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Ndlovu v The State (Criminal Appeal No. 15/95 ) [1995] BWCA 31; [1995] B.L.R. 432 (CA) (11 July 1995)
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1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 15/95 HIGH COURT CRIMINAL APPEAL NO. 10/94
In the matter between:
ANTHONY ZITHA NDLOVU
vs.
THE STATE
Mr. E.W. Fashole-Luke II for the Appellant Ms. P. Solomon for the State
JUDGMENT
CORAM; A.N.E. AMISSAH JP J.H. STEYN JA G.G. HOEXTER JA
STEYN J.A.;
Appellant was convicted of the crime of murder by COTRAN J.
in the High Court. No extenuating circumstances having been found, the mandatory death sentence was imposed. Appellant now appeals both against his conviction and his sentence.
On conviction Mr. Luke who appeared for Appellant in this Court, but not in the Court below, argued:
1. That the conviction was unsound, because it was reasonably possible that Appellant had acted in self-defence. Alternatively,
2
That .bearing in mind all the circumstances,,
the conviction on a murder charge was
inappropriate and that Appellant should only
have been, convicted of culpable homicide;
alternatively,
That the Court a quo erred in its finding
that no extenuating circumstances were
present and that it was accordingly obliged
to pass the death sentence. I proceed to
deal with each one of these contentions,
1. SELF-DEFENCE
The facts are the following:
Peter's Bar is located in the Blue Town
Location in Francistown. On the Friday
evening the 27th of November 1992 Stephen
Mcqueen Mbidzo (the deceased) was fatally
stabbed either immediately outside or inside
Peter's Bar. It is common cause that his
assailant was the Appellant. It is also not
3 in dispute that the cause of death was
multiple stab wounds (9 in number), some of
them inflicted upon the most vulnerable
parts of the deceased's body i.e. head,
shoulders and torso. The weapon was a knife
the blade of which was at least 10 cm. long
and 3 cm. wide.
The State called several eye witnesses. The
appellant himself testified and he called a
witness in his defence. The latter did not
give evidence of any significance as she had
left the scene before the events in issue
took place. Appellant also made a
"confession", which was admitted in
evidence. He was further interviewed by a
psychiatrist whose report was admitted in
evidence by agreement. I will refer both to
the "confession" and the report in the
course of this judgment.
4 Whilst there is a dispute as to the cause of
an altercation between the deceased and the
appellant it is clear that - as so often
happens when people meet in places like
Peter's Bar—passions became inflamed and in
the course of the altercation Appellant drew
a knife and stabbed the deceased, causing
his death.
The dispute as to how the altercation
started was not decisively resolved by the
Court a quo. On the State version a youth -
also a South African like the appellant -
knocked over a can of beer which the
deceased had put on the ground, spilling
some of its contents. There was an argument
between the deceased and the youth
referred to as a small boy. According to
one of the State Witnesses the deceased "put
his hand gently on the boy's shoulder and
5 asked him to apologise". Words passed
between them. Shortly afterwards the
Appellant emerged from the bar, brandishing
a knife and started stabbing the deceased.
The latter tried to avoid the stabs,
retreated backwards saying, "why are you
killing me, what wrong have I done to you?"
The accused version both in his statement and in his
evidence, was that the altercation arose as a result of his
proposing love to two women on the evening in question. This
resulted in repeated requests from the deceased and his
companions that before he would be allowed to pursue this
objective, he would be required to make payment to them of
"lobola" for the privilege of sleeping with their "sister".
According to the Appellant, the deceased pushed him (the
Appellant) and said again he must pay. According to his
"confession" statement Appellant then pushed him back and said
"voertsek" (meaning be off with you). His evidence under oath,
which is broadly speaking in conformity with his statement on
6 this issue, then reads as follows:
"Then he took out a knife from his pocket,
he pulled it next to his waist. I also took
out mine, then we met each other, struggled,
and during the struggle I got the chance of
stabbing him."
On the merits of the two versions the Court a quo found as
follows:
The Court rejected Appellants version that the deceased was
armed with a knife. In making this finding the Court inter alia
said the following: "It will be seen from the evidence that no
questions were put by the defence attorney to any of the
prosecution witnesses who testified that the deceased carried a
knife, much less used it."
Mr. Luke quite correctly pointed out to us that the trial
Court clearly erred in making this finding. Certainly the issue
of whether or not the deceased had a knife was adverted to by the
Court, by Counsel for the State and raised pertinently also by
Counsel for the Appellant. Thus for example in cross-examining
7 P.W.2, one Igi Jackson, Appellant's Counsel put the following
question to the witness:
"At the proper stage in these proceedings the accused person will say that the deceased had a knife, would that be the truth." The answer recorded was: "I did not see him holding a knife." Q: "After this incident did you see a knife anywhere near or some similar object." A: "I did not."
P.W.5 was cross-examined and although the question is attributed to the Court it would seem reasonably clear that it was put by defence counsel. It was the following:
"Will there be any truth in the statement that deceased pulled a knife." A: "No there will be no truth in that."
However, the significance of a failure to put the defence is considerably reduced if one has regard to the fact that as early as 3 days after the event and in the statement appellant made to the police Appellant had alleged that the deceased was armed with a knife. His statement in this respect reads as
8 follows:
"I also push him back and said 'Voetsek', so he started to take
out his knife."
The misdirection is clearly material as it would appear as if the learned Judge a quo attached some significance to the failure to cross-examine. However, there are compelling reasons why, on a review and a fresh reconsideration of the evidence, the finding that the deceased did not draw a knife is to be supported.
Firstly, all of the witnesses called by the State and who saw the incident either denied that the deceased was armed, or failed to see him produce the knife. Secondly no knife was ever found at the scene or on the person of the deceased. Thirdly, it is extraordinary that if the deceased had drawn his knife first as alleged by the Appellant, that the deceased failed to inflict as much as a scratch on his assailant. Finally, the incised wounds and cuts on both his hands and his arms, are mute but powerful testimony that the deceased was about defending himself, by warding off his attacker and not involved in stabbing
9 the Appellant. This aspect of the defence advanced by Appellant
was accordingly in our view rightly rejected.
However, in regard to the trigger that precipitated the
fracas the Court a Quo was somewhat ambivalent. In this judgment
the learned Judge said:
"The suggestion that the Batswana who were present demanded "lobola" from him if he wants to take a Motswana girl to sleep with her is unlikely, for none of the witness(es), heard it, but for the purposes of this j udgment, I shall assume that such words were used by the deceased or one of the group when he was chatting, but no Court can say that such words per se constitute provocation warranting the use of a knife so many times
10 against a person who was unarmed
to reduce the crime to
manslaughter. He goes on however
to find "I reject, the accused's
evidence that there was no
argument between the deceased and
Leroy about the spilling of the
beer
" (my
emphasis).
Then, again in his judgment concerning the presence or absence
of extenuating circumstances the Judge a quo says: "As to
provocation, there was a quarrel of sorts (but not a fight), be
it in consequence of the spilling of the can of beer or on an
argument about paying lobola by a foreigner and the accused was
(not) a South African (sic) for the privilege of sleeping with
a Motswana woman."
Later in the same judgment however, after detailing some of
the State's submissions on the aggravating features the learned
Judge says:
11
"
and even if it was the true (which
the court finds it was not) that the
Batswana men who included the deceased had
demanded payment from him if he wanted sex
with a Motswana woman (this) was not
provocation as defined in Section 206 of
the Penal Code." (My underlining).
I will return to this aspect of the judgment when dealing
with the issue of whether there were extenuating circumstances
or not. However on the evidence as whole there can be no doubt
that the Court a quo was right to hold that the State had
negatived any reasonable possibility that the Appellant had acted
in self-defence.
2. Culpable Homicide
Although Mr. Luke had raised the question in his heads of
argument as to whether on an acceptance of the Court's finding
that the deceased was unarmed, the Appellant should only have
been convicted of culpable homicide and not of murder, he
conceded in argument before us that this contention was in all
12 the circumstances untenable. He was right to do so. Certainly,
such provocation to which the Appellant had been subject was
quite insufficient to rebut the inference to be drawn from the
objective facts. The vicious attack upon the deceased, the
weapon used, the part of the body assailed by the Appellant and
the sustained nature of the attack (there were 9 stab or incited
wounds) all proclaim an intention to kill. The defence advanced
that the appellant should only have been convicted of culpable
homicide cannot be upheld.
3. Extenuating Circumstances
The Court in passing judgment on the question as to whether extenuating circumstances exist or not correctly restated the contentions advanced by the Appellant's counsel before it. Counsel had contended that these factors were relevant especially when considered cumulatively. These were:
1.
The offence was committed on the spur of the moment - there was an absence of premeditation.
2.
Provocation arising out of a quarrel either
1.
13 over the spilt beer and the confrontation
the deceased had with the youth Leroy and/or
because of the demand that lobola was
payable if he wanted to have sex with the
"sister" of the deceased and his friends.
3. Intoxication
On this third aspect of the matter the Court
a quo put it thus: "that whilst there was
no excessive drinking by any person that
evening at Peter's Bar, alcohol was in fact
being served and consumed by the accused,
the deceased and their respective friends
who were there."
After dealing with this issue and having acceded to the
proposition that the assault on the deceased was not
premeditated, the Court a quo appears to repeat State Counsel's
contention that the provocation concerned was not provocation as
defined by Section 206 of the Penal Code. The trial Judge then
goes on to say the following: "On this last point, the accused
14 be it recollected, had himself said that he at first thought that
the deceased was joking, but does the allegation that the
deceased had a few minutes later said 'you must pay' or 'pay now'
elevate the matter to anything approaching 206 (1) and 206 (6)
of the Penal Code? I think not. The accused was a mature man
of 34, fought against apartheid or so he says, sought refuge in
Botswana and ended up by mercilessly killing one of its citizens
not in the heat of passion, but almost in cold blood. It is my
view that there are no extenuating circumstances and he has to
pay the supreme penalty. The Court is not the forum to plead for
mercy, a matter which can only be decided elsewhere."
These critically important comments by the Judge, reflecting the compelling reasons for the finding that no extenuating circumstances could be found, require careful analysis.
In the first place the Court asks itself a question. That is, does the conduct of the deceased as found by him constitute provocation as defined by Section 206 (1) and 206 (6) of the Penal Code? With respect to the learned Judge, he is in fact asking the wrong question. Section 206 defines provocation for
15 the purposes of determining whether or not the conduct as defined
("wrongful act (s) or insult") constitutes provocation for the
purposes of reducing the crime of murder to manslaughter.
Section 205 which deals with this matter i.e. "killing on
provocation" reads as follows:
"When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only. The provisions of this section shall not apply unless the court is satisfied that the act which causes death bears a reasonable relationship to the provocation." This was not the issue upon which the Court was at this
stage of the proceedings required to adjudicate. The questions
16 it should have asked itself were (a) "whether there are any facts
which might be relevant to extenuation, such as immaturity,
intoxication or provocation, (b) whether such facts, in their
cumulative effect, (probably) had a bearing on, the accused's
state of mind in doing what he did, (c) whether such bearing was
sufficiently appreciable to abate the moral blame-worthiness of
the accused in doing what he did." See S. v. LETSHOLO 1970 (3)
S.A. 476 (A) . This decision has repeatedly been endorsed by this
Court. See in this regard inter alia LOSANG v. THE STATE 1985
B.L.R. 281, LEKOLWANE v. THE STATE 1985 B.L.R. 245 at 249 and
most recently DAVID KELALETSWE AND OTHERS v. THE STATE Cr.App.
No. 25 of 1994 delivered on the 20th January, 1995.
It is clear that the learned Judge misdirected himself in
putting the question in the form in which he did. But he also
failed in my view in not considering cumulatively any factors
"not too remote or too faintly or indirectly related to the
commission of the crime" and which bear on the moral-guilt of the
deceased. See REX v. FUNDAKABI 1948 (3) S.A. 810 (A) . It is
true that the learned Judge does earlier in his judgment advert
17 to defence counsel's submissions concerning the need to examine
such factors as intoxication, provocation and the absence of
premeditation. But when he moves decisively to come to a
conclusion and having evaluated provocation on an incorrect
premise, he proceeds to describe the killing as "not in the heat
of passion but almost in cold blood" and finds no extenuating
circumstances.
It was common cause that should we by virtue of these findings conclude that the decision that no extenuating circumstances exist was flawed, this court would be obliged itself to make the appropriate enquiry and determine whether extenuating
circumstances do exist. I have no doubt that they do. I say this for the following reasons.
1. Peter's bar on a Friday night is, I am certain, very unlike the annual general meeting of the Temperance Union. The picture painted by the evidence indicates a place where liquor was freely consumed, single ladies attended and were importuned, dancing took place, and inevitably many a quarrel and fight were bound to occur.
18 The attempt by some of the witnesses to downplay the extent
of the quarrel between the parties - note the gross improbability
of the deceased's beer being knocked over and he "gently places"
his hand on the youth's shoulder and admonishes the culprit in
mild terms - is highly suspect.
2.
It is true that there is little evidence to support the proposition that hard drinking had been done both by the Appellant and by the deceased and his friends. But this was due in part to what I have referred to as the downplaying of the true state of affairs as well as a failure to probe this aspect of the
case with the searching questions the situation required. Indeed Appellant was never questioned concerning his degree of intoxication by his Counsel; this in spite of the fact that he had told the psychiatrist shortly after the event that "although he was intoxicated at the time of the offence he could still recall the events clearly."
3.
In these circumstances I would not have expected a finding - against the background of a quarrel - whether it was over spilt beer or lobola for sleeping with a woman or both -
2.
19 that the events took place and the parties had conducted
themselves in a calm, reasoned fashion. Certainly, I do not
believe that it is probable that the appellant was cool and calm
when he launched his vicious attack on the deceased. To describe
this frenzied assault as a "merciless killing" and "not in the
heat of passion but almost in cold blood" is not in my view
justified on the evidence. The scenario I have attempted to
sketch, the very brutality and aggravated nature of the assault,
point to a man beside himself with anger and not in control of
himself.
4. The absence of premeditation, the provocation and the
probability of intoxication assessed cumulatively do in my view
constitute extenuating circumstances as this term has been
defined by our Courts. There are also aggravating features. The
assault was brutal and sustained, the provocation in no way
merited the reaction it engendered, the deceased was unarmed, the
knife was a lethal weapon and the assault was directed at the
vulnerable part of the deceased body. The crime deserves
condemnation and severe punishment. It does not however fall
20 into the category which can be described as undoubtedly meriting
no punishment other than the death penalty.
For these reasons the appeal succeeds to the extent that the finding that there were no extenuating circumstances is set aside. This Court finds the Appellant guilty of murder with extenuating circumstances. The death sentence is set aside. The Appellant is sentenced to 15 years imprisonment.
The proceedings in this case were concluded before the Court and Counsel could have had regard to the ruling of this Court in KELALETSWE AND OTHERS v. THE STATE referred to above. It could therefore not have been expected that the terms of the decision would have been observed. It would however be salutary if regard were to be had to its terms when the enquiry in regard to the presence or absence of extenuating circumstances is conducted in future. This applies more particularly to the duties of Counsel, but also of the Court as is set out in that judgment. Had counsel been more acutely aware of what was expected of him, facts could have been elicited that would, I am certain, have avoided the visitation of an inappropriate penalty on his client
21
in this case.
11th
Delivered in open court this
day of July, 1995
STEYN J.A.
I agree.
AMISSAH J.P.
I agree.
HOEXTER J.P.
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