The State v Bongani Willard Dube

### Preamble
1
HB 119.19
HC (CRB) 62/19
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THE STATE

Versus

BONGANI WILLARD  DUBE

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Mr P Damba and  Mr  E Mashingaidze

BULAWAYO 2, 3, 4 & 19 JULY 2019

Criminal Trial

K Jaravaza for the state

A Ndebele for the accused

MABHIKWA J:	The accused is facing a charge of murder as defined in section 47 (1) (a) of the Criminal Law (Codification and Reform) Act, Chapter 9:23.  It was the state case that the accused was 33 years old whilst the deceased was 30 years old at the time of his death.

On the evening of 23 June 2019 the accused and the deceased were patrons at Ndutshwa General Dealer’s shop.  The deceased stood up, bought a razor blade from the shop and went to sit next to the accused on a bench.  After some few minutes he bought another razor blade and went back to sit next to the accused.  Suddenly there was an altercation with the accused shouting at the deceased accusing him of cutting his pockets in order to steal money from him.

The accused then allegedly assaulted the deceased with clenched fists and a knobkerrie several times all over the body, until he was rescued by fellow patrons Noel Ndlovu and Isaac Sibanda.  The deceased was eventually ferried to a hospital in Plumtree before being transferred to Mpilo General Hospital in Bulawayo where he passed away on 20 July 2017.

The accused person denied the murder charge in his defence outline.  He stated in the outline that he was indeed at Ndutshwa shop on the day in question.  He bought beer and relaxed.  He dozed off for a few minutes and whilst dozing, he felt someone trying to pick-pocket his right side pocket.  When he checked he noticed the deceased walking to the counter to buy something.  He also noticed that his right side pocket had been slit by a sharp object.  Accused states that he remained calm, pretending to be dozing off whilst keeping an eye on the now deceased’s movements.  He noticed the deceased slicing his left side pocket apparently with a razor blade.  He got hold of the now deceased and asked him what he was up to.  The now deceased became rowdy where-upon the accused asked that they discuss the issue at the veranda.  He further states in his outline that as they headed for the veranda, the now deceased struck him with a fist resulting in him punching the deceased in return.  Deceased allegedly then fell off the verandah stoep and hit on the hard surface headlong.

He states that he only fled to Bulawayo and South Africa because some young men from Ndutshwa village which borders Tsholotsho and Plumtreee areas were baying for his blood.  He finally states that it was not his intention whatsoever to kill the deceased but he fought and overpowered the deceased in a beer drink fight after the deceased had tried to steal from him.

From the evidence before it, the court will start by ignoring completely the issue of an axe allegedly having been used.  The axe issue only appears in the doctor’s post mortem report as part of the “summary of history” where the doctor states “

“axe and knobkerry are said to have been used by Bongani Mthwalo at Ndutshwa Primary school. “

That is just a summary given at the hospital to nurses or the doctor directly.  Quite often, that information is given by close relatives of the deceased or injured who may not even have been at the crime scene.  It cannot be taken against the police or the state witnesses.  All state witnesses did not see any axe during the attack.  It is clear that whoever supplied that information was not at the scene.  He/she got both the nameS of the victim and the place of crime wrong.

However, what is important is somewhat a show of honesty in that point, by all the state witnesses, including police witnesses, who were consistent that there was no axe used and they did not know the source of that information.

Secondly, the court will discard the evidence of a bottle having been used.  The state witnesses were very inconsistent on the use of a bottle.  Some stated that they did not see fragments of a bottle as claimed elsewhere in the state papers.  Some, though mentioning a bottle, they did not see whether or not it had been used and how.  In any event, the only witness who testified on the use of the bottle was the shop keeper Sehlaphi Tshuma.  However, she denied that the bottle struck the deceased on the head and it broke.  She said it was directed in the abdomen area and did not break.  The whole evidence of the use of a bottle remained unconvincing and unreliable.

This court will however reject the accused’s claim that there was ja brief exchange of blows, first by the deceased and a retaliation by him just towards the veranda causing the deceased to fall over the verandah stoep hitting his head once on a hard surface.  This only comes from the accused and no other witnesses.

The court will accept as credible, the state witnesses’ evidence that the altercation and assault took place right inside the shop where the attempted pick-pocketing took place.  On this point, the state witnesses are corroborated even by the accused’s own warned and cautioned statement which shows that as soon as he got hold of the deceased whilst in the act of  picketing inside the shop on a bench, which bench Sehlaphi says was towards her counter, the altercation ignited.  He states in the extra curial statement that he retaliated immediately by striking the deceased on the head with a fist and also by kicking him once on the shoulder blade.

Sehlaphi Tshuma is a former girlfriend of the accused and at times tended to be economic with the truth in his favour.  She however was clear on the evidence that twice the deceased bought razor blades from her and went to sit next to the accused who was alone on a bench.  She did not notice what deceased was doing with the razor blades.  Suddenly accused stood up and asked what the deceased was doing pointing to his slit trouser.

She stated that as the deceased stood up the accused struck him with fists and he fell.  He then continued using a combination of fists, open hands and kicks until he got a knobkerrie from one young man who was standing there.  The court is convinced that the young man who supplied the knobkerrie must be one of the people who are said to have been shouting and urging the accused to “kill the donkey thief.”

Sehlaphi was also adamant that she did not see the deceased attack the accused first nor did she see him retaliate throughout the assault.  What she witnessed was clearly a sustained attack, not a fight.  She had absolutely no reason to lie on that aspect and the court believes her as having been orally credible.

The evidence of Manager Dube was very short and simple.  On the day in question, he heard noises at the shops.  Curiously, he went and entered Ndutshwa shop where the commotion was.  On arrival, he found the accused carrying a knobkerrie pummeling the deceased.  The deceased was his uncle.  Some people were cheering and urging the accused on, whilst others were trying to refrain him.  He then tapped or nudged the accused on the shoulder in a bid to plead with him.  The accused turned around and punched him once with a clenched fist.  The witness immediately retreated, went out and ran to call the elder relatives.  The court observed the apparent condition and appearance of this witness in court, with his stammering, almost blurred speech.  He is unlikely to have decided to engage into a fist fight but rather, to react in the manner he did.

As already stated, his evidence was precise, honest and credible with no exaggeration or malice.  It was an excise in futility to spend time asking him about things that largely took place in his absence and to attempt to make him confirm that his uncle was a thief.

Isaac Sibanda also admitted that he is related to the deceased.  He also knew the accused well before the incident.  His evidence also was very short, stating only what he witnessed with no attempt to exaggerate.  He states that he was actually drinking beer outside the shop in question when suddenly he heard noise and commotion emanating from inside the shop.

As he went to check, he stood by the doorway.  From that position, he noticed that the now deceased had fallen to the ground beside the shop counter.  He also observed people grabbing the accused as if to refrain him.  Suddenly the accused managed to break loose, ran towards the deceased and trampled on him.  As the deceased’s relative, the witness says he got in and pleaded with the accused not to further assault the deceased and the accused then retreated.   This gave him the chance to take the deceased out of the shop and ultimately to a fire place behind the shop.

The witness was clear and honest that he witnessed only the trampling and that deceased was trampled on whilst lying down facing upwards. When asked about any injuries he observed on the deceased, he indicated that later on when he had taken the deceased outside and was pouring water on him, he observed that the deceased had sustained a wound on the head. It was clear again that in spite of him being a relative, this witness came in at the very end of the assault but did not exaggerate or falsely incriminate the accused.

Asked in cross-examination about an axe and bottle allegedly used to assault the deceased, he was emphatic that he did not see any axe at the scene neither did he see a bottle, even the broken bottle fragments alleged.  This, to the court was an honest witness.  A malicious and vengeful witness, given a chance to testify in a murder case of his aunt’s son, would have jumped onto the opportunity to lie about the axe and bottle.

When asked about a knobkerrie, he confirmed that indeed when the accused trampled on the deceased in the rib cage area, he was carrying a knobkerrie and the witness took out the deceased leaving the accused still carrying the knobkerrie.  This evidence is consistent with that of the first two witnesses who stated that the knobkerrie was indeed used on the deceased, with Sehlaphi saying the assault concentrated on the abdomen and rib cage area whilst Manager stated that the assault was all over the body especially from the abdomen area upwards with at least 3 strikes landing on the head.

The witness (Isaac) was honest again when asked whether the deceased reacted or retaliated.  He said he would not know, since he came in at the end as he did.  Be that as it may, it is incorrect in our view, to argue that that was an admission that the deceased could have attacked the accused first.  This is so because the witnesses who saw it all, including those whose evidence in the outline of the state case, and admitted in the record in terms of section 314 of the Criminal Procedure And Evidence Act (Chapter 9:07) were clear that the deceased may have attempted to steal, but he never attacked the accused or retaliated during the sustained assault.

The last state witness Noel Ndlovu’s evidence was largely unhelpful to this court save to state that he arrived just as Isaac was laying the deceased down outside.  He observed that the deceased had sustained an injury on the side of the forehead.  The court accepts the evidence of the last two witnesses also as credible.

It appears from the evidence therefore, that realising that the deceased was trying to steal from him as he dozed, accused, according to his own defence outline and evidence decided to pretend that he was still dozing yet he was now fully awake and watching the deceased’s actions closely.  He then caught the deceased in the act of attempting to steal, and all hell broke loose.  He unleashed a flurry of punches and kicks on the hapless, drunk and obviously guilty conscious now deceased.  In that process he was buoyed by the swelling gathering crowd.  Some were chanting and urging him to “kill the donkey thief.”  He even got a knobkerrie from one of these people and continued to attack the deceased.

The court will reject in toto, the accused’s claim that the deceased attacked him first.  We will also reject the claim that deceased might have died from one fist blow in the veranda area leading to a fall over the stoep.  As already stated, no witness other than the accused witnessed that version of the events.  Witnesses also seemed not to know the stoep being referred to in cross-examination.  This court will also reject the accused’s belated evidence in court that the deceased actually stole from him about ZAR100 as an attempt to take advantage of Joel’s evidence that when they (relatives) searched the deceased’s pockets, they found ZAR106 .

Before Joel’s evidence which came last in the state case, the common position, including in the accused’s own warned and cautioned statement, as well as the defence outline, was that the deceased only attempted to steal.  The court will also reject as being against the nature of and the flow of evidence in this case, the claim by the accused that after the attempted pick-pocketing, he politely asked that he and the deceased discuss the issue at the veranda and that surprisingly the deceased became rowdy and struck him first.  Naturally, the reverse would be more likely, with the accused being the more incensed.  In any case, evidence is that people had rushed to that shop to watch the drama and there were people at the doorway.  Isaac is in fact one of those who briefly watched from the doorway before he decided to enter the shop and intervene since he was a relative.

The court is satisfied that although he had indeed been provoked by the attempted theft from him, in the circumstances of this case, the provocation cannot have caused loss of self-control to the extent of vitiating intent, even in the form of dolus eventualis as envisaged by section 238 and 239 of the Criminal Law (Codification and Reform) Act (Chapter 9:23).

It is this court’s finding that firstly the accused had a chance to react differently when he had felt deceased’s hand in his pocket but deceased had then gone to buy a second razor blade.  He did not.  Instead he decided to pretend to have fallen asleep and trap the deceased.  Supposing he be forgiven for thinking differently in that regard, he still had the chance to calm down when he had beaten up the deceased with fists and booted feet when people were refraining him.  He did not.  The court finds that instead, he got carried away by those that were chanting and urging him “to kill the donkey thief.”  He got a knobkerrie and continued kicking and striking the rib cage area or such parts of the body as the neck with booted feet which on its own is risky and may potentially cause loss of life.  A random, indiscriminate and sustained attack with a knobkerrie on a hapless man was clearly reckless.  The court however rules out actual intent to kill.

In State vs Mugwanda section 19-02, the Supreme Court set out the requirement of actual and legal intention.  An accused will be convicted of murder with legal intention if he does not mean to bring about the death of the victim but foresees that whilst engaged in some activity, death is a possibility and he proceeds regardless of the consequences – the requirements being:

subjective foresight

as to possibility, not probability

recklessness

See also State v Mudzana – SC-76-04.

This was not a school boy chisticement where the blows are directed to a particular part usually the buttocks whilst the boy stands still.  To argue in such circumstances, that the knobkerrie strikes were not directed to the head and therefore did not land on the head, has never been a plausible argument in my view.	 The accused must have foreseen the possibility of causing death and therefore he foresaw such possibility but none the less persisted in that conduct regardless of the consequences.  He was reckless and persisted despite the risk of possibility of death.

In the result, and for the foregoing reasons, the accused is found guilty of murder with constructive intent

Sentence

In assessing sentence, the court will take into account the accused’s circumstances and the circumstances surrounding the commission of the offence as stated by your counsel.

The accused was 33 at the time the offence was committed.  He has a very young family of a wife and 5 children all of whom are at primary school.

The court will consider also that the provocation by the deceased’s attempt to pick-pocket him as well as the alcohol that he had consumed may well have influenced the accused to react in the manner he did.  The court will consider that a combination of those two (2) factors may have impaired and compromised the accused’s sense of judgment and rational thinking.  This of course is not to condone the taking away of human life.

It has also been stated in accused’s favour and it has not been disputed by the state, that as early as the following, morning the accused relented and attempted to go and check on the deceased’s condition but his trip to the deceased’s home was cut short by the fact that whilst on the way, it emerged that young men from Ndutshwa village were mobilizing each other and baying for his blood in revenge.  However, it has been submitted further that the accused’s remorsefulness was further shown by the sorrow he felt after hearing of the deceased’s death whilst he was in South Africa and decided to come back home and surrender himself to Plumtree police.  Meanwhile through his mother, he had assisted in the burial of the deceased by hiring the vehicle that ferried the deceased’s body from Bulawayo to Ndutshwa for burial.  The court will also consider that the accused has spent 13 months in custody awaiting triat.

On the other hand however, the courts have always emphasized the sanctity of life.  As a result, the courts frown at every loss of a life no matter the circumstances.  No family or children for that matter deserve to lose their father in circumstances of a man taking the law into their hands.  Life is sacred, even the lives of those considered to be criminals by society.  The fact that one is rogue, a pick-pocket or a donkey thief does not justify the taking away of his life.  Those who take the law into their hands instead of upholding the sanctity of human life must expect exemplary sentences from the courts.

The accused’s personal circumstances, the circumstances under which the offence was committed, and the interests of society shall all be blended into a delicate balance to constitute the interests of justice.

Because of the provocation, influence of alcohol and the 13 months already spent by the accused in pre-trial incarceration, the court will temper justice with some measure of mercy and settle for one of the lowest sentences in cases of murder with constructive intent.

See state vs James Nyevera – HB-158-18, where in a case involving family fights, the accused stabbed the deceased with a spear.  He was convicted of murder with constructive intent and sentenced to 14 years imprisonment.  Also in State v Emmanuel B Lumure HB 248-18 were the deceased approached the accused and rebuked him.  The deceased did not take kindly to the rebuke and misunderstanding ensured between them.  The accused pulled out a knife and stabbed the deceased once on the chest causing death.  The sentence of 15 years imprisonment was held to be appropriate.

Accordingly, and in the circumstances, the accused is herein sentenced to 14 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Mathonsi Ncube Law Chambers, accused’s legal practitioners