The State v Nyati and another (120 of 2024) [2024] ZWBHC 120 (27 September 2024)

1 HB 120/24 HCBCR 2008/24 THE STATE Versus MEMBER NYATHI And BRUCE NGWENYA IN THE HIGH COURT OF ZIMBABWE MANGOTA J with Assessors Mr Mashingayidze & Mr Sobantu BULAWAYO 18 JUNE 2024 & 13 & 27 SEPTEMBER 2024 Criminal Trial Ms C. Mabhena for the State S. Mguni for 1st accused T. T. Khumalo for 2nd accused MANGOTA J The accused persons are charged with the crime of murder. The allegations against them are that at 7.30 pm of 30 March, 2023 and at the homestead of one Robert Maphosa, Tjewondo Village in Maphisa, Kezi, they assaulted Robert Maphosa and, in the process, killed or caused the death of, Robert Maphosa (“the deceased”). They allegedly struck the deceased once on the left side of his chin, once on the left ear, once on the back of his head and once on the right side of his head. The claim of the State is that, when the accused assaulted the deceased in the manner described, they intended to kill or cause the death of their victim. It asserts that, in assaulting the deceased as they did, they realized a real risk or possibility that their conduct may result in the death of the deceased and, their realization of the real risk or possibility notwithstanding, they persisted with their unlawful conduct. The accused pleaded not guilty to the charge of murder. They challenged the State to prove its case against them. The first accused raises the defence of the self. He states that he arrived at his home in the evening of 30 March, 2023 from Maphisa where he works as a gold miner and found his wife not at home. He claims that he found accused 2 who works for him at his home with his minor children. He asserts that he left his home in the company of accused 2 who was going to his home as he went to the grazing land to look for his cattle. He states that, HB 120/24 HCBCR 2008/24 on their way to the grazing lands, they passed through the deceased’s home where he found the deceased sitting outside his hut with his wife who, on seeing accused 2 and him approaching, took to her heels. The deceased charged at accused 2 and him wielding an axe with which he struck him on his collar bone forcing the accused to fall to the ground, according to him. He alleges that accused 2 intervened and disarmed the deceased and, in the scuffle which ensued between accused 2 and the deceased, the second accused injured the deceased. He claims that accused 2 and him returned to his home having abandoned his mission to go and round up the cattle. He states that the deceased followed him to his home insisting that the accused should kill him. He alleges that the deceased’s clothes were blood- stained and the deceased, he claims, fell down and became unconscious. He states that accused 2 and him took the deceased out of his homestead to a place where they extract pit sand. He claims that they left him there as they went to inform the neighbourhood watch police of what had occurred. He states that, on their return with the neighbourhood watch police, they found the deceased dead. He prays that he be acquitted of murder and be found guilty of culpable homicide. Like his co-accused, accused 2 prays that he be acquitted of murder and be convicted of culpable homicide. The first part of his defence outline is, in substance, on all fours with that of the first accused. He admits that on the date in question he was at accused 1’s homestead. He states that, when accused 1 arrived, he notified him of his intention to leave to go to his own homestead. It is his testimony that accused 1 accompanied him saying he was going to the grazing lands to round up his cattle. He alleges that his home is in the direction of the grazing lands. He claims that, as they passed by the homestead of the deceased, they saw the deceased sited outside with the wife of the first accused. He claims that accused 1 entered the premises of the deceased and he remained outside of the same as accused 1 inquired from the deceased why the latter person was with his wife. The accused’s wife ran away, according to him. He alleges that the deceased ran into his kitchen hut from where he emerged and approached the first accused with the result that a scuffle ensued between accused 1 and the deceased. He claims that, in a flash of a moment, he saw the first accused lying down holding his left shoulder. He states that he got into the premises of the deceased in a bid to stop the scuffle. He claims that when the deceased saw him, the deceased left the first accused and charged at him. He asserts that he picked up a log which was nearby and assaulted the deceased with it. It is his testimony that accused 1 got onto his feet, ran to the deceased and HB 120/24 HCBCR 2008/24 snatched the axe from him and assaulted the latter person with the back of the axe. He states that they left the deceased at his homestead, discontinued their journey and returned to the first accused’s home. He claims that a while later, the deceased arrived at accused 1’s home shouting insults. He states that the first accused went out of his kitchen and he remained in the same. He alleges that he does not know what transpired between accused 1 and the deceased. He states that accused 1 told him that the deceased had fallen down and was unconscious. It is his testimony that accused 1 requested him to assist him to carry the deceased out of his homestead and he complied. He states that accused 1 and him decided to notify the police about the incident. He claims that he left going to his own home from where he was arrested on the morning of the following day and charged with the crime of murder of the deceased. He alleges that he acted in defence of accused 1 when he struck the deceased with the log. In its ordinary layman’s language, murder is the act of one person killing another person. It is not present where a person kills an animal which is not a human being. As a crime, murder more often than not manifests itself in the application of force by one person upon the person of another. The application of force must be prohibited by law. For the crime of murder to be complete, the person who applies force upon another person must intend to kill, or cause the death of, his victim. Where the intention to kill or to cause death is absent, the elements of the crime of murder are not satisfied and the assailant cannot be convicted of murder. He may be convicted of some such crime as is a competent verdict on a charge of murder, if he (includes she) is not acquitted of the crime. The above-described set of circumstances are appropriately described in Section 47 of the Criminal Law Codification and Reform Act (Chapter 9:23). The section defines the crime of murder in a clear and succinct manner. It reads: “(1) Any person who causes the death of another person- a) intending to kill the other person; or b) 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 real risk or possibility, shall be guilty of murder”. A reading of the foregoing definition shows that, for a person who kills another person to be convicted of murder, he (includes she) must have assaulted his victim, in the majority of HB 120/24 HCBCR 2008/24 cases, with a considerable degree of force and with the requisite intention to kill, or to cause the death of, the latter. He must, in short, have the requisite actus reus which is accompanied by the requisite mens rea respectively. Where one of the stated two elements is not present, the crime of murder cannot be sustained. Another crime which may be born out of murder, depending on the evidence which is adduced, may be found to exist. Having defined the crime of murder as we have done, our next port of call is to consider the circumstances of the accused persons and ascertain whether or not they killed the deceased. In our consideration of such circumstances, we remain alive to the fact that the duty to prove the guilt of the accused persons lies on no one else bu