KAMOCHA J: The 27
year old accused admitted assaulting the deceased with a log 5 times but stated
that he had no intention to kill him. He
stated that he had delivered three blows with the log aiming at the head of the
deceased and aimed two blows at the back.
The court entered a plea of not guilty on his behalf.
His legal representative tendered a
plea of guilty to culpable homicide but the state counsel would not accept the
limited plea.
The outline of the state case was
read and produced as exhibit 1. The
accused's defence outline was produced as exhibit two. In it the accused said the following;
“Accused denies the allegations of
murder against him and he therefore pleads not guilty to the charge.
He will state that he had dropped from the bus on his way
from Mbembesi where he had gone on a visit.
He will state that he had been drinking some beer in the bus. He was drinking Smirnoff and he had finished
a bottle of 750ml and he was drunk.
He met the deceased who was in the company of some young
men. The young men then invited him to
go and drink traditional brewed beer. He
refused and told them that he did not drink the beer known as
“sigodokhaya”. This did not go down well
with the deceased who quizzed him as to why he did not drink the traditional
beer and he asked him who he thought he was.
Deceased hit him twice on the face with an open hand and he
bled from the left ear. When he tried to
run away, the deceased pursued him and he hit him on the back with a
brick. Deceased continued to pursue him
and he threw a stone which he dodged.
Accused then took a log and hit
deceased five times with the log all over the body.
He will state that he never mentioned anything about ZANU
(PF) and MDC and that was the motive for the assault. He will state he had no intention to kill the
deceased but he acted out of intoxication, provocation and self defence.
Wherefore he prays that he be found not guilty of murder and
he offers a plea of guilty to a lesser charge of culpable homicide.”
The accused made an extra curial
statement which was confirmed by a magistrate at Inyathi on 18 August 2003
which was produced as exhibit 3. In it
the accused had this to say:
“On the 7th of June during the evening around six
o'clock I disembarked from a Sihube bus on my way from Mbembesi whereupon I
came across Zenzo Maphosa. There were
certain young men there among whom I recognized one of them called Khumbu and
they invited me for some traditional brewed beer. I the (sic)
stated that I did not drink traditional beer.
Zenzo Maphosa then asked me who I was who claimed not to drink
traditional beer. Following that, Zenzo
Maphosa pursued me and struck me once on the back with a stone. I then picked up a wooden log and whilst he
was still picking up some stones I struck him five times on the head with the
log and I then run away (sic) leaving
him lying on the ground. I had no
intention of killing him other than acting in self defence.”
The accused does not mention being
struck with an open hand in the face causing him to bleed from the left ear in
his statement. That was clearly an
afterthought which must be rejected.
Matters were still fresh when he made the statement to the police. His defence outline was made some 7 years
after the event. Another material
discrepancy is that he alleged in his statement that he struck the deceased
five times with the log on his head whilst the deceased was in the process of
trying to pick up some stones. Yet in
his defence outline he said the deceased was pursuing him and threw a stone at
him which he dodged. It was then that he
took the log and hit deceased five times all over the body with it. It is not true that he hit deceased all over
the body. He aimed all the blows at the
deceased's head as stated in his extra curial statement and that is supported
by the evidence of Rebecca Mkandla. The
accused also tried to under play what he did when he told the court when
pleading that he had delivered only three blows to the head of the deceased and
two blows to the back of deceased. The
correct position is that he aimed all the five blows with the log at the head
of the deceased as he lay down.
Exhibit 4 was an affidavit by Doctor
Takesure Madzivire who certified the deceased dead at 11.32 hours on 6 July
2003. Exhibit 5 was an affidavit by
Constable Bhebhe who identified the body of the deceased to Doctor I. Jekenya
who performed a post mortem on the remains of the deceased and compiled a post
mortem report which was produced in this court as exhibit 6. The doctor noted that deceased had a 4cm sutured
wound on the right occipital area. There
was a left fronto parietal healing incisional wound.
Internal examination revealed right
occiptio-temporal fracturues and the longest of them was 5 cm on the
skull. The brain had left subdural
haematoma of the parietal frontal and temporal brain depression. The lungs had pulmonary oedema.
The doctor concluded that the cause
of death was subdural haematoma skull fracture and head injuries following the
assault.
The seventh exhibit was the log used
by the accused to assault the deceased.
Dimensions
Length 113cm
Circumference
at thicker end 16.5cm
Circumference
at thinner end 11cm
Weight
985grams
The court
observed that it was hard mopane tree log from a plate rake
The evidence of the following
witnesses was formally produced by consent – Barnabas Mazani, Sikhumbuzo
Sibanda and Dr I. Jekenya.
Viva
voce evidence was led from four witnesses namely Langton Mpofu, Rebecca
Mkandla, Ephraim Khabo and Never Khabo.
All the witnesses live in village 5 Kennelworth in the Inyathi
area. The deceased also lived in that
area but the accused was a stranger in the area. He lived in Nkayi.
Langton Mpofu told the court that on
the fateful day he and Mloyiswa Sweswe came out of his aunt's homestead when
they got onto the road outside the homestead he noticed a stranger who happened
to be accused walking in the direction they intended going. They walked behind the person who was about
20 metres in front from them. As they
continued walking they met the deceased who was in the company of Never
Khabo. They stopped to talk to
them. As they were still talking the
accused turned back and went to where they were and called the deceased by his
nickname saying:-
“Santana you are an MDC supporter, I
will kill you today.”
The accused was armed with a brick
in each hand.
Mloyiswa Sweswe remonstrated with
the accused. He asked him if he was not
ashamed of wanting to assault an elderly person. The accused seemed to have taken heed of that
and threw the bricks down. He then went
back to Tshuma's homestead where he had come from.
Langton Mpofu and Sweswe continued
on their way and parted ways with the deceased and Never Khabo.
He said the deceased was not armed
with anything when the accused threatened to hit him with bricks. Neither did deceased say anything to provoke
the accused into uttering the threats.
As far as the witness was concerned
there was nothing to suggest that the accused was drunk. The witness and Mloyiswa never invited the
accused to go and partake in traditional beer.
Nobody invited him to do so at any stage.
The evidence of Langton Mpofu was
supported by that of Never Khabo who had been walking with the deceased. She told the court that when the accused went
to where they were he uttered words to this effect,
“You Santana MDC member, I am a ZANU
(PF) member – I will kill you today.”
Accused then removed the hat that
deceased was wearing and hit him with it.
He armed himself with bricks which he later dropped after someone had
remonstrated with him.
The accused thereafter went into
Tshuma's homestead. The witness then
continued walking with the deceased until she heard a voice saying words to
this effect, “Run away someone armed with a pole or log is coming”. She saw the accused coming with a log. She tried to pull the deceased who because of
the alcohol he had taken could not run fast.
She then ran into the homestead of her maternal uncle.
The accused continued to run after
the deceased who ran towards Rebecca's homestead. She could hear thuds from blows being
delivered.
After about 5 minutes she went to Rebecca's homestead where
she found the deceased lying motionless.
She said deceased had not provoked
the accused in anyway. He had not even
said anything to the accused. He was not
armed in any way when the accused was threatening to hit him with bricks.
She was emphatic that deceased never
struck accused with an open hand on the ear causing bleeding from it. Deceased never threw any stones at
accused. The witness was of the opinion
that accused was not drunk as he appeared normal to her.
She was emphatic that accused was
never invited for a drink of traditional beer.
He was not under any attack when he went to arm himself with the
pole. She said the suggestion that
deceased chased the accused was false.
She is corroborated by Rebecca
Mkandla on that point who said it was the accused who was chasing deceased as
they entered her homestead. The deceased
was unarmed. She screamed out at the
same time telling accused to stop what he was doing since he was in her
homestead. But he did not listen. The deceased ran around a 4 cornered house
and fell down.
The accused got up to where deceased
was and belaboured him with the pole exhibit 7 as he lay down. The witness said accused aimed his blows to
the head of the deceased. She said he
delivered at least 5 blows. All were
aimed at the head since accused was next to the head. Accused only stopped when the deceased was
motionless. He ran away on seeing
Ephraim Khabo who gave chase and later returned with the log.
Rebecca said she did not think that
accused was drunk. Her conclusion was
based on the speed at which the accused ran.
Ephraim Khabo's story is to the same effect. He said the accused was able to jump over the
fence to return to Tshuma's homestead and put up a strong struggle when he was
trying to dispossess him of the log. The
witness said he did not detect and smell of alcohol on the accused's breath as
he struggled with him. He said the suggestion
that the log used by accused was not exhibit 7 was false because when he
disarmed him he handed the log to the police.
The witness said the accused aimed
the blows to the head.
All the state witnesses gave their
evidence well and clearly. They were
worth to be believed. Wherever their
evidence conflicts with that of the accused I prefer theirs to that of the
accused.
The accused was an unreliable
witness who changed his story on a number of occasions. For instance he did not mention in his
confirmed extra curial statement that he had allegedly been assaulted by the
deceased on the ear causing bleeding therefrom.
In the defence outline he told the court that he hit the deceased with
the log all over the body. The assertion
is false because in his confirmed statement he said he aimed all the five blows
to the head. The truth is that all the
blows were aimed at the head which confirmed the doctor's findings that
injuries were on the head. No injuries
were observed on the other parts of the body.
It is clear from the evidence that
accused was not provoked in any way when he commenced the attack. The deceased was not even aware that he was
going to be attacked before Rebecca shouted that accused was about to attack
him with a log.
Similarly the accused was the
aggressor right from the onset. The
deceased did not try to attack him at any stage. Accused was therefore not defending himself
from anything.
All witnesses concluded that accused
was not drunk. They gave their reasons
for arriving at such conclusions. The
accused himself said although he may have been drinking he knew exactly what he
was doing. From his own version his
recollection of events does not show that he was drunk.
Ephraim Khabo who is taller and of
bigger stature than accused was unable to apprehend the accused because of the
struggle he put and was only able to disarm him of the log. The defence of intoxication is not available
to accused.
The motive for the attack seems to
have been political as mentioned by the witnesses. The accused's intention was to kill his
political opponent. He carried out his
intention. This is clear from the way
the killing was executed. Accused used a
heavy mopane log. He aimed all his five
blows to the head when the deceased had already fallen down. He struck him until he was motionless.
This is a clear murder with actual
intent. Accused is accordingly found
guilty of murder with actual intent.
Verdict: Guilty of murder with actual intent.
Extenuation
Defence Counsel
Accused only went as far as grade 6. He has a rural background. His level of sophistication is low.
Coupled with his political belief –
accused was 20 years old at the time he committed the offence. Youthfulness played its part. He acted immaturely due to youthfulness.
These factors amount to
extenuation. That is all.
State Counsel
It is very difficult to find extenuation in this matter. Youthfulness may have been extenuating but it
is not always. S v Ndlovu SC-122-94.
It was held that unless it shows some form of immaturity
youthfulness will not always be extenuation.
Political beliefs cannot be extenuation taking into account
that people are free to hold different political beliefs.
There are no special circumstances in this case. That is all.
By Court
The accused killed the deceased
because he believed he belonged to a different political party from his. In a democracy people are free to belong to
political parties of their choice. It
would be wrong to punish them for that. That
type of behavior should not be tolerated in a democratic society. Killing someone because they hold different political
beliefs cannot be an extenuating circumstance.
Instead it would suffocate democracy if it were to be allowed.
Youthfulness can only work where a
person does something that clearly exhibits immaturity. There was nothing immature about what the accused
did in this case. Accused just wanted to
eliminate his political opponent.
I find myself being unable to find
any extenuating circumstances in this case.
Sentence
The accused shall be returned to
custody where the sentence of death shall be executed according to law.
Criminal Division of the Attorney
General's Office,
state's legal practitioners
Marondedze, Mukuku, Ndove & Partners,
accused's legal practitioners
