MAKONESE
J: The accused is facing a charge of murder. He was 20 years old
at the time of the commission of the offence. The allegation against the
accused is that on the 16th day of November 2005 and at village
Sabwela, Chief Simuchembo in the District of Gokwe North, the accused did
unlawfully and with intent to kill stab Markson Mafuwa a male adult aged 20
years at the time he met his death.
The accused person tendered a plea of Not
Guilty on the murder charge and tendered a limited plea of guilty to culpable
homicide.
The State did not accept the limited plea
and accordingly we proceeded with a trial. The State commenced
proceedings by tendering into evidence, a Summary of the State Case marked
Exhibit one. The State sought and obtained formal admissions in terms of
section 314 of the Criminal procedure and Evidence Act [Chapter 9:07], and the
evidence of the following witnesses as reflected in the summary of the State
case was accordingly admitted: Thanda Sabwela, George Mufuwa, Ellison Sabwela,
Temson Siamtenge, Kembule Gondwe, Justice Tsoka and Constable Matavire.
The summary of the defence case was then
tendered into evidence as Exhibit two. I will repeat the accused's
defence outline which is as follows:
“1.
The accused will say that he is aged twenty eight years, married with two minor
children. At the time he committed the offence in 2005 he was 20 years
old.
(2)
The accused will say that on 16th November 2005 he was at his
homestead thatching the roof of his hut when later in the day around 3pm he
decided to go for a beer drink where deceased and his brothers were selling
beer under a tree. Accused arrived and joined deceased's brothers Sikini
and George and started drinking with them.
(3)
After sometime it was Accused's turn to buy beer and he gave deceased ten
thousand Zimbabwean dollars (old currency) for a beer mug going for four
thousand dollars. The deceased told him that he no change of six thousand
dollars. He told the deceased to come back later to collect his change.
(4)
The Accused left and joined deceased's brothers and continued drinking beer
with them. After sometime he went back to the deceased to ask for his
change whereupon deceased replied rudely that he had already given him his
change. Accused was shocked but initially he thought the deceased was
joking. Later he realized that deceased was really bent on not giving him
money. He got angry and told the deceased that he wanted his change
whereupon the deceased continued to insist that he had given him.
(5)
The Accused told the deceased that he could verify the issue about change with
his brothers George Mafuwa and Sikini who were at the drum when he bought the
beer. The deceased then violently pushed the Accused who nearly
fell. The deceased struck Accused with a big stirring stick on the
arm. Accused retaliated punching the deceased on the face.
(6)
The deceased's brothers Sikini and Bernard also joined and started assaulting
Accused.
(7)
Accused then moved a distance from the deceased and his brothers and he felt
something piercing his arm. He remembered that he had a knife in his
pocket which he was using when he was thatching the roof. He saw Bernard
and the deceased coming for him with Bernard holding the stick and he thought
that was going to be the end of him. He went for the deceased who was a
short distance from him and stabbed him in the abdomen whereupon he fell down.
(8)
He walked away towards his house afraid that if he remained there deceased's
brothers would kill him. He proceeded to Zhomba Police were he handed
himself to the Police.
(9)
The Accused will say he later paid six beasts to the deceased's family as
compensation to appease his spirit.
(10)
The Accused will not plead guilty to murder as he had no intention to kill the
deceased. He merely acted in self defence after extreme provocation from
deceased and his brothers. He will also say the alcohol he consumed in
excess caused him to act on the spur of a moment.”
The next Exhibit 3 was produced with the
consent of both State and defence
counsel. This is the accused's
confirmed warned and cautioned statement dated 21st day March
2010. It is not entirely clear why the statement was recorded almost 3
months after the
murder. The contents of the
accused's warned and cautioned statement are these:
“I have
understood the caution and I do admit to the allegations levelled against
me. I assaulted Markson Mufuwa with a knife which resulted in his death
after Markson Mufuwa started assaulting me when I had asked him my (sic) change
of money which I had given him after buying beer from him. That is
all. I wish to say in connection with the case.”
Exhibit 4 is the knife. It weighs 0.098kg, length is 23cm. The
length of blade is 13.5cm. It's width at the widest point is 3cm.
The knife is sharpened on both ends and it appears to be a home made knife.
The State then produced an Affidavit sworn to by one Wilfred Binha dated 11th
August 2011. This affidavit was marked Exhibit 5. The affidavit
reads as follows:
“1.
I am a duly attested member in the Zimbabwe Republic Police currently situated
at Mzilikazi Police station and attached at Mpilo Central Hospital Post.
My duties include charge office manning, post mortem identification,
investigation and issuing out post mortem reports.
(2)
I do not know the accused in connection with this case.
(3)
I did not know the now deceased Mackson Mafuwa during his lifetime.
(4)
On the 11th day of August 2011 during the tour of my duty, I was
approached by constable Mutazu of Nembudzia Police Station inquiring whether
there was post mortem report in respect of Mackson Mafuwa.
(5)
With his assistance, I went through all the records for the period 01 June 2004
to 29 April 2010 but could not find the post mortem report. There is even
no such a name in the post mortem registers.
(6)
I would like to mention that records in the Mpilo post mortem registers do not
show that the post mortem was ever done in respect of the deceased.
(7)
I make the above statement solemnly and conscientiously believing the same to
be true
(signed)”
The State
led viva voce evidence from two witnesses. The first to testify was
Bernard
Siamtenge. The evidence of the
witness which was not substantially controverted by the defence is that on the
day in question around 1200 hours, the accused was drinking traditional brew
(popularly known as seven days), at Siabwela village with other villagers and
the deceased was the cashier selling the beer. A misunderstanding arose
between the accused and the deceased after the accused demanded his change of
Z$6000-00, which both defence and State Counsel agreed to be the equivalent of
US$6-00. The accused had bought a mug of beer for Z$4000-00 which is now
the equivalent of US$4-00. It is not disputed that the accused was
refusing to give accused any money, arguing that he had already given accused
his change. There is no dispute that all the patrons including deceased
and the accused were intoxicated. Their levels of intoxication ranged
from moderate to extreme but there can be no exactitude on the degree of
intoxication of either the deceased or the accused or even the patrons and the
witness himself. The facts presented before the court are that drinking
had commenced from around 11am in the morning. The witness confirmed that
the misunderstanding between the deceased and the accused degenerated into a
fist fight. The deceased landed several blows on the accused's face with
the deceased fighting back. There is no dispute that the accused
overpowered the deceased. The point of departure however, is that Bernard
Siamtengwe says that accused landed a blow on the deceased's lower jaw
(mandible) which sent him crushing to the ground and leaving him
unconscious. The witness says he tried to collect water to pour it upon
the body of the deceased and when he returned he observed the accused who had
now walked to a distance of about 12 metres away producing a knife (Exhibit 4)
and plunging the knife into the deceased's rib case with fatal consequences and
accused then fled from the scene.
We find the evidence of this witness to be fair and credible. There were
no indications of any exaggeration in any respects and there were no material
contradictions even under cross-examination.
The evidence of Sikini Mapiwa was substantially similar to that of the first
witness in all material aspects. Inspite of criticism by the defence
counsel that the evidence of this witness was somehow suspect, his evidence is
consistent with matters that are essentially common cause. The fact that
he saw the accused stabbing the deceased in not denied even by the accused
himself. The facts that the wound inflicted upon the person resulted in
the death of the deceased is also common cause. We generally found the evidence
of Sikini to corroborate the fact that accused inflicted one stab wound upon
the right side of the deceased's chest. He also observed the deceased
withdrawing the knife from the deceased's chest before fleeing the crime scene.
The defence called the accused to give evidence. His evidence supports
the version of events as narrated by State witness in material respects.
We find that there can be no dispute that there was a misunderstanding that led
to a fight. The accused says that he was under attack from deceased,
Sikini and Bernard. He says that he was being attacked by a stirring
stick. He says that he only remembered that he had a knife when he felt
something in his back pocket. He says the reason he used the knife was to
enable him to escape. He says that he stabbed the deceased in the rib
cage whilst the deceased was standing. He admitted that he had to pull
out the knife form deceased's body. He said he walked away from the
scene. He denied that he fled the scene of crime.
Our finding from the evidence led is that the accused must have felled the
deceased to the ground by landing a fist to his lower jaw (the mandible).
He then proceeded to strike the deceased in the chest cavity with a high degree
of force with Exhibit 4. The single stab wound resulted in the death of
the deceased. Inspite of the absence of the Post mortem Report we are
satisfied the stab wound led to his death. The evidence presented in
court showed that the deceased died of his way to hospital. Exhibit 4,
the knife which was tendered in court is a sharp double edged knife. The
length of its blade is 13.5cm. It is self evidence that if the blade was
plunged into the rib cage it would most certainly cause death. As alluded
to by the State Counsel, the court can still return a verdict of guilty to
murder in the absence of a Post Mortem Report.
See case of S v Shoniwa 1987 (1) ZLR 215. In this case the court
upheld a conviction on a murder charge inspite of the fact that no body had
been found.
In casu, there is sufficient evidence to show that deceased was
stabbed by the accused and that he later died as a result of that single stab
wound. The Post Mortem Report would no doubt have assisted in
laying out the nature of injuries and spelling out the case of death. The
evidence of the State witnesses and accepted by the accused person is that he
caused the death of the deceased.
The issue that remains for determination is whether the accused had an actual or
constructive intention to kill.
It is trite that the issue of intention is subjective. The law is well
spelt out at page 110 of Prof Feltoe's, Guide to Criminal Law in Zimbabwe, that
is;
(a)
Actual Intention
Where accused desired death and death is his aim and object,
(b)
death is not the aim and object but accused continues to engage in an activity
which he realises will almost certainly lead to death.
See also the case of S v Mugwanda SC 19/02.
This court finds that the accused person assaulted the deceased who fell to the
ground rendering him unconscious. Accused walked away for a distance of
about 12 metres. At that stage he was under no imminent threat from the
deceased because deceased was on the ground unconscious . Accused had
ample time to observe this and he confirmed in his own words that he had
overpowered the deceased. Accused then returned to where the deceased was
lying prostrate with his face upwards and his chest exposed and thrust the
knife into the rib cage. His intention and desire at that stage was
clearly to finish off the deceased. He intended to achieve the death of
the deceased and he succeeded.
The defence of self defence is not available to the accused person if one has
regard to the provisions of section 253(1) of the Criminal Law Codification and
Reform Act [Chapter 9:23]. It provides as follows:
“1.
Subject to that Part, the fact that a person accused of a crime of murder was
defending himself or herself or another person against an unlawful attack when
he or she did or omitted to do anything which is an essential element of the
crime shall be a complete defence to the charge if:
(a)
when he or she did or omitted to do the thing, he or she believed on reasonable
grounds that the unlawful attack had commenced or was imminent, and
(b)
he or she believed on reasonable grounds that his or her conduct was necessary
to avert the unlawful attack and that he or she could not otherwise escape from
or avert the attack and;
(c)
the means he or she used to avert the unlawful attack were reasonable in all
the circumstances and; --- etc.”
On the
facts of this case the circumstances clearly show that the victim had been
rendered unconscious. There was no
imminent danger. The accused could have easily
escaped without using the knife.
Death could have been avoided.
The state of drunkeness of the accused was not such that he could not
appreciate the consequences of his conduct. By his own admission, accused
remembered most of the events in their logical sequence. He was not
hopelessly drunk and knew exactly what he was doing at the critical time.
We are accordingly satisfied that on the evidence led the State has proved
beyond reasonable doubt that the accused had the requisite mens rea to
cause death. Accused is found guilty of murder with actual intent.
Extenuation
We found that there existed extenuating
circumstances.
Sentence: 20 years imprisonment with labour
Criminal Division, Attorney General's
Office, State's legal practitioners
Mvura-Mavhondo
and partners, accused's legal practitioners
