The appellant now appeals against both the conviction and
the sentence.
The two grounds of appeal raised were that the trial court
ought to have;
(i) Returned a verdict of guilty of murder with
constructive intent; and
(ii)
Found extenuating circumstances.
The State led evidence from the deceased's wife, Sithabile
Ncube. This evidence was undisputed and was to the following effect.
The
appellant is her brother's son. On the evening in question there was an altercation
between the appellant and one Mandla Dube who is her son. When Sithabile, her husband,
the deceased, and the rest of her family were about to retire, Mandla Dube
passed by the homestead and advised her that when passing the appellant's
homestead he had heard the appellant's wife saying 'unpalatable things' about
him. She advised him to ignore the appellant. Later on she and the deceased
heard the appellant's mother calling out that the appellant was killing Mandla.
She went outside to a spot where she had made a fire and stood there with the
deceased. Mandla Dube then came running past them from the direction of the
appellant's mother's home. At the same time she heard the appellant calling out
words to the effect;
“I
am killing someone and I will eat someone.”
The
appellant approached them carrying two spears and entered their homestead. The
deceased asked “What is happening my father-in-law?” addressing the appellant.
Without
responding to the deceased, the appellant walked straight up to him while the
witness's children were yelling:
“It
is our father, it is our father!” and stabbed the deceased with a spear.
The
deceased had said nothing more than the reported words nor was he armed. He was
stabbed on the chest, fell down, and subsequently died. By the time the
neighbours came the deceased was dead.
Lenard Ngwenya is a neighbour of both the appellant and the
deceased. On the evening in question he received a report from the appellant's
mother who requested him to intervene as the appellant was assaulting Mandla
Dube. When he arrived at the scene, the appellant stopped assaulting Mandla who
got up and ran away. The witness followed in the direction that Mandla had
taken followed by the appellant. As he
walked on he heard the sound of metal being knocked together and the appellant
saying:
“Today I am going to kill someone.”
The appellant was then running towards Mandla's homestead.
Thereafter, within a short time he heard the voices of children calling out;
“This is our father, this is our father!”
He then heard them saying;
“You have killed our father!”
He turned around and went to the deceased's homestead and
discovered that the deceased had been stabbed to death. He saw no axe at the
scene.
The evidence of both witnesses was not discredited by the
defence and was accepted by the court.
The doctor who performed the post-mortem found that the
stab wound was 20 centimetres deep and that it fractured the second and third
rib. It went 5cm into the lungs. The cause of death was pneumothorax caused by
the stab wound to the chest.
It was the doctor's opinion that severe force had been used
to inflict the fatal injury.
The appellant's defence was that when Mandla Dube fled
towards his home, he feared that he was armed and he therefore armed himself
with two spears and pursued him. When he arrived at the deceased's home (which
was also Mandla's home) the deceased took an axe and struck him on the face
near the left eye and on the right arm near the elbow. He stabbed the deceased
once “out of provocation and acting in self-defence.”
The court a quo found this evidence of the appellant to be
untruthful and indeed it was conceded by the appellant's legal practitioner
that there was no evidence to that effect. The defence of provocation and self-defence
were therefore rejected by the court a quo. The Court found that the appellant
stabbed the deceased unarmed and who posed no threat to the appellant. The
appellant, though warned by the children that it was their father before him,
went on to stab him.
The court's finding that the appellant intended to kill the
deceased and achieved that purpose was unassailable. Indeed, it was conceded by
the appellant's legal practitioner that the defences of provocation and self defence
were not proved.
We find no misdirection by the trial court in its
assessment of the evidence or in the verdict which it returned.
The appeal against conviction is therefore
without merit. 