S v Homela (HC CRB 109 of 2015) [2015] ZWBHC 214 (5 October 2015)

1 HB 214/15 HC (CRB) 109/15 THE STATE Versus PAMELA HOMELA IN THE HIH COURT OF ZIMBABWE TAKUVA J with Assessors Mr W. T. Matemba & Mrs C. Baye GWERU 28 SEPTEMBER & 5 OCTOBER 2015 Criminal Trial Shumba for the state Ms V. Kwande for the accused TAKUVA J: The accused was charged with murder, it being alleged that on the 11th day of August 2014 and at Village 1 Chief Ntabeni, Silobela in the Midlands Province, the accused person unlawfully caused the death of Proud Moyo by stabbing him with a knife once on the left side of the chest, intending to kill him or realizing that there was a real risk or possibility that her conduct may cause death and continued to engage in that conduct despite the risk or possibility. She pleaded not guilty to the charge. State and defence outlines were read and produced as exhibits one and two respectively and I do not intend to repeat their contents suffice to state that the accused raised the defence of self defence. Specifically she stated that the deceased entered a hut she was in and started assaulting her with an open hand while she was seated. She attempted to stand up but accused pushed her down and tried to take the knife she was using to cut the meat. Since she was pregnant, she believed that the accused would easily overpower her and stab her with the knife. As they were struggling for the knife, she quickly “jerked her arms from the deceased’s grip and stabbed him once on the left side of the chest.” Accused said she did not intend to kill the deceased but just wanted “to deter him and fend off his attack.” Exhibit 3 was accused’s confirmed warned and cautioned statement in which she stated: HB 214/15 HC (CRB) 109/15 “I admit to the charges being levelled against me. I did not intentionally stab Proud Moyo with a knife because we were fighting. He wanted to take the knife which I was using to cut some meat and we used to have some misunderstandings so that time I thought he wanted to grab the knife and stab me also.” Exhibit 4 was a post mortem report by Dr T. Moyo whose findings are that the cause of death was: (1) severe left sided haemopneumo-thorax due to trauma; (2) Hypovolaemic shock due to haemorrhage. Exhibit 5 was a dental report that shows the accused’s age as between 16 – 17 years. Finally exhibit 6 was a kitchen knife with the following dimensions – length of handle – 10,5cm - total length – 28,5cm - weight – 0,162kg - length of the blade 18 cm The evidence of the following witnesses was admitted as it appears in the outline in terms of section 314 of the Criminal Procedure and Evidence Act chapter 9:07 by consent: 1) Lovemore Mutakirwa 2) Timothy Chamwaita 3) Dr T. Moyo 4) Dr T. Mapanzure 5) P. Svondo Only one state witness gave viva voce evidence, namely Masline Mpofu who is accused’s sister-in-law. She is a 23year old mother of two who is married to accused’s husband’s elder brother. She lives in the same village with the accused and deceased. On the fateful day she was at home when deceased sent a boy to collect a patch from accused’s hut. The boy returned and informed deceased that accused had refused to give him the patch. Deceased then jumped off the cart and went to the hut where accused was. She said as she was going to the kitchen she heard HB 214/15 HC (CRB) 109/15 some noise emanating from accused’s hut. Although she could not see inside the hut, she said she concluded that a fight was going on inside the hut. Further, she said she heard accused and deceased exchanging insults until deceased emerged from the hut and fell down. Accused then came out wielding a knife. When she enquired from the accused what had happened, accused said she did not care because deceased had also injured her finger. She screamed for help and neighbours gathered resulting in accused’s arrest. When it was put to her in cross examination that the deceased had assaulted the accused inside the hut she said, “I cannot say that, all I heard is noise”. She said exhibit 6 belongs to accused and her husband. As regards who was bigger in stature between accused and deceased, she said accused was bigger. The state closed its case after the testimony of this witness. The bulk of what this witness said is common cause. The defence also called one witness, namely the accused. She adopted her defence outline as her evidence in chief and added nothing. She was however cross examined by the State Counsel. While admitting that the reason for the fight was the unavailability of a “patch,” she denied that she did not want to give it to the deceased. According to her, deceased was angry when he confronted her in the kitchen hut. Once inside, the deceased insulted her before he slapped her on the cheek and pinned her down. She said she still had the knife in her hands as she was using it to cut the meat she was about to cook. They then wrestled for the knife with deceased holding the sharp end of it while she held the handle. She believed deceased wanted to disarm her of the knife and then use it to stab her. As she twisted her hands, the knife pointed towards deceased who was then stabbed in the chest. Further, she said she was lying on her back and deceased was in a bending position with his chest close to the knife’s blade. She admitted that from the injury sustained by the deceased, excessive force was used to push the knife that deep. However she attributed this to the fact that as she twisted the knife, the deceased was also pulling it towards his chest. HB 214/15 HC (CRB) 109/15 According to the accused the scuffle took a very short period. Analysis The issue for determination is whether or not self defence has been established. The requirements of this defence are as follows; 1. an unlawful attack 2. upon the accused or upon a 3rd party where the accused intervenes to protect that 3rd party 3. the attack must have commenced or be imminent 4. the action taken must be necessary to avert the attack 5. the means used to avert the attack must be reasonable See - S v Banana S-158-94; S v Chauke 1991 (2) SACR 251 (B); S v Mandizha S-200-91 The law also requires that in judging whether the means employed by the accused to defend himself were reasonable the court must avoid an armchair approach. S v Manyekete S 386/81. In other words the court must not impute to a person suddenly faced with a murderous assault a mental calm and ability to reason. Ex post facto reasoning which does not take into account the pressure that the accused was under must be avoided – S v Zikhala 1953 (2) SA 568 (A). Applying these legal principles to the facts in casu we make the following findings; 1) There was an altercation between deceased and accused over a patch deceased wanted to use to mend the scotch cart tyre 2) The deceased clapped the accused on the cheek and proceeded to pin her down 3) There was a struggle for the possession of a knife accused was holding and using 4) The accused then stabbed the deceased during that struggle 5) The accused delivered one stab wound to the deceased’s chest 6) The deceased died from injuries inflicted by the accused person HB 214/15 HC (CRB) 109/15 7) The State could not rebut the accused’s version on the circumstances surrounding the assault. This was so because there was no independent witness to the stabbing other than the accused who we find to be a credible witness. Therefore we find that there was indeed an unlawful attack on the accused by the deceased. 8) We find also that the attack had commenced and the action taken by the accused was necessary to avert the attack 9) We however find that the means used to avert the attack were not reasonable in that the accused used excessive force to push the knife into the deceased’s chest. 10) Further, we find that the excess was not immoderate and on that basis a verdict of murder cannot be sustained 11) However, we find that a verdict of culpable homicide is justified in the circumstances. Accused was therefore found not guilty of murder but guilty of