The
three (3) accused are facing a charge of murder in that on the 30th of July
2012, and at Maramba Business Centre, Zvishavane, in the Midlands Province,
Golden Bako, Erisha Simango and Amiri Phiri or one or more of them unlawfully
caused the death of Manford Moyo, by striking him all over the body with booted
feet and clenched fists, and striking him on the head with a stone, intending
to kill him, or realizing that there was a real risk or possibility that their
conduct may cause death, and continued to engage in that conduct despite the
risk or possibility.
The
three pleaded not guilty.
Accused
1 relied on self-defence while Accused 2 denied causing the deceased's death in
that he did not foresee that Accused 1 would assault the deceased with a stone
causing his death. Accused 3 denied killing the deceased. He admitted
that he assaulted the deceased inside the bottle store. He further denied
harbouring an intention to kill the deceased.
The
State led evidence from three (3) witnesses.
The
first witness was Charity Danira who was employed as a bar lady at Maramba
Bottle Store - the scene of the crime. She was on duty on the fateful
day. The accused persons arrived around 4pm and they were listening to
music from a memory card. Later, the deceased arrived and shortly
thereafter there was a misunderstanding between the deceased and Accused 2 over
how the music was to be played. The deceased and Accused 2 started
fighting and the others joined by assaulting the deceased using their
hands. The accused persons hit the deceased all over the body. The accused
persons pushed the deceased outside and continued to assault him. She did
not follow the group outside but later she saw Accused 2 and 3; the two asked
for some water. The witness said she did not witness the assault outside
the shop. The assault inside the shop did not involve kicking….,.
The
second witness, Jester Sithole, said she was in an adjacent shop when she saw
all three (3) accused persons assaulting the deceased with booted feet, fists
and open hands. They assaulted the deceased indiscriminately. She
said the accused and the deceased later went outside where they (accused
persons) continued to assault the deceased. According to this witness, the
taller accused person then picked up something, threw it and the deceased then
fell down. She said the deceased had his back towards the person who was
throwing the missile. She said he was attempting to walk away when he was
struck from a distance of approximately 1½ metres. The witness would see
clearly because of the moonlight. She said she did not see the deceased
picking up a stone; at the time the deceased was assaulted the fight had
stopped according to her. She also said at that stage, Accused 2 was no
longer assaulting the deceased. After that, Accused 2 asked for some
water.
Despite
being asked to raise her voice, she kept on murmuring. We had to stretch
our ears to hear what was saying. However, her evidence was not seriously
challenged by the defence – none of them put it to her that they never used
booted feet on the deceased.
Accused
1 admitted that he picked up a stone and threw it at the deceased. He
admits the deceased fell down. The deceased sustained an injury at the
back of the head. Post mortem confirms this.
This
corroborates the witness' testimony.
We
do not believe that the witness would mention the use of booted feet if this
had not occurred. She has no motive to fabricate evidence against the
accused persons. For these reasons, her evidence is accepted.
The
third witness was David Madhadha. His testimony is basically as follows:
He
is a headman. The Accused persons are his neighbours. The deceased
was his maternal uncle.
On
the day in question, he found the accused persons drinking beer at Maramba
Bottle Store. They had ordered the bar lady to play one song repeatedly – the
deceased did not like this and a misunderstanding ensured. The witness
went to relieve himself. Upon return, he found the three (3) accused
persons and the deceased on the verandah with Accused 2 holding the deceased on
his right, Accused 3 by the left side while Accused 1 was pushing the deceased
out of the verandah. The deceased's shirt had been violently removed from
his body. It was hanging by the sleeves. It was torn. The
witness then got hold of Accused 2 in an effort to restrain him. Accused 2
told the witness that they should be left alone to do as they pleased i.e.
assaulting the deceased. He said the deceased had to be taught a lesson
because he was belittling them. Meanwhile, the deceased was telling Accused 1
and 3 that he did not want to fight with them. Accused 1 and 3 did not take
heed. The witness saw the deceased fall down, the deceased got up but fell
down again and this time he did not get up. He believed the deceased had
been injured at this stage. The deceased was not armed and the accused
persons were assaulting the deceased with booted feet and clenched fists all
over his body. The witness said he failed to protect the deceased from
being assaulted by the three accused persons because he could only hold one
accused at a time and the other would…, time assaulting the
deceased. After the deceased fell down, the witness heard one of the
accused persons saying “Golden, why did you kill this person? Accused 1
then ran away. The witness checked the deceased's pulse and realized that
he had died. Since it was dark, he did not observe any injury but later
saw that the deceased had been injured at the back of his head. When
police attended the scene he saw Accused 1 showing the police the stone he had
used i.e. Exhibit 9. The witness said stones similar to Exhibit 9 were
found a few metres from the verandah. He said there are many stones around
that area. He denied that the deceased picked up a stone when he was
running away. According to this witness, Accused 1 paid three (3) cattle
to the deceased's family. Accused 2 paid five (5) cattle and Accused 3
paid one (1) beast and $250= cash. He conceded that the accused persons….,
have paid in the form of groceries etc.
He
said from his assessment, the accused persons were drunk but would appreciate
what they were doing. He said he was not drunk because he had only taken ½
of the scud he had bought. According to this witness, the deceased was
close to the first accused when he saw him falling down….,.
Most
parts of his evidence are common cause and I need not analyse those portions; suffice
to say as regards contentious areas, they are narrow and are as follows:
(a) The
witness said after striking the deceased with the stone, Accused 1 ran
away while the accused said he remained at the scene.
In
our view, this fact is colourless in the circumstances of this case.
(b) Witness
said all accused persons used booted feet and fists. Accused 1 said they did
not do so.
It
is common cause that at some point during the commotion the deceased fell
down. We do not believe that given the zeal and gusto the accused persons
had to assault this old man (as they put it) would stop assaulting the deceased
when he was on the ground. There were no rules in this fight and naturally
one would resort to all the methods available and convenient - including
kicking.
We
find that this witness, like Jester Sithole, told the court the…, that the accused
persons kicked the deceased while he was on the ground.
(c)
Witness said he did not see the deceased picking up a stone before he was hit
by Accused 1. On the other hand, Accused 1 said the opposite is what
happened.
In
our view, Accused 1 is not being truthful on this one point. We say so for
the following reasons:
(i)
The medical evidence shows that the deceased was hit on the ocerpit i.e the
back of the head. If what Accused 1 told the court is what happened, this
quite obviously means the deceased could not have been injured on that part of
his body. That the deceased had a wound at the back of the head makes the
accused's version thoroughly discreditable and false.
This
is the coup de grace to Accused 1's defence.
(ii)
Further, if more proof is required, it is to be found in Accused 2 and 3's
evidence to the effect they did not see the deceased bending down before he was
hit. Accused 2 and 3's evidence is admissible against Accused 1 –
trite. Accused 2 and 3 were very close to where Accused 1 was standing
when he threw the stone. Also, it is their testimony that they saw the deceased
running away. They also saw him fall to the ground.
(iii)
Of the six people who witnessed the incident, five (5) say they did not see the
deceased bending down before he was hit and it is only the forlorn first
accused who said he did so.
We
find Mr Madhadha to be a credible witness on this point as his evidence has
been sufficiently corroborated by other witnesses and the post mortem
report. We accept his evidence and reject Accused 1's evidence.
As
against Accused 2, the following areas are in dispute:
(a) The
witness said while the deceased was on the ground all the accused persons were
kicking him with booted feet. Accused 2 said at that stage he was no
longer assaulting the deceased.
I
have already analysed this evidence when I dealt with Accused 1's
testimony. Our findings thereof equally apply to the second
accused. However, I must add that what was more telling and instructive of
Accused 2's state of mind at that time is the following evidence by the third State
witness, Mr Madhadha; and I quote;
“I
attempted to hold Accused 2 whilst at the verandah in order to stop him from
further assaulting the deceased but Accused 2 said; “uncle, let me assault this
old man who is belittling us.”
This
portion of the witness' testimony was not challenged during cross
examination.
In
our view, this is the final nail in Accused 2's defence that he was acting in
self-defence, for at that stage he was undoubtedly the aggressor.
The
first accused gave evidence in his defence and his version, as pointed out
above, differs from that of the other witnesses. We make an adverse
finding in respect of Accused 1's credibility for the simple reason that he
told us a false story. He lied that when he threw the stone he did not see
where it went to. We find that he aimed the stone on the upper part of the
deceased's head. Indeed, the first accused admitted that he aimed the
stone at the deceased.
We
find that the throwing of the stone by Accused 1 was a confirmation of the
assault that had commenced inside the shop.
Accused
1 admitted that he realized that he was throwing a stone at a human
being. When asked what he thought would happen to the deceased, his answer
was;
“Deceased was going to stop throwing a stone
at me.”
When
asked, further, how this was going to stop the deceased, he became evasive
saying this would scare the deceased.
This
evidence from Accused 1, coupled with the earlier concession, that he used
excessive force to propel the stone that he aimed at the deceased, is
indicative of a mind that foresaw the real possibility of death resulting from
his reckless conduct.
Accused
2 also gave evidence in his defence.
Apart
from what we said earlier on, he also confirmed that the deceased was running
away from where they were with his back toward them when he was assaulted by Accused
1 with a stone. He said the throwing of the stone was Accused 1's own
decision. Further, he said the deceased was about ten (10) metres from the
first accused when he was struck. He was standing about five (5) metres
from the first accused. Accused 2 denied that the deceased picked up a
stone before he was hit. He also said although he had taken a sizeable
amount of alcohol he appreciated everything that was happening. He said he
drank opaque beer mixed with ZED and a scud.
The
thrust, or gist, of Accused 2's defence is that when he assaulted deceased, he
did so in self defence since the deceased was the aggressor. He denied
using booted feet but admitted using clenched fists.
As
pointed out before, the rest of Accused 2's evidence is in tandem with that of
other witnesses except on the issue of self-defence where he drew a distinction
between “assaulting someone” and fighting someone.
Accused
3 admitted assaulting the deceased with fists. As regards the manner in
which the deceased was assaulted he evidence tallies with that of Accused 2,
Jester Sithole, and David Madhadha.
Whether
accused persons are guilty of murder or any other competent verdict.
State
counsel conceded that Accused 2 and 3 could not be found guilty of murder as
there was insufficient evidence to establish the requisite intention. He
submitted that they be found guilty of assault as defined in section 89 of the
Criminal Law (Codification and Reform) Act.
Accused
3 pleaded guilty to that offence in his Defence Outline. Accused 2,
however, denied the offence, arguing that since the deceased started the fight
he only assaulted the deceased in self defence. Therefore his assault was
lawful.
As
regards Accused 1, the State submitted that he be found guilty of murder with
constructive intent.
Counsel
for Accused 1 said Accused 1 should be found guilty of culpable homicide.
We
find that the State's concession is sound and proper at law.
This
brings us to two issues, namely;
(i)
Whether Accused 1 is guilty of murder with constructive intent;
(ii)
Whether accused 2 is guilty of assault.
Let
me deal with Accused 2 first.
If
I understand the answers proffered on his behalf correctly, it feels like this:
If
A is an aggressor who assaults B with fists and B retaliates and over-powers A,
B is nevertheless permitted to continue to assault A simply because A was the
initial aggressor. This argument is fallacious for two reasons, namely;
(a)
It makes a mockery of the requirements of the defence of self-defence; and
(b)
It leads to an absurdity in that in a fight, the protagonists may change from
aggressor to victim or vice versa within a short space of time.
In
such a scenario the categorization of protagonists as aggressor and victim
leads to disastrous consequences.
In casu, there is overwhelming
evidence that from the moment Accused 1 and 3 joined in the fight, the deceased
was immediately subdued. There is overwhelming evidence that the three
accused continued assaulting him, tore his shirt, pushed him out of the shop
onto the verandah where the deceased fell down and all three (3) kicked him
with booted feet. In view of this evidence, it is unconvincing to argue
that Accused 2 was still acting in self defence. Put differently, the
accused persons were now the aggressors in that they had exceeded the bounds of
reasonable self-defence – the threat had been eliminated.
On
this basis, the second accused must be found guilty of assault….,.
Coming
to Accused 1, let me state the legal principles first. (Go to Mugwamba vs SC…,.; S v Sigwahla 1967 (4) SA
556 (A). Go to legal intention page 9.
In casu, the following facts
are salient;
(a)
That it is common cause that the sworn intention of the first accused and his
companions was to assault the deceased. It follows, therefore, that the
death of the deceased was not the desired objective. It, however, occurred
while Accused 1 was engaged in the desired activity of assaulting the
deceased. The first accused did not desire to kill, he intended to punish
the deceased for fighting with Accused 2.
(b)
In pursuance of Accused 1's activity i.e. the assaulting of the deceased, one
wound was inflicted on the deceased's head. The degree of force and depth
of the wound is unknown although the accused admitted that he used excessive
force to propel the stone. The accused admitted that he aimed his blow at
the deceased. He hit him at the back of the head (vital part of the body).
(c)
The deceased fell down and died instantly from the injury.
(d) Although
the accused had taken alcohol he admitted that this did not inhibit his
faculties of comprehension and appreciation.
These
facts, in my view, are sufficient to establish, beyond reasonable doubt, that
the accused did foresee the possibility of the death of the deceased as a consequence
of the assault and persisted with the assault regardless.
Accordingly,
the accused is found guilty of murder with constructive intent.
