MWAYERA
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]
hereafter referred to as the criminal code.
The
State alleges that at Makweza Village, Chipinge, on 16 October 2017
the accused unlawfully and intentionally caused the death of Charles
Khosa by stabbing him with a single scissors blade in the neck
intending to kill him and realising that there was real risk or
possibility that his conduct may cause death but continued to engage
in that conduct notwithstanding.
The
accused pleaded not guilty to the charge emphasising that he had no
intention to cause the death of the deceased and that he did not
realise his conduct would cause the death of the deceased.
The
accused further averred that he was drunk on the fateful day and that
the deceased provoked him when he assaulted the accused with open
hands and booted feet.
It
is apparent that the accused and deceased had an altercation after
partaking of home brewed beer commonly known as '7 days' a name
derived from the number of days taken from brewing of the beer to
actually serving when ready. The beer drink was at the accused's
mother's place and accused's mother was selling the beer.
It
is a fact that the accused stabbed deceased with one scissors blade
produced in court.
The
stabbing by the accused occasioned injuries from which the deceased
bled and passed on. A post mortem report exhibit 2 was tendered by
consent. Therein Dr Stephen Mbiri confirmed the deceased was injured
in the neck and that the cause of death was hypovolemic shock
secondary (2o)
to severe haemorrhage due to bleeding from a perforated left carotid
artery.
Most
of the facts are common cause.
In
this case the court is only to consider closely the circumstances of
the attack on the deceased given the defences of provocation and
intoxication raised.
It
is this close analysis which will then assist the court in
determining the single issue identified in this case. The issue being
whether or not given the alleged provocation and intoxication the
accused had the intention to kill the deceased or realised that his
conduct might cause the deceased's death.
Although
none of the witnesses gave an account of witnessing the actual
stabbing, the mother of the accused and other witnesses rushed to the
scene to investigate upon hearing screams that accused had injured
the deceased. The accused only fled while holding the scissors blade
after witnesses had seen him.
He
accepted having stabbed the deceased using the scissors blade which
was tendered as exhibit 5 by consent.
Five
of the State witnesses' evidence was formerly admitted in terms of
section 314 of the Criminal Procedure and Evidence Act [Chapter
9:07].
The evidence was on common cause aspects.
Three
witnesses gave oral evidence again on common cause aspects as will be
discussed below, when we revisit each witness's account of what
they observed.
Jennifer
Sithole's
evidence confirmed that traditional beer was sold and drunk at her
homestead until 12 midnight. She then started selling again in the
morning around 08:00 hours and by mid-morning when Nyokase Muyambo
arrived the beer was almost sold out. The witness was positive that
both accused and deceased were at the beer drink although she was
non-committal on whether or not she had seen accused drink and also
she could not comment on the accused's state of sobriety.
The
witness on retiring to rest after selling and drinking beer was
roused by voices stating that the accused had stabbed the deceased.
She went out to investigate and observed the deceased bleeding
profusely from the neck as blood gushed out. According to the witness
she did not at any time hear or observe the accused and deceased
quarrel. She wondered why the deceased had been stabbed.
The
witness identified the murder weapon produced in court, the scissors
blade as the one she observed at the scene and the one which the
accused had used to stab the deceased.
The
witness was reluctant to pin point whether or not the accused drank
beer and was even non-committal of his whereabouts and doings. She
only retorted he was somewhere there in the campus.
We
took this stance of being economical with detail to have been
occasioned by the obvious relationship of mother and child. The fear
of implicating her own flesh and blood. The witness's evidence on
common cause aspects of there having been a beer drink and the
deceased having been stabbed by the accused was straight forward.
Nyokase
Muyambo
an aunt to the last witness who for the larger part of the testimony
referred to herself as the mother of the last witness Jennifer
Sithole and Jennifer Sithole equally referred to her as mother
revealed she was not the natural mother of the witness.
This
did not cloud her testimony in any manner given the African custom of
interaction in the extended family.
Nyokase
Muyambo arrived at the beer drink when the beer had been sold out.
She was given a small quantity of beer to drink and she sat down
whiling up time. According to the witness, the deceased was close by,
quiet and very drunk. The witness told the court that the accused was
also drunk walking about aimlessly. She was surprised when the
accused furtively stabbed the unsuspecting deceased and fled from the
scene.
The
witness was steadfast that there was no quarrel and exchange of harsh
words before the stabbing occurred. She vehemently denied ever seeing
deceased attack or provoke the accused in any manner. The deceased
was seated within her reach. If the two had argued, she could have
heard.
The
deceased's mother Jennifer Sithole made it clear in her testimony
that she gave the deceased, whom she regarded as a nephew beer the
first night of sale and also on the morning the beer was finally sold
out as reward for the help he gave in sieving the opaque beer. There
was no mention that she also gave accused free beer.
This
could probably explain the ambush and attack on the deceased who was
drunk and seated. We can only surmise that the fact that the accused
was not given free beer while deceased received free beer from the
accused's mother could have caused jealous and angered the accused.
Whatever
the reason, it is not in dispute that the accused furtively stabbed
the deceased in the neck leading to the fatal consequences.
Shadreck
Pachawo,
a sergeant with the Zimbabwe Republic Police's testimony was for
purposes of production of the recovered murder weapon. Nothing arises
from his clear testimony even the accused admitted that the murder
weapon tendered was the one he had used to attack the deceased.
Given
the evidence of the State witnesses and in particular Nyokase Muyambo
who was within the proximity of deceased, there is no evidence to
show provocation occasioned to the accused other than the accused
merely saying he was provoked.
There
was no argument or fight even going by the accused's version.
According
to the accused, the drunk deceased provoked him by questioning why he
was belittling his brother's wife. Further in provoking the
deceased slapped the accused with open hands and booted feet then a
fight broke out.
We
found the accused's version difficult to believe and it appeared
false.
No
one else witnessed deceased assault accused. The accused sought to
convince the court that despite this having been at a beer drink with
a lot of patrons the quarrel, disagreement and fight was quiet and
not witnessed by anyone.
This
flies in the face of the State witness' version that the deceased
was in an alcohol induced stupor and was just sitting helplessly on
the ground when he was attacked.
There
is no way he could have engaged in physical fight with the accused in
that state. For the accused to say he had earlier been provoked and
later came to react to the provocation disqualifies him from
benefitting under the defence of provocation which would reduce the
murder charge to culpable homicide. This is for the obvious reasons
that for the defence of provocation to be sustained one ought to have
been provoked to such an extent that they lose self-control and act
at the spur of the moment. The loss of self-control would be one
which would be expected of a reasonable person in the circumstances
of the accused and which would vitiate intention.
In
terms of section 239 of the Criminal Code provocation can only be a
partial defence to a charge of murder reducing it to culpable
homicide if the requirements therein are met. Section 239 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 realisation 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 realisation 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 realisation 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 in section two hundred and thirty-eight.”
It
is apparent to us that the circumstances of accused fall within the
parameters of section 239(2).
Clearly
the alleged provocation over belittling a sister in-law if ever it
happened was not reacted to spontaneously. Further such provocation
cannot possibly cause loss of self-control. The accused might have
been angered by being questioned but that does not amount to
provocation occasioning loss of self-control. The accused did not act
on the spur of the moment but went out to get a weapon and proceeded
to exert revenge for some earlier utterance about belittling his
sister in-law. Immediately before the attack there was no argument as
testified by State witnesses whom we had no reason to disbelieve. In
any event it is not in dispute that the deceased was very drunk and
just seated helplessly when the accused approached stealthily and
struck him.
In
the absence of instant and spontaneous reaction on the defence of
provocation cannot be sustained as clearly there is room for
formulation of an intention.
The
accused suggested having been earlier attacked with open hands and
booted feet by the heavily drunk deceased, again no one else
corroborates this version. Further there is no evidence to show loss
of self-control.
The
drunken state of the deceased could not pose any danger to the
accused. The accused in a skirting and scanty manner sought to paint
a picture that he was defending himself.
The
accused correctly did not pursue this defence for certainly he was
under no attack and even if he had been struck with open hands the
use of a scissors blade on the neck was clearly unreasonable and
disproportionate to any contemplated attack on him.
The
defence of self-defence cannot be sustained as requirements have not
been met. In any event there was no unlawful attack which the accused
would have been defending. It remains the accused stabbed an
unsuspecting drunk deceased. See S
v Mudenda
HB66/15 were it was stressed that all requirements must be
established for the defence of self-defence to be available.
The
court stated:
“The
accused must show that there was an imminent attack. He must
establish that the action taken to defend himself was reasonable.”
The
other defence raised by the accused is that of intoxication.
No
witness even accused's own mother pointed out that the accused was
drunk to the extent of not knowing what he was doing. In fact for the
accused to pull out the scissors blade, stab and then run away is
consistent with a man appreciating what is going on. The accused
voluntarily imbibed traditionally brewed beer and he was walking
about appreciating the goings on.
The
unlawful conduct of stabbing the deceased cannot be whisked away by
intoxication. Sections 221 and 222 of the Criminal Code are
instructive and relevant.
In
the case of S
v Musina
2010 (2) ZLR 498 it was clearly spelt out that provocation and
intoxication in circumstances where the individual does not lose
self-control and is capable of formulating intention is not a defence
to murder. In befitting circumstances it may be mitigatory. See also
The
State v James Chishakwe
HH 17/18.
Given
the circumstances of this case and evidence adduced one cannot say
that the accused set out with a desire to kill the deceased and
proceeded to kill the deceased. Murder as defined in section 47 of
the Criminal Code encompasses murder with actual intention which
incorporates setting out with an aim to kill and killing or setting
out with an objective when it is substantially certain that death
will occur and then cause death with actual intention. See S
v Mungwanda 2002
(1) ZLR 574 where the court discussed the forms of intention.
In
this case actual intention has not been established when one
considers the totality of the evidence before the court. The State
has however proved beyond reasonable doubt that the accused realised
that there was a real risk or possibility that his conduct may cause
death and despite the realisation he continued to engage in the
conduct despite the risk or possibility. The accused had the common
law constructive intention. See S
v Mhako
ZLR (2) 73.
We
are satisfied that by taking a scissors blade to stab the neck of a
man in a drunken stupor in a furtive manner the accused had the
relevant dolus
eventualis
to cause death.
Having
pointed out that the accused had the requisite legal intention to
cause the death of the deceased he is accordingly found guilty of
murder as defined in section 47(1)(b) of the Criminal Law
(Codification and Reform) Act [Chapter
9:23].
Reasons
for Sentence
In
an endeavour to reach an appropriate sentence we have considered all
mitigatory and aggravatory factors submitted by Mr Majamanda
and
Mr Chingwinyiso
respectively.
It
has been submitted in mitigation that the accused is a first
offender. He is a fairly young man aged 28 years old with family
responsibilities. Further the accused will live with the sting and
stigma of having killed his nephew. The accused has been in custody
for about 1 year going through the motions that go with the trauma
and anxiety of suspense awaiting finalisation of a grave offence of
murder.
The
offence was committed at a beer drink after partaking of the
traditionally brewed beer that reduces the moral blameworthiness but
certainly not the legal liability.
We
must hasten to point out that these courts are inundated with murder,
culpable homicide and assault cases emanating during beer drinks. We
certainly frown at it being an excuse for violent disposition.
Responsible citizens in a progressive society ought to engage in
self-evaluation. If beer gets the better of an individual such that
they will stampede on other people's rights then there is an option
not to drink.
In
aggravation, as correctly stressed by Mr Chingwinyiso
for the State is the fact that precious human life was unnecessarily
lost in circumstances were this could have been avoided. Further the
accused used a sharp lethal object, a scissors blade to stab the
deceased in the neck which is a vulnerable part of the body. Indeed
the deceased died a painful death in the hands of the accused person.
The attack was uncalled for.
The
courts have a duty to pass sentences which will not cause alarm and
lack of confidence in the justice delivery system. The message has to
be sent loud and clear that the Constitutionality enshrined God given
right to life should not be tempered with and then seek to hide
behind intoxication. The legislature in its wisdom saw it fit to
provide for death penalty, life imprisonment and any shorter term
sentence so as to deter people from resorting to violence as a tool
of resolution of disputes.
In
this case, life was just lost out of lack of respect of the
fundamental right to life.
We
are indebted to counsels for relevant cases cited.
As
correctly observed the circumstances of each case are pivotal in
deciding on an appropriate sentence. The universal sentencing
principal of seeking to match the offender to the offence and
ensuring that justice is done is apposite. Given the tender age of
the accused there is indeed a need to pass a sentence that will not
break the accused but hope that the motions of the trial, sentence
and the time he will spend at the correctional prisons will reform
and rehabilitate the accused. The offence is indeed deserving of a
custodial sentence.
The
accused is sentenced as follows: 11 years imprisonment.
National
Prosecuting Authority,
State's legal practitioners
Khupe
and Chijara Law Chambers,
accused's legal practitioners
