S v Ncube (9 of 2024) [2024] ZWBHC 21 (16 January 2024)

1 HB 9/24 HCBCR 667/23 THE STATE Versus THOKOZANI NCUBE IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J with Assessors Mr Mashingaidze & Mr Sobantu BULAWAYO 28, 30 November 202; 1 December 2023 & 16 January 2024 Criminal trial T. M. Nyathi, for the State M. Mpofu, for the accused DUBE-BANDA J [1] The accused, Mr Thokozani Ncube, is appearing before this court charged with the crime of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as the “Criminal Law Code”). It being alleged that on 2 December 2021 at approximately 0000 hours at Lyn 24 Mine Filabusi, the accused unlawfully caused the death of Martin Sibanda (hereinafter referred to as the “deceased” or “Martin” as the context will permit) by shooting him with a shotgun on the right thigh intending to kill him or realising that there is a real risk or possibility that his conduct may cause the death of the Martin and continued to engage in that conduct despite the risk or possibility. [2] The accused, who was legally represented throughout the trial pleaded not guilty to the charge. He tendered a plea of guilty to assault. The State rejected the plea of guilty to assault and the matter proceeded to trial on the murder charge. The State tendered an outline of the summary of the State case (Annexure A), which was read and is part of the record, and the accused tendered a defence outline (Annexure B) which was also read and is part of the record. In his defence outline the accused stated that he shot Martin in self-defence and in defence of property, and in the alternative that there was a novus actus interviens in that Martin bled for a long time at the hospital resulting in his death. [3] The accused made admissions in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] (CP & E Act). The admissions relate to the evidence of certain witnesses as it appears in the summary of the State case. HB 9/24 HCBCR 667/23 [3:1] The evidence of Pardon Sola is that he is employed as a mine worker at Lyn 24 Mine. He knows the accused as a security guard at the mine. He did not know the deceased during his life time. On 2 December 2021 at around 0000 hours, he heard three gunshots. The shooting occurred at the main shaft which was 150m from his tent. He proceeded to the main shaft and on arrival he saw a person, whom he now known as Lameson Bhanditi (Banditi) lying on the ground facing downwards. The accused told him that he had apprehended two unknown males who had unlawfully entered the mine shaft and he shot one of them who fell back into the shaft. He was assisted by other mine workers including one Cloud Mapondera to rescue the one who was shot, whom he now know as Martin. He noticed that Martin was shot on the thigh and was bleeding profusely. He put Martin in a wheel barrow and pushed him to the Mine office which is about 300m from the shaft. In the company of the accused and the mine manager he drove Bhanditi and Martin to Filabusi Police Station. He left Banditi at the police station and took Martin to hospital were died on admission. [3:2] The evidence of Cloud Mapondera is that he is employed at Lyn 24 Mine as a supervisor. On 2 December at around 0000 hours, he was awakened by Pardon Sola, a co-worker at the mine who informed him that two thieves had been apprehended at the mine’s main shaft. He went down the shaft with Pardon Sola to rescue Martin. Upon bringing him to the surface, he noticed that he had been shot on the right thigh and had sustained a deep wound and was bleeding profusely. [3:3] The evidence of Munyaradzi Danda is that he is a member of the Zimbabwe Republic Police (ZRP) stationed at Filabusi Police Station. On 2 December at around 0430 hours, he was on night shift manning the Charge Office. He received a report of sudden death from Pardon Sola. He was informed that Martin died after sustaining a gunshot wound. HB 9/24 HCBCR 667/23 [3:4] The evidence of Losen Mufarachisi is that he is a member of the ZRP stationed at Filabusi Police Station. On 2 December he accompanied Sergeant Chinembiri to Lyn 24 Mine to attend the scene of crime. He was present when Sergeant Chinembiri arrested the accused and he witnessed the recording of the warned and cautioned statement. His evidence is that the accused was informed of his rights and he gave his statement freely and voluntarily. [3:5] The evidence of Innocent Chinembiri is that he is a member of the ZRP and the investigating officer in this matter. On 2 December at around 0700 hours, he was allocated a case of murder which had occurred at Lyn 24 Mine. He went to the crime scene in the company of other police officers, and they searched for cartridges but did not find any. He observed that the shaft was about two meters wide and seven meters deep. There was a ladder descending to the depth of the shaft. He noticed that from about two meters in depth going back into the shaft, the walls of the shaft were severely blood stained. He recovered a shotgun, a Franchi Calibre 12 bore, with serial number 614015 and one round from the accused. He recorded a warned and cautioned statement from the accused, and the accused gave his statement freely and voluntarily. The statement was confirmed by a magistrate at the Filabusi Magistrate’s Court. [4] The State tendered with the consent of the accused the following documentary and real exhibits: a Post Mortem Report No. 1302-978-21 (exhibit 1) complied by Dr. S. Pesanai. The doctor opined that the cause of death was haemorrhagic shock and gunshot wound on the right thigh. A confirmed warned and cautioned statement of the accused (exhibit 2), and a shotgun, a Franchi Calibre 12 bore, with serial number 614015 (exhibit 3). [5] The State called one oral witness and the accused testified in his own defence. The evidence of the witnesses will be summarised briefly. [6] Lameson Bhanditi (Bhanditi) testified that Martin was his cousin. He testified that Martin was employed at Lyn 24 Mine, and was staying at the Mine. He was staying in a tent. On 1 December Martim invited him to Lyn 24 Mine. He had gotten a job at Lyn 24 Mine and he was going there to start work. On 2 December one Brighton gave Martin a fuse or an explosive and said “go to the shaft and use it where you were working.” He went down the HB 9/24 HCBCR 667/23 shaft with Martin, and he was not carrying anything, Martin was carrying a fuse. When the witness and Martin were down in the shaft, they saw a light at the entrance of the shaft. The two thought it was Brighton who was holding that which was beaming the light. When they came out of the shaft, they were not carrying anything. He denied that he was carrying a catapult and that Martin was carrying an axe. Bhanditi climbed the ladder to exit the shaft, when he was about to exit, he saw a security guard carrying a gun, and he was ordered to come out of the shaft and he did. He was ordered to lie down and his hands were tied from his back. Martin was still in the shaft. He heard a gunshot. Martin was shot and he heard the accused saying “today I got you, you thought this was a pellet gun.” Martin fell down into the shaft. Thereafter some people came to remove Martin from the shaft. [7] Under cross examination Bhanditi testified that he knew the owner of Lyn 24 Mine as a Mlilo. He said he and Martin had authority to enter the shaft because Martin was employed at the mine. He said Martin phoned the manager who authorised them to go inside the shaft and said he would see them in the morning. The witness confirmed that they got into the shaft after 12 midnight. Put to him that they were not given express authority to enter the shaft, his answer was that he had not seen the manager but he was phoned. Asked whether he was employed at the mine, he said he had come from Zvishavane to start work at the mine. Put to him that as he had not started work, and had no authority to enter the shaft, his answer was he was being sho