MATHONSI
J: This
is a case in which the accused is charged with murder as defined in
section 47(1) of the Criminal Law [Codification and Reform] Act
[Chapter 9:23].
The
State alleges that at Kapu Business Centrre in Shangani on 4 August
2016 he unlawfully caused the death of Lot Mhlanga, then aged 29
years, by striking him once on the head and twice on the stomach with
a log intending to kill him or realizing that there was a real risk
or possibility that his conduct may cause death but continued to
engage in that conduct notwithstanding.
After
so fatally assaulting the deceased he is said to have fled the scene
only to be arrested at Collen Bawn Matabeleland South more than two
months later on 12 October 2016.
The
accused pleaded not guilty to the charge of murder but tendered a
limited plea of guilty to culpable homicide.
That
offer was rejected by the State which pursued a conviction for
murder.
In
defending himself the accused stated that he was “cumulatively
provoked” by the deceased who had sold him stolen property
resulting in him being continuously harassed by neighbourhood watch
committee members and he was later arrested. In addition, the owners
of the stolen property had proceeded to confiscate his own property
as compensation for the property which the deceased had stolen from
them thereby causing him to suffer loss.
Even
though, according to the accused's story he was the aggrieved
party, instead it is the deceased who had started stalking him. On
one occasion the deceased had chased him to the bush throwing stones
at him. Even his appeal for the intervention of the deceased's
family to bring an end to the harassment ended in negativity as the
deceased issued threats against his person.
In
addition to that, on another occasion the deceased had attacked him
with an axe and stones but his report of that attack to the police
yielded nothing.
As
a result, the accused says he was living in constant fear of the
deceased which acted as long term provocation which presumably
motivated him to take action against the deceased with fatal
consequences.
On
the fateful day, the accused said it is the deceased who attacked him
first forcing him to retaliate in defence of his person by striking
the deceased with a log on the head.
It
is against that background that the accused craved the return of a
not guilty verdict on the charge of murder but that he be found
guilty of culpable homicide.
Most
of the facts are common cause. It is common cause that on 4 August
2016 and at Kapu Business Centre in Shangani the accused struck the
deceased on the head with a log produced in court as exhibit 5. The
log in question is not small at all. In fact it is thick having a
26cm circumference, a diameter of 7cm, a weight of 3,419kg and is
84cm long, a formidable weapon indeed when used to hit the head of a
human being.
It
is common cause that after the attack the deceased died on the spot
while the accused made good his escape and was a fugitive from
justice for more than two months before being arrested several
kilometres away in Collen Bawn, Matabeleland South.
It
is common cause that the cause of death, as observed by the
pathologist Dr Roberto Trecu of United Bulawayo Hospitals during the
examination of the deceased's body conducted on 12 August 2016, was
severe cerebral oedema, subdural haematoma and severe head trauma due
to beating with a log.
It
is only the circumstances of the accused's attack on the deceased
which call for a closer examination.
According
to Nicholas Mhlanga, the deceased's father, there was a
long-standing feud between the accused and the deceased which was
also known to him. He had tried to intervene engaging both the
deceased and the accused as the bad blood bothered between them him
given that the deceased was married to the accused's cousin. When
he engaged the deceased he had expressed ignorance of the cause. When
he engaged the accused he had only threatened to deal with the
deceased.
It
was the unchallenged evidence of Mhlanga that in July 2016 the
accused had struck the deceased with an axe on the leg causing a
swelling. The deceased was unable to walk. It was also the
uncontroverted evidence of Mhlanga that from point up to the fatal
assault of the deceased by the accused the latter had resorted to
moving around armed with an axe as he hunted down the deceased with
ill-motive. So clearly the accused harboured a grudge against the
deceased and had long threatened to deal with him. He succeeded in
doing so on 4 August 2016 when, fortuitously, he found the deceased
incapacitated by intoxication and having fallen asleep by the fire
place at Kapu Business Centre.
According
to Xolani Moyo who had been in the company of the deceased with
others by the fire, the deceased was extremely drunk, was seated by
the fire with his head bowed down and was fast asleep when the
accused arrived. The moment he ascertained from this witness that it
was indeed the deceased who was a sitting duck, he told this witness
that the deceased had caused him to lose his property which had
resulted in the feud between them. Although Xolani pleaded with the
accused not to assault the deceased, he would have none of it. He
quickly overtook the witness on their way from the toilet heading
towards the sitting target and upon arrival he immediately pulled
exhibit 5 from the fire while burning and struck the sleeping victim
once on the centre of the head causing a depression and forcing the
deceased to fall.
As
the deceased lay on the ground the accused struck him two more times
with the same weapon on the side of the stomach. He died while the
accused escaped.
The
evidence of Xolani Moyo found corroboration in that of Betram Mlilo
who was also present when the deceased was fatally assaulted.
This
witness added that after the deceased started bleeding profusely the
accused poured water on him trying to resuscitate him to no avail. He
also stated that the accused had in his possession a chain which he
wanted to use to tie the deceased which is strange indeed considering
the manner in which he had struck him and by his own admission, upon
feeling the deceased with the back of his hand, he felt that the
deceased was cold.
It
is not without reason that the accused person himself conceded that
these two eye witnesses had cordial relations with him and his claim
that they misled the court because they were drunk is red-herring.
The
evidence of the State witnesses was given well by people who struck
us as truthful and reliable. Indeed although they were subjected to
cross examination which focused mainly on putting the accused's own
version of events to them they stuck to their story. In fact cross
examination did not shake their resolve and did not discredit their
evidence.
If
we are to believe the accused's version it must at least make sense
or ignite in our minds a reasonable doubt.
But
then what the accused told us is that his feud with the deceased
started when the deceased sold him stolen items which caused him
embarrassment and harassment by both the village police and the
owners of such property.
It
means therefore that it is the accused who was the wronged and
aggrieved party. It is him who had all the reason to be angry with
the deceased and to desire to exert revenge on him. It could not be
the other way round.
It
is not within human experience that the wrongdoer would be the one
stalking the wronged and would be the one repeatedly subjecting the
innocent accused to beatings as the feud escalated. It just does not
add up. We therefore reject that version of the accused as being
demonstrably false. In any event we have the evidence of Nicholas
Mhlanga which is reliable and which we have embraced that, far from
it being the deceased who was harassing the accused, it is the latter
who was moving around hunting down the deceased.
Regarding
the fatal attack itself we have the reliable evidence of
eye-witnesses who have not been shown to have any reason to lie, to
the effect that immediately before the deceased was struck with a
burning log, he was fast asleep and was not alive to what was
happening around him. The accused attacked him while he was in that
state. It therefore does not make any sense whatsoever for him to
allege that he was acting in self defence.
While
in that alcohol induced stupor the deceased did not pose any danger
to the person of the accused. The defence of defence person is not
available to the accused.
In
terms of section 253 of the Criminal Law Code [Chapter 9:23] in order
to succeed in relying on defence of person the accused person must
prove that when he or she did or omitted to do the thing, the
unlawful attack had commenced or was imminent; his or her conduct was
necessary to avert the unlawful attack or that he or she could not
escape from or avert the attack, the means used were reasonable in
all the circumstances; and that any harm or injury caused by his or
her conduct was caused to the attacker.
The
accused was not under any form of attack and therefore he does not
even begin to motivate that defence. It is rejected.
The
accused has also suggested that he was provoked, what he calls
“cumulative provocation.” He even tried to raise that in his
warned and cautioned statement to the police.
In
terms of section 239 provocation can only be a partial defence to a
charge of murder. It works to reduce murder to culpable homicide.
It provides:
“(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 realization 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 realization 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.
(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 realization 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 for in section two hundred and thirty-eight.”
It
occurs to me that the accused falls squarely within the provisions of
section 239(2).
This
obtains from the fact that provocation, by its very nature, connotes
instantaneous and spontaneous reaction to phenomena in which the
actor does not have an opportunity to formulate a strategy but acts
on the spur of the moment having lost self-control in response to the
actions of another.
Where
a person is angered by the actions of another but does not
immediately react to such actions but instead allows a grudge to
incubate inside him or her while waiting for an opportune time to
exert revenge, such a person cannot shelter under the defence of
provocation. This is because by making an election to exert revenge
that person would have formulated an intention or a realization
provided for in section 47 of the Penal Code.
How
on earth does a human being get provoked by a sleeping person?
Even
by his own version, the accused may have been provoked several months
before the date of the offence. He had the time to construct a desire
to exert revenge. He even moved around with an axe which he used to
strike the deceased in July 2016, a month before his fatal attack on
the deceased.
He
could not have lost self-control as to qualify for the defence of
provocation and certainly did not react to a stimuli
on
the spur of the moment.
I
conclude therefore that the defence of provocation, which would have
had the effect of reducing murder to culpable homicide, is not
available to the accused.
In
light of the foregoing analysis we commend Ms
Maguranyanga
for the accused for her concession that the two defences are not
available.
It
is remarkable that the accused attempted first aid on the deceased
immediately after the fatal assault which suggests that he certainly
did not have the actual intention to cause the death of the deceased.
However where a person realizes that there is a real risk or
possibility that his or her conduct may cause death, but pursues such
conduct notwithstanding the realization, such person is said to
possess the legal intention or what is roundly referred to as
constructive intention to cause death.
I
am satisfied that by pulling what I have described as a formidable
weapon, a burning log from the fire, and using it to assault the
deceased directing a severe blow with it to the centre of the
deceased's head, the accused possessed the dolus
eventualis
to cause death.
In
the result, the accused is hereby found guilty of murder with
constructive intent.
Reasons
for sentence
In
assessing sentence we take into account what has been said by counsel
in mitigation. The accused was aged 28 in 2016 when he committed the
offence. He is a first offender but has contested a straight forward
case all the way to the wire, thereby showing a lamentable lack of
contrition. He is married with two children who look up to him for
sustenance.
We
take judicial notice of the fact that he had a reason to begrudge the
deceased after he had sold him stolen property. He assisted with
funeral expenses. He has in a way atoned for his actions by paying
compensation of four head of cattle to the deceased's family. He
has been in custody since October 2016, which is a period of one year
seven months which should be credited to him.
However,
as I have said, the accused has not shown any contrition. In fact
after committing the offence he absconded and became a fugitive from
justice only to be accounted for after more than two months, he
having taken refuge in Collen Bawn, Matabeleland South.
The
accused passes out as an extremely vengeful person who could brook no
scruples whatsoever about resorting to self-help and attaining
justice by his own hand, a rudimentary method of justice which
belongs to the fossils of feudalism. He set about hunting down the
deceased armed to the teeth until he cornered him at Shangani and
cowardly attacked him while he slept.
As
a result, a precious life was needlessly lost as the accused indulged
his inflated ego. The accused exhibited all the qualities of a
village bully throughout which cannot be allowed. This court owes it
to communities to come very hard on such people in order to send an
unwavering message that such resort to vigilante justice will not be
tolerated in our civilized society.
In
the result the accused is sentenced to 15 years imprisonment.
National
Prosecuting Authority,
state's legal practitioners
Mutendi,
Mudisi & Shumba,
accused's legal practitioners
