Criminal
Trial
MAKONESE
J: The
accused aged 36, has been arraigned in this court on a charge of
murder.
The
state alleges that on 29 April 2014 and at Mfunda Village 4, Nkayi,
the accused did wrongfully, unlawfully and intentionally kill and
murder Thobekani Masuku a female adult aged 21 years at the time of
her death.
The
accused pleaded not guilty to the charge and tendered a plea of
guilty on the lessor charge of culpable homicide.
The
state did not accept the plea to the lessor charge and the matter
proceeded to a trial.
The
state outline (Exhibit 1) was tendered into the record. In brief the
state alleges that the deceased was aged 21 years at the time she met
her death. The accused was aged 35 years at the time of the
commission of the offence.
The
accused and the deceased were lovers and resided in the same village.
The
deceased was customarily married to one Musa Mbano who resided and
worked in South Africa at the relevant time.
On
29 April 2014 at around 1900 hours the deceased was walking home with
Irvin Tshuma, a nine year old juvenile when she met the accused. The
accused was armed with an axe, knobkerrie and a piece of rolled wire.
Accused
and deceased then began to discuss their relationship.
An
argument ensued and degenerated into a verbal exchange. The accused
struck the deceased several times on the neck, head and the back. The
deceased fell to the ground and died on the spot due to injuries
sustained in the attack. The deceased fled the scene.
On
5 May 2014 the accused was arrested at Mkobongwe village at Zhombe in
connection with the murder.
The
defence tendered a defence outline (Exhibit 2). It is necessary to
set out the contents of the accused's defence outline, which is in
the following terms:
“Accused's
Defence Outline
Accused
pleads not guilty to the charge of murder preferred against him.
1.
He will state that he was happily married to his wife with whom he
had children.
2.
He was tempted and he fell into a love relationship with the
deceased. Deceased told him that she was single and never disclosed
to him that she was married. He asked deceased's aunt who confirmed
that she was single.
3.
Because of the relationship with deceased, accused's marriage broke
and his wife left together with the children.
4.
Deceased was not feeling well as she appeared to be suffering from
cancer. She became seriously ill that accused believed she would die
(sic).
5.
Because he loved her, accused sold all his belongings consisting of
three thousand bricks, 8 zinc sheets, 2 bicycles, a wheelbarrow, a
bed, 4 goats, all the maize in the granary, all chickens and lastly a
scotch-cart.
6.
All the money he realized from the sale of his belongings he used it
for the treatment of the deceased having agreed with her that they
would get married.
7.
When deceased had recovered, her husband returned from South Africa
where he had been and she began to be evasive.
8.
He met her on the fateful day and they began to discuss about their
affair and intended marriage. He also asked her what she would do
since she was pregnant.
9.
Deceased answered him rudely saying she was no longer interested in
the affair and that she did not know whether she was pregnant or not
and also that she was pregnant then she would give birth and give the
accused his child.
10.
Accused who had destroyed his family and had sold all his belongings
was extremely provoked to the extent of losing all his senses accused
in a moment of rage he struck the deceased with an axe which he had,
and the deceased died as a result.
11.
He admits that he cause the death of the deceased but avers that he
acted out of extreme provocation.
Wherefore
he prays that he be found not guilty and that he be acquitted of the
charge of murder and he offers a plea of guilty to the lessor charge
of culpable homicide.”
The
state produced the accused's confirmed warned and cautioned
statement, with the consent of the defence.
The
warned and cautioned statement is marked Exhibit 3 and was duly
confirmed by a magistrate at Nkayi on 22 May 2014.
The
warned and cautioned statement is in the following terms:
“I
Ndabezinhle Ncube plead guilty to the charge of murdering Thobekani
Masuku.
My
first reason being that when we fell in love she lied to me that she
was not married but she had a child. To my surprise when Musa Mbano
her ex-husband returned from South Africa they reconciled and when I
asked her about the relationship she told me not to worry as there
was no such relationship.
I
waited patiently for a week but there was no change since she later
on told me that she would bear my child and give it to me since she
was four months pregnant.
At
that moment the devil worked upon me and I chopped her thrice on the
neck with an axe.
I
then left the spot to go and hang myself. I threw the axe which I had
used into the Gweru River.
The
other reason why I murdered Thobekani Masuku is that I had a
homestead, a wife and three children and as a result of my
relationship with Thobekani Masuku my homestead collapsed. Thobekani
Masuku and I had agreed to marry each other but she later on changed
her mind.”
The
state then produced an Affidavit by Constable Sehliselo Khumalo
confirming that the deponent identified the body of the deceased as
that of the person murdered by the accused.
Constable
Sehliselo Khumalo conveyed the remains of the deceased to United
Bulawayo Hospitals for a Post Mortem examination. The affidavit was
marked Exhibit 4.
The
last documentary Exhibit 5, is the Post Mortem Report.
Dr
S. Pesanai is a qualified medical practitioner attached to United
Bulawayo Hospitals. On 2 May 2014 he examined the remains of the
deceased and compiled his findings in the Post Mortem Report number
314/313/2014.
As
a result of the examination, the Doctor concluded that the cause of
death was:
1.
Spinal injury.
2.
Multiple chop wounds.
3.
Homicide.
On
external examination, the pathologist made the following
observations:
Chop
wounds involving:
1.
Right ear (5x1)cm.
2.
Right neck (9x2x4)cm.
3.
Right chin (2x1)cm.
4.
Right neck (9x5)cm.
6.
Right above the shoulder blades.
7.
Back of neck (3x2)cm.
8.
Occipital region (9x5)cm.
9.
Left above shoulder (1x1)cm.
10.
Below left ear (5x3)cm.
11.
Left neck (4x2)cm.
12.
Cutting in the throat and oesophagus (9x11)cm.
13.
Fracture right jaw.
14.
Fractured occipital bone.
The
report also reflects that the deceased was carrying a male foetus
weighing 180 grams.
The
state applied for the evidence of the following witnesses, to be
admitted by way of formal admissions in terms of section 314 of the
Criminal Procedure and Evidence Act [Chapter
9:07],
namely Phumulani Masuku, Jackson Dzosa, Zerbert Dube, Ngonidzashe
Chibanda, Dr S. Pesanai.
The
defence consented to the admission of the evidence of these witnesses
as it appears in the outline of the state case.
The
state led oral testimony from Irvine Tshuma, a male juvenile aged 9
years.
His
evidence was to the effect that on the fateful day he was in the
company of his aunt, the deceased. They were coming from the clinic.
He was not feeling well on that day. They were walking towards their
homestead in the evening hours. They met the accused. The deceased
advised the accused to stop coming to her homestead as he not was
supposed to be seen there. The accused complained that the deceased
was neglecting him and asked how she (deceased) would feel if he
dumped her. The witness said that a misunderstanding ensued resulting
in the accused striking the deceased with an axe on the back of the
head.
The
witness went further to explain that he observed the accused striking
the deceased three times.
He
saw deceased fall to the ground. He ran away in terror as the accused
continued to strike the deceased.
The
young juvenile said he feared for his life. He confirmed that he knew
accused and deceased to be lovers.
The
court accepts the evidence of this witness as consistent, credible
and worthy of belief. The witness was composed and appeared to have
no hesitation in narrating what he had observed.
It
is noted by this court that the evidence of the witness corroborates
what accused himself stated in his evidence in chief, namely the
following:
(1)
that when accused and deceased met they spoke about the state of
their relationship.
(2)
that accused complained to the deceased that she was evading him.
(3)
that accused struck the deceased at the back of the head and neck on
at least three occasions using an axe.
The
second witness to take the witness stand was Nomsa Masuku.
She
testified that she is employed at Dombodema High School, Plumtree, as
a Laboratory Technician. She spent most of her time at the school
where she resides and occasionally visits her homestead in Nkayi. The
deceased was her sister. She was not known to the accused whom she
only met on one single occasion.
She
confirmed that deceased was customarily married to one Musa Mbano and
one minor child was born out of that union.
At
the time of her death the deceased was four months pregnant. She did
not know whether the accused was responsible for the pregnancy.
She
testified that she only learnt about the relationship between accused
and the deceased after the death of the deceased when she heard
villagers talking about it.
The
witness did not exhibit any signs of any malice or hatred towards the
accused. She gave her evidence well. She is worthy of belief. There
was no tinge of exaggeration in her evidence. The court accepts her
evidence as being truthful and credible.
The
state closed its case after leading evidence from the two witnesses.
The
accused gave evidence in support of his case.
He
gave a very detailed narration of the background to the affair with
the deceased. Accused essentially testified that he had left his
first wife, collapsed his marriage, sold all his personal belongings
in the hope and belief that he would settle down and marry the
deceased.
He
told the court that everything changed when deceased's husband Musa
Mbano returned from South Africa where was he based.
Accused
stated that the deceased had become evasive about the future of their
relationship. He said he was shattered by the realization that
deceased appeared to be sidelining him. He said he had given the
deceased some time to consider her stance but the deceased had seemed
to move closer to Musa Mbano.
The
accused was free to give the court all the details regarding his
relationship with the deceased but when he came to the events of the
fateful day that led to the death of the deceased he became
withdrawn.
The
accused appeared to be very uncomfortable and reluctant to explain
why and how he had delivered the fatal blows upon the deceased using
the axe.
When
he was pressed under cross-examination to explain how he had struck
the deceased he informed the court that he was overpowered by satanic
forces.
Accused
said that the deceased had “left him with no choice.”
Asked
to explain what he meant by this accused failed to clearly articulate
what he meant.
By
his own admission, the accused struck the deceased at least three
times using the axe. He confirmed that he struck the deceased at the
back of the head and neck. He however failed to adequately explain
why the post mortem report indicated that deceased had suffered at
least twelve chops wounds on the upper part of her body and why her
throat was cut.
The
accused proffered the defence of provocation, that he was angered by
the deceased and that he had acted out of anger and lost self
control.
Accused
confessed that he threw the murder weapon, the axe into the Gweru
River and that immediately after committing the offence he had fled
the scene.
The
accused was not a consistent witness. He appeared to be withholding
all the details about the matter, more particularly why he struck the
deceased.
Accused
did not admit that he had intended to kill the deceased. He stuck to
his version that he was overpowered by Satan.
Accused
did not impress as an honest witness.
In
his warned and cautioned statement Exhibit 3 accused alleges that he
had waited patiently for a week but there was no change in their
relationship.
It
is clear that accused had ample opportunity to reflect on his
relationship. The accused's relationship with Musa Mbano was not a
sudden discovery.
He
knew about the relationship and was aware that deceased had a child
aged two years with Musa Mbano.
It
is our view that the submission by state counsel that accused
developed the attitude that if he could not have the deceased person,
then none else was to have her.
The
accused must have decided to kill the deceased when he realized that
he had lost her to Musa Mbano.
The
accused stated that he realized that deceased was slipping out of his
grip when the following events occurred:
(a)
when deceased joined Musa Mbano to go and obtain a Birth Certificate
at Nkayi.
(b)
when deceased became evasive about their future.
(c)
when he saw a love message from Musa Mbano on the deceased's mobile
phone.
The
court was advised by the accused that just moments before he attacked
the deceased she had told him that if she was pregnant with his
child, he would hand over the baby to the accused after giving birth.
The
accused stated that these words were the ultimate trigger that caused
him to act in an irrational manner. He said he lost his senses.
The
law on the defence of provocation is reasonably well traversed in our
jurisdiction, and section 239(2) of the Criminal Law (Codification
and Reform) Act [Chapter
9:23]
provides as follows:
“(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 to 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.”
In
Robert
Mugwanda v
The State
page 9 of the cyclostyled judgment, SC19/02, at the court held as
follows:
“----
for a trial court to return a verdict of murder with actual intent it
must be satisfied beyond reasonable doubt that:
(a)
either the accused desired to bring about the death of the victim and
succeeded in completing his purpose; or
(b)
while pursuing another objective foresees the death of his victim as
a substantially certain result of that activity and proceeds
regardless.”
See
also Levison
Sithole v
The State
S16/07.
In
casu,
the injuries sustained by the deceased as reflected in the Post
Mortem Report indicate that the deceased sustained several chop
wounds. It is self evident that the accused struck the deceased
repeatedly and with excessive force in the neck, head and even cut
the deceased's throat in the process.
The
state in our view proved beyond any reasonable doubt that accused
desired to bring about the death of the deceased.
This
is not one of those cases where one single blow is delivered at the
spur of the moment.
The
accused subjectively foresaw death as a substantially certain result.
The
defence of provocation is not available to the accused in the
circumstances of this matter.
The
provocation was not sufficient to make a reasonable man in the
accused's position and circumstances to lose self-control (to that
degree).
The
number of chop wounds reflected in the Post Mortem Report are not
consistent with sudden anger and loss of self control. The injuries
are consistent with someone desiring to bring about the death of
another.
We
are satisfied, therefore that the state has proved its case beyond a
reasonable doubt and accused is found guilty of murder with actual
intent.
Sentence
In
assessing an appropriate sentence the court will take into account
all the mitigating factors that have been raised on behalf of the
accused by his defence counsel. The court will consider that there
was indeed some provocation and that accused was angered by the
realization that his relationship with the deceased had all but
collapsed.
We
take into account that accused has spent 10 months in prison awaiting
trial and that to some extent he had already served part of his
sentence.
The
aggravating factors in this case, however far outweigh the mitigating
circumstances.
The
court notes that the accused's reaction was irrational. He did not
strike the deceased with one single blow but repeatedly struck the
deceased resulting in her sustaining 12 chop wounds on the back of
the head, the neck, and a cut in the throat.
This
was savage attack.
The
foetus also died as a result of the attack. This is a classical case
of gender based violence.
The
accused gave the deceased no chance whatsoever when he realized that
she had fallen to the ground. He showed no mercy to his victim and
was determined to end her life in a most brutal fashion.
The
courts have a duty to protect the sanctity of human life. A lengthy
custodial sentence is the only appropriate sentence.
Sentence:
35 years imprisonment.
National
Prosecuting Authority,
the State's legal practitioners
Marondedze,
Mukuku, Ndove and Partners,
the accused's legal practitioners
