THE State V Frazer Sibanda

### Preamble
1
HB 145/20
HC (CRB) 76/20
---------


THE STATE

Versus

FRAZER SIBANDA

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr P. Damba & Mr J. Sobantu

BULAWAYO 2 & 3 JULY 2020

Criminal Trial

T. Muduma for the state

W. Madzikura for the accused

MAKONESE J:	The 70 year old accused appeared in this court facing a charge ofmurder in contravention of section 47 (1) (a) of the Criminal Law Codification and Reform Act (Chapter 9:23).  The state alleges that on the 28th of March 2018 and at Block 66/2038 Mpopoma, Bulawayo, the accused struck Denis Frank Sibanda all over his body with a plank several times intending to cause his death or realising that his conduct may cause the death of the deceased.  The accused pleads not guilty to the charge ad tenders a plea of guilty with respect to the lessor offence of culpable homicide.  The state did not accept the limited plea.  The matter proceeded to trial.

The facts surrounding the commission of this offence are largely common cause and not in dispute.  During the evening of the fateful day, the accused confronted the deceased regarding a missing cellphone.  The accused and the deceased resided at the same house.  The accused was an elder brother to the deceased’s father.  The accused regarded the deceased as his son.  Accused stated that he looked after the deceased and sheltered him just like his own biological son.  When accused pressed the deceased about the whereabouts of his phone, deceased who was heavily intoxicated confessed having stolen the phone.  Deceased alleged that he had done so to raise money to obtain food.  The accused was angered by the deceased’s response.  Accused entered into one of the bedrooms and when he emerged he was armed with a plank measuring about half a metre.  Accused struck the deceased several times on the back as he held the deceased’s head downwards.  The deceased slumped to a seat unable to move.  Accused did not notice any injuries on the deceased arising from this assault.  Accused alleged that the deceased had fallen to the floor head long and may have sustained fatal head injuries as a result.  On or about the 31st March 2018, the deceased was taken to hospital after he had started vomiting and coughing.  On the 2nd ofApril 2018, he died.

In his defence outline tendered into the record, the deceased stated in part as follows:

“1.	He confronted the deceased sometime in January 2018 with regards to a cellphone  which was stolen in the accused’s house but the deceased refused to have stolen the same.

2.	However, deceased was of the strong belief that it was the deceased who had stolen same as they stayed alone at the house though there were tenants who lived in the backyard.

3.	However, as accused did not believe the deceased’s denial, he persisted asking him about his cellphone and he ended up confessing to the fact that he had stolen same and he had done so in order to obtain a loan for food.  After a heated argument deceased also confessed to the fact that he had stolen the phone so as to get a loan for beer money.

4.	The deceased then made a commitment to return the cellphone as soon as he got transport money to enable him to go and collect the cellphone.  The accused then handed him bus fare to enable him to collect the cellphone from where he had left it and this was in January 2018.

5.	The deceased despite having been given transport money did not bring the cellphone to the accused and kept dodging him till a time when accused went to Nkayi to his rural homestead where he ordinarily resides.

6.	Time lapsedtill March 2018 when the accused came back from Nkayi when he then confronted the deceased pertaining to the cellphone issue and a heated argument resulted in the deceased attacking the accused in an attempt to beat him up.  Deceased was very drunk.

7.	Accused then left the lounge where the argument was taking place, went into the kitchen and obtained a plank which he used to slightly knock the deceased on his shoulders and head. (emphasis added)

8.	The accused acted out of anger and did not intend to kill the deceased.

9.	The risk of the death of the deceased was not foreseeable as the amount of force inflicted on the deceased’s person was no so severe…” (emphasis added)

The state tendered a confirmed warned and cautioned statement signed by the accused on the 3rd of April 2018.  The statement was confirmed by a magistrate on the 11th of April 2018.  It is necessary to set out the contents of the confirmed warned and cautioned statement which are in the following terms:

“I deny the charge of assaulting Denis Sibanda with an intention of killing him what happened is this.  On the 29th of March 2018 in the afternoon, I told Denis Sibanda (the now deceased) that he should go and collect my phone where he had left it as security for a loan.  He went away and came back at night without my phone.  He came drunk.  When I asked him about my phone he pounced on me.  We pushed each other until I picked a plank which was not all that thick. I then struck him three times on the back of his head.  When all this was happening there was Francis Sithole who is my cousin.  On the following day a Saturday I approached him at his room to ask him about the phone which he had said he was to bring on Friday.  When I finally got to his room I found him lying and froth coming out of his mouth.  From there I went to call the now deceased’s brother Ishmael Sibanda.  We then came back to see Denis (the now deceasedMutamiri.”), but when we lifted him we noticed that he was no more (dead).  I left the place and went to the police at West Commonage.  We then left for home with Constable Mapitse and

Doctor S. Pesanai is a duly registered medical practitioner based at United Bulawayo Hospitals.  On the 2nd of April 2018 he examined the remains of the deceased and recorded his findings in a post mortem report number 328/327/2018.  The cause of death as revealed by the post mortem report is:

Subarchnoid haemorrhage

Blunt force trauma head

Assault

On marks of violence, the pathologist observed the following injuries:

Peeling of skin

Bruise on the left leg

Haematoma on the left thigh

Haematoma on the back

There were no skull fractures

There was subarchnoid haemorrhage

On other remarks, the post mortem indicates that the bleeding in the muscles on the back was consistent with assault.

The state case

The state led evidence from a single witness FRANCIS WASHINGTON SITHOLE.  This witness was known to both the accused and the deceased prior to the commission of the offence.  On the 28thMarch 2018 he was drinking opaque beer at Kongo Beer Hall, Mpopoma, Bulawayo. He was phoned by the accused.  The accused informed the witness that he was missing his mobile phone.  His chief suspect was the deceased.  The witness and the accused left the beer garden around20:30 hours and went to the accused’s house.  Upon arrival, the accused told the witness that he had just seen the deceased.  The accused violently opened his gate and on entering the house immediately confronted the deceased about the missing phone.  The deceased was visibly drunk.  The accused entered one of the rooms and returned with a wooden stick which he used to strike the deceased several times on his shoulders and back.  The assault persisted for a long time.  The witness could not state how long the assault took place.  The witness indicated that the deceased was in no position to retaliate due to his high level of intoxication.  The witness left accused’s house leaving the deceased sitting on a sofa.  The witness did not observe any injuries resulting from the assault.

We find this witness to be credible and consistent.  He gave his evidence well.  We have no reason to disbelieve him on all material aspects of the offence.

Before the state closed its case it sought formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07).  The evidence of the following witness was admitted into the record with the consent of the defence, as it appears in the summary of the state case, namely;

Ester Chidembo Phiri

Elson KeyeiNcube

Jethro Tshuma

Ishmael Sibanda

Enock Mutanhiri

Beauty Mapitse

Dr S. Pesanai

Defence case

The accused, FRAZER SIBANDA elected to give evidence under oath.  The accused gave the impression that he assaulted the deceased lightly, using a wooden plank.  He however confirmed that he had struck the deceased on the shoulders and back repeatedly.  The accused testified that he assaulted the deceased for an extended period of time of approximately 20 – 30 minutes.  The accused gave the impression that he was angered by the deceased after he asked him about the missing cellphone.  In his own words, the accused said that he did not foresee the possibility of death ensuing from his conduct.  The accused suggested that the head injuries reflected in the post mortem report could have been sustained when the accused fell down head long.  The accused further insuniated that accused could have sustained the injuries some place elsewhere.  The accused’s defence outline and confirmed warned and cautioned statement clearly indicate that accused was taking responsibility for his conduct that led to the death of the deceased.  The accused’s evidence is consistent with his plea of guilty with respect to the lessor and competent charge of culpable homicide.

Conclusion

Murder consists in the unlawful and intentional killing of a human being who is alive.  The crime of murder can only be committed where an accused intended to kill his victim.  The conduct of the accused must be both the factual and legal cause of the consequence.  The state must establish that the accused’s conduct proves beyond reasonable doubt that his avowed intention was to bring about the death of his victim.

On the evidence place on record, it is clear that the state did not succeed in proving beyond reasonable doubt that accused intended to kill his victim.  It is settled law that no onus rests on the accused to convince the court of any explanation he gives.  See S v Kuiper 2000 ZLR 113 (S).  Once the accused gives an explanation, it is the duty of the state to prove beyond reasonable doubt that the defence proffered is not only false but probably false.  See S v Makanyanga 1996 (2) ZLR 231 and R v Difford 1957 AD 370.

We are therefore satisfied that from the evidence on record, the accused acted negligently in assaulting the deceased with a plank several times.  We are indeed aware that throughout the proceedings the accused confessed that the death was an unfortunate incident.  The accused tendered a plea of guilty with respect to culpable homicide.  In terms of section 18 (1) of the Criminal Law Codification and Reform Act is provided that:

“Subject to subsection (2) no person shall be held to be guilty of a crime in terms of this Code or any other enactment unless each essential element of the crime is proved beyond reasonable doubt.”

In the circumstances, and accordingly we find the accused not guilty on a charge of murder.  The accused is however found guilty in respect of culpable homicide.

Sentence

The accused has been convicted of serious offence.  In mitigation the accused has indicated that he is a first offender who pleaded guilty to the lessor offence of culpable homicide.  The accused has shown a certain measure of contrition and regrets that he caused the death of his brother’s son.  The accused was angered by the deceased who had stolen his mobile phone.  He lost self- control and in the heat of the moment struck the deceased repeatedly on the back and shoulders.  The accused is a 70 year old man who is of ill health.  The accused was injured in the war in 1974 on his right knee.  He suffers from severe arthritis.  It was argued on behalf of the accused that imposing a custodial sentence would seriously affect the accused given his declining health.  The accused looks after his elderlydeaf wife and 8 grandchildren.  The state concedes that a custodial sentence would not be appropriate in all the circumstances of this case.  Whilst it is settled principle of sentencing that, elderly first offenders should be spared the rigours of imprisonment, the court notes with regret that the accused acted extremely recklessly.  He was aware that the deceased was not only heavily intoxicated during the course of the assault, but that deceased was of ill health and taking antiretroviral drugs.  The accused should have exhibited maturity rather than take the law into his own hands.  The court should warn individuals who needlessly cause the death of others that severe sentences shall be imposed in order to safeguard the sanctity of human life.  In this matter however, we are satisfied that the mitigating factors far outweigh the aggravating features of the case.

For these reasons, and accordingly, the following sentence is deemed appropriate:

“The accused is sentenced to 5 years imprisonment of which 3 years is suspended for 5 years on condition the accused is not convicted and sentenced to any offence involving violence for which he is sentenced to imprisonment without the option of a fine.  A further 2 years is suspended on condition accused completes 840 hours of community service at Mgaladi Primary School, Nkayi on the conditions set out by the probation officer.”

National prosecuting Authority, state’s legal practitioners

T. Hara & Partners, accused’s legal practitioners