S v Ncube (HB 119 of 2016; HC CRB 49 of 2016) [2016] ZWBHC 119 (11 May 2016)

1 HB 119-16 HC (CRB) 49-16 THE STATE versus FORTUNE NCUBE HIGH COURT OF ZIMBABWE MATHONSI J BULAWAYO 10 AND 11 MAY 2016 Criminal Trial Ms S. Ndlovu for the state S. Nyathi for the accused MATHONSI J: The accused person, a 46 year old mine employee, is charged with murder in contravention of s47 of the Criminal Law Code [Chapter 9:23] it being alleged that on the night of 24 December 2015 at Joplum Mine, Springs Farm Kessington Bulawayo, he wrongfully, unlawfully and intentionally killed Sindisani Sibanda, a male adult then aged 24 years. The allegations are that the accused and the deceased were workmates at Joplum mine in Kessington Bulawayo where a drinking party had been organized on the night of 24 December 2015. As the workers at the mine were carousing the accused and the deceased had a misunderstanding and, as so often happens when people have taken copious amounts of intoxicating liquor, the deceased is said to have attacked the accused with a shovel but was restrained by a witness, Duke Khumalo. The accused is said to have picked up an iron bar, exhibit 5, which was lying around and struck the deceased three times on the head causing him to fall down unconscious. The incapacitation of the deceased appeared to inspire the accused to further attack the deceased as he is said to have struck him five more times on the back with the weapon killing him instantly before taking to his heals, only to surrender himself to police at McDonald Police Base the following day on Christmas day. The accused pleaded not guilty to the charge. In his defence outline, while admitting attacking the deceased as alleged and pleading drunkenness, the accused denied any intention to kill the deceased. He stated that he had acted under extreme provocation as the deceased HB 119-16 HC (CRB) 49-16 insulted him continuously. On three occasions the deceased had attacked him with stones angry that the accused had fingered him out as the person who had stolen seven bottles of spirits stored in the accused’s room. On the third occasion the deceased has used a shovel to attack him and after repelling that last attack, the accused says he succumbed to the extreme provocation and also acted in self- defence while drunk. Picking up an iron bar which fortuitously happened to be lying around he attacked the deceased. In those circumstances he “failed to judge or measure his response.” The state led evidence from Duke Khumalo who witnessed the killing of the deceased. His evidence is to the effect that he is the one who organized an end of year party for all the mine workers at the mine complex on 24 December 2015. When he got to the venue he found the deceased and the accused exchanging insults over a dispute he did not know. He managed to calm down the two combatants but no sooner had peace prevailed than the deceased picked up a shovel and confronted the accused intending to strike the accused with it as he stood by the fire. The deceased shouted obscenities at the accused. When he tried to strike the accused with the shovel, the latter succeeded to block the attack with his arm and then withdrew an iron bar which he used to strike the deceased once on the forehead felling him to the ground. While on the ground, the deceased was struck a further two times on the back of the neck thereby incapacitating him. The accused retreated about three paces while still holding the iron bar before turning round and launching a fresh attack on the deceased after remarking that he was now finishing off the deceased. He struck the deceased a further five times on the back before absconding leaving the deceased bleeding from the forehead apparently dead. According to the postmortem report the deceased had multiple injuries including injuries to the head, a ruptured liver and injuries to the abdomen. The doctor observed that the cause of death was haemorrhagic shock, haemoperitoneum, ruptured liver, blunt force trauma in the abdomen due to assault. What is significant is that the blows which the accused directed to the deceased’s head may not have been fatal. Quite to the contrary, it is the blows directed elsewhere on the deceased’s body which killed him. That is significant in that to the extent that the accused incapacitated the deceased by the blows to the head, had he ended then the deceased could have lived. HB 119-16 HC (CRB) 49-16 The accused also gave evidence in essence reiterating his position as summarized in the defence outline. He added that although he does not deny the possibility of assaulting the deceased as alleged by the state witness, he does not know the number of times he hit the deceased neither does he know the parts of the body to which the strokes were directed. Not very useful testimony one would say. According to him he was so intoxicated that although he could still make a fire to cook, he was incapable of cooking himself. Although he left intending to go to the police post 6km away, he could not make it there but slept in the bush, only arriving there at 6am the following morning. He says he was accompanied by workmates when he finally arrived at McDonald Police base but does not tell us where he got these workmates and when, especially as Khumalo was the last man standing and told us the accused had left running. There is also a dispute as to when he surrendered himself. Sikwila’s admitted evidence is that it was 24 hours later. The accused has raised essentially three defences namely provocation, self defence and intoxication. We will deal with those three defences in turn backwards starting with intoxication. The position of our law is that voluntary intoxication at most can be a partial defence. In specific intent crimes like murder which the accused is presently facing, where it has been established that the accused person voluntarily consumed alcohol to the extent of losing self-control or inhibitions, that defence will reduce the crime to a lesser crime, for instance culpable homicide. Professor G. Feltoe, A Guide to the Criminal Law of Zimbabwe, 3rd edition Legal Resources Foundation, at page 22 makes the important observation that the court must therefore explore carefully the actual effect upon the accused of his consumption of liquor or drugs. The learned author goes on to say: “Liquor and drugs affect different people in different ways. It may be that, although he consumed a considerate amount of liquor, the liquor did not remove his ability to discern what he was doing and he was still able to form the intention to commit the crime. Some people become easily intoxicated and become drunk after consuming a small amount of liquor and others are able to consume a considerate amount of liquor and still remain in control over their mental faculties.” In carefully examining the actual effect of the liquor on the accused person, it has not escaped our notice that he was able to restrain himself considerably when the deceased was belting out insults at him. He was also able to ward off the shovel attack with his left arm HB 119-16 HC (CRB) 49-16 suggesting that not only was he strong enough he was also in control of his mental faculties. We are also mindful of the fact that when he responded to the deceased’s misbehavior, he felled him to the ground with a single blow and the deceased remained there throughout. Indeed the accused is said to have retreated after incapacitating the deceased. It was only after a while that he returned to inflict the fatal blows avowing: “Let me finish him off.” It occurs to us therefore that the liquor the accused consumed did not remove his ability to discern what he was still doing and he had sufficient control of his faculties to formulate an intention. His avowed intention was to finish off the deceased. In that regard the defence of intoxication is not available to the accused. Regarding self defence, the legal position is that a person is entitled to take reasonable steps to defend himself against an unlawful attack and to i