The State v Clyde Munashe Nyambirai

### Preamble
1
HB 201/20
HC (CRB) 63/19
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THE STATE

Versus

CLYDE MUNASHE NYAMBIRAI

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr J. Sobantu & Mr O. Dewa

BULAWAYO 17, 18 & 21 SEPTEMBER 2020

Criminal Trial

K. Ndlovufor the state

T. Gomwe for the accused

MAKONESE J:	Theaccused was 17 years old at the time of the commission of the offence. He has been arraigned in this court on a charge of murder.  It is alleged that on the 2nd of September 2016 and at Methodist College, Makokoba, Bulawayo, the accused stabbed the deceased, Fulton Moyo once on the lower body with an unknown object and once with an Okapi knife intending to kill him.  The accused pleads not guilty to the charge of murder.  He tenders a plea of guilty to the lessor charge of culpable homicide.  The state rejected the limited plea and the matter proceeded to trial.

Factual background

The deceased was aged 17 years at the time he met his death.  Accused and the deceased were students at Methodist College, Makokoba, Bulawayo. On the fateful day around 1230 hours the accused and deceased were gambling at Methodist College.  The accused placed a bet using his ZTE cellphone.  The deceased won the bet.  Following the loss, the accused became furious and demanded his phone back.  A serious misunderstanding arose between the two.  The deceased placed the mobile phone in his trousers.  The accused grabbed the shoulders from behind with both hands tightly whilst demanding his phone back.  The accused and the deceased tussled for the phone.  During the struggle the accused produced an unknown object and stabbed the deceased once on the right lower back.  The accused stabbed the deceased for a second time with an Okapi knife on the left collar bone.  The deceased staggered and fell onto a hedge with blood gushing out of his shoulder.  The accused then dragged the deceased for some two metres.  The deceased was pronounced dead on the spot.

The state tendered an outline of the state case which now forms part of the record.  It is not necessary to repeat the contents of the state outline.  The accused produced a defence outline denying the charge.  The accused indicated that at the time of the commission of the offence he was a juvenile aged 17 years and was 2 days shy of his eighteenth birthday.  He disputes intentionally causing the death of the deceased and proclaims that the death was purely accidental.  Accused states that he and the deceased were friends as they grew up together in the same neighbourhood.  On the day in question accused and deceased were gambling.  Accused lost a mobile phone which he had used to place a bet.  Accused demanded his phone back.  The deceased refused to comply.  Accused tried to grab the phone.  A scuffle then ensued.  Accused avers that the deceased produced an Okapi knife intending to stab him.  As they struggled for the knife and the phone, the accused managed to dispossess the deceased of the knife.  Accused alleges that he mistakenly stabbed the deceased.  In his defence outline accused states as follows:

“… then after that the accused will state that he tried to hook the deceased’s jersey which was hanging in front, at that point the deceased  moved into the trajectory of the knife resulting in the fatal stab wound.”

A confirmed warned and cautioned statement signed by the accused on the 3rd of September 2016 was tendered into the record by consent.  Accused’s version of events is in the following terms:

“It was just after school, when I, Fulton, Terence and Thulani went at the back of the library to play playing cards.  There were three people playing, I, Fulton and Terrence, whilst Thulani was watching us.  While playing I decided to play with the phone that I was having in my pocket.  After that, Fulton won the phone and said that he is now going home and I said Fulton, I was joking bring my phone back.  While we were fighting, Fulton was carrying a knife and I overpowered Fulton and thus when I took the knife I said Fulton bring back my phone and he argued and thus when I stabbed Fulton at the back.  When I had stabbed Fulton at the back he now started to be angry at me.  Thus where I made a mistake trying to stab the jersey that he was carrying around the neck and thus where I realised that I have stabbed Fulton near his neck.  And Fulton started bleeding when he was bleeding he said Clyde you see you have injured me.  Thus when I carried him taking him where there is no sun because where we were the sun was bursting.  And I tried to run at the office and I met anothermother at school and they said am running away, so she said I must not go anywhere.”

A post mortem report compiled by Dr Sanganayi Pesanai at United Bulawayo Hospitals on the 3rd of September 2016 during the course of his duties was tendered into the record.  The report was filed under post mortem report number 794/781/2012.  The findings of the pathologist are that the cause of death was:

Haemorrhagic shock

Heamopneumothorax

Perforated  sub clavicle vessels

Stab wounds

Assault

The last exhibit is the Okapi knife.  This weapon weighs 0,05kg,the length of the blade is 10cm, whilst the total measured length of the knife is 24cm.

Before the state opened its case, counsel for the state Mr K. Ndlovu, asked for formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07), to the effect that the accused was in possession of the knife at the time of the fatal stabbing.  The defence admitted that indeed when deceased sustained the fatal injuries, the accused was in possession of an Okapi knife. The evidence of the underlisted witnesses, as it appears in the outline of the accused was admitted into the record by way of formal admissions, namely:

Peter Mlilo

Stanley Gandiwa

Edson Kusiwani

Dr S. Pesanai

State Case

The state led oral evidence from one witness LUCIA MOYO.  The evidence of this witness was largely common cause.  She testified that she was at her residence at Getrude Hostel, Makokoba, Bulawayo. She knew Clyde Munashe Nyambirai, the accused from the events that occurred on the 2nd September 2016.  On this day, and around 1250 hours, the witness was inside her house.  Chipo Mapaure was outside the house plaiting the witness’s child’s hair.  The witness heard Chipo screaming.  She went outside to enquire.  She gathered that deceased had been stabbed with a knife.  The witness observed the accused poking the deceased with the knife in the waist area.  She observed the accused pressing the deceased against a wall.  The witness then shouted at the accused saying; “Uyenzani omunye wena”, meaning “what are you doing toanother”.  At that point the witness observed that blood was splashing from the deceased’s shoulder onto a wall.  The deceased staggered and fell.  Accused dragged the deceased for some few metres from the scene of the stabbing.  The witness alerted the neighbours by shouting, and saying accused must be apprehended.  The witness rushed to report the matter to the matron of the hostel.  Accused was subsequently apprehended by security guards at the hostel.  Police from Mzilikazi Police Station attended to the murder.  The witness was cross examined at length but maintained her evidence.  The witness was calm, composed and forthright in her testimony.  Her account of the version of events on the day in question was credible and reliable.  We have no reason to disbelieve her.

The Defence Case

The accused CLYDE MUNASHE NYAMBIRAI elected to give evidence under oath.  He largely abided by his confirmed warned and cautioned statement.  Accused narrated that he was gambling on the day in question.  Accused placed a bet using his mobile phone after he had run out of money.  The accused lost the bet.  He demanded his phone back.  Deceased refused to hand back the phone.  Deceased was walking away with the phone when accused grabbed him by the shoulders with both hands.  The deceased still would not release the phone.  The accused alleges that the deceased produced a knife intending to stab him.  A struggle ensued.  At the same time accused tried to retrieve the phone from deceased’s trouser pocket.  The accused says he overpowered the deceased and succeeded in taking the knife from the deceased.  At that stage accused says that he poked the deceased in the waist area using the knife.  His aim was to induce the deceased to release the phone.  The deceased did not release the phone but instead became aggressive.  Accused states that he accidently stabbed the deceased when he tried to hook the deceased’s jersey which was wrapped around his neck.  The deceased bled profusely, staggered and fell on to a hedge.  Accused dragged the deceased some few metres away.  The accused realised that he had injured thedeceased.  Accused was apprehended by a security guard.  The police were called to the scene and he was taken away.  The accused denied that the deceased had squashed his testicles as described in his defence outline.  The accused denied that he had any other weapon in his position.  He only used the knife he had retrieved from the deceased.  The accused admitted under cross-examination that when he stabbed the deceased, the deceased was in fact running away.  The accused maintained that he had no intention to cause the death of the deceased but that the stabbing was accidental.  He averred that his main objective was to recover his phone.  In the end accused, agreed that he must have used excessive force to cause the injuries reflected in the post mortem report.

The accused, to his credit, admitted that his testicles were never “squashed” by the deceased prior to the stabbing.  The accused however, gave a version which is not supported by the evidence.  His suggestion that the deceased was stabbed by accident cannot possibly be true.  The accused was not an honest and reliable witness.  His oral version contradicted his defence outline.  One wonders why the accused decided to use such severe and lethal force to retrieve the mobile phone.

Analysis of the evidence

The events leading to the tragic death of the deceased are largely common cause.  The accused accepts that he struck the deceased with an Okapi knife twice.  The post mortem report reveals that thecause of death was haemorrhagic shock, haemopneumothorax, and perforated subclavicle vessels.  On marks of violence the pathologist made the following observations.

white shirt perforated on the left upper part.  All clothes soaked in blood.

abrasion on left frontal

stab wound with clear margin situated on the right above the left clavicle 5cm from the midline

Stab wound on the right lower back (0.5cm) irregular margins wound goes in a downward trajectory missing major organs and intestines, situated 57cm from the top of the head

The sole issue for determination by the court is whether the accused was negligent in causing the death or whether he reasonablyforesaw the death of the deceased as a real  and substantial possibility.

Mr Gamure, appearing for the accused, forcefully argued that the accused should be convicted of culpable homicide.  In his view, there was insufficient evidence to prove that the accused had legal intention to bring about the death of the deceased.  The law on this aspect is well settled in this jurisdiction.  The accused is guilty on the basis of legal intention when he reasonably foresaw the possibility of death ensuing but nevertheless pursued his conduct regardless of the consequences. See; S v Mugwanda 2002 (1) ZLR 574 and S v Sigwahla 1967 (4) SA 566 A.

In his own words, the accused hooked the jersey with the Okapi knife intending to gain leverage over the deceased.  What accused does not clearly explain is why he proceeded with this exercise when he could foresee that there was a possibility that he could stab the deceased.  As it turned out, the post mortem report shows that both stab wounds were deep and that excessive force must have been used to cause the type of injuries, inflicted on the deceased.  As blood gashed out of the deceased’s shoulder, he staggered and fell to a hedge.  Due to the severity of these injuries deceased’s clavicle vessels were perforated.  The deceased died on the spot.

It is this court’s view that the state led evidence sufficient to show that accused possessed the requisite legal intention to cause the death of the deceased.  There is no evidence on the record to show that accused had an actual intention to kill.   Accused’s version justifies a verdict of murder with constructive intent.

In the result, and accordingly, accused is found guilty of murder with constructive intent.

Sentence

There is an upsurge in cases involving knife stabbings committed by juvenile offenders.  The court is alarmed by the knife culture that seems to be prevalent amongst juveniles.  In this case the 17 year old deceased was carrying an Okapi knife at the time of the commission of the offence.  The court further notes that at the time of the commission of this offence, the accused and his friends were gambling in school premises.  This activity naturally leads to violent behaviour as shown by the facts of this matter.

The court is alive to the fact that the accused was at the material time aged 17 years.  He was 2 days shy of his eighteenth birthday.  He should be treated as a young first offender.  I did take into account that he was not mature at the time.  He acted out of impulse.  He acted irrationally.  The court notes that he tendered a limited plea of guilty with prospect to culpable homicide.  There was an element of remorse on the part of the accused.  The accused has accepted responsibility for his conduct, and that tends to operate in his favour.  It has taken fouryears for this matter to be brought to trial.  Had the matter been tried earlier it is quite possible that by now the accused may have served and completed his sentence.  The court shall therefore endeavour to balance the interests of the accused and the due administration of justice.  To his end, and in sentencing the accused person, justice must be served.  The accused does not deserve a lengthy prison term.  He has a long life ahead of him.  The sentence this court shall impose must serve as an inducement for the accused to mend his ways.  The sentence shall be rehabilitative.  Community service is not appropriate.  It would trivialize the offence. A dangerous weapon was used. The accused caused the unnecessary loss of human life. A moderate custodial sentence is called for.

In the circumstances the following sentence is appropriate:

“Accused is sentenced to 3 years imprisonment.”

National Prosecuting Authority, state’s legal practitioners

Mabundu & Ndlovu, accused’s legal practitioners