GOWORA JA: This is an
appeal against the sentence of death imposed on the appellant after he was
convicted of murder with actual intent. A finding was made that there were no extenuating
circumstances surrounding the commission of the offence.
Mr Mazibuko,
who appeared on behalf of the appellant, conceded that there was no
misdirection on the part of the trial court in respect of both conviction and
sentence.
The facts
are as follows. The deceased Molly Sibanda was aged 66 at the time of her
death. Her sister-in-law Tendai Machokoto had been engaged in a land dispute
with the appellant for a period in excess of seven years.
The appellant was at the time of the
commission of the offence the headman of the area in which he, the deceased and
the state witnesses were resident. In 2004 the appellant had forcibly
removed Tendai Machokoto and her minor children from her land following the
death of her husband. It is common cause that at the time Tendai
Machokoto was ill. The appellant allocated the piece of land to his
son Simon Tongoona. When she approached him for the return of her land,
the appellant demanded that she give him a beast in payment. She did not
consider that the payment was justified.
On 6 October 2011 Tendai Machokoto
took the dispute to the Chief who ruled in her favour and ordered the appellant
to restore possession of the piece of land to her.
On 17
October 2011 a group of about twelve adults and a number of children including
Tendai Machokoto, the deceased, the deceased's son Solomon Matsanza and Joshua
Matsanza proceeded to the piece of land in the morning to clear the brush for
the agricultural season. They were using axes to clear the land.
At about 9 am the appellant arrived
at the field armed with a spear. The appellant was accompanied by his son Simon
Tongoona who was armed with an axe and a catapult. Upon arriving, the appellant
ordered Tendai Machokoto and the group to stop clearing the land saying that it
belonged to his son. The group ignored him and continued working the land.
Simon then started pelting the group with stones using the catapult as the
appellant charged towards the people wielding the spear.
Some of the
people fled leaving behind the deceased and Tendai Machokoto who were unable to
run due to old age. Tendai Machokoto is in addition a cripple. She
had a grandchild strapped on her back. The appellant approached Tendai and said
the following to her:
“You
should be grateful to the child you are carrying on your back, it was you I was
after, or whom I wanted.”
The appellant then walked towards
the deceased. As the appellant walked towards her, the deceased turned to face
Tendai giving her back to the appellant. The appellant threw his spear at the
deceased, striking her on the back of the body below the left shoulder. She
fell down. He ran to her, pulled out the spear and ran away calling out to his
son that they should leave the place as he had finished his task.
Tendai called out to the other
members. They took a cloth which they used to dress up the wound sustained by
the deceased in an effort to stop the bleeding. The deceased was taken home
from where she was placed on a tractor and ferried to hospital. She was
pronounced dead on arrival. A post-mortem examination revealed the following
injury - 4th intercostal space laceration 7cm deep.
The cause
of death was stated as follows:
a) Hypovolemic shock; and
b) Haemo-pneumothorax.
It is common cause that the injuries
sustained by the deceased were caused by a spear. The cause of death
shows that the spear must have penetrated the chest cavity causing extensive
injury and bleeding. The spear must have been thrust with severe force
particularly taking into account and size.
In his warned and cautioned
statement which was confirmed before a magistrate the appellant alleged that
the deceased had interposed herself between the appellant and her sons who were
intending to assault him with axes. In an effort to defend himself from their
assault he had thrown a spear and the deceased was accidentally struck as she ran
into the way of the spear in an attempt to stop his attackers. He said he
pulled out the spear which he took to his homestead before reporting himself to
the police at Sengwa Police Station.
In his defence outline the appellant
suggested that the deceased had been accidently stabbed by one of her sons who
were throwing spears indiscriminately as he was in the process of fleeing from
the scene. In his evidence he suggested that he and his son had arrived at the
field before Tendai Machokoto and her helpers. He told the court that he and
his son were then attacked by a mob in excess of twenty eight people and they
decided to run away. He alleged that Tendai Machokoto was seated at a spot that
he had to use in running away and he called out to her to let him through or
else he would strike her with an axe. He said it was soon after warning Tendai
to make way for him that he heard the deceased crying saying that she had been
stabbed by her sons.
It is common cause that some members
of the group fled from the scene leaving behind three axes which the appellant
picked up and subsequently took to the police station. The spear with which the
deceased was stabbed was recovered by the police from the appellant's granary
after he made indications of its whereabouts freely and voluntarily. The spear
weighed 0.630kg, was 65cm in its full length with a blade 30cm long and 4 cm
wide.
On these facts the trial court
correctly convicted the appellant of murder with actual intent. Having
considered all these facts the court came to the following conclusion[1]:
“In casu,
the accused proffered a defence of a complete denial. He has chosen to argue
that he never threw the spear at the deceased, but preferred to claim that the
deceased was struck by one of her sons. We had already rejected that defence.
We must then consider what the accused's intention was when he threw the spear
at the deceased. We are satisfied that the accused must have at the very least
foreseen the possibility of killing the deceased as having been substantially
certain. In the circumstances, this Court is of the view that the accused
intended to bring about the death of the deceased when he threw the spear at
her at close range. He must have realized that death was a substantial and real
possibility.”
Having considered the facts, this
Court is of the unanimous view that there is no misdirection on the conviction.
It is clear from all the circumstances of the case that when the appellant
armed himself with a spear and proceeded to the field he considered all the
people at the field as his enemies. He had clearly resolved to settle the
dispute over the right to use the land violently. The fact that he stabbed the
deceased to death instead of Tendai does not in any way disprove the intent to
kill the deceased.
On extenuation it was suggested
before the court a quo, that the appellant felt that there was a long
drawn dispute between himself and Tendai Machokoto. It was submitted that he
considered the piece of land as wealth and he felt that Tendai Machokoto was
grabbing the piece of land from him. It was also argued that he did not have a
dispute with the deceased but he blamed the whole group, and his moral
blameworthiness in that respect could not be considered as being high.
The court a quo
correctly dismissed the argument that the attitude of the adopted in the
dispute with Tendai Machokoto was a factor that could be considered as reducing
his moral blameworthiness in the commission of the offence. The court a quo
found that there was no evidence that the appellant was under any psychological
or moral stress that could be considered as extenuating circumstances. The
court found that the appellant had no remorse and that even though he had no
issue with the deceased, he attacked her brutally with a weapon whose only
purpose is to kill whatever its wielder aims at.
This Court is of the unanimous view
that that there was no misdirection on the part of the court a quo. It
is clear from the facts that the appellant is a person who could not brook any
challenge to his authority. The dispute which he created through the abuse of
his mandate as a headman had been settled by the Chief who is the higher
authority to him but the evidence shows that he was not prepared to accept the
intervention by the chief. He chose to resolve the dispute in his own way which
shows for the law and life. This court is of the view that his position
as headman is a factor in aggravation as opposed to extenuation.
The appeal
has no merit. It is dismissed.
MALABA
DCJ:
I
agree
HLATSHWAYO
JA:
I agree
Calderwood, Bryce Hendrie &
Partners, legal practitioners for the
appellant
[1]At
p 10 of the cyclosyled judgment
