THE State V Vusumuzi Christopher Junior Ncube

### Preamble
1
HB 267/22
HC (CRB) 91/22
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THE STATE

Versus

VUSUMUZI CHRISTOPHER JUNIOR NCUBE

IN THE HIGH COURT OF ZIMBABWE

MOYO J with Mr T. E. NDLOVU & MR G. MAPHOSA

HWANGE 16 OCTOBER 2022

Criminal Trial

B. Tshabalala for the state

Ms C. Manyeza for the accused

MOYO J:	The accused person faces a charge of murder, it being alleged that on the 31st of January 2021 and in the accused’s bedroom at Nkayi District Hospital quarters in Nkayi, he unlawfully caused the death of Letwin Gotido by pouring methylated spirit on Letwin Gotido’s clothes and then lit a match and set her on fire thereby causing her death later on the 8th of March 2021 at Mpilo Central Hospital from the injuries she sustained from the burns.  The accused pleaded not guilty to the charge.

The following were tendered into the court record and were duly marked.

The state summary

The defence outline

The post mortem report

The accused’s confirmed warned and cautioned statement

An extract from a report received book from the police

2 witnesses gave viva voce evidence for the state that is Andile Moyo and Sharon Mufachisi.  The accused and Sergeant Tsinah Moyo gave evidence for the defence.  The evidence of the following witnesses was admitted into the court record as it appears in the state summary.

Tabeth Ncube

Sergeant Mandiwaza

Dr Jekenya

The evidence of Etmore Gotido was expunged from the state summary as he is since deceased.

The State case

The state called Andile Moyo.  The material aspects of his evidence where that:-

He is aged 10 years old and is a grade 4 pupil in Mbare in Harare.  He said that the accused was his step-father.  The deceased was his mother.  He stayed with both accused and deceased at the material time.  He did not know the date of the occurrence when deceased got burnt but he knew the events of the date in question.  Accused had gone out to drink beer at a friend’s party.  When he later came back at night he woke Sharon up and said they should go and fetch water.  When Sharon woke up, the deceased woke up too and questioned accused as to what he was doing with the child at that time.  Accused then said what did deceased think she would do and then the deceased was hit by accused with a bottle on her back.  He said deceased said she had been injured and that she was beaten.  Sharon Mutarachisi intervened and stopped the fight.  Deceased then told them (the children) to pack their bags.  Deceased wanted to collect her purse from the bedroom, accused ordered her out but she refused.  He said he was peeping through the door.  He said that something was then poured on his mother and accused then lit a match and deceased was in flames.  Andile then woke Sharon up.  Sharon then put out the fire by using a container with water.  Accused then went and called Mai Nathi who is also called Tabeth Ncube.  Deceased was then put on a wheelchair and was taken to the hospital.  He said he could observe what happened in the bedroom because the door was open and there was some light.  The witness said accused then placed a blanket over the deceased covering her.  The witness said deceased said to accused you are killing me.  He said there was no cooking in the kitchen and they had already eaten for that day.  Andile said he did not know what time the incident occurred but that it was during the night and they were sleeping.  He admitted that it could have been at 4am but disputed that deceased could have been cooking at that time as accused left very early, he said accused never left very early for work.

Nothing much was elicited through the cross-examination of this witness except that he emphasized that he saw accused burning the deceased, that there was never any cooking and that he was neither assaulted nor influenced to tell the court what he stated.

Next to testify was Sharon Mufarachisi.  She is 18 years old.  She stayed with both accused and deceased at the material time.  The accused and deceased used to fight in their relationship because deceased used to say that accused has girlfriends.  She told the court that accused returned from a party in the evening. She said they had already retired to bed but they woke up when accused knocked.  Accused then called her so that they go and fetch water.  Accused started proposing love to the witness.  Deceased saw all that through the window, deceased then went outside and questioned accused as to what he was doing with a young girl in the evening.  Accused then responded raising his voice.  He then hit the deceased on her back with a bottle.  Deceased was pregnant.  She then said accused had killed her baby.  They all then went back into the house.  After the misunderstanding deceased slept with the children in the dining room.  She later woke up and went to the bedroom where accused was.  The witness then heard a sound of some pouring and she thought it was in the toilet.  The 1st state witness Andile Moyo then came and woke her up saying mama is being burnt.  The witness’ ran to the bedroom and she saw that the deceased was burning with the head in flames.  Accused then brought a blanket and covered deceased’s head.  The witness then ran to the kitchen sink and took a bucket of water, she then poured the water on the deceased.  The fire then went out.  Deceased was then taken out of the bedroom being held by the accused.  Deceased then cried saying “Vusa you have killed me” referring to accused.  The accused was then saying deceased poured the liquid on her own and she burnt herself.  Accused then left, the witness did not know where he had gone to.  Deceased then asked the witness to go and call an ambulance.  Accused later came back and then told them that if anyone asks of what happened to the deceased, they should say she was burnt by gas while cooking chips.  She said when she found deceased burning, she was near the door but inside the bedroom.  She further confirmed that it is not true that the deceased died from burns she sustained whilst cooking.  Under cross-examination the witness denied that she ever called the accused’s phone and that it must have been her aunt whose phone she used because the aunt had some connections with the accused person.  She further confirmed that deceased was taken to the hospital on a wheel chair.

Under cross-examination she also confirmed that the bottle that had contained the spirit was there in the bedroom and that the bedroom smelt of spirit.  The evidence of Tabeth Ncube was admitted as it appeared in the state summary.  Tabeth Ncube’s testimony in the state summary was to the effect that she was called by accused to his house who reported that deceased had been injured.  The deceased had burns all over the face, chest and hair extensions.  Deceased told this witness that she had been burnt by gas.  The accused then brought a wheel chair and she was taken to the female ward where she was admitted.  Under cross-examination it was put to this witness that deceased was burnt at 4am and while cooking chips and she answered by saying it was around midnight to 1am.

Accused gave evidence and stated that she came home at about 11-12pm, found the deceased sleeping in the bedroom.  He asked her to assist in finding water and she refused saying she was drunk.  He then went to the lounge and called Sharon, they then went out to fetch water.  Deceased then came at around 3:30 am and asked him why they were still out late.  He replied saying they were filling containers what did she think they would do.  Deceased then started yelling.  The parties then got into an argument.  While inside the house deceased continued shouting at the accused until Sharon intervened.  Deceased then went and slept in the lounge with the kids.  She ordinarily slept in the bedroom.  He then went to his bedroom and slept.  Deceased then came and asked him in the early hours of the morning what time he was going to leave for work so that she cooks for him.  He then said he would leave around 5am.  He was later awakened by noise in the kitchen as deceased screamed.  He rushed to the kitchen and found the deceased on fire.  He tried to put the fire out with a blanket and a jug of water.  He then ran out to get assistance.  He said they then took deceased to the hospital and that she went walking on her own on the way to the hospital.  He said in the kitchen he found the gas on with a pan that had oil in it and it was also on fire.  He said at the time Andile was sleeping and he woke up when he heard the deceased screaming.  He said Sharon also woke up around the same time.  He denied burning the deceased as alleged by Andile and Sharon.  He does not know the reason why Andile would lie against him.  He said he also does not know the reason why Sharon would also lie against him.  He further told the court that while deceased burned and he put out the fire, Sharon just stood and watched but did not do anything.

The 2nd defence witness was Sergeant Trinah Moyo she told the court that she was tasked to investigate an anonymous tip off and she assigned a police officer to investigate it.  The police officer recorded a statement from the deceased who said she woke up at 4am to make some chips and then she was burnt by gas after the oil was over-burnt and then caught fire.  She tendered exhibit 5 which is an extract from their register of reports received.  She confirmed under cross-examination that she did not see the deceased herself.  She said she did not have the statement that was recorded from the deceased.

From the evidence before this court, the court will make the following factual findings.

On the night in question the family together with deceased retired to bed when accused had gone to a party.

Accused came at night and he woke up the 2nd state witness Sharon Mafarachisi so that they go and fill up water containers outside.  They did go.

While outside, deceased woke up and queried accused’s behavior.

A misunderstanding then ensued.

According to Sharon the deceased was then struck with a bottle by the accused.  Accused does not tell us this, he simply refers to it as a misunderstanding.  This is how the court will resolve this disparity.  It is possible that accused did assault the deceased with a bottle as witnessed by the 2 state witnesses and as the parties were fighting since deceased later decided not to sleep in the bedroom and went to sleep in the lounge with the children.  In fact during the cross-examination of Sharon, the issue of accused assaulting deceased with a bottle was not disputed.  However, what stands out is that the 2 parties (accused and deceased) had an altercation that resulted in deceased abandoning sleeping in the bedroom.

The question is after the family retired to bed with accused in the bedroom and others including deceased in the lounge, what then ensued that is to say, how was the deceased burnt?

The version by the state witness

The version by the state witnesses is that deceased was set alight by accused in the bedroom after pouring spirit on her and striking a match.  These are eye witnesses to this occurrence.  The version by the accused is that deceased was burnt while cooking chips in the kitchen.

The court makes the following observations vis-à-vis these different accounts.

Deceased and accused had an altercation on the night in question causing deceased to sleep in the lounge.  At some stage deceased went to the bedroom, Andile says she wanted to collect her purse, accused says she came to ask him when he would be leaving for work so that she cooks for him.  The court is inclined to accept the version by the state witnesses, whom the court has found as credible not only because they were credible in all material respects but because their version logically fits with the events of the day in question.  Their version conforms with the general terrain of that day in that accused and deceased fought on that night causing deceased to sleep in the lounge.  It then defies logic that deceased would suddenly go to the bedroom to enquire on when accused would be leaving so that she prepares his food.  The version by the state witnesses that the dispute continued after deceased went to the bedroom resulting in accused pouring spirit on her and burning her, fits perfectly with the mood of that day.  It fits well into the totality of the events of that day.

Other then that the 2 state witnesses were related to the deceased, nothing else came out clearly on their agenda to incriminate the accused.  Neither did their answers in cross-examination show that they were bent on incriminating the accused person at all costs.  The accused person also told the court that the deceased walked by herself to the hospital, when Sharon and Andile told the court that deceased was taken on a wheel chair to the hospital.  This is a material issue that sways the court on who between the accused and the state witnesses is telling the truth.  Clearly, deceased was taken to the hospital on a wheel chair as the admitted evidence of Tabeth Ncube, who did take the deceased to the hospital does confirm Sharon and Andile’s testimonies in this regard.  It clearly shows that the accused cannot be trusted for why is he downplaying the aspect of how deceased was ferried to the hospital after being injured?

This is another point that the state scores against the defence case.

The evidence of Tabeth Ncube further states that deceased said she had been burnt by gas.  However, it is this court’s view that such evidence is of no probative value given the state eye witnesses’ accounts.  Even if for argument’s sake the deceased did say that to the witness that would not render the eye-witness’ accounts false as clearly the accused and the deceased were husband and wife and it is he evidence of the state witnesses that accused told them that they should say the deceased was burnt by gas while cooking.   There is therefore evidence of interference by accused on the cause of the burns on the deceased.  The court would thus not put any weight at all on this as the facts of the case and the totality of the events of the night in question lead to a different conclusion altogether.  The accused was seen by Andile and Sharon burning the deceased.  Tabeth’s evidence would only be useful if she had witnessed the incident where deceased was burnt by gas.  It would have been sufficient to create a doubt in the state case if Tabeth had seen what she was telling the court. The evidence of Sergeant Trinah Moyo is of no probative value, relevance or any assistance at all to the issues that this court needed to resolve.  Firstly, she is not the one who visited the deceased in hospital, she is not the one who recorded a statement from the deceased.  She cannot tell us if deceased was in a condition to make any statement.  The police officer who also allegedly visited the deceased and recorded a statement was never called to testify neither was the statement by deceased itself tendered.  That the police received an anonymous call, went to investigate, recorded negative findings contained in exhibit 5 has no meaning at all to the issues that need to be resolved.  We already have eye-witness accounts of what transpired on the night in question.  It is thus of no probative value and the court will not attach any weight to it.

The question that needs to be asked is do all the facts taken together prove guilt beyond a reasonable doubt?

From the totality of the events of the night in question, the credibility of the 2 eye-witness accounts, the accused’s version to try and downplay how deceased was taken to the hospital, this court finds that the versions of the 2 state witnesses is the correct version of the events of the night in question and that there was no cooking or fire that occurred in the kitchen, the fire occurred in the bedroom with accused having poured a flammable substance on deceased and struck a match.  The version about the cooking was created to conceal what exactly transpired on the day in question so as to try and absolve the accused.

The verdict

On the verdict, in his closing submissions the state counsel abandoned the murder charge and submitted that accused should be convicted of attempted murder since the post mortem report gave both the burns inflicted on the deceased and Covid 19 as causes of  death and that it was therefore inconclusive.  Since the post mortem gives the cause of death as both severe burns and Covid 19 infection, it is inconclusive and in this respect it cannot be found that the state proved beyond a reasonable doubt that deceased died only from the burns sustained in the assault.  The accused gets the benefit of the doubt on the aspect of the burns being the sole cause of death.  However, he is still liable on the facts to be convicted on the competent verdict of attempted murder.  It is for these reasons that accused is found not guilty and is acquitted on the charge of murder but he is accordingly convicted of attempted murder.

Sentence

The accused person is convicted of attempted murder as defined in section 47 (3) as read with section 189 (1) (a) of the Code.  He is a first offender.  He is 33 years old and is a family man and a sole breadwinner.  He however started at the very deep end.  He set his wife alight following a matrimonial dispute, causing her severe burns which the post mortem report gives as 18% severe burns.  These were fatal enough to be listed as the number 1 in the cause of death with Covid 19 being listed as number 3.

Domestic violence is now a cancer in our society wherein spouses find it within their power to butcher each other over flimsy conflicts and cause each other serious injuries including death.  These courts frown at violence as a means to settle disputes.  Human dignity must prevail in homes and the society at large and these courts must speak through appropriate sentences.  The penalty provided for this offence is in section 47 (6) of the Code wherein it is provided that;

“A person convicted of attempted murder or of incitement or conspiracy to commit murder shall be liable to be sentenced to imprisonment for life or any definite period of imprisonment. “

This sentence clearly shows how the legislature views the crime of attempted murder.  There is no alternative to imprisonment provided for in the section In fact the former CJ GUBBAY stated the following on attempted murder as an offence in the case of S v Bhero and Anor; “Attempted murder is a crime which save in the most exceptional circumstances, is always treated extremely serious.  This is because it has the effect of holding human life cheap.  It differs from murder only in that the intended result did not materialise, but the moral reprehensibility is there in equal degree.”  An appropriate sentence is a term of imprisonment as provided for by the legislature.  Therefore, only a term of imprisonment suits the justice of this case.  In the case of S v Danga HB-97-22 the court sentenced an accused person convicted of attempted murder after he set alight a hut that the deceased was in and thereby causing severe injuries, the accused was however convicted of attempted murder as the deceased’s body also tested positive for Covid 19 post humously.  That accused was sentenced to 10 years imprisonment. Also, in the case of Jimmy Sebone Seemela 2015 ZASCA 41, a decision of the South African Supreme Court, the appellant was sentenced to 12 years for attempted murder where the accused had been given the benefit of the doubt where the cause of deceased’s death was inconclusive.

It is this court’s view that considering the sentencing provisions, from any definite period of imprisonment to life imprisonment, that is a sentencing bracket where the facts of each case then determine whereabout within that bracket should an accused’s penalty lie.  Each case depends on its own facts.  I am already aware that in most cases where the victim sustained life threatening injuries, but survived depending on the facts, sentences in the region of 3 – 7 years imprisonment have been given.  However, it is this court’s view that in this case, the equivalent of a medical report which is the post mortem report classifies the injuries not only as life threatening but as being fatal since the burns are given as the number 1 cause of death.  In exhibit 3A, annexure to the post mortem stamped on 13 June 2022, the doctor says; “I emphasized to him that the now deceased died of septic burns as noted above but she also tested positive to Covid 19 testing.”  He further states that; “The cause of death is as stated under the original cause of death i.e burns of which some became septic and hospital acquired Covid 19.”The deceased suffered fatal burns effected by the accused.  This then becomes another category of attempted murder, where the victim does not survive and the burns remain a possible cause of death, save for that there is yet another possible cause.  It is this court’s view that this then becomes a different bracket of attempted murder vis-à-vis its place in sentencing.  It then becomes a more serious nature of attempted murder, where the injuries inflicted were not only merely life threatening but they were a possible cause of death.  This court is alive to the fact that the accused still remains liable to attempted murder as already found, but it cannot close its eyes, in sentencing this accused, as to the nature, degree of severity and fatal nature of such injuries which is why this court is persuaded by the sentencing trend in S v Khoza (supra) which is in all fours with the circumstances of this case..   The South African case of Jimmy Seemela (supra) is also similar to the extent that the victim died but the cause of death was inconclusive.  Again in the case of Nhlapho vs S 2002 ZASCA 72, the appellant therein was sentenced to 10 years for attempted murder and the South African Supreme Court upheld that sentence.  In the case of S v Van Breda 2018 ZAWCH 87, the accused who had been convicted of attempted murder was sentenced to 16 years imprisonment.

In this case, it is the court’s view that other than that accused is a 1st offender and a family man, there is no meaningful mitigation at all.  Pouring a flammable liquid on deceased and setting her on fire following a dispute is a heinous act and accused’s conduct is worsened by trying to conceal his brutality.  In fact the accused in this case tried to influence the state witnesses and other people so that a different outcome is possible.  He tried to throw spanners into the wheels of justice.  Neither did the accused show any remorse.  In fact he tried to influence the state witnesses to conceal his brutality.  It is this court’s considered view that a sentence in the same region as in S v Khoza case (supra) and S v Jimmy Seemela (supra) would meet the justice of the case.

It is for these reasons that the accused person shall be sentenced to 12 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Mhaka Attorneys, accused’s legal practitioners