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Mncina Maphiwa Sibusiso v King (8/1998) [1998] SZCA 11 (1 October 1998)

not reportable






                                             CRIMINAL APPEAL CASE NO. CA/8/1998

In the matter between:

Maphiwa Sibusiso Mncina                             Appellant

And

The King                                                      Defendant


Coram                                                          Kotze, JP;
                                                               Schreiner, JA;
                                                               Browde, JA


For Appellant                                                 Mr. Ntiwane

For Crown                                                     M.S. Langwenya


                 
JUDGMENT
(01/10/98)


KOTZE, JP



The appellant appeals against his conviction of murder on the grounds that the Court a quo erred in finding that he had the requisite mens rea in the circumstances. He also appeals against the severity of the sentence in that the Court erred as a matter of law in not taking into account that the deceased was the appellant’s friend and that appellant to show his remorse had been responsible for all funeral expenses. The appellant had offered a plea of guilty to culpable homicide which the crown would not accept. The Court then found you guilty of murder with extenuating circumstances and the sentence was 8 years imprisonment effective from 11 June 1998.

The deceased Mfanzile Mnisi was struck by a knobstick on the right forehead causing a depressed fractured borne. There was a tear of the dura and laceration of the brain. There was substantial haemorrhage over the brain. There were abrasions over the left cheek. The report was handed in by consent and therefore there was no expert evidence as to the power which must have been used to cause the fracture. The stick which was used was described by the learned trial judge as follows:-

The stick is homemade with a bolt at one end. It is not the usual thickening knob found in traditional sticks, this one has a nut which is made at one end. It is heavy and makes such a stick more dangerous than the normal knobstick. In the evidence of the crown witnesses and the appellant he said that there was an extended period of drinking after completing work at the local dipping tank. The liquor about which he spoke was traditional brew which was imbibed at various places. The evidence of the crown witnesses and the appellant seems to give support to an inference on very serious drinking.

On a trip to Sabelo Tsabedze’s homestead to find a further 5 litres of liquor the appellant who was carrying a radio then suggested that Richard should carry the radio because it might end up being damaged . After the party crossed another valley ahead of the deceased, they heard the deceased calling from behind. The deceased told the appellant that he had been sent by his brother to fetch the radio because he was no longer coming with them. The appellant continued. “As we were talking Richard Mnisi proceeded and did not pay much attention to what he was talking about. He told the deceased that he should go back and inform Muzi Mnisi that he will find us where we are going to have the last traditional brew. The deceased told me that he will not go back. I thereafter told him that if he is not going back Muzi and the others will find us where we are going. As we were talking the deceased pushed me aside from the footpath and I leaned on the bolted stick. As we talk he leaned forward to take the radio and I tried to stop him and he was accidentally hit.”

The injury to the head of the deceased is inconsistent with an accidental blow in my view. The trial Court is therefore correct in contending that his evidence should be rejected. It may be that by his evidence the appellant was merely saying that he did not intend to struck a fatal blow to the deceased’s head. But the nature of the injury seems to indicate that he must of necessity have intended to inflict a blow to the head of the deceased with his weapon. This does not, however, complete the matter because, as indicated by the crown, the appellant was in a condition to appreciate that if he hits the deceased with the weapon he would possibly inflict a fatal injury or a very serious injury . This involves proving beyond reasonable doubt that the appellant subjected and he knew that his act could cause death. The only fact which could cause doubt upon the appellant’s knowledge on what has happened when he struck the deceased was the serious bleeding that had taken place before the death of the appellant’s friend. The apparent serious distress which manifested itself after the appellant was told that his friend was dead surely indicates that he was in a state of intoxication, he did not appreciate that what he was doing would kill his friend.

On this narrow basis we are of the view that the appropriate verdict should have been culpable homicide and not murder with extenuating circumstances. The verdict is reduced to culpable homicide and sentence in my view should be reduced.

In the circumstances already mentioned I would think in my opinion that a sentence of five years two of which are suspended on condition that the appellant is not convicted of an offence involving violence is appropriate.

The result is that the appeal against conviction succeeds and the conviction reduced to one of culpable homicide and that the appeal against sentence also succeeds. The sentence is reduced to five years two of which are suspended on condition that you are not convicted of an offence involving violence during the time of your suspension.
Your sentence will be deemed to have commenced from the date you were arrested.





                                                      ………………………..
                                                      G.P.C. KOTZE, JP


I agree

         ……………………………
         W.H.R. SCHREINER, JA



I agree

         ……………………………..
         J. BROWDE, JA            





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