The State v Tinashi Musiyiwa

### Preamble
1
HCC 58/24
REF CASE NO: HCC 595/24
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THE STATE

Versus

TINASHE MUSIYIWA

HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI, 28 June 2024

Assessors:	1. Mr. Kamanga

2. Mrs. Mateva

Criminal Trial

Mr. R. Nikisi, for the State

Ms. R. Mhere, for the accused

MUZOFA J: On the 23rd of March 2024 and at Delacia B1 Shops, Chikari, the accused aged only 21 years stabbed the deceased one Norest Shambare with an okapi knife on the neck. The deceased later died from the injuries.

The accused was arrested and charged with murder. He denied the charge and raised self-defence.

The State Case

To prove its case the State produced the following exhibits with the consent of the defence:

The post mortem report. The cause of death was recorded as stab wound in the neck and laceration on the thoracic aorta.

The accused’s confirmed warned and cautioned statement. His statement to the police was:

“I do admit to the allegations being levelled against me that I stabbed Norest Shambare with an okapi knife on the neck after we had been fighting with him and his siblings namely Silent Shumbaimwe, Isaac Ncube and Paul Ncube”.

The sketch plan drawn on the indications by the accused and the State witnesses.

The okapi knife with a brown handle, 24cm long and weighs 55grams.

The evidence of six witnesses as summarised on the summary of the State case was also admitted in terms of s314 of the Criminal Procedure and Evidence Act (Chapter 9:07).

Three witnesses gave oral evidence before the court.

Isaac Ncube

He was the deceased’s cousin brother. He knew the accused as one of the local villagers. On the 24th of March, he was at the shops in the company of Norest, Silent and Malvin warming themselves by a fire. The accused and Silent started fighting. There were many people, they tried to restrain them. The accused knocked Silent’s head on a tree. The deceased tried to restrain him. Silent managed to escape and ran away. The accused chased Silent. He later returned wielding a knife. He advanced straight to the deceased, threatened him, held his neck and stabbed the deceased once on the neck. The accused ran away. They pursued him but could not sustain the chase. The deceased subsequently passed out and was taken to the hospital where he was pronounced dead on arrival.

Silent Shumbaimwe

The deceased was his cousin brother, born of his mother’s sister. He knew the accused, as one of the villagers. On the fateful day, he went to the shops. When he got to the shops the deceased and the accused were arguing and threatening each other. When he arrived there were these two, he was the third man. He tried to intervene but the accused pushed him aside. He held the accused by the shirt and it got torn. The accused held him by the head and knocked him. In short, they fought. The accused produced a knife, he panicked and ran away. Accused was in the company of a friend who also ran away when he saw the knife. The accused pursued him, for about two metres and returned to where the deceased and others were. When the deceased was stabbed, he had left.

Under cross examination he could not reconcile his statement to the police and his evidence in court. To the police he did not mention that the accused argued with the deceased. Infact he said the accused picked a fight with him first. His evidence was clearly at tangent to Isaac’s evidence. He said he was first at the scene, Isaac arrived when he had already been assaulted. Isaac in his evidence said it was Silent who picked a fight with the accused the deceased was the peacemaker.

Malvin Hove

He was at the shopping centre in the company of Isaac, Silent, the deceased and Paul. They were on their way to their workplace. They met the accused by the shopping centre. The accused asked Silent about some old scores he wanted to settle. They fought. The deceased intervened and restrained them. The accused had a beer bottle that he used to strike Silent. Silent immediately ran away.

Malvin was not forthcoming on the details how Silent and the accused fought. Similarly, he did not give much detail on how the deceased was stabbed. According to him the deceased was struck for reprimanding the accused.

The State then closed its case.

The Defence Case

The accused was the only defence witness. In his evidence he said he was drinking beer with his friends at the said shopping centre. Silent arrived and accused him of giving his girlfriend beer. Silent had a bottle and a knife. He together with his friends left, as they walked away, Silent followed. He struck Silent with a bottle. Silent’s friends arrived, they attacked him using catapults. His friend escaped, he remained alone under attack. They had surrounded him. He picked the knife that Silent had dropped and stabbed the deceased to make a way to escape. He bolted out of their circle and ran for dear life. They pursued him for a distance and gave up. He denied chasing Silent. He insisted that the deceased and his friends had surrounded him, he stabbed the deceased to find a way out of the circle. His friends had fled.

The defence then closed its case.

Closing Submissions

Both legal practitioners made their oral submissions. For the State, it was submitted that the State witnesses’ evidence must be accepted as credible. The seeming contradiction on how they met is immaterial. The court must accept that the accused was armed with a bottle and a knife. He had two fights with Silent. One at the shops and the second fatal one a stone’s throw from the shops. He used the bottle first and then used the knife on the deceased. He was not surrounded by four people. Silent had ran away, Paul was not at the scene of crime. That left Isaac and the deceased. It was not true that he was attacked using catapults since they were so near to each other.

For the accused, the court was urged to acquit the accused on self-defence. It was submitted that the accused was under attack, he was encircled. He had to do something to protect himself. He stabbed the deceased and escaped. The requirements of self-defence were satisfied. We were referred to the case of State v Ginya HB 69/23, State v Banana 1994 (1) ZLR (SC) and State v Kurauone HH 961/15 where the principles of self-defence were discussed and applied.

Further to that, it was submitted that the State witnesses’ evidence must not be accepted. They contradicted each other in material respect. They were deceased’s relatives and naturally would want to minimise their role to secure a conviction.

Analysis

The court must first determine what transpired on the day. The State witnesses were related to the deceased in varied degrees. The accused mentioned them as the aggressors from inception when his warned and cautioned statement was recorded. They were infact part of the people that fought with him. As properly submitted for the accused the chances to embellish their evidence over illuminating the accused’s blameworthiness while down playing their role and deceased’s role is very high.

It is surprising that they were at the shops but they had different versions of what transpired. We reject the State’s assertion that the contradictions are immaterial. It is material to establish who had the initial altercation with the accused. Silent said the accused had a fight with the deceased yet Isaac and Malvin said it was Silent and the accused who had a fight first. We find that Silent was not a credible witness, the accused corroborated the other two witnesses that it was Silent and him who fought first.

The State witnesses were not upfront on the reason for the altercation. The accused said Silent asked him about his girl that the accused was now entertaining. This was not disputed at all. We therefore conclude that the reason for the beef between the two was a girlfriend. Silent’s girl had been snatched by the accused, in our view naturally Silent would be aggrieved. On this day therefore the probabilities are that he is the one who confronted the accused and they fought. The deceased and the State witnesses being Silent’s relatives would be on Silent’s side.

We also noted that the State witnesses did not readily talk about the fight. Their evidence taken cumulatively tend to point that they were attacked by the accused. They did not fight back. In our view that was not possible considering that it was Silent who had issues to settle with the accused.

We accept that on this day there was a fight, between two groups. The accused and his friends on one side and the deceased with his relatives. Since the State could not establish the root cause of the altercation, we accept the accused’s narrative that Silent had questioned his association with his girlfriend was the genesis of the fight.

Having said so we accept, as the State also accepted there were two fights. If the accused struck the deceased by the shops as alleged, the probabilities are that the deceased’s tag team followed accused and friends. We do not accept that the accused pursued Silent. We had a close look at the sketch plan, drawn on the indications of Isaac and the accused. The sketch plan shows where the accused and Silent had their initial fight and the route that the accused followed. The sketch plan does not show that the accused pursued Silent and returned. It does not even show the alleged homestead that one witness said he went and retrieved a knife.

We should comment on the purpose of a sketch plan. It is usually drawn from the indications by the accused and state witnesses. It is signed by those that give such indications to confirm its probity. It is evidence. Where it is produced by consent it is admitted evidence. The State therefore must be wary that the sketch plan does confirm the evidence of its witnesses.

In this case Isaac who made indications did not refer to the chasing of Silent, how he returned and at what point he subsequently returned and stabbed the deceased.

The sketch plan does not corroborate the state witnesses’ evidence. We therefore come to the conclusion that the accused and Silent fought first and when Silent was struck with a bottle he fled. He was not pursued. A fight then broke out between the accused and the State witnesses. The accused said one had a catapult. This was not denied. The state witnesses averred that the accused had a knife but he denied it. He said he picked the knife which Silent threw down when he ran away.

The State bears the onus to prove the charge against the accused. There was insufficient evidence to conclude that the accused had the knife. However, what is clear is that the accused is the one who used the knife.

Self-defence is a complete defence where it is shown that the accused was under an unlawful attack or the attack was imminent, the defence must be directed against the attacker; the defence must be necessary to avert the attack and the means used must be reasonable in the circumstances. See s253 of the Criminal Code. In assessing these elements, the Court must not take an armchair approach. It must consider the circumstances of the case and take heed of any pressure or fears that might have operated in the accused’s mind.

In our view if the accused picked the knife from the ground and it had been dropped by one of his assailants it means that he was now the one with an upper hand. He had a lethal weapon in his possession. He told the court that one had a catapult. He did not say if the others were armed. Our senses tell us that a catapult can only be used at a distance. So if the assailants had surrounded him that weapon could not be ably used. They were in close proximity. We also accept that if he was under attack at most there were two or three people. Silent had already fled.

The accused might have been under pressure, but having armed himself with a knife he had an upper hand. He did not say that his assailants held him. Since none had a lethal weapon if he had to use the knife, he could have directed it to some other not so vulnerable parts of the body. He used excessive force. As aptly stated in S v Banana (supra) where the self-defence involves excessive or disproportionate force there may be a finding of guilty of culpable homicide. This is on the basis that the accused was mistaken in thinking himself justified in killing. In that case the Court cited the case of S v Ngomane 1979 (3) SA 859 (A) where the Court had this to say,

"... although he acted in self-defence, he ought reasonably to have realised that he was acting too precipitately and using excessive force, and that, by stabbing the deceased with such a lethal weapon on the upper part of the body, he might unnecessarily kill him."

Those sentiments are apposite in this case. Taking into account that he was under attack but he eventually had in possession of the knife, he must have realised that use of a knife may cause death. As if that was not enough, he struck the deceased on the neck once which instantly caused the death of the deceased. This was a vulnerable part of the body. He was negligent in the way he used the knife.

The accused cannot be said to have formulated an intention to cause the death of the deceased either actual intention or legal intention. It is trite that the State must prove that the accused was both the factual and legal cause. It has established that he was the factual cause but failed to establish that he was the legal cause.

Accordingly, the accused is found not guilty of murder. He is found guilty of culpable homicide.

Sentence

The accused is a youthful first offender who was slightly drunk at the time of the commission of the offence. He has been in custody for five months which is a relatively short period. He has no family responsibilities.

Youthfulness is considered highly mitigatory as this age group is impressionable and their decision-making processes cannot be compared with a mature person. However, that is not to say youthfulness has any effect on the crime committed. Where the crime is serious as in this case a life was lost, Courts are required to send the correct message that even the youthful must be careful in the way they deal with issues. In S v Mutinhimha HH16/18 where the accused and the deceased fought and the accused a 17-year-old stabbed the deceased with an okapi the Court had this to say which we totally agree with,

‘A young person who acts in that fashion invites society not to treat him with the usual lenience that is extended to other juveniles who find themselves in conflict with the law. This is especially so when such a young person has committed a heinous crime like murder.  In other words, you emancipate yourself by conduct, especially when you are probably 18 years of age by the time you are being sentenced by persisting in lies.’

Although the court in that case found the accused guilty of murder it sentenced him to 9 years imprisonment. In this case a non-custodial sentence would be inappropriate. The accused fought with the deceased.He had initially used a bottle to strike Silent who fled. He could have decided to walk away from then. The deceased’s friends too could have walked away when Silent fled. It seems both parties decided to fight it out. This reduces the accused’s moral blameworthiness. In S v Mahlangu HB165/22 that both the State and the defence relied on a sentence of 5 years of which 2 years were suspended was imposed on a 19-year-old who assaulted the deceased with an electric cable and stabbed him with a knife.

In the main we considered the accused’s age, that he is contrite but no compensation was paid. The deceased’s mother indicated that she has developed a medical condition due to the loss of his last bone child the deceased. We also considered that the accused will live with the stigma that he killed a person. On  the other side we consider that life was lost, he could have been more careful. A short custodial sentence would meet the justice of the case. Those who drink beer and engage in fights that end up in death must know that they are still required to have measured responses to violence. Violence will never be a solution to any dispute.

The accused is sentenced to 5 years imprisonment of which 1 year is suspended for 5 years on condition during that period the accused is not convicted of an offence involving violence of which upon conviction he is sentenced to imprisonment without the option of a fine.

Effective 4 years imprisonment.

National Prosecuting Authority, the State’s legal practitioners

Mangwana & Partners, the accused’s pro deo legal practitioners.