S v Sibanda (HB 235 of 2020; HC CRB 95 of 2020; XREF PLUMTREE CR 101 of 2019) [2020] ZWBHC 235 (9 October 2020)

1 HB 235/20 HC (CRB) 95/20 XREF PLUMTREE CR 101/11/2019 THE STATE Versus KHOMBA FOREMAN SIBANDA HIGH COURT OF ZIMBABWE MOYO J with Assessors Mr P Damba and Mr M Ndlovu BULAWAYO 24 SEPTEMBER AND 9 OCTOBER 2020 Criminal Trial Mr B Gundani, for the state Mr N Sibanda and Ms S Sibanda, for the accused MOYO J: The accused person faces a charge of murder, it being alleged that on the 11th of November 2019 he struck the deceased Petty Sibanda with an axe on the head causing her instant death. The accused person denies the charge. The following were tendered into the court record as exhibits and they were all duly marked. - The state summary. - The defence outline. - The affidavit of the police officer who identified deceased’s body to the Doctor who certified her dead. - The post mortem report. - The accused’s confirmed warned and cautioned statement. - The axe that was allegedly used in the commission of the offence. The evidence of:- - Betwell Moyo - Khayelihle Sibanda - Nlebgwe Dube - Simbarashe Mubayiwa - Cornelius Mataba and Doctor Erasmus Hapanyengwi HB 235/20 HC (CRB) 95/20 XREF PLUMTREE CR 101/11/2019 was admitted into the court record as it appears in the state summary. The state called Felinotho Tshibuma to give evidence on behalf of the state and the accused person gave evidence for the defence. In essence this is a one version trial where the only version regarding the crucial moments on the fateful day is that of the accused person. The evidence of Felinotho Tshibuma is only relevant wherein she tells the court how she received the news of deceased’s death from accused’s son in South Africa and her leading police details to accused’s home, with accused making indications resulting in the exhumation of the deceased’s body. The accused person tells the rest of the story. The narration of the events relating to this matter deserves a comment that this is one sad and most unfortunate incident to befall the community. The facts of the matter are largely common cause. Accused was 74 years at the time of the commission of the offence. He was married to the deceased. They have 8 adult children all based in South Africa. They lived together as husband and wife having done so for years. Currently they also lived with their grandchildren. The deceased was 66 years old at the time of her death. Given an opportunity to take the witness stand, the accused told the court that he is an Agritex pensioner and a farmer. He said he would like to apologise before the court and he said he had been pained by what he did. He further said that he knows that what he did is very bad and that he regrets so much when he looks at how himself and his wife used to do things and that now he cannot do them. He told the court that they used to plan together, farm together, and do projects together. He further told the court that the wife always performed better than him in these projects and she had more energy. He said that together, with deceased they won competitions in farming and that at the time of her death they had a project to produce stock feeds. He told the court that deceased was a leader of many donor aided organizations and that she was the chairperson of the Early Farming programme. He told the court that he realises that he may not be able to do all those things without her. He told the court that on the fateful morning he woke up early intending to go and fetch firewood. He took an axe. He went to the kitchen and then left the axe there, he proceeded to deceased’s bedroom hut to greet her. He questioned her as to the manner of their life in the homestead considering what she was doing. Deceased responded by saying if accused was not happy with her deeds he could do what he wanted to do. Accused then recounted the incidents relating to her behavior. He told her of the night he found her out while he had been to the fields to watch out for wild pigs. She denied HB 235/20 HC (CRB) 95/20 XREF PLUMTREE CR 101/11/2019 that. He told her of another incident when he found her not there and had to pour water on her bed and blankets as proof. When she came back she said she had been to the neighbour’s homestead at night. Deceased had not responded and accused then proceeded to that neighbour’s place and questioned the neighbor about deceased’s claims but the neighbor had refuted that. When accused asked for advice from that neighbour, the neighbour had stated that she could not assist as she knew that deceased would overpower the accused. On the fateful day deceased, then responded by saying accused could do whatever he wanted to do. Accused then took the axe and feigned an attack on deceased who then pushed the accused person and he fell. He became even angrier, and then took the axe and assaulted deceased using the back of the axe. He struck her on the head and she fell down, then he got afraid realising that he could have killed her. He then took a sack and an empty fertilizer bag, wrapped her body and hid it in the field by burying it headlong in an antbear hole after ferrying it there using a wheelbarrow. He then put some dry branches over the hole. He then prayed and washed the wheelbarrow at the homestead. He then sat at the homestead thinking of what to do next. He then went to the fields to collect the things that deceased had left there. He later phoned the children in South Africa and told them of their mother’s demise. The police later came leading to his arrest. He also told the court that he is not a criminal but what he did was wrong and it was out of a heartache that he did what he did. He further said he would like to have a meeting with his family and ask them to go and apologise to his in-laws and to send them some token as well as to give his in-laws the deceased’s property. Under cross-examination he confirmed that he struck the deceased 3 times on the back of the head using the back of the axe. He said that deceased had pushed him when he struck her. He further told the court that he interpreted deceased’s words to the effect that he could do whatever he wanted as disrespect. Asked why he decided to go and collect the axe he said he had gone to look for something to use to assault her and then found the axe. Further questioned as to why he had to use the metal part of the axe and not the wooden part, he then said he was confused at that point in time. He said that he suspected the deceased had an affair. He said he confronted deceased so that they could talk about it but she responded in a disrespectful way. He said that he did not specifically look for the axe but that it is the one that was available at that point in time. HB 235/20 HC (CRB) 95/20 XREF PLUMTREE CR 101/11/2019 He admitted that he was wrong by introducing the axe and that he could have resolved the dispute through mediation, he told the state counsel that he would not dispute what was being put to him but that he was angry, provoked and confused. He said after striking her for the last time that is when he panicked and started shivering. Questioned about his realization that he would cause her death by striking her in that manner, he answered by saying he was confused, he did not know what he was doing and that if he had realised he would not use the axe. He said he had suspected deceased of having an affair for 5 months prior to the fateful day. He said at the time he buried his wife he was confused. He further told the court that he was trying to reprimand the deceased by using the axe and he thought deceased would relent when she saw him holding an axe but she did not. He said he is very sorry and he still wonders what had happened that caused him to kill his own wife in that manner. The state counsel submitted that the element of provocation was not to the extent as to reduce accused’s moralblameworthiness and that he should accordingly be found guilty of murder with constructive intent. Defence counsel submitted that accused should be acquitted on the murder charge and instead