S v Ncube S-14-87

Mc Nally JA:
The appellant was convicted in the High Court, Bulawayo, of murder with actual intent. A finding of
extenuating circumstances was made, and she was sentenced to nine years’ imprisonment with labour. She
appeals with leave against both conviction and sentence.
The facts are largely undisputed. The appellant is a married woman with five children. The deceased
woman was having an affair with her husband. On the evening of 2 June 1984 the appellant’s husband and
the deceased were sitting around a fire outside Achulu Flats in Bulawayo listening to music from a
discotheque. The appellant came by. She claims she was looking for her husband to get some money from
him. She had brought a knife with her because, she says, she was afraid of being attacked by the deceased
and her friends. She thought she might find her husband, a jazz lover, at this disco. As she came upon them,
her husband and the deceased embraced each other and kissed. She thereupon drew her knife and plunged
into the neck of the deceased, severing the jugular vein and piercing the lung. The deceased died shortly
thereafter.
The first problem arises with the trial court’s finding of an actual intention to kill. The judgment is
confusing on the point. At p 90 of the record the learned judge said:-
“By aiming at the upper part of the body with a weapon like that she must have appreciated or foreseen
that the death was probable, and was reckless as to whether death would be the result – see R v Mini
1963 (3) SA 188.”
This, of course, is the classic test for constructive rather than actual intent. A finding such as the court made
is a finding of constructive intent, and is inconsistent with a finding of actual intent.
In the circumstances Mr Sigidi for the State properly conceded that he could not support a finding of
actual intent to kill. The issue before us is therefore whether the proper finding is murder with a
constructive intent or culpable homicide. In either event we are at large as to sentence in view of the
misdirection.
Before going on to consider the facts there is another important and relevant aspect of the law which I
must set out:
The law of Zimbabwe, which differs from the law of South Africa, is that a finding of culpable
homicide is possible even where there is an intention to kill. This is clearly to be seen in the series of cases
following R v Tenganyika 1958 R & N 228 and most particularly in the most recent reported case on the
subject – S v Nangani 1982 (1) ZLR 150. See also the thoughtful article by Feltoe “Criminal Policy in
Relation to the Defence of Provocation” 1983-84 Z.L.Rev at 140
Nangani’s case, supra, and indeed Tenganyika’s case, supra, were referred to in the judgment of the
court a quo, but only in the context of establishing an intent to kill. The real question, which is whether
despite the intent to kill there was nonetheless a basis for a finding of culpable homicide, was not asked,
perhaps because it was at that stage that the court found there was an actual intent to kill.
Nangani’s case, supra, is important because of the finding made on the facts. The appellant in that case
did intend to kill his common law wife. He found her sleeping under one blanket with another man and he
pursued her and shot her dead. The State argued, at p 157F of the report, that once the appellant has
admitted his intention to kill the deceased the defence of provocation is not open to him. The Court ruled
against that submission.
I return now to the facts of the present case: The appellant had been married to her husband since 1970
and they had five children, one of them a baby at the breast. There was no dispute that the husband had
been having an affair with the deceased who was a woman well known to the appellant. The deceased had
for some time behaved in a taunting and provocative way towards the appellant. She accused the appellant
of adultery, saying one of her children was illegitimate. The child was told of this and was very distressed.
This led to a family conference which was inconclusive.
The appellant’s relationship with her husband then came under strain. She accused him of failing to
support her in these quarrels with this other woman. Gradually she began to suspect and then to believe that
there was something going on between her husband and this other woman. Her husband gave unsatisfactory
answers.
Finally on the day in question she was again taunted by the deceased who walked past well dressed and
said: “What will you do about it, we are now going to join your husband and go out with him.” Her friends
laughed at the appellant and called her a silly woman. She was deeply distressed and consulted her uncle
who advised her to go home and stay there.
She did not stay at home. It is at this point that her story becomes self-serving. She says she went out
to find her husband in order to persuade him to give her some money from his month-end wages. She says
she took a knife to protect herself from the friends of the deceased. This may be true. It may also be true
that she was desperately anxious to find out what was going on between her husband and the other woman.
She may have foreseen that if she found them together there might be trouble and she might need a
weapon. Her motives may have been mixed. But what is very clear is that the affair between her husband
and this other woman was disturbing her very deeply. It is understandable that she could not resist the urge
to find out the truth, however dangerous that decision might be.
We cannot conclude, however, that she took the knife with a positive intention to kill the deceased.
Had events turned out differently we cannot say she would have killed the deceased.
As things turned out, however, she could hardly have come upon the scene at a worse moment. We
have independent evidence from a State witness that as she arrived her husband and the deceased were
kissing each other. The witness found this conduct so embarrassing that he turned away. He said:-
“I looked to the side, and a moment later when I looked I observed that Fatima was bleeding. She was
telling Zimba this ‘look your wife has stabbed me’ ”
And later:-
“I looked away, that is I would have felt embarrassed, or guilty to be watching people kissing.”
The appellant described the event slightly differently thus:-
“And just the moment that I got to the social activity I observed the deceased come out pulling my
husband’s arm. She was leading him to a fireplace where there were some people and children around
the fire. Just at this point I lost my temper and stabbed the deceased with a knife which I had with me
for my protection. I did not at that time appreciate that I would cause her death. I had no intention of
killing her.”
Later in here evidence she confirmed that she had seen them kissing, as indeed she must have if the other
witness is to be believed.
In her warned and cautioned statement the appellant put it this way:-
“No please, I do admit that I committed the offence when I was very cross. If it were (not?) for that I
was very cross I could not have done it. I did not know that I was killing. It just happened accidentally
since the deceased went out with my husband and she stayed in the same line with me. I advised my
husband that she was insulting me but I did not see any action by my husband about this incident. Not
knowing how my husband interpreted it, it means that my husband knew all about it.
I took the knife from the house anticipating that maybe we were going to fight. But it did not happen
that way.
I took the knife for self-defence but I stabbed her out of anger.”

The trial court disbelieved the appellant on two vital points: It did not accept that she was looking
for her husband in order to get money from him. Nor did it accept that she took the knife with her for
self-defence. It took the view that she had the intent when she went out that evening to “fix” or at least
to fight the deceased. It is difficult to quarrel with that view of the facts, although one must say that
had she come upon her husband and/or the deceased in different circumstances it is by no means
certain that a stabbing would have taken place. People in these circumstances have mixed motives and
there are often unresolved contradictions in their mental attitudes. I would not dispute, however, that a
confrontation was one of the thoughts in her mind.
It is, however, the next finding of the trial court which I find myself, with respect, unable to
accept. The finding was expressed in this way:-
“The provocation by the deceased at the moment (of the killing) was in our view trivial
considering that the love affair between the two had been confirmed to the accused at least that
afternoon. The accused had therefore time to come to terms with it and had been advised by her
uncle to stay at home and do nothing about it.”

For two reasons I cannot accept the word “trivial”: First, it is not a trivial matter for a wife in these
circumstances to find her husband embracing another woman. Second, the event must be seen in its
context. Mr Sibanda, who appeared for the appellant, aptly called it “the last straw”. All the fears,
suspicions, anxieties and jealousies which had been building up were, at a stroke, confirmed. It is one thing
to be told your husband is unfaithful. It is another thing to see it with your own eyes.
We were dealing with a woman who had been married for some fourteen years. She had five children.
She and those children were dependant economically upon the husband. The loss of a husband is not to be
seen simply in romantic terms, but in a socio-economic context. When that loss is actively being brought
about by another woman, who is flaunting her success, the strain of such provocative behaviour must be
enormous. Undoubtedly it preyed upon the mind of the appellant. Against that background one must see the
final events.
The human mind does not move logically from one intention to the next. It is capable of entertaining
contradictory intents and of disguising them from itself. The emotional response to provocation is difficult
to measure, whether objectively or subjectively. I find it difficult therefore to adopt an analytical
categorisation of the conduct of the appellant. I would say simply that if she had intention to kill, it was
formed in circumstances where long-standing and deep provocation was brought to flash-point by the
events immediately preceding the assault. I am satisfied, in the words of Fieldsend CJ in Nangani’s case
supra, that:-
“. . . the provocation was such as could reasonably be regarded as sufficient ground for the loss of
self-control that led the accused to act against the victim as (she) did.”
and also that:-
“. . . the provocation actually caused the accused to lose (her) self-control.”

Having come to this conclusion, I may not need to resolve another conflict which the trial court seems
to have left unresolved. It concerns whether the appellant struck one or two blows. The medical report is
quite clear. It is in fact set out in full in the judgment of the trial court. It reveals two separate wounds. One
stab wound entered the neck just above the collar-bone on the left side of the deceased. The knife severed
the jugular vein and went down to pierce the lung. This was the fatal wound. But there was another wound,
on the back of the upper left arm which was also quite deep, but which was not fatal.
The medical report was put in by consent, yet the appellant swore she struck only one blow. No
apparent attempt was made to reconcile there two contradictory pieces of evidence. In the event it probably
does not matter. However such questions should not be left unresolved, and in particular counsel should not
blow hot and cold as to whether the evidence is accepted or not. The provisions of s 260(8) of the Criminal
Procedure and Evidence Act are designed for use in this kind of situation.
I conclude therefore that, even accepting that there was in this case a constructive intent to kill, the
provocation over a long period, brought to a head by the deceased’s action at the moment of crisis, was
sufficient to reduce the crime of the appellant from murder to culpable homicide. It matters not at all, in the
circumstances, that the deceased, being unaware of the presence of the appellant, did not consciously and
directly intend to provoke her.
The punishment for culpable homicide may range from a fine to many years’ imprisonment. In a case
like this, however, the Court must not be understood to be saying that a killing under emotional stress, even
where that stress is understandable and in a sense proper, is to be condoned. The verdict serves to mitigate
the penalty not to excuse the act or encourage repetition. In all the circumstances a sentence of five years’
imprisonment is appropriate.
Accordingly the appeal succeeds to this extent: The conviction and sentence are set aside and there is
substituted a conviction for culpable homicide and a sentence of five years’ imprisonment with labour.

Dumbutshena CJ I agree
Gubbay JA I agree