MATHONSI
J: At
the time Pedzisai Mpofu met his death on 11 December 2017 at Bazha
Business Centre under Chief Malaki Masuku in Matobo, Matabeleland
South, he was 36 years old. He was the victim of an okapi knife
attack, the stabbing being directed to his back and right side of the
neck. It killed him instantly.
The
then 30 year old accused person has been charged with the murder of
the deceased in contravention of section 47(1) of the Criminal Law
[Codification and Reform] Act [Chapter 9:23] it being alleged that he
is the one who stabbed the deceased once on the back and once on the
right side of the neck intending to kill him or realizing that there
was a risk or possibility that his conduct may cause death but
continued engaging in it.
The
accused pleaded not guilty to the charge and gave a version in his
Defence Outline which is diametrically different from that presented
by the State. He put in issue all the allegations made by the State.
According
to him, on the day in question, he arrived at Bazha Business Centre
from Bulawayo, at about 1700 hours and entered into Bazha Store
intending to buy candles. He observed the deceased and Marvellous
Tshuma consuming alcohol and the deceased was visibly drunk as he
immediately started insulting him.
The
deceased approached him scolding him and making remarks to the effect
that he, the deceased, was having an affair with the accused's
wife. Although the accused initially ignored the deceased's insults
telling the deceased to leave him alone, the deceased would not
relent. He pulled out an okapi knife which he used to stab the
accused in the hand causing him to fall down writhing in agony.
The
accused stated further that although he had sustained a stab wound on
the hand and had fallen down, he was able to grab the deceased's
hand and disarm him of the okapi knife. He used the same knife, in
defence of his person, to stab the deceased on the back of the
shoulder.
After
stabbing the deceased on the shoulder the accused says he ran away
fearing for his life.
As
he walked towards his homestead somehow he met the deceased again.
This time the deceased had armed himself with an iron bar which he
threw at him hitting him on the ribs thereby inflicting excruciating
pain and again causing the accused to fall to the ground. As the
deceased charged at him intending to inflict more pain to him, the
accused says he gathered strength and withdrew the same knife he had
snatched from the deceased earlier on which he again used to stab the
deceased on the neck but in self defence. The deceased then ran
towards the clinic but collapsed to the ground.
The
accused says he managed to limp his way back to the Business Centre
where he reported the matter to a policeman by the name of Mutisi who
took him to the police base where he was later arrested and detained
in cells.
According
to the accused, the State witness Robert Moyo who is his own uncle,
was not present at the scene but has fabricated evidence against him
because he has a long-standing grudge against his family. Moyo is
using this case in order to fix him. As shall become apparent later,
Robert Moyo was not the only eye witness.
The
accused relies on defence of person to ward off the charge leveled
against him.
In
order to succeed, the accused must satisfy the requirements of that
defence set out in section 253 of the Criminal Law Code [Chapter
9:23]. It provides:
“(1)
Subject to this Part, the fact that a person accused of a crime was
defending himself or herself or another person against an unlawful
attack and he or she did or omitted to do anything which is an
essential element of the crime shall be a complete defence to the
charge if —
(a)
when he or she did or omitted to do the thing, the unlawful attack
had commenced or was imminent; and
(b)
his conduct was necessary to avert the unlawful attack and he or she
could not otherwise escape from or avert the attack or he or she
believed on reasonable grounds that he or she could not otherwise
escape from or avert the attack; and
(c)
the means he or she used to avert the attack were reasonable in all
the circumstances; and
(d)
any harm or injury caused by his or her conduct —
(i)
was caused to the attacker and not to any innocent third party; and
(ii)
was not grossly disproportionate to that liable to be caused by the
unlawful attack.”
Subsection
(2) of section 253 requires the court determining whether these
requirements have been met to take into account the circumstances in
which the accused person found himself or herself in including any
knowledge or capability the accused person may have had including any
stress or fear operating on his or her mind at the time.
The
question which arises is whether the accused was under any unlawful
attack at the time that he stabbed the deceased twice — once on the
back and once on the right side of the neck —inflicting fatal
wounds.
Let
me begin by making the critical point that defence of person or what
is collectively referred to as “private defence” in Criminal Law,
has evolved out of public policy considerations. Natural reason
permits a person to defend himself or herself against danger. The
following passage in Jonathan Burchell's book, South
African Criminal Law and Procedure,
Vol 1, 4th
ed, Juta, Cape Town, 2011, is apposite:
“A
person who is a victim of an unlawful attack upon person, property or
another recognized legal interest may resort to reasonable force to
repel such attack. Any harm or damage inflicted upon the aggressor in
the course of such private defence is not unlawful.
As
a general rule, the law does not permit persons to resort to force or
violence to protect their interests, expecting that they will invoke
the protection of the law and the agencies of law enforcement for
this purpose. To allow otherwise would be to permit and condone
private vengeance, retaliation and other forms of self-help to the
detriment of peace, good order and the rule of law.
However,
it is not always possible for the State, through the police and the
courts of law, to provide the immediate and necessary protection due
to every citizen with respect to their legal rights and interests. In
such circumstances it is that individual's inherent right,
'accepted by all law, both natural as well as civil' to resort to
private defence. In doing so, the citizen acts for the State and thus
his or her actions are necessarily lawful.
Although
allowing this right to the citizen, society must carefully limit its
ambit.”
It
is for the purpose of limiting the ambit of the defence that section
253(1) makes it available as a complete defence to only an accused
person who was under an unlawful attack.
Even
where the accused person was under an unlawful attack certain
essentials must still be satisfied before the defence is availed.
The
unlawful attack must have commenced or was imminent.
What
this means is that fear alone is insufficient to justify a defence as
there must be an actual or imminent attack upon the accused person in
a case such as the present.
When
referring to the imminence of the attack the law draws the line that
the defence cannot be resorted to where the accused person has the
time or opportunity to seek other forms of protection like fleeing.
The attack must be immediately about to begin in order for it to be
imminent.
Regarding
the means used to avert the attack the law requires that they be
reasonable in all the circumstances and should not be
disproportionate to the harm sought to be averted.
An
accused person facing an unarmed aggressor or one wielding a small
switch cannot pull out an okapi knife and use it to stab the
aggressor as a means to avert the attack.
I
have had to discuss the law relating to defence of person in order to
demonstrate that this is not a defence available to any accused
person who has nothing better to say.
The
difficulty confronting the accused in this case is that we have
eye-witness accounts of what transpired at Bazha Business Centre
immediately before the deceased met his violent death. In that regard
I must express my concern at what appears to have been an attempt by
State witnesses to assist the accused person evade the consequences
of his actions.
If
one looks at the State summary, there are two witnesses, namely
Robert Moyo and Marvellous Tshuma, who were present inside
Zamangothando Bottle Store when the accused entered and an
altercation started between him and the deceased. At the trial
Marvellous Tshuma did not come to testify at all and a summary of his
evidence had to be expunged from the record. It means that the court
has to close its eyes to that evidence.
Robert
Moyo did appear in court and gave evidence.
However
his evidence is now substantially different from that summarized in
the State Summary. Suddenly Moyo was not present inside
Zamangothando Bottle Store when the fight erupted. He told the court
that instead he was seated outside Adams Cocktail Bar when he saw the
deceased coming from Zamangothando Bottle Store. He was walking fast,
not running, while holding his T/Shirt in his hand.
When
he got close to the witness the deceased muttered something to the
effect that he had been stabbed and was indeed bleeding from a wound
at the back. Although Moyo says he asked the deceased twice as to who
had stabbed him the deceased did not respond.
The
witness says he then went inside the cocktail bar and reported to a
police officer, Trymore Tinashe Mutisi, that someone had been stabbed
and together they went outside to attend the scene. It is then that
he observed the deceased and the accused dashing towards the clinic.
As
they were about to get to the road Moyo observed the accused lunge at
the deceased and stabbing him on the neck “on the throat part.”
By the time the witness, who says he had to mount his bicycle to get
to the scene a short distance away, arrived at the scene the deceased
had fallen to the ground and was dying. The accused was escaping
forcing the police officer to chase after him. He was apprehended.
I
think Moyo and the entire village community of Bazha should hang
their heads in shame for daring to assist a person who committed a
heinous crime at a Business Centre in broad daylight by trying to
suppress the evidence.
I
say so because the attack on the deceased must have been witnessed by
a lot of people most of whom did not see the need to come and assist
the court dispense justice.
Moyo,
who is a fairly old man who should have wisdom, is testimony to the
saying that at times old age does not come with wisdom, but may come
strolling alone.
The
fact is that even by the accused person's own version, the deceased
came out of Zamangothando running for dear life. He had been stabbed.
The police officer, Mutisi, who was in the company of Moyo and had
been summoned by him, actually saw the accused chasing after the
deceased holding an okapi knife on his right hand. It is therefore
disgraceful that Moyo decided to suppress the chasing aspect.
According
to the post mortem report compiled by Dr S Pesanai, a pathologist at
United Bulawayo Hospitals, after examining the remains of the
deceased on 13 December 2017 the cause of death was haemorrhagic
shock and stab wound on the neck due to assault.
The
stab wound perforated the right subclavian vessels. The doctor also
observed that the stab wound on the neck had taken the direction from
front to right and top to bottom. This is consistent with Robert
Moyo's evidence that he saw the accused stab the deceased “by the
throat part.”
The
accused person's defence that he acted in self-defence clearly does
not hold water. According to him he went into a bottle store, which,
in the normal course of things sells alcohol, to buy candles. This
was despite the fact that he had just arrived from Bulawayo where he
had gone to buy seed maize and would have been expected to buy his
groceries in Bulawayo. He does not drink at all but still went into a
bottle store where the deceased was drunk and abusive. According to
him, although the deceased was used to making disparaging remarks
about his wife Sinikiwe Moyo claiming to be having an affair with him
for 11 years, he again repeated those claims at Zamangothando Bottle
store leading to a fight.
Although
it is the deceased who was provocative and for his part the accused
kept his cool telling the deceased to leave him alone, it is again
the deceased who withdrew a knife and stabbed him on the right hand
disabling that hand. He had fallen to the floor as the deceased was
bearing down on him armed with an okapi knife.
The
accused says he was still able to achieve the insurmountable feat of
using his left hand, he says he is left handed, to grapple with the
deceased and disarm him. He then used the same okapi knife to stab
the deceased, not on the front as would ordinarily happen where the
aggressor is charging at you, but at the back next to the spine. The
accused says that the deceased exited the bottle store running away,
which is of course different from his claim in his Defence Outline
that it is himself who ran away.
Denying
that he chased after the deceased as witnessed by Mutisi, the accused
says he was on his way home carrying his luggage on his head while
still clutching the okapi knife in one of his hands, when he somehow
met the deceased who was by then armed with an iron bar, never mind
that the deceased had in fact taken flight after being stabbed in the
back. The deceased threw the iron bar at him from a distance of about
6 paces hitting him in the rib cage and causing him to fall. The
deceased still charged at him while on the ground and pressed him to
the ground.
Even
though the accused was in that position of disadvantage, he says he
still managed to stab the deceased in the neck in self-defence
inflicting a wound which took a front to back, left to right and top
to bottom trajectory as observed by the pathologist.
That
kind of story only exists in the world of fiction. I reject it as
demonstrably false.
The
accused's own relative, Robert Moyo who I have already said tried
desperately to protect the accused by suppressing part of the
evidence, saw the accused stabbing the deceased on the neck. Mutisi
saw him chasing after the deceased wielding an okapi knife produced
in court as exhibit 5.
Clearly
the accused was under no attack of whatever nature. It was not
imminent and was not going to commence.
He
was simply an aggressor who preyed on a drunk person armed with a
lethal okapi knife. He directed his blow to an extremely vulnerable
part of the human body, the neck by the throat fatally cutting blood
vessels. He knew what he was doing.
I
am required to consider the accused person's state of mind in
deciding on the appropriate verdict to be returned.
Mr
Muduma
for the State urged the return of a verdict of murder with actual
intent.
That
kind of verdict has its own consequences in respect of sentence. We
must therefore carefully examine the issue because actual intention
is the most blameworthy state of mind in Criminal Law given that the
accused deliberately causes the criminal consequence. As stated in S
v Mugwanda
2002
(1) ZLR 574 (S) at 581 D-E:
“---
for a trial court to return a verdict of murder with actual intent it
must be satisfied beyond reasonable doubt that:
(a)
either the accused desired to bring about the death of his victim and
succeeded in completing his purpose; or
(b)
while pursuing another objective foresees the death of his victim as
a substantially certain result of that activity and proceeds
regardless.”
It
occurs to me that whatever prompted the accused to stab the deceased
inside the bottle
store,
if he had not intended to bring about the death of the deceased he
would have stopped there.
He
did not.
Instead
he chased after the deceased who was running away armed with the
murder weapon. When he caught up with him, he aimed another blow at
the neck “by the throat part” accomplishing his design, that of
bringing about the death of the deceased.
The
accused is therefore found guilty of murder with actual intent.
Reasons
for sentence
The
relevant mitigating factors are that the accused person is 31 years
old. He is married with three or four minor children depending on
what one chooses to work with given that when giving evidence the
accused claimed to have four children but his legal practitioner
stated that he has three children. He is unemployed, his wife has
left him following his arrest and his children are now under the care
of a great grandmother.
The
accused in a way showed remorse by paying compensation to the family
of the deceased in the form of two head of cattle.
There
is also this aspect of the accused's belief that the deceased was
having an affair with his wife. Although the accused tried to
dramatise it by making false accusations that it was the deceased who
was bragging about it, we are not prepared to elevate it beyond the
status of a suspicion. It is however relevant for purposes of
sentence as it goes to show that he was driven by jealousy which
caused him to commit the crime.
There
is however no doubt that resort to taking the life of a person over a
woman cannot be tolerated in a civilized society.
As
it is the deceased was not even given an opportunity to defend
himself or state his case and may have died for nothing at all when
the accused took leave of his senses. What is apparent is that the
accused behaved like a village bully who targeted his own uncle whom
he stabbed in broad daylight killing him instantly. After committing
the offence he walked away as would someone who had just killed a
wild animal. It was callous in the extreme. The lack of contrition
was perpetuated all the way to the end as the accused person
unflinchingly pursued a worthless and fanciful defence.
This
court has to protect human life and is required by law to impose a
sentence which underscores the sanctity of human life. We cannot
allow people to move around armed with okapi knives, which they use
to take other people's lives on the basis of a whim. The sentence
must therefore reflect society's revulsion at that kind of animal
behaviour.
Accordingly
the accused is hereby sentenced to 25 years imprisonment.
National
Prosecuting Authority,
state's legal practitioners
Ndove
and Partners,
accused's legal practitioners
