S v Hadebe (HC CRB 22 of 2015) [2015] ZWBHC 200 (6 October 2015)

1 HB 200-15 HC (CRB) 22-15 THE STATE Versus THEMBA HADEBE IN THE HIGH COURT OF ZIMBABWE KAMOCHA J with Assessors Mr Damba & Mr Sobantu BULAWAYO 30 SEPTEMBER & 7 OCTOBER 2015 Criminal Trial W. Mabhaudi state counsel L. Ncube defence counsel KAMOCHA J: The 25 years old accused pleaded not guilty to the crime of murder but tendered a plea of guilty to culpable homicide. The plea to culpable homicide was not accepted by the state. The allegations were that on 10 June 2013 at Kezi Business Centre the accused did wrongfully, unlawfully and intentionally kill and murder Edmore Ncube a male adult in his life time therebeing by assaulting him all over the body with clenched fists and booted feet. The state outline was read and produced as exhibit one. Exhibit two was the accused’s defence outline which reads as follows:- “(1) The accused person pleads not guilty to the charge of “murder”. (2) On the 10th June 2013 in the evening the accused person was drinking opaque beer at Phelandaba Bottle Store. Later in the evening, the accused person decided to go home, and passed by Thokozani Bottle Store, when (sic) he bought an egg to eat. As the accused person was eating an egg outside the veranda, the deceased who was visibly drunk, approached him and confronted accused person concerning the whereabouts of deceased’s cattle. The accused told the now deceased that he had no clue about the deceased’s cattle and this angered the deceased who started charging towards accused person intending to assault him, citing that he was being disrespectful to him. The deceased pushed accused person several times, until accused got to the edge of the veranda. (3) (4) (5) (6) HB 200-15 HC (CRB) 22-15 (7) (8) The accused then in self defence threw a punch at deceased who then fell and accused person ran away. The accused person denies murdering the deceased, but however, tenders a limited plea of culpable homicide. Wherefore the accused person prays for his acquittal on the charge of murder and that he be found guilty of a lesser charge of culpable homicide.” The 3rd exhibit was a post mortem report by Dr S Pesanai. The doctor observed the following marks of violence on the remains of the deceased. On the skull he noted (1) scalp haemotoma, on the right frontal parietal region; (2) lineal fracture right frontal extending to the parietal and temporal regions. The brain revealed right epidural haematoma +/- 80mls, right parietal cerebral haemorrhage, generalized subdural haemorrhage. The lung/pleura had bilateral pulmonary oedema left 420g, right 570g, basal haemotoma (+/- 4). The oesophagus showed oesophagal varices. The doctor remarked that the post mortem was consistent with bleeding in the brain resulting from blunt force trauma. He concluded that death was due to:- (1) Intracranial haemorrhage (2) Skull fractures (3) Blunt force trauma (4) Homicide The above contents of the post mortem report were admitted by the defence counsel by consent without the need to call the pathologist. This court therefore makes a specific finding that the deceased did suffer the above injuries following the assault on him by the accused although there was an attempt by him to minimize the way he inflicted the injuries. He stated in paragraph 7 of his defence outline that he punched the deceased once knocking him to the ground. The accused then ran away. A close HB 200-15 HC (CRB) 22-15 look at the above injuries seems to suggest that the assault on the deceased was more sustained than that. In an effort to show that the accused did more than he wanted the court to believe the state called three witnesses. The first witness was Talent Dube who is aged 26 years. He was the key witness. He knew both deceased and accused as they lived in the same area with him. On 10 June 2013 he was at Mdluli Bottle Store drinking opaque beer with two friends. The deceased was drinking Black Label beer. The accused who was in the company of Mbekezeli was drinking Gold Blend. At one stage the patrons took to the dance floor to dance to the music which was being played as alcohol seemed to have taken effect on them in different ways. The accused seemed to have been energized and was talkative as he danced. He appreciated what he was doing. The deceased was heard saying after the drinking session he would be going to his girlfriend called Letwin. The accused replied saying Letwin was also his girlfriend. The deceased insisted that she was his girlfriend. Whereupon the accused said if deceased insisted that she was his girlfriend he would assault him. The deceased went out of the bottle store to go away without responding to the accused’s threats. The witness said the accused told Mbekezeli that they should follow the deceased and assault him for claiming to be in love with Letwin. Accused and his friend Mbekezeli went out of the bottle store to go and assault the deceased. The witness remained dancing in the bottle store. The accused and his friend later returned to the bottle store and found the witness still dancing. The accused who was still in a boisterous mood was boasting that he had assaulted the deceased. The witness then went out of the bottle store and stood by the entrance. On looking around, he saw the deceased lying near the veranda of the bottle store. His testimony was that he HB 200-15 HC (CRB) 22-15 concluded that indeed the accused had assaulted the deceased because he lay down. Deceased had walked out of the bottle store but was then lying down. The witness said he went back into the bottle store and began to dance again. He then heard the accused again telling Mbekezeli that they should go and assault the deceased once more because he had belittled him. The two walked out of the bottle store. He followed and stood by the veranda and watched the events in sequence. He observed the accused lifting up the deceased and punched him. The blow knocked him back to the ground. The accused picked him up by his neck and hit his head against a face brick veranda pillar twice. The deceased was already helpless when the accused was doing that to him. Deceased fell down after his head was bashed against the face brick veranda pillar. The accused left him to fall to the ground and stamped on him with his feet saying “I will kill this one”. As he was doing that, one Kholwani came out of the bottle store and remonstrated with the accused and told him to stop what he was doing. Accused appeared to listen to Kholwani. He stopped the assault and went away with Mbekezeli. The witness together with the sister of the deceased, Sithole and Zenzo went to where the deceased lay. He noticed some head injuries. Deceased was then taken away. The witness was cross-examined by defence counsel but was not shaken at all. He said the suggestion that deceased and accused pushed and shoved each other in the bottle store was false and so was the suggestion that the deceased confronted accused about the whereabouts of his cattle. The witness fairly told the court that he did not see Mbekezeli assault the deceased in any way. He just stood by with a bottle of beer in his hand. When it was suggested that accused assaulted deceased once and did not go back to assault him for the second time the witness was emphatic that he did. The witness was criticized for saying he observed bleeding from the head instead of the nose as reflected in his statement to the police. In his testimony in court he said the injuries were HB 200-15 HC (CRB) 22-15 on the parietal region. That variation is of no consequence in my view. What is important is that the witness observed that the accused took hold of the deceased by the neck and bashed his head against a pillar twice. Whether blood came from the side of his head or nose and mouth is immaterial in such circumstances. This witness gave his evidence with admirable clarity. The testimony reads well. He is worth to be believed and this court holds that what he told the court is what took place that even