State v Thembe (85 of 2024) [2024] ZWBHC 85 (26 June 2024)

1 HB 85/24 HCBR 1762/24 THE STATE Versus BHEKIWE THEMBE IN THE HIGH COURT OF ZIMBABWE MANGOTA J with Assessors Mr Damba and Mr Sobantu BULAWAYO 16 MAY AND 26 JUNE 2024 Criminal trial K. Nyoni, for the state A Duri, for the accused MANGOTA J:- The accused is charged with murder as defined in Section 47 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) (“the Act”). The allegations which the State preferred against him are that, on 25 December, 2023 and at number 7935/38, Sizinda, Bulawayo, the accused assaulted one Orpha Thebe, his sister, whom he hit twice on the upper cheek and once on the occiput area of her person with a traditional wooden stool as well as all over the latter’s person several times with open hands and, in the process, he caused the death of Orpha Thebe (“the deceased”). The State’s further allegations are that, when he assaulted the deceased in the above-described manner, the accused intended to kill the deceased and/or that he realized that there was a real risk or possibility that his conduct might cause the death of the deceased and, his realization of a real risk or possibility of death occurring notwithstanding, he continued to engage in the said conduct. The accused pleaded not guilty to the charge of murder but guilty to the crime of culpable homicide which plea the State refused to accept. He raises the defences of intoxication and provocation. He alleges that he was, on the day in question, so intoxicated as to be incapable of appreciating the consequences of his actions. He claims that on the date that the incident occurred, he had taken two keys whisky for the first time as a way of drowning his sorrows because he had recently lost his job. He alleges that the deceased provoked him extremely. She was the aggressor who fought him aggressively with fists, according to him. He states that he fought with the deceased and that, during the fight, he lost balance and fell as a result of which she pounced on his fallen condition and continued to assault him. He claims that, in a bid to ward her off and avoid her, he picked up the traditional wooden stool which was next to him and he used it to ward her off him with the HB 85/24 HCBR 1762/24 result that she fell onto the floor. He alleges that, believing that he had warded her off, he escaped her aggressive assault and left her lying on the floor as he proceeded to his bed-room where he locked himself and retired to bed. He moves us to find him not guilty of the crime of murder but that of culpable homicide. The case of the accused and his dead sister is, in many respects, a one-sided story. It is one-sided in the sense that the deceased cannot be resurrected from the dead to come and shed light on what actually occurred on the night that she passed on. What we remain with is only what the accused person is telling us as having happened and no more than that. The observed matter places the State in a very invidious position. Invidious on account of the fact that it is upon it that the duty to prove the guilt of the accused rests. It is in the spirit of its duty to discharge the onus of proving the guilt of the accused that the State produced, with the consent of the defence, the following exhibits which, in its view, support its case: a) the post-mortem report which the doctor who examined the remains of the deceased compiled; b) c) the accused’s confirmed warned and cautioned statement-and the traditional wooden stool with which the accused person assaulted the deceased. These were marked exhibits 1, 2 and 3 respectively. The State, with the consent of the defence, applied, in terms of section 314 of the Criminal Procedure and Evidence Act, to introduce into the record the evidence of the following of its witnesses: i) ii) iii) one Masciline Muvengedzwa; one Tembelani Sibanda- and one. Maibelys Gavilani Acosta the doctor who examined the remains of the deceased and compiled the post-mortem report. The State led viva voce evidence from one Pasi Mukwashi, a sergeant in the Zimbabwe Republic Police who, at the time of the alleged offence, was stationed at Tshabalala Police Station in Bulawayo. He is the investigation officer of the case. The trite position of the law is that he who alleges must prove. Van Der Linden clarifies this position of the law. The learned author states, in his Institutes of Holland, 3rd edition, page 155 that the onus of proof is on him who affirms and not on him who denies. HB 85/24 HCBR 1762/24 The State alleges that the accused person killed his sister. It, therefore, bears the burden of proving that he did so. For it to prove its case against him, it has to establish the elements of the crime of murder. These are defined in section 47 of the Act. The section reads, in the relevant part, as follows: “ (1) Any person who causes the death of another person- a) b) intending to kill the other person; or realizing that there is a real risk or possibility that his or her conduct may cause death and continues to engage in that conduct despite the risk or possibility shall be guilty of murder”. It is clear, from a reading of the cited definition of the crime, that murder has two elements which the State must prove, not on a preponderance of probabilities, but beyond a reasonable doubt. The elements in question are the actus reus which, in ordinary parlance, is known as the act of commission or omission and the mens rea or the mental element which must accompany the physical conduct (actus reus) of the accused person. Where one of these two elements is found to be absent, the accused cannot be convicted of murder. He may, depending on the evidence which is adduced, be found guilty of any crime which is a competent verdict on a charge of murder. He may, for instance, be convicted of attempted murder, culpable homicide or assault. Any of these are competent verdicts which a court may deliver on an accused who has been charged with the offence of murder. Because murder is a specific intent crime, where intention to kill is proved on the part of the accused, the matter is at an end. He will properly be convicted of the crime of murder without any further ado. In the majority of cases, however, actual intention to kill may be either absent or difficult to prove. Yet he may still be found guilty of murder on the basis that he had the legal intention to kill at the time that he caused the death of another person. The mentioned form of intention is referred to in paragraph (b) of sub-section (1) of section 47 of the Act. Its meaning and import are clear and straightforward. It operates on the premise that the accused realized a real risk or possibility that his conduct may result in the death of someone and he proceeds to engage in it irrespective of the consequences that may befall his victim. The long and short of the stated set of circumstances is that he has the requisite constructive intention to kill his victim. The actus reus or the physical conduct of the accused is, by and large, not difficult for the State to prove. It more often than not operates on the principle of cause and effect. It HB 85/24 HCBR 1762/24 seeks to answer the question: but for the conduct of the accused, would the deceased have died. If he would not have died and the conduct of the accused is the effective cause of the death of the deceased, then actus reus is proved against the accused. The intention to cause death is more difficult for the State to prove than the actus reus. It is difficult because the accused is able to easily assert, in defence of himself that he was not in his full and sober senses when he killed, or caused the death of, the deceased. It is, for instance, very easy for him to allege, as in casu, that he was intoxicated or that he had been provoked, when he killed his victim. Such an assertion places the State in a very difficult position. Difficult in the sense that it has to lead cogent and concrete evidence which is able to rebut the partial defence o