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Judgment No. HB 63/15

Case No. HC (CRB) 36/15

                                                                           Xref Lupane CR NO. 23/09/14

THE STATE

versus

DUBILIZWE MNKANDLA

HIGH COURT OF ZIMBABWE

MAKONESE J

HWANGE 17 AND 18 MARCH 2015

Criminal Trial

Miss N. Ngwasha for the state

Mr G. Muvhiringi for the accused

            MAKONESE J:        The accused in this matter is facing a charge of murder.  The state alleges that on 27 September 2014 and at Mapanda Village, Gomoza area, Lupane, the accused did wrongfully and unlawfully and intentionally kill and murder Sambulo Mnkandla.  The deceased was aged 46 years when she met her death and was legally married to the accused.  The accused is aged 49 years.  He pleaded not guilty to the charge and tendered a plea of guilty with respect to the lessor charge of culpable homicide.  The state did not accept the lessor plea and the matter proceeded to trial.

            The state outline was read into the record as (Exhibit 1) and it shall not be necessary to repeat the entire contents of the summary of the state case.  The accused tendered his defence outline marked Exhibit 2 and in essence the accused stated that he did not intend to kill the deceased but aimed to strike her on the shoulder with an axe.  In a fit of range he swung the axe towards the deceased.  The deceased ducked and turned resulting in accused striking the deceased on the back of the head with the back of the axe.  Accused averred that he was “overpowered by anger” as he thought since he had paid an ox to the deceased’s parents the issue between them had been resolved and that they were going to live in peace.  The accused further said his object was not to cause the death of the deceased but rather to inflict some pain in her by hitting her with the axe on the shoulder.

            The accused’s warned and cautioned statement was tendered into evidence by consent as Exhibit “3”.  The statement was duly confirmed by a magistrate at Hwange on 9 October 2014.  The statement is in the following terms:

“I admit killing Sambulo Mnkanlda who is now deceased.  I hit her with the back of an axe and initially I had directed the blow on the shoulder or the jaw if she had not turned.  In her effort to dodge the blow I ended up striking her on the back of her head and she fell down and died.  I waited for about 3 minutes that’s when I realized that she had died.”

            The warned and cautioned statement was recorded in English.  This statement was recorded on 29 September 2014, two days after the commission of the offence when the events were still fresh in the mind of the accused.

            An affidavit deposed by Constable Isaac Jacobs (Exhibit 4) confirms that the deponent identified the body of the deceased as that of the person who had died after having been hit with the back of the axe by the accused.  He conveyed the body to the United Bulawayo Hospitals for a Post Mortem examination.  The last documentary exhibit is the Post Mortem Report number 694/691/14 (Exhibit 5) compiled by Dr. S. Pesanai, a medical practitioner based at United Bulawayo Hospitals.  On 29 September 2014 Dr. S. Pesanai examined the remains of the deceased and compiled his findings.  He concluded that the cause of death was:

1. subarchnoid haemorrhage
2. Skull fracture
3. Blunt trauma
4. Assault

On external examination the Dr. indicates there were marks of violence, there was blood from the nose and mouth covering the face and head.  Both eyes were swollen.  On internal examination, the pathologist noted the following injuries:

1. Scalp haematoma right occipital region (6 x 4cm)
2. Depressed skull
3. Fractured right occipital region extending to the left posterior fescae
4. Subarchnoid haemorrhage, decomposed brain.

The state then produced the axe used in the assault as (Exhibit 6).  The axe has a wooden handle, 89cm long.  It weighs 2.1kg.  Its blade measures 14cm.  At its widest part the blade is 9cm wide and at its narrower part the blade is 6cm in width. 

The state applied for the evidence of the following witnesses, as summarized in the outline of the case, to be admitted into the record by way of formal admissions.  Violet Mnkandla, Owen Nyathi, Lazarus Magugunyekei, Herbert Nyathi and Dr. S. Pesanai.  The defence consented to application, and accordingly the evidence of the said witnesses was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The state led oral testimony from two witnesses.  Aaron Ndlovu testified that he resides at Siyatshaya Village, Gomoza, Lupane.  He knows the accused as his son in law.  The deceased was his daughter.  Prior to the events leading to this case the witness confirmed that the relationship between accused and deceased appeared to be stable.  He had no complaints against his son-in-law.  On 22 September 2014 the deceased advised the witness that she had obtained a Protection Order against the accused as they were going through some matrimonial difficulties.  Deceased advised the witness that the source of the misunderstanding was an illicit sexual relationship that she alleged was in existence between accused and his brother’s wife.  Further, the witness told the court that accused had threatened to kill her if she ever spoke about that relationship.  The witness went on to say that a few days later, the accused had paid an ox as compensation for the wrong he had done to his wife.  On that same day the accused left his homestead in the company of his wife.  All seemed to be well between the two who seemed to have agreed to reconcile.  On 27 September 2014 the witness was shocked to receive a report that accused had killed his wife by striking her with an axe.

The evidence of this witness was consistent and credible in all material respects.  The witness did not exaggerate his evidence and despite the fact that he had lost a daughter, he seemed composed and did not show any hatred or anger towards the accused person.  His evidence is worthy of belief and is accepted by this court.

The evidence of Tholakele Mnkanlda, the next state witness was not very useful to the state case.  The witness appeared to be cagy and did not wish to reveal everything he knew in connection with this matter.  It would seem that the 23 year old was torn between giving evidence against his father (the accused) and giving evidence explaining how his mother (deceased) met her death.  The witness did confirm that he saw the accused handing over the axe (Exhibit 6) as the axe that had been used in the murder.  For what it is worth, the evidence of  Tholakele Mnkandla confirms that there was a misunderstanding between accused and the deceased just before the death of the deceased. This is borne out by the fact that he confirmed that that accused paid an ox as compensation.

The accused gave evidence under oath in support of his defence.  He swore that he did not intend to kill the deceased.  He said as they were walking from the fields to their homestead with accused in front when a misunderstanding ensued.  The proximate caused of the dispute was that deceased had indicated that she was armed a Protection Order from the courts and could eject the accused from his homestead.  Accused states that this angered him and that in extreme anger he had lost self control.  He says at the spur of the moment he swung the axe that he was carrying on his shoulder backwards intending to hit the accused on the shoulder.  Accused states that he used moderate force.  He says he regrets what he did and the axe unfortunately hit the deceased on the back of the head.  The deceased fell to the ground.  He realized that she had died on the spot.  Accused was not an impressive witness.  His evidence lacks credibility.  The medical evidence suggests that he used excessive force.

The issue for determination is whether the accused intentionally caused the death of the accused by way of constructive intent or whether his conduct amounts to negligence.  The state has forcefully argued that the elements of constructive intent have been satisfied.  The state referred to the Guide to Criminal Law by G. Feltoe page 110, which sets out the requirements as follows:

“Legal intention

A does not mean to bring about death but he continues to engage in an activity which he realises will almost certainly result in deceased’s death.  The three elements are:

1. subjective foresight
2. of the real possibility (not probability of death

and

1. recklessness.”

See also the cases of Robert Mungwanda v State SC 9/02 and State v Sigwhahla 1967 (4) SA 556.  The author, JR Milton in his book, South African Criminal Law and Procedure, 3^rd Edition, at page 324, states as follows:

“Intent to kill is tested subjectively: whether the charge is one of murder or attempted murder, the state must prove dolus; culpa is insufficient.  Dolus directus exists where X commits the actus reus meaning to kill Y.  Dolus evutualis exists where X commits the actus reus foreseeing that it may cause Y’s death.”

In this matter the court has to look at the conduct of the accused person together with the injuries sustained by the deceased in order to infer the subjective intention of the accused.  It cannot be true that the accused used moderate force when he struck the deceased.  The axe, which was produced in court is clearly a very dangerous lethal weapon.  It weighs 2.1kg and it has a long blade measuring 14cm in length. It is most likely that when the accused swung the axe towards the deceased from a distance of just over one metre he ought to have realized that death was a real possibility.  The Post Mortem Report is a very reliable piece of evidence in this matter because it reveals that the the deceased suffered fatal and serious injuries.  A fracture of the skull could only have been caused by excessive force being exerted on the deceased’s head.  Accused’s level of recklessness is so gross that it goes beyond mere negligence.

I therefore reject the defence version which suggests that accused did not foresee death as a real possibility.  I am satisfied that on the evidence led in court, the state proved beyond reasonable doubt that accused foresaw the possibility of death; and find the accused is guilty of murder with constructive intent.

In assessing an appropriate sentence the court considers the following factors.

Accused is aged 50 years.  He has been convicted of murder with constructive intent.  The court will take into account all that has been said on behalf of the accused person by his legal practitioner, that he is a retired police officer who is a first offender.  He has six children and eked out a living as a communal farmer.  The evidence suggest that the proximate cause of this offence is the discovery of an alleged illicit affair by the deceased between accused and the deceased’s brother’s wife.  The accused alleges that he was provoked by the conduct of the wife on the fateful day.  He says that the deceased had indicated that she could cause his ejectment from the communal homestead by use of Protection Order.  The court can only rely on the accused’s version as there is no other independent evidence to the contrary.  The accused says he acted out of extreme anger.  He lost self control and acted at the spur of moment.  In his own words accused said if he just had a minute or half a minute to think clearly he would not have struck the deceased in the manner he did.  The court shall take into account the fact that accused admitted striking the deceased with the axe and voluntarily handed over the axe to the police.  He co-operated with the police and did not seek to dissociate himself from the offence.  The moral blameworthiness of the accused has been diminished by the finding of murder with constructive intent.  However, the courts must impose a sentence that fits the offence and the offender. 

The courts must uphold the sanctity of human life.  Crimes of gender based violence have spiraled out of control.  The accused who was a law enforcement agent for more than 25 years ought to have realized that resolution of domestic disputes through the use of violence has no place in a modern society.  He ought to have realized that stricking the deceased with an axe in the manner he did, particularly aiming or directing at the upper part of the body was potentially fatal.  The injuries suffered by the deceased as reflected in the Post Mortem Report confirm that the force used in striking the deceased must have been excessive and disproportionate in all the circumstances of the case.  The injuries consist of a fractured skull, subarchnoid haemorrhage and scalp haematomia.  These are very serious injuries and the only inference is that accused was being conservative with the truth when he said he used moderate force.  The courts will impose stiff sentences in cases of this nature in order to send to correct signal to society.  I have taken into account the fact that the accused spent six months in custody before trial.  Accused is sentenced as follows:                                                                                                      

18 years imprisonment.

National Prosecuting Authority, the state’s legal practitioners

Dube and Company, accused’s legal practitioners