The accused is facing a murder charge in that on the 5th
of August 2013, and at 22527 Pumula South, Bulawayo, in the said Province, the
accused person did wrongfully, unlawfully and intentionally kill and murder
Oppah Ndlovu a female adult during her lifetime therebeing.
The facts are as outlined in the State Outline. They were
read into the record, and I do not intend to repeat all of them here. I will
just state the summary of the facts…,.
The accused pleaded not guilty and his Defence Outline was read into the
record and produced as exhibit 2.
The crux of his defence is that he did not intend to kill
the deceased but wanted to defend himself. He also raised the issue of anger or
provocation as a defence. He however admitted committing the actus reas and
using the murder weapon on the day in question. The State produced exhibits as
shown in the exhibit list.
Exhibit 4 is a post mortem report by Dr Ivian Betancourt
who found the cause of death to be:
(i) Hypovolaemic shock.
(ii) Damage of left lung, severe haemothorax.
(iii) Severe thoraice trauma due to stabbing injury.
The State then led viva voce evidence from Tapelo Ndlovu, a
ten year old boy, who is the deceased's son and the accused's cousin. His
evidence was that on the night in question he was bathing when he heard his
mother (deceased) screaming calling out his name. He rushed out and saw
bloodstains on the sofa and floor in the sitting room. He rushed to his
mother's bedroom where he heard the door being locked from inside. He tried to
open the door but realised that it had been locked. He then ran out of the
house but before he got far the accused, who was pursuing him, caught up with
him and covered his mouth with his hand at the same time threatening to beat
him if he made any noise. The accused took him back into the house where he
ordered him to clean the blood on the knife and sofa. The accused wiped the
blood that was on the floor. He saw the accused changing his clothes. Later, the
accused told him to accompany him to the shops to buy bread. The accused then
told the witness that they should go to Mrs Tshuma's house to report that the
deceased had been murdered by unknown assailants. Before they left, the accused
took all the money from the deceased's bag. He also threw clothes all over the
room. They then proceeded to Mrs Tshuma's house where, upon arrival, the
accused told her that the deceased had been attacked by unknown persons. Mrs
Tshuma called a neighbour, one Witness Antonio Ngwenya, who also brought her
husband and together they went to the deceased's house.
When they arrived, the accused showed them the room where
the deceased was. The witness saw his mother lying on the floor facing upwards.
According to this witness, the relationship between the accused and the
deceased was, at times, sour because of the accused's disobedience. He said on
one occasion the deceased assaulted the accused with a cooking stick after the
accused had slept on the deceased's bed with his girlfriend while the deceased
was away. Further, he said the bone of contention between the two was that the
accused would not perform the chores assigned to him by the deceased. The deceased
would end up performing those chores.
Tapelo Ndlovu's evidence was not challenged during
cross-examination. The size of the cooking stick was not put to him by the
defence.
In fact, the accused's evidence corroborates Tapelo's
evidence in material respects.
For example, he admitted that the cause of the
misunderstanding between him and the deceased was his failure to perform
domestic chores. He admitted that he told Tapelo a concocted story that the
deceased had been attacked by unknown assailants. He admitted that there was
blood on the sofa and on the floor in the sitting room. Also, he agreed with
Tapelo that he, at one time, brought his girlfriend home to spend the night
there. He, however denied sleeping on the deceased's bed with this girl….,
The State then applied to have the evidence of the rest of
their witnesses admitted in terms of section 314 of the Criminal Procedure and
Evidence Act [Chapter 9:07]. The application was not opposed and the evidence
of Tryphine Tshuma, Witness Antonio Ngwenya, Lazarus Ngwenya, Byron Dunura, Never
Kamupita, and Dr Betancourt was admitted by consent.
The State then closed its case….,.
The accused then gave evidence in his defence.
His version is simply that he arrived home late from school
on the fateful night. The deceased took issue with that and demanded an
explanation from him. After proffering an explanation, the deceased did not
believe him and told him that she was going to beat him thoroughly. She then
stood up and armed herself with a “big cooking stick” which was in the kitchen.
After that, she then advanced towards him and started assaulting him with this
big stick. According to him, prior to explaining the reason for coming home
late, he had taken a kitchen knife (Exhibit 8) from the kitchen intending to
use it to cut a piece of soap. When the deceased started assaulting him, he had
placed the bar of soap on the floor but kept the knife in his hand. When the
deceased continued to assault him, he then stabbed her above the eye and ran
into the deceased's bedroom with the deceased in hot pursuit. He continued to
stab the deceased in the bedroom but could not say how many times he stabbed
her. However, he admitted that he aimed his blows at the upper part of the
deceased's body. After that, he told Tapelo Ndlovu to clean the knife. Further,
he admitted that he told Mrs. Tshuma a fabricated story as to how the deceased
had been injured. He maintained that he stabbed the deceased in self-defence
since he could not have fled due to the fact that the deceased had 'blocked'
his way. As regards their relations, he admitted that at times they were
turbulent and the deceased would insult him and chase him away from home after
having assaulted him.
On the day in question, he said he acted out of anger but
lacked the intention to kill the deceased.
We find the accused's version as regards how he ended up
with a knife and how he was assaulted by the deceased hard to believe. We
appreciate that the only direct evidence as regards the cause and sequence of
the fight is coming from the accused. However, his evidence is improbable in
certain respects.
For example, we find that it was highly unlikely that the
deceased would immediately, after being stabbed with such a dangerous weapon,
follow the assailant. Also, the accused's version of the manner and nature of
weapon used by the deceased to assault him is highly incredible. He failed to
show or mention the 'big cooking stick' to the police who attended the scene
that evening. Instead, he told them a different reason for the fight – namely,
that the deceased had confiscated his cell phone. The accused's evidence that
the deceased chased him is inconsistent with Tapelo's evidence that it was the
deceased who “screamed calling out his name.” We agree with the State counsel
that it was, in fact, the deceased who was running away from the accused.
It appears to us from the surrounding circumstances, and
other evidence, coupled with the probabilities, that the accused's version is
false.
In any event, assuming we are wrong that there was no
unlawful attack on the accused, the following analysis and application of the
law to the facts will demonstrate that the two defences raised by the accused
are unsustainable.
The Law
Our law recognizes that the infliction of harm upon
unlawful attackers is permissible to the extent that such harm was reasonably
necessary to avoid them off. Section 253 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] provides the requirements of this defence. They are
–
(1) There must be an unlawful attack.
(2) When the accused engaged in the conduct, he believed,
on reasonable grounds, that the unlawful attack had commenced or was imminent.
(3) The accused 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.
(4) That the means used to avert the unlawful attack were
reasonable in all the circumstances.
(5) Any harm or injury caused by his conduct or her conduct
–
(a) Was caused to the attacker;
(b) Was not grossly disproportionate to that liable to be
caused by the unlawful attack.
In assessing these requirements, the court must avoid an
armchair approach from the refined atmosphere of the court. Put differently,
the court must take into account the accused's predicament – S v Phiri SC190-82; S v Mashingaidze SC79-84; S v
Mandizha SC200-91; S v Banana 1994
(2) ZLR 271 (S).
Another relevant section in respect of this defence is section
255 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which
basically provides that if an accused is genuinely, and on reasonable grounds,
but mistakenly, believes that he or she is defending himself or herself or
another person against an unlawful attack, he or she shall be entitled to a
complete or partial defence to any criminal charge in all respects as if his or
her belief were in fact correct.
Note: For the
defence to avail, the mistake must not only be genuine but also it must be
reasonable - S v Moyo SC45-84. Before applying these principles to the facts
before us we must state the facts that are common cause. They are the
following:
(a) The accused and the deceased were related and living
under one roof.
(b) On the fateful day, the deceased and the accused had an
argument over the accused's late arrival from school.
(c) The deceased screamed calling out Tapelo Ndlovu's name.
(d) There were blood stains on the sofa and floor in the
sitting room.
(e) The accused stabbed the deceased with Exhibit 8 causing
all the injuries observed on the deceased's body.
(f) All these injuries were inflicted on the deceased's
chest, neck, head and face.
(g) The deceased died as a result of these injuries.
Applying the principles of law to the above facts, we make
the following findings (giving the accused the benefit of doubt);
(a) That the deceased used an ordinary cooking stick to
assault the accused and not the 'big cooking stick' the accused alluded to.
(b) That this assault did not present a threat to the
accused's life as the deceased was merely chastising the accused for coming
home late.
(c) The accused did not sustain serious injuries from this
assault (admitted).
(d) The accused's conduct was not necessary to merit this
attack.
(e) The means used by the accused were totally unreasonable
in all the circumstances of this case.
(f) The injuries caused were grossly disproportionate to
that liable to have been caused by the deceased.
(g) That as a result of the foregoing, the requirements of
self-defence have not been met.
In casu, we find the accused to have acted with actual
intent to kill. We say so for the following reasons:
(i) The accused stabbed the deceased with a big sharp knife
on numerous occasions.
(ii) He aimed at the deceased's chest, neck, face and head.
(iii) He inflicted very serious and fatal injuries on the
deceased.
(iv) The deceased died from these injuries.
(v) Provocation has not been proved a defence in that a
reasonable person in the accused's position would not have lost his self
control.
Consequently, we agree with counsel for the State that the
accused be found guilty of murder with actual intent.
Verdict – Guilty of murder with actual intent.
