The State v Dumisani Sibanda

### Preamble
1
HB 301/20
HC (CRB) 76/19
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THE STATE

Versus

DUMISANI SIBANDA

HIGH COURT OF ZIMBABWE

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

BULAWAYO 19 & 20 SEPTEMBER 2019, 24 JULY, 19 & 20 OCTOBER, 23 & 24 NOVEMBER 2020

Criminal Trial

B Maphosa and Ms S Ndlovu, for the state

N Sithole, for the accused

MABHIKWA J:	The accused faces a murder charge in contravention of section 47 of the Criminal Law (Codification and Reform) Act (Chapter 9:23).  It was alleged in the state outline that the deceased and several others, had set up a temporary base for illegal gold miners at a bush at Lonely Star mine.  They were warming themselves around a fire.  The accused allegedly arrived in the company of his uncle and friends.  They were looking for one Prince Mwale, a step brother to the accused.  They accused him of having assaulted one of their friends, earlier in the day.  The accused confronted his step brother and briefly fought with him.  They quickly resolved the quarrel amicably.  The deceased was sleeping next to the fire.  One of the accused’s friends, Bhekinkosi Ndlela (alias Bhekimpilo) kicked the now deceased asking him why he was sleeping.  The deceased angrily woke up and asked why Bhekinkosi was kicking him.

The accused quickly joined the quarrel.  He picked up a pick lying next to the fire and struck the deceased on the chest with it using the digging tip.  He withdrew the pick and struck again on the waist line using the handle.  This happened in full view of other gold panners.

In his defence outline, the accused stated that it is the deceased and Bhekimpilo who were fighting.  He tried to calm them down but they continued fighting.  He then states that some trigger happy policemen got to him the following morning asking for Bhekimpilo.  When he and Prince Mwale failed to tell them the whereabouts of Bhekimpilo, the “trigger happy” police officers allegedly shot at them accusing them of concealing the whereabouts of Bhekimpilo.  He does not mention the murder at all in his defence outline and prays for his acquittal.

The state produced as an exhibit a Post Mortem Report No. 476-475-2018 compiled by Doctor Sanganai Pesanai in terms of section 278 (3) of the Criminal Procedure and Evidence Act, Chapter 9:07.  The report revealed that the deceased died as a result of;

1.	Haemopericardium

2.	Penetrating and Perforating stab wound to the right ventricle and intraventricular septum

3.	Haemothorax

The state called three (3) witnesses to testify, namely Israel Moyo, Norman Ncube and Assistant Inspector Lungisani Pius Tshuma.  The first two were eye witnesses whilst the 3rd is a Police Officer.

ISRAEL MOYO

The evidence of Israel Moyo was clear that the accused gored the deceased in the middle of the chest.  The witness actually made gestures indicating how the accused held the pick handle in the normal digging position.  He watched the events of the murder unfold as he was just outside Manyathi’s tent, which was only 3 to 4 metres away from the fire where the murder took place.  He also told the court that after the murder, people ran away from the scene.  It should be remembered that these were illegal gold panners in the bush.  This probably explains why the deceased’s body was later found by another gold panner in the early morning hours around 0100 hours who then phoned another advising him to tell the Police about the murder.

It was put to Israel Moyo that there was never a time that the accused fought the deceased or when Bhekimpilo kicked the deceased but in fact that it was the deceased who stood up and attacked Bhekimpilo.  It was also put to him that the deceased and his friends were in fact fighting Bhekimpilo.  The witness emphatically disputed that claim and insisted that the deceased never stood up.  He lost his life still on the ground.

On the same point, it was put to him by the defendant’s counsel that;

“I put it to you that the accused never kicked the deceased, but in fact it was Bhekimpilo who did so and this will be confirmed by Mqondisi Dube.”

The witness insisted that it was the accused who kicked the deceased on the feet.

Counsel continued that;

“Mqondisi Dube will also confirm that the confrontation was between the deceased and Bheki, not with the accused.”

The witness insisted that the deceased was lying down and was kicked on the feet by the accused.

Unfortunately, the defence did not call the said Mqondisi to testify and confirm all that was alleged he would come and confirm.  Instead, the accused called Prince Mwale, his half brother to testify.

NORMAN NCUBE

The witness was also questioned on the same point.  In fact his whole evidence was just as simple and as short as that of Israel Moyo.  He related that on 18 May 2018 the accused arrived at the scene at around 2300 hours at night.  Upon arrival he kicked Howard repeatedly asking him why he was sleeping.  When the deceased attempted to get onto his feet, the accused struck him with a pick and he fell down.  The witness refused to be drawn into accepting that the deceased was not lying down when he was gored with a pick.  He re-iterated that the accused repeatedly kicked the deceased and as he “tried” to get up on his feet, that is when the accused struck him with a pick driving it into the chest.  The witness also made gestures of the repeated kicking, the attempt to get up by the deceased and the striking with the pick on the chest.  In our view, the evidence by the two (2) witnesses can hardly be described as contradictory simply because the first witness, does not mention the “attempt” to get up.  There are a pleathora of cases relating to the discrepancies in witness’s evidence if any.  The contradictions should go to the route of the state case.  They should be discrepancies which would leave the state case unsustainable unless they are explained away through witnesses or other evidence.  In this case when one witness says that the deceased was struck whilst lying down and another says that when the deceased “attempted” to get up, he was struck, there is no contradiction there.  If someone else may interpret it to be a contradiction, then it is one not worth talking about.

The accused himself told the court that he indeed was at the murder scene on the fateful day.  He was drinking beer.  He was in the company of 3 other people.  He says that he realised that Bhekimpilo and the deceased were fighting some few metres away.  He stood up, went there and tried to stop the fight and failed.  He says he went back to continue drinking and whiling up time.  After sometime, one of them stood up and went to relieve himself.  It is that person who noticed and informed them that the deceased had fallen.  He says that they went to check and found that the deceased had sustained injuries.  They however just left him and returned to their drinking.  After sometime one of his friends remarked that the deceased had received life threatening injuries.  They decided to leave the scene and go home.  According to him, he was then approached by Police Officers the following morning looking for Bhekimpilo.  They were “trigger” happy and accused him of harbouring Bheki and senselessly just shot him.  He claims that he was charged with the murder of the deceased solely to cover up for the senseless shooting.

In cross-examination, he claimed to have seen only the fighting and not the stabbing, but he claims also that it is not true that the deceased was gored with a pick as testified by Israel and Norman Ncube.

PRINNCE MWALE

The same witness had an affidavit statement recorded from him.  It was produced by consent and marked Exhibit “5”.  The affidavit was recorded on 22 May 2018.  This was only three (3) days after the murder incident.  In that affidavit of eleven (11) paragraphs he gives information that a Policeman could neither have known nor formulated.

He mentions in paragraph 2 that the accused is his step brother whilst Bhekimpilo Ndlela and Brighton Nhliziyo are fellow gold panners at Lonely Star mine.  He mentions also that on 19 May 2018 at around 2300 hours, he was at Lonely Star Mine whiling up time in the company of his uncle Bekezela Sibanda, (alias Mayaka), Israel Moyo, MaNyathi and more than 15 other gold panners.  He says that the deceased was “sleeping at an open space next to the fire.” No other witness described this scenario in the manner he did including the state witnesses.  Yet in evidence in court, he now denies that the deceased was sleeping next to the fire.  In paragraphs 7 and 8 he states that the deceased “rose to a rude awakening” but was again kicked by the accused and fell down.  The other “two accused” persons Bhekimpilo Ndlela and Brighton Nhliziyo joined in and started beating the now deceased with booted feet and clenched fists.  This information is not even part the state case as it was not mentioned by any of the 3 state witnesses including the Police Officer who allegedly “coined” the affidavit.  In paragraph 9 he states that;

“Dumisani Sibanda (accused) picked up a pick which was lying next to the fire and assaulted the now deceased with it.”

Strangely enough, this affidavit by the now defence witness was produced by the defence through the accused as an exhibit only to tell the court that it was a creation by a Policeman.  The defence and the witness made no effort to explain away the affidavit, whether he swore to it, where and under what circumstances it was made.  The effect of it all is that he has produced a sworn statement which is completely different from the sworn statement he told the court.  Completely the opposite.  The court cannot take him seriously.  In fact the sworn affidavit corroborates the state witnesses’ evidence well.

This court cannot believe that the Police arrested and charged the accused with murder simply to cover up for shooting him in the leg.  If this was the position, then the Police would have also charged Prince Mwale with the same crime as he claims to have been shot in the same fashion as his brother.  The accused agreed with him.  The Police witness (Lungisani Pius Tshuma) explained that he was the leader of a crack team that set out to arrest the deceased’s killer in the illegal gold panning area.  He maintained that they were looking for the accused, not Bhekimpilo.  The reason they shot the accused is that he exited a tent and attempted to flee.

After closure of his case, the accused strangely produced exhibits 6 and 7.  Exhibit 6 was a copy of a page from the Police “Reports Received Book.” Exhibit 7 was a “Sudden Death Report Book.” Counsel for the accused then quite strangely claimed that Vumani Ndlovu and Mqondisi Dube mentioned in those documents were supposed to have been the witnesses called by the state to testify and not Israel and Norman.  That to us was a very strange claim and strange procedure.  The defence throughout cross-examination put to the state witnesses what one Mqondisi Dube would come to tell the court.  One would expect the defence to call him to testify.  They did not.  Instead, they produce as Exhibits documents bearing the name Mqondisi Dube.  No one knows whether it is the same Mqondisi referred to in cross-examination.  In the said documents, it is not said that Vumani and Mqondisi mentioned therein witnessed the murder as alleged by counsel in his closing address.  Both exhibits are simply a précis by a Policeman at a charge office of a Police Station receiving a report from Vumani over a cellphone some two (2) hours after the murder.  In that cellphone report, Vumani appears to say that he had also received the information from one Mqondisi who “is at the scene” at the time of the report and not necessarily at the time of the murder.  The two documents are not evidence at all.  They cannot, as suggested by counsel be compared to, and be substituted for, the evidence of Israrel and Norman.  Those came to court, and told the court under oath that they were at the scene at the relevant time of the fateful day and related what they saw transpiring.  The state chooses its witness and the defence chooses its own.  Strangely, the defence refers to the two exhibits as the “primary source documents which should take precedence over viva voce evidence.”   Further, the Police only got involved in the matter the following morning of the murder.  The “catridges” and “other” exhibits referred to by counsel do not explain the murder of the deceased.

A person who drives the digging part of a pick into the chest of another desires one result, to kill.  From the circumstances of this case as explained and demonstrated by those present, the accused intended to kill the deceased even if it was only one blow.  It is not the number of blows only that determines the intention.  In casu, there was no chance that the deceased could have survived the pick attack.  It was brutal and vicious.

The Postmortem Report by Doctor S Pesanai also reveals the viciousness and the intention.  It describes the cause of death as;

1.	Haemopericardium

2.	Perforating and penetrating stab wound to the right ventricle and intraventricular septum.

3.	Haemothorax

The accused is accordingly found guilty of murder with actual intent.

Sentence

In assessing sentence, the court will consider all that has been submitted by the accused’s counsel most of which is conceded to by the state.  He is 26.  He was almost 25 at the time the offence was committed.  He was married and has one child.  Perhaps due to the stigma associated with murder, the wife deserted him.  It has also been agreed between the state and the defence that the murder was not committed in aggravating circumstances.  The court has also been told that the accused is being tormented by the deceased.  He allegedly claims to be haunted in spite of the fact that he has joined a Worship Group at prison.

The court will consider that the accused has not only waited for 2 ½ years to have the matter finalized but he has spent the 2 ½ years in prison custody.  The court will consider also that coupled with the immaturity, it is not disputed that at the time the accused and others arrived, they were drinking and he was already drunk.  These 3 factors will serve him from life imprisonment.

The court cannot lose sight however of the fact that an innocent life was needlessly lost.  The accused himself allegedly remarked that the deceased was an unlucky boy whom he had killed for something he did not know.  Those who decide to behave like bull elephants amongst humans cannot expect mercy from the courts.  They need to be removed from society for some time.  Life is only lived once and who ever loses it cannot recover or pick it up.  The deceased lost his at the hands of a “hyper active” accused person who seemed not to value life at all.  Whilst the accused will one day go out to see his friends and family, the deceased will never see that day.  There is no doubt that the pick attack on the deceased was an unprovoked surprise attack on a sleepy defenceless man.  The attack was gruesome and callously vicious.  The doctor in his autopsy found a penetrating and perforating stab wound causing serious haemorrhage injuries and ruptured arteries as the cause of death.  Though it was one blow, it was brutal.

The court has also been asked to consider that the accused was shot in the leg and nursed pain at prison after arrest.  The court will not lose sight of that fact but at the same time, the court will also consider at the back of its mind that the accused is said to have brought the injury upon himself by attempting to flee.

This court is aware that in sentencing the accused, it must primarily consider the accused’s peculiar circumstances, the offence itself and the interests of justice.  The court will nonetheless impose an exemplary sentence that reflects its revulsion at the brutal use of knives, axes, machetes, picks and similarly dangerous weapons to commit senseless murders in bars and illegal gold panning areas.

The accused is sentenced to 25 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Ncube Attorneys, accused’s legal practitioners