Judgment No. SC 62/2013

Criminal Appeal No. SC 244/13

EZRA     MANENJI     v     THE     STATE

SUPREME COURT OF ZIMBABWE

MALABA DCJ, GOWORA JA & HLATSHWAYO JA

BULAWAYO, NOVEMBER 26 & 28, 2013

N Mazibuko, for the appellant

Ms A Munyeriwa, for the respondent

                        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 - 4^th 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