The State v Abel Nyandeni and Martin Moyo

### Preamble
1
HB 168.19
HC 9CRB) 86/19
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THE STATE

Versus

ABEL NYANDENI

And

MARTIN MOYO

IN THE HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mr P Damba and Mr O Dewa

BULAWAYO 1 AND 2 OCTOBER 2019

Criminal Trial

S Ndlovu for the state

V Ndlovu for the 1st accused

Dhliwayo for the 2nd accused

MOYO J:		The 2 accused persons face a charge of murder, it being alleged that on the 19th of November 2017 at Insiza bus stop along the Bulawayo-Harare highway they fatally assaulted Chibhase Chinamasa with an axe handle thereby causing his death from the injuries sustained in that assault.  The state tendered the following into the court record .

-	the state summary.

-	the affidavit of the police officer who identified the deceased’s   body to the pathologist.

-	the post mortem report which gives the cause of death as peritonitis, raptured small bowel, blunt force trauma.

-	both accused’s confirmed warned and cautioned statement.

-	the defence also tendered the defence outlines by both accused.

All documents were duly marked.

The evidence of :

-	Constable Zinaka Nicolas

-	Sithokozile Madzuramende

-	Constable Tafa Eniwell

-	Detective Constable Zhou E

and Dr S Pesanai was admitted into the court record as it appears in the state summary.

The state called Mncedisi Ncube who told the court that himself, deceased and both  accused had been drinking beer at Insiza bottle store and that at around 9 pm, deceased and himself left this bar for the main road to look for lifts to go to Shangani.  He said accused persons then emerged from darkness and attacked him and deceased for no apparent reason.  He says he fled leaving both accused assaulting deceased.  He says accused 1 assaulted deceased with an axe handle while accused 2 pinned him down.  He gives an impression that both accused acted in common purpose in assaulting the deceased.  He also told the court for the first time that deceased had told him accused persons had taken his money.  This witness confirmed that deceased, himself, accused 1 and accused 2 knew each other as locals and that accused 1 was related to the deceased through marriage.

Accused 1 told the court that he had an altercation with deceased over a lady of the night at the bar and that when they left the bar for the bus stop this altercation was rekindled causing him and deceased to fight.  He says the state witness was involved on the side of the deceased.  He also says that deceased introduced the axe, and sought to assault him with it, he wrestled it and then hit deceased twice on the abdomen in self defence.  He exonerates accused 2, he says accused 2 did not participate in the fight, he only came in to quell it by snatching away the axe.

Accused 2 denies participating in the fight between deceased and accused 1, he says he followed the deceased, accused 1 and the first state witness, from the bar, found them fighting and quelled the fight by snatching the axe.  We proceed to analyse the versions given to the court.

The problems with the state case.

The state called a single witness whose evidence was not corroborated by anyone or anything serve for what the accused persons admit happened .  Whilst it is competent for a court to convict on the evidence of a single witness.  The court should exercise caution and be alive to the dangers of convicting on the uncorroborated evidence of a single witness.  It therefore follows that such witness’s testimony must be reliable and plausible in all material respects.  In doing so, the court must apply the rules of logic, it must have a common sense approach to the facts before it.  It should ask itself the question whether a version is plausible, whether it is logical and must have happened.  Applying rules of logic to the evidence of Mncedisi Ncube the court finds shortcomings in that these people knew each other, accused 1 and deceased were even related, they drank beer together at Insiza bottle store.

Then the witness and deceased leave for Shangani and accused persons then emerge from the bush and attack them for no apparent reason.  This is illogical.  Accused persons were not said to have been mentally challenged and therefore there must have been a reason for the attack.  The witness did not tell the whole story in our view with regard to this aspect.  He then told the court a new fact that he had not told the police that deceased said accused persons had taken his money.  The problem with this fact is that it is not consistent with the witness’s previous information to the police and again it is illogical for brothers-in-law to rob each other.  If accused persons were strangers to the deceased perhaps that fact could be possible but why would brothers-in-law who were at a bar together suddenly turn robbers on each other? Such is illogical and the court is not satisfied of that assertion by the witness.  The state counsel rightly conceded that this should have been a beer brawl.

On the other hand credit is given to the defence case in respect of accused 1, in that, the story that he told, that he fought with the deceased over some lady of the night is plausible, as some explanation must exist for the fight or assault that later ensued.  Again, accused 1 was consistent on this respect right from the contents of his confirmed warned and cautioned statement and this court has not been shown his departure therefrom.

Also, accused 1, should be given credit as an honest witness because he exonerates accused 2.  Why would he exonerate accused 2 and go down on his own if they perpetrated the assault together?  Accused 1’s version is a reasonable and probable one.  An accused’s version must succeed wherever it is found to be possible, probable and being the reasonable thing to have occurred.  Accused 1 did act wrongfully on the date in question but in circumstances as he alleges.  In relation to the 2nd accused, the first state witness says he saw him pin down deceased as accused 1 assaulted him.  Accused 2’s version has been consistent as well right from the recording of his confirmed warned and cautioned statement that accused 1 assaulted the deceased with an axe.  This is supported by accused 1 himself and although it appears accused 2 assaulted the state witness at the beginning of the fight, he however, restrained accused 1 and deceased by taking away the axe meaning that he, by conduct, disassociated himself from accused 1’s actions of assaulting the deceased.  The state counsel rightly conceded this point.  No wrongfulness has been proven by the state in respect of accused number 2.

Accused number 2 is therefore found not guilty and is acquitted.

Accused 1, assaulted deceased during a fight, he hit him on the abdomen with an axe handle.  He did not aim at the head where a loss of life would either be real or certain.  This court having found that the version that the 2 were fighting is the correct one, the moral blameworthiness of the accused person is reduced such that no intention can be inferred from his actions, but rather, he acted negligently in hitting the deceased during a fight in the manner that he did.

The accused person number 1 is accordingly found not guilty of murder but is instead convicted of the lesser offence of culpable homicide.

Sentence

The accused is convicted of culpable homicide .  He is a first offender.  He has shown remorse.  He told the court the truth regarding his wrongful actions.  He also visited deceased the following morning and apologized.  He is a father of 2 and a breadwinner.  From the facts it appears, deceased also could not get medical assistance promptly a situation that may have exacerbated his condition.  The 2 were fighting and thus had been drinking beer.  Accused was 23 years at the time he committed the offence.  He has also spent 1 year 4 months in pretrial incarceration.  These courts hereby frown at the loss of life through violence.  Beer halls, or bottle stores have become death traps.  People butcher each other to death at these places on the flinsiest of reasons.  Life is sacred and these courts have always emphasized that part.

In sentence though these courts should be guided by the interests of justice and the interests of justice demand that the court looks at the accused’s personal circumstances, the circumstances of the commission of the offence, and the public interest at large.  A careful balance must be struck amongst these 3 constituents of the interests of justice.  Where an accused’s personal circumstances are highly mitigating, or where the circumstances of the commission of the offence do not exhibit a deep seated moral blameworthiness the court will be losing focus in over emphasizing instead, the public interest.  A fine balance has to be struck.  In this matter the accused has weighty personal mitigation.  He is a first offender.  He was 23 at the time, bordering on youthfulness, he told the truth. He showed remorse even by visiting the deceased the following morning.  A custodial sentence is nonetheless the appropriate sentence in the circumstances as these courts cannot trivialize loss of life.  Ordinarily he would have been given a sentence of 5 years imprisonment with 2 years imprisonment suspended due to these mitigating features, but from the usual sentence he must further be credited with the time he has spent in pre-trial incarceration, which is a period of 1 year 4 months.  This would mean of the 3 years effective which he would otherwise save but for the pre-trial incarceration a further 1 year 4 months is discounted.

Accused would thus be sentenced as follows:

Accused 1 is sentenced to 4 years imprisonment with 2 years imprisonment suspended for 5 years on condition the accused person is not within that period convicted of an offence involving violence whereupon such conviction he shall be sentenced to imprisonment without the option of a fine

The National Prosecuting Authority, state’s legal practitioners

Mlweli Ndlovu & Associates, 1st accused’s legal practitioners

Messrs T Hara and Partners, 2nd accused’s legal practitioners