BY MENZI VILAKATI
It’s 40 years without an option of a fine for a dagga dealer convicted for the murder of his biological brother!
Mfanasibili Clement Msimango was recently sentenced by High Court Judge Nkosinathi Maseko to 40 years in jail for killing his brother Vusi Msimango while at their parental home, Lugongolweni in the Lubombo region, on suspicion that the latter had stolen Mfanasibili’s dagga.
The illegal herb was stored in a five-litre container kept in the main house.
Mfanasibili assaulted his brother with a crowbar and left him for dead in the early hours of the morning.
According to the court’s finding, Mfanasibili never solicited any medical assistance for his badly injured brother.
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During the trial, the convict raised the defence of provocation and intoxication.
Judge Maseko concluded that the defence of provocation of the alleged theft was not proven.
However, that intoxication was accepted by the court and treated as an extenuating circumstance.
Extenuating circumstances were defined by the court as those factors that reduce the moral blameworthiness of an accused person who has been convicted of murder.
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The matter was heard on April 15, 2024, and judgement was issued on April 17, two days later and the sentence was delivered last week Monday, May 6.
Before pronouncing the sentence, the judge took into account that there existed extenuating circumstances because Mfanasibili had been imbibing since 11 am on February 15, 2022, until the early morning of February 16. 2022, at 1 am when he committed the murder.
“Even though I made a finding of legal intention to murder his brother it is undisputable that he had consumed a lot of liquor leading to the murder in question,” Judge Maseko pronounced.
Defence Counsel for the accused, during mitigation, submitted that the accused was a first-time offender, 44 years of age, and with three minor children who depend on him for support.
The court heard that Mfanasibili was also a Form II dropout, a builder by profession, and his counsel submitted that the convict engaged in the dagga trade because of lack of employment.
Judge Maseko, in passing sentence, said he had carefully considered the triad in the case and found that there were compelling circumstances that called for a sentence that fits the offence as well as the offender.
He said the court had also considered the prevalence of murder cases in the country.
“The statistics are increasing at an alarming rate, and unless the courts issue deterrent sentences, people will continue to perpetuate murders without any worry or regard for repercussions.
The judge said the courts must protect members of society from people who easily and oftentimes without provocation commit murders.
Judge Maseko highlighted that Mfanasibili was the elder brother to the deceased, and even if the family dealt with dagga, which was prohibited in the Kingdom of Eswatini, the accused had no right to assault his brother with a crowbar and in the manner he did.
“The excuse of dealing in dagga by the accused does not, in my view, amount to provocation because the whole transaction is, in law, illegal,” the judge further held.
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The court went on to say that it had also considered the interests of society and the pain which Mfanasibili’s actions caused to the family.
“Your unlawful actions have destroyed your family, and in particular your mother whom you know is very sickly.”
The judge further pronounced that Mfanasibili’s children have also lost a parent and will grow up without his parenthood because of his unlawful actions.
“This court is unable to explain the trauma and pain that your entire family is going through,” Judge Maseko said before handing down the sentence of 40 years in jail without an option of a fine.
The sentence was backdated to June 8, 2022.
