GOWORA JA: The appellant was convicted of
two counts of murder with actual intent. He was sentenced to death following a
finding by the High Court that there were no extenuating circumstances surrounding
the commission of the offences. Although a notice of appeal against both the
conviction and the sentence was filed, Mr Mahachi who appeared for the
appellant indicated that he had no meaningful submissions to make against both
conviction and sentence. He properly highlighted to the court the overwhelming
evidence against the appellant on the basis of which the court a quo
made the finding that there were no extenuating circumstances. The court
is of the view that the concession is properly made.
The facts which are common cause are as follows. The first deceased, Meck
Mtetwa was aged 66 at the time of his death. He had two wives. The appellant
was the son of his senior wife Marita Mtetwa. The second deceased, Freddy Mtetwa
was aged 23 when he met his death. He was the first deceased's son from the
junior wife. The couple had another child, a daughter called Charity who was
aged 16 at the time the offences were committed. The appellant was therefore a
half brother to her and the second deceased.
On 30
January 2009, the two deceased, the appellant, the first deceased's junior wife
and their daughter Charity were at the appellant's stepmother's homestead
having supper. The appellant had an altercation with his half-sister Charity as
a result of which the appellant stabbed her with a knife. When she protested he
struck her several times with a sjambok.
The first
deceased intervened and requested the appellant to surrender the knife to him.
The appellant turned against the first deceased and struck him with a clenched
fist on the face. He pushed the first deceased to the ground and when he fell
he stabbed him with a knife several times. The stepmother and Charity ran to
Farison Chemai's homestead to seek help. The second deceased who had remained
behind attempted to stop the appellant from assaulting the first deceased but
the appellant turned against him and stabbed him on the stomach causing his
intestines to protrude.
Marita Mtetwa returned with Farison Chemai only to find Meck and Freddy lying
dead. The first deceased had several penetrating wounds on the chest and left
armpit. The second deceased's womb was open and his intestines were protruding
out. The appellant was no longer on the scene.
The two
deceased were taken to hospital where an autopsy was conducted on their
remains. The post-mortem report in respect of the first deceased revealed the
following injuries:
(1)
Three deep lacerations in the left axilla;
(2)
Three deep laceration on the left precordium;
(3)
One deep laceration and three superficial lacerations on the left arm; and
(4)
One deep laceration on the left intercostal space.
The cause of death was the
following:
(1) Tension
pneumothorax due to stab wound to the chest and
(2) Severe
bleeding resulting in hypovolaemic shock and cardiac arrest due to multiple
stab wounds.
In respect of the second deceased the post-mortem report
had the following findings - abdominal stab wound on the left flank at least
7cm in length with loops of intestines extruding through the open wound.
The cause of death was described as hypovolemic shock as a result of stab wound
to the abdomen resulting in cardiac arrest.
In his
defence the appellant stated that he, the two deceased and his step-mother had
been drinking marula wine. The appellant admitted that he had struck Charity
with a sjambok. He alleged that the first deceased had assaulted him and
ordered him to stop the attack on Charity. He suggested that the second
deceased had also joined in and started assaulting him and they overpowered
him. It was his allegation that the second deceased tripped him causing him to
fall. According to him the second deceased then picked up a log from the fire
and started assaulting him. As the assault continued they bumped into a plate
rack. The appellant said he heard a knife fall, although he thought it was a
stick. He picked it up and when his father kept saying put that thing down he
stabbed him with it. He said he did not realise that it was a knife, but
thought it was a stick used for cutting marula fruits to prepare wine. He told
the court that he only realised that it was a knife after he had stabbed the
first deceased.
He said that
after the fight with his father he got up and the second deceased approached
him from behind and got hold of him tightly and as he turned to face him, the
second deceased was accidently cut by the knife. He said he had not intended to
stab the second deceased. It was his statement that when he completed the turn,
the second deceased fell down. He said when he realised that they were both
dead he went to inform his mother that the two deceased had been calling him in
order to fight him.
In his
confirmed warned and cautioned statement the appellant stated as follows:
“I have understood this caution
and I do admit the allegations levelled against me that I murdered Meck Mtetwa
and Freddy Mtetwa. I first stabbed Meck Mtetwa with a knife which was in my
right hand on the chest and left armpit, but I cannot remember how many times
after a misunderstanding when we were drunk with 'MUKUMBI'. I later stabbed
Freddy Mtetwa with the same knife once on the stomach after he had got hold of
me trying to stop me from further stabbing Meck Mtetwa. After I had stabbed
them I ran away leaving them struggling with their lives. That is all I can
say.”
Defence counsel conceded before the trial court that the
defence of intoxication could not be sustained in the circumstances of the
case, and that to do so would be misleading the court. She also conceded that
the nature of the weapon used was disproportionate to the dispute and that it
had been used on delicate parts of the body. She also took into account that
the post-mortem report on the first deceased showed numerous injuries and use
of severe force. It was conceded as well that on the fateful day the appellant
was the aggressor.
On these facts, the court a quo correctly found
that the appellant was guilty of murder with actual intent to kill in respect
of both counts. Having considered all the circumstances of the case, the
court is of the unanimous view that there was no misdirection on the part of
the court in respect of both convictions. The appellant deliberately and
repeatedly stabbed his father who was unarmed with a dangerous knife to bring
about his death. In the same tempo he attacked his brother with the same
vicious knife on the stomach slashing it and exposing the intestines.
No extenuating circumstances were found because the court a
quo held that the appellant had not taken any alcohol on the day in
question as he had suggested. The evidence which was accepted by the
court a quo was that the allegation by the appellant that he had been
drinking marula wine with Farai Chemai at Chemai's home and with his father and
stepmother at their own home was false. Chemai gave evidence and denied that
there was any wine drinking at his home on the day in question. He said the
appellant, the brother and their father had not come to his home that day. He
even went on to say that he does not drink alcohol. The evidence by the
appellant's stepmother was also to the effect that there was no drinking of
alcohol at their home that evening. She went on to say she does not drink
alcohol. It became clear from the evidence that the violent actions of the
appellant were motivated by a desire to assert authority over his father and
his siblings when he considered it to be challenged.
On appeal, Mr Mahachi was constrained to indicate
that he was unable to advance any submissions in respect of extenuation. His
concession cannot be faulted.
The court
holds that there was no misdirection on the part of the court a quo in
its ruling on extenuating circumstances.
The
appellant was clearly intent on imposing his authority on his father and his
siblings. He provoked an incident with his young sister and stabbed her with a
knife. He thereafter proceeded to assault her with a sjambok in the presence of
his father and stepmother and when his father remonstrated with him, he stabbed
him several times with a lethal weapon. When his half-brother attempted to stop
the assault on their father, the appellant cut his stomach open with the same
knife. The knife which was admitted into evidence was a lethal weapon. Its
blade was 14cm long and the cutting side was described by the learned judge in
the court a quo as being very sharp. So was its tip. Both deceased
died soon after being stabbed.
This Court is of the unanimous view that the
appeal is devoid of merit. It is dismissed.
MALABA DCJ:
I agree
HLATSHWAYO JA:
I agree
T Hara and Partners, appellant's legal
practitioners
Attorney-General's Office, respondent's legal practitioners
