ZIYAMBI JA:
The appellant was charged in the High Court, Bulawayo with the murder of Sheron
Ngwenya. He pleaded not guilty but was convicted of murder with actual
intent and, no extenuating circumstances having been found was sentenced to
death.
The court a quo found that prior to the day in question the appellant
had threatened to throw the deceased onto the ground and that one Regina Gumbo
had intervened and rescued the deceased. The court also found that on
another occasion the appellant had threatened to cut Irene Dube the deceased
mother's pubic hair and take it to a n'anga; that he often assaulted her and
threatened to kill her, and that he slept with knives under his pillow.
As a result she would abscond and the intermediary would intervene.
At the time of commission of this offence she had gone back to her
parents' home with the deceased.
On the day in question Irene had gone into town with her father leaving the
deceased in the company of her sister Emmy Dube.
The appellant, for some unexplained reason did not go to work on that day. At
about 5pm, he went to Irene Dube's parents' home and asked Emmy Dube for the
deceased's clothes and took the deceased to his house at Mbuyazwe Primary
School in the same compound. There he was observed by Max Ncube to be
writing a note tears on the cheeks. The appellant told the witness that
he was going to kill himself and the deceased and that the note he had left was
to that effect. The appellant immediately left the house holding Sheron and
proceeded to a bushy area, sharpened his knife and slit the throat of the
deceased. When a search team approached the area where he was with Sheron, the
appellant was heard to say “I am here”. The team ran in the direction of the
voice and found the appellant who said to them that he had killed his blood and
was going to kill himself. There was blood on his clothes and hands. He
then pointed to a spot where the body of Sheron was lying and showed them a cut
on his neck. He then ran away. The appellant was later arrested and
made a warned and cautioned statement in which he said that he had found the
deceased without.... and that he was hurt by this and decided to kill her and
himself. He said that the deceased fell asleep and he slit her throat and
thereafter cut himself on the neck.
The post mortem report established that the cause of the death was severe
haemorrhage due to a cut neck. The appellant was examined on two
occasions by a forensic Psychiatrist at [Ingutsheni Prison] Mhlondolozi Special
Institution. It was the opinion of the Forensic Psychiatrist that there
was no evidence that at the time of the commission of the offence the appellant
was suffering from mental disorder and that the appellant knew what he was
doing.
The court a quo concluded that while his behaviour might have been
strange and would in the absence of an explanation suggest mental illness, he
was satisfied on the evidence of the Forensic Psychiatrist that the appellant
was fully responsible for his actions. The court found further that the
appellant had harboured the intention of killing the deceased and that when he
killed the deceased he simply completed his purpose. It was on that basis
that the court returned a verdict of murder with actual intent.
With regard to extenuation the court found that the suggestion that the
appellant was provoked into the commission by his wife was untenable. It
found that the commission of the offence had been planned and found no
extenuating circumstances.
Before us the appellant in S v Gambanga attacked the finding of the court a
quo on the basis that the court should have found that the appellant
suffered from diminished responsibility which operated to reduce his moral
blameworthiness and urged us to alter the verdict to one of culpable
homicide.
The State on the other hand submitted that this was a cold blooded murder
committed by the appellant who vented his fury against his wife on the deceased
and that the court was correct firstly in finding the appellant guilty of
murder with actual intent and secondly in finding that there were no extenuating
circumstances.
The issue before us is whether the appellant was labouring under some form of
diminished responsibility at the time of the commission of the offence.
It is not in dispute that the Forensic Psychiatrist concluded that there
was no evidence of mental illness or disorder and that the appellant
appreciated what he was doing at the time.
The evidence on record clearly shows that the appellant conducted himself in a
bizarre manner over a period of time. He had in their quarrels threatened
to cut his wife's pubic hair, and armpit hair and to take it to a n'anga in
Bulawayo in order to cause her harm. On the day in question the witness
who saw the appellant immediately after the murder remarked he appeared
mentally disturbed.
This Court has on several occasions pronounced the correct approach in such
cases. In Gabanga v S SC 32/98.
This Court accepted that DR is a condition falling short of mental disorder but
such would require a special verdict into the Mental Health Act. DR
serves not to reduce the offence of murder to culpable homicide simply to
reduce his moral responsibility and therefore affects the question of sentence.
In Mushiwa v The State SC-198-94 this Court MUCHECHETERE JA quoted
with approval remarks by McNALLY JA in Sibanda v State
SC-137-93:
“Now it is true that the onus of proof of extenuating circumstances is
on the defence. But I think, with great respect, that judicial officers not
infrequently forget that actions speak louder than words. The very facts of the
case can give mute testimony of extenuation, often in spite of the accused
person's efforts to lie his way out of trouble, or to explain what he is really
unable to explain, even to himself.
In other words, what the accused person actually did will often show, on a
balance of probabilities, that he was at the time in a state of diminished
responsibility, if not a state of certifiable insanity.
The facts of this case are a good example. The learned judge in effect said:
“I do not believe your explanation that you were attacked. I do not believe
that you had any reason to be angry. Therefore I reject your explanation.
Therefore you have not proved extenuating circumstances”.
That approach leaves unanswered the vital
question: “What, then, is the explanation for the appellant's conduct?'. The
answer is: “On a balance of probabilities he was in a state of diminished responsibility”.
That is the most probable explanation for conduct which is otherwise
inexplicable.
What normal person is going to wobble his bicycle all over the road, and
then get so incensed with the people who remonstrate with him for almost running
them down that he kills one of them? What normal person is going to imagine
that two young men and a woman are attacking him, when the court rightly
believed them that they were doing no such thing?
The answer must be: “On the probabilities such behaviour is not normal or
rational. The appellant was therefore probably, whether because of drink
or drugs or mental or emotional upset, in a state which can conveniently be
called a state of diminished responsibility”.
On the facts of this case, the court is clear that the actions are explicable.
As the court a quo found there was a history of acrimony between
the appellant and his wife and the deceased. He had previously threatened
to harm the deceased. He clearly had an axe to grind with the deceased's
mother and the probabilities are that he killed the deceased in order to get
even with his wife.
Whilst his conduct may have been strange it is clear that it was actuated by
the bitterness which he harboured towards his wife. The deceased was used
as a pawn in the process and was callously murdered.
Accordingly, it is the unanimous view of this Court that there is no basis on
which the finding of the court a quo that there are no extenuating
circumstances can be impugned. The appeal must accordingly fail and it is
hereby dismissed.
GARWE JA:
I
agree
NDOU AJA: I agree
Dube-Banda, Nzarayapenga & Partners, appellant's legal
practitioners
Attorney General's Office,
for the state
