S v Ncube (HB 60 of 2006) [2006] ZWBHC 60 (31 May 2006)

Judgment No. HB 60/06 Case No. HC 35/06 CRB 631/05 THE STATE Versus GENEVA NCUBE IN THE HIGH COURT OF ZIMBABWE BERE J BULAWAYO 1 JUNE 2006 S Chivaura for the accused Ms Hozheri for the state Criminal Trial BERE J: On 15 August 2004 the deceased (then 79 years old) sustained head injuries which according to the post mortem report (exhibit IV) eventually cost his life on 23 August 2004, almost a week after sustaining the injuries. On exhibit IV the doctor concluded that in his opinion the cause of death was subarachnoid haemorrages and had injuries occasioned by an assault. It is not in dispute that the deceased sustained the injuries on 15 August 2004 which injuries turned out to be fatal. The only dispute in this matter centres on how those injuries came about. The position by the state is that the fatal injuries were intentionally caused by the accused while the accused has attempted to raise the defence of self defence by alleging in his defence outline that he merely punched the deceased who was intent on using a stool against him. The result was that the deceased fell to the ground and onto the wooden stool (exhibit V) thereby sustaining the head injuries. HB 60/06 It is these two competing stories which the court has to determine. The evidence of Sitokisi Ncube For the state Sitokisi Ncube (the deceased’s wife) was the first to give evidence. The witness told the court that on the evening of 15 August 2004 the accused, who is her son arrived at the family’s homestead and found her, the deceased and their two nieces Princess and Patience in the family hut. On being offered food, the accused who had evidently partaken of alcohol declined to take it. She confirmed that accused and the deceased had a misunderstanding over the utterances made by the accused concerning his brother Nicho. The deceased reprimanded the accused and after some heated argument the deceased took his stool and walked out of the hut. It was her evidence that as he walked out of the hut, the accused followed him and the next thing she heard was the deceased remarking “Ah he has hit me with a stool”. She ran outside to investigate and found the deceased lying down and with a deep cut on the head. She remonstrated with the accused person who subsequently disappeared from the homestead only to re-appear 5 days after the incident. The court must adopt a cautious attitude when dealing with the evidence of elderly people and the court must divorce itself from whatever sympathy it may have in favour of such people. Despite her advanced age, the witness gave her evidence fairly well. Her evidence was quite revealing even under cross-examination. She was empathic in her denial of suggestions made in cross- examination which were not consistent with 60/06 her story. We therefore had no difficulties in following her story and HB we are satisfied that she told us the truth. The evidence of Princess Ncube The next witness for the state was Princess Ncube (a 15 year old niece of the deceased). Because of her age, the court was alive to the need to exercise caution because of the usual dangers of casually accepting the evidence of such young children. The witness’ evidence was largely corroboration of the evidence of Sitokisi Ncube. The only variation in her testimony was that she told the court that when the assault took place she and her sibling Patience had ran out of the hut and she watched the accused bend down, pick up a stool and throwing it at the deceased who fell down and was only helped out by the 1st state witness. She observed the assault from a distance indicated in court and estimated by the court to be eight metres. She also confirmed that the accused had partaken alcohol on the day in question and confirmed that the accused had a misunderstanding with the deceased which resulted in the accused throwing obscenities at the deceased before the assault. What the witness saw about the assault confirmed the version of events as told by the first state witness especially about the exclamation by the deceased that he had been hit by the accused with a stool. It is also significant in our view that the evidence told by the two witnesses found support from none other than the accused person I his statement to the HB 60/06 police (exhibit I) which was produced by the state with the accused’s consent as indicated by his defence counsel. In that statement, which the accused belatedly tried to challenge he stated, “I came out of the kitchen hut and the deceased threw a traditional stool at me and I caught it and I struck him with it once on the head, from there I ran away.” In our well considered assessment we found the story told by Princess Ncube, easy to follow and well told. Her cross-examination merely re-affirmed her position in her evidence in chief. It was extremely difficult for us to find any meaningful flaws in her testimony. We are more than satisfied she narrated the truth of what happened during that evening. The evidence of the accused The story told by the accused was largely consistent with his defence outline which was to the effect that he pushed the deceased who was about to strike him with a stool and the deceased fell onto the stool thereby injuring himself with the stool. The first difficulty with the accused’s stance is that his story found no support from none of the three other persons who saw what happened; viz the deceased, Sitokisi and Princess. Worse still the accused’s explanation runs against portions of his own warned and cautioned statement which are self incriminatory and supportive of the remarks made by the deceased, heard by Sitokisi and seen by Princess. HB 60/06 We concluded it would be an idle appreciation of the events of the evening in question if we were going to be detained by the story told by the accused. It was far from convincing and we were unanimously convinced the accused was merely clutching on straws to save himself from the obvious result of his actions on the day in question. We had no hesitation in rejecting his story. At the time the assault took place the accused was 29 years old and the deceased was 79 years old. Accepted, the accused had partaken of liquor and in his own words, he was not very drunk. “Not very drunk” is a phrase which means nothing unless further explained. To try and establish the state of his sobriety, the court did enquire from the accused person who put issues beyond further doubt by saying although he was drunk he knew what he was doing. Both princess and Sitokisi confirmed he accused person knew what he was doing. The accused’s detailed explanation of what happened, which explanation is consistent with the evidence of the two state witnesses suggest the accused was in full control of his faculties. With his normal sobriety, the accused firstly provoked the situation by insulting his father by starting the argument, went further to use obscene language regarding his father. When the deceased decided to leave the kitchen hut to go to retire the accused picked up a home made stool weighing 2,825kgs and hit the deceased on the head thereby causing a serious head injury. It is impossible to imagine that given the disparities in ages between the deceased and the accused and the weight of the stool, HB 60/06 the accused did not foresee that if he used such a stool on the head of his father, he would seriously injure him. The head, being a delicate organ of a human being, the assault was, purposeful, it was meant to injure and it did injure the deceased. The accused must have foreseen and was reckless as to whether death would occur from his aggressive conduct. In the final analysis, our unanimous conclusion is inescapable that the accused constructively caused the death of his father. He is accordingly found guilty of murder with constructive intent. Criminal Division of the Attorney-General’s Office for the state Dube and Partners for accused