S v Simoyi (CRB 118 of 2015) [2015] ZWHHC 560 (3 June 2015)

1 HH 560/15 CRB 118/15 THE STATE versus LOVEMORE SIMOYI IN THE HIGH COURT OF ZIMBABWE BERE J MASVINGO CIRCUIT, 3 & 4 June 2015 Assessors: 1. Mr Dauramanzi 2. Mr Mushuku Criminal Trial E. Chavarika, for the state S. Chirairo, for the accused BERE J: This trial is as a result of the untimely death of Lovemore Simoni (the deceased) on 1 April 2010 at village 2 Levanga, Chiredzi. The deceased died as a result of multiple stab wounds and the accused stands charged of that murder as informed by s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], to which the accused pleaded not guilty. The allegations as framed by the state are that on 31 March 2010 the accused who was a son to the deceased picked up a quarrel with the deceased over the accused`s imputation of witchcraft to his mother. As a result of that dispute the deceased then ordered the accused to leave his homestead. The accused together with his wife and child were forced to put up at a friend`s house that evening. The accused returned to the homestead on the following day, the 1st of April 2010 and the dispute with the deceased spilled over to that day with the result that the accused ended up stabbing the deceased thereby tragically ending his father’s life. The accused has put up a defence of self-defence. He said that when he stabbed the deceased, he did so in the heat of the moment. The accused stated in his defence outline that when he was confronted by his parents, his mother was wielding a hoe and the accused HH 560/15 CRB 118/15 reasonably believed the deceased had cornered and intended to kill him and the accused then struck the deceased in circumstances of self-defence. THE EVIDENCE In its effort to secure the accused’s conviction the state relied on the following pieces of evidence which were tendered by the consent of both counsel: the accused’s confirmed warned and cautioned statement, the post mortem report and the evidence of the following witnesses which was admitted into evidence as recorded in the state summary in terms of s314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Further, the state also sought to buttress its case by leading evidence from the accused’s mother, Martha Gumbo and the accused’s sister Janet Simoni. The accused was the sole witness for the defence. THE LAW In our law as currently framed the defence of self-defence is recognisable in terms of s 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The act does recognise that self-defence shall be a complete defence in the following situations “ 253 (1) ...................if (a) when he or she did or omitted to do the thing, the unlawful attack had commenced or was imminent or he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent, and his or her conduct was necessary to avert the unlawful attack and he or she could not otherwise escape from or avert the attack or he or she, believed on reasonable grounds that his or her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape from or avert the attack, and the means he or she used to avert the unlawful attack were reasonable in all the circumstances............” (b) (c) As is clear from the Act, in order to succeed, the defence of self-defence must be well anchored and it admits of no fanciful or imaginative situations. The facts surrounding the situation an accused finds himself/herself in must justify the action that he takes. Anything short of that would deprive an accused of the benefit of relying on this defence. The evidence of the two state witnesses who struck the court as simple and unsophisticated villagers largely confirmed the dispute that occurred between the accused and the deceased and how it spilled over into the following day leading to the fatal assault. Both witnesses were largely in agreement that the serious conflict between the accused and the deceased got pronounced and nasty after the accused had openly told the deceased that he would not leave the homestead as instructed by the deceased. The two HH 560/15 CRB 118/15 witnesses further testified to the effect that as a result the accused and the deceased started shoving each other following the slapping of the accused by the deceased which was followed by a missed clenched fist on the deceased by the accused. Martha Mlambo testified to our satisfaction that she did not see how her husband, the deceased sustained the fatal injuries as this happened behind the accused`s hut where the two protagonists had pushed each other. We accept Martha’s evidence that she was nowhere nearer the actual scene of the assault. This lacuna in the state case was filled up by the second state witness Janet who from the look of it appeared to have placed herself at a vantage point to enable her to see what was happening between her brother and the deceased. This witness told the court that when the deceased and the accused got behind the accused’s hut the two continued shoving or pushing each other and the deceased started chasing after the accused. The critical part of her evidence was that when the accused was about ten metres away from the deceased who was unarmed, he turned and struck the deceased once on the chest with a knife and that the next thing she saw was the deceased falling, standing up and staggering to walk towards his homestead. The witness said she did not know how the deceased ended up with multiple stab wounds as she only witnessed one stabbing by the accused. That the deceased staggered as he struggled to walk back into his yard is confirmed by his wife Martha who was the first to render very basic first aid assistance to the deceased as he struggled to recover from the stab wounds. Janet appeared quite candid with the court when she confessed that she did not witness how the other stab wounds were inflicted since at one point she had to look away from the scene where the deceased was stabbed. Despite the fact that there were some undesirable features of Janet’s testimony like the fact that her evidence was punctuated by some loss of memory on certain critical aspects of her testimony we are satisfied that she generally gave us a fair account of the events of the day. We think her evidence may have been affected by the fact that she found herself in the unenviable situation of having to give evidence in a case involving two close family members with whom she enjoyed cordial relationships. The accused is her biological brother and the victim is her biological father. The only criticism that we found against Martha was her attempt to deny that she had reported the accused to the deceased of having labelled her a witch. This denial is inconsistent with the rest of the evidence in this court which give the impression that the main HH 560/15 CRB 118/15 source of conflict between the accused and the deceased centred on the former having labelled Martha a witch. In our view, there is no way the deceased would have known about the accusation of witchcraft other than through Martha. To her credit however, she was candid to inform the court that she did not see how the deceased got the fatal stab wounds. The accused`s testimony, in all fairness was rugged and inconsistent first with itself and with the rest of the evidence on record. In his defence outline the accused had given the impression that the reason why he stabbed the deceased was because he found himself languished by his mother who was holding a hoe and his father the deceased whom he reasonably thought he intended to attack him. Contrary to this outline, in his evidence in chief and under cross examination he completely abandoned his defence outline and gave a completely new set of events which surprised all of us and I believe his defence counsel included. For the first time the accused told the court that as he tried to run away from the deceased, the latter tripped him and attempted to stab him with an