Court name
Supreme Court of Zimbabwe
Case number
SC 76 of 2004
Crim. Appeal 223 of 2003

S v Mudzana (23/03) (SC 76 of 2004, Crim. Appeal 223 of 2003) [2004] ZWSC 76 (22 September 2004);

Law report citations
Media neutral citation
[2004] ZWSC 76













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