Court name
Supreme Court of Zimbabwe
Case number
SC 16 of 2007
Criminal Appeal 170 of 2005

S v Sithole (70/05) (SC 16 of 2007, Criminal Appeal 170 of 2005) [2007] ZWSC 16 (16 July 2007);

Law report citations
Media neutral citation
[2007] ZWSC 16







REPORTABLE ZLR (18)


Judgment No
SC 16/07


Criminal Appeal No.
170/05










LEVISON SITHOLE v THE STATE








SUPREME COURT OF
ZIMBABWE


SANDURA JA, CHEDA JA &
GARWE JA


HARARE, MAY 21, &
JULY 17, 2007








T
Nyakunike
, for the appellant


No appearance for the
respondent






GARWE JA: On 28
February 2001, the appellant appeared before the High Court at Mutare
charged with the crime of murder. He pleaded
not guilty but was
convicted of murder with actual intent and sentenced to death. He
now appeals against that sentence to this Court.





The facts of this
case are largely common cause or at least not seriously in dispute.
The appellant and the deceased were engaged
in an extra marital
relationship. The relationship had commenced sometime in 1998. On
10 January 1999 at about 20:00 hrs the appellant
and the deceased met
along a certain path. They walked together for a distance.
Thereafter the appellant took a machete from his
cycle and struck the
deceased with it five times on the head. The deceased collapsed and
died on the spot. According to the post-mortem
report, the cause of
death was severe hemorrhage.





The sentence imposed
by the court a quo is attacked on the basis that the trial
court misdirected itself in finding that no extenuating circumstances
existed.





In considering the
question of extenuation the court a quo had regard inter
alia
to the statement made by the appellant to the police. In
that statement the appellant told the police that he had been
intimate
with the deceased for a period of almost a year and had
spent a lot of money on her. In early 1999, the deceased started to
avoid
him and the appellant formed the impression that she was no
longer interested in him. On the day preceding the fateful day the
appellant
assaulted the deceased hoping that this would have a
positive effect on the relationship. That did not happen. On the
day in question
he looked for her and eventually found her. He then
took her along the main road on the pretext that he was going to give
her back
her property when in fact he wanted to kill her. Thereafter
he struck her with a machete about five times and she fell. In the
statement he stresses that the reason he became angry was that
although he had spent a lot of money on her the deceased had lost
interest in him.





The first ground of
appeal against the finding that no extenuating circumstances existed
is that no consideration was given to the
fact that the appellant and
the deceased were engaged in a relationship which had gone sour
because the deceased was now seeing other
men. No attempt was made
by the appellant’s legal practitioners to substantiate this
statement in the heads of argument. Nor
was any case law authority
cited in support of this submission. On the facts it is apparent
that the appellant fatally attacked
the deceased because he felt
spurned after having lavishly spent money on her. There was no
heated exchange of words between the
two shortly before the attack.
This appears to be a case where the appellant acted out of jealousy
and decided to eliminate the
deceased because she did not want him
anymore. In these circumstances there can be no question of any
extenuating circumstances.
This court is aware of the decision of
the South African appellate court in S v Meyer 1981 (3) SA
11(A). In that case the court held that the fact that the murderer
and the victim were involved in a love relationship,
involving mental
tension resulting from jealousy and provocation, could amount to a
factor which may serve as an extenuating circumstance.
The present
case is distinguishable in that there was no provocation in the
ordinary sense and the appellant acted in the way he
did because he
felt spurned by the deceased.





The second ground of
appeal against the finding that no extenuating circumstances existed
is that the court a quo failed to take into account the fact
that the appellant must have been drunk at the time because his
irrational conduct in attacking
a defenceless woman with a dangerous
weapon can only be explained on the basis of drunkenness. The trial
court considered the possibility
that the appellant may have been
labouring under intoxication at the time but concluded that
intoxication did not play any part during
the incident. The court a
quo
remarked as follows:






“… The evidence seems to make it clear that on the fateful day,
the accused did not act under the influence of alcohol. Those
who
saw him at the market place were all convinced that he did not
partake of any alcohol that day. The accused himself admitted
in
evidence that he did not drink alcohol on 10 January. Those who saw
him on the day in question all agreed that there was no argument
between the accused and the deceased on the day in question. There
can be no question of any form of provocation being causal to
the
violent attack that took place on the deceased on that day. There is
nothing upon which the court can find that the accused
can justify
the claim that he, that the accused acted under circumstances usher
an excuse (sic). On the contrary, the overwhelming indications
are that there was a predetermined effort on the part of the accused
to ensure not
only that the deceased is injured but that her life
should be taken.





There may be reasons
which have not been disclosed to the court as to why such a bald
determination was made that the deceased should
die. Whatever those
reasons might be have not been made open to the court. But be that
as it may, the court’s task is made easier
by the fact that the
evidence led both by the State and by the accused himself turn (sic)
to show that the love affair that took place between the two went
horribly wrong about that time. In fact so long (sic) that there
was
such a serious determination on the part of the accused to eliminate
the deceased and that apparently is what happened. The
court has no
choice except to hold that the accused acted with an actual intent to
bring about the result which eventuated and we,
accordingly find the
accused guilty of murder with actual intent”.










This finding by the trial court cannot be impugned in any way. The
totality of the evidence suggests that the murder was not committed
on the spur of the moment or that the murder was committed as a
result of drunkenness. Rather the evidence suggests that the
appellant
lured the deceased to a lonely spot where he then took a
machete and struck the latter at least five times on the head. The
reason
given by the appellant for his conduct is that the deceased
was no longer interested in him but in other men and yet he had spent
what he considered a considerable sum of money on her. In these
circumstances there is no basis upon which the trial court can be
criticized for coming to the conclusion that the appellant’s
conduct was not attributable to alcohol.





The last ground upon
which the sentence of the court a quo is attacked is that the
court should have taken into account the fact that the appellant paid
compensation to the deceased’s family
as a sign of his
remorsefulness. The claim by the appellant during the trial that he
had paid compensation was never fully investigated
and it remains
unknown whether in fact he did so. As the State did not dispute the
claim it can be assumed in the appellant’s
favour that he did so.
However the payment of compensation in these circumstances would not,
on its own, amount to extenuation.
An extenuating circumstance has
been defined as:






“… a fact associated with the crime which serves, in the minds of
reasonable men, to diminish, morally albeit not legally, the
degree
of the prisoners’ guilt …”









See Gardiner and Lansdown, South African Criminal Law and
Procedure
, Vol 1, General Principles and Procedure 6 ed by C W
Lansdown, W G Hoall and A V Lansdown (p 675). See also Criminal
Law
2 ed by C R Snyman p 424.










The position is also settled that:









“… a circumstance
will not be of extenuating character in relation to a murder unless
it is associated therewith at some stage
of the chain leading from
motive to execution, both inclusive, but a circumstance may, it is
submitted, be extenuating in this connection
which has reference to
the mentality or the personality of the accused …”






See Gardiner and Lansdown, South African Criminal Law and
Procedure,
Vol 1 supra at p 395










The payment of compensation to the deceased’s relatives by the
appellant in this case was done in accordance with tradition in
order
to show remorse for the death of the deceased. Such remorse is a
factor that a court would normally take into account in assessing
an
appropriate sentence. It is not a circumstance that is associated
with the crime or one that would throw light on the appellant’s
state of mind at the time of the commission of the offence. As
stated by Snyman in Criminal Law, 2 ed this is a factor which:






“… like other factors affecting punishment, may be considered
only when the court, having found extenuating circumstances, has
to
decide what sentence to … to impose.” (at p 425)






In other words the
payment of compensation in these circumstances is a mitigating factor
rather than an extenuating circumstance.
The case of State v
Jaure
2001 (2) ZLR 393 cited in the appellant’s heads of
argument deals inter alia with conduct suggesting repentance
and endeavors to assist the victim before death ensures. That is not
the position in this case.





In all the
circumstances therefore there is no basis upon which the trial court
could be said to have misdirected itself in arriving
at the
conclusion that no circumstances of extenuation existed in this case.
Indeed both defence and State counsel appear to have
been agreed at
the conclusion of the trial that there were no extenuating
circumstances. Although, as the trial court found, the
full reasons
have not been disclosed as to why there was such a bold determination
on the part of the appellant that the deceased
should die, the
evidence led before the court a quo suggested clearly that the
appellant became bitter when the deceased started to ignore him after
he had spent what he considered
a substantial sum of money on her.
The attack did not take place on the spur of the moment. The
appellant lured the deceased to
a lonely spot at night where he then
used a machete to inflict fatal blows to the head. It is common
cause she died on the spot.





The appeal against
sentence must therefore fail.





In the result the
appeal is dismissed.














SANDURA JA: I
agree














CHEDA JA: I
agree











Pro deo