The State v Costa Maphosa

### Preamble
1
HB 12-19
HC (CRB) 116/18
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THE STATE

versus

COSTA MAPHOSA

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 29 JANUARY 2019 AND 30 JANUARY 2019

Criminal Trial

K Jaravaza for the state

Ms A Kunda for the accused

MOYO J:	The accused person faces a charge of murder, it being alleged that on 29 July 2016 he assaulted the deceased Mqondisi Newton Mpofu resulting in his death. The following exhibits were tendered into the court record and they were duly marked:

1)	the state summary

2)	the defence outline

3)	the accused person’s confirmed warned and cautioned statement

4)	the post mortem report which gives the case of death as:

a)	severe cerebral damage

b)	skull bone fracture subdural hematoma

c)	severe head trauma due to blunt force trauma.

5)	affidavit by Dr N Chuma who certified the deceased dead at St Annes Hospital.

This affidavit is clearly is in conflict with the post mortem report, as this Doctor stated that he observed stab wounds but the post mortem report does not show that the pathologist observed stab wounds.  The pathologist observed lacerations and gave the cause of death as blunt force trauma and does not state that the injuries were caused by a sharp object.  If anything the post mortem report attributes the cause of death to blunt force trauma.

6)	Exhibit 6 was the three bricks allegedly used by the accused person in the commission of the offence.

The evidence of the rest of the state witnesses, that is:

Thabani Moyo

Godfrey Makaya

Milton Sola

Ntokozo Siziba

Owen Rwatiringa

Lungile Sibanda

Dr Roberto Trecu

was admitted into the court record as it appears in the state summary in terms of the law. The accused person whilst not denying the alleged assault, he pleaded not guilty on the basis that he never intended to harm the deceased and that he, instead, was assaulting the deceased’s mother whilst the deceased was strapped on her back.

The facts of this matter are largely common cause.  The accused and deceased’s mother were boyfriend and girlfriend respectively.  They had an altercation on the evening of the 28th of  July 2016 which altercation spilled over to the morning of the 29th of July 2016.  The accused, pelted the deceased’s mother Ntokozo Ndlovu with stones whilst the deceased was strapped on her back.  The deceased was also hit in the process resulting in his death.

The state called Ntokozo Ndlovu the mother to the deceased, who gave viva voce evidence for the state.  She confirmed that the altercation was between him and the accused and that accused started pelting her with stones while deceased was on her back.  She confirmed that there was nothing sinister amongst all three of them except that accused and herself had a misunderstanding when she said she could not cook raw fish that he had brought.  Accused did not like that resulting in him attacking the witness.  The deceased per this witness was therefore caught in the crossfire as the fight or assault was not about him or had nothing to do with him.

The assault on the deceased by the accused person being factually common case, all that this court has to determine is what the accused person is guilty of.

Is it murder with actual intent?  Is it murder with constructive intent?  For the benefit of both counsel, who seemingly could not properly identify the essential elements of the offence of murder, this court will serialise them.

Proffesor Feltoe in his Guide to the Zimbabwe Criminal Law, 2005 Edition at page 96 broadly deals with the essential elements of murder for the benefit of all.

For a murder verdict to be entered, the state must prove intention either actual or legal.  Actual intention is

“Accused desires death, death is his main aim and object.  There will also be actual intention where death is not the aim or object, but accused continues to engage in an activity which he realizes will almost certainly result in death.” Per Professor Feltoe.

In other words accused must aim at death of the victim, or even where he has not aimed at death, death must be certain result from his actions.  Death must be substantially certain from such conduct for the court to find that there was actual intention.

With legal intention which results in a conviction of murder with constructive intent,

“the accused does not mean to bring about death but he continues to engage in an activity after he foresees that there is a real risk that the activity will result in the death of a person.”

Professor Feltoe then goes on to state that:

“where it is alleged that accused had legal intention to kill, accused will usually deny that he foresaw that his actions would result in death.  The question then is whether, as a matter of inference, he did have such foresight despite his denial.”

The questions we need to ask therefore, using evidence from the principles of our law as explained by Professor Feltoe are:

1)	has the state, from the facts, proven beyond a reasonable doubt that accused had actual intention?

2)	has the state adduced sufficient evidence to prove that the accused’s aim was death?

3)	has the state adduced sufficient evidence to show that the accused might not have desired death but that it was clear from his actions that death was a substantially certain result?

The views of this court are that all these questions cannot be answered in the affirmative for the following reasons:

Firstly, the three, that is accused, Ntokozo Ndlovu and deceased did not have a bitter

relationship.

In fact the night before, per Ntokozo Ndlovu’s testimony, accused had asked her and the

child what they wanted him to buy for them and he bought them their choices.

Secondly, the altercation was on the fish that accused had brought which Ntokozo Ndlovu

had refused to cook, it was never about the deceased.

Thirdly, the accused pelted Ntokozo Ndlovu and deceased with stones and it cannot be

held that death is a substantially certain result from being hit with a stone.  A person can be hit with a stone, be injured and still survive.

This court is therefore not persuaded that the state has adduced sufficient evidence to

prove actual intention.  That accused fled from the scene soon after committing the offence and did not render first aid cannot be the sole determining factor of actual intention. Accused himself says he ran away in shock and was confused after realizing what he had done, that explanation cannot be taken away from him unless it has been proven beyond a reasonable doubt by the state to be manifestly false.  This court cannot dismiss what an accused person is saying for the mere fact that he is an accused, in fact, where facts are not clear, or where the accused’s version, has not been proven to be manifestly false, the accused person is the beneficiary of that doubt, for the burden lies with the state to prove its case against an accused.

In any event this court is not allowed to take an arm chain approach and dictate how an

accused person should behave after committing an offence for it is natural to be in shock after committing such an offence so why should the court find that the accused person could not have been in shock?  There is clearly no basis for such a finding in the court record.  The accused person clearly cannot be held to have had actual intention in such circumstances.  We then proceed to assess if the accused per son had the requisite legal intention.

Can it be held from the facts that the accused person, despite his version, must have

foreseen death as a real possibility?  Pelting a person with stones aimed at the head, a vulnerable part of the body, and also considering that there was a young child strapped to her back, there was a real danger death would result to either of the two victims.  As Professor Feltoe has already explained that intention can be inferred from the circumstances of the case regardless of what the accused says he intended, that is, if it can be held that, despite his assertions the accused person was however reckless in his actions wherein death was a real possibility, the accused person would be rightly found to have had legal intention.

It is for these reasons that the accused person is found to have had legal intention to kill the deceased in that pelting stones at a woman strapping a minor child on her back, would expose the minor child to a real possibility of suffering fatal injuries.  He is accordingly convicted of murder with constructive intent.

COUNT 2

The accused person faces a charge of attempted murder in that on the 28th January 2016, he hit the complainant Ntokozo Ndlovu several times on the head with stones resulting in her falling down unconscious.  She sustained serious injuries as per the Doctor’s medical report.  The accused pleaded guilty to the charge and the defence counsel has and state tendered a statement of agreed facts which was marked Exhibit 7.  It summarises the assault and the injuries.  The accused person is accordingly found guilty of attempted murder.

Sentence

The accused person is convicted of two counts, the first one being murder and the second one being attempted murder.  He is a first offender.  He pleaded guilty to the second count.  He is a family man and a sole bread winner.  He has been in pre-trial incarceration for a period of almost two and a half years.

The accused however, started erring from the deep end, simultaneously committing very serious offences.  The accused’s actions of severely assaulting Ntokozo Ndlovu and in the process fatally injuring the deceased, are not acceptable in our society.  The accused could not beat up Ntokozo Ndlovu simply because she could not cook fresh fish.  The accused person acted unreasonably on the day in question.  After all Ntokozo Ndlovu was not even his wife but his girlfriend.   Even if she had been a wife, the accused person should have respected her views for she was not his slave.

Domestic violence is now a cancer in our society which has resulted in needless loss of life.  These courts frown at the loss of life through violence.  The public at large should not lose confidence in our courts and these courts should not be seen to be trivializing loss of life.  It’s a serious matter of concern and appropriate deterrent sentences should be given.  In this case it is aggravating that the deceased in count one was a minor child.  The penalty provisions for a murder committed in aggravating circumstances is a sentence of imprisonment not less that 20 years.

The accused person has already been in custody for 2 ½ years, that stands to his credit.

1)	Both courts shall be taken as 1.

2)	The accused person is thus sentenced to an effective sentence of 20 years imprisonment.

National Prosecuting Authority, the state’s legal practitioners

Dube and Associates, accused’s legal practitioners