The
accused person, a 46 year old mine employee, is charged with murder,
in contravention of section 47 of the Criminal Law Code [Chapter
9:23], it being alleged that on the night of 24 December 2015, at
Joplum Mine, Springs Farm, Kessington, Bulawayo, he wrongfully,
unlawfully and intentionally killed Sindisani Sibanda a male adult
then aged 24 years.
The
allegations are that the accused and the deceased were workmates at
Joplum Mine in Kessington Bulawayo where a drinking party had been
organized on the night of 24 December 2015. As the workers at the
mine were carousing, the accused and the deceased had a
misunderstanding, and, as so often happens when people have taken
copious amounts of intoxicating liquor, the deceased is said to have
attacked the accused with a shovel but was restrained by a witness,
Duke Khumalo.
The
accused is said to have picked up an iron bar, exhibit 5, which was
lying around and struck the deceased three times on the head causing
him to fall down unconscious. The incapacitation of the deceased
appeared to inspire the accused to further attack the deceased as he
is said to have struck him five more times on the back with the
weapon killing him instantly before taking to his heels, only to
surrender himself to police at McDonald Police Base the following day
on Christmas Day.
The
accused pleaded not guilty to the charge.
In
his Defence Outline, while admitting attacking the deceased as
alleged and pleading drunkenness, the accused denied any intention to
kill the deceased. He stated that he had acted under extreme
provocation as the deceased insulted him continuously. On three
occasions, the deceased had attacked him with stones angry that the
accused had fingered him out as the person who had stolen seven
bottles of spirits stored in the accused's room.
On
the third occasion, the deceased had used a shovel to attack him,
and, after repelling that last attack, the accused says he succumbed
to the extreme provocation and also acted in self-defence while
drunk. Picking up an iron bar, which fortuitously happened to be
lying around, he attacked the deceased. In those circumstances he
“failed to judge or measure his response.”
The
State led evidence from Duke Khumalo who witnessed the killing of the
deceased.
His
evidence is to the effect that he is the one who organized an end of
year party for all the mine workers at the mine complex on 24
December 2015. When he got to the venue he found the deceased and the
accused exchanging insults over a dispute he did not know. He managed
to calm down the two combatants but no sooner had peace prevailed
than the deceased picked up a shovel and confronted the accused
intending to strike the accused with it as he stood by the fire. The
deceased shouted obscenities at the accused. When he tried to strike
the accused with the shovel, the latter succeeded to block the attack
with his arm and then withdrew an iron bar which he used to strike
the deceased once on the forehead felling him to the ground. While on
the ground, the deceased was struck a further two times on the back
of the neck thereby incapacitating him.
The
accused retreated about three paces while still holding the iron bar
before turning round and launching a fresh attack on the deceased
after remarking that he was now finishing off the deceased. He struck
the deceased a further five times on the back before absconding
leaving the deceased bleeding from the forehead apparently dead.
According
to the postmortem report, the deceased had multiple injuries
including injuries to the head, a ruptured liver and injuries to the
abdomen. The doctor observed that the cause of death was haemorrhagic
shock, haemoperitoneum, ruptured liver, blunt force trauma in the
abdomen due to assault. What is significant is that the blows which
the accused directed to the deceased's head may not have been
fatal. Quite to the contrary, it is the blows directed elsewhere on
the deceased's body which killed him. That is significant in that
to the extent that the accused incapacitated the deceased by the
blows to the head, had he ended then the deceased could have lived.
The
accused also gave evidence in essence reiterating his position as
summarized in the Defence Outline. He added that although he does not
deny the possibility of assaulting the deceased as alleged by the
State witness, he does not know the number of times he hit the
deceased neither does he know the parts of the body to which the
strokes were directed.
Not
very useful testimony one would say.
According
to him, he was so intoxicated that although he could still make a
fire to cook, he was incapable of cooking himself. Although he left
intending to go to the police post 6km away, he could not make it
there but slept in the bush, only arriving there at 6am the following
morning. He says he was accompanied by workmates when he finally
arrived at McDonald Police base but does not tell us where he got
these workmates and when, especially as Duke Khumalo was the last man
standing and told us the accused had left running. There is also a
dispute as to when he surrendered himself. Sikwila's admitted
evidence is that it was 24 hours later.
The
accused has raised essentially three defences, namely, provocation,
self defence and intoxication. We will deal with those three
defences in turn backwards starting with intoxication.
The
position of our law is that voluntary intoxication, at most, can be a
partial defence. In specific intent crimes, like murder, which the
accused is presently facing, where it has been established that the
accused person voluntarily consumed alcohol to the extent of losing
self-control or inhibitions, that defence will reduce the crime to a
lesser crime, for instance culpable homicide.
Professor
G. FELTOE, A
Guide to the Criminal Law of Zimbabwe,
3rd
edition, Legal
Resources Foundation…,
makes the important observation that the court must therefore
explore, carefully, the actual effect upon the accused of his
consumption of liquor or drugs. The learned author goes on to say:
“Liquor
and drugs affect different people in different ways. It may be that,
although he consumed a considerate amount of liquor, the liquor did
not remove his ability to discern what he was doing and he was still
able to form the intention to commit the crime. Some people become
easily intoxicated and become drunk after consuming a small amount of
liquor and others are able to consume a considerate amount of liquor
and still remain in control over their mental faculties.”
In
carefully examining the actual effect of the liquor on the accused
person, it has not escaped our notice that he was able to restrain
himself considerably when the deceased was belting out insults at
him. He was also able to ward off the shovel attack with his left arm
suggesting that not only was he strong enough he was also in control
of his mental faculties. We are also mindful of the fact that when he
responded to the deceased's misbehavior, he felled him to the
ground with a single blow and the deceased remained there throughout.
Indeed,
the accused is said to have retreated after incapacitating the
deceased. It was only after a while that he returned to inflict the
fatal blows avowing: “Let me finish him off.” It occurs to us,
therefore, that the liquor the accused consumed did not remove his
ability to discern what he was still doing and he had sufficient
control of his faculties to formulate an intention. His avowed
intention was to finish off the deceased. In that regard, the defence
of intoxication is not available to the accused.
Regarding
self defence, the legal position is that a person is entitled to take
reasonable steps to defend himself against an unlawful attack and to
inflict harm or even death in order to ward off an attack. The
requirements for that defence are:
1.
The accused must be under an unlawful attack, or, where he is
defending another person, that person must be under unlawful attack
and the accused intervenes to protect that person;
2.
The attack must have commenced or must be imminent;
3.
The action taken must be necessary to avert the attack; and
4.
The means used must be reasonable.
Professor
G. FELTOE, A
Guide to the Criminal Law of Zimbabwe,
3rd
edition, Legal
Resources Foundation…,
In
the present case, the accused person was clearly under attack from an
abusive and intoxicated person who was using a weapon to do so, that
is, a shovel. He picked up what was probably the nearest available
weapon to defend himself and ward off the attack, and struck the
deceased once on the head bringing him crashing to the ground. It
cannot be said that the actions and the means used up to that stage
were unlawful or wrongful. The law allowed him to do so and he had
succeeded in warding off the attack.
It
is, however, what he did after that with the avowed intention of
“finishing off” the deceased which was unlawful. It is sometimes
said that a person under attack is not entitled to exceed the bounds
of self-defence. There is no doubt that the accused exceeded the
bounds of self defence and killed the deceased. Self-defence is
therefore not available to him as a defence to the charge of
murder….,.
According
to G. FELTOE A
Guide to the Criminal Law of Zimbabwe,
3rd
edition, Legal
Resources Foundation…,;
“Where
X exceeds the bounds of reasonable defence and kills the assailant,
he may, nonetheless, still be found guilty of culpable homicide
unless the excess was immoderate. The approach here is that the
account should be taken of the fact that X was under attack,
although, in the circumstances, he over-reacted. He should thus be
entitled to a partial defence on a murder charge. This partial
defence will not apply where X's response was entirely excessive in
the light of the type of threat he was under.”
The
question to be decided, therefore, is whether the accused's
response could be justified under that head. It would seem, in light
of the post-mortem findings that the excess was immoderate. We will,
however, park that issue here for consideration together with the
final leg of the accused's defence, that of provocation, to see
whether, cumulatively, the two can reduce murder to culpable
homicide.
Provocation,
in Zimbabwean law, may, where proved, reduce murder to culpable
homicide, itself a punishable offence. This is because despite the
fact that the accused would have responded to provocative behavior,
it is every person's social responsibility to exercise
self-restraint. Where they fail to do so, they must still be punished
in order to prevent anarchy.
Our
approach with provocation is two-pronged.
The
first stage, being the application of the normal subjective test to
decide whether there was an intent to kill. If there was intention to
kill then the court must proceed to inquire whether the extent of the
provocation was of such magnitude as to reduce murder to culpable
homicide.
We
however prefer the less problematic approach adopted in S
v Nangani
1982 (1) ZLR 150 (S) instead of conducting the second rung of the
inquiry. In that case, the court formulated the test stating that the
question to be asked is: Was the provocation such as could reasonably
be regarded as sufficient ground for loss of self-control?
What
we have is a situation where the conduct of the deceased was
provocative in the extreme. He exhibited homosexual tendencies
towards the accused as he violently made amorous advances to him. At
the same time, he accosted the accused with stones as he made the
immoral insults which the accused says he was prepared to let go
until he had sobered up when he was going to chastise him the
following morning.
The
accused says it is the shovel attack which forced him to take up arms
in order to ward off the unprovoked aggression on him. We, however,
cannot overlook that verbal abuse.
In
our view, the extent of the provocation was gross and sustained. Here
is a young man who was half the age of the accused but was running
riot for several hours after stealing “thatha nkau” left in the
custody of the accused. He first launched a frontal attack which was
just a light skirmishing manouvre with stones. He upped the ante with
immoral verbal assaults which went to the very root of the elderly
man's manhood threatening to turn him into a perverted sex object.
When
all that did not work he waxed even more dangerous, rushing to his
tent to arm himself with a shovel. According to the State evidence,
he attempted to chop the accused with it. In our view, a reasonable
person in the position of the accused person would have lost
self-control and acted in the same manner. We are satisfied that
indeed the accused person lost self-control and acted in the manner
that he did.
Applying
the test propounded in S
v Nangani
1982 (1) ZLR 150 (S),
namely, whether the provocation was such as could reasonably be
regarded as sufficient ground for loss of self-control that led the
accused to act against the deceased as he did, we answer that
question in the affirmative. The effect of that finding is therefore
to reduce the crime of murder to culpable homicide. We are also
mindful of the issue which we parked concerning self-defence.
Accordingly,
the accused is found not guilty of murder but guilty of culpable
homicide.
