The facts are these.
The appellant, who was forty-seven (47) years old at the
time of the commission of the offence, and the deceased, LIFAQANA MKANDLA, were
cousins. They lived in Makhekhe Village, Gomora area, in Lupane.
On 7 July 2002, at about 1400 hours, the appellant summoned
the deceased to his homestead. The appellant suspected that the deceased and
his younger wife, SETTY SIBANDA, were having an affair. The deceased came in the company of his
younger brother, NKOSILATHI.
They all had lunch after which the appellant invited his
younger wife and the deceased into his bedroom.
In the bedroom, the appellant had an axe. The appellant asked for money
from the deceased who retorted saying that he had given him money on previous
occasions which had not been paid. Setty Sibanda weighed in saying that they
owed the deceased money and other items. She suggested to the appellant that it
was unwise to continue borrowing money from the deceased. This did not go down
well with the appellant. The appellant then accused Setty Sibanda of supporting
the deceased because they were having an affair.
The two denied the allegation.
The appellant got infuriated by their denial and picked the
axe. He demanded that the deceased should confess to the affair before he
killed one of them. The appellant attempted to strike Setty Sibanda with the
axe before she ran out of the bedroom. The deceased caught hold of the axe
giving rise to a wrestle for control of the axe. As the two wrestled out of the
bedroom Nkosilathi snatched the axe from them.
The deceased went and sat by a tree pleading his innocence
and asking that the matter be referred to the police or the kraal head. As the
deceased was about to leave the homestead, the appellant ran to his senior
wife's bedroom whence he armed himself with an axe and a knife. He swore that
he had resolved that morning to kill someone by 3pm.
The appellant met the deceased as he was walking in the
direction of his homestead. Accusing the deceased once more of sleeping with
his wife, the appellant stabbed him once on the chest by the heart. The deceased ran for about 100 metres before
he collapsed and died….,.
At the trial, the appellant alleged that the deceased first
tried to strike him with the axe in the bedroom which he said the deceased got
from Setty Sibanda. He said after blocking the blow Nkosilathu took the axe
from the deceased. According to the appellant, the deceased struck him with
clenched fists before he stabbed him. He said he tried to stab the deceased on
the arm but missed and stabbed him on the chest.
The court a quo found
the State witnesses credible and rejected the version of the appellant of
acting in self-defence.
The unanimous view of the court is that the court a quo was
correct. There is no basis on which the finding of the court a quo can be
impugned.
The court a quo found that the allegation that the deceased
was having an affair with Setty Sibanda had no substance. It was highly
improbable that the appellant would have had lunch with the deceased and his
brother and thereafter proceed to ask for money from the deceased if the
appellant believed that the deceased was having an affair with his wife.
On the issue of acting in self defence, the court a quo
found that the appellant was the aggressor and that the deceased posed no
threat to him.
In fact, apart from the allegations in the Defence Outline,
there was no evidence that the deceased ever armed himself to attack the
appellant. The fact that the blow was directed at the upper part of the body
suggests that the attack was sudden and the deceased was unprepared to defend
himself.
On these facts, counsel for the appellant correctly
conceded that the verdict of guilty of murder with actual intent to kill was
unassailable.
The court agrees with her.
Counsel for the appellant also conceded that the court a
quo's finding that there were no extenuating circumstances is correct. The
facts show that the appellant pre-meditated the assault on the deceased. He had entertained an irrational belief that
there was a love affair between the deceased and Setty Sibanda.
The rest of the factors considered by the court a quo are
aggravating circumstances. There was no misdirection on the part of the court a
quo.
The appeal is dismissed.
