S v Nyoni (HB 43 of 2006) [2006] ZWBHC 43 (17 May 2006)
Full Case Text
Judgment No. HB 43/06 Case No. HC 523/05 THE STATE Versus DANIEL NYONI IN THE HIGH COURT OF BULAWAYO CHEDA J BULAWAYO 18 MAY 2006 Review Judgment CHEDA J: This is a review matter referred to me in terms of Section 57 of the Magistrates Court Act [Chapter 7:10]. Accused was charged with assault with intent to do grievous bodily harm to which charge he pleaded guilty, was convicted and sentenced to 24 months imprisonment of which 6 months imprisonment was suspended on condition of good behaviour and a further 18 months on condition that he performs 630 hours of community service. The salient facts of the case are that accused and complainant were at a beer drink when some misunderstanding took place resulting in accused stabbing complainant seven times with a knife. The Doctor who examined the complainant observed that complainant had been stabbed seven times and the injuries were between one to three centimetres consistent with repeated stabs with a knife. He also concluded that the injuries were serious although they posed no permanent injury. On review, I questioned the appropriateness of the charge of assault with intent to do grievous bodily harm in view of the facts of the case. I then sought the views of the HB 43/06 Attorney General’s Office who through Mr K. Amon agrees with me that the accused should have been charged with a more serious charge of attempted murder. Attempted murder is a crime which requires both men’s rea and actus reus. The general approach is to examine the intention of the accused and invariably it is the constructive intent which gives rise to the conviction of attempted murder see R v Ngcobo 1921 AD 92. In order for the accused to be convicted, it is essential that his actions were a risk to his victim’s life but despite this appreciation he continued irrespective of the said risk. Accused stabbed the complainant all over and in particular the two stabs were under the armpit, under which vital organs of the body are located. He used a knife to inflict these injuries. These blows, it is clear, were delivered with reckless abandon. In stabbing the complainant in the manner he did, he must have foreseen the real possibility of killing the complainant, but, despite that knowledge he continued to stab him several times on the vital parts of his body. The test for attempted murder, therefore, is, firstly subjective foreseebility of the real possibility of death occurring as a result of accused’s activity and secondly the recklessness in continuing to perpetrate the said assault. In casu the facts which were admitted prove beyond reasonable doubt that accused should have been charged with attempted murder. The second point, is the effective sentence of community service in light of the facts and medical report. This, to say the least, is a traversity of justice. HB 43/06 While it is accepted that the principle of sentencing is one of the most difficult aspect of our judicial system, judicial officers are urged to always endeavour to do justice in sentencing criminals lest the sentences they pass undermine societal confidence bestowed on them. The sentence imposed in this matter is grossly lenient to an extent that it can not be confirmed as being in accordance with real and substantial justice. I accordingly withhold my certificate.