Court name
Supreme Court of Zimbabwe
Case number
SC 19 of 2002
Civil Appeal 215 of 2001

S v Mugwanda (215/2001) (SC 19 of 2002, Civil Appeal 215 of 2001) [2002] ZWSC 19 (05 June 2002);

Law report citations
Media neutral citation
[2002] ZWSC 19




REPORTABLE
(35)














Judgment
No S.C. 19\2002


Civil
Appeal No 215\2001

















ROBERT
MUGWANDA v THE STATE

















SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, EBRAHIM JA & ZIYAMBI JA


HARARE
FEBRUARY 26 & JUNE 6, 2002








L.
Uriri
,
for the appellant





M.
Gurure
,
for the respondent








CHIDYAUSIKU
CJ: The appellant in this case together with his two sons Gilbert
Mugwanda and Casper Rice (hereinafter referred
to as Gilbert and
Casper respectively), were charged with the murder of one Simba
Muringanzara. All the accused pleaded not guilty
but were found
guilty. The appellant and Gilbert were found guilty of murder with
actual intent while Casper was found guilty of
murder with
constructive intent. The court found that extenuating circumstances
existed in respect of Gilbert and Casper. The
court sentenced each
of them to twelve years' imprisonment with labour. The sons have
not appealed against the conviction and the
sentence imposed on them.
The court found no extenuating circumstances in respect of the
appellant and sentenced him to death.
He now appeals against both
conviction and sentence.






The State case was as follows:
On 26 December 1997 the deceased Simba Muringanzara and the appellant
were at Kahobo Business Centre
in Gokwe. Also present at the
Business Centre were Gilbert and Casper as well as some relatives and
friends of the deceased who
gave evidence for the State.





At
some stage during the day Gilbert and Casper confronted the deceased
and Kuwirirana accusing them of having taken $50 from them.
Casper
kicked the deceased whilst making the above accusation. After this
incident the appellant and his sons went and sat under
a tree.





Later
in the day, when it was about to get dark the deceased and his
companions left the Business Centre to go home. As they were
leaving, the appellant and his sons followed them. When the
appellant and his sons caught up with the deceased and his companion,
the appellant shouted that they should be beaten up.





After
the appellant’s shout, Gilbert and Casper ran forward and started
assaulting Kuwirirana, a brother of the deceased. Casper
struck
Kuwirirana with a fist. Gilbert then stabbed Kuwirirana with a
knife on the back.





The
deceased, who had been walking ahead noticed that his brother
Kuwirirana was under attack and had fallen down, and returned
in
order to rescue him. When the deceased got to Kuwirirana, the
appellant who had remained behind arrived at the scene and stabbed
the deceased with a knife on the chest below the right breast.





The
deceased started running away and the appellant and his sons chased
after him. The deceased turned to look back and the appellant
struck him with an axe above the right eye. The deceased ran away
and the appellant declared that the fight was over and he walked
back
to the Business Centre with his sons.





The
deceased was found dead the following morning. The post mortem
report showed that death was caused by haemorragic shock and
heamothorax due to a chest stab wound.









The defence
case is essentially the same as the State case. The only difference
is that the appellant denies stabbing the deceased.
He suggests it
was Gilbert who stabbed the deceased. Gilbert himself is evasive
about whether he is the one who stabbed the deceased.
The court
a
quo

accepted the evidence of the State witness that it was the appellant
who inflicted the fatal stab wound. That conclusion cannot
be
faulted. The court
a
quo

found that the State witnesses were better witnesses and accepted
their evidence in preference to that of the accused. This Court,
as
an appeal court will not readily interfere with the finding of a
trial court on issues of credibility. In the result I am satisfied
that the evidence establishes the following facts:






  1. that
    the appellant and his sons followed the deceased and his companion
    and engaged them in a fight as described by the State witnesses;








  1. that
    it was the appellant who fatally stabbed the deceased;







  1. that
    the deceased sustained the injuries set out in the post mortem
    report following the attack by the appellant and his sons.






The
injuries sustained by the deceased are set out in the post mortem
report. It reads in part as follows:-






“INTERNAL EXAMINATION:





There
is a 6 mm stab wound in the left mid elavisular line of the fifth
intercostal space. The stab wound traverses the intercostal
muscles
into the percardium. There is an associated haemothorax and
haemopericardium of about 2000 mls.





…







CAUSE
OF DEATH
: HAEMORRHAGIC
SHOCK






File
(2) Haemothorax


Police
(1) Chest Stab


IJ/cn MURDER”











The State
witnesses alleged that the appellant struck the deceased with an axe
on the face. This evidence is not corroborated
by the post mortem
report. The post mortem report does not reveal any injury on the
deceased, that is consistent with the deceased
having been struck by
an axe. The doctor was not called to explain this so the issue
remains unresolved. The probabilities are
that the injury caused by
the axe was insignificant and did not warrant mentioning. There is
no doubt that if such injury, assuming
it was there, had in any way
contributed to the death of the deceased the doctor would have
mentioned it.






On these
facts the court
a
quo

convicted the appellant and Gilbert of murder with actual intent or
dolus
directus
.
The learned judge, in his reasons for judgment, had this to say on
this issue:-






“Having regard to all the
evidence that I have dealt with, our finding is that the three of
them were ready, armed to attack this group.
It is clear also and
we accept the evidence of the witnesses that earlier in the day,
accused three had kicked the deceased in
the Shop, and accused one
had threatened Kuwirirana with the axe. This suggests that they
were ready to fight, but on realizing
that they could not do it at
the Shops, that explains why they spent the rest of that afternoon
sitting under a tree and waiting.
And when they saw them leave the
Business Centre, they then followed and attacked.






Accused one
and two were armed with knives. They then attacked with the knives.
Knives are dangerous weapons. Stabbing into
one’s body with a
knife one cannot say whether there could be limits to the extent of
the injury or not.
When
you stab on the chest in particular, you cannot say that you did not
intend to kill when you know what vital organs are inside
that part
of body.






Accused
one delivered a blow into exactly that portion of the deceased’s
body. He stabbed him on the chest below the right breast.
And
having done that much, he still chopped him with the axe Exhibit 9
above the right eye. Accused two armed similarly with
a knife which
is exactly the same as that of his father, except for the colour,
attacked Kuwirirana and stabbed him on the back.





It
is not clear what satisfaction accused one had when he decided that
the fight was over and asked his sons to stop so that they
could go.
It would seem, he was then aware that he had caused serious injuries
on the deceased.” (underlining is mine)









The
reasoning of the learned judge leading to the conclusion that the
appellant and Gilbert had actual intent is not easy to follow.
In
this case there is no direct evidence on the
mens
rea

of the appellant. The appellant’s avowed intention was not to
kill the deceased but to assault him. It follows, therefore,
that
the
mens
rea

of the appellant has to be inferred from the circumstances of the
case. It is not an easy task to determine an accused’s
mens
rea

in a case such as this one where a single stab wound inflicted to a
vital part of the body results in death. It would appear from
the
above quoted remarks of the learned trial judge that because death
ensued the appellant must have positively intended to bring
about
such a result. This approach is erroneous. The correct approach,
in my view, is that set out
S
v Sigwahla

1967 (4) SA 556 (A). The facts in
Sigwahla’s
case,
supra,
bear a very striking resemblance to the facts of this case. In
Sigwahla’s
case,
supra,
the facts were that one Simon, the main State witness, the deceased
and the appellant, all employees of the same construction company
met
at a nearby shopping centre where they bought and ate chips on pay
day. When it was almost dark the deceased and his companion
left.
Simon followed them shortly thereafter. The deceased, his companion
and Simon were each pushing a bicycle. This was on
a foot path
across open veld. Someone grabbed Simon’s bicycle. He turned
and saw four men including the appellant, who had
been at the
shopping centre. The appellant grasped Simon’s bicycle and
threatened him with a long knife. Simon stood still.
One of the
men with the appellant took the bicycle. The appellant robbed him
of R8 which was in his pocket and also of a coat.
At that point the
deceased, who was ahead, turned back and approached the scene. The
four robbers went towards him with the appellant
in the lead. When
they reached the deceased, who appeared to want to pass by, the
appellant sprang forward and, with an upraised
arm, struck the
deceased on the left front of his chest. The deceased jumped and
fell. Simon fled but came back again and found
that the deceased
was lying there dead.





According
to the medical report on the deceased the cause of death was a stab
wound of the heart. The medical report described
the wound as
follows:-






“There
is a ½ incised wound over the 2
nd
interspace 1” to the left of the sternal midline on the anterior
chest wall. The track of the wound passes downwards medically
and
backwards into the chest cavity through the 2
nd
interspace, enters the pericardial sac incises the right ventricle of
the heart, and terminates, Total depth is about 4”.”










HOLMES JA at
pp 569G-571A, on these facts considered the issue of the appellant’s
mens
rea

and concluded as follows:-






“The
next question is whether the State proved beyond reasonable doubt
that the appellant intended to kill the deceased. At this
stage I
use the word intention in the sense of
dolus
directus
,
i.e. where the will is directed to compassing the death of the
deceased. It is sometimes said that a person is presumed to intend
the reasonable and probable consequences of his act. As to that, I
had occasion to point out in
R
v Sacco
,
1958 (2) SA 349 (N) at pp 351H to 353C, that it is simpler to speak
of inferences of fact than of presumptions; that the practical
approach is to eschew piecemeal processes of reasoning, and to look
at all the facts at the end of the case, and from that totality
to
ascertain whether the inference in question can be drawn; and that
inferences do not affect the incidence of the
onus
or proof - they assist its discharge.






Stabbing
cases are usually a matter of degree, and intention must not be
inferred by hindsight from the fact of death. The part
of the body
injured is relevant, but in the present case the deceased was walking
and the appellant jumped forward as he struck.
Hence it cannot be
inferred beyond reasonable doubt that he actually aimed at the heart
as distinct from the general area of the
upper body. Accordingly,
the fact that the thrust did land with fatal consequences above the
heart does not, in all the circumstances,
necessarily give rise to
the inevitably inference that the appellant intended to kill, in the
sense of directing his will towards
the bringing about of the death
of the deceased.





That,
however, does not conclude the enquiry because the following
propositions are well settled in this country:







  1. The
    expression ‘intention to kill’ does not, in law, necessarily
    require that the accused should have applied his will 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
    .









  1. The fact that
    objectively the accused ought reasonably have foreseen such
    possibility is not sufficient. The distinction must
    be observed
    between what actually went on in the mind of the accused and what
    would have gone on in the mind of a
    bonus
    paterfamilias

    in the position of the accused. In other words, the distinction
    between subjective foresight and objective foreseeability must
    not
    become blurred. The
    factum
    probandum

    is
    dolus,
    not
    culpa.
    These two different concepts never coincide.







  1. Subjective
    foresight, like any other factual issue, may be proved by inference.
    To constitute proof beyond reasonable doubt the
    inference must be
    the only one which can reasonably be drawn. It cannot be so drawn
    if there is a reasonable possibility that
    subjectively the accused
    did not foresee, even if he ought reasonably to have done so, and
    even if he probably did so.











See S
v Malinga and Others

1963 (1) SA 692 (AD) at p 694 G-H; and
S
v Nkombani and Another

1963 (4) SA 877 (AD) at pp 883A-C, 890B, 895F.







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 of
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.
It is true that he had consumed six bottles of ‘Kaffir beer’;
but this did not prevent him from knowing
what he was doing following
after Simon and robbing him of money and clothing, and in responding
to the deceased’s turning back
to see what was going on. (I shall
deal later with the question whether the consumption of liquor
reduces his moral culpability).
And there can be no question but
that the appellant was reckless whether or not death ensued from his
action. In the result the
State proved the required legal intention
to kill (
dolus
eventualis)
;
and the conviction was justified.”





I
respectfully find myself in agreement with the learned judge of
appeal’s approach set out above.






Professor G.
Feltoe, in his book,
The
Guide to Zimbabwean Criminal Law

discusses the distinction between positive or actual intent, and
constructive intent or legal intent in a manner that is very lucid
and instructive. The learned author characterises the distinction
as follows:-






“Actual
Intention







  1. Desires
    death. Death is aim and object.








or






  1. Death
    is not aim and object but in process of engaging in some activity
    foresees death as a substantially certain result of that
    activity
    and proceeds regardless as to whether this consequence ensues.








Legal Intention






Does
not mean to bring about death but foresees it as possibility whilst
engaged in some activity and proceeds with the activity regardless
as
to whether death ensues.







  1. subjective
    foresight








  1. as
    to possibility not probability







  1. recklessness.”














On the basis
of the above authorities it follows that for a trial court to return
a verdict of
murder
with actual intent

it must be satisfied beyond reasonable doubt that:-







  1. either
    the accused desired to bring about the death of his victim and
    succeeded in completing his purpose; or









  1. while
    pursuing another objective foresees the death of his victim as a
    substantially
    certain

    result of that activity and proceeds regardless.







On the other
hand, a verdict of murder with constructive intent requires the
foreseeability to be
possible
(as opposed to being substantially certain, making this a question of
degree more than anything else). In the case of culpable
homicide
the test is - he ought to, as a reasonable man, have foreseen the
death of the deceased.






In the
present case the following salient facts are relevant to the
determination of the appellant’s
mens
rea
:






  1. It
    is common cause that the avowed intention of the appellant was to
    assault the deceased and his companions. It follows therefore
    that
    the death of the deceased was not the desired objective. It
    occurred while the appellant was engaged in the desired activity
    of
    assaulting the deceased and his companion. The fight was over $50.
    There is nothing to suggest that the appellant desired
    to kill, as
    opposed to punishing, the deceased for the theft of $50.








(b) In pursuance of the
appellant’s activity, the assault of the deceased, one stab wound
was inflicted. The degree of force and
depth of the wound is
unknown. While the stab wound was certainly inflicted to a vital
part of the body there is no conclusive
evidence that it was
deliberately aimed at that part of the body or fatuously landed there
in the course of the assault on the deceased.



On these
facts, I am satisfied that it cannot be said that the only reasonable
inference to be drawn is that the appellant did foresee
the death of
the deceased as a
substantially
certain consequence

of his activity. These facts however, in my view, are sufficient to
establish beyond reasonable doubt that the appellant did foresee
the
possibility
of the death of the deceased as a consequence of the assault and
persisted with the assault regardless. On this basis the appellant
should have been found guilty of murder with constructive and not
positive intent. Accordingly the verdict of the court
a
quo

is altered to one of guilty of murder with constructive intent. To
that extent the appeal against conviction succeeds.





SENTENCE


The
appellant was sentenced on the basis of having been found guilty of
murder with actual intent. That verdict has been altered.
It
follows therefore that this Court is at large on the question of
sentence. The issue of the existence or otherwise of extenuating
circumstances has to be determined on the basis that the appellant is
guilty of murder with constructive intent.







It
is now accepted that constructive intent on its own or taken together
with other factors can constitute extenuation. There is
no evidence
that the appellant’s actions were influenced by drink. The
influence of alcohol, therefore, is not a factor in this
case. The
stab wound was inflicted in the course of an assault largely pursued
by the appellant and his sons over a petty issue,
namely the alleged
theft or robbery of $50. Given these facts, does the constructive
intent on its own in this case constitute
a circumstance of
extenuation justifying the imposition of a sentence other than a
death sentence? In my view it does. I hold
this view because the
foreseeability of the possibility of death in this case was rather
remote. If the foreseeability of death
was close I might have
concluded otherwise, see
S
v Sigwahla, supra
.





This
is a very serious case of murder deserving of a very serious
punishment. As I have already stated there was no provocation.
The
appellant was not under the influence of alcohol. In my view,
taking all the factors of this case into account, the appellant
should be sentenced to life imprisonment.





Section
25(1) and (2) of the Supreme Court Act [Chapter 7:13] confers on this
Court jurisdiction to rectify any irregularity in
the proceedings of
an inferior court that might come to its attention.





What
I have said in respect of the conviction of the appellant applies
with equal if not greater force to Gilbert and Casper.
Their role
in the assault of the deceased does not sustain the inference that
they foresaw the death of the deceased. There is
no evidence that
they were aware that their father was in possession of the knife used
to stab the deceased although they must have
seen the axe which may
or may not have been used in the assault. On the facts of this case
Casper and Gilbert ought to have foreseen
the possibility of death
and should both have been convicted of culpable homicide and not
murder with constructive intent. In their
case the verdict of
murder is hereby set aside and substituted with culpable homicide.





They
both were sentenced on the basis of a conviction for murder which has
been set aside. Consequently that sentence cannot stand
and is
hereby set aside. In my view, taking into account all the
aggravating and mitigating circumstances of this case the justice
of
this case can be met by the setting aside of twelve years'
imprisonment with labour imposed on each of them and substituting a
sentence of seven years' imprisonment with labour.





In
the result the appeal succeeds to the following extent. The
appellant’s conviction of murder with actual intent is altered
to
one of murder with constructive intent and the sentence of death is
set aside and substituted with life imprisonment.





The
convictions of Gilbert and Casper are hereby altered from murder to
culpable homicide. The sentence of twelve years' imprisonment
with
labour is reduced to seven years' imprisonment with labour in respect
of both.
























EBRAHIM
JA: I agree




















ZIYAMBI
JA: I agree

















Pro
Deo