S v Sibanda (HB 241 of 2020; HC CRB 103 of 2020) [2020] ZWBHC 241 (12 October 2020)

1 HB 241/20 HC (CRB) 103/20 THE STATE Versus REASON SIBANDA IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J with Assessors Mr Ndlovu and Mr Bazwi HWANGE CIRCUIT COURT 7 AND 12 OCTOBER 2020 Criminal trial Mr. B. Tshabalala, for the state Ms L. Manyeza, for the accused DUBE-BANDA J: The accused is charged with the crime of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act Chapter 9:23. It is alleged that on the 28th of February 2020, at 0100 hours at the Council Beerhall, Bandala Bus Centre, Inyathi, the accused unlawfully struck Lovemore Nxumalo (deceased) with an axe handle and a bicycle chain several times on the head and all over the body, intending to kill him or realising that there is a real or possibility that his conduct may cause the death of the deceased and continued to engage in that conduct despite the risk or possibility. The accused tendered a plea of guilty to the lesser crime of culpable homicide. This plea was not accepted by the State. Accused was legally represented throughout the trial. The State tendered an outline of the state case. It shall not be necessary to repeat the entire contents of the state outline. It now forms part of the record. The accused tendered into the record an outline of his defence case. The state produced a confirmed warned and cautioned statement recorded by the police at ZRP Inyathi, on 29 February 2020. The statement was confirmed by a magistrate on the 2nd March2020. The statement reads: I admit to the charge levelled against me. The reason behind committing this offence is that the now deceased and his friends once assaulted me with an axe before. They were about twelve in number such that I recovered whilst I was in hospital. This is the reason why I lost control over committing this offence and prior to this incident the now deceased had promised to assault me again. Therefore thus why I decided to assault him before he does. The state tendered a post mortem report compiled by Dr I. Jekenya at United Bulawayo Hospitals on 1st March 2020. Following an examination of the remains of the deceased, the pathologist concluded that the cause of death was: HB 241/20 HC (CRB) 103/20 1. Massive subdural haematoma 2. Multiple skull bones fractures 3. Severe head injury 4. Assault An axe handle recovered was produced by the state as an exhibit. Its measurements are as follows: length 85 cm; weight 1.2 kg; width 6 cm; colour brown; made of wood. Again, the bicycle chain was recovered and is before court as an exhibit. Its measurements are: weight 385grams; length 132 cm; width 6mm; colour brown; made of iron. State case The state led oral testimony from two witnesses. The first to testify was Amos Sibanda. He resides at stand 48 Makonjeni homestead, Badala, Inyathi. He knows the accused as a local person, and the deceased was his neighbour. On the 28 February 2020, he was seated with his friends consuming beer at the Council veranda, Badala Business Centre, Inyathi. About a few metres was there a gambling school. He had a thudding noise, he stood up and checked and saw the deceased lying on the ground. Deceased struggled to raise his head, the accused struck him with an axe handle. He tried to raise his head for the second time, accused struck him again with the same axe handle. Accused was holding the axe handle with two hands. When deceased was lying on the ground, accused stepped on his chest, he then struck him with a bicycle chain. He struck on the chest. This witness identified the axe handle and the chain used by the accused. This happened at night, but there was a source of light. After assaulting the deceased accused left and proceeded to his homestead. The second witness was Lyton Moyo, he resides at Village 3 Badala, Inyathi. The accused is his neighbour. He knew the deceased during his lifetime. Accused came to the gambling school, he wanted to play using a cellphone, which was rejected by the gamblers. Accused had no money to gamble, so he left the gambling school, later the accused returned to the gambling school. HB 241/20 HC (CRB) 103/20 Deceased was in the gambling school. When accused came for the first time, he did not talk to the deceased. Again, when he came for the second time, he did not talk to the deceased. When he came for the second time, he threatened this witness, and the witness left the gambling school and went to his home. As he was leaving, he had a cracking sound. The prosecutor sought admissions from the accused in terms of s 314 of the Criminal Procedure & Evidence Act [Chapter 9:07]. The accused admitted the evidence of certain witnesses as contained in the summary of the state case. That is the evidence of Nkosana Nduna. The accused and the deceased were his neighbours of this witness at Badala Village. On the 28th February 2020, at 0100 hours the witness was at a gambling school at the Council Beerhall at Badala Business Centre. The Accused tried to gamble using a cellphone but all the gamblers refused because the phone was an old phone and valueless. The deceased arrived at the gambling school and the accused left as if going towards his homestead. After a few minutes the accused came back and called out to Sa Wisdom and Lyton Moyo saying “watch out” and “basop”. Sa Wisdom and Lyton moved away. The accused produced a one metre axe handle and struck the deceased three times on the shoulders, neck and head, the deceased fell to the ground facing upwards. The witness moved a few metres away. The accused then said to the deceased “you assaulted me with your friends”. The deceased tried to raise his head up, the accused further struck him with log. The accused then said “I want to chop your head and carry it away with me”. The accused then struck the deceased on the other side of the face. The deceased was groaning in pain. The accused continued to assault the deceased with the axe handle. The accused went behind a tank nearby and came back carrying a bicycle chain. He further assaulted the deceased with it on the face and the head. The accused then left the scene carrying his two weapons and said that he was going for Promise. The witness went closer to the deceased and observed that the deceased had wounds on the head and that he was now bleeding. The deceased tried to get up but he fell down. Deceased was later ferried to the hospital in a motor vehicle. The evidence of Assistant Inspector Vakayi Mahwite, a member of Zimbabwe Republic Police stationed at ZRP Inyathi was admitted in terms of section 314 of the Criminal Procedure and Evidence Act. He did not know the accused or the deceased. On the 29th of February 2020, the witness visited the scene of crime and observed blood stains on the ground. He interviewed witnesses. He also arrested the accused who had gone into hiding at a neighbouring Village HB 241/20 HC (CRB) 103/20 (Huntsman), Inyathi. The witness took the accused to his homestead at Bandala Village where he recovered a bicycle chain and a yellow axe handle. The witness also recorded a statement from the accused in the presence of Assistant Inspector Moyo. We have had the opportunity of watching the state two witnesses when they testified in this court. The state witnesses gave their evidence in a calm and sequential manner. We distinctly formed an impression that they were truthful, honest and reliable as witnesses in this court. We can say here without any shadow of doubt that the state witnesses did not embellish their versions to disadvantage the accused. We accept their evidence as the truth of what happened on the 28 February 2020, when the accused assaulted the deceased. This is the State case. Defence case The accused elected to give evidence under oath. He testified that on the 28 February 2020, he assaulted the deceased. The reason for the assault was that when he left the bar going home, he found that the deceased and his friends had waylaid him. The deceased drew a machete and said today we will finish you off. He ran away