Criminal
Trial – Ex Tempore
KAMOCHA
J:
The
41 year old accused was facing a charge of murder. It being alleged
that on 3 August 2006 he did wrongfully, unlawfully and intentionally
kill and murder Nation Phiri a male juvenile. This happened at
Margaret Sibanda's homestead, Stand Number 110 Johnsley
Resettlement, West Nicholson.
The
accused is the maternal uncle of the deceased.
When
the charge was put to him he tendered a plea of not guilty. The State
Outline was read and produced as exhibit 1 while the Defence Outline
was also read and produced as exhibit 2.
In
his Defence Outline the accused stated, inter alia, that he was the
deceased's uncle. He had stayed with the deceased from the time of
his birth until he was 10 years when the mother of the accused (who
was deceased's grandmother) took him as she was at that time
staying alone. She needed someone to live with. The accused, however,
maintained the role of the deceased parent or guardian. When he
visited his mother she informed him that deceased had become a
delinquent and had started drinking beer and had burnt one of the
huts in the homestead. The accused averred that thereafter he asked
the deceased to go with him to view cattle in their kraal. Accused
and deceased discovered that some of the cattle were missing. They
then went to look for the missing cattle in the direction of the
fields. The accused said when they were in the fields he tried to
advise the deceased to stop his bad behaviour. When he questioned him
about the incident of the burning of the hut he gave a rude answer
saying he wanted to see what would happen if he burnt the hut. It was
then that accused lost his temper and chastised the deceased using
switches mainly on the lower part of the body and immediately stopped
when he realized that deceased had sustained injuries.
He
went on to state that he and his mother tried to save deceased but he
unfortunately died during the same night.
Exhibit
3 was the accused's confirmed extra-curial statement he made to the
police five days after the murder was committed. The statement reads
thus:-
“I
admit the charge of causing the death of Nation Phiri. I caused his
death by beating him up with three switches. I also kicked him with
tennis shoes. I did not intend to cause his death but to chastise
him. He had developed a habit of smoking and drinking alcohol, and so
he experimented by setting a hut on fire wishing to see what would
happen.”
The
English version of what the accused said omitted to say that the
accused kicked the deceased with tennis shoes on the back as
reflected in the Sindebele version.
Exhibit
4 was an affidavit by Constable Pascal Ndlovu who identified the body
of the deceased to Dr Sanganai Pesanai the pathologist who examined
the remains of the deceased and compiled a post mortem report which
was produced as exhibit 5.
Exhibit
6 were 3 mopane switches. They are now dry and show signs of being
broken while they were wet. The longest was 70cm long weighing 0.015
grams; its circumference was 5cm at its widest point and 3cm on its
smallest part. The second one was 53cm weighing 0.20 grams; its
circumference was 3.8cm on the widest part and 3cm at its thinnest
point. The third one was 52cm long weighing 0.20 grams; its
circumference was 5cm at its widest part and 3cm on its smallest
part. The switches would have been heavier at the time the accused
used them.
The
evidence of the following witnesses was admitted by consent in terms
of section 314 of the Criminal Procedure and Evidence Act [Chapter
9:07]; Aleck Nyathi, Sergeant Thandolwenkosi Moyo; Constable
Gugulethu Sibanda and Constable Pascal Ndlovu.
Viva
voce evidence was led from the mother of the accused Margaret Sibanda
who is also the grandmother of the deceased. Dr Sanganai Pesanai was
the second witness.
Margaret
Sibanda told the court that she resided at Number 110 Johnsley
Resettlement, West Nicholson. She knew both accused and the deceased
as they were her son and grandson respectively. The deceased was a
son of her late daughter. A decision was made that deceased should go
and live with his grandmother after the death of his mother. The
deceased was about 5 years then. Both the witnesses and deceased
still remained the responsibility of the accused as he was their
bread winner.
This
explains why the witness was a reluctant witness as she gave
evidence.
Her
story did not flow. She had to be probed in order to say something.
What
can be gathered from her story is that during the month of August
when she was away the deceased torched the kitchen hut which got
completely consumed by fire. She discovered this on her return and
asked the deceased who confessed that it was him who had done it as
he wanted to get some light. She accepted the event as an accident.
The following day the accused who lives in the Matshetsheni area paid
his mother a visit as he usually did since he supplied her and
deceased with food and other needs. He asked her about the hut and
she told him that the deceased had burnt it but that was an accident.
The deceased was present when she was relating the story to accused
but he is said not to have said anything. Instead accused is said to
have asked deceased about cattle and asked deceased to go with him to
look for the cattle which were reported to be missing.
After
the two had been away for a long time the witness said she got
worried about their long absence and decided to go in the direction
they had gone. She then heard the deceased screaming and went in that
direction and found the deceased lying down. He was unable to stand
up. In fact before she got to where deceased was she met the accused
on the way and asked him what had happened but he just laughed and
said nothing had happened. On realizing that deceased had been
injured and was unable to get up she went back home to collect a
wheel barrow so that she could use it to carry him. When she brought
the wheel barrow she tried to put him in order to carry him but she
was unable to do so because the deceased said he felt severe pain
when in the wheel barrow.
The
accused returned to the scene.
He
then carried the deceased home on his shoulders. The witness said she
noticed a lot of weals on the deceased's body. His head was
swollen. The deceased had been assaulted by the accused for being
mischievious and burning the kitchen hut. The grandmother said the
deceased was well behaved until the time he started smoking tobacco.
She said he did not drink beer but was just naughty.
The
grandmother reiterated that accused looked after her and the deceased
well as he used to provide food for them every month. He used to pay
school fees for the deceased and bought him uniforms and other
clothes. Accused had heavy family commitments in that he had two
wives and 8 children to look after in addition to the witness and
deceased.
The
next witness was Dr Sanganai Pesanai who is a pathologist based at
United Bulawayo Hospitals. He examined the remains of the deceased
and compiled exhibit 5 the post mortem report. He read through it and
under marks of violence he noted the following lineal bruises;
Left
abdomen: 3 bruises 10 x 1; 6 x 1; 5 x 1.
Thigh:
8 x 4.
Back:
3 bruises 5 x 11; 4 x 1 and 3 x 1.
Buttock:
3 bruises 5 x 1; 6 x 1; 4 x 1.
Frontal
region: 3 bruises 3 x 1; 2 x 1 and 6 x 1.
Right
back: 3 bruises 4 x 1; 8 x 1 and 6 x 1.
Abdomen
4 x 1.
He
noted multiple bruises in both lower limbs. He said these were so
many that it was difficult to count them that is why he just recorded
them as multiple bruises.
The
internal examination revealed a left scalp haematoma and subarachnoid
hemorrhage. Death was due to subarachnoid hemorrhage following a head
injury as a result of the assault.
The
doctor said the bleeding in the brain can be caused by a fall or even
a violent shake. He ruled out the possibility of the switches that
were exhibited in court causing the bleeding in the brain because
they were too small. He said the switches caused the lineal bruises.
The sustained use of the switches could have caused death on their
own but death in casu was caused by bleeding in the brain.
The
accused kicked the deceased once on the thigh causing a bruise of 8 x
4cm and once on the back causing a bruise of 5 x 11cm. He did not
kick the deceased on the head. So the bleeding in the brain was not
caused by a kick as there is no bruise to show that a kick was
delivered to the head.
The
accused gave evidence but had no witnesses to call.
He
maintained his story as reflected in his Defence Outline and
confirmed extra-curial statement. What happened is in fact common
ground. He was angered by the burning of the hut and when he
confronted the deceased the child gave a childish answer by saying he
wanted to see what would happen. That was typical of a child as he
did not appreciate the seriousness of what he had done. The accused
was also not happy with the reports he had received about deceased.
In that he had started tobacco smoking and possibly beer drinking.
His aim was to chastise him but the chastisement went terribly wrong.
It
was excessive.
He
himself said he beat him up with 3 mopane switches until he realized
that he had beaten him up too much. He said the beating took about 10
to 15 minutes. By any standard beating up a child for such a long
period is brutal.
But
did the accused realise that his actions would result in death
ensuing and continued with the assault irrespective of whether or not
death ensued?
It
was belatedly suggested the accused may have been influenced by
alcohol which he had taken. That was a hopeless after-thought which
must be rejected outright. The accused never raised that in his
statement to the police. Neither does it feature in his Defence
Outline. His mother did not say he appeared drunk.
Be
that as it may the legal question is whether the accused had the
requisite mens rea to kill? Did he realize that his actions would
cause the death of his nephew?
He
severely beat him up by delivering multiple blows with switches. But
the switches did not cause the bleeding in the brain and it is not
ordinary human experience that beating up a child with switches
causes death.
The
unexpected occurred.
There
was bleeding in the brain which could have been caused by a fall or
violent shaking. Is it in ordinary human experience that when a
person is kicked and falls down bleeding in the brain would occur? I
think not.
It,
therefore, cannot be said the accused realized that his attack on the
child would result in death but still persisted with his attack.
There is evidence on the other hand that his action amounted to gross
negligent and brutality.
He
is found guilty of culpable homicide but is found not guilty of
murder.
