The
circumstances surrounding the allegations of murder are as follows;
The
accused and the deceased were, at the relevant time, customary law
husband and wife. They resided in premises behind Munashe Store,
managed by one Loveness Beta (“Loveness”) at Ndiyadzo Business
Centre, Chipinge. Prior to the date on which the events subject of
the allegations occurred, the deceased had been away for about a
month. So when the altercation leading to her death occurred, she had
only recently returned. Their relationship was under severe strain as
a result of mutual allegations of infidelity. Around 10:00h, the
couple engaged in an altercation which attracted Loveness Beta, their
landlord. The deceased cried out for help and Loveness Beta came to
her aid. She found that the deceased had already been badly injured.
It appeared that she had been stabbed by the accused who wielded a
spear. The deceased was rushed to Ngorima Clinic and later
transferred to Mutare General Hospital where she subsequently died.
In
denying the charge, the accused stated, in his Defence Outline, that
their four year marriage had been shaken by various acts of
infidelity on the deceased's part. Despite efforts to talk these
over, the infidelity streak in his customary law wife continued to
haunt their marriage. What had led to this latest altercation was the
following. By September 2014, they had, as a couple, saved $4,000=
with which they intended to build a home. He had, that month,
travelled to Beitbridge on business. When he called his wife on her
mobile number, she had told him that she had left their home and
proceeded to her maiden home. Upon further enquiry with his wife's
relatives, he learnt that, in fact, she was in Chiredzi where she was
spending time with another man.
By
the time he returned home, on 22 October 2014, the deceased was still
not at home although she had undertaken to be home. She only returned
home on the eve of 24 October 2014. By that date, he had information
that the deceased was planning to build a home with another man. He
therefore asked about their US$4,000= savings. She avoided the
subject and prevaricated on the issue raising his suspicions higher.
The next morning he asked her, again, about their savings but she
rebuffed him. When he got the chance, he searched her handbag for the
money. He came across concrete evidence of infidelity in the form a
love letter and a photograph of a man. Before he confronted her with
this evidence, he decided to seek the wise counsel of their landlord,
Loveness Beta. Her advice was that it was in the interest of both of
them if they separated amicably. He left Loveness Beta and went back
to the deceased whom he confronted with the evidence of her
infidelity. Upon being confronted, the accused says that the deceased
then asked him why he had searched her bag and berated him for it.
She, however, admitted having used the money to buy another piece of
land.
This
angered him.
He
advised her that their marriage was over and that she should give him
back his money and leave. He began to pack her clothes into a bag. At
that point, the deceased picked up his spear and attempted to attack
him. He grabbed the deceased's hand and elbow to wrestle the spear
from her in an attempt to avert the attack. They struggled for the
possession of the spear. In that struggle, she bit him on the hand.
They both fell to the floor. In the process, he says, the deceased
was accidentally stabbed. As a direct result of this accidental
stabbing, when she fell onto the spear, the accused says she released
her hold on the spear. He remained holding it. She, however,
thereafter, went on to grab him by his private parts and pulled them.
In a bid to cause her to free this grip, he then stabbed her on the
arms. She relented and loosened her grip on him. The spear was now on
the floor. He grabbed it to prevent her from picking it up and using
it on him. He maintained that he had no intention to kill her as she
was accidentally stabbed. He also maintained that he did not realise
that there was a real risk that in the process of defending himself
from an unlawful attack, the deceased might be fatally injured.
The
evidence led from the medical doctor, Dr Matimbura, was that on 24
October 2014 she attended to a patient who had presented at a local
clinic with serious injuries. She was visiting from Mutambara Mission
Hospital. Upon enquiry, the doctor learnt that the patient had been
stabbed by her husband. The patient bore several stab wounds and
exhibited signs of severe blood loss. The doctor described the
injuries as follows;
(i)
She had laceration on the right forearm extending to wrist, inside
the right palm and right forearm near the wrist; left upper arm, and
the shoulder.
(ii)
She noticed a deep penetrating wound to the abdomen through which
faecal matter was drawing. This latter wound implied that the
intestines had been perforated. In her view, it required severe force
by a sharp object to puncture the skin as well as the stomach wall
into the intestines. Draining of faecal matter into the blood stream
indicated that simultaneous and rapid poisoning of the patient's
blood was taking place.
The
patient required a higher level of care than that which
the clinic could give. She referred the deceased to Mutambara Mission
Hospital for the appropriate level of care.
In
her view, from her experience as a medical doctor, and going by the
number of lacerations, it was highly unlikely that the injuries on
the patient were sustained accidentally. In any event, when she asked
the patient how she had sustained the injuries, the patient had
indicated to her, as doctor, that her husband had stabbed her with a
spear. At Mutambara Mission Hospital, the patient was operated upon.
Unfortunately, the patient died. The post mortem report by Dr
Makange, in Exhibit 6, confirmed the oral description of the injuries
given by Dr Matimbura.
Crucially,
the evidence led from Loveness Beta establish that on the day
following the deceased's arrival the accused had approached her
with a letter which tended to confirm the accused's claims of
infidelity by his wife. She had advised him that a cordial separation
was the best in the circumstances. The accused conceded that his wife
had previously strenuously denied any allegations of infidelity. He
now held, in his own hands, hard evidence of that infidelity. This
had angered him beyond measure by his own admission.
In
our view, these factors provide sufficient motive for the accused
rather than the deceased to have been the aggressive of the two. Put
differently, it is in our view, the accused who had reason to be on
the offensive rather than the deceased as the accused would have us
believe. In any event, the argument over the money only provides
further reason for the accused to be angry with her. This court
therefore finds that the State witness, Loveness Beta's, evidence
is more reliable on the factual situation obtaining inside their room
than the version given by the accused. This is particularly made more
cogent by Loveness Beta's version as to how the accused took her
advice. According to her, after she advised him to cordially separate
from the deceased - the accused indicated that he would resolve the
issue his own way. A few minutes later, Loveness heard the deceased
shout for help.
Loveness
Beta had no idea of what she was to witness shortly thereafter. She
went on to say that she heard the deceased scream and shout that that
she was dying. She ran to the couple's quarters and upon arrival at
the couple's quarters, she saw the accused stabbing the deceased on
the left shoulder with a spear. The deceased was by then bleeding
from wounds inflicted earlier on. She shouted at him to stop. The
deceased was in a bending position holding her right lower abdomen.
She had pulled the accused outside their room. The deceased followed
outside the room. When the three were outside, the accused attempted
to stab the deceased again. She pushed him away. She arranged for
the injured wife's evacuation to nearby Ngorima Clinic.
We
have assessed the credibility of the witnesses led by the State and
are satisfied by the veracity of their versions. We are satisfied
that they were truthful and their versions accord with the
probabilities in the matter. We find it highly unlikely that the
deceased suffered multiple wounds in the manner the accused
described. His version is so improbable that we are satisfied that
it is false beyond doubt.
In
our finding, upon a fair consideration of the facts of this matter,
the accused was on this day provoked by the continued infidelity of
his wife, which had been confirmed by hard evidence, as well as her
decision not to share the US$4,000= which he said they had saved for
the construction of their own home. In the heat of the moment, he had
attacked her by stabbing her with the spear on the abdomen. This
would have led the deceased to scream for help. When he pulled out
the spear, she must have defensively tried to hold the spear hence
the injury to her palm and wrist. He was found by Loveness Beta
delivering the left shoulder stab wound. He attempted to stab her
even after Loveness's intervention.
The
question which arises is whether, in those circumstances, the accused
can be
said to have lost self-control and acted in the heat of passion in
stabbing her. In other words, can a defence of lack of intention to
kill be upheld on the facts? Can this court uphold his partial
defence of provocation to the charge of murder?
Generally,
provocation is not a defence to a crime. In certain circumstances,
however, the law recognises that situations may arise in which a
person is virtually pushed to act in a manner constituting a crime
because the amount of provocation he would have been subjected to
literally prevents him from exercising control over his faculties. In
other words, in order to provide or act as a partial defence, the
provocation would have resulted in the accused losing self-control.
Short of that it constitutes no defence.
Section
239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
codifies the common law position thus:-
“239
When provocation a partial defence to murder
(1)
If, after being provoked, a person does or omits to do anything
resulting in the death of a person which would be an essential
element of the crime of murder if done or omitted, as the case may
be, with the intention or realisation referred to in section
forty-seven,
the person shall be guilty of culpable homicide if, as a result of
the provocation -
(a)
He or she does not have the intention or realisation referred to in
section forty-seven;
or
(b)
He or she has the intention or realisation referred to in section
forty-seven
but
has completely lost his or her self-control, the provocation being
sufficient to make a reasonable person in his or her position and
circumstances lose his or her self-control.
[Subsection
amended by section 31 of Act 9 of 2006.]
(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 realisation 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.”
In
S
v Nangani
1982 (1) ZLR 150 (SC), the court confirmed the common law position
that provocation can, in appropriate circumstances, have the effect
of excusing or reducing an intentional killing at least to the point
of reducing murder to culpable homicide - even where the killing is
intentional. The court, however, pointed out that in order to meet
this threshold, the provocation must be such as to have actually
caused the accused to have lost self-control, though not necessarily
his capacity to intent to kill. It added that it must also be such
that in the circumstances, an ordinary man would have lost his
self-control and acted in the manner the accused did.
See
also R
v Bureke
1960
(1) 49 (FC); S
v Turk
1979 (4) SA 621 (ZR).
Counsel
for the accused relied on S
v Nyangani
1982 (1) ZLR 150 (SC) in urging us to find that there was sufficient
provocation to reduce the charge of murder to culpable homicide. It
seems to me that her argument ignored the fact that the accused did
not dispute the evidence given by Loveness Beta that after finding
the letter inside his wife's handbag, the accused had sought her
advice as how he should handle the situation he found himself in. In
our view, he had the opportunity to reflect on the possible courses
of action that were open to him. He had, so to speak, an opportunity
to reflect on his action and reaction. He opted to ignore the sound,
sensible and sober advice from his landlord and practically took
matters into his own hands - as he said to the landlord.
In
our view, a reasonable man in his position, having walked out to seek
advice, and such advice having been rendered, would not have acted in
the manner that he did. He would have heeded the landlord's advice
and not settle on resorting to the use of a spear on the cheating
wife. He expressed his wish to resolve the matter his own way. He
was, at that stage, not armed with a weapon of any description, let
alone a spear. The act of arming himself was a deliberate one, borne
out of the desire to punish the wife for her so many transgressions
which included infidelity. If he did not intend to kill her when he
stabbed her in the abdomen he certainly realised the obvious risk
associated with the puncturing of the abdominal area using such a
weapon as a spear.
In
our view, the accused cannot escape conviction for murder as defined
in section 47(1) of the Criminal Law (Codification and Reform) Act
[Chapter
9:23].
He
is therefore found guilty as charged.
