S v Nkiwane (202 of 2023) [2023] ZWBHC 13 (29 September 2023)

1 HB 202/23 HC CRB) 72/23 THE STATE Versus KHOLWANE NKIWANE IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J with Assessors Mr Dewa and Mr Ndlovu BULAWAYO 28 & 29 September 2023 Criminal trial Mr. B. Gundani, for the State Mr. N. Sibanda, for the accused DUBE-BANDA J: [1] The accused, Mr. Kholwane Nkiwane, 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] (Criminal Code). It being alleged that on 13 November 2021 he stabbed Bambeni Ndlovu (deceased) intending to kill her or realising that there is a real risk or possibility that his conduct may cause the death of the deceased and continued to engage in that conduct despite the risk or possibility. [2] The accused, who was legally represented throughout the trial, said he admitted the charge. However, a plea of not guilty was entered as required by law. The State tendered an outline of the summary of the State case (Annexure A), which was read and is part of the record. He tendered a defence outline (Annexure B) which was also read and is part of the record. The accused admitted that he stabbed the deceased, and pleaded self-defence and provocation. He sought that he be found not guilty and acquitted. [3] The accused made admissions in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The admissions relate to the evidence of certain witnesses as it appears in the summary of the State case. [3.1] The evidence of Dr S Pesanai a registered medical practitioner stationed at the United Bulawayo Hospitals. His evidence is that he examined the remains of the HB 202/23 HC CRB) 72/23 deceased and compiled a post mortem report (exhibit 1) depicting the injuries inflicted on the deceased and concluding that the cause of death was haemorrhagic shock; stab wound to the heart; and assault. [3.2] The evidence of Tedius Mkandla is that the accused and the deceased were husband and wife, the accused is his uncle and the deceased was his aunt. On 13 November 2021 at approximately 8 p.m., he was seated outside the house with couple’s children. The accused and the deceased were inside the house. The accused ordered the him and the children to get inside the house. He informed the accused that they were having their supper. The accused retuned to the house. Thereafter, he heard the deceased screaming. This witness and a neighbour called Kenedy Nkiwane entered the house and the accused threw the keys to the ground and said “Here, you can have your things. I am going.” The witness saw the deceased lying on the floor in a pool of blood. [3.3] The evidence of Mike Ndou is that he is a member of the Zimbabwe Republic Police (ZRP). On 13 November 2021 he attended the crime scene and on entering the house he noted that there was a pool of blood near the door. In the bedroom he found the body of the deceased on the floor lying sideways and soaked in blood. The witness observed that the deceased had a stab wound on the right side of the chest. The accused was being attended to by an Ambulance crew as he claimed that he had taken Dichlorvos pesticide. [3.4] The evidence of Joice Maphosa is that she is a member of the ZRP and the investigating officer in this matter. She attended the scene of crime in the company of Mike Ndou and other police officers. She found a blood-stained knife on the window seal. She took the knife and booked it as an exhibit. The body of the deceased was in the bedroom. It had a stab wound on the right side of the chest. On 15 November 2021 she recorded a warned and cautioned statement from the accused. The accused gave his statement freely and voluntarily without any undue influence being brought to bear on his person. The evidence of Constable Wachenuka is that he is a member of the ZRP. He witnessed the recording of a warned and HB 202/23 HC CRB) 72/23 cautioned statement from the accused. The statement was given freely and voluntarily without any undue influence being brought to bear on him. [4] The State tendered with the consent of the accused the following documentary and real exhibits: the Post Mortem Report No. 1213/940/21 (exhibit 1) complied by Doctor S. Pesanai who examined the remains of the deceased. The confirmed warned and cautioned statement of the accused (exhibit 2). An okapi knife with the following measurements: length of handle 8 cm; length of blade 11 cm; and widest part of blade 2 cm (exhibit 3). [5] After the tendering of the exhibits the State closed its case without calling any witness to give viva voce evidence. [6] The accused testified in his defence. He testified that on the fateful day he left home at around 3 p.m. going to the local shops. He left the shops around 7 p.m. going back home. He arrived home at around 8 p.m. He was intoxicated. He knocked at the door and he did not see the person who opened the door for him. When he got inside the house, he saw someone walking out of the house. He asked the deceased about the identity of the person who walked out of the house. The deceased responded by saying “he could not ask her about that he should have asked that person.” In answer to the deceased’s response, he slapped her with an open hand. [7] The accused testified further that he found deceased washing dishes. The knife she was ordinarily using in the kitchen broke a handle, and she was now using the okapi knife for her kitchen chores. She picked the okapi knife and advanced towards him. There was brick in front of the kitchen which caused the accused to stumble and fall. The deceased got on top of him and injured his cheek. The accused tried to disarm her of the knife and a scuffle ensued. The deceased got hold of his private parts and started pulling them and he apologised and screamed. He testified that he was now holding the knife with his left hand and he could not tell how the deceased got stabbed. The accused testified further that he informed the investigating officer that he did not give the statement in his confirmed warned and cautioned statement. HB 202/23 HC CRB) 72/23 [8] Under cross examination the accused testified that he had an altercation with the deceased at their house. This was after he saw a man walking out of the house. He did not recognise the man he saw leaving the house because it was dark in the sitting room. He conceded that he stabbed deceased with an okapi knife and identified exhibit 3 as that knife he used to stab the deceased. He picked up the knife, held it by his left hand and stabbed her. He directed the knife at her body. He testified that he told the investigating officer that the statement (exhibit 2) is not the one he gave to the police, and she said he will have to tell that to the trial court. He said at the time the statement was recorded he was traumatized by the death of his wife. He testified that he was not forced to give the statement, he gave it voluntarily. [9] It was put to him in cross examination that the version in the defence outline that deceased was attacking him was an afterthought, his answer was that is what happened. It was further put to him that in his defence outline he says he stabbed deceased because she was pulling his private parts, he agreed. When put to him that according to his version the stabbing must have been a deliberate act, so that deceased would release him, his answer was that the stabbing was an accident, it shocked him. It was put to him that he could not defend himself by accident, his answer was the stabbing was a mistake. It was put to him that in the defence outline he was not telling the truth, he said it was the truth. When paragraphs 5 and 8 of the defence outline were read to him, he disassociated himself of the averments contained therein and said he was not defending himself, the stabbing of the deceased was a mistake. He made a turn and said the defence outline speaking to self-defence was not a fabrication. [10] He testified further under cross examinatio