S v Lunga (197 of 2023) [2023] ZWHHC 578 (22 September 2023)

1 HB 197/23 HC (CRB) 77/23 THE STATE Versus MGCINI LUNGA IN THE HIGH COURT OF ZIMBABWE KABASA J with Assessors Mr O. Dewa and Mr M Ndlovu BULAWAYO 21 AND 22 SEPTEMBER 2023 Criminal Trial C. Mabhena, for the state S. Chingarande, for the accused KABASA J: The accused appeared before us charged with murder to which he pleaded not guilty. The state allegations are that the accused and now deceased were husband and wife but were not staying together. On 3 May 2022 the deceased visited the accused at his home. The two had a misunderstanding over some text messages and pictures which were in the deceased’s phone. The accused then picked up a knife and stabbed the deceased several times resulting in her death. In his defence the accused did not deny stabbing the deceased using a knife and that she died as a result of the injuries he inflicted. He however said he was provoked and he was also intoxicated and so did not appreciate what he was doing at the time he stabbed the deceased. To prove its case the state led evidence from two witnesses, the accused’s mother and the deceased’s mother. The evidence of seven witnesses was admitted as it appeared on the summary of the state case. Such admissions were in terms of section 314 of the Criminal Procedure and Evidence Act, Chapter 9:07. These witnesses are:- Edward Ndlovu Mary Mhlanga Lucky Mabvure HB 197/23 HC (CRB) 77/23 Crebby Mabvure Calisto Jani Ishmael Ndava and Doctor Juana Rodriguez Gregori The following exhibits were also produced by consent:- The accused’s confirmed warned and cautioned statement Post-mortem report A kitchen knife A blood stained blue blanket and A blood stained T-shirt The kitchen knife which inflicted the fatal injuries has the following dimensions:- Length – 28, 8 cm Length of blade – 17, 4 cm Length of handle – 11, 4 cm Weight 0,086 kg The accused’s mother’s testimony was hardly challenged. The accused had informed her in the morning of the fateful day that he wanted to visit the deceased’s grandfather to discuss some problems. He later called asking to be taken to a certain lady ostensibly for counselling. His mother proceeded to this lady’s house where the accused was supposed to meet up with her. The accused took long to arrive at this house and when he eventually arrived he told the witness that he had murdered his wife. The witness was not able to tell whether the accused was intoxicated. Before this fateful day, she knew that the accused and the deceased had problems over infidelity issues. The second witness was the deceased’s mother. Her evidence was to the effect that on 3 May 2022 around 12 noon she received audio messages from the accused and he was insulting her. He also told her that he wanted to cause her pain that she had never felt before HB 197/23 HC (CRB) 77/23 and he was not concerned as to how that would affect her. He accused her of having invited the deceased to South Africa. She received another message telling her that the accused was done with the deceased. As a result of that ominous message, the witness called her mother to check on Nicolla (the deceased) and later learnt of the deceased’s death. This witness gave her evidence well and without rancour. We got the impression that she was merely relating what she knew and nothing else. She did not seek to embellish her evidence. We were satisfied she was a credible witness whose testimony could be safely relied on. The witnesses whose evidence was admitted in terms of section 314 of the C P E Act did not have much to tell as none of them witnessed the attack on the deceased. Their evidence was largely common cause and not much use will be achieved by regurgitating what they said. The accused testified in his defence. He admitted stabbing the deceased but said it was not his intention to. He was provoked and drunk and did not know what he was doing. He however recalled what he did that day, the conversation with his mother and deceased’s grandfather. Before the fateful day he used to see messages in the deceased’s phone pointing to infidelity but they would talk and he would forgive her. On this day he saw similar messages and pictures and he failed to control himself resulting in the knife attack. From the totality of the evidence the following is not in dispute:- 1. 2. 3. 4. 5. The accused was husband to the deceased but they were not legally married. The two were not staying together. On 3 May 2022 the deceased visited the accused at his home. The deceased did not leave that home alive as she was stabbed to death. She sustained the following marks of violence:- (i) Incise wound in right of face (interior lip) 6 cm long (ii) Contused wound, 1, 5 cm long in left eye brow (iii) Multiple incise wounds in the neck with section of internal structure HB 197/23 HC (CRB) 77/23 (iv) Incised wound in right shoulder and clavicular region (v) Incised wound in right lateral side of thorax (11 costal arch) and two in abdominal region (vi) Incised wound, 6 cm long, penetrating in lumbar region. She died due to hypovolemic shock as a result of the stab wounds. The only issue is whether the accused stabbed the deceased intending to kill her or realising that there is a real risk or possibility that his conduct may cause the deceased’s death but continued nonetheless. Section 239 of the Criminal Law Code provides that:- 239 (1) “If, after being provoked, a person does or omits to do anything resulting in the death of a person which would be an essential element of the crime of murder if done or omitted, as the case may be, with the intention or realisation, referred to in section forty-seven, the person shall be guilty of culpable homicide, if, as a result of the provocation – (a) he or she has the intention or realisation referred to in section forty- seven but has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.” Was the accused provoked? In his very detailed warned and cautioned statement, which was confirmed, he stated that a message came through on the deceased’s phone and she tried to hide it. He snatched the phone from her and the deceased tried to use the knife because there were critical contents in the phone. She cut his hand with the knife and he disarmed her. They started fighting using bare hands and when she was overpowering him he then took the knife and stabbed her. The reason for the stabbing was therefore not provocation but self-defence. This detailed statement was recorded on 3 May 2022, the very day of the incident. This was the first opportunity accused had to give his side of the story. All he had to do was state what precipitated the stabbing. He said it was self-defence because he was already aware of these messages and the pictures he now sought to portray as the reason for losing control leading to the stabbing. HB 197/23 HC (CRB) 77/23 If he already knew of the messages and the pictures it cannot be said he acted in the heat of the moment. If he harboured ill-feelings from whatever had happened in the part such cannot be said to amount to provocation as envisaged by section 239. We find ourselves unable to go into the defence of person because of the lack of consistency in the accused’s story. If he was indeed defending himself that story would have been repeated throughout, i.e. from the date of his arrest to the time of his trial. The truth can never change depending on circumstances. Only a lie changes to suit whatever narrative a person is seeking to peddle. We also do not lose sight of the fact that the accused had sent audio messages to the deceased’s mother, ominous messages which he then acted out causing the pain he had promised deceased’s mother he was out to cause her. He must have contacted her again after the heinous act as he then told her he was done with her daughter and indeed he was as the deceased’s mother called on her mother to check on the deceased, o