THE State V Njabulo Sibanda

### Preamble
1
HB 74.20
HC (CRB) 41/20
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THE STATE

Versus

NJABULO SIBANDA

IN THE HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mr T. E Ndlovu and Mr N Ndubiwa

HWANGE 10 & 11 MARCH 2020

Criminal Trial

Mrs Cheda, for the state

Miss J Change, for the accused

MOYO J:		The accused person in this matter faces a charge of murder, it being alleged that on the 21st of September 2019 and at Expensive Moyo’s homestead Manzimahle line, Tsholotsho unlawfully stabbed Lizwelenkosi Ncube with a spear once on the chest resulting in his death.

The accused person denies the charge and instead pleads guilty to the lesser charge of culpable homicide.  The facts of this matter are clear on the material respects although there are certain issues where either witnesses did not observe the same thing or some of them did not see certain occurrences for one reason or the other.

The following were tendered as exhibits into the court record.

the state summary

the defence outline

the accused’s confirmed warned and cautioned statement

the postmortem report

the spear that was allegedly used in the commission of the offence

They were all duly marked.

The state led viva voce evidence from 3 witnesses namely Lynette Moyo, Florence Ndebele and Mthokozisi Ncube.  The evidence of Muziwakhe Nkomo, Sergeant Makoni and Doctor Gregori was admitted into the court record as it appears in the state summary.  The gist of the state case from the material respects of the evidence led is that Florence and deceased were in a love relationship.  They were at Expensive Moyo’s homestead in some room.  Accused and his colleagues, Muziwakhe, Mthokozisi and Cazius arrived there.  This is Lynette Moyo’s home.  She hosted accused and his colleagues at that moment and offered them braai meat.  Florence and deceased came out of the room that they were in.  Florence asked deceased to accompany her, accused pulled her by the shoulder and asked her if she did not love him.  She spurned that request.  Deceased then left towards the gate and accused came with his dogs, which he set on the deceased and accused then wielded a spear and thrust it.  Deceased was heard saying why are you fighting me, later deceased groaned and walked staggering, he later fell by the goat pen.  All the witnesses did not see deceased hitting accused with a knobkerrie.

Of these witnesses Lynette Moyo was a fair witness in the court’s view in that asked under cross-examination that accused just intended to scare deceased by striking the pole with the spear, she said that was possible and she would agree to that.  This is a witness who was obviously not bent on nailing the accused person because had that been the position, she would have said no accused intended to strike and kill the deceased.  Her testimony should thus be believed on all the material respects.  If she had been bent on nailing the accused she would refute that it could be an accident.  However, her testimony on that aspect does not assist the court as she was to testify only on what she saw and leave the aspect of accused’s intention to the court which is seized with that question.  She was being drawn to comment on an issue she could not comment on as she cannot read minds, but she nonetheless commented in accused’s favour.  She is therefore a credible witness.

Florence Ndebele was deceased’s girlfriend and although she could be taken as an interested witness and therefore have her evidence treated with caution, her evidence was nonetheless not shown to be wanting during cross-examination.  In other words, from her evidence nothing poked her credibility.  Mthokozisi Ncube also testified to the effect that he heard the aspect of accused offering to accompany Florence and Florence saying she did not love accused.  He then saw accused and deceased speak and then deceased left with accused setting his dogs on deceased.  He then heard some noise by the gate and later heard deceased groaning.

The defence counsel submitted that this witness’s testimony was found wanting, this court did not observe that and in fact the witness was asked why he did not see the other things and he explained that it was because he was inside the kitchen braaing the meat hence he could have missed certain occurrences.  This court believes that this is a reasonable explanation for his failure to confirm or deny certain occurrences.  The Defence Counsel also submitted that the issue of lighting was contradictory from the witnesses, however this court takes note that the witnesses did confirm that there were some lights being the source of lighting on that evening.  How many lights were there is now a question of semantics, this was Lynette’s home and she knew the precise number of lights yet if the other witnesses differed that cannot be held against them, this was not their home after all, what is material is that, all the witnesses said there was a source of light.  It would be a problem only when one witness says it was dark and the other one says there was a source of light.

The Defence Counsel also submitted that the versions differ on how many times people were sent to call deceased and Florence from the house.  How many times they were sent is immaterial to the decision this court has to make.  What is common cause is that the deceased and Florence were in some room, were called, and eventually came.  In fact the crux of the matter is what happened between accused and deceased leading to the stabbing and the death, even if the 2 had been called by accused or not, or if they had been called so many times or less, that is not material to the issue under determination, which is what happened when the deceased was stabbed by accused with a spear.  The initial occurrence of whether people braaied or ate meat, or came out of a room, are not really material to the issue for determination.  That is why it is trite that, it is not every discrepancy that matters, but a discrepancy must be on a material point relevant to the determination to be made.

The accused’s version is that he did not know deceased, and neither knew that Florence was deceased’s girlfriend.  Florence came out of the hut and said she wanted to go but was scared of the dogs.  Accused then offered to escort her that is when deceased came and said accused was in love with his girlfriend.  Accused denied that.  Deceased then said accused was disrespectful he knows him.  He said there was then a misunderstanding and they fought with deceased, who struck accused on the left rib cage with a knobkerrie.  That is when Muziwakhe Nkomo left and came back with a spear.  Accused held the spear and that is when deceased moved towards the gate.  That is when accused followed deceased and his dogs followed him as well.  Accused then struck the gate pole in a bid to scare the deceased and deceased was unfortunately struck.  Asked further questions he said deceased went out of the gate and closed it.  When deceased was struck by the spear he was then outside the gate which was closed and accused was inside.  Let us agree for a moment, with accused, that deceased initially struck him with a knobkerrie and then went towards and out of the gate.  The problems with accused’s version will still not go away in that deceased had struck him and walked out of the gate and closed it.  Accused had his dogs which had joined on his side.  Deceased went out of the gate after the introduction of the spear when Muziwakhe had brought it.  Even if it can be accepted that deceased had initially struck accused with a knobkerrie and then walked out of the gate, the reason for introducing the spear and thrusting it to scare a man who had walked out of the gate and closed it, apparently from a person who was with a spear is the one that is not there.  Accused said he struck the pole to scare deceased only but deceased was then accidentally struck.  We find this part of the accused’s version, which is the relevant version because it is on the crux of the matter, to be unreasonable, impossible and in fact untrue for the following reasons:-

Deceased had moved out of the gate and closed it, in itself a sign of retreat from any fight if ever it was there.

Accused was already armed with the spear when deceased went out of the gate and closed it.

Accused had his dogs on his side so deceased was overwhelmed.

It would not have been necessary to scare a man that has already retreated, gone out of a gate and closed it.

Accused had no reason to follow a retreating man who had gone out of the homestead and closed himself outside.

It would be unreasonable to thrust a spear on a pole to produce some sparks as accused could have easily warned deceased that he now had a spear and would use it if deceased advanced.  Infact it is this court’s finding that accused is lying when he says he wanted to strike a pole by thrusting a spear on it as one cannot stab a metal pole.  However, even the thrusting of the spear to scare a man who is already outside with a closed gate is unreasonable.

The spear went through the chest and cut the aorta, and an inference can be drawn that excessive force was thus used.

From the aforestated analysis, the accused’s version in relation to what transpired at the gate and why he followed the deceased who had gone out and why he thrust the spear is therefore not true.  The only logical explanation is that deceased fled through the gate, following whatever altercation had ensued, and closed himself outside.  Accused pursued him and stabbed him with a spear on the chest in an act of revenge for what had just happened inside the yard.  It is the finding of this court therefore that accused stabbed the deceased in revenge or retaliation following the altercation they had.  He aimed the spear at the deceased’s chest a vulnerable part of the body, the spear itself being a lethal weapon.

It is for these reasons that this court finds that accused might not have desired death but that he realised aiming and thrusting a spear in the nature of Exhibit 5, that there was a real possibility of death in other words he was reckless.

The case in point is that of State v Mugwanda SC 19-02 where an accused who stabbed the deceased once on the chest was convicted of murder with constructive intent.

Accordingly and for these reasons the accused person is found guilty of murder with constructive intent.

Sentence

The accused is convicted of murder.  He is a juvenile first offender.  He however, started at the very deep end.  These courts frown at the loss of life through violence.  Although it is not clear how exactly the altercation between him and deceased occurred, he nonetheless should not have followed deceased who was already leaving in a bid to stab him with a spear.  Violence in all forms must be discouraged.  He is a juvenile offender but the seriousness of the offence warrants a custodial term.  It cannot be avoided in this respect.  The circumstances of the commission of the offence do not give any weight at all in accused’s favour.  He just acted in a wayward manner on the day in question.  Of course he has immaturity in his favour which is why this court will suspend a portion of his sentence.  He thus shall be given the bottom end effective sentence for murder with constructive intent.

The accused is accordingly sentenced to 15 years imprisonment, with 5 years imprisonment suspended for 5 years on condition accused is not within that period, convicted of an offence involving violence, whereupon conviction he shall be sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, state’s legal practitioners

Mvhiringi & Associates, accused’s legal practitioners