The State v Ngulube and Others (115 of 2024) [2024] ZWBHC 115 (25 October 2024)

1 HB 115/24 HCBCR 1197/23 THE STATE Versus LAUD NGULUBE And TOBIAS DUBE And GIVEMORE NGWENYA IN THE HIGH COURT OF ZIMBABWE MANGOTA J with Assessors Mr Ndlovu and Mr Sobantu BULAWAYO 14 & 15 May, 14, 15 , 30 August , 6 September and 25 October 2024 Criminal Trial K. Jaravaza for the state T. Tashaya for the 1st & 2nd accused persons S. Mutandi for the 4th accused MANGOTA J The accused persons are charged with one count of murder as defined in section 47 of the Criminal Law Codification and Reform Act (Chapter 9:23) (“the Act”) and another count of attempted murder as defined in section 189 as read with section 47 of the Act. The allegations of the State in respect of the first count are that, on the evening of 20 August, 2020 and at Arda Balu Estate’s main gate in Umguza, the one or the other or all of the accused persons attacked one Enerst Dube with a machete and an axe and, in the process, killed, or caused the death of, the latter person ( “the deceased”). The State alleges, further, that, when the accused attacked the deceased, they intended to kill him or cause his death. It alleges that they realized a real risk or possibility of death ensuing from their conduct and, their realization of a real risk or possibility notwithstanding, they persisted in their unwholesome conduct. The State’s allegations in respect of the second offence is that, on the evening of 20 August, 2020 and at Arda Balu Estate’s main gate in Umguza, the accused persons assaulted one Ashley Manyemba with a blunt object on the latter’s head and left him for dead. It claims that, when they assaulted their victim in the manner described, they intended to kill him or they realized that there was a real risk or possibility of him dying but, their realization of a real risk or possibility notwithstanding, they continued to engage in their unlawful conduct. HB 115/24 HCBCR 1197/23 All the three accused pleaded not guilty to the two charges. None of them admits having ever been at the scene of crime. All of them raise the defence of the alibi. They, in many respects, challenge the State to prove its case against them beyond reasonable doubt. The first accused, for instance, was arrested at Kizinet Dube’s homestead on the morning of 21 August, 2020. He alleges that he had gone to the homestead in question to drink beer with many of his workmates. He states that he works as a gold miner at Master Cecil Mine. He claims that, when the neighbourhood police arrested him, he thought that it was to do with the debt which his friend owed to Kizinet Dube who operates a shebeen at her homestead. He states that he told the police who arrested him that, on the day of the alleged offence, he left his work-place with his workmates and went to Joko Mine Bottlestore where he drank beer from 6 pm of 20 August, 2020 to 4 am of the following day. He denies having arrived at the Bottlestore at 10 pm of 20 August, 2020 as one of the State witnesses is alleging. He insists that nothing which was recovered from him links him to the offence(s). He denies that he arrived at Kizinet Dube’s homestead in the company of accused persons 3 and 4 or that he arrived there carrying a khaki jacket. Accused 2 states that he is self-employed as a gold paner at Joke Mine. He claims that, on 20 August, 2020 he left his place of work at 7 pm going to Joke Mine Bottlestore where he joined others and drank beer till early hours of the following day. He was arrested from Joke Bottlestore, according to him. He denies knowing any of his co-accused whom he claims he only met when he was in police custody. He denies having anything recovered from him which belongs to the deceased. He challenges the State to prove its allegations against him. Accused 4’s defence is brisk. He states that, on the day of the alleged offences, he was at Greenhaven which is along Victoria Falls road where he was drinking with his friend one JB or Samamo. He claims that he spent the night of 20 August, 2020 drinking beer at Greenhaven. He only went to Kizinet Dube’s shebeen in the morning of the following day from where the police arrested him, according to him. He claims that, when he got arrested, he was of the view that he was being arrested for being in a shebeen without a mask as this was during the period of the covid pandemic. He states that it was only when he was at Sauerstown Police Station that he was told that he had been arrested for murder. He denies having ever acted in common purpose with accused 1 and 4, as the State is alleging. The physical act (actus reus) accompanied by the requisite mental state (mens rea) complete the definition of the crime of murder. The physical act is the application of force on the person of another. It is sometimes synonymously referred to as assault, attack and/or such like words. The mental state, mens rea, is the intention to kill, or to cause the death of, another person. It more often than not manifests itself in the assailant’s act of planning to kill, and/or actually killing, his or her victim. It may also manifest itself in the assailant’s appreciation of the consequences of his or her unlawful conduct and the asssailant’s continued intention to cause the consequences to occur regardless of his or her appreciation of the same. This, in legal parlance, is referred to as constructive intention or legal intent. The above-described set of circumstances are all bundled up in Section 47 of the Act. The section defines the crime of murder. It falls under the heading Crimes Against the Person. It reads as follows: HB 115/24 HCBCR 1197/23 “ (1) Any persons who causes the death of another person- (a) Intending to kill the other person; or (b) Realising 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 real risk or possibility shall be guilty of murder”. An act falls into the definition of an attempt if one of the elements of the offence is not fulfilled. Attempted murder, for instance, has the complete intention to kill, or to cause the death of, another person. It becomes an attempt when the assailant’s conduct does not go to the act of killing a person or when it falls short of the completed actus reus. Attempt is defined in section 189 of the Act. This reads: “ (1) Subject to subsection (1), any person who – a) Intending to commit a crime, whether in terms of this Code or any other enactment; or b) Realising that there is a real risk or possibility that a crime, whether in terms of this Code or any other enactment, may be committed, does or omits to do anything in preparation for or in furtherance of the commission of the crime, shall be guilty of attempting to commit the crime concerned”. The maxim which states that he who alleges must prove has survived the test of times for a considerable duration. It, in fact, has remained true for all times, so to speak. Reference is made in the mentioned regard to such case authorities as R v Difford, 1937 AD 370 at 373; S v Mapfumo and Others, 1983 (1) ZLR 250 (S) as well as the learned writings of Van Der Linden’s Institutes of Holland, 3rd edition, page 155 in which the following excerpts appear in their undiluted form: i) ii) iii) The onus of proof is on him who affirms and not on him who denies; The onus of proof is on the plaintiff, not on the defendant who, on failure of proof of the plaintiff must be absolved, although he himself has not proved anything; If the plaintiff and the defendant both state a fact in a different way, the plaintiff must first prove that which he affirms. The above-mentioned set of circumstances enjoin the State to prove the guilt of the accused persons. It alleges that they killed the deceased. It alleges further that they attempted to kill Ashley Manyemba. Because it is affirming, it must prove beyond reasonable doubt that which it is affirming. In line with the onus which rests upon it, the State produced a number of exhibits and called a number of w