The State v Desmond Phiri

### Preamble
1
HB 304/20
HC (CRB) 75/20
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THE STATE

Versus

DESMOND PHIRI

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Mr O. Dewa & Mr J. Sobantu

BULAWAYO 25, 26 & 27 OCTOBER & 24 NOVEMBER 2020

Criminal Trial

K. Jaravaza for the state

Ms B. Khuphe for the accused

MABHIKWA J:	The accused was charged with the crime of murder in terms of the Criminal Code.  It was alleged that on 24 December 2018, outside house number 22 Matshobana Township in Bulawayo, he stabbed the deceased Jonathan Phiri once on the right shoulder with a knife intending to kill him or realizing that there is a real possibility that his conduct could cause the death of the said Jonathan but nonetheless continued to engage in that conduct despite the possibility or risk leading to the death of the deceased.

It was alleged that the accused was 23 years old at the time the offence was committed.  The deceased was 39.  The deceased was the accused’s uncle.  The two however were not living together.  The deceased lived at number 30095/13 Entumbane Township in Bulawayo.  A protection order had been granted by a court against the accused and in favour of his grandfather Manonoka Mponda.  The order barred the accused from visiting house number 22 Matshobana, Bulawayo.  The accused however occasionally breached the peace order conditions to visit the house.

With consent, the state produced at the beginning of the trial, the following as exhibits.

Post mortem report number 1248-1247-2018 by Dr Roberto Lara Diaz

The accused’s confirmed warned and cautioned statement dated 22 February 2019 at Western Commonage Magistrates’ Court

Interim Protection Order in terms of the Domestic Violence Act [Chapter 5:16] stamped 14 August 2018.  The interim order was to remain in force for a period of five (5) years unless earlier revoked in terms of the Act.

Nothando Mponda

This witness resides at the said house number 22 Matshobana which belonged to her parents.  The accused is her sister’s son.  The deceased was her brother despite the different surnames.  Nothando told the court that at the material time of the incident, she was staying alone at a rented place.  On 24 December 2018, she visited home as she was preparing food for her father, the accused arrived.  He approached her at the fire place.  She left the fire place and went into the house because she was somewhat afraid of the accused.  The accused was carrying bear which he was drinking.  When she went into the house, the accused also attempted to follow her.  The deceased arrived and exchanged greetings with their father.  As the accused was about to enter the house, her father, who is a grandfather to the accused, got up and told him not to enter the house.  The accused responded that it was his home and continued.  The deceased then told the accused to obey his grandfather.  He went further to remind him that the grandfather had him barred by the court from entering the house because of the “Peace Order” granted against him.

A misunderstanding ensued between the accused and the deceased.  Rodwell Mponda intervened.  He refrained the two from fighting.  Eventually, the accused co-operated and left the home after Rodwell suggested that he should leave.  Before then, he had been arguing that it was his home also.  Rodwell escorted the accused out of the gate.  The deceased and his father remained chatting outside.  The witness states that after some time, she heard her niece, one Shantelle calling out that the deceased had fallen.  She took her torch and dashed out.  At the spot where deceased had fallen was a lot of blood.  The accused at the time was just standing there uttering the words: “I will kill you! I will kill you”.  As he uttered those words he was holding a knife.  The witness then sent Shantelle to go and call the police as the accused continued uttering the words “I will kill you”.  He eventually left the scene and only returned after the deceased’s body had been taken away.  He however remained outside the yard hiding behind a pillar.  The witness herself said she did not see any physical contact between the accused and the deceased.  She denied allegations that when Rodwell intervened the deceased was the aggressor and “unstoppable”.

In cross-examination, the witness agreed that at the time of the incident, the relationship between the accused and his grandfather was sour.  She also admitted that generally, the accused was unwelcome in the family although she denied that he was “hated”.  It was put to the witness that the accused was not of any bad character at all but that the family hated him because he had quarreled with one Ronnie Mponda, a brother to the witness and the deceased.  The witness refuted this fact and said it was in fact the accused who was of a violent disposition hence the Protection Order against him.

The witness insisted that inspite of the rebuke by his grandfather not to enter the house, the accused retorted that this was a family house and he would therefore enter it.  She remained steadfast that if the accused had complied with his grandfather’s directive as he now claims, there would never have been the altercation between him and the deceased.  She also refuted insinuations that the altercation was caused by the fact that the deceased had asked for a dollar ($1) from the accused who responded that he had no money.  The witness was clear that she did not see exactly what transpired between the accused and the deceased at the time of the stabbing and therefore cannot, with certainty, tell what may have taken place between them.

We must say that the witness was quizzed on her evidence that the accused was putting on black and white tennis shoes which he did not leave at the gate.  This evidence contradicted that of the accused and another state witness who spoke of slippers or push-ins. It is our finding however, that that evidence and its contradictions was immaterial and did not go to the roof of the state case as will be explained later.

The witness was told, in a series of questions the reasons why the accused picked up a knife from umber 26 Matshobana and then returned to number 22.  She said she could not comment on those reasons as she knew nothing about them and what happened after Rodwell had escorted the accused out of the gate.  The witness however reiterated that at the time the accused was uttering the words, “I will kill you, I will kill you” he was making a gesture pointing the knife at the deceased.

We are satisfied that this witness simply told the court what she witnessed.  She did not seek to exaggerate.  She had in our view no compelling reason to lie against the accused.  Admitted, the deceased was her brother whilst the accused was her sister’s son.  The deceased was nearer to her than the accused in terms of blood relationship.  From the facts and the evidence, nothing has been shown that she may have lied to the court because of that reason.  In our view she was a credible witness.  In any event, she reiterated that she did not see the actual blow that killed the deceased.

Rodwell Mponda

The witness is a younger brother to both the deceased and the last witness.   The accused is his sister’s son (nephew).  The witness is employed by Fortwell Wholesalers.  After work on 24 December 2018, the witness went to his parents’ home at number 22 Matshobana.  He now rents a room at number 31539 Entumbane, Bulawayo.  When he got to Matshobana, he got into the parents’ house to while up time.  He heard the accused’s voice outside.  This was after 1800 hours.  He also heard the deceased talking.  He then heard an altercation.  From the pitched voices, he concluded that his brother and his nephew were about to engage in a fist fight.  When he got out, he found the two manhandling each other.  They were both drunk.

The witness intervened and escorted the accused out of the gate.  The accused bad farewell.  Sometime later a niece came running and informed people in the house that the deceased had fallen.  The witness rushed to the scene.  He found the deceased lying face down.  He was probably taking his last breath gasps.  He could not respond to Rodwell’s call.  Rodwell says that at that time, the accused charged towards them and the gasping deceased brandishing a knife, shouting the words, “I will kill you, I will kill you”. Rodwell remarked to him that there was no one to kill anyway as he had already killed the deceased.  The police were then called.

Rodwell was adamant that what he meant by “manhandling” is that the deceased and the accused had grabbed each other but no fists or punches were thrown.  He intervened and advised them not to fight.  He then advised the accused not to be violent and that is how he left.  He actually escorted him out of the gate and saw him going down the road.  The deceased had remained sitted in the yard with his father under an avaocado tree.  The accused then returned about 15 minutes later and that is when Shantelle came running.

Rodwell agreed that he saw that the accused had left one of his push-ins.  He however denied that this was because the deceased was chasing after him.  Rodwell said he actually told the accused to take his push-in but the accused said he would come back and collect it later. The inference therefore is that the accused knew that he was going to come back. In any case, from his own utterances, that was his home too and he was unfairly being shut out.  He claimed even in his own evidence that inspite of the Protection order, his grandfather, (the complainant in the order) would ask him to visit home.  It is clear that he believed generally or at least on that fateful Christmas evening, that the deceased was the one shutting him out of that house which to him was also his entitlement.

No single witness at number 22 Matshobana testified that the accused left the home with the deceased in hot pursuit.  So it is not true that the accused left one push-in/slipper because the deceased was fighting him and in hot pursuit right up to number 26 Matshobana.  This is in fact corroborated in a way by the evidence of the following crucial witnesses.

Fanani Mleya

Fanani Mleya was 15 years old at the time of the murder incident.  He was 17 when he testified.  He is a young and neutral witness.  There is no dispute that he knew the accused as a person from the neighbourhood at number 22 Matshobana, about 100 metres from his grandparents’ house.  There is no dispute that on the fateful evening, the accused got to number 26 Matshobana and took a kitchen knife from the dishes that Fanani was washing.  The accused himself says so in his own defence outline.

Fanani’s evidence was short and simple.  At some time around 2100 hours he took the dishes out to wash them.  He briefly got back into the house to collect something.  When he returned, he then saw the accused standing there just next to a pillar where he was washing the dishes.  The accused greeted him and he responded.  He bent down to continue washing the dishes.  When he next raised his head, he realized that the knife was missing and the accused too was no longer there.  The little boy says he quickly followed intending to get the knife back.  When he caught up with him, he said to the accused “Uncle can I have the knife back.” The accused insulted him and harshly told him to go back into his house.  The boy appears to have found this scary because he rushed into the house and woke up his grandmother who appears to have been asleep already.  When he told the grandmother about the knife, she told him to get into the house.  The grandmother herself immediately proceeded to number 22 Matshobana.  The knife grabbing incident must have sounded tense and ominous. Indeed upon her return from number 22, the grandmother told young Fanani that the accused had stabbed his uncle with the knife.

Fanani also disputed allegations that the accused got to number 26 and grabbed a knife because the deceased was in hot pursuit.  He said he did not see the deceased at all at any stage.  The court is satisfied that the “hot pursuit” story is a creation by the accused.

Mduduzi Moyo

He was 14 years old.  He resided at number 22 Matshobana and the accused was his cousin.  His evidence was similar to the evidence of Nothando and Rodwell Mponda. The only difference in evidence is that he told the court that the deceased punched the accused once on the face with a fist before Rodwell intervened and escorted him out of the gate.  He said the accused did not retaliate.  Mduduzi vehemently refuted the point that as Rodwell escorted the accused out of the gate, the deceased followed.  He said that the deceased had remained in the yard.  He never followed the accused and never held him by his trousers as alleged by counsel for the accused.

Desmond Phiri

The accused admits that he was at number 22 Matshobana despite there being a Protection order prohibiting him from entering those premises.  He admits that the fateful incident emanated from the fact that his grandfather and his uncle had told him not to enter the house and reminded him of the Protection order.  He apparently believed strongly that it was his home too.  He claimed that there was a scuffle between him and his uncle who followed him to the gate grabbing him by his trousers.  When he broke loose, he left one push-in.  The deceased followed him again in hot pursuit right up to number 26 Matshobana where he grabbed a knife.  As already shown above, all 4 state witnesses, including Fanani Mleya have refuted this allegation.

Having grabbed the knife from Fanani’s utensils, the accused returned to number 22.  He cannot reasonably explain why especially in view of the Protection Order against him.  He claims that he wanted to collect his push-in. But he again could not explain what was so special about the push-in that he had to grab a knife in that tense scenario which he also described, apart from Fanani’s explanation. He claims that he even waited for about 10 to 15 minutes at number 26 before returning to number 22.  He says that somewhere in the darkness at the gate of number 22 , he suddenly heard the deceased saying “I have got you” and in fear he turned around, swinging and brandishing a knife intending to scare him away, and that is where he uttered the words; “I will stab you, I will kill you”.  Incidentally, he “stabbed and killed him”.

The court finds the above story unbelievable.  It is the court’s finding that the accused considered number 22 Matshobana his house too just like any other child and grandchild.  He believed that he was hated by everyone and being shut out of the house.  He did not say why everyone would hate him.  The state witnesses maintained that no one hated him but they did not like his violent disposition. On the fateful Christmas eve, he must have resolved he was not going anywhere.  After the scuffle and perhaps a punch by his uncle, he got angry.  He left his push-in well knowing that he would soon return.  When he grabbed a knife from Fanani, he returned.  He either waylaid or incidentally met the deceased at the gate as he was bidding farewell and killed him as alleged.  When he shouted. “Ngizakugwaza, ngizakubulala”. He actually meant it and was found still brandishing the knife and repeating the words by the witnesses.

It is not difficult to understand the post mortem report number 1248-1247-2018 by Dr Roberto Lara Diaz.  The doctor remarked that “the wound is produced from top to bottom and from left to right.”  The doctor goes on to explain that this means that the victim and the aggressor must have been facing each other.  He explained also that if the aggressor did not use the left arm in stabbing the victim, then he was behind the victim at the time of the attack.

We do believe as found by the doctor, that the wound described, 4 x 1 cm injuring the right carotid artery causing a wound in the upper lob of the right lung could not have been caused by a random scaring swing of a knife.

Finally and in any event, the accused admitted in his confirmed warned and cautioned statement that he took a knife and stabbed the deceased once on the shoulder after the deceased had fought him with open hands.  The court has been urged to acquit the accused on the basis that his version of the events is reasonably probably possible that he was defending himself from an attack by the deceased.  Apart from what the court has already explained, we must say that we are not so sure whether the accused is saying that he mistakenly stabbed the deceased in trying to scare him with a swing of the knife or that he admits stabbing him in self defence.  Be that as it may, for self defence to  service, the accused and the circumstances must meet all the requirements of section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In casu, the court has already found from the evidence of all state witnesses that the accused could not have been under attack at the time he stabbed the deceased.  That makes him fail the requirement in section 253 (1) (a) of the Code.

Even if the witnesses were to be disbelieved for a moment and he be believed, he would still fail to satisfy sections 253 (1) (b), (c) and (d) of the same.  In short, he failed the whole of section 253.

The state has submitted that because he went as far as number 26 Matshobana and came back with a knife and stabbed the deceased then it should be found that the accused intended to kill.  Some would add that the accused’s utterances at the time of the murder also add to that proposition.  However, because of that darkness, the accused’s drunkenness and the close blood relationship between them, the court is still in doubt that the accused actually intended to kill his uncle.  He must have realized of course the real risk of causing death as a result of his conduct with the knife but was reckless and nonetheless proceeded with the conduct despite the risk or possibility of death occurring.  He must be guilty of dolus eventualis

Accordingly, the accused is found guilty of murder with constructive intent.

Sentence

The accused was 23 at the time he committed the offence.  The court has been advised that he had a tough up-bringing.  His mother disappeared or walked out from him at the age of 12 leaving him to be looked after by a 21 year old sister.  He dropped out of school at that age at grade 7 and went no further.

The court will also consider counsel’s plea on his behalf that inspite of having pleaded not guilty the accused is actually remorseful about his deeds.  He appreciates and regrets that his conduct caused the death of his uncle.

The court is also urged to consider that both the accused and the deceased were drinking and continued drinking on the day in question.  Further, at the start of the altercation, at least one witness (young Mduduzi Moyo) testified that the accused was punched in the face by the deceased and did not retaliate. The punch may have stimulated anger in the accused.

The accused however committed a very serious offence.  Firstly, it appears that he had always been a problem child to the extent that his own grandfather had to be granted a protection order against him. Whilst that order was still operational in 2018, he quarreled with his grandfather and uncle mainly over the issue of the same protection order.  He killed his uncle who was fifteen (15) years his senior.

The court will consider that no life is worth losing.  Death, especially through murder should be avoided at all costs.  Life is precious and God given.  It is the court’s duty through exemplary sentences, to show disapproval of needlessly causing the death of another. What weighs in his favour is that he was drunk and that at some stage, the deceased had assaulted him and he had not retaliated.  Coupled with these two reasons is the fact that he has spent two (2) years in pre-trial incarceration.

The court is further guided by the cases of, State vs Tatenda Magachi HB-43-15; State vs Sikwili (2005) (2) ZLR 141 (S0 and others.

Accordingly the accused is sentenced as follows:

18 year imprisonment.

National Prosecuting Authority, state’s legal practitioners

Mutatu, Masamvu & Da Silva Gustavo Law Chambers, accused’s legal practitioners