DISTRIBUTABLE (60)

Judgment No. SC 76/04

Crim. Appeal No. 223/03

TICHAONA MUDZANA v THE STATE

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA JA & MALABA JA

HARARE, MARCH 2 & SEPTEMBER 23, 2004

P C Mashingaidze, for the appellant

F Chimbaru, for the respondent

MALABA JA: The appellant was convicted of murder with an actual intent to kill. No extenuating circumstances having been found to exist, he was sentenced to death.

Mr Mashingaidze, who represented the appellant in this Court, whilst not challenging the validity of the conviction for murder, contended that on the evidence a verdict on the basis of a finding of a constructive intent to kill was appropriate. He also argued on the appeal against the death sentence that the court a quo should have found that extenuating circumstances existed and imposed a sentence of imprisonment.

Whilst conceding that a finding of extenuating circumstances should have been made, Mr Chimbaru, who represented the State, supported the verdict of murder with an actual intent to kill.

The facts are not in dispute. On 24 December 2000 the appellant, who was aged twenty years, was drinking opaque beer at Muzondiwa Business Centre (“the business centre”) in Zvishavane. He was in the company of Langton Dube, Stephen Dube (“Stephen”) and Samuel Nyadzo. The deceased, Mthulisi Funhiro Sibanda, was also at the business centre, drinking beer in the company of Bonani (“Bonani”) Moyo, Cuthbert (“Cuthbert”) Moyo and Wilbert Moyo.

At about 7 pm the appellant and his companions left the business centre to go home. They had by then consumed eighteen litres of beer amongst the four of them. The appellant was now intoxicated. Before leaving the business centre he bought one more beer container, commonly known as a “scud”, which he gave to Stephen to carry.

Shortly after the departure of the appellant and his group, the deceased and his companions also left the business centre, using the same footpath which the first group had used. The deceased and his companions caught up with the appellant’s group.

On coming up to the appellant and his companions, Cuthbert asked Stephen to give him the beer he was carrying to drink. Stephen refused, saying the beer belonged to the appellant. Undeterred, Cuthbert snatched the beer container from Stephen and drank from it.

Cuthbert’s conduct did not go down well with the appellant, who approached him in anger, asking why he had taken his beer. Cuthbert ran away as Bonani approached the appellant to tell him to calm down. Without warning, the appellant threw a blow at the upper front part of Bonani’s body with his right hand. Bonani raised his left arm to block the blow and was cut on the left lower arm. As it was at night, Bonani had not seen that the appellant had a knife in his right hand. He only realised that the appellant was armed with a knife when he was cut on the arm. Bonani cried out that he had been stabbed by the appellant with a knife as he fell to the ground about ten metres from where the appellant had remained standing.

On hearing the cry by Bonani to the effect that he had been stabbed, the deceased, who had been walking ahead of his companions, turned back and approached the appellant. Without saying anything, the appellant stabbed the deceased on the front left side of the chest. The deceased fell down and died instantly.

The post-mortem report, put in evidence by consent at the trial of the appellant, showed that the deceased died of haemorrhagic shock from the stab wound which pierced the left lung. The wound was 6 cm deep, located 7 cm from the left clavicle bone, 6 cm from the midline and 8 cm from the left nipple. The doctor who conducted the post-mortem examination of the deceased’s body was of the opinion that a severe degree of force was used to inflict the stab wound.

Although the State had conceded in the court a quo that the facts proved had established that the appellant had a constructive intent, as opposed to an actual intent, to kill, the learned judge was of the view that the evidence of the depth and location of the stab wound on a vulnerable part of the body, together with the considerable force used to inflict it, established an actual intent to kill on the part of the appellant at the time he stabbed the deceased. He said at p 93 of the record:

“I find that the use of a lethal weapon of this nature, directed at a vulnerable part of the body like the chest where the heart is situated, with such force, without provocation, this can only lead to the inference that the accused intended to kill his victim and by so killing he intended to achieve his purpose.

The State submitted that the accused should be found guilty of murder with constructive intent. I do not agree with the State in view of the circumstances surrounding the commission of this offence, and I find the accused guilty of murder with actual intent.”

In S v Sigwahla 1967 (4) SA 566 HOLMES JA cautioned at 570 B-C that:

“The expression ‘intention to kill’ does not, in law, necessarily require that the accused should have applied his mind to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such result. This form of intention is known as dolus eventualis, as distinct from dolus directus.”

There was no question that the appellant had an “intention to kill”. The question for determination by the court a quo was which of the two forms of the “intention to kill” the evidence had proved beyond reasonable doubt to have occupied the appellant’s mind.

Eight years after the decision in Sigwahla’s case supra HOLMES  JA, in S v Sabben 1975 (4) SA 303 at 304 B-F, said:

“The sudden flash of a knife is not always easy to classify in terms of the intention of the wielder. Did he actually intend to compass the death of the deceased (murder with dolus directus); or was it a case of foresight of the possibility of resultant death, and persistence regardless whether death ensued or not (murder with dolus eventualis). And through it all there is oft the interplay of elements such as emotional imbalance, the prickle of provocation, and disruptive insobriety flowing from the human frailty of over-responding to the smile of liquor’s promises. In seeking the right answer, in every case one has to think one’s way perceptively through the particular facts, with an approach more robust than exquisite.”

One has to look at all the circumstances to decide whether they proved as a fact, for example, that at the time he stabbed the deceased with the knife the appellant had in his mind the deceased’s death and directed his actions at bringing it about. Can it be said on all the facts of the case that the appellant desired the deceased’s death? It is, of course, not enough in seeking to answer the question to infer actual intent to kill from a few of the circumstances surrounding the stabbing.

The learned judge in the court a quo fell into the error of inferring actual intent to kill on the part of the appellant as the state of his mind at the time he stabbed the deceased from the consideration of the depth of the stab wound, the location of the wound on a vulnerable part of the body and the severity of the force used to inflict it.

The stabbing took place at night. There was no evidence that the appellant had a full view of the upper part of the deceased’s body and deliberately stabbed him there. There had been no quarrel between the appellant and the deceased. The deceased had in fact continued walking when Cuthbert provoked the appellant by snatching his beer from Stephen and drinking it. There would have been no reason for the appellant to desire the deceased’s death.

I do not agree with the learned trial judge that the appellant was not under any provocation. He was indeed not provoked directly by the deceased, but the effect of the provocative conduct of Cuthbert, who was in the deceased’s company, was one of the circumstances in which the appellant stabbed the deceased. There was no degree of premeditation before the single blow was struck.

Looking at all the facts established at the end of the case, and eschewing the piecemeal process of reasoning adopted by the learned trial judge, the inference of the fact that the appellant had directed his will toward the bringing about of the death of the deceased cannot be drawn.

In Sigwahla’s case supra, which was also a stabbing case, HOLMES  JA at 570 G-H said:

“In the present case the salient facts are that the appellant was armed with a long knife which he held in his hand; that he advanced upon the approaching deceased; that as he came up to him he jumped forward and raised his arm and stabbed him in the left front of the chest; that the force of the blow was sufficient to cause penetration for four inches and to injure his heart; and that there is nothing in the case to suggest subjective ignorance or stupidity or unawareness on the part of the appellant in regard to the danger of a knife thrust in the upper part of the body. In my opinion the only reasonable inference from those facts is that the appellant did subjectively appreciate the possibility of such a stab being fatal. In other words I hold that there exists no reasonable possibility that it never occurred to him that his action might have fatal consequences, as he was advancing on the deceased with the knife in his hand and as he was raising his arm to strike and as he was aiming a firm thrust in the general direction of the upper part of his body.”

On all the facts, it is clear that the court a quo misdirected itself in holding that the appellant was guilty of murder with an actual intent to kill (dolus directus) as opposed to a constructive intent to kill (dolus eventualis).

Having held that the court a quo misdirected itself on the facts as to the requisite nature of the intention which accompanied the killing of the deceased by the appellant, this Court is at large on the question of the existence of extenuating circumstances.

The fact that an accused had a constructive intent to kill the deceased is a factor directly related to the commission of the crime and as such can on its own or together with other factors constitute extenuating circumstances if it has the effect of reducing the moral blameworthiness of his conduct. See R v Mharadzo 1966 (2) SA 702 (R AD).

In addition to the factor of constructive intent having the effect of reducing the appellant’s moral blameworthiness, there is the factor of intoxication. There was evidence that the appellant was drunk and that his violent reaction to the provocative behaviour of Cuthbert in snatching his beer and drinking it, and attacking the deceased who had not quarrelled with him, could only be explained by reference to the influence of the alcohol he had consumed. He stabbed the deceased at a time when his normal inhibitions had been clouded by his consumption of alcohol. There was clear evidence from State witnesses and the appellant himself that the alcohol he had consumed had affected his behaviour. In addition, the appellant was a young man aged twenty.

The cumulative effect of the fact that the appellant was young, intoxicated and had a constructive intent at the time he killed the deceased is that the moral blameworthiness of his conduct was reduced. These factors tilt the balance in favour of a finding of extenuating circumstances.

An innocent person was nonetheless killed. The sanctity of life must be emphasised in the assessment of sentence. Courts must also show disapproval of the use of knives, whether as instruments of attack or defence.

In the result, I would substitute the finding of murder with an actual intent to kill with murder with a constructive intent to kill and set aside the death sentence and substitute in its place a sentence of fifteen years’ imprisonment with labour. To that extent the appeal succeeds.

CHIDYAUSIKU  CJ: I agree.

CHEDA  JA: I agree.

Pro deo