he stated:
“In the case of S VS DAVIDS supra at p.570, KANNEMEYER, J., in my view correctly, said:
“Two cardinal rules regarding the imposition of conditions of suspension are that the condition imposed should bear some relationship to the circumstances of the crime which is being punished and that the condition should be stated with such precision that the convicted person may understand the ambit of the condition: R VS CLOETE 1950(4) SA 191 (E); R VS MOKOBORI, 1947(4) SA 123 (T). In my view, if conditions of suspension fall to be interpreted, they should be interpreted so as to give them a meaning rendering them appropriate to the circumstances of the crime and certain.” ”
In the case of S VS MALULEKE (TPD) 1977(4) 545, ESSELEN J stated:
“The conviction of the accused is in order but in respect of the condition which was imposed, which relates to the suspended portion of the sentence, the magistrate was asked on review whether the use of the word ‘violence’ is not inappropriate, regard being had to, inter alia, the decisions of S VS MXATHULI, 1964(3) SA 685 (O) at page 686; S VS VICTOR, 1970(3) SA 184 (R); S VS TAYLOR, 1971 (3) SA 86 (R).
In reply thereto the magistrate conceded that the word “violence” was inappropriate and suggested the following condition be imposed: “…that the accused is not convicted of the offence of assault with intent to do grievous bodily harm or of any offence involving an assault for which imprisonment without the option of a fine is imposed, which is committed within the period of suspension.”
The comments of Jarvis J in S VS VICTOR 1970(3) (R) 184 at page 185 are also pertinent. He stated:
“The conditions imposed on suspension of a sentence must be definite and unambiguous – see Swift, Law of Criminal Procedure, 2nd ed., pp 660-1, and cases there cited. Although the expression “any offence involving violence” is frequently used in magistrates’ courts in stating the conditions of suspension of a sentence of imprisonment, it was held to be too vague in the case of S VS CELE, 1964(1) SA 640 (N), and the word “assault” was substituted for the word “violence” in the condition of suspension of sentence.”
Finally, I make reference to the headnote in S VS CELE SA 1964(1) 640 (NPD) which reads as follows:-
“The accused had been convicted of assault with intent to do grievous bodily harm and sentenced to a fine or alternatively a period of imprisonment. The magistrate imposed an additional sentence the whole of which he suspended on condition that the accused “…did not commit any offence involving violence for which she is sentenced to imprisonment without the option of a fine. In a review,
Held, regard being had to the meaning of “violence” that the word as used covered too wide a scope.
Held, therefore, that the word “assault” should be substituted for the word “violence’”.
 Applying the above cited principles to the present matter I would set aside the sentence imposed by the trial court and substitute the following:
“Seven years imprisonment of which one year is suspended for a period of five years on condition that the accused is not convicted of an offence involving an assault for which imprisonment without the option of a fine is imposed which is committed within the period of suspension. The sentence is back-dated to 13 October 2009.”
 The reason for the back-dating is that the accused spent 18 months in custody from 11 January 2010 to 11 July 2011 whilst awaiting trial before he was released on bail. Credit must be given to him for that period of incarceration. The sentence substituted by this Court in place of the sentence imposed by the court a quo (on 13 April 2011) is back-dated with this in mind.
JUSTICE OF APPEAL
I agree : M.M. RAMODIBEDI
I agree : I.G. FARLAM
JUSTICE OF APPEAL