The
facts of the matter, which are largely common cause, are that on 1
January 2012, the accused and the deceased were at a beer drink at
Sabina Kutsvara's homestead. Sabina Kutsvara is the accused's
second wife and the deceased's mother.
The
deceased is the accused person's step-son.
The
beer had been brewed by Sabina Kutsvara. At about 20:00 hours, the
accused and Sabina Kutsvara had a misunderstanding resulting in both
of them engaging in a scuffle. This caused the deceased to intervene
and the scuffle stopped. The deceased, however, proceeded to spill
the beer that was being sold. This angered the accused person who
confronted the deceased. The two started tussling and ended up in a
cotton field. It is there that the accused person then stabbed the
deceased with an okapi knife. The knife belongs to one Phineas
Mahlathini whom the accused had disarmed earlier as a way of avoiding
the usage of dangerous weapons at the beer drink.
The
post mortem report, exhibit 4, gives the cause of death as haemo
pneumothorax. I should comment at this juncture that the post-mortem
report, as provided in this case, is not explicit and informative at
all. It must provide the court with the nature of the injuries and a
detailed account not just the conclusion.
At
the cotton field, there was no eye witness the other people having
remained at the homestead and not being able to see what transpired
there as it was then dark.
The
accused person's version is the only version that is available at
that crucial stage.
His
evidence is that the deceased pinned him down, kicking him; and since
he had the knife which he was in possession of, after disarming one
of the patrons, he then used it lashing at the deceased trying to
scare him; in the process stabbing the deceased. He says he did this
so as to scare the deceased and force him to stop attacking him.
The
accused's version of events at this juncture has not been disputed
by the State as it could not adduce any other evidence to the
contrary. It is at this juncture that the State counsel conceded that
the accused person's plea of guilt to the lesser offence of
culpable homicide could not be challenged by it as it did not have
evidence of what transpired at the critical moment save for the fact
that it is common cause that eventually the accused person then
stabbed the deceased causing his death.
The
concession by the State was properly taken, in our view, as the
accused's version of what transpired at the cotton field is the
only version that the court can rely on, and, as such, the fact that
the accused person used the knife in a bid to free himself from the
deceased's attack cannot be refuted. It is this court's view that
the facts of the matter do not meet the requirements for self
defence, as provided for in section 253 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23], and the accused person
correctly offered a limited plea.
It
is for these reasons that the accused person shall be found not
guilty on the charge of murder but will be convicted of the offence
of culpable homicide.
