DISTRIBUTABLE
(135)
Judgment No. SC. 149/04
Crim.
Appeal No. 121/04
MORGEN
NCUBE v THE STATE
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, MALABA JA & ZIYAMBI JA
BULAWAYO,
NOVEMBER 29, 2004 & SEPTEMBER 22, 2005
L
Nkomo, for the appellant
P
A Mpofu, for the respondent
MALABA
JA: On 18 May 2000 the appellant was convicted by the High
Court of murder with actual intent to kill. No extenuating
circumstances having been found, the sentence of death was imposed on
him.
In
the appeal against both conviction and sentence, State counsel
conceded that the court a quo misdirected itself when it
found on the evidence that the appellants state of mind at the
time he killed the deceased was an actual
intent to kill as opposed
to a constructive intent to kill. He also conceded that there were
extenuating circumstances, making
the decision by the court a quo
to sentence the appellant to death a misdirection.
The
facts of the case are these. The appellant and Ivene Mlalazi
(Ivene) were employed at Cummings Farm in Esigodini
as
security guards. Ivene was also responsible for buying gold on
behalf of his employer from gold panners operating on the farm.
The
deceased was one such gold panner who occasionally sold his gold at
Cummings Farm.
On
18 March 1999 the deceased approached the appellant and Ivene at
their office intending to sell what he believed was gold.
He had in
his possession two samples of ore that were tested. One sample was
found not to contain gold. The appellant immediately
accused the
deceased of deliberately attempting to defraud them of their
employers money by misrepresenting the ore as gold.
It
appears from the evidence that some time before this incident the
appellant had been assaulted by a group of gold panners on
the farm.
Although the deceased had been present at the place where the
appellant was assaulted, he had not taken part in the assault.
Whilst
accusing him of attempting to defraud them, the appellant handcuffed
the deceased and stripped him of his trousers before
leg-ironing him.
He attempted to strike the deceased with a knobkerrie but Ivene
intervened and took the weapon from him. The
appellant picked up a
brick but was disarmed by Ivene before he could throw it at the
deceased. Ivene also restrained the appellant
from getting hold of
a shotgun to shoot the deceased. Undeterred the appellant went out
of the office, only to return armed with
a sjambok which he then used
to strike the deceased several times on the body and head over a long
period of time until the latter
was rendered physically weak. The
sjambok used was 71 cm and weighed 180 grams.
As
he assaulted the deceased the appellant announced that he was taking
revenge for the assault perpetrated on him by the gold panners,
accusing the deceased of having taken part in the assault. He also
uttered words to the effect that if he did not kill the deceased
he
would leave him sexually impotent. As he made those pronouncements,
the appellant directed blows at the deceaseds private
parts.
The
deceased complained of feeling dizzy. He was no longer able to
stand on his own. The appellant and Ivene put him in a storeroom
and left him there. He died that night of a scalp haematoma. When
they saw the deceaseds dead body the following morning,
the
appellant and Ivene conveyed it in a wheelbarrow to the banks of
Umzingwane River where they buried it in a burrow. The
body of
the deceased was exhumed in a decomposed state on 22 March 1999
on indications made by the appellant after his arrest.
The
court a quo held on these facts that the appellant had an
actual intent to kill the deceased.
It appears from the facts that an
actual intent to kill was not the only inference that could
reasonably be drawn from all the circumstances.
The learned judge
inferred the fact of actual intent to kill the deceased from the
evidence that the appellant tried to strike
the deceased with a
knobkerrie and a brick, and wanted to shoot him with a shotgun before
he was disarmed by Ivene on each occasion.
Whilst such actions were
evidence of an intention to assault the deceased, they provided no
basis for an inference of an actual
intent to kill the deceased.
The
deceased was still alive at the time the assault on him ceased. The
evidence did not suggest that the appellant stopped assaulting
the
deceased because he realised that death was an inevitable and
imminent consequence of his actions. Leaving the deceased alive
is
not itself evidence, of course, that the appellant did not have an
actual intent to kill the deceased. It must be considered
in the
light of all the other circumstances of the case in the determination
of the fact of his state of mind. The evidence of
the utterance
that if he did not kill the deceased he would render him sexually
impotent and that they had decided to have him charged
with attempted
fraud the following day militated against a finding of an actual
intent to kill the deceased.
A
person may, of course, still be guilty of murder with actual intent
to kill even if death did not result immediately from his
assault as
long as the facts show beyond reasonable doubt that his unwavering
intention was to bring about the deceaseds death.
Where, as
here, the evidence proved that at the time he assaulted the deceased
the accused entertained the possibility of leaving
him alive, death
is a possibility in his mind but not the only desired object.
The
statement by the appellant that if he did not kill the deceased he
would render him sexually impotent clearly showed that the
possibility of the death of the deceased resulting from the assault
did occupy the appellants mind. In my view, State counsel
properly conceded the fact that a consideration of all the
circumstances of the case supported a finding that the appellant was
guilty
of murder with constructive intent to kill.
The
appeal against conviction succeeds. The court a quos
decision is altered to one of guilty of murder with constructive
intent to kill the deceased.
A
finding of constructive intent to kill may, in addition to other
factors, constitute an extenuating circumstance. What seems
to have
provoked anger in the appellant was the belief that the deceased had
deliberately attempted to sell what was not gold to
them, thereby
undermining their authority as security guards on the farm. The
appellant nonetheless committed a serious offence
deserving of a
severe punishment. The assault on the deceased was vicious and
prolonged, leading to unnecessary loss of life.
The
sentence of death imposed by the court a quo is set aside
and substituted with the following
The
accused is sentenced to fifteen years imprisonment with labour.
CHIDYAUSIKU
CJ: I agree.
ZIYAMBI
JA: I agree.
Pro
deo