Mike Matanga v The State

### Preamble
Judgment No. 23/25
1
Criminal Appeal No. R-SC 904/17
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REPORTABLE	(23)

MIKE     MATANGA

v

THE     STATE

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MAKONI JA & MWAYERA JA

HARARE: 14 NOVEMBER 2024

The appellant in person

Ms F. Kachidza, for the respondent

MAKONI JA:

This is an appeal against part of the judgment of the High Court of Zimbabwe (“the court                   a quo”), sitting at Harare, dated 14 May 2008.  The part appealed against is the conviction of the appellant on a charge of murder by the court a quo.  After hearing submissions from counsel, we dismissed the appeal and indicated that reasons will be furnished in due course.  These are they:

FACTUAL BACKGROUND

The appellant was charged and convicted of the murder of one Bernadette Musiyarira (the deceased), it being alleged by the State that on or about 11 or 12 May 2005 and at House Number 16 New Camp, Zimbabwe Republic Police, Highfields, Harare, the appellant unlawfully and with intent to kill struck Bernadette Musiyarira once on the head with an iron bar, killing her instantly.

The facts relevant for the determination of this matter were clearly set out by the court a quo, in its judgment, and I will borrow heavily from it.  The background to this case is largely common cause or is not in serious dispute and may be summarized as follows: - The appellant and the deceased at the relevant material time were married and were both members of the Zimbabwe Republic Police.  They have a minor child as a result of that union.

Following misunderstandings between the appellant and the deceased, they separated in or about the month of February or March 2005.  The deceased left the marital home in Chadcombe and began to live at police accommodation at 16 New Camp, Zimbabwe Republic Police, Highfields. The parties retained some form of communication. The marriage had been characterized by acrimony and allegations of violence perpetrated upon the deceased by the appellant. The minor child born of the union continued to reside with the appellant in Chadcombe.

It is not in dispute that on 10 May 2005 the deceased, who was a member of the Traffic Branch stationed at Harare Central, proceeded off duty for two days.  She did not report for duty on 12 May 2005.  As a result, a police radio was issued declaring her to be absent without leave from her place of employment.  It is not in dispute that on 17 May 2005, two members of the public were quarrying for stone at Epworth Dam.  By some quirk of fate, they observed an unidentified male commit suicide by throwing himself into the dam.  Naturally alarmed by this event, they proceeded to make a report Epworth Police Station.  They had also noticed a monarch travel bag, blue in colour, floating on the dam.

As a result of the report of these public-spirited citizens, the Zimbabwe Republic Police sub-aqua unit reacted and went to Epworth Dam.  They recovered the body of the person who had committed suicide by throwing himself into the dam.  Separately, they also recovered the monarch suitcase floating on the surface of the dam.  Upon examining its contents, they found that it contained the body of a female deceased person.  The body of the female deceased was conveyed to Harare Hospital Mortuary where it was positively identified as being that of the deceased on or about 18 May 2005.

The deceased’s sister informed the police that she suspected the deceased’s husband to have murdered her since the two had had violent domestic disputes, in the past, which led the deceased to leave their matrimonial home.  On the same day, the appellant was arrested at his place of work at Morris Depot.  He was taken into custody by members of the C.I.D Homicide on allegations of involvement in the murder of the deceased.

PROCEDINGS BEFORE THE COURT A QUO

The State led evidence from eight witnesses.  One of the witnesses called by the State was one Katie Ndebele whose testimony is that she is employed at a BP Service Station in Machipisa. The appellant arrived at their kiosk between 1am and 2am, on the morning of 12 May 2005.  He produced his police identity card and requested that they open the kiosk in order that he might leave a plastic bag.  She and her colleague decided to co-operate.  They allowed the appellant to enter and to leave his plastic bag.  He advised Katie that he wanted to collect a monarch travel bag from Highfields Police Station as he was “on transfer to another station.” The appellant returned after a short time with a monarch bag which the witness described as being black in colour and which appeared to be heavy.  He left the monarch bag in the kiosk and went out in search of a taxi.  He duly returned in a light blue Mazda vehicle into which he placed the plastic bag and the monarch bag and departed.

She also gave evidence that on 19 May 2005 the appellant came to the service station in the company of a number of police officers.  He indicated to them where he had put the monarch bag when he left to look for a taxi.

The State also called Gladys Musiyarira, the deceased’s sister, who highlighted the domestic violence that the deceased suffered at the hands of the appellant.  She stated that the appellant used to beat the deceased up, chain her to burglar bars in the bedroom and stuff her mouth so she would not scream.  She further testified that the deceased separated from the appellant in March 2005 after one such beating and began staying at the Highfields Police Camp.  She also stated that the appellant would at times threaten to kill the deceased and their son.

The State also led evidence from two expert witnesses, namely the pathologist who conducted the post-mortem examination on the deceased and the forensic scientist who examined the blood samples from the crime scene.  The pathologist testified that the deceased had suffered a severe 10-centimeter blow to the back of her skull which caused bleeding in the cavity of her brain leading to her death.  The cause of death was due to intracranial hemorrhage caused by blunt trauma.  It was the evidence of the doctor that the force used was severe and that a single blow was used.  He observed a ligature in the form of a shoe lace fastened around the neck of the deceased.

The forensic scientist gave evidence to the effect that in the company of three other colleagues, she had collected a floral bedsheet, a pink comforter, a cutting from a cushion, tissues that were on the floor, a towel, and continental pillows from the crime scene as they were covered in what appeared to be blood.  After running a series of tests, the forensic scientist confirmed that the blood found on those items belonged to a human being and, therefore, requested a blood sample from the appellant.  The blood sample from the appellant matched the blood that was found on the tissues, towel, and cutting from the cushion.

In his defence outline the appellant did not substantially dispute these events.  In the defence outline, confirmed warned and cautioned statement and in his testimony, the appellant did not deny that he proceeded from his house to the deceased’s quarters in Highfields.  He admits that when he left the deceased’s place, he was carrying a green monarch travel bag which was loaded and was heavy.  He explains that it contained seven packs of sugar and potatoes which were meant for consumption by himself and his son.  In his confirmed warned and cautioned statement, the accused narrates in some detail the events leading to the death of the deceased.

The appellant challenged the post-mortem report on the basis that it had been signed by the pathologist on 20 May 2005 but was commissioned on 6 March 2005.  The appellant challenged the discrepancy in the dates and thus averred that the report should not be allowed into evidence.  Furthermore, the appellant challenged the evidence of the forensic scientist alleging that there was a possibility that the blood found at the crime scene did not belong to him but could have belonged to anyone who shared the same blood group with him. He also alleged that the investigating officer could have planted the evidence as they had the opportunity when guarding the crime scene.

FINDINGS BY THE COURT A QUO

The appellant challenged the admissibility of his confirmed warned and cautioned statement on the basis that it was extracted from him under coercion, assault and undue influence.  The court a quo noted that the appellant did not complain during the confirmation proceedings and his allegation that there were six officers during the proceedings whom he was afraid of, appeared to be an afterthought.

Further, the court a quo relied heavily on the evidence given by Katie Ndebele.  It noted that the warned and cautioned statement given by the appellant matched some of the evidence given by Katie, such as the fact that he was carrying a heavy monarch bag.  The court reasoned that Katie had no reason to lie and under cross-examination she maintained her composure and was not shaken.  Armed with the warned and cautioned statement; the indications that he made to the police; the postmortem report; the forensic evidence; the evidence of Katie Ndebele and the body found in the dam, the court concluded that the appellant was guilty of the charge of murder.

After establishing that the appellant caused the death of the deceased, the court a quo considered whether the appellant had the intention to kill.  In that regard, it was the court’s view that the appellant, in using the weapon he used, and the part of the body he directed the blow to, foresaw the possibility of causing serious bodily harm or the death of the deceased.  The court further found that the appellant’s attempt to conceal the murder by dumping the deceased in a suitcase in the dam indicated that he wanted to cover up his crime. Accordingly, the appellant was convicted of the crime of murder with constructive intent and sentenced to 15 years imprisonment.

It is that conviction which the appellant is appealling against.  It is noted that by the time this appeal was heard, the appellant had already served his prison term.

THE APPEAL

It must be noted that the appellant applied for and was granted leave to appeal on 6 March 2017 by Ziyambi AJA (as she then was).  He filed a Notice of Appeal in which he raised 19 grounds of appeal, on 3 November 2017. He then amended the grounds of appeal, on 19 March 2018, by substituting the initial grounds with 12 new grounds of appeal.  In March 2022 he penned another amendment to the grounds of appeal wherein he entirely substituted the grounds of appeal again and substituted them with 17 new grounds.

At the hearing of the appeal, counsel for the respondent raised two preliminary points as follows:

(i) that the appellant filed amendments to the grounds of appeal without leave of the   court and;

(ii) that the grounds of appeal were long, winding and no real issues arose from them.

The court found that there was merit in the points in limine raised by the respondent.  The appellant had sought and had been granted leave to appeal by Ziyambi AJA based on a draft Notice of Appeal, with 19 grounds of appeal that was attached to his application for leave.  It is on the basis of those grounds that he was granted leave to appeal.  He did not seek leave of the Court to amend those grounds which was a violation or r 19 (3) of the Supreme Court Rules, 2018 (“the Rules”).

“Rule 19 (3) provides:

The appellant shall not, without leave of the Court, urge or be heard in support of any ground of appeal not set out when the appeal was noted or in respect of which leave to appeal was not granted, or added under subrule (2), but the court in deciding the appeal shall not be confined to the grounds so stated:

Provided that the court shall not rest its decision on any—

(i) other ground unless the parties have had sufficient opportunity of contesting the case on that ground;

(ii) ground for which leave to appeal is necessary, if leave to appeal on such   ground has not been granted.” (My emphasis)

Rule 19 of the Rules is couched in peremptory terms.  It obligates a party who intends to rely on grounds of appeal other than those set out when the appeal was noted or in respect of which leave was not granted to seek leave of the court.  The mischief sought to be cured by this rule is to avoid ambushing the court and the respondent.  Such an approach will clearly cause prejudice to the other party/parties.  This Court, therefore, upheld the point in limine and held that it will proceed to hear the matter based on the initial Notice of Appeal with the 19 grounds of appeal.

Regarding the second preliminary issue, the Court was of the view that though the grounds were long, winding and therefore not concise, they raised one issue for determination, which was, whether or not the court a quo erred in convicting the appellant of the murder of the deceased.  Due to the prolix nature of the grounds of appeal, it shall not be necessary to regurgitate them.

SUBMISSIONS BEFORE THIS COURT

The appellant argued that the confirmed warned and cautioned statement was not supposed to be taken as evidence in the court a quo as he was forced to make the statement and subsequently to have it confirmed.  He also submitted that the pathologist’s evidence was not enough in the absence of an x-ray showing that the deceased had a skull fracture measuring 10 centimeters long.  Further, the appellant contended that the pathologist’s affidavit was commissioned a year later and that it was not true that it was a mistake on the date as stated at the trial.  In addition, the appellant submitted that the forensic scientist’s evidence that the blood samples from the deceased’s house matched the appellant’s blood was false.  Lastly, he argued that the suitcase that was mentioned in Katie Ndebele’s evidence was a different one from the one the deceased was found in.

Per contra, counsel for the respondent submitted that the confirmed warned and cautioned statement was detailed enough and was never challenged by the appellant before the court                     a quo.  Ms Kachidza further argued that the warned and cautioned statement was corroborated by the pathologist’s post-mortem report, Katie Ndebele’s evidence, and the forensic scientist’s evidence, which cumulatively could not be coincidence.  Counsel for the respondent also submitted that during the trial within a trial, after the appellant had challenged the indications, he was found to have been stable and not injured when he made the indications, hence his allegations of torture and force did not and could not stand.

ISSUE FOR DETERMINATION

Whether or not the court a quo erred in convicting the appellant.

THE LAW

The appellant was convicted of murder with constructive intent.  It must be stated at this point that although the appellant was convicted on 18 May 2008, after the Criminal Law (Codification and Reform) Act [Chapter 9:23] (The Code) had come into force on 1 July 2006, the offence, in casu, was committed in 2005.  The law applicable, therefore, is the common law.

In S v Dube HB 26-18 at p 3-4 the court explained what murder with constructive intent means wherein it was stated as follows:

“In murder with constructive intent an accused must have legal intention to commit murder even if he does not have actual intention.  Legal intention, known also as dolus eventualis is defined in many respects as:

Professor Feltoe in the Guide to Criminal Law in Zimbabwe 2005 Edition at p 96 explains legal intention as:

‘Accused does not mean to bring about death but he engages 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 goes further 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.  He can only be convicted of murder if the only reasonable inference that can be drawn from the facts is that he had legal intention to kill. If the court draws this inference, the court decides that he must have and did foresee the possibility of death.’

In the article, the concept of dolus eventualis in South African Law by Shannon Hoctor, a Professor of Law at the University of KwaZulu Natal, dolus eventualis is circumscribed in the following manner:

‘It, mens rea is a less and mediate degree found in those cases in which an offender, without specific malice or intention directed to the crime charged, consciously sets forth upon a wrongful or unlawful design, and in the execution of it reaches a criminal result greater than, or short of, or otherwise different from that proposed, but which he should reasonably have contemplated as a possible consequence of his conduct.’”

The common law approach was admirably summarized by Leach JA in Director of Public Prosecutions, Gauteng v Oscar Leonard Carl Pistorius [2015] ZASCA 204 as follows:

“In cases of murder, there are principally two forms of dolus which arise: dolus directus and dolus eventualis. These terms are nothing more than labels used by lawyers to connote a particular form of intention on the part of a person who commits a criminal act. In the case of murder, a person acts with dolus directus if he or she committed the offence with the object and purpose of killing the deceased. Dolus eventualis, on the other hand, although a relatively straightforward concept, is somewhat different. In contrast to dolus directus, in a case of murder where the object and purpose of the perpetrator is specifically to cause death, a person`s intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore `gambling` as it were with the life of the person against whom the act is directed. It therefore consists of two parts: (1) foresight of the possibility of death occurring; and (2) reconciliation with that foressen possibility. This second element has been expressed in various ways. For example, it has been said that the person must act `reckless as to the consequences`(a phrase that has caused some confusion as some have interpreted it to mean with gross negligence) or must have been `reconciled` with the foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does not have to foresee death as a probable consequence of his or her actions. It is sufficient that the possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent.” [para 26]

See also S v Mugwanda 2002 (1) ZLR 574 (S) at 579F-580B And 580H-581F.

In line with the jurisprudence that was developed under the common law, each component has its own legal requirements and a court cannot convict without specifically and properly applying its mind to the requirements of each component.

It is important to state, at this juncture, the law regarding how a court is expected to make findings of fact on the state of mind of an accused person. The law is that a court makes a finding of fact on the state of mind of an accused person by inferential reasoning: it infers the state of actus reus as well as the surrounding circumstances to the extent that these have a bearing on the state of mind: S v Masawi 1996 (2) ZLR 472 (S) at 525B; S v Malinga 1963 (3) SA 692 (A) at 694; S v Mini 1963 (3) SA 188 (A) at 192; S v Sigwala 1967 (4) SA 566 (A) at 570.

In determining the state of mind by inference, the test is purely subjective and is never whether the accused should have foreseen the result but whether he/she foresaw it as an actual fact. A court must avoid basing its findings on what the judge or magistrate or ordinary person would have thought had he/she been in the accused`s shoes at the time of the actus reus: S v Mini  supra at p196.

The inference sought to be drawn must be the only one that can reasonably be drawn from the proved facts: S v Masawi supra at 525.  As said by Holmes JA in S v Sigwala 1967 (4) SA 566 (A) at 570:

“Subjective foresight, like any other factual issue, may be proved by inference. To constitute proof beyond reasonable doubt, the inference must be the only one which can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee, even if he ought reasonably to have done so, even if he probably did do so.”

The law on confirmed warned and cautioned statements was set out in the case of Mapfoche v The State SC 84-21 at pp 5-6 as follows:

“The law on the admissibility of confirmed statements is codified. It is settled.  Section 256 (2) of the Criminal Evidence Act [Chapter 9:07] provides that a confession or statement made by an accused person and confirmed before a magistrate following the procedures laid down in s 113(3) of the Act is admissible in evidence before any court upon its mere production by the prosecutor without further proof. However, the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto.”

APPLICATION OF THE LAW TO THE FACTS

In casu, the appellant was convicted of murder with constructive intent. There was no eye witness to the murder.  In such circumstances the court convicting a person of murder must rely on inferences to find th3t the appellant had the requisite mens rea and the actus reus.  In the case of S v Humphreys 2013 (2) SACR 491 (SCA) at para 13 also referred to in S v Maarohanye & Anor 2015 (20 SA 73 (G) at paras 15,17,21 and 26 where it was applied, the court reasoned as follows:

“On the other hand, like any other fact, subjective foresight can be proved by inference. Moreover, common sense dictates that the process of inferential reasoning may start out from the premise that, in accordance with common human experience, the possibility of the consequences that ensued would have been obvious to any person of normal intelligence. The next logical step would then be to ask whether, in the light of all the facts and circumstances of this case, there is any reason to think that the appellant would not have shared this foresight, derived from common human experience with other members of the general population.”

Regarding actus reus the findings of fact made by the court a quo cannot be faulted.  The court a quo relied inter alia on the confirmed warned and cautioned statement to convict the appellant.  Upon his arrest the appellant confessed to committing the crime in a warned cautioned statement.  The statement was later confirmed by a Magistrate.  The appellant did not seriously challenge the recording and the confirmation of the warned and cautioned statement.  He belatedly sought to do so during cross-examination.  He however challenged the indications he made to the police wherein he indicated how and where he committed the offence and how he disposed of the body.   As a result, a trial within a trial was held.  The court a quo found that the indications had been done freely and voluntarily.  Both the warned and cautioned statement and the indications contained facts which only the appellant was privy to, such as the fact that he went to a service station in Machipisa where he left a monarch bag whilst he looked for a taxi.  If he had not led the police to the service station, during indications, they would not have known about a crucial witness Katie Ndebele.

Katie’s evidence mirrored what the appellant said happened at the service station on the day in question.  She confirmed his evidence that he approached the kiosk, where she was on duty, carrying a monarch bag which appeared very heavy from the way he was pulling it.  The appellant attributed the heaviness to a duvet, seven packets of sugar and some potatoes which he had been given by the deceased for their son’s consumption.  The appellant sought to challenge her evidence on the basis that the colour of the monarch bag she saw at the kiosk, stated was different from the one recovered from the dam, he also challenged the time he was said to have arrived at the kiosk.  The court a quo correctly found that what was important was the fact that the deceased was placed in a suitcase and nothing turns on the color of the monarch bag.  We can also add that it was not in dispute that the appellant attended at the kiosk in the early hours of the morning carrying a monarch bag which was heavy.

The appellant challenged the evidence that was placed before the court a quo including his warned and cautioned statement and the expert evidence adduced by the pathologist and forensic scientist.  The appellant alleged that the statement was not freely and voluntarily made and that the expert evidence was fraudulently crafted to pin him to the crime.

In the case of S v Scenara HH 849-22, Mutevedzi J discussed the procedure of and an accused’s participation in the confirmation of warned and cautioned statements and concluded at p 4 of the cyclostyled judgment that:

“… it is undoubted that confirmation of a warned and cautioned statement is a procedure which is painstakingly followed by the courts to ensure that an accused person understands the implications and that he /she opens up if the statement was illegally obtained from him. As already said the procedure is carried out in the absence of police officers. Accused persons who are genuine in their complaints more often than not open up to the magistrate and reveal any form of undue influence exerted upon them to make the statement. An accused who deliberately spurns that opportunity can only have themselves to blame for it.”

In the present case, the appellant had the opportunity to advise the magistrate that he had not made the statement that was sought to be confirmed freely and voluntarily, but he did not. Instead, he confirmed to the Magistrate that he had done so freely and voluntarily without being unduly influenced.  His feeble challenge of the propriety of the statement can be construed as nothing but an afterthought during the trial in the court a quo. It is settled that a confession or statement made by an accused person and confirmed before a magistrate following the procedures laid down in s 113 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07] is admissible in evidence before any court upon its mere production by the prosecutor without further proof. He failed therefore to discharge the onus placed on him, as required by the law, to prove that the statement was not made freely and voluntarily. Thus, all the grounds of appeal challenging his conviction on the basis that the warned and cautioned statement was made under duress lack merit.

The appellant’s challenge on the expert evidence has no basis as he merely alleges that the evidence was fraudulently crafted to pin him to the crime since no one saw him committing the crime.  In the case of S v Nyandoro HH 8-17 at p 3, the court reiterated the following regarding a court’s approach to expert evidence:

“When a court relies on the evidence of an expert, it must be satisfied that the expert evidence is sound in light of the totality of the evidence before it. (See S v Tendai & Anor (Juveniles) 1998 (2) ZLR 423 (H) at 427 B-C and Levy v Tune-O-Mizer Centre (Pvt) Ltd 1993 (2) ZLR 378 (SC) at 380 F-381 E).”

41.  The court a quo assessed the expert evidence together with the evidence that the appellant was seen with a suitcase at the service station in the early hours of the morning, a few days before the deceased was found in a suitcase floating in the Epworth Quarry Dam.  Further, it analyzed the evidence in such a manner that the expert evidence corroborated the narration of events from the warned and cautioned statement, the indications made and the evidence of Katie Ndebele.  The court a quo, therefore, did not err in accepting the expert evidence and convicting the appellant of murder with constructive intent.  Regarding the postmortem report the appellant’s only challenge during trial concerned the discrepancy in dates as contained in the report.  The postmortem report indicated that the process was carried out on 20 May 2005. The doctor who compiled the report signed it on the same day. The commissioning reflects that it was done on an earlier date which is 6 March 2005.  In our view the discrepancy was cured by calling the doctor who carried out the postmortem to testify in court.  He clarified the discrepancies.  As a result, the State did not rely solely on the report but on the doctor’s viva voce evidence.  The doctor testified that the deceased had a 10 cm fracture on the back of her head.  It was his opinion that severe force was used as the bones of the skull are strong and that it was a single blow.  On conducting an internal examination he discovered there was bleeding in the cavity of the brain which he attributed to be the cause of death. The fact that there was no X-ray showing the 10cm fracture does not take the appellant’s case anywhere as the doctor who carried out the test confirmed the existence of the fracture.  The court a quo was therefore correct to find that the actus reus was established.

Having found that the actus reus existed the next step was to ascertain whether the appellant had the requisite mens rea to commit the murder. In casu the court was concerned with dolus eventualis.  As elucidated in Director of Public Prosecutions, Gauteng v Oscar Leonard Carl Pistorius, supra, it is a two staged enquiry.  The court must engage in the two stages of the enquiry before arriving at a conclusion whether dolus eventualis was established.  The two stages are: (1) foresight of the possibility of death occurring; and (2) reconciliation with that foreseen possibility or put differently: did the accused continue to engage in that conduct despite the risk or possibility?

43. It is settled that the test whether dolus eventualis was established is subjective.  According to Synman Criminal Law 6th ed, 2014 at p 178, a person commits a crime with intention in the form of dolus eventualis if the commission of the unlawful act or the causing of the unlawful result is not his main aim, but:

(a) he subjectively foresees the possibility that, in striving towards his main aim, the unlawful act may be committed, or the unlawful result may be caused (cognitive element) and;

(b) he reconciles himself to this possibility (conative element).

In S v Sigwahla supra at p 570 B-D, dolus eventualis was defined as follows:

“The expression “intention to kill” does not, in law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such result. This form of intention is known as dolus eventualis as distinct from dolus directus. The fact that objectively the accused ought reasonably to have foreseen such possibility is not sufficient. The distinction must be observed between what actually went on in the mind of the accused and what would have gone on in the mind of a bonus paterfamilias in the position of the accused. In other words, the distinction between subjective foresight and objective foreseeability must not become blurred. The factum probandum is dolus, not culpa. These two different concepts never coincide.”

Therefore, in a test for dolus eventualis, the court must consider subjectively the state of mind of the accused, at the time of committing the offence and whether or not he or she could have foreseen the possibility of the unlawful act occurring and reconciling themselves to that possibility.  The test is not concerned with what a reasonable man in a similar position would have done.

The law is settled that a court makes a finding of fact on the state of mind of an accused person by inferential reasoning.  The inference sought to be drawn must be the only one that can reasonably be drawn from the proved facts.   See S v Sigwala supra at 570:

The court must not too easily conclude without regard to the warning by Wessels JA in S v Bradshaw 1977 (1) PH H 60 (A) that:

“The court should guard against proceeding too readily from “ought to have foressen” to “must have foressen” and thence to “by necessary inference in fact foresaw” the possible consequences of the conduct being enquired into. The several thought processes attributed to an accused must be established beyond any reasonable doubt, having due regard to the particular circumstances which attended the conduct being enquired into.”

I pause to digress a bit and state that s 47, as read with s 15, of the Code, codified the two forms of intention under the common law, namely dolus directus and dolus eventualis. Section 47(1) (b) provides for dolus eventualis when it uses the following words:

“Realizing that there is a real risk or possibility that his or her conduct may cause death and continues to engage in that conduct despite the risk or possibility.”

Section 15 of the Code then goes on to define the expression “realization of a real risk or possibility” and says that “the test is subjective”.  Therefore, a court cannot convict under s 47(1)(b) without making a definitive finding on the subjective state of mind of an accused person.  As was the approach under common law, it is mandatory for a court proceeding in terms of s 47 (1) (b) of the Code to separate the two components in s 15 as follows: did the accused subjectively realize that there was a real risk or possibility that death would occur? If so, did the accused continue to engage in that conduct despite the risk or possibility?

In casu the court a quo was clear on the correct approach to adopt.  It asked itself the question: “The issue is whether the accused intended to kill the deceased and if so, the nature of such intention.”  It then went on to analyse the evidence before it, being cognisant of the fact that there were no eyewitnesses at the material time as to what transpired in that room on the fateful day.  It then made the following findings at p 8 of the judgment;

“The state could not lead evidence on the issue as to whether accused intended to kill deceased. The court must perforce look at the evidence contained in the accused`s statements, being the indication and exhibit 4.  The accused used an iron bar and directed a single blow to a vulnerable part of the deceased`s body which in the opinion of the doctor was an injury arising from the use of severe force.

It is not in dispute that at the relevant time the parties were estranged and separated.  The accused was given to behaving towards the deceased in a violent manner.  There is evidence of an alteration at the deceased`s residence.  There is no evidence that the accused proceeded to the deceased`s residence with intent to kill deceased.

According to his indications, the accused found the iron bar in the deceased`s room. There is no evidence to controvert that aspect of the case.

In the result, it is the view of this court that the accused in using the weapon used and the part of the body he directed the below to, foresaw the possibility of causing serious bodily injury or the death of the deceased.”

As can be gleaned from the above the court a quo adopted the correct test, which is the subjective test, in determining the appellant’s intention.  It considered all the circumstances surrounding the commission of the offence to arrive at a finding that the appellant was guilty of murder with constructive intent.  The court a quo did not find that he “ought to have foreseen” but that he “must have foreseen” and therefore “by necessary inference in fact foresaw” the possibility of death occurring.

DISPOSITION

The appellant was correctly convicted of murder with constructive intent if one has regard to witnesses’ testimonies, the   confirmed warned and cautioned statement, the indications made by the appellant and the expert evidence.  The judgment of the court a quo cannot be faulted.  The appeal lacked merit hence the order dismissing the appeal.

GWAUNZA DCJ	:	I agree

MWAYERA JA 	:	I agree

National Prosecuting Authority, respondent’s legal practitioners.