Pursuant to the conviction and sentence for Attempted Murder as defined in section 189(1) as read with section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the appellant lodged the present appeal with this court.
The appellant, a girlfriend to the complainant, was convicted of unlawfully stabbing the complainant, one Josam Mapinge, in circumstances where there was realisation that there was a real risk or possibility that murder may be committed.
The appellant, who stabbed the complainant, Josam Mapinge, with a knife once in the abdomen, was convicted of attempted murder and sentenced to 6 years imprisonment of which 2 years imprisonment was suspended on the usual conditions of good behaviour.
The brief circumstances informing the charge, as discerned from the record, are as follows:
The appellant visited the complainant, the boyfriend. She requested for his cell phone to read some text messages. The complainant gave her the cell phone, and, when he requested the phone back, the complainant resisted and locked herself inside while the complainant was outside. Later, the complainant gained entry into the room and asked for his phone. The appellant was not forthcoming and she then picked the knife from the kitchen and stabbed the complainant.
Dissatisfied with both conviction and sentence, the appellant lodged seven (7) grounds of appeal against conviction and four (4) grounds of appeal against sentence.
The grounds, as discerned from the Notice of Appeal, are as follows:
“Conviction
1. The learned Magistrate erred and misdirected herself at law and fact when she convicted the appellant of attempted murder.
2. The learned Magistrate further erred and misdirected herself at law and fact when she used an armchair approach and stereotyped victims of sexual assault by the complainant.
3. The learned Magistrate further erred and misdirected herself when she rejected the appellant's defence and explanation that she was a victim of sexual assault.
4. The learned Magistrate further erred and misdirected herself when she rejected the appellant's contention that she was acting in self defence.
5. The Trial Magistrate further failed to apply her mind to the inherent dangers of accepting the complainant's testimony (without corroboration) as a single witness to the incident. Ultimately, she failed to apply caution to that evidence.
6. The Trial Magistrate further grossly erred and misdirected herself when she rejected the evidence of the Appellant's witness(es).
7. The Trial Magistrate further erred and misdirected herself when she placed an onus on the appellant to prove her innocence of the charge.
Sentence
1. The sentence that was imposed by the Trial Court induces a grave sense of shock and disbelief and is not in tandem with other decided cases.
2. The Trial Magistrate erred and misdirected herself in her approach to sentence when she paid lip service to the highly mitigatory features in favour of the appellant.
3. The learned Magistrate further erred and misdirected herself when she injudiciously criticized and immortalized the appellant for engaging in an adulterous relationship with the complainant.
4. The learned Magistrate further erred and misdirected herself by sensationally refusing to impose community service or a hefty fine on the appellant.”
The grounds of appeal in respect of conviction are clearly repetitive.
In summary, the appellant took offence with the rejection of the defence proffered by the appellant.
Further, the appellant took issues with the court accepting the evidence of the complainant while rejecting that of the accused and her witnesses.
The appellant thus attacked the factual and legal finding by the court a quo.
What falls for consideration here is whether or not the trial court properly rejected the accused's defence of self-defence.
It is common cause the defence is provided for in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
In order for one to succeed in relying on the defence, one must prove that:
(i) He or she did or omitted to do the thing, the unlawful attack had commenced or was imminent;
(ii) His or her conduct was necessary to avert the unlawful attack or that he or she could not escape from or avert the attack;
(iii) The means used were reasonable in all the circumstances; and
(iv) That any harm or injury caused by his or her conduct was caused to the attacker.
Clearly, the defence is only available if the requirements are all met.
Only when there is an unlawful or imminent unlawful attack can one motivate the defence of self-defence.
The trial court had to look at the circumstances presented before it and analyse the evidence to deduce if the appellant qualified for the defence.
The court a quo believed the State witnesses and decided that the appellant did not satisfy the requirements of the defence and thus found her guilty as charged.
A close look at the record of proceedings reveals the following common cause aspects:
1. That the appellant and complainant were lovers and were together on the night in question.
2. That they parted ways after having a misunderstanding over a text message on the complainant's phone.
3. That the complainant followed the accused to her house and that he forced his way in using the back door after failing to be granted access through the front door.
4. That a misunderstanding ensued which culminated in the complainant being stabbed by the appellant.
The complainant was the only witness in the State case.
There was need to be cautious of his evidence so as to eliminate the danger of false incriminations; moreso, given the common cause aspect that the complainant forced himself into the appellant's house when the latter had denied him access over the disagreement about the text message.
Given the manner in which the complainant entered, and the disagreement that existed, there was need to consider the sufficiency of the evidence upon which the court convicted.
The complainant's evidence, and the accused's evidence, and probabilities ought to be weighed in such a manner as to eliminate the dangers of false incrimination.
It is settled, that, the accused in a criminal matter does not have to prove his innocence, but, that the State has to prove the accused's guilt beyond reasonable doubt: see S v Shack 2001 (2) SA CR 185 SC 17 and S v Ndlovu & Others HB81-06.
See also S v Kuiper 2000 (1) ZLR 113.
Once the accused's story is reasonably possibly true, that, the accused ought to be granted the benefit of doubt and be acquitted.
In S v Makanyanga 1996 (2) ZLR 231 GILLESPIE J stated that:
“Proof beyond reasonable doubt demands more than that a complainant should be believed and the accused disbelieved. It demands that a defence succeeds whenever it appears reasonably possible that it might be true….,.”
The accused, in this case, raised the defence of self-defence and the accused was to prove that she was under attack, and that when she engaged in an altercation on the attacker it was to avert the unlawful attack in a reasonable manner: see S v Tafirei Runesu HMA37-17; S v Mabvume HH39-16; and S v Manzanza HMA02-16.
In S v Manzanza HMA02-16 MAWADZE J made the following pertinent remarks on assessment of what is “reasonable” when he remarked:
“In deciding what is reasonable in the circumstances of each case, the court, as already alluded to, should place itself in the shoes of the accused person and not expect the accused person to behave or act like a movie star novo, a super human with papal infallibility or an agent.”
In the present case, the court was faced with the complainant's evidence and the appellant's evidence.
The court a quo, in its judgment, pointed out it had to juxtapose the complainant and the appellant's version and determine which one was true.
Such approach, in the absence of demonstration of reasoning of elimination of the danger of false incrimination, would be faulty.
It is permissible to convict on a single witness evidence, but, the evidence has to be properly weighed with the totality of circumstances and not just balance the evidence of the witnesses in the abstract ignoring the obvious requirement on the State to prove its case beyond reasonable doubt.
It is appreciated the court a quo had the benefit of assessing credibility of the witness.
Given the evidence of the complainant and the appellant, the court a quo ought to have considered that evidence against the defence raised.
The key factor being, that, the accused has no onus to prove his or her innocence; once his defence is reasonably possibly true, then, he ought to be granted the benefit of doubt.
The court a quo, in rejecting the appellant's defence, made inferences while at the same time disregarding other possibilities without justification.
The court a quo had its own reconstruction of what it expected the appellant to have behaved like.
This then leads to the dismissal of the defence of self without considering whether or not it was reasonable in the circumstances the appellant found herself in as enunciated in S v Manzanza HMA02-16 and S v Ntuli 1975 (1) SA 429.
The court was dismissive of the defence of self defence as it made a finding, that, the appellant was aggrieved by the fact that the complainant, whom she had been in an adulterous affair with for 5 years, was seeing another woman and that she was incensed with jealousy since she anticipated marriage.
This appeared to be an inference drawn by the court despite the common cause aspects that the complainant is the one who pursued the appellant at the house, and, despite being denied entry, forced his way into the complainant's house.
This intrusion is what the appellant sought to wade off.
The appellant's defence was that the complainant used the back door to enter and he sought to sexually impose himself on her.
It is in the context of that attack that the self-defence was motivated, and, of course, the issue of whether the means used were reasonable in the circumstances arises.
The court a quo rejected the defence version on the basis that there were two (2) other people in the house and assumed the complainant would not have made sexual overtures.
Further, in its judgment, the court a quo further remarked:
“It was impossible for the complainant to raise his chest whilst his hand was propping her private parts and the other taking out his penis….,. If it happened in that manner, it could not be true for the accused to say the complainant was pressing her down and could not have freed herself. What it means is that if the upper part of the complainant's body was not in contact with accused's body she could easily have managed to sit down and free herself from complainant's grip. There was no way complainant could have entered her private parts whilst seated.”
This is clearly indicative of the court entertaining the appellant being under attack but then falling into the error of seeking to measure, with nice intellectual callipers, the precise bounds of the legitimate defence.
The court a quo proceeded to draw inferences on the occurrences and discounted other possibility in circumstances where there is no justification for such findings.
The appellant was under attack from the lover, who forced his way into the house on the background of a misunderstanding over a cell phone message.
That the appellant sought to impose himself on her is reasonably possibly true given forced entry into the house and the use of a knife. The use of a knife to stab him, in face of a potential sexual abuse, cannot be said to be disproportionate to the harm that would have been caused by the non-consensual intimacy or rape.
That the appellant and complainant used to be intimate, consensually, in the past, should not be held against the appellant's defence given the background of disagreement.
In any event, prior consent to intimacy in the past would not mean consent on that day.
The forced entry into the appellant's house, given the affair, could have been most likely actuated by the beliefs that he was entitled to special privileges. This, on its own, gives credence to the appellant's defence of self-defence, and, in the face of sexual imposition, the limits of the defence were not exceeded.
The appellant's story was reasonably possibly true and she ought to have been acquitted.
The appellant had also appealed against sentence and the respondent conceded. I will not dwell much on the aspect of sentence as it does not arise given our finding on conviction.
Suffices, however, to point out, that, pursuant to a proper conviction for attempted murder, the sentence of 6 years imprisonment with 2 years suspended on condition of good behaviour is in sync with sentences imposed for similar offences.
There would have been no reason for interfering with the properly exercised sentencing discretion.
In the present case, the conviction cannot stand, and, consequently, the sentence falls off.
Accordingly, it is ordered that:
1. The appeal be and is hereby upheld.
2. The decision of the court a quo is set aside and substituted as follows:
The accused is found not guilty and acquitted.
