S v Ncube and Anor (CRB 95 of 2000) [2002] ZWBHC 100 (5 August 2002)

Judgment No. HB 100/2002 Case No. CRB 95-96/2000 REPORTABLE THE STATE versus NAOMI NCUBE and EPHRAIM KHUMALO IN THE HIGH COURT OF ZIMBABWE KAMOCHA J BULAWAYO 22, 23,24 25 JANUARY, 18 FEBRUARY, 22, 23 AND 24 APRIL AND 6 AUGUST 2002 Mrs M Cheda for the state M J Mellin for the 1st accused Ms P Dube for the 2nd accused Criminal Trial KAMOCHA J: The two accused were charged with murder.      It being alleged that on 13 November 1999 and at house number 2242 Emganwini, Bulawayo both accused or one or more of them did wrongfully, unlawfully and intentionally kill and murder Cephas Ncube, a male adult in his lifetime therebeing. In her plea the first accused raised the defence of non-pathological “criminal incapacity”.    She admitted that she had hacked the deceased with an axe but with no intention of killing him.    She said she had struck him twice with the axe on the neck thinking that she was fixing him.    She concluded that she was incapable of appreciating the wrongfulness of her actions as she acted under non pathological “emotional storm”.    Accordingly a plea of not guilty was entered.    The second accused denied the charge and a plea of not guilty was entered. -2- 100/02 The state outline was read and produced as exhibit one.    In her defence outline the first accused was brief as she sought to rely on the defence of non-pathological “criminal incapacity” which she had pleaded. She stated that she was married to the deceased.    While admitting that she killed him by striking him with an axe she said she was incapable of appreciating the wrongfulness of her act or acting in accordance with an appreciation of such wrongfulness as a result of a non-pathological “emotional storm” brought about by a sustained period of mental and physical abuse of her by her late husband. She went on to say the deceased drank alcohol to excess and that, from the inception of their marriage he verbally and physically abused her whilst under the influence of alcohol and that sustained abuse led to the said non-pathological “emotional storm”. The second accused’s defence outline was as follows.    He said the deceased was his half brother.    He was invited by the deceased to go and stay with him at number 2242 Emganwini suburb Bulawayo.    He did not have any differences or quarrels with the deceased. On the evening of 12 November 1999 he had supper with the first accused and other children.    After 9pm he bade the first accused a good night and went to bed. Sometime during the night he woke up to find the first accused shaking him.    She told him that she had had another quarrel with the deceased and that she had injured him with an axe.    She then asked him to go and see him so that he could dress up and she did. 100/02 -3- He got dressed and found the first accused standing in the living room.    She then told him to go and see the deceased in their bedroom.    He went there and found the deceased lying on the floor.    There were two plastic bags and a pail with bloody water and swabs in the room.    She told him that the plastic bags contained “the tools” a blanket and a bed sheet. After repeating that she had had a quarrel with the deceased and she had injured him, she asked the second accused to help her carry the deceased outside, saying since he appeared lifeless, it was possible that he could be revived by the fresh breeze outside.    He assisted in carrying the deceased outside hoping that he would be revived.    It did not occur to him that the deceased was already dead. A few minutes later, she said the deceased would never wake up.    She then ordered the second accused to go into the house.    She told him not to tell the neighbours or the police that she had injured the deceased.    She said if he did he would be killed by a person he did not know, but the person knew the second accused very well and that person had in fact assisted her in committing the crime. Thereafter she ordered him to go and hide the two plastic bags in the bush and warned him again that if he deviated and went to the police, he would be killed.    He claimed that due to confusion and fear he obeyed and went to hide the items and returned to the house where he found her sitting on a sofa in the living room. She allegedly ordered him to go to bed and warned him again that if he reported her, all that would happen to her was that she would be arrested and jailed, but he would be killed by the unknown person.    He went back to his room but was unable to sleep for the rest of the night. -4- 100/02 In the morning she ordered him to go to the police and report that they had found the deceased outside, next to his car.    She again warned him that he would be killed if he reported something different.    He accordingly went and reported as ordered. He stated that he never struck any blow at all on the deceased and did not take part in the killing of the deceased.    The assistance he rendered to her after she had killed the deceased was not rendered willingly, he was threatened with death and was in a state of shock and fear.    He claimed to believe that there was another person involved who would kill him. He notified the court that he would be challenging the production of his extra curial statement on the basis that it had not been made freely and voluntarily. He alleged that he had been subjected to severe assaults and torture by the police at Bulawayo Central Police Station particularly by one Masuna, whose rank was unknown to him.    He was denied food for two days.    Parts of statements uttered by the first accused were incorporated into his statement and he was forced to admit them.    When he was taken to the remand court he told the court about the above allegations resulting in the court refusing to confirm the statement. The state adduced viva voce evidence from four witnesses.    The evidence of the doctor who performed the post mortem on the remains of the deceased and Glen Gumbo was formerly produced by consent.    The post mortem report was listed as exhibit 12.    Other exhibits produced by consent are these: Exhibit 7 is the axe with which the first accused chopped the deceased twice on the neck.    It is a very sharp axe with a metal handle whose measurements were as follows: -5- 100/02 Length of metal handle - 70 centimeters Length of blade 25 centimetres Width of blade 13 centimetres Weight of axe 3,240 kilograms Exhibit 8 is a smaller axe also very sharp with a metal handle Exhibit 10 is a blood soaked towel Exhibit 11 are 4 blood soaked pieces of a mattress The first prosecution witness was the deceased’s sister Edinah Nyoni who is aged 19 years.    In 1996 she went to live with the deceased and his wife - the first accused.    She said the second accused was deceased’s half brother. Her evidence on the background information was that the marriage of the deceased and the first accused was not a happy one.    She said the deceased used to assault the 1st accused very regularly.    He assaulted her every week at least once a week.    At times she would be assaulted twice or more times per week.    Not only did he assault his wife he also assaulted the two little children.    The witness herself was also not spared.    She was assaulted on three occasions during her stay with the couple. On one occasion she had to be hospitalised.    She told the court that the first accused was also hospitalised as a result of a bad assault perpetrated on her in September 1999.    The first accused used to be assaulted with an electrical cord.    On one occasion she heard the deceased threatening to kill the first accused.    She said the deceased used to go drinking quite often and most of the assaults used to occur after he had been drinking.    The assaults mainly took place in their bedroom during the night. -6- 100/02 Her evidence as regards the crime was that on the evening of 12 November 1999 she went to bed and left both accused in the sitting room.    The next m