The State v Collen Moyo

### Preamble
1
HB 112/19
HC (CRB) 22/19
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THE STATE

Versus

COLLEN MOYO

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr T. E. Ndlovu & Mr J. Sobantu

HWANGE 10 & 11 JULY 2019

Criminal Trial

Miss M. Munsaka for the state

N. Ndlovu for the accused

MAKONESE J:	On the night of 5th November 2018 around 1900 hours, the 21 year old accused and the deceased, who was aged 26 years at the time he met his tragic death were at Teakdale Bottle Store, Nyamandlovu drinking alcohol.  Also present at the bar was Jabulani Sibanda, a friend to both accused and the deceased.  Large quantities of beer were consumed by the accused, the deceased and Jabulani.  The accused was consuming an alcoholic drink known as “Ranger”.  It is a highly potent spirit.  That night alone the deceased drowned at least 10 bottles.  The bottles contain (250ml).  At around 2300 hours the two left the bottle store.  They were on their way to their respective homes when a misunderstanding arose between accused and the deceased.  There was an angry confrontation.  The accused was overpowered by the deceased and Jabulani.  The accused fled and armed himself with a kitchen knife.  Whilst deceased was inside his bedroom hut, asleep or preparing to sleep the accused stabbed the deceased on the left side of the chest.  The deceased bled to death as a result of the single stab wound.

The accused appears in this court facing a charge of murder.  It being alleged that on the 8th of November 2018 at Jethro Nyathi’s homestead, Nyamandlovu the accused wrongfully and intentionally stabbed Givemore Mpofu on the left side of the chest with a kitchen knife, thereby causing his death.  The accused pleaded not guilty and raised the defences on provocation and intoxication.  The accused tendered a plea of guilty with respect to the lessor offence of culpable homicide.  The state did not accept the limited plea and the matter proceeded to trial.

In his defence outline the accused contends that he committed the crime after he was provoked by the deceased and Jabulani.  He avers that on the day in question a quarrel ensued between himself and the deceased.  The deceased and Jabulani assaulted the accused indiscriminately all over the body with clenched fists.  He sustained injuries on his head and all over the body.  Further, the accused was overpowered by deceased and Jabulani who were both older than him.  The assault continued with Jabulani and the deceased alleging that accused did no respect him and that they wanted to teach him a lesson.  The accused states that he lost his temper, armed himself with a knife and struck the deceased on the left side of the chest once.  Accused goes further to indicate that he had no intention to kill the deceased who was his friend.  Accused avers that he “lost his mind” at the time he stabbed the deceased.  The accused raised a further defence of intoxication.  He alleged that he was so drunk that his judgment was impaired as he had spent the whole night drinking alcohol.  Accused alleges that he had also smoked unspecified quantities of dagga and that the combined effects of alcohol consumption and dagga rendered him incapable of having an appreciation of the consequences of his conduct.

This then, was the accused’s version in the outline of his defence, which now forms part of the record.  The state produced a post mortem report compiled by Dr Roberto Lara Diaz after an examination of the remains of the deceased.  The report was filed under report number 1092/1091/2018.   The pathologist concluded that the cause of death was:

Acute anemia

Heart injury

Stab wound

On marks of violence the report reveals that the deceased sustained a wound measuring 4 x 2cm located in the interior and left side of the chest below the left chest bone.  There was wound in the interior and left interior and left lateral part of the left ventricle measuring 4cm.  From these injuries it is clear that the stab wound was deep and penetrating.  Considerably force must have been used to inflict this wound.

The accused’s confirmed warned and cautioned statement recorded at ZRP Tsholotsho on the 11th November 2018 was tendered by the state.  The English translation of the statement is in the following terms:

“I am pleading guilty to the charge levelled against me, that I caused the now deceased Givemore Mpofu’s death.  In the evening around 1800 hours he went to drink beer with the now late Jabulani Sibanda.  When the beer garden closed we went back home and we were drunk.  We had an altercation on our way back home.  The now deceased said to me “since we have caused you to drink, you are now going to tell your (bosses) employer and they will come and assault us, as to why do we go with you to a beer drink”.  I am not going to do that”.  They then said I am disrespectful.  I tried to run away and one of them struck me with a stone on the head.  I fell to the ground and sustained a bruise on my knee.

When I tried to stand up he assaulted me again.  I ran away and got into the homestead.  I then realised that my cellphone and wallet were missing.  They threw stones to the direction of the homestead.  When they left I took a knife and followed them and caught up with them in front of the homestead, where the now deceased was staying.  I hid up to the time they separated.  After that the now deceased got into the hut where he was staying.  I came out of hiding and got into the homestead and went straight to his hut.  On arrival I kicked open the door and got inside.  The now deceased got shocked and said, “you young man what do you want?”  I suddenly struck him with a knife on the chest and came out and ran away.  I do not remember stabbing Jabulani Sibanda because I was drunk,  I came to know about this, when my (employer) told me in the morning that I cause the now deceased’s death.”  (emphasis added)

The state tendered into the record a kitchen knife as an exhibit.  The knife weights 5.0grams.  Its blade is 18.2cm.  The width of the blade at its widest point is 2.5cm.  The tip of the knife is 1mm.  The length of the handle is 11.5cm.

Before leading viva voce evidence, the state sought  and obtained formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:57).  The evidence of the under listed witnesses as it appears in the summary of the state case was accordingly admitted with the consent of defence counsel, namely:

Doctor Mudimba

Zondiwe Ncube

Ivhu Dube

Dr Roberto Lara Diaz

The state opened its case by leading evidence from JABULANI SIBANDA.  The evidence of this witness was essentially that on the night of the fateful day, he, deceased and accused went on a drink binge.  The witnesses consumed opaque beer before taking some spirit known as “Ranger”.  The witness admitted that he was quite drunk although he appreciated what was going on around him.  He conceded that the accused and the deceased were equally heavily intoxicated.  They consumed significant quantities of a spirit known as “Ranger”.  The witness however said the deceased was not so drunk as to be unaware f the events of the night.  The accused was not hopelessly drunk and was not staggering.  An argument erupted between him and the accused as they walked to their respective homesteads after the beer drink.  The witness fairly conceded that he assaulted the accused with open hands on the face.  The deceased joined in the assault.  As soon as they got to the deceased’s homestead, the accused had remarked that he was going to fix the deceased and the witness.  At that point the deceased and the witness went separate ways.  The witness hid behind a tree.  Accused continued making threats that he would fix the two that night.  The witness exchanged blows with the accused.  The accused fled the scene.  The deceased got inside his bedroom hut to sleep.  In the early hours of the morning, the witness was woken up by Doctor Mudimba who reported that the deceased had been stabbed with a knife.  The witness and Mudimba went to see the body of the deceased.  They observed that there was blood all over the floor.  The deceased had a stab wound on the left side of the chest.  A report was made to the neighbourhood watch committee members one Keyi Moyo.  The witness narrated to the villagers who had gathered what had transpired the previous night.  The witness teamed up with villagers and they proceeded to accused’s homestead.  A search was conducted and accused was found hiding behind a toilet and was apprehended by Keyi Moyo.

The evidence of the witness was given in a calm, credible and straightforward manner.  The witness conceded that accused was drunk on the night in question.  He conceded that he had assaulted the accused and had fled the scene.  The court accepts the evidence of this witness as an accurate reflection of the events of the fateful night.  The witness was not contracted under cross-examination.

The state closed its case.

The defence opened its case by leading oral testimony from the accused COLLEN MOYO, who elected to give evidence under oath.  The accused largely adhered to his defence outline.  There were material departures from the version in the confirmed warned and cautioned statement.  The accused struggled to give the impression that he was so drunk that he was not able to recall the events as they transpired, leading to the death of the deceased.  The accused admitted stabbing the deceased once in the chest inside deceased’s bedroom hut.  On the version of the accused he acted under extreme provocation.  Accused indicated that he had been assaulted by the deceased and accused following at least two episodes of violent confrontations.  In the first encounter, the accused was assaulted with fists all over his body with clenched fists.  He was struck with a stone and sustained injuries on the head.  Accused escaped but was later engaged in another physical confrontation outside deceased’s homestead.  On the second occasion the accused was overpowered by the deceased and Jabulani.  The accused’ version, at this stage is at variance with the state case.  The accused stated that he lost self control when he stabbed the deceased.  He avers that as a result of the effects of the intoxicating liquor and dagga he had smoked he did not appreciate the consequences of his conduct.

When one takes a closer look at the accused’s in the confirmed warned and cautioned statement, the striking observation is that the accused’s account simply does not add up and is false.  In his warned and cautioned statement accused gives a lengthy and elaborate account of the events.  The accused is able to give details on how the altercation occurred on the first incident.  The accused goes on to correctly give an account where he was overpowered by the deceased and Jabulani.  On the second encounter, accused avers that stones were thrown at him.  Crucially, this is the stage when accused states he went to collect the kitchen knife.  When he went to collect the knife, the deceased had entered his bedroom hut and was asleep or preparing to sleep.  Accused indicates that the deceased was shocked to see him and said in Isindebele “wena mfana ufunani lapha”, meaning “young man what do you want?”  The accused himself indicates that the deceased was shocked to see him inside the hut.  Without uttering a word, the accused struck the deceased once on the left side of the chest.  The accused fled the scene.  The accused must have known that he had fatally stabbed his victim.  This was clearly a surprise attack on the deceased.

Accused confirmed under cross examination that he had waited for the deceased to be alone in the hut before he entered the hut and pounced on the shocked deceased.

Whether the defence of provocation is available to the accused

In terms of our law, the defence of provocation is provided for under section 239 of the Criminal Law Codification and Reform Act (Chapter 9:23).  The law is fairly settled and there is a number of decided cases in relation to this defence.  The requirements for this defence are:

The accused must have lost self control

The provocation must be sufficient to make a  reasonable person to lose his self control.

It is provided in our law that if the court finds that a p a person accused of murder was provoked but that the provocation was not sufficient to make a reasonable person in accused’s position to lose self control, the accused shall not be entitled to a partial defence but the court may regard the provocation as mitigatory.  In his book South African Criminal Law and Procedure, the author Jonathan Purchell states the following at page 415 (4th Edition)

“An accused who acts voluntarily and with criminal capacity might nevertheless on the basis that, as a result of provocation, he or she lacks the intention to commit crime.”  See also the case of S v Mafusire HH-130-10.

The court finds that the stabbing of the deceased was not a result of provocation.  The accused had sufficient time to cool down and gather his thoughts.  He planned to arm himself with a kitchen knife.  He hid and wanted to pounce on the unsuspecting deceased.  He mounted an opportunistic attack on the deceased inside his hut.  The attack itself was well planned and executed.  The accused wanted for Jabulani to leave the deceased’s homestead.  He saw the deceased enter his hut.  Accused convinced himself that he could mount a surprise attack.  He did succeed in his plan.  He stabbed the deceased once in the chest.  The post mortem is consistent with an intention to kill.  The wound was not superficial but ripped through the rib case injuring the heart.  On the established facts the court rejects the defence of provocation.  The court makes a specific finding that the stabbing was not a result of provocation.

Whether the defence of intoxication is available to the accused

In terms of section 227 of the Criminal Law Codification and Reform Act, a person charged with a crime requiring proof of intention and was voluntarily intoxicated to such an extent that he lacked the requisite intention, such intoxication shall not be a defence to the crime, but the court may regard it as mitigatory when assessing the sentence to be imposed.

In this matter the undisputed and established facts are as follows:

The accused was indeed drunk on the night in question

The accused left the beer garden with his friends and the deceased, walking home to retire to bad

The deceased was able to walk and was not staggering

At some stage the accused was able to run away from the deceased and Jabulani Sibanda

The accused went and collected a kitchen knife and waited for the deceased to enter his bedroom hut

The accused mounted a surprise attack on the deceased who was asleep or preparing to sleep.

The court comes to the conclusion that although intoxication may be taken into account in this matter as a mitigatory factor in sentencing the accused was not so intoxicated as to fail to appreciate the consequences of his conduct.  The accused was fully in charge of his mental faculties.  The attack itself was well planned and executed with precision.  The attack achieved the intended objective.

It is settled in our law that intention may be inferred from the circumstances of the case and the conduct of the accused.  An accused desires to bring about the death of his victim where he pursues his objective and takes preparatory steps to achieve his objective.  An accused who arms himself and waits for an opportunity to stab his victim has the desire to bring about the death of his victim or realises that there is a real and substantial probability that death may occur.  The intention is inferred from the conduct of the accused.

We are satisfied that the accused possessed the requisite mens rea to cause the death of his victim.  Moments before the stabbing, the accused was heard saying “Today I will fix you”.  These words were directed at the deceased and Jabulani.  In our view, the state proved its case beyond reasonable doubt.

In the result, the accused is found guilty of murder with actual intent.

There is a very worrisome trend where youthful offenders between the ages of 18 years and 21 years are resorting to violence through the use of dangerous weapons such as knives, mattocks and axes.  In the majority of cases dealt with in these courts the murders committed by these youthful offenders arise out of paltry disputes.  The consumption of alcohol and other intoxicating substances and the smocking of dagga has exacerbated the problem.  Youthful offenders are appearing on charges of murder with worrying frequency.  It has been a well established principle of sentencing in our jurisdiction to keep young first offenders away from the harsh conditions of the prison environment wherever possible.  The courts have imposed rehabilitative sentenced on first offenders, especially those that are youthful.  In this matter, the accused was aged 21 years at the time of the commission of the offence.  We take into account that the accused was subjected to extreme provocation by the deceased and his associate.  The accused was physically assaulted and sustained some injuries.  That factor reduced the moral blameworthiness of the accused.  Further, the accused was evidently drunk on the night in question.  He had consumed substantial quantities of alcohol.  On the facts as established through the evidence placed before the court the murder was committed in aggravating circumstances.  The murder was preceded by an unlawful entry.  The accused kicked the door to the deceased’s bedroom before stabbing him.  The stabbing was clearly premeditated.  In terms of the provisions of section 47(4)(a) of the Criminal Law Codification and Reform Act, where an accused is convicted of murder in aggravating circumstances he shall be sentenced to death, or life imprisonment or a  definite period of not less than twenty years.  The provision is peremptory.

Inspite of the youthfulness of the accused and the other weighty mitigating factors in this case, the appropriate sentence as provided by the law is a definite period of not less than 20 years.

In the result and accordingly the accused is sentenced as follows:

“Accused is sentenced to 20 years imprisonment.”

National Prosecuting Authority, state’s legal practitioners

Ncube Attorneys, accused’s legal practitioners