S v Moyo (HB 19 of 2017; HC CRB 3 of 2017) [2017] ZWBHC 19 (27 January 2017)

1 HB 19/17 HC (CRB) 03/17 THE STATE Versus HEROLD MOYO IN THE HIGH COURT OF ZIMBABWE MAKONESE J with Assessors Mr S. Hadebe & Mrs A. Moyo BULAWAYO 26 & 27 JANUARY 2017 Criminal Trial Mrs B. Mushaninga for the state T. Muduma for the accused MAKONESE J: On the 17th of April 2016 during the evening hours, the deceased was at Sisonke Quarter Bottle Store, Maphane Business Centre, Gwanda. The deceased was aged 29 years at the time he met his death and was employed by the Zimbabwe National Army as a soldier. The accused was also at the bottle store, drinking with his friends. The accused was 26 years old at the time of the offence. The accused appears in this court facing a charge of murder. The state alleges that on the aforementioned date the accused did wrongfully and unlawfully and intentionally kill and murder Mthabisi Mthimkhulu (the deceased) by stabbing him with an okapi knife. The accused denies the charge and avers that he stabbed the deceased in self defence. The accused further raised the defence of provocation and stated that the deceased person subjected him to extreme provocation by attacking him with a beer bottle and fists and that his reaction to the attack was clouded by emotion and that he reasonably believed that his life was under threat. He went on to state that he acted in the heat of the moment and took such defensive action as was necessary to ward off the attack. The state tendered into the record a summary of the outline of the state case (exhibit 1). It shall not be necessary to repeat the entire contents of the state outline which now forms part of the record. The accused tendered a defence outline (exhibit 2). At the heart of the accused’s defence is the defence of provocation and self defence. It is not in dispute that the accused HB 19/17 HC (CRB) 03/17 stabbed the deceased with a knife on his back and shoulder inflicting fatal injuries that led to the death of the deceased. Accused fled the scene after the stabbing on a bicycle and disappeared into the darkness. Accused was to remain in hiding before his arrest on 28th May 2016. The state produced a confirmed warned and cautioned statement recorded from the accused person at Gwanda and confirmed by a magistrate on 27 the June 2016. The English translation of the warned and cautioned statement is in the following terms: “I committed a crime of murder using a knife while drinking some beer. The name of the deceased is Mthabisi Ndlovu. When they started this misunderstanding they were three of them. I rebuked them and two of them took heed of what I was saying, but the deceased responded to say, who do I think I am. I then got hold of him intending to take him out, but the now deceased, again enquired as to who do I think I am. He threw a bottle at me and I ducked. I then produced a knife and stabbed him. The now deceased had earlier on got into the shop, and when he wanted to get to the shop once again, I again stabbed him and he died.” The post mortem report was tendered into the record by the state as exhibit 4. A duly registered medical practitioner employed as a pathologist at United Bulawayo Hospitals examined the remains of the deceased on the 18th April 2016. The post mortem report is filed under number 329/325/2016. As a result of an examination conducted on the body of the deceased the pathologist opined that the cause of death was; (a) Hypovelimic shock (b) Rupture of anxillary and braquial arteries (right side) haemothorax (c) Stabbing injury On external examination, the pathologist observed the following marks of violence. 1. Wound (9 x 3.5cm) on the right arm, with muscles exposition in this region 2. Wound (5 x 2cm) on the right back, to 8cm from right axillary region, to 17cm from the neck, to 7.5 cm from longitudinal axis 3. Wound (2.5 x 1cm) on the back of the left scapular to 22.5cm from longitudinal axis on the back HB 19/17 HC (CRB) 03/17 4. Abrasion on the left costal cage. On internal examination, the pathologist made the following further observations; Wound 1: Affected arteries on the right arm (braquial artery) right side Wound 2: Affected axillary artery (right side) Wound 3: Is penetrating inside thoraxic cavity and affected superior lobe of left lung. Haemothorax (approximately 200ml) An examination of the lung/pleura revealed that there was a small rapture of the left lung (superior lobe) and haemothorax. These were the findings of the pathologist which were set out in some detail in the post mortem report. The findings are consistent with a knife stabbing. The accused does not deny the stabbing. It is his motivation and intention that has to be examined by the court taking into account the evidence placed before the court. The State Case The state led viva voce evidence from three witnesses. First to testify was Sincengani Dube. She is a female adult aged 35 years. She was at the material time employed as a shopkeeper at Sisonke Quarter Bottle Store. She knew the accused as a brother to the owner of the bottle store. On the fateful day she was at work. Around 7:30pm the deceased arrived at the bottle store in the company of his friends including one Nkosiyethu Tshalibe. The deceased asked the witness how many black label beers she had in stock. The witness went behind the counter and counted the beer bottles and confirmed that she had twenty-three black label beers. The witness narrated that whilst this conversation was going on the accused was standing in the shop on the other side of the counter. As the deceased was walking out of the shop the witness observed the accused grabbing the deceased by the neck and pulling him to the side of the shop. The witness said that she could not see what happened at that stage as her vision was obscured by a large speaker. A little while later, the witness heard the sound of beer bottles being HB 19/17 HC (CRB) 03/17 smashed. The sound originated from the direction where the deceased and accused were pushing and shoving. The witness then saw the accused stabbing the deceased once on the back just above the left shoulder. She also noticed that the deceased was bleeding profusely from the left arm. The deceased ran out of the shop with the accused in hot pursuit. After about 15 minutes accused returned to the shop and when the witness enquired why accused was behaving in such a manner, accused retorted that the deceased was disrespecting him. The accused was still brandishing a knife. The witness stated that there were several patrons in the bottle store. She testified that when the accused and deceased went behind the speaker and before she witnessed the stabbing she heard the accused utter the following remarks: “Ngizakuqeda isisoja sakho lesi,” meaning I will end your career as a soldier.” The witness was subjected to intensive cross-examination. She maintained her evidence and confirmed that she had observed the accused stabbing he deceased. In that regard she merely corroborated the accused’s version that accused indeed stabbed the deceased. The witness was not controverted in any material respects and her evidence reads well. We find that she was a credible witness and her evidence is accepted by the court. We did not detect any tinge of exaggeration in her testimony. She was prepared to concede that she did not witness what transpired when the accused and deceased went behind the speaker. The witness gave a clear and precise account of what she perceived. Lungisani Mathema This witness resides at Agnes Mathema’s homestead in Gwanda. He knew both accused and deceased before this incident as locals in the area. He was at Sisonke Quarter Bottle Store on the day in question. He testified that he did not witness the stabbing of the deceased. He met the deceased after he had already been stabbed. The deceased was bleeding profusely and had a deep cut on the right arm. He also noticed that the deceased had another deep cut at the back above the shoulders. The witness stated that at that stage he hea