The State v Nqobile Bhebhe

### Preamble
1
HB 190/20
HC (CRB) 18/20
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THE STATE

Versus

NQOBILE BHEBHE

HIGH COURT OF ZIMBABWE

TAKUVA J with Assessors Mrs A Moyo and Mr Ndlovu

BULAWAYO 14, 15, 18 AND 19 FEBRYARY2019

Criminal Trial

K Ndlovu, for the state

B Khuphe, for the accused

TAKUVA J: 		The accused is charged with murder as defined in section 47 (1) of The Criminal Law (Codification and Reform) Act (Chapter 9:23), (The Code).  The specific allegations are that on the 24th of January 2018 and at Makokwe village, Gungwe area Guyu, Gwanda, the accused person assaulted the deceased with an unknown object once on the head intending to kill the deceased or realising that there is a risk or possibility that his conduct may cause death of the deceased continued to engage in that conduct despite the risk or possibility.  The accused pleaded not guilty to the charge.

The state outline which was produced as Exhibit 1 states that the accused is a 20 year old male residing in Makokwe village in Guyu while the deceased was a 17 year old mate residing in the same area.  On 24 January 2018 the deceased was coming from Gungwe cattle sale in the company of Khumbula Mlilo, Thembani Lulamo Nyoni and Craig Ncube.  They met the accused near Kipaletso Nyoni’s field.  The accused was in the company of three girls namely, Amahle Mlilo, Nomagugu Nyathi and Florence Ncube all students at Gungwe High School.

The accused alleged that the deceased was disrespecting him and when deceased tried to explain himself, the accused advanced towards the deceased.  The accused assaulted deceased with open hands on his face.  The deceased turned and took to his heals in the direction of Kipaletso Nyoni’s field.  The accused followed in hot pursuit and caught up with deceased approximately 6 metres from where the confrontation had first started.  It is here where the accused assaulted the deceased with an unknown object on the head just behind the right ear.  The blow felled the deceased to the ground and died on the spot.  The accused left the deceased lying prostrate on the ground and proceeded about his business.

The deceased’s companions went to the scene where they discovered that the deceased was no longer responding to their calls.  They noticed that he was lying face up and they quickly alerted the elders who made a report to the police that night.  On the 26th January 2018, the deceased’s body was ferried to Gwanda Hospital mortuary.  It was subsequently relayed to United Bulawayo Hospitals for purposes of a post mortem examination on the 29th January 2018.  The pathologist concluded that the cause of death could not be ascertained due to decomposition.  The accused was arrested at his aunt’s house in Mlambapele area on the 25th January 2018.

Accused’s defence outline was produced as Exhibit 2 and in it the accused alleged thus: On the alleged date he was on his way home from Gungwe cattle sales in the company of Florence Ncube, Nomagugu Nyathi and Amahle Mlilo.  The deceased Craig Ncube, Thembani Nyoni and Khumbula Mlilo joined the accuced’s group and they started walking together.   Whilst walking, Florence Ncube “warned” him saying the deceased was threatening to assault him.  The accused confronted the deceased who denied the threats.  However, when Florence repeated the warning, the accused advanced towards the deceased and assaulted him once with an open hand.  Deceased then ran off towards Kipaletso’s field where he fell and remained there.

Accused proceeded home in the company of the three girls.  On the way, they met one Nqobile Nyathi who wanted some water to pour on deceased who had fainted.  Accused later heard that deceased had died and he decided not to go home but went to his aunt’s home where he spent the night.  He was arrested on his way home.  He denied harbouring any intent to kill the deceased and knows nothing about what could have caused the death of deceased.

The state produced the accused’s confirmed warmed and cautioned statement as Exhibit 3.  In it the accused replied to the allegations as follows;

“I admit to the allegations, I slapped Forgiveness and he fell down on the 26th at Makokwe  I am Nqobile Bhebhe.  My witness is Craig Ncube.”

Exhibit 4 was an affidavit by Constable Khumalo who identified the body of the deceased to Doctor S Pesanayi on 29 January 2018.  Exhibit 5 was the post mortem report No. 119-188-2018 wherein the cause of death was “unascertained due to decomposition”

The State opened its case by leading evidence from Florence Ncube a 17 year old female.  She knew the deceased as a local boy while she knows the accused as her relative.   She said on the fateful day she was walking home in the company of her friends Amahle, Nomagugu when accused joined them.  Shortly they were joined by Samson and Thumisung.  The accused assaulted Thumisung for no apparent reason.  When Thumisang left she noticed the accused carrying a hammer which he hid inside his trousers.  The deceased, Thembani, Albert and Craig arrived.  The deceased was seated on a bicycle carrier.  The accused stopped them and they stopped and before deceased could disembark the accused pulled him down asking what deceased had told her.  Before the deceased could explain, accused aimed a blow at deceased but missed and the deceased ran away with accused in hot pursuit up to Nyoni’s field.  The witness heard a sound that she described as “Ko.” Usually this sound is produced when two objects bang each other.  They continued walking home until they saw Khumbula who told them deceased had lost consciousness.  He was looking for water to try and revive him.

The witness said accused assaulted Forgiveness and Sandiso on the previous day at a borehole for no apparent reason.  On the girl’s relationship with the accused, she said he is her “brother” while Amahle is accused’s girlfriend.  Under cross-examination it was put to her that deceased could have hit against the fence or fell down and hit his head against a hard surface she described earlier, the witness said she was unable to say what exactly happened to the deceased when he ran way.  However, she said the sound she heard could be produced by a hammer hitting against a bone.

In our view, this witness’s testimony reads well.  Despite being very close to the accused, she gave truthful evidence.  Part of her evidence is supported by the accused’s evidence.  On those portions where her evidence differs from that of the accused, we shall accept her evidence as the truth of what happened.

The state’s next witness was Douglas Marapuse a Constable in the ZRP based at Guyu.  On 24 January 2018 he was manning the Gungwe Base when a report of murder was received from Freddy Ndlovu.  He went to the scene and spent the night guarding the corpse.  The next morning he observed the following injuries on the deceased’s body; (a) Blood stains on the right ear caused by a cut and (b) a depression on the occiput. He described the texture of the ground as an open space with no stones but the ground was hard.  The witness gave an explanation of the delay to transport the deceased’s body to United Bulawayo Hospitals for post mortem examination.  This witness in our view simply narrated what he observed as a layperson.  He arrived at certain conclusions which any reasonable person would have done.  He readily accepted that his opinion on what caused the injuries he observed is based on witnesses’ statements.  He readily conceded that there was a possibility that the corpse was moved before he arrived because the deceased was no longer wearing his shoes and that water had been poured on him by someone.  For these reasons we find him a truthful witness.

Finally the State called Craig Ncube a witness the State had earlier wanted expunged from the record.  This witness is a 20 year old male who is accused’s friend.  The deceased was his young brother in that the witness’ aunt is married to the Mlilo family.  On 24 January 2018 he placed his shoes inside accused’s satchel which contained a hammer.  Later the witness retrieved his tennis shoes from the satchel but this time he noticed that the hammer was no longer inside the satchel.  He told accused he was remaining behind and accused proceeded home first.  The witness remained in the company of Khumbula, Thembani and the deceased.  The witness who was riding a bicycle carried deceased on his carrier while Thembani did the same to Khumbula until they caught up with accused in the company of the 3 girls.  As they got there, the accused pulled the deceased down and dragged him backwards.  The witness left the scene.  When asked why he failed to ascertain the reason of accused’s conduct the witness said; “Accused does not want to be asked when he is assaulting someone.  If you ask him he will turn on you and assault you instead.” He does not know what happened to the deceased and accused after he left.

Under cross-examination, the witness described the hammer as silver in colour whose circumference was 9cm.  He described the accused as a bully who terrorized boys in the area for no reason.  Although he was not a victim of this terror, he had witnessed it on several occasions.  He himself had been threatened with assault by the accused for discouraging him from assaulting boys younger than him.

The acused and this witness are friends.  Accused confirmed this relationship in his warned cautioned statement.  He denied that he fabricated his events out of his hatred of the accused.  His version is corroborated by Florence and the accused who does not deny that he assaulted the deceased that evening.  Accused’s failure to call his young brother to deny accused’s ownership of the hammer and satchel corroborated this witness’s version.  The witness would not have created this evidence because it could have been easily rebutted by accused’s young brother.  Further, if this witness was motivated by a desire to incriminate the accused he could have easily said he saw the accused chasing the deceased and using the hammer on him.  This he did not say.  For these reasons we find the witness to be credible.  We accept his evidence in toto wherever it contradicts that of the accused.

After this witness’s testimony, the State applied to have the evidence of the following witnesses admitted in terms of section 314 of the Criminal Procedure and Evidence Act;

Fredy Ndlovu

Zororai Marevesa

Sheine R Mavunditse

Detective Constable Muchimba and

Doctor S Pesanayi

There being no objection, the evidence was duly admitted and the State closed its case.

Accused’s Evidence

The accused testified in his defence.  He adopted his defence outline as forming the basis of his defence.  He confirmed that on the day in question he was in the company of the 3 girls when Craig, deceased and others caught up with him.  From this point, his evidence differs materially from that of Florence and Craig.  According to him deceased was in front with Florence, whilst he remained behind with Craig.  He said Florence returned and told him accused wanted to assault him.  They continued walking until they caught up with Florence and deceased upon which Florence said; “there is the person who was threatening to assault you.” The accused said, upon hearing that, he “confronted the deceased who “argued” and he slapped him with an open hand causing him to flee from the scene.  He heard the deceased “falling down.” After that he continued with his journey home in Amahle’s company until Nqobile approached them saying deceased “had collapsed.” Later Patrick told them deceased had passed on.  This shocked him to the extent that he decided to spend the night at his aunt’s place for fear of his mother.  The next morning he was arrested on his way home.  The accused denied possessing a hammer on that evening.  He also denied that he had a satchel.  Although he concurred with Craig that deceased was on his bicycle’s carrier, he denied pulling the deceased down alleging that deceased had already disembarked.

Accused said when deceased ran away he did not chase him but he heard a “gu” sound, he was approximately 31 paces from him.  According to him, the place had a “few stones” and in his opinion, the deceased fell down hitting his head against the hard surface and died.  He however confirmed that at the time, Amahle was his girlfriend while Florence and Amahle were good friends.

Under cross examination he conceded that his confirmed warned and cautioned statement is in direct conflict with his evidence in chief in that in the statement he did not make reference to being threatened with an assault and that deceased ran away.  Later accused changed and said he mentioned it but the police did not record it.  Surprisingly accused said Craig was not his friend.  This notwithstanding the fact that he had told the police that Craig was his witness and this fact was recorded in his statement.

Accused denied assaulting deceased and Sindiso at a borehole on the 23rd January 2018.  He also denied using a hammer on the deceased .

In our view the accused’s evidence is riddled with contradictions and inconsistencies.  He has already admitted to differences between his warned and cautioned statement, defence outline and evidence in chief.  One other material contradiction is that in his evidence in chief he said after Florence reported the threat to him, they kept on walking until they caught up with Florence and deceased and Florence uttered the words “here is the person who was threatening to ass you.” Yet under cross-examination he said Florence made the report but he ignored it only to act on it when she “returned for the second time” saying deceased had made the threat for the second time.  It should be noted that the accused gave the latter version when he was asked why he believed what Florence had said.  Also when it was put to him that in his warned and cautioned statement he had not mentioned the fact that deceased fled from the scene causing him to fall down, accused initially agreed that he indeed did not mention that fact to the police but when asked for the reason he changed and said he told the police who failed to record it.  Further in evidence in chief accused said he assaulted deceased because he was “disrespectful” and yet under cross-examination, he said he assaulted deceased because the latter was “preparing to fight him.” Note that this version is missing in the defence outline.  Surely if this fact had been mentioned to the Defence Counsel, one would have expected an averment that accused acted in self defence.

For these reasons we agree with the State Counsel’s submission that the accused was making his defence as the trial progressed.  In our view, the accused was a poor witness who prevaricated in a number of material points.  Pitted against the State witnesses we find that the accused’s evidence is false.  We therefore reject it in its totality.

The following are the proved facts;

(1) 	The accused assaulted the deceased by pulling him down from a bicycle and assaulted him with an open hand on the 24th January 2018.

(2)	The deceased fled and in the process fell down and did not get up.

(3)	The deceased died on the spot he had fallen down.

(4)	The deceased had a wound behind his right ear, and a depression at the back of his head.

(5)	The deceased’s body was only examined by a pathologist days later at United Bulawayo Hospitals.

(6)	The pathologist found that the cause of death could not be ascertained due to decomposition.

(7)	The accused had a satchel in which he carried a small hammer.

(8)	After the deceased ran way, the accused chased him until deceased fell down.

(9)	The accused assaulted the deceased on the 23rd January 2018 for no apparent reason.

THE ISSUES

1.	Whether or not the accused murdered the deceased?

2.	Whether or not accused negligently caused the deceased’s death?

Both counsels agreed that the State had failed to prove a case of murder against the accused.  Both agreed that in the circumstances, the court should find the accused guilty of culpable homicide in terms of section 49 of the Code.

THE LAW

“Section 49 supra states;

49.	 Culpable Homicide

Any person who causes the death of another person –

(a)	negligently failing to realise that death may result from his or her conduct; or

(b)	realising that death may result from his or her conduct and negligently failing to guard against that possibility;

shall be guilty of culpable homicide and liable to imprisonment or a fine up to or exceeding level fourteen or both.”

Negligence as an element of a crime is described in section 16 of the Code as

“Section 16	 NEGLIGENCE

Where negligence is an element of any crime –

(a)	constituted by the performance of an act the test is objective and consists of the inquiry whether or the accused person’s performance of that act was blameworthy in that –

(i)	the accused failed to perform that act with the care and skill with which a reasonable person in the same circumstances would have performed that act;

Whichever inquiry is appropriate to the crime in question; or

(b)	 ……….

(c)	constituted wholly or partly by a consequence resulting from the conduct of an accused person, or by the existence or absence of any circumstance in which such conduct occurred, the test is objective and falls into two parts –

(i)	whether or not the accused person failed to realise that his conduct might produce the relevant consequence or that the relevant circumstance might exist or be absent; and

(ii)	if the accused person did fail as provided in subsection (i) whether or not the person’s failure was blameworthy in that a reasonable person in the same circumstances –

A. 	would have realised that the relevant consequence might be produced and would have guarded against it; or

B.	would have realised that the relevant fact or circumstances might exist or be absent and would have taken steps to ascertain whether or not it did exist, as the case may be.

As regards causation section 11 of the Code has now codified the common law principles   It states;

“11 	CAUSATION

(1)	A person shall not be held criminally liable for a consequence unless the person’s conduct caused or substantially contributed to its occurrence.

(2)	A person’s conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct –

(a)	is the factual cause of the consequence, that is but for the conduct the consequence would not have occurred, and

(b)	is the legal cause of the consequence, that is, the consequence –

(i)	was a reasonably foreseeable consequence of his or her conduct; or

(ii)	was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct.”

In State v Mukwambuwe 2014 (2) ZLR 115 (H) it was held inter alia that in determining the question of causation for purposes of section 11 of the Criminal Law (Codification and Reform) Act Chapter 9:23; two tests apply.  Firstly, there must be a causal link between the conduct of the accused and the consequence.  The question is whether but for the accused’s conduct would the consequence have occurred.  This is referred to as the causa sine quanon.  Secondly, there is the question as to whether it was reasonably foreseeable that the accused’s conduct would lead to that consequence.  The causal link would not be broken by a new cause that supervened after the accused had engaged in the conduct, provided it was reasonably foreseeable that the subsequent event would occur after the accused’s conduct.

In R v John 1969 (2) RLR 23 (A) appellant fought with his wife.  When they broke apart the deceased ran off.  She was six months pregnant.  The accused picked up a hoe and pursued her.  The deceased fell into a large pool of water and drowned.  The accused was found guilty of culpable homicide.  His appeal against conviction was dismissed on the grounds that he ought to have foreseen that there was some risk of death in his aggressive pursuant of the deceased.  It was further held that it should not have come as a surprise when the deceased either accidentally fell or deliberately ran into the pool.

Applying these principles to the facts we find as follows;

(a)	the accused ought to have foreseen that the deceased in his terror stricken headlong flight, might take any avenue of escape.

(b)	The death of the deceased was reasonably foreseeable in that falling down while one is in full flight involves some risk of death.

(c)	It is not necessary for the accused to have foreseen the actual manner of his victim’s death.

(d)	By pulling the deceased down from the carrier of a bicycle, dragging him on the ground and slapping the deceased with an open hand, the accused set in motion events that terrified the deceased.

(e)	when the deceased extricated himself from the accused’s grip he took to his heels into the bush.  The fact that the cause of death was unascertainable due to decomposition does not mean that the accused did not cause the deceased’s death in that the evidence which is common cause, shows that the deceased died on the spot he fell down.  There was no novus aitus intervemens.

However, there is no evidence that accused hit the deceased with a hammer.  The accused is accordingly found not guilty of murder but guilty of culpable homicide.

Sentence

Accused stands convicted of culpable homicide arising from the use of violence.  That violence caused the deceased to flee for dear life.  He then fell down and died instantaneously.  The deceased was a young man aged 17 years.  We have not been informed of a cogent reason why accused assaulted the deceased.  Accused acted on mere rumours and sheer wickedness.  The evidence is that this was not the first time accused assaulted the deceased.  It appears the accused wanted to show off his physical dominance or superiority in front of his girlfriend.  He acted in a cowardly manner by targeting young boys instead of fighting other men of his age.

Going by Florence and Craig’s evidence, it is clear that the accused is a village bully.  Accused showed no signs of contrition.  He lied through his teeth in order to get himself acquitted.

The courts have a duty to uphold the sanctity of human life.  The courts have a duty to ensure that those who commit serious crimes are punished accordingly.  The retributive theory of sentence out paces the rehabilitative objects of punishment in such serious crimes.

In the circumstances, the accused is sentenced to 6 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused is not within that period convicted of an offence involving assault or violence upon the person of another.

Effective sentence – 4 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Liberty Mcijo & Associates, accused’s legal practitioners