swaziland times

MBABANE — “This is a case that deserves the death penalty.”

Justice Ticheme Dlamini made this statement yesterday while sentencing Pastor Themba Masimula to 60 years’ imprisonment. Masimula (48), a former teacher, stabbed his wife Funekile Mdluli in the neck and burned her body in his car after attending midnight prayers in Ezulwini on October 8, 2016. Her body was completely burnt and charred remains were found inside the car. On March 28, 2024, the court found Masimula guilty of murdering Mdluli. In sentencing, Judge Dlamini said that throughout the trial, Masimula had shown no remorse.

evidence

Based on the evidence, the judge found that there were no mitigating circumstances (i.e. factors that reduce responsibility). “The murder was premeditated and unprovoked. Only the accused knows why he wanted to kill his late wife. His version is that she died in a car accident followed by a fire which left her body with extensive burns.
“But the evidence showed that she died from stab wounds and lacerations to the neck. The evidence also proved that there was no accident with the vehicle and the fire was caused by an intentional ignition of an open flame,” Justice Dlamini said.

The court held that the crime of murder is regarded by society as the most serious crime. Justice Dlamini said it was for this reason that this court sentenced the convict to death by hanging under Section 296(1) of the Criminal Procedure and Evidence Act 1938 for the offence of murder. “I have no doubt that this is a case that merits the death penalty,” the judge said. But he said he would follow a 2012 Supreme Court ruling that said “the normal rule is that murder is punishable by life imprisonment.” The ruling also said that if there were special reasons, the court could deviate from that rule and impose the death penalty.

Justice Dlamini said he took into account the increasing number of cases of women being killed by their lovers; the ineffectiveness of the court’s measures to increase prison terms to deter potential offenders; and the reality that the desired deterrent effect had not been achieved. In Mazwi Mesuli Mbatha and others v. Rex, the judge said: “The sentiment in society… and the message sent is loud, clear and unambiguous that such heinous crimes must be punished with appropriate severity to act as a deterrent.”

The judge said the Supreme Court also said: “While a particular offender cannot be sacrificed to deter other potential offenders, the interest of society must be met by punishing the offender of such serious crimes proportionately.” In the case of Muzi Petros Kumalo v Rex, Rex’s sentence was commuted from 23 years to 40 years to life imprisonment, the latter appealed, saying: “Despite long sentences and the enactment of the Sexual Offences and Domestic Violence Act, gender-based violence continues to be a scourge in our country.

“This court is therefore compelled to impose a longer sentence than that imposed so that it is evident that the sentence will serve as a deterrent to potential offenders.” However, Justice Dlamini said he was aware that the prosecution had sought a 40-year prison sentence in Masimula’s case. The judge said sentencing was largely at the discretion of the trial court. “Taking into account the three factors, I have come to the conclusion that the accused should be sentenced to 60 years to life imprisonment,” Justice Dlamini said. The sentence was backdated to October 8, 2016, the day he was arrested. Justice Dlamini said it was common practice that Masimula’s liberty was taken away on the day his wife died.

Masimula was later granted bail by former judge Sipho Nkosi, now a practicing lawyer, with one of the conditions of his bail being house arrest. Justice Dlamini said Pastor Masimula never availed the benefit of bail as he could not even go to church or anywhere he wanted to go. “He is under house arrest at the home of a relative who is responsible for his care. Therefore, I believe that house arrest is as effective as formal detention.

I therefore consider that his arrest and detention commenced from the date on which the National Police deprived him of his liberty on 8 October 2016. His sentence is therefore backdated to 8 October 2016,” the judge said. After being sentenced, Masimula applied for the return of his iPhone and clothes which had been seized by the police and used as evidence during the trial. The prosecution did not oppose the application. Chief prosecutor Futhi Gamedze told the court that they had established that the items did belong to Masimula. Judge Dlamini approved the return of Masimula’s items. In this case, Masimula is represented by lawyer Noncedo Ndlangamandla of Mabira Law Firm. The prosecution is represented by Acting Attorney General Lomvula Hlophe.