HIGH COURT, BULAWAYO

[Criminal Trial HB 188-16]

June 29 and 30, 2016

MATHONSI J

Criminal law - Offences under the Criminal Law (Codification and Reform) Act [Chapter 9:23], s 47 - Murder - Defences of excusability and justification - Intoxication and compulsion - Effects of.

The two accused persons, related by marriage, were jointly charged with a most gruesome murder of their father and father-in-law, respectively. The murder involved the bludgeoning of the deceased before incinerating his remains with petrol beyond recognition. The first accused person raised the defence of intoxication rendering him incapable of forming the requisite mens rea for murder, whereas the second accused person raised the defence of compulsion alleging that she had been forced to commit the offence by the first accused.

Held, that in specific intent crimes such as murder, if it is established that the accused person voluntarily consumed alcohol to such an extent that he or she lost his or her self-control or inhibitions this would constitute a partial defence reducing the charge to a lesser charge of culpable homicide. However, where it is shown that the accused, prior to committing the offence, had formulated the requisite intention to commit the offence and thereafter had consumed alcohol to gain dutch-courage, the partial defence does not avail him or her.

Held, further, that on the other hand compulsion, if established, is a complete defence to a criminal charge. In the present case the evidence established that the second accused person had been compelled by the first accused to commit the offence and was therefore entitled to an acquittal.

Case cited:

S v Mugwanda 2002 (1) ZLR 574 (S), referred to

Legislation considered:

Criminal Law (Codification and Reform) Act [Chapter 9:23], s 243

Book cited:

Feltoe G A Guide to Criminal Law of Zimbabwe (3rd edn, Legal Resources Foundation, Harare, 2004) at p 22

N Ngwasha, for the State

E Mashiri, for the first accused

R Muvhiringi, for the second accused

MATHONSI J:

The deceased Kwabokwakhe Khumalo was aged 67 years and lived alone at his homestead at Sihazela line in Tsholotsho. He was burnt to death on 27 November 2014 in an inferno which engulfed his bedroom hut.

First accused is the deceased's son while second accused is his daughter in law who is married to one of the deceased's sons, Arnold Ndlovu. The two are charged with the murder of the deceased. It is alleged that at about 12:30 am on 27 November 2014 the two teamed up, armed themselves with a knobkerrie, two litres of petrol and a box of matches and then proceeded to the deceased's homestead. Upon arrival, they allegedly forcibly entered his bedroom hut. First accused allegedly struck the deceased twice on the neck with a knobkerrie rendering him unconscious. He poured petrol all over the hut and ordered second accused to set the hut ablaze which she did.

The deceased's body was burnt in the inferno that engulfed his bedroom hut. His charred remains were discovered the following morning by neighbours who included headman Raphael Khumalo.

The two accused persons pleaded not guilty to the charge. In his defence outline first accused stated that after suffering from a persistent headache he consulted a traditional healer who advised him that his ailment was caused by his father, the deceased, who had cast a spell on him. He left the traditional healer and headed for the shopping centre where he started drinking beer and smoking mbanje to ease off his anger.

First accused went on to say that at around 10 pm that night he proceeded home where he discussed the revelations of the traditional healer with second accused who also complained that she had been advised at church that the deceased had caused the death of her child. They then teamed up and proceeded to the deceased's homestead where upon arrival, he poured fuel inside and outside the hut. Second accused then lit a match. He was high on marijuana and therefore did not appreciate the consequences of his actions.

Second accused stated that she was compelled by first accused to accompany him to the deceased's homestead after first accused had already clobbered and killed his father. The first accused had come to her as she slept armed with a knobkerrie. He woke her up and frog marched her to the scene where he forced her to light a match after pouring petrol around the hut thereby burning the hut and the deceased.

The facts of the matter are generally common cause except for what was introduced by second accused which may have been unknown to the State when charges were formulated. Even the evidence of Raphael Khumalo the headman, who testified for the State, was not contested. It is to the effect that he woke up at night and saw a fire at the deceased's home. He called out the deceased's name and after getting no response he went back to bed. In the morning he gathered his subjects and after discussions they telephoned the police to advise them of the fire. It was at the police's probing that they went to investigate the scene and discovered the charred body of the deceased.

As they were gathered, the accused persons who had not been present arrived saying they had gone to the clinic. When the police arrived, first accused readily confessed having killed his father leading to their arrest.

First accused generally agreed with the State's case but differed on the issue of the alleged assault of the deceased with a knobkerrie prior to his being burnt. Although in his confirmed, warned and cautioned statement he stated that he had become emotional after consulting a traditional healer and initially struck the deceased twice with a knobkerrie on the neck before splashing petrol all over and ordering second accused to set the place alight, he tried to revise that during his testimony stating that he did not strike him but merely set the house on fire thinking he was only burning the deceased's herbs.

There is no substance in that new story and Mr Mashiri who appeared for first accused properly abandoned that falsehood. First accused's defence is intoxication rendering him incapable of formulating a mens rea.

Professor G Feltoe A Guide to The Criminal Law of Zimbabwe (3rd edn, Legal Resources Foundation, Harare, 2004) at page 22 observed that in specific intent crimes like murder, which the first accused faces in this matter, where it is established that the accused person voluntarily consumed alcohol to the extent of losing self-control or inhibitions, that defence will reduce the crime to a lesser crime like culpable homicide. The court must therefore explore carefully the actual effect upon the accused of his consumption of liquor or drugs. He goes on to say:

"Liquor and drugs affect different people in different ways. It may be that although he consumed a considerable amount of liquor, the liquor did not remove his ability to discern what he was doing and he was still able to form the intention to commit the crime. Some people become easily intoxicated and become drunk after consuming a small amount of liquor and others are able to consume a considerable amount of liquor and still remain in control over their mental faculties."

In considering the effect of smoking and drinking of drugs and liquor by first accused, we agree with Ms Ngwasha for the State that that exercise was undertaken for dutch-courage after the first accused had already formulated the intention to take the life of his father. By his own admission he got so angry after the n'anga told him the deceased was bewitching him and he decided to go and drink and smoke himself stupid.

Even after intoxication he still had a clear mind and kept track of his agenda. He went and attacked his father before involving second accused in his nefarious deed presumably to spread the sin. He planned meticulously when he took petrol intending to obliterate the evidence by burning the scene. He achieved all that before holding second accused and his own wife captive for the rest of the night and then trying to spring them and himself.

In our view alcohol and the drug do not come into it. They cannot help the first accused in this matter who is as guilty as they can be. It occurs to us that a person does not attack a human being on the neck with a knobkerrie before burning him to ashes without intending to cause his death. Only death would be desired and only death can result. For a trial court to return a verdict of murder with actual intent, it must be satisfied beyond a reasonable doubt, as we are, that:

(a) either the accused desired to bring about the death of his victim and succeeded in completing his purpose; or

(b) while pursuing another objective, foresees death of his victim as a substantially certain result of that activity and proceeds regardless.

See S v Mugwanda 2002 (1) ZLR 574 (S) 581 D-F. As we have said, first accused desired to bring about the death of his father and succeeded in completing his purpose.

We move on to examine the position of second accused. She gave a very convincing account of how she ended up where she was. Her husband had been jailed a month earlier in October 2014 when the incident occurred. She was therefore left at the mercy of her brother-in-law, the first accused, who was always high on drugs and alcohol. On the night in question, he had come frothing at the mouth after he had already fatally wounded the deceased, to force march her to the scene, on the pain of death if she did not comply, a two litre container of petrol and a box of matches in tow. He forced her to contribute by lighting a match. After fumbling with it twice, first accused connected her with a slap and she succeeded. After shepherding her back to her bedroom hut he then stood sentinel over her and his own wife at the gate until the break of dawn armed to the teeth. He remained with her right up to the time of their arrest.

In terms of s 243 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]:

"243. Requirements for compulsion to be complete defence

(1) Subject to this Part, the fact that a person accused of a crime was subjected to compulsion when the person did or omitted to do anything that is an essential element of the crime shall be a complete defence to the charge if –

(a) the compulsion consisted of a threat –

(i) unlawfully to kill him or her or cause him or her serious bodily injury or to kill or cause serious bodily injury to some other person; or

(ii) unlawfully to cause him or her financial or proprietary loss; and

(b) he or she believed on reasonable grounds that implementation of the threat referred to in paragraph (a) had begun or was imminent; and

(c) the threat referred to in paragraph (a) was not brought about through his or her fault; and

(d) he or she believed on reasonable grounds that he or she could not escape from or resist the threat referred to in paragraph (a) and that his or her conduct was necessary to avert the implementation of the threat; and

(e) by his or her conduct he or she did no more harm than was reasonably necessary to avert the implementation of the threat referred to in paragraph (a), and no more harm than was unlawfully threatened.

(2) Where a person voluntarily associates himself or herself with one or more other persons knowing or realising that there is a real risk or possibility that they will involve him or her in the commission of a crime, any threat made against him or her by one or more of those other persons for the purpose of inducing him or her to commit a crime shall be deemed, for the purpose of paragraph (c) of subsection (1), to have been brought about through his or her own fault."

In our view second accused has satisfied the requirements of compulsion set out in s 243 of the Criminal Law (Codification and Reform) Act. She was in a dangerous situation where a person who had killed his father was ranting mad. She could have easily been killed herself if she had not compiled. Ms Ngwasha's concession about the guilt of second accused was therefore properly made.

In the result it is ordered that:

1. First accused is hereby found guilty of murder with actual intent.

2. Second accused is hereby found not guilty of murder and is accordingly acquitted.

[The rest of the judgment dealing with sentence is
not material to this report - Editor.]

National Prosecuting Authority, State's legal practitioners

Marondedze, Mukuku & Partners, first accused's legal practitioners

Dube & Company, second accused's legal practitioners