S v Mbulayi (HB 115 of 2016; HC CRB 41 of 2015) [2016] ZWBHC 115 (26 April 2016)

1 HB 115/16 HC (CRB) 41/15 THE STATE Versus ELIZABETH MBULAYI IN THE HIGH COURT OF ZIMBABWE TAKUVA J with Assessors Mr P. Damba & Mr S. Hadebe BULAWAYO 18 & 19 FEBRUARY & 26 APRIL 2016 Criminal Trial Miss N. Ngwenya for the state N. Mashayamombe for the defence TAKUVA J: This unfortunately is yet another senseless and cruel crime of selfish passion that this court has to deal with. The accused was charged with murder in that on the 26th day of December 2013 and at house number 6821 Nketa 9 Bulawayo the accused did wrongfully, unlawfully and intentionally kill and murder Simbarashe Denhere a male adult. The state alleges that on the fateful night the accused stabbed deceased once on the left side of the chest using a kitchen knife. It is common cause that accused and deceased had been living as husband and wife for 6 years prior to the commission of the crime. Accused and deceased were in a tumultuous relationship characterised by frequent fights over accusations and counter accusations of suspected infidelity. Deceased and accused were on a drinking spree on the fateful day. They returned home in the wee hours of the 26th December drunk. Once in the bedroom, they started quarrelling and the quarrel degenerated into a fight. A co-tenant, Munyaradzi Gwezuva was alarmed by the noise and entered the bedroom. He managed to break up the fight by positioning himself in between the protagonists. At that stage accused picked up a kitchen knife and fatally stabbed deceased in the chest. Deceased died on his way to hospital and accused was arrested. The accused pleaded not guilty. In her amended defence outline which was produced as exhibit 2 she stated that she would plead not guilty to murder but guilty to culpable homicide. While admitting that she stabbed the deceased as alleged by the state, she contended that she did not intend to kill the deceased since she was acting in self defence. Further, she stated that she HB 115/16 HC (CRB) 41/15 was unable to fully comprehend her actions due to the excessive intake of alcohol on the day in question and had been subjected to consistent physical and verbal abuse by the deceased prior to the altercation on the day in question. Finally, it was contended that accused acted out of a combination of anger, provocation and drunkenness in stabbing the deceased. The State rejected accused’s limited plea, and the matter proceeded to trial. The State Counsel then produced the following exhibits. Exhibit 1 which is the summary of the state case sets out the facts. It was read into the record and I do not wish to reproduce it. I have already referred to the 2nd exhibit which is the defence outline. The 3rd exhibit is accused’s confirmed warned and cautioned statement in which she claimed to have stabbed deceased in self defence after he persistently attacked her unlawfully with a fan. She said when she picked up the knife she thought it was a “cooking stick”. Exhibit 4 was an affidavit by Edson Chikunguru signed in terms of section 260 (4) of the Criminal Procedure and Evidence Act Chapter 9:07. The Constable identified the body of the deceased to Dr S. Pesanayi in the mortuary at United Bulawayo Hospitals. Dr Sanganai Pesanayi compiled exhibit 5 which is a post mortem report. In that report, he concluded that the cause of death was:- 1. Haemorrhage shock 2. Stab wound Aorta 3. Homicide He also observed that there was +/- 80mls of blood in the heart. There was bilateral Haemothorax i.e. 900mls on the right lung and 1500mls in the left lung. His other remarks are that the “post mortem is consistent with bleeding to death due to stab wound with a sharp object. Knife went through the second left intercoastal space cutting through the cartilage.” The knife was also produced by consent as exhibit 6. It is a very sharp steak knife with the following dimensions: HB 115/16 HC (CRB) 41/15 (i) Weight - 0.35kg (ii) Total length - 22cm (iii) Length of blade - 11.5cm (iv) Length of handle - 10.5cm This knife has a teppering sharp tip or end. Munyaradzi Gwezuva was the State’s 1st witness. He resides at house number 6821 Nketa 9 suburb in Bulawayo. Both accused and deceased were also tenants at that house. He had known both as husband and wife for 3 years prior to this incident. On the 25th December 2013, he was informed by both the accused and deceased that they were leaving for Harare on a private visit. Later, he was informed that they had abandoned their trip as the car could not be repaired. The deceased then told him to buy some beer which he did. When the witness phoned the two in the evening, he spoke to the accused who said they were coming home. They later arrived at around 0300 hours and they drank beer for approximately an hour before deceased started dozing off and accused took him into their bedroom. The witness and one Farai Moyo remained in the dining room drinking beer. The witness later entered his bedroom but before he fell asleep he heard the sound of something falling down in accused and deceased’s bedroom. He peeped and heard accused saying to deceased “you are disrespecting me.” He decided to find out what was happening inside. When he entered the room, he found the two fighting and he immediately got between them at the same time asking what they were fighting over. Deceased told the witness to ask the accused as he had done nothing wrong. The deceased said the accused was insane and they advanced towards one another in order to resume the fight. The witness blocked the accused’s way but in the process lost balance due to intoxication and accused and the witness fell down. The accused tried to extricate herself from the witness’ grip but the witness pinned her down resulting in accused biting the witness on the neck. The witness released her. When he got up he enquired from the deceased why they were fighting. There was no reply and when he turned to face accused he saw something “glittering” in accused’s hand. He unsuccessfully tried to disarm her. HB 115/16 HC (CRB) 41/15 Accused, who was in front of the witness reached over him and stabbed deceased who was behind the witness. After being stabbed the deceased cried out “Makhabo you have injured me” holding his chest. Deceased fell down near the bed and other tenants came in. The witness phoned for an ambulance and the police, while accused carried the deceased on her back towards Nketa 6 garage. On the way, the witness also carried the deceased on his back but realised at some stage that deceased was no longer breathing and he placed him on the ground. The police and ambulance crew arrived and they announced that deceased had died. Under cross-examination, the witness said he did not see where the accused took the knife from. As regards the relations between accused and deceased, he said they were in the habit of quarrelling and fighting over deceased’s alleged infidelity. Accused used to allege that deceased had many girlfriends. On the night in question, both accused and deceased were “moderately” drunk. According to him the pair would fight at least once every month during the 3 year period he stayed with them. When asked how accused was able to stab deceased while he was in between the two of them, he said the deceased was taller than him while the accused is shorter that him. This according to the witness made it possible for the accused to jump and deliver the fatal blow. The witness did not see the deceased assault the accused with a fan, although he agreed that he saw a broken fan on the floor when he entered the room. Finally, he told the court that he was cut on the wrist by the accused as he tried to disarm her of the knife. As regards the circumstances surrounding the stabbing, the state relied on the evidence of a single witness. In S v Banana 2000 (1) ZLR 607 (SC), GUBBAY CJ (as he then was) had this to say: “It is of course, permissible in terms of section 269 of the Criminal Procedure and Evidence Act Chapter 9:07 for a court to convict a