On the 24th of August 2012, and at Jethro
Ndlovu's homestead in Mahosangwe Village, Matobo, the deceased, Ncedisani
Sibanda, lost her life as a result of assault by the accused person.
Exhibit 3, the post mortem report, gave the deceased's
cause of death as subarchnoid haemorrhage and skull fractures as a result of a
violent attack on the deceased.
It is not in dispute that the attack on the deceased was
orchestrated by Philani Maphosa who stands as the accused in this case.
It is also common cause that on the day in question the
deceased and the accused had a misunderstanding whilst at the deceased's place
of residence. As a result of that misunderstanding, the accused armed himself
with a hoe (which turned out to be the murder weapon) and used it to severely
assault the deceased leading to her untimely death.
The background to the State case is that on the 21st
of August 2012, the accused picked up a love letter which the accused suspected
the deceased's husband, one Jethro Ndlovu, had written to the accused's wife,
Siboniso Dube. After making abortive attempts to set up a meeting in the
village to deal with this matter, the accused ended up taking the letter to the
deceased's homestead intending to discuss the issue with Jethro Ndlovu. On one
such visit, Jethro's wife confirmed that the paper on which the letter was
written had been removed from the family diary and that the handwriting on the
letter resembled that of the deceased's husband.
On the fateful day, the accused proceeded to the deceased's
homestead intending to confront Jethro Ndlovu about his adulterous relationship
with his wife but found Jethro absent. The accused had a misunderstanding with
the deceased which led to the accused severely assaulting the deceased leading
to her death.
Before the fatal assault, the accused was heard uttering
words to the effect that he was going to leave Jethro Ndlovu without a wife
since the latter had destroyed his marriage.
Whilst agreeing with the bulk of the State case, the
accused's defence was to the effect that he attacked the deceased after she had
insulted him by uttering words to the effect that the accused was supposed to 'keep
his wife under leash.' The accused said the deceased uttered these words in
Sindebele language by saying “ubobophela inja yakho” meaning 'keep your dog
leashed.'
The accused said these utterances provoked him and led to
the assault that claimed the deceased's life.
The enquiry in this case was limited to the court
endeavouring to find out the exact circumstances leading to the deceased's
death bearing in mind the defence of provocation raised by the accused person.
I propose to deal first with the evidence led and accepted
by this court before proceeding with the defence of provocation which the
accused sought to take refuge in.
The State case comprised of viva voce evidence from
Brighton Dube who was a male juvenile at the time of the murder and who
regarded the deceased as his sister-in-law. The second witness was Siboniso
Dube, the accused's wife, and, finally, the State led from the deceased's son,
Milton Ndlovu, whose evidence had to be recorded in the Victim Friendly Court
given his vulnerable age.
The rest of the evidence was admitted into the court
proceedings as recorded in the State summary and in terms of section 314 of the
Criminal Procedure and Evidence Act [Chapter 9:07].
The accused was the sole witness for the defence and his
attempt to call his cousin as a witness was shot down by the court after
assessing that his evidence was not going to assist in any way in clarifying
the issues around the alleged murder of the deceased.
Brighton Dube took the court through what exactly happened
from the time the accused arrived at the deceased's place to the time the
deceased was savagely attacked by the accused leading to her demise.
It was the clear evidence of Brighton that when the accused
arrived at the deceased's homestead he asked the whereabouts of Jethro Ndlovu
and was advised that he was not at home. He further stated that when the
accused turned to the deceased to discuss the issue concerning the deceased's
husband's alleged adulterous relationship with his wife the deceased then
suggested that they involve a neighbor, Gipton Ndlovu, to resolve the issue. It
was his evidence that the deceased then suggested to him and Milton Ndlovu that
they put on their shoes to accompany her to Gipton Ndlovu's place.
It was the evidence of Brighton Dube that he then heard the
accused saying to the deceased the following,
“Today I want to leave Jethro Ndlovu with no wife as I also
no longer have a wife.”
The witness said the deceased pleaded with the accused to
have Gipton Ndlovu involved but her pleas fell on deaf ears.
The next thing, this witness saw was the deceased running
back into the hut and trying to secure the door by standing behind it. The
accused succeeded in overpowering the deceased by pushing the door open and
immediately attacked the deceased with a hoe.
According to this witness, the first blow on the deceased
landed on the right side of the deceased's head just below the ear and that
blow literally rendered the deceased motionless. Even when she was down, and
defenceless, the accused continued to attack her concentrating the blows that
followed on the deceased's head. That this was so is confirmed by the
postmortem report which noted multiple skull fractures.
That there were these kinds of assaults was confirmed by
both the accused himself, and, to a lesser extent, by Milton Ndlovu, who,
because of his tender age at the material time, was unable to give graphic
details of the assault itself….,.
The credibility of the State case found support from an
unlikely source - the accused himself.
The accused's own version supported the deceased's assault
as given by Brighton Dube but sought to differ on the number of blows he
delivered. To us, the disparity in the number of blows on the deceased is not
the issue but the impact of those blows on the deceased. Whatever number of
blows were delivered, the blows had the effect of causing the immediate death
of the deceased.
The accused's explanation was that he acted in the manner
he did because he had been provoked by the utterances of the deceased when she
allegedly told him to “keep your dog leashed.”
Our view is that if indeed these words had been uttered by
the deceased, resulting in the accused reacting to these words by assaulting
the deceased, these utterances would have been made an integral part of the
exhibit 1, the accused's warned and cautioned statement which was recorded from
him barely four days after the deceased's assault. Instead, these very serious
utterances are conspicuously missing from exhibit 1.
In addition, the accused's flawed evidence in court, that
he, at one time, had found his wife and Jethro Ndlovu having sexual intercourse,
and, literally, did nothing to his wife, did not project him in good light. We
know as a court that the accused was incensed by exhibit 4 to the extent that
he savagely assaulted his wife leading to her unceremonious departure from the
parties' matrimonial home. It clearly defeats common sense and logic that if indeed
the accused had caught his wife and Jethro red-handed having sexual intercourse
he would have done nothing to his wife, let alone not bring that issue to
either the deceased or the Village Head.
To compound his situation, this alleged sexual intercourse
between his wife and Jethro Ndlovu was never made part of his Defence Outline,
warned and cautioned statement, let alone put to his wife in cross-examination.
In court, the accused openly admitted that he had lied to
the recording detail about having seen Jethro Ndlovu handing a letter to his
wife.
By giving contradictory evidence in court concerning the
number of letters he recovered concerning the adulterous relationship between
Jethro and his wife, the accused soiled his own credibility. The accused's
situation gets worse when one accepts that when his wife, Siboniso Dube, appeared
in court to give evidence as a State witness, the accused, through his counsel,
did not even make an attempt through cross-examination to rebut her specific
averment that her alleged confession to adultery was as a result of duress
brought about by her savage assault by the accused coupled with a threat to end
her life by axing.
One further finds it extremely unbelievable that the
accused would have forgotten to instruct his counsel to ask his wife about
where exhibit four was recovered from, let alone her being caught red-handed in
a sexual act with Jethro or even to question her as regards one of his three
children whose paternity he was now putting in issue in court.
It will be recalled that even though the accused and the
deceased had briefly got out of the kitchen hut before the assault, the
deceased was still conversing with Brighton Dube and Milton Ndlovu who were
inside. It is evident that the reason why the deceased sought to involve her
neighbour was because she was fearful of the accused. It is highly improbable,
in our view, that given her state of fear at that time she would have gathered
courage to utter the words belatedly attributed to her by the accused.
In any event, if such words had been uttered, our firm view
is that Brighton Dube would have heard such words. It makes sense to us that
the attack on the deceased was unprovoked and informed by the accused's
expressed desire to ensure that Jethro Ndlovu would not have a wife, since,
according to the accused, Jethro Ndlovu had destroyed his marriage by having an
adulterous relationship with her. This then motivated the accused to savagely
assault the deceased leading to her inevitable demise.
I wish to briefly deal with the defence of provocation
which the accused has sought to feebly raise in this case.
Section 239 of the Criminal Law (Codification and Reform)
Act [Chapter 9:23], which the court brought to the attention of both counsel
during court addresses, provides that in a murder charge where provocation is
successfully pleaded it provides a partial defence. The section reads, in part,
as follows:
“239. When
provocation a partial defence to murder
(1)…,.
(2) For the avoidance of doubt, it is declared that if a
court finds that a person accused of murder was provoked but that –
(a) He or she did have the intention or realization
referred to in section forty-seven; or
(b) The provocation was not sufficient to make a reasonable
person in the accused's position and circumstances lose his or her
self-control;
the accused shall not be entitled to a partial defence in
terms of subsection (1) but the court may regard the provocation as mitigatory
as provided in section two hundred and thirty-eight.”
We have already dismissed the factual averments put forward
by the accused person as the basis for his alleged provocation in preference to
his utterances as put forward by Brighton Dube that he made it clear before the
assault that his avowed aim on that day was to end the deceased's life in order
to fix Jethro Ndlovu.
Now, if a man is heard making threats to end someone' life,
proceeds to conduct himself in a manner that indeed fulfils that objective, the
verdict can only be one - it has to be murder with actual intent.
We have considered the specific details about the murder
weapon, as provided by the State counsel, the delicate part of the deceased
which was repeatedly attacked by the accused, coupled with the accused's
utterances before the assault.
We are more than satisfied that the accused made it his
primary objective to end the deceased's life and proceeded to conduct himself
in a manner that ensured that his objective was realised.
Consequently, the accused is found to have murdered the
deceased with actual intent.
Verdict - Guilty of
murder with actual intent.
