The State v Bongani Ngulube

### Preamble
1
HB 60/22
HC (CRB) 21/22
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THE STATE

Versus

BONGANI NGULUBE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J with Assessors Mr. Mashingaidze and Mr. Ndlovu

BULAWAYO 25 FEBRUARY & 26 FEBRUARY 2022

Criminal trial

T. Muduma for the State

P. Butshe for the accused

DUBE-BANDA J: The accused person is charged with the crime of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Criminal Code).  It being alleged that on the 3rd February 2021, outside Block 9/282 along W. T. Ngwenya Road, Mpopoma, Bulawayo the accused unlawfully caused the death of Siphoesihle Moyo (deceased) by stabbing him with an okapi knife once on the stomach and on the forearm intending kill him or realising that there was a real risk or possibility that his conduct might cause death continued to engage in that conduct.

The accused pleaded guilty to the crime of murder as defined in section 47(1) (b) of the Criminal Code i.e. he realised that there was a real risk or possibility that his conduct may cause death, but continued to engage in that conduct despite the risk or possibility. However, in terms of section 271(1) of the Criminal Procedure and Evidence Act [Chapter 7:09], this court entered a plea of not guilty and proceeded with the trial.  The accused was legally represented throughout the trial.

The State tendered an Outline of the State Case, which is before the court and marked Annexure A, and the accused tendered into the record an Outline of his defence case, which is before the court and marked Annexure B.

State case

The State tendered into evidence accused’s confirmed warned and cautioned statement, it is before court and marked Exhibit 1. Further the State tendered into evidence a post mortem report compiled by Dr S. Pesanai at United Bulawayo Hospitals on the 5th February 2021. The report is before court and marked Exhibit 2, it shows that the cause of death was traumatic shock; stab wound (abdomen) and assault.

The prosecutor sought and obtained admissions from the accused in terms of section 314 of the Criminal Procedure & Evidence Act [Chapter 9:07] (CP & E Act). The admissions relate to the evidence of certain witnesses as it appears in the State Outline (Annexure A). The admitted evidence is accepted for its truthfulness. This is so because section 314(1) of the CP &E Act provides that:

In any criminal proceedings the accused or his legal representative or the prosecutor may admit any fact relevant to the issue and any such admission shall be sufficient evidence of that fact.

We summarise the evidence of the section 314 witnesses. First is the evidence of Dr S. Pesanai. He is a qualified and registered medical practitioner. He conducted an autopsy on the remains of the deceased and recorded a post mortem report (Exhibit 2).

Second is the evidence of Mike Ncube. He knew the deceased and the accused prior to this case as teenagers in his neighbourhood. On the 3rd February 2021, at about 19: 40 hours he was seated inside his yard when he saw a group of boys standing outside his gate. They were playing music very loudly from a speaker box. The place was well illuminated by a nearby tower light. One Nkosinomusa Gumbo then left that group and came to where he was seated. At that same time he heard accused advising the deceased to lower the volume of the speaker but the deceased did not comply. A misunderstanding ensued between the deceased and the accused and he suddenly saw the deceased clutching his stomach with both hands and moving towards his gate. He observed that deceased was trying to push back his intestines which were protruding from his stomach. This witness did not see how accused disappeared from the scene. The witness immediately went and reported the incident to the deceased’s family and on his return, he found deceased being assisted to get into Edwin Paipi’s motor vehicle who rushed him to Mpilo Hospital. A short while later police attended the scene and whilst they were still at the crime scene the accused returned and was apprehended.

Third is the evidence of Edwin Paipi. He knew deceased as he was a friend to his son. On the 3rd February 2021, at about 20:15 hours he was indoors when he received a report that deceased had been stabbed and he was in need of assistance to be ferried to hospital. He immediately drove to the scene where he found a huge crowd having gathered around the deceased who was lying facing upwards and holding his intestines which were protruding from his stomach. The crowd assisted to lift the deceased into his car and he rushed him to Mpilo Hospital where he handed him to the hospital authorities. After a long wait at the hospital, he was told that the deceased had died.

The fourth is the evidence of Lungisi Moyo.  He is a duly attested member in the Zimbabwe Republic Police (ZRP). At the material time relevant to this case he was stationed at Western Commonage Police Station. On the 3rd February 2021, he reacted to a report and attended to the scene of this case in the company of his colleagues. On their arrival at Block 9/282 Mike Ncube showed them the scene of the incident and they observed a pool of blood near the gate to the residence. The deceased had already been taken to the hospital. Whilst still interviewing Mike Ncube the accused returned to the crime scene and was identified to them by Mike Ncube. They immediately arrested the accused person and searched him but could not find the murder weapon.

The fifth is the evidence of Velile Zele.  He is a duly attested member of the ZRP. At the material time relevant to this case he was stationed at Western Commonage Police Station. He is the Investigating Officer in this case. At the time the matter was allocated to him for investigation, the accused was already in police custody. On the 4th February 2021, he took the accused from the cells and advised him of the charge of murder that he was facing and apprised him of his rights. The accused elected to give a statement in response to the allegations. When he gave this statement the accused did so freely and voluntarily and in his sound and sober senses. No undue influence was brought to bear upon him to induce him to make the statement. The statement was reduced to writing and was read back to the accused who abided by its contents and appended his signature. The statement was later translated into English and was confirmed by a magistrate. After recording the warned and cautioned statement he took the accused and witnesses to the crime scene where indications were made. Efforts to locate the murder weapon were in vain.

The sixth the evidence for Erasmus Mabvure.  He is a member in the ZRP. At the material time relevant to this case he was stationed at Western Commonage Police Station. On the 4th February 2021, he was on duty and was present when the investigating officer recorded a warned and cautioned statement from the accused person. The seventh is the evidence of Brighton Mwandira. He is a member of the ZRP.  On the 5th February 2021, he identified the body of the deceased to Doctor S. Pesanai who conducted a post mortem examination.

Thereafter the State called the oral evidence of two witnesses. We are going to briefly summarise their evidence. The first State witness to testify Nkosinomusa Gumbo. This witness testified that he grew up with deceased and the accused, and they were friends. On the fateful day the three friends were drinking alcohol, a brandy called Best. They started drinking alcohol in the morning and they were all very drunk. He did not hear deceased saying accused’s girl-friend was ugly. He did not see deceased throwing stones at the accused. At around 8 to 9 p.m. he got into Mike Ncube’s residence, while at the residence he was called by Author Ncube who informed him that the deceased and the accused were fighting. When he got outside the gate, he met the deceased who told him that accused had stabbed him. At that point accused fled. He called accused and he returned. When accused realised the injuries he had inflicted on the deceased he ran away again. He then reported the matter at Western Commonage Police Station.

Under cross examination this witness testified that on this fateful day they consumed three bottles of this brandy. He described this brandy as very strong. He said of the three the accused was the most drunk. When asked whether accused was so drunk that he did not appreciate his conduct, his answer was “he was appreciating.” He testified that he did not hear the noise accused and deceased are said to have been making, and he attributed this to the loud music coming from the yard. He chased accused and he was outpaced. When asked how he could be outpaced by someone who was drunk than him, his answer was that “I was in shock.” He did not ask accused the reason he stabbed the deceased. This witness truthful, honest and reliable in this court. He did not exaggerate issues and he made concessions were necessary. We have no hesitation in accepting his evidence.

The second to testify was Author Ncube. He heard his father talking to the deceased asking him to reduce the volume of their radio. The deceased refused to lower the volume of the radio and started insulting this witness’s father. Accused reprimanded deceased telling him not to insult adults. The deceased started to insult the accused person. They had an exchange of words. This witness made a comment that these people were drunk, i.e. accused, deceased and Nkosinomusa Gumbo. The deceased punched accused with clenched fists. He then saw the accused removing something from his pocket, he does not know how it happened but he stabbed deceased. There is a bright tower light in the area and he saw the accused stab the deceased. He indicated that deceased was stabbed in the stomach region. Accused fled, and one Nkosinomusa Gumbo chanced him but he was out paced. Deceased moved towards the gate, he was holding his stomach in pain. When deceased removed his hands from the stomach the witness saw intestines protruding. Deceased fell to the ground. People started gathering around and one Paipi took deceased to hospital. The police arrived.  Accused returned to the scene.

In cross examination he was asked whether he saw deceased throwing stones at the accused, he agreed. He noticed that deceased had two bricks in his hands. He dropped one brick and punched accused person. Asked whether he saw the part of the body deceased struck accused with a brick, his answer was he did not know. Deceased retreated and accused advanced towards him and removed a knife from his pocket. Deceased was retreating moving towards the brick that he earlier dropped, to pick it up. Asked why he was saying deceased wanted to pick up the brick, his answer was “he was moving backwards checking for the brick to pick it up. At this point he did not hear any utterances between the two the volume of the radio was high.” He said deceased struck accused once on the face. Again this witness a juvenile was a truthful, honest and reliable in this court.  We can say here without any shadow of doubt that this state witnesses did not embellish his version to disadvantage the accused person. He even gave evidence favourable to the accused.

Defence case

Accused testified in his defence. He said he grew up with the deceased in the same neighbourhood. They were friends. On the fateful day he started drinking alcohol at 12 midday.  He was drinking beer called Best. He found deceased and Nkosinomusa Gumbo drinking beer, and he had his own beer, and he joined them.

He was drunk. He could appreciate what was happening, “but not very much.” He testified that when they were still seated outside the Catholic Church, deceased said accused’s girl-friend was in love with another boy and she was ugly. Accused testified that he told deceased that he was lying that his girl-friend was in love with another boy, and that it was not his business that she was ugly. He says deceased insulting him about his mother’s private parts. He says he asked deceased to stop or they would end up fighting. He then stood up and left.

He decided to leave, deceased and Gumbo started following him. Gumbo entered Mike Ncube’s residence. Deceased remained and said that what he was saying about accused’s girl-friend was true. Accused says he told deceased to leave the issue, because he did not want to fight him since they were friends. He says deceased started insulting him again, accused warned him again. Deceased picked some bricks, he threw one at accused and it missed him. He advanced holding one brick in his hand. He says at one point he drew a knife from his pocket and stabbed deceased.

He used a kitchen knife which cannot be folded. When he was fleeing he fell down and he does not know what happened to the knife. It was not his intention to stab deceased, he was provoked and got angry. He appreciated the danger that could be caused by the knife.

Under cross examination he testified that the beer they were consuming is called Best Friend Brandy. He started drinking at 12 midday up to evening time.   He confirmed that all along he had the knife in his pocket. He got the knife at his work place at Esigodini. It was left in his possession by his friends and he intended to give it back to them. The deceased insulted him about his mother and this did not go down well with him. He appreciated that a knife is a lethal weapon. He used the knife in self-defence. Deceased was advancing towards him with a weapon on his hand, he feared the brick and he stabbed him. He could not run away because there was a hall behind him. It was not his intention to stab him to death. His intention was to inflict pain, he never thought deceased would die. He conceded that he used excessive force. He says he is remorseful. Asked by the court, he said the knife was 30 cm in length, with a handle of 15 cm and a blade of 20cm. As a witness accused was selective, in some instances downright untruthful and had a tendency to exaggerate issues in his favour. Where his evidence contradicts that of the State witness, we reject it.

Analysis of the evidence

In criminal proceedings, the State bears the onus to prove the accused’s guilt beyond a reasonable doubt. The accused’s version cannot be rejected only on the basis that it is improbable, but only once the trial court has found, on credible evidence, that the explanation is false beyond a reasonable doubt. The contrary is that, if the accused’s version is reasonably possibly true, the accused is entitled to an acquittal. Equally trite is that the accused can only be found guilty if, after consideration of all the evidence, his version of events is found to be false. See: S v Kuiper 2000 (1) ZLR 113 (S); S v V 2000 (1) SACR 453 (SCA) at 455B; S v van der Meyden 1999 (1) SACR 447 (W) at 448f-h and 450a-c.

It is with these legal principles in mind that we proceed to analyse the evidence presented in this trial. In analysing the evidence before us, we start by considering the common cause facts and those facts that are not seriously disputed. There is evidence before court that accused stabbed deceased with a knife in the stomach region. The evidence of Mike Ncube is that a misunderstanding ensued between accused and deceased and he suddenly saw deceased clutching his stomach with both hands and trying to push back his intestines which were protruding. State witness Author Ncube witnessed the accused stabbing the deceased. Gumbo met deceased who told him that accused had stabbed him. In his confirmed warned and cautioned statement (exhibit 1) accused says he produced a knife from his trousers pocket and opened it. He stabbed deceased on the belly and left arm. In his defence outline he admits that he drew a knife and stabbed deceased.

The deceased suffered serious injuries arising from the knife stab by the accused. These injuries caused the death of the deceased. According to the post mortem report (Exhibit 2) deceased was stabbed with a knife on the abdomen, sustained penetrating abdominal trauma with evisceration of abdominal organs. He had a stab wound on the left forearm 10 cm by 3 cm. The cause of death is traumatic shock, stab wound and assault. We find it proved that the injuries inflicted by the accused caused the death of the deceased.

There is evidence on record that accused, Gumbo and deceased had consumed some alcohol. In his defence outline he alludes to the consumption of alcohol, and this also appears in his statement (Exhibit 1). The evidence shows that they were consuming a very strong brandy. Accused was intoxicated. Gumbo says accused was the most drunk.  Mr Busthe counsel for the accused submitted that, notwithstanding the consumption of alcohol, the effect of the intoxication was not such that he lacked the requisite intention, knowledge or realisation. We agree.  We say so because he does not attribute the stabbing of the deceased to intoxication. He says he was provoked and got angry and says he appreciated what he was doing. Again notwithstanding the fact that he was intoxicated he ran and outpaced Gumbo. We find that the effect of the intoxication was not such that he lacked the requisite intention, knowledge or realisation.

There is evidence that at some point accused was being attacked by the deceased. Mike Ncube’s evidence is that he heard accused advising the deceased to lower the volume of the speaker but the deceased did not comply. He says thereafter a misunderstanding ensued between the deceased and the accused. Author Ncube speaks to the evidence of the attack in graphic detail. He says deceased picked two bricks, dropped one and was holding the other when punching the accused. At the point of stabbing he says accused was advancing and deceased was retreating, moving backwards to pick the brick that he had dropped. The accused in his statement speaks to this attack, he says deceased picked stones and started throwing them at him, intending to strike him, but missed him. The accused further alludes to this attack in his defence outline. We accept that at some point deceased was attacking accused and that such attack was unlawful.

Accused testified that the knife belonged to his friends, who left it in his possession at his workplace at Esigodini. In his defence outline he works at Kensington, and this changes in his evidence in court and he now works at Esigodini. He says he used a kitchen knife which cannot be folded. It is clear that accused is trying to escape that he used an okapi knife. In his statement (Exhibit 1) he says he produced a knife and opened it, a kitchen knife which cannot be folded cannot be opened. This version that he used a kitchen knife which cannot be folded cannot be the truth. Even if we were to accept that he used a kitchen knife, it is still a lethal weapon.

The accused used excessive force in stabbing the deceased.  Author Ncube testified that the deceased was stabbed in the stomach.  He saw deceased holding his stomach in pain. When deceased removed his hands from the stomach the witness saw intestines protruding. Deceased fell to the ground. Mike Ncube’s evidence is that he observed that deceased was trying to push back his intestines which were protruding from his stomach. According to the post mortem report (Exhibit 2) deceased sustained penetrating abdominal trauma with evisceration of abdominal organs. He sustained a stab wound on left forearm 10 cm by 3 cm, wound on the abdomen 10 cm by 4 cm. The large and small bowels were perforated. These injuries show that an excessive amount of force was used in stabbing the deceased. Mr Butshe submitted that the accused used excessive force in the circumstances. We agree with this submission.

At the point accused stabbed the deceased, deceased was not armed. He had neither stone nor brick in his hands. We note that that Author Ncube says at the point of stabbing accused was advancing and deceased was retreating backwards to pick a brick that he had dropped. We find this assertion by Author Ncube just speculation. The evidence shows that deceased was not armed and was retreating. Further, we find as a fact that accused stabbed deceased on the left forearm and on the stomach. This is what accused says in his statement and is confirmed by the post mortem report. Stabbing a human being twice with so much force escalates far beyond the limits of self-defence. From the totality of the evidence led herein we have been persuaded that the State has proved its case against the accused beyond a reasonable doubt.

Mr Muduma counsel for the State submitted that on the evidence accused is guilty of murder in terms of section 47 (1) (b) of the Criminal Law [Codification and Reform] Act, i.e. murder with constructive intent. Mr Butshe agreed. To deliberately strike another human with a knife with such excessive force on the stomach to cause the bowels to protrude, and again on the forearm entails an awareness of the real risk or possibility of death. The strike on the abdomen was directed at a delicate and vulnerable part of the body. A lethal weapon was used.  In the circumstances of this case accused did not mean to bring about death but foresaw it as possibility when he stabbed deceased on the stomach and proceeded regardless as to whether death ensues.

Verdict

Having carefully weighed the evidence adduced as a whole in the trial, the accused is found guilty of murder as defined in terms section 47 (1) (b) of the Criminal Law (Codification & Reform Act) [Chapter 9:23].

Sentence

Mr Ngulube, this court must now decide what sentence is appropriate for the offence for which you have been found guilty. To arrive at the appropriate sentence to be imposed, this court will look at your personal circumstances, take into account the nature of the offence you have been convicted of, factor in the interests of society, weigh same against the others and then blend them with an appropriate measure of mercy.

The offence for which you have been convicted is a grave and serious offence. The prevalence of the crime of murder is such that cognisance is sometimes lost of the extreme consequences that flow from it. A life is ended. Not only is a life ended, but the lives of family and friends are irreparably altered and damaged. It is for this reason that the law requires that the perpetrator should generally and in appropriate cases be visited with severe punishment.

This is the task that a sentencing court is called upon to carry out. It is required to take proper cognisance of the nature of the crime and to determine a sentence which balances the competing interests of the society and the individual perpetrator, while meeting the objectives of punishment. It does so in the context of the fundamental values that underpin our legal system. It is a task that is rightly considered to be very difficult.

We factor into the sentencing equation that at the time of the commission of this offence you had just turned 18 years old. You are father to a young baby girl. You were employed as an artisanal miner and earning on commission. You have been in custody for just over a year in connection with this case.

We further take into account that on the fateful day you were voluntarily intoxicated. Deceased also insulted you calling your girl-friend ugly. Insulting you by your mother’s private parts. You caused the death of your friend. This stigma will live with you for very long time. We also take into account that deceased was to some extent violent on that day.

We also take into account that you used a very dangerous weapon with excessive force.    The post mortem report speaks to the force used in stabbing deceased. A life was ended. It is incumbent on this court to emphasize the sanctity of human life. Society frowns at the taking of another human being’s life, particularly with a weapon like a knife. The sentence must speak to this phenomenon.

After taking all the relevant factors into account, we are of the view that the following sentence will meet the justice of this case.

You are sentenced to 10 years imprisonment.

National Prosecuting Authority, State’s legal practitioners

Mathonsi Ncube Law Chambers, accused’s legal practitioners