The State v Cabangani Ncube

### Preamble
1
HB 72/20
HC (CRB) 34/20
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THE STATE

Versus

CABANGANI NCUBE

IN THE HIGH COURT OF ZIMBABWE

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

HWANGE HIGH COURT 12 MARCH 2020

Criminal Trial

Mrs M. Cheda for the state

Miss C. Manyeza for the accused

MOYO J:	The accused person faces a charge of murder, it being alleged that on the 15th of September 2019, he assaulted the deceased Ayanda Ncube with an axe resulting in his death a few days later.

Accused denied the charge.  The following were tendered into the court record;

the state outline

the defence outline

the accused’s confirmed warned and cautioned statement

the post mortem report

the axe that was allegedly used in the commission of the offence.

They were all duly marked.

The evidence of Constable Patson Sithole and Dr I. Jekenya was admitted into the court record as it appears in the state summary.

The state led viva voce evidence from 2 witnesses, Vusumuzi Ncube and Sergeant Ivhu Dube.  Both these witnesses came after the fact.  However, the significance of their testimony is on the injuries that they observed on the deceased.  Sergeant Ivhu also did not observe any injury on the accused and he said the accused gave his statement freely and voluntarily.  It is common cause that on the fateful day, deceased left his homestead going to join his brother the 1st state witness for church.  He later called the 1st state witness to say accused had struck him with an axe.  The 1st state witness attended the scene and found deceased injured and bleeding.  He had 4 wounds 3 on the head, one on the mouth consistent with a sharp object.  He later ferried deceased to the hospital where unfortunately he died whilst being treated.  He did not know of the affair between his brother (the deceased) and accused’s wife.  Sergeant Ivhu was the investigating officer he also observed the wounds observed by the 1st state witness on the deceased save that he described the wound on the centre of the head as being consistent with a blunt object and the 2 on the sides of the head and on the mouth as being consistent with a sharp object.  His evidence was that accused told him that the axe was his (accused’s) and that it was at accused’s homestead on the roof of accused’s bedroom where it was it was recovered and this was per accused’s own indications.

Accused in his evidence in chief told the court that he met deceased who accused him of soiling his (deceased’s) name after accused had said deceased was having an affair with accused’s wife.  Deceased blocked accused and clapped accused before hitting him with an axe on the back of his head.  Accused and deceased both fell as accused wrestled for the axe, he got hold of the axe and stood up first, with deceased also standing up.  That’s when he struck deceased on the mouth, left side of the head and under the nose.  He struck deceased 3 times.

In his defence outline however, in paragraph 2 the accused says the now deceased struck him with an axe at the back of his head.  He does not tell us about the fact that deceased also clapped him.  In his confirmed warned and cautioned statement accused says deceased assaulted him and he blocked the blows with his hand and that he then struck the deceased with the back of the axe that he (accused) was holding.  He says he struck him on the upper lip, lower lip and once on the upper left side of the forehead.

The court only has the accused’s version to rely on as to what exactly transpired when deceased was struck.  However, there are numerous problems with accused’s version as I will show:

In his confirmed warned and cautioned statement, he does not tell us about the slap by deceased, he just says deceased assaulted him, with what we do not know.  We can give him the benefit of the doubt and say perhaps he referred to the slap.  The bigger problem with his version is that in his confirmed warned and cautioned statement, the axe is his, but in his later versions, the axe belonged to the deceased.  This discrepancy is on a material point because his defence centers on having been under an attack and he could not have been under an attack by a person using bare hands and yet he had an axe.

The investigating officer recovered the axe from accused’s homestead per accused’s own indications.  In terms of the law a statement recorded by the police and confirmed by the magistrate will be produced as evidence before any court without any further ado.  It is thus accepted that the version given by the accused in his confirmed warned and cautioned statement is clearly what transpired on the date in question.  He was under attack from a man using bare hands yet he was armed with an axe.  This is consistent with the recovery of the axe as it was recovered from his homestead.  So this court makes a factual finding that in fact the axe belonged to the accused.

On how deceased was assaulted accused is adamant that he used the back of the axe and that he assaulted deceased 3 times, twice on the mouth and once on the left side of the head.  The pathologist however observed;

A 2cm wound just above the eyes

A frontal 6cm long and very deep wound going to the skull this wound is vertical

A 5cm long wound and under it a 4cm depressed skull fracture

Just above the left ear a horizontal 5cm wound going down to the skull

The post mortem report is consistent with what the state witnesses say they observed as injuries on the head.  The injuries on the scalp are long and deep, consistent with a sharp end of the axe as opposed to the blunt end as accused would want this court to believe.  Accused having given 3 different versions to the court in the form of the confirmed warned and cautioned statement, the defence outline and his viva voce evidence, this court is at liberty to throw away his version as being false and to accept that which is reasonably possible from the facts.

`The axe belonged to accused and not deceased, and therefore even if an altercation could have ensued, in the absence of any other evidence that deceased was armed it is the finding of this court that deceased was not armed but that accused was.  Further, it is the finding of this court that per the post mortem report, and the 2 state witness accounts, the injuries sustained by the deceased were inflicted from the sharp end of the axe with one of them being from the blunt end of the axe.  It is also the finding of this court that accused struck a defenceless man 4 times on a vulnerable point of the body with an axe.  Accused says he was angry but he says he had known of the affair he suspected deceased to have with his wife, dating back to 2018, and that he had sought help from the village head, it can thus not be held that there was instant provocation at the material time.  Even if it were there, the accused himself does not say he was provoked by the deceased through words but through the assault with an axe, which assault this court has already rejected because the axe clearly belonged to accused and not deceased and there would not have been an assault on accused with an axe.  Even his confirmed warned and cautioned statement agrees with this.  From the nature of the assault, striking a man 4 times on the head with an axe, and inflicting the wounds as stated in the post mortem report, it is the finding of this court that accused desired death, death was his aim and object. Accordingly accused is found guilty of murder with actual intent.

Sentence

The accused is convicted of murder.  He is a first offender, a breadwinner and he is 27 years old.  He however savagely attacked the deceased, who died a painful death.  These courts frown at the loss of life through violence.  Members of the community should learn through the sentences passed by these courts that disputes of whatever nature should be resolved peacefully without any violence being resorted to.  This court also notes that accused is nursing a fracture on the leg and therefore his physical condition is not at its best.  He, however committed a brutal assault on a seemingly defenceless man and whilst punishment should also be rehabilitative and not retributive, it is the savage attack on the deceased, who was defenceless and not armed, that aggravates the circumstances of this case.  It is for these reasons that in taking everything into account, this court finds an appropriate sentence to be as follows:

The accused is sentenced to 25years imprisonment.

National Prosecuting Authority, state’s legal practitioners

V. J. Mpofu & Associates, accused’s legal practitioners