REPORTABLE
(97)
Judgment
No. SC 122/02
Crim.
Application No. 316/02
PHILLIP
BEZUIDENHOUT v THE STATE
SUPREME
COURT OF ZIMBABWE
HARARE,
DECEMBER 20, 2002
Before
CHIDYAUSIKU CJ, In Chambers
The
applicant in this case was convicted of murder with constructive
intent and sentenced to fifteen years imprisonment with
labour by
the High Court (HLATSHWAYO J). He applied for leave to appeal
against both conviction and sentence to the court
a quo.
The application was dismissed. Thereafter he applied for such
leave to a Judge of this Court. I considered the application
and
dismissed it. I indicated that reasons for the judgment would be
given in due course. These are they.
The
facts of this case are that on 14 July 2001 and at about
11:30 am at the 236.5 km peg along the Harare/Mutare
Road,
Tara Farm, Odzi, the applicant struck Febion Mapenzauswa (the
deceased) with a motor vehicle. The deceased died on
the spot.
The State alleges that the applicant did so unlawfully and with
intent to kill the deceased.
It
is common cause that the applicant did strike the deceased with a
motor vehicle and that the deceased died.
When
the charge was put to the applicant, he pleaded guilty to culpable
homicide. The State rejected the plea, contending that
the
applicant was not only negligent but foresaw the death of the
deceased and intended to bring about such death or alternatively
was
reckless as to whether such death occurred or not. The matter
thereafter proceeded to trial.
The
issue that fell to be determined by the trial court was that of the
applicants mens rea.
In particular, whether the applicant was merely negligent, as
admitted, or whether the applicant intended to kill the deceased,
as
contended by the State. The mens
rea of the applicant
in this case, like in many similar cases, can only be inferred from
his actions immediately prior to the collision
with the deceased.
The learned
judge in the court a quo,
in a very well reasoned judgment, carefully analysed the evidence of
the witnesses and came to a conclusion that another court cannot
but
agree with.
The
background to this case, which is largely common cause, is that a
number of settlers had been allocated plots on the applicants
farm
in terms of the land resettlement programme. This no doubt did not
go down well with the applicant. The deceased was at
the
applicants farm for the purpose of being allocated a plot when the
applicant killed him.
On the morning of 14 July
2001 the applicant had a physical altercation with some of the women
settlers on the farm. There
are different and conflicting versions
of this altercation between the applicant and some of the women
settlers involved. The learned
trial judge quite correctly rejected
certain aspects of the evidence of the settlers. He also rejected
some aspects of the applicants
version of the altercation. In my
view, the details of that altercation is of peripheral relevance.
They are only relevant insofar
as they throw some light on the
conduct of the applicant later on and at the time he struck the
deceased.
After
analysing the evidence of the events of that morning the learned
trial judge concluded as follows:
Whether
in so doing the accused intended to kill one of them or to frighten
them off is not clear. However, the evidence I accept
and the
conclusion I draw is that the accused was in a very agitated frame of
mind that morning. It is not certain exactly what
the source of his
anger was but he directed his ire at the settlers. I do not believe
that he reasonably suspected that the women
with slashers were the
ones who had assaulted his workers who included many men.
I
accept Caroline Kashiris evidence that the accused did,
indeed, press his body on her and throttled her as alleged.
Anna-Mary
Sithole also was a credible witness and gave her evidence
very well.
However,
I have discounted Tapiwa Chipo Taperas evidence that the accused
had threatened that he would spill blood if his farm
was acquired.
Tapera struck the court as a highly emotional witness who was very
bitter towards the accused, his former employer,
for alleged
mistreatment at the workplace. Thus, I have discarded those aspects
of his evidence which are not corroborated by other
witnesses.
In my view,
the above conclusion appears to be a fair and balanced assessment of
the evidence by the learned judge. The applicants
contention in
the notice of appeal, that the learned judges assessment is
grossly unreasonable, is untenable. Even if I were
to accept the
applicants contention that there was a misdirection on this issue,
that misdirection does not affect the learned
judges conclusion on
the critical issue of how the applicant struck the deceased and the
inference to be drawn from the applicants
conduct at the time of
the impact.
As
the learned trial judge again correctly observed, there are two
versions of how the collision occurred. The two versions, namely
that of the applicant and that of the State, were summarised by the
learned judge as follows:
I
move on now to consider how the impact occurred. The accuseds
version is that he had moved off his correct left lane of
travel into
the right or incorrect lane in order to speak window to window to the
occupants of the Astra Estate vehicle parked off
the road. As he
approached the car at a speed of 70 km/h or probably less, he
says the occupants, one after the other, first
the front passenger
followed by the back passenger one, the backseat one, and lastly the
driver got out of the car, each closing
their respective doors, and
started running away, the passengers heading towards the wheat
fields. The driver started running parallel
to his vehicle in the
Harare direction, slipping as he did so on the gravel on the verge of
the road. The accused says at that
moment he realised that he was
not going to be able to speak to the occupants as he had intended.
He then glanced back to see if
it was safe for him to move back to
his correct lane. That, he says, is when the impact occurred. He
did not stop but proceeded
to Odzi Police Station where he made a
report.
The
version of the impact as given by Godfrey Gola and corroborated
by Tapiwa Makombe and other settlers is significantly
different.
According to Gola, he, together with Tapiwa and the deceased had
gotten into the deceaseds car which was parked off
the road and
were about to drive off when he says he heard the women screaming at
the top of their voices warning them of impending
danger. He looked
up and saw the accused speeding in his vehicle towards them. The
accused had left his correct lane of travel
and was bearing (down) on
them, holding the steering firmly leaning forward. He feared that
it might be a suicide attack and dived
out of the car, as did Makombe
who was in the back passenger seat. Both fell into a ditch. The
deceased was slow to react and
was struck as he just came out of his
door.
The
learned trial judge accepted the evidence of the two State witnesses,
Gola and Makombe. He made a favourable finding on those
two
witnesses credibility. In so doing he impugned directly or
indirectly the credibility of the applicant.
It
is now settled that a superior court does not lightly interfere with
a finding of a lower court on the issue of the credibility
of
witnesses.
Apart
from this, there are a number of undisputed facts and probabilities
that support the State version.
Firstly,
shortly before the applicant struck the deceased with his motor
vehicle, the applicant, on the one hand, and the deceased
and the
people around the deceaseds vehicle, on the other hand, exchanged
hostile gestures as the applicant drove past the deceaseds
vehicle. Initially the applicant drove past the deceaseds
vehicle going towards Harare. He then turned round and drove past
the deceaseds vehicle driving towards Mutare. The applicant then
again turned around and drove towards Harare. It is common
cause
that on this third occasion he left his correct lane of travel and
drove towards the deceaseds vehicle, which was parked
off the lane
for traffic travelling in the opposite direction. That is when he
struck and killed the deceased.
Secondly,
the applicants evidence in court of what occurred and why he drove
towards the vehicle of the deceased is at variance
with his warned
and cautioned statement to the police. This discrepancy seriously
undermines the credibility of the applicant as
a witness.
Thirdly,
and in my view most significantly, on his own evidence the applicant
was travelling at about 70 km/h at the time of
the impact. A
driver wishing to have a window to window talk, as the applicant
contended, with persons in the deceaseds vehicle
would have slowed
down to a crawling speed to enable him to stop and talk to the
deceased, who was in his vehicle. At the time
of the impact, if the
applicants version were true, he should have been almost coming to
a stop.
Fourthly,
the damage to the applicant's vehicle, the fact that the deceased was
thrown into the air and landed on the tarmac behind
the applicant,
and the fact that the deceaseds shoes were thrown as far as the
wheat fields, clearly shows that the applicants
vehicle was
travelling at a considerable speed at the time he struck the
deceased.
In
this regard the learned judge concluded as follows:
The
manner in which on impact the deceased was thrown up in the air and
landed on the tarmac behind the accuseds vehicle, the
fact that
one of the deceaseds shoes flew into the middle of the wheat
field, the injury sustained by the deceased as already
noted, and the
shattering and puncturing of the windscreens as shown in Exhibit L,
all these factors are consistent with high
speed and
inconsistent
with the accuseds version of events.
I
find the testimonies of Gola and Makombe credible and reliable.
They did not exaggerate. For example, Gola refused to give
an
estimate of the speed and limited himself to maintain(ing) that it
was high. Makombe estimated the speed at 100-120 km/h.
Their
description of how the accused approached them, hugging the steering
and bearing (down) on them has a ring of truth to it
and does not
sound like embellishment. Which is possible despite the accuseds
submissions to the contrary that within a split
second the mind can
take in a lot of details, especially in a moment of extreme danger.
Doctor Sidhile
too was prepared to make concessions where warranted and his evidence
that the accused must have been travelling
at a high speed is
supported by other evidence as noted already. The actus
reus having been
established.
The
reasoning and conclusion of the learned trial judge is convincing and
there are no prospects of a superior court coming to a
different
conclusion.
When
an individual drives towards a group of people at high speed, as the
applicant did in the manner described by witnesses the
court a
quo found credible,
there is no room for doubt that such person foresees death as a
consequence of his actions and is reckless as to
whether death ensues
as he persists with that course of conduct.
I
was therefore satisfied that there were no prospects of success on
appeal against conviction.
Upon
conviction the applicant was sentenced to fifteen years
imprisonment with labour. The court a quo
found the following factors of extenuation
(a) a
constructive intent; and
(b) extreme
emotional disturbance.
There
is very little else that can be said for the applicant in regard to
sentence.
For
a superior court to interfere with the sentence, the sentence has to
be so manifestly excessive as to cause a sense of shock.
Alternatively, if the court misdirected itself, then a superior court
is at large on the question of sentence.
On
the facts of this case, even if a superior court were to conclude
that there was a misdirection, there is very little prospect
of it
reducing the sentence imposed. If anything, the court a
quo in this case erred
on the side of leniency.
Gonese
& Ndlovu,
applicant's legal practitioners