Court name
Supreme Court of Zimbabwe
Case number
SC 146 of 2004
Crim. Appeal 260 of 2004

S v Siluli (60/04) (SC 146 of 2004, Crim. Appeal 260 of 2004) [2005] ZWSC 146 (05 September 2005);

Law report citations
Media neutral citation
[2005] ZWSC 146


REPORTABLE (133)

















Judgment No
SC 146/04


Crim. Appeal No 260/04

















WITNESS
SILULI v THE STATE











SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ,
MALABA JA & GWAUNZA JA


BULAWAYO NOVEMBER 30
2004 & SEPTEMBER 6, 2005








A. Masawi, for
the appellant





A.V. Mabande,
for the respondent












CHIDYAUSIKU CJ: The appellant in this case was charged with
murder. He pleaded not guilty but was found guilty. He was
convicted of murder with constructive intent and sentenced to death,
the trial court having found that there were no extenuating
circumstances. The appellant appeals to this Court against both
conviction and sentence.





There is no challenge
to the facts found by the court a quo which are briefly as
follows. The deceased and the appellant were relatives and they
both were lovers of one Nakai Zhou (“hereinafter
referred to as
Nakai”). Nakai was also related to both the appellant and the
deceased through marriage. The deceased was her
husband’s nephew
while the appellant was her husband’s elder brother’s son. She
had sexual relations with both men.







Nakai was present when the appellant fatally assaulted the deceased
and her account of what transpired was accepted as correct
by the
court a quo. Her account of what occurred is briefly as
follows.





On 4 September 2001
at around 8 o’clock the appellant visited Nakai at her huts. He
asked her to assist him in the brewing of
beer at his homestead.
She replied that she could not immediately assist him as she was
about to retire to bed because she was
exhausted. She also said
that the appellant requested to have sexual intercourse with her
which request she turned down because
she was exhausted. Nakai
asked the appellant to stay for a while to allow his aunt a chance to
finish bathing. She then left
the appellant seated by the kitchen
hut and she retired to bed in her bedroom hut. She bade him
farewell and assumed that he would
leave shortly.





Shortly thereafter
the deceased arrived and at that time Nakai had retired to bed in her
bedroom hut. Upon the deceased knocking
on her door she went out
and sat with him on a flat rock behind her bedroom hut. The
deceased began fondling her breasts and buttocks.
While this was
happening she looked in the direction of the kitchen and saw a person
moving towards her kitchen hut. She invited
the deceased to go and
find out what was happening. When she saw the figure moving in the
direction of her kitchen hut she called
“Who is it?” but no one
responded. She proceeded with the deceased to the kitchen hut to
check as to what or who had made the
movements. The deceased was
walking in front of her and got to the kitchen hut and opened the
door. Upon opening the door the
deceased struck a match and
exclaimed “Ah, but it is you Uncle Takunda”.






She saw the deceased fall down immediately after uttering the above
words and the appellant came out of the kitchen hut running.
She
gave chase and caught up with the appellant and invited him to return
to the kitchen hut. She then nursed the deceased whom
she found
conscious and sitting on a rock by washing and rinsing his head with
water in the presence of the appellant. She heard
the deceased
remark “You have injured me”. The deceased rose from his seat
and proceeded to his home. Likewise the appellant
left.






It is common cause
that the appellant struck the deceased on the head with a pestle that
was produced in court as Exhibit 5 and
that the pestle belonged to
Nakai.





The condition of the
deceased deteriorated and he passed away on 15 September 2001 some
ten days after the assault. It is common
cause that the deceased
died as a result of the assault by the appellant. The appellant was
thereafter charged with murder and
arraigned accordingly.





According to the
medical report the deceased died of subarachnoid haemorrhage, skull
fracture and head injury. There is no indication
in the medical
report or on any other evidence the degree of force used by the
appellant to inflict the injuries sustained by the
deceased.





The appellant, at his
trial, raised the defence of self-defence and provocation. Both
defences were rejected by the court a quo. The appellant was
found to be an unreliable witness as he gave different, and at times,
conflicting accounts of the altercation
he said he had with the
deceased. The court found Nakai to be a reliable witness. This
assessment of the two witnesses by the
court cannot be faulted.
Indeed it has not been challenged by the appellant.



As I have said Ms
Masawi, for the appellant, did not seek to challenge the trial
court’s conclusion that Nakai was a credible witness and that her
account
of the events correctly reflect what transpired. She,
however, submitted as against conviction that on the evidence
accepted by
the court a quo the proper verdict should have
been one of culpable homicide as opposed to murder with constructive
intent. In particular, in paragraph
13 and 14 of her Heads of
Argument she made the following submission:-






“13. Looking at the totality of the State evidence it is clear that
in fact the State did not prove beyond reasonable doubt that
the
appellant deliberately committed an act which he appreciated might
result in the death of the deceased and acted reckless as
to whether
such death resulted or not. The court found so but there was no
basis for such finding on the evidence.





14. There was no
justification in finding that the State has proved constructive
intent beyond reasonable doubt. The most that can
be said having
regard to the circumstances discussed above and having regard to the
weapon used and that only one blow struck is
that objectively the
appellant ought to have foreseen the reasonable possibility of the
resultant death.





In the circumstances,
the verdict should be one of guilty of culpable homicide as the
conviction of murder cannot stand on the facts
before this court.
The mental element which accompanies the killing is a vital issue and
this has to be discerned from evidence
of the circumstances of the
killing.”









In convicting the appellant of murder with constructive intent the
learned judge in the court a quo reasoned as follows:-






“The State has in our view proved beyond reasonable doubt that the
accused unlawfully attacked the deceased with exhibit 5. In
perpetrating this attack it is clear that although he did not desire
death he foresaw the possibility of causing death to the deceased
by
virtue of the fact that he used this pestle on the head while
deceased was in a crouching position. Despite this possibility
he
continued to assault the deceased in the manner he did thus resulting
in his death. The accused is accordingly found guilty
of murder
with constructive intent.”









In the course of the trial and in response to questions by the
court the appellant gave the following evidence:-






“MR JUSTICE CHEDA






Q. Can you confirm that
you were not drunk this evening?





A. I was not drunk.





Q. You were not angry
with anybody?





A. No, I was not angry.





Q. You appreciated what
you were doing, that is …





A. I remember
everything, I knew …





Q. Sorry I remember?





Q. I remember
everything. I knew what I was doing.





Q. Looking at exhibit 5
it is a fairly heavy log, you agree?





A. Yes.





Q. You appreciate that
when you were holding it standing and hitting someone who was
crouching on the ground was likely to injure
him? Do you realise
that?





A. I admit.





Q. You are familiar
with time. Is it not?





A. I can estimate that
it is such a time.





Q. From the time when
Nakai told you to wait because Mai Nashe was taking a bath outside
and at the time when you heard the voices
outside how many minutes do
you think lapsed?





A. About fifteen to
twenty minutes thereabout.”









The above evidence establishes that the appellant was fully
appreciative of the nature of his conduct, namely, that he could
cause
the deceased serious harm. Were it not for this admission I
would have been persuaded by Ms Masawi’s submission. Only
one blow was struck with a pestle. The degree of force used has not
been established. The deceased died some
ten days after the
assault. On these facts alone I entertain some doubt that the
appellant must have foreseen the possibility of
death ensuing. The
admission by the appellant that he was fully aware of the risk
involved in the assault removes that doubt.





I will, therefore,
dismiss the appeal against conviction on that basis.





Turning to the
question of sentence. The court a quo found no extenuating
circumstances and imposed the death sentence. In its finding that
there were no extenuating circumstances
the court a quo
reasoned as follows:-






“We have taken into account all the submissions made by both State
and Defence counsels. Mr Nyamukomba has urged the Court to
find
that the fact that accused cooperated with the police should be
regarded as extenuation. The State counsel however concedes
but
however extends that argument further that it should not only and
there but one must also take into account the state of the
mind of
the accused during the commission of the crime.





The Court agrees with
that because almost all accused persons that are caught red handed as
it were they cooperate with the police
because they have no
alternative. Most importantly I am of the view that the fact that
one has cooperated with the police should
not on its own be regarded
as enough to stand as extenuating. The case should be viewed in
totality with all other relevant factors
namely the accused’s state
of mind at the time of the commission of the murder and also whether
he was drunk, provoked or was acting
in some legally acceptable
defence. And above all whether there was any danger to his life or
limb at the time this was committed.





The Court therefore
finds that there are no extenuating circumstances in this case.”









The court a quo found the appellant guilty of murder with
constructive intent. It is clear from the above remarks of the
learned trial judge that
in considering extenuation the court a
quo
attached very little weight to constructive intent as a
factor of extenuation. In this regard the court merely remarked
that it
had considered the submissions of counsel and counsel had
submitted that the constructive intent be considered as extenuation.

The court should have carefully weighed this factor against the
aggravating features of this case before arriving at its conclusion
on extenuation. The correct approach to extenuation when a court
has found the accused guilty of murder with constructive intent
was
set out by BEADLE CJ (as he then was) in R v Mharadzo 1966 ZLR
240 at 241G-I. The learned CHIEF JUSTICE had this to say:-






“Where, on the evidence it is possible to do so, I would, with
respect, suggest that it is desirable for trial courts to make a
positive finding on the precise state of mind of the accused, before
determining the question of whether or not extenuating circumstances
exist, because here this question of the actual state of mind of the
accused is, I think, a factor of considerable importance.
I do not
wish it to be inferred from this that, where the court finds that
only a constructive intent to kill is proved, that the
court must
necessarily find that this is a circumstance of extenuation, but I do
suggest that, where only a constructive intent to
kill is proved, the
court will examine the other features of the case very carefully
indeed before rejecting a plea that the offence
was committed in
extenuating circumstances.”










The trial court did make a specific finding on the question of
constructive intent. What the court failed to do was to weigh
this
factor carefully with other factors of the case before concluding
that extenuating circumstances did not exist and passing the
death
sentence.





The correct approach
for a trial court is aptly summarised in the headnote in Mharadzo’s
case, supra, which reads as follows:-






“That where, on a charge or murder, only a constructive intent to
kill is proved, the court should examine the other features of
the
case very carefully indeed before rejecting a plea that the offence
was committed in extenuating circumstances.”









Mharadzo’s
case, supra, was followed in The State v Jacob 1981 ZLR
1 wherein the court held:-






“There are two permissible approaches to the assessment of
extenuating circumstances in murder cases: the first is to make a
finding
that extenuating circumstances exist if there are any
mitigating features in the case, and then to decide whether,
notwithstanding
that finding, the aggravating features necessitate
the imposition of the death sentence; the second approach involves
balancing
at the outset the mitigating against the aggravating
features and, depending on the result, finding that extenuating
circumstances
exist or imposing the death sentence. Both approaches
involve a careful weighing up of the mitigating factors against the
aggravating
factors and the passing of the death sentence only if the
latter outweigh the former.





The finding of a
constructive intent to kill in a murder case will not necessarily
lead to an overall finding, once the weighing-up
process has been
completed, that there are extenuating circumstances justifying a
sentence other than death, but it is a factor which
must be put in
the credit side in the accused’s favour in that weighing-up
process.”









Similarly in S v
Sigwahla
1967 (4) SA 566 (AD) at 571E, HOLMES JA had this to
say:-



“There is a further factor. More than four years ago in R v
Mini
1963 (3) SA 188 (AD) at page 192A, I raised the question
whether, depending on the circumstances, the moral blameworthiness of
an
accused is not reduced if the murder is committed with legal
intention to kill known as dolus eventualis, as distinct from
intention where the will is directed to the brining about of death
(dolus directus. The suggestion, then novel, attracted
favourable comment in 1963 South African Law Journal, page 467
at page 468, and 1964 Tydskrif vir Hedendaagse Romeins-Hollandse
Reg,
page 71; and it was applied in S v Arnold, 1965 (2)
SA 215 (C) at pages 219C et seq; and was mentioned by this
Court in S v Manyathi, supra, at pages 438C et seq.
Furthermore, the Appellate Division of Rhodesia recently applied much
the same reasoning; see R v Mharadzo 1966 (2) SA 702 (R AD)
at pages 703C-D and 704A. Accordingly it now seems appropriate to
say:



(a) Trial Courts, in their conspectus of possible extenuating
circumstances, should not overlook the fact (if it be such) that it
is a case of dolus eventualis.


(b) While it cannot be
said that this factor must necessarily be an extenuating
circumstances, in many cases it may well be so either
alone or
together with other features, depending on the particular facts of
the case.”






The effect of the above authorities is that constructive intent on
its own, or together with other factors, can constitute extenuating
circumstances and that before arriving at a conclusion the court is
enjoined to carefully balance the mitigating features and aggravating
features. This the court did not do in the present case. The
trial court’s misdirection leaves this Court with two options.

Either to remit the matter for sentencing de novo or, for this
Court to pass sentence itself. The latter is the more common
practice; see Mharadzo’s case, supra.


The Court, in this
case, will follow the more common practice and assess the sentence
itself. The court a quo held that this was a gratuitous
murder devoid of any motive. I do not agree with this conclusion.
The evidence of the State witness,
Nakai, clearly establishes facts
from which the inescapable inference is that this was a crime of
passion. It is common cause that
Nakai was having an intimate
relationship with both the deceased and the appellant. Shortly
before the assault the deceased was
fondling Nakai’s breasts and
bottom most probably in preparation of being intimate. The
probabilities are that the appellant
saw this and must have been
piqued by it and felt jealous. A short while earlier the appellant
was denied similar favours by Nakai
who was his lover. This must
have exacerbated the appellant’s sense of grievance. While this
cannot, in any way, justify the
appellant’s assault on the deceased
it certainly provides a motive for the assault. This was a crime of
passion and not a motiveless
assault. The assault itself was not
particularly brutal. Only one blow was struck. There is no
evidence on the severity of
the force used to inflict the injuries
sustained by the deceased. One can only infer from the post-mortem
report’s description
of the injury and the fact that the deceased
died about ten days after the assault, that the degree of force used
in striking the
deceased with a pestle was moderate to severe.


On the other hand the
only aggravating feature is that the offence led to the death of the
deceased and violated the sanctity of
life. An innocent man was
killed for no good reason.


Given the above
factors I am satisfied that this is not a proper case for the
imposition of the death sentence.


The trial court
should have found that extenuating circumstances justifying the court
imposing a sentence other than a death sentence
existed in the form
of the constructive intent and the fact that only one blow was struck
when the appellant, in a fit of jealousy,
saw his lover about to be
intimate with another man.


In the circumstances
I would allow the appeal against the death sentence. Other than
this I am satisfied that the appellant committed
a very serious
offence that led to the loss of an innocent life. There is no doubt
that a lengthy period of imprisonment is called
for in this case.
In my view, the justice of this case can be met by sentencing the
appellant to a term of 13 years’ imprisonment
with labour.


The appeal against
conviction is dismissed but the appeal against sentence is allowed to
the extent that the sentence of death is
altered to 13 years’
imprisonment with labour.















MALABA JA: I agree.











GWAUNZA JA: I
agree.















Pro Deo