MOYO
J:
The
accused person in this matter faces a charge of murder. It being
alleged that on the 25th of May 2002 the accused person, together
with his accomplices fatally assaulted the deceased Japhet Sithole.
The
State Summary was admitted and marked Exhibit 1. The Defence Outline
was also admitted and marked Exhibit 2. The accused's confirmed
warned and cautioned statement was admitted and marked Exhibit 3. The
post mortem report was admitted and marked Exhibit 4. The knife that
was allegedly used to stab the deceased was marked Exhibit 5. The
defence produced a knife that was allegedly used to stab accused and
was marked Exhibit 6.
The
facts of the matter are largely common cause.
The
accused and his accomplices were drinking beer at Ndabankulu Bar in
Kezi on the fateful day. Also present were some other patrons. The
deceased walked in carrying a hammer, the evidence of some of the
witness accounts namely Nkanyiso Ndlovu, as it appears in the State
Summary shows that the deceased intended to hand over the hammer for
safe keeping with the bar lady.
The
accused person and his two accomplices were riled by the deceased's
conduct and they took issue with him, resulting in the accused person
snatching the hammer from the deceased and later accused's brother,
the first State witness, Raphael Moyo, also snatching the hammer and
giving it to the bar lady. A scuffle ensued as deceased was assaulted
by accused and his friends and dragged outside the bar. While outside
the accused screamed to say he had been stabbed by the deceased. His
two accomplices chased after the deceased and caught up with him,
started assaulting him while he lay on the ground. The accused person
followed to where deceased was and stabbed him five times in the
chest and abdomen as evidenced by the post mortem report.
The
evidence of Nkanyiso Ndlovu, Saziso Moyo, Sinanisile Dube, Denias
Sibanda and Dr S Pesanai was admitted into the court record as it
appears in the State summary in terms of section 314 of the Criminal
Procedure and Evidence Act [Chapter 9:07].
The
accused person in his Defence Outline pleads provocation in that he
had an altercation with deceased which ended and then later the
deceased just stabbed him as he went out of the bar for no reason
whatsoever. He states that he committed the offence in anger since
deceased had stabbed him.
The
post mortem report gives the cause of death as haemorrhagic shock,
multiple stab wounds, assault.
The
totality of the evidence before us leads us to make the following
conclusions:
(1)
The deceased quietly walked into the bar carrying a hammer, he did
not confront anyone. It is the accused person and his accomplices who
decided to act out of character and confront the deceased for no
apparent reason whatsoever. Carrying a hammer is not an offence and
the deceased as it would appear from Nkanyisso Ndlovu's evidence,
intended to give it to the bar lady for safekeeping.
(2)
The accused person, although in court he sought to underplay his role
in the confrontation of the deceased and the scuffle that ensued, the
admitted evidence of Nkanyiso Ndlovu is clear in this respect and I
quote at page 4 of the State summary:
“The
accused confronted the deceased over the hammer, the deceased
explained that he had not come with the hammer to fight anyone but
wanted to hand over to the bar lady for safe keeping.”
It
is also Nkanyiso Ndlovu's evidence that the accused's accomplices
hit deceased who then fell down and then the accused person pulled
him outside the bar. Raphael Moyo intervened to stop the fight, after
a short while the accused person and his accomplices resumed their
assault on the deceased. The witness heard accused screaming that he
had been stabbed by the deceased. Deceased ran away. Accused's
accomplices chased after the deceased, they then called out that they
had caught the deceased. The witness ran to the scene and found the
two accomplices assaulting deceased with fists and booted feet. The
accused also arrived at the scene and joined in assaulting the
deceased.
The
accused person in his confirmed warned and cautioned statement, which
he gave while his memory was still fresh, confirms that he accosted
the deceased for carrying the hammer, and was not happy about
deceased's response then he stood up and tried to take away the
hammer wherein a scuffle then ensued.
It
is not in dispute that accused stabbed deceased as alleged on the day
in question thereby causing his death.
It
would appear counsel for the accused in her closing submissions tried
to plead provocation as a partial defence to murder. She referred to
the accused person being in a fit of rage and therefore that he
should be convicted of the lesser charge of culpable homicide.
The
evidence in the court record as given by the accused persons himself
does not support this contention by defence counsel. In fact during
cross examination the accused was asked the following questions;
“Q:
Did deceased talk to anyone?
A:
No.
Q:
He never provoked anyone?
A:
No.
Q:
You were never provoked in any way by the deceased?
A:
No.
Q:
So your attack was unwarranted as you were never provoked?
A:
I agree.
Q:
You did an unnecessary brutal attack on the deceased?
A:
I was drunk.”
I
formulated the opinion that counsel for the defence kept on referring
to a fit of rage meaning that after the by stabbing the deceased,
accused then went into a fit of rage and thereby committed the
offence.
I
will hasten to state that although an accused person does not need to
prove the truthfulness of his defence, it still has to be found by
the court to be reasonably possibly true.
The
deceased never fought with the accused person and his accomplices as
per the witnesses who were present including the accused's own
brother.
The
whole chain of events took about 5-7 minutes according to Raphael
Moyo (accused's brother), meaning, it would be very difficult if
not possible to accommodate the initial scuffle inside the bar, which
then ended and a subsequent scuffle following after accused had gone
out to relieve himself. The time span simply does not accommodate the
accused's version, also the behaviour of the deceased on the day in
question as given by the witnesses and the accused person himself is
inconsistent with the attack on the accused with a knife.
Again,
no one saw any injuries on the accused person, including his own
brother with whom he subsequently went home. Neither was blood seen
on the accused's clothes as per Egnat Moyo's testimony.
Egnat
Moyo says there was moonlight on the day in question. It is for these
reasons that the court is inclined to dismiss the fact that accused
was indeed stabbed by the deceased as he alleges. However, since he
was indeed heard screaming that he had been stabbed, we will still
proceed to analyse his defence of provocation as if indeed he had
been stabbed by the deceased.
Section
239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
provides for the partial defence of provocation to a charge of
murder. That section provides and I quote:
“(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 47, the
person shall be guilty of culpable homicide, as a result of the
provocation:
(a)
he or she does not have the intention or realization referred to in
section 47; or
(b)
he or she has the intention or realization referred to in section 47
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.”
Section
239 demands that facts be present where firstly, provocation exists,
and secondly, where facts also exist that show that the accused lost
his or her self-control. Thirdly, that the provocation must be held
as a matter of fact to be sufficient to make a reasonable person in
that position to lose his or her self-control.
It
was incumbent therefore, on the defence, to establish factually that
provocation existed and that it was sufficient to cause one to lose
self-control as well as that indeed the accused person lost
self-control as a result.
I
say so for whether deceased did stab accused or not, even if the
accused is given the benefit of the doubt to say that he may have
been stabbed by the deceased, who was the aggressor on this day in
question?
Here
is a peaceful man, entering a bar to hand over his hammer for
safekeeping, he is accosted by the accused and his accomplices,
manhandled, assaulted and pushed outside.
If
he indeed when outside stabbed the accused can this court make a
finding that the deceased provoked the accused person and yet clearly
this was a chain of events set into motion by the accused's own
aggression?
On
this day in question the accused person was the aggressor as he set
into motion the chain of events that eventually led to him fatally
assaulting the deceased. It is for the reasons detailed herein that
we find that the accused person did act unlawfully and wrongfully on
the day in question and because we have dismissed the partial defence
of provocation we hold that the accused person in stabbing a
defenceless man who was lying down being held and assaulted by his
accomplices, five times in the abdomen, piercing vital organs as a
result, realized that death was certain and that it would ensue from
his actions but nonetheless persisted.
Accordingly
the accused person is found guilty of murder with actual intent.
Sentence
The
accused person is convicted of murder. He is a first offender. He is
a widower. He is the breadwinner in his family. He is of ill-health.
Although the matter comes up after 14 years, it would appear it was
not due to the State's fault; as accused was at large.
This
is one of the most unfortunate of events where a man is killed for
merely walking into a bar carrying his hammer for safe keeping with
the bar lady.
Although
the accused person maintained he was provoked by the deceased, the
facts point to him acting out of character and provoking the deceased
instead. The deceased died an unnecessary and painful death being
held by the accused's accomplices as the accused person stabbed him
in the chest and abdomen five times. The interests of justice demand
that where life has been lost, the court shows its displeasure
through passing sentences that befit the offender as well as the
offence itself.
Murder
is a serious offence, and in this case, it was committed in totally
unwarranted circumstances. There is now a trend out there not to
uphold the sanctity of life and that is very worrying to the courts.
A life was needlessly lost under very painful circumstances. It is
for these reasons that the accused person will be sentenced to 30
years imprisonment.
National
Prosecuting Authority, State's legal practitioners
Vundhla
Phulu and Partners, accused's legal practitioners
