The State v Davison Banda & 3 Ors

### Preamble
1
HB 100/21
HC (CRB) 85/19
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THE STATE

Versus

DAVISON BANDA

And

DENIOUS BANDA

And

MARVELOUS DUBE

And

DACIOUS BANDA

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J with Assessors Mrs Moyo and Mr J Sobantu

BULAWAYO, 19-20 JANUARY, 19-20 MARCH AND 10 JULY 2020

Criminal Trial

S. N. Ndlovu, for the state

N. Mugiya, for the accused

TAKUVA J:	The accused persons were charged with murder in contravention of section 47(1) of the Criminal Law Codification and Reform Act [Chapter 9:23] (the Act).  It being alleged that on 26 December 2018 at Ncube’s homestead Fort Rickson the accused persons assaulted the now deceased with stones, a hoe handle and stabbed Edson Hlupho on the left side of the chest intending to kill him or realising that there was a risk or possibility that he might die.

All the accused persons pleaded not guilty and the matter proceeded to trial.  The State counsel then produced the exhibits that is the State Outline, the accused persons’ defence outlines, the warned and cautioned statement for accused 1, a post mortem report and Sinothando Bhebhe’s statement to the police.  At that point it became clear or apparent that all the accused persons were denying criminal liability for the death of Edson Hlupho on different grounds.  Accused 1 raised a defence of self-defence or a defence of person.  He admitted the actus reus that is the stabbing but he said it was lawful in that he acted in self -defence when he stabbed the deceased.  The 2nd to the 4th accused persons denied both the actus reus and the mensrea.  So the issue between the State and the 1st accused person was whether or not he acted in self-defence.  And as regards the rest, the issue is whether or not they are guilty of murdering the deceased or put differently whether the requirements of section 196(A) of the Act and has been met.  Self-defence is provided for in section 253 of the Act.  The requirements are simply that there must have been an attack on the accused or an attack must have been imminent, that it was necessary for him to defend himself or repel the attack and that the means he used were reasonable in the circumstances.

In order to prove its case the State led evidence that is viva voce evidence from one witness Sinothando Bhebhe who is the deceased’s wife.  The first point to note about her evidence is that the State called a single witness with an interest in the matter.  That is permissible in terms of section 269 of the Criminal Procedure and Evidence Act [Chapter 9:07].  The State can rely on the evidence of single and credible witness as long as that witness is competent and credible.  And the common law position was established or restated in the case of State versus Makoena 1932 OPD79 at page 18.  In our view the witness cannot be discredited simply or solely on the grounds that she is the deceased’s wife.  In this case she gave evidence very well.  It was a brief and straight forward version and she did not exaggerate her evidence.  We note that her evidence is collaborated by the accused persons in material respects for example the events at her home.  About 90% of what she said happened is what the accused persons themselves say happened.  The only differences relate to whether or not the deceased disarmed accused one of the knobkerrie and whether or not at the neighbour’s home the deceased was armed at the time that he was stabbed by accused 1.  The witness was also criticised by the defence on the grounds that her statement to the police turned out to be different from what her viva voce evidence in court was.   In other words what she said to the police was alleged to be different in the sense that she attributed different weapons to different accused persons.  In our view this witness was a credible witness.  We accept and prefer her evidence in its totality where ever it conflicts with that of the accused persons.  In any event we find that her evidence is also collaborated by the neighbour’s conduct, the conduct of the neighbours who ran away into the bush upon observing the accused person’s arriving. The lady of that home grabbed her baby and locked herself in a room.  This was because the accused persons were belligerent and armed, that sufficiently collaborates the testimony of the State’s sole witness.  As regards the defence case, like I indicated, the accused persons gave their evidence and denied liability on different grounds.

Accused 1’s evidence in our view is unbelievable for a number of reasons, firstly he does not explain why he was defending himself from a man who was fleeing from his home.  It does not make sense and there is no logic in him saying he was defending himself from a man who was running away from him.  In any event if the deceased used force on the accused at the neighbour’s home, that force was lawful because he was now being attacked.  Secondly there is also no logic in arguing that a man who was armed to the teeth, that is the deceased (according to accused 1’s evidence the deceased had an axe and a two in one knobkerrie) would flee from an unarmed man. He would have stood his ground and attacked the 1st accused with those weapons.  Thirdly he does not satisfactorily explain how deceased failed to strike him with the axe given the ample opportunity he had to do so.  And fourthly accused does not say why accused two would disarm him of the hoe handle but left deceased armed with an axe and this two in one knobkerrie.  Why would accused two expose his brother to an imminent strike?  Our view is that accused one’s evidence is contrived, incredible and false.  It is clear that all the accused persons contrived a plan to mislead this court.  This plan is firmly rooted in accused 1 and 2’s versions of events.  We therefore dismiss a defence of a person raised by accused 1 and that there was no attack on the 1st accused as he was the aggressor throughout.  As regards accused number 2 we find that he gave conflicting versions on material and crucial points in particular how the deceased was stabbed.  In paragraphs 6 and 7 of his defence outline he stated and I quote, “On arrival in the neighbour’s homestead the now deceased positioned himself ready to attack the first accused.  The first accused picked up a hoe handle trying the defend himself and the 2nd accused  disarmed the first accused person and threw the handle away and in the process the now deceased mistakenly dropped the knobkerrie since he was holding it together with the axe.  The first accused quickly picked up the knobkerrie and the blade was already out.  When the now deceased tried to strike the first accused with an axe on the head the 1st  accused person tried to defend himself and aimed the knobkerrie at the now deceased’s  hands.  The now deceased “swerved and was struck somewhere near the chest area”.  Yet under cross examination the following exchange occurred between the State Counsel and the 2nd accused. Question: “where did you throw away the hoe handle?  Answer: far away.  Question: could you see deceased and accused?  Answer: yes.  Question at what point did deceased attack accused one?  The answer was I had my back on them.  I did not see how they attacked each other.  Now it’s clear that these two versions are miles apart, they cannot be reconciled.  He was clearly not telling the truth and further his version is pregnant with improbabilities.  The reason that he gives for following accused one into deceased’s homestead is highly improbable.  If accused 1 was going to delay, so what.  He knew the way to the shops so did accused 1.  Why hold his hand as it were?  We find this explanation to be false.  If accused 1 was going to make peace with the deceased why would accused 2 follow?  Another contradiction in his version or evidence is that when asked why he did not move closer to stop the fight, his answer was that the two were armed and he was afraid.  Surprisingly this is the same person who tells us that shortly before that or seconds or minutes before that he had disarmed accused 1 of a hoe handle.  Suddenly he is not afraid of the weapons.  For these reasons we are convinced that the second accused gave an untruthful version of events in order to mislead this court.  And we reject his evidence in total.

Accused 3 also gave evidence and was cross examined.  We note that it is common cause that accused 3’s wife was assaulted by the deceased on the previous day over a debt the deceased owed to the 3rd accused.  This occurred at the shops at the presence of accused number 4.  It is clear that accused 3 was informed about this assault by his wife.  In any event accused 4 mentioned this incident to the three of them on their way to the shops.  In our view the report of the assault of the 3rd accused’s person’s wife caused him to go and demand payment of his 3 dollar debt on the following morning.  After failing to secure payment he left but shortly thereafter returned in the company of the three accused persons.  According to the deceased’s wife it appeared that the accused had left the others in the nearby bush.  He was present at the deceased’s house and participated in the surveillance and surrounding of the deceased’s home.  Accused 3 was seen by the deceased wife in the company of accused number 4 outside the perimeter of the homestead.  She said they were strategically placed observing what was happening.  They saw what accused 1 and 2 did to the deceased.  And she said they stood in such a way that the deceased could not have escaped using that portion of the homestead where they were standing so the deceased had to escape using another route.  Also the third accused was seen standing outside the deceased neighbour’s home.  He was close to where the deceased and accused 1 and 2 were.  We find that accused 3 had a motive to harm the deceased.  All the accused persons as a group had discussed the alleged bad behaviour or conduct by the deceased the previous day.  Accused 3 knew that accused 1 had said he wanted to remonstrate deceased so that he will not do that again.  He knew that the first accused had this two in one knobkerrie.  We find that the 3rd  accused cannot be said to be an innocent by stander at the two homesteads.  He did not actively disassociate himself from the assault on the deceased.  When accused 1and 2 chased the deceased they also did the same that is Accused 3 and 4.  And when the 1st accused said “mafia handei basa tapedza” the 3rd accused also went away.  For these reasons we find the third accused acted in common purpose with the other 3.  The 4th accused person gave evidence.  We find that it is highly unlikely that after all that had happened to him he would just walk away while his brothers remained behind to confront deceased about an assault in which he was a victim.  His evidence which could not be rebutted by the State is that he was assaulted by the deceased on the previous day.  He was assaulted for no reason.  Clapped in public after asking the deceased why he was assaulting accused 3’s wife.  The evidence of the deceased’s wife is that accused 3 and 4 were present at their home.  Her evidence is also that they were present at the neighbour’s homestead.  She said after the deceased had been stabbed and was seated at a shade the fourth accused picked a stone, threw it and hit deceased below the eye.  As we indicated we have no reason in disbelieving this witness.  Accused 4 denied doing that but our view is that he gave an incredible version of what happened.  We find that he physically participated by assaulting the deceased with a stone below the eye.  As regards the liability of co- perpetrators the relevant section is 196 (A) of the Act.  Basically the requirements are listed in that section, that is the accused persons must be present at the scene or in the immediate vicinity of the scene and that they associated themselves together as a group in the conduct complained of.  That they engaged in criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.  That section also requires or mandates the State to prove the mens rea in respect of each and every accused person.  In other words there must be evidence that each had the requisite mens rea to commit the crime and that mens rea can be by way of intention or knowledge that the crime had been committed or the realisation of the real risk or possibility that a crime of that nature will be committed.   And the conduct of the actual perpetrator is deemed also to be the conduct of each and every co- perpetrator. In this case all the four were present at the scene or its vicinity.  The circumstances implicate them directly to the commission of the offence.  All were present at the deceased’s home.  They were all present at the neighbour’s home.  They associated together before the murder of the deceased.  They all discussed the deceased’s behaviour the previous day.  They all disapproved of such conduct.  Accused 1 and 2 then entered deceased’s home armed.  Accused 3 and 4 remained in the vicinity when the deceased was being chased by accused 1 and 2, the 3rd and 4th accused also followed, that evidence shows that they were acting as a group or team.  Hence the utterance “handei mafia basa tapedza” which means let’s go mafia our work is done.  They were simply acting as a village mafia gang.  The 1st accused stabbed the deceased and he did so with a sword or dagger.  This is a short pointed knife which is used as a weapon.  We were told that this knife has a sheath which covers the blade and these are the sort of knives which are called “bakathwa” in Shona language.  It’s a dangerous weapon that misleads the other party into believing that someone is just holding an ordinary stick or knobkerrie.  The 1st accused aimed at the upper part of the deceased’s body.  We do not understand why, if he intended to stab the deceased on the hand, how he could have failed to do that.   The test for realisation of a real risk or possibility is subjective and consists of two elements, firstly the awareness element and secondly the recklessness element.  The first requirement is clearly met.  Quite clearly the 1st accused knew that he had a weapon of such a nature.  As regards recklessness, the 1st accused said when he was about to stab the deceased “I closed my eyes”.  In our view there is no better evidence of recklessness than this.  The accused showed a lack of care about the danger and the possibility of harm.  There was a danger of injury to the deceased, there was a possibility of death to the deceased, however accused 1 showed reckless disregard for the deceased’s safety.  What he did is akin to a driver who closes his eyes whilst driving down a busy street.  In our view the 1st accused acted intentionally as defined in sections 15 and 47(1) (b) of the Act.

As regards the 2nd accused, the evidence shows he assaulted the deceased on the head with a dangerous weapon.  He also knew that accused1 had a dangerous weapon, instead of stopping accused 1 he just stood there watching.  And after they stabbed him he did nothing to render assistance to the deceased.  He simply walked away as if nothing had happened after the 1st accused had said mafia lets go our work is done.  This despite the fact that the deceased was bleeding on the ground with blood oozing out from the stab wound.  When asked under cross examination he said that since the clinic was far away, and the hospital was also far away he decided to walk away from the deceased.  The deceased died on the scene.  We will find therefore that the 2nd accused also acted intentionally as defined in section 47(1) (b) of the code.

As regards accused 3 our findings are as we indicated earlier that he was present in circumstances where it was clear that accused 1 and 2 had adopted a belligerent and aggressive attitude towards the deceased.  He became aware that such conduct might cause injury or death to the deceased.  With his own mouth he said throughout this he was in the company of accused number 4.  And the evidence is that at some point accused 4 picked up a stone and threw and hit deceased in the face.  He did nothing to stop accused 4 from conducting himself in that manner.  And when the 1st accused uttered the words “ handei mafia basa tapedza” he also left the scene.  And he also walked away not caring about the perilous condition of the deceased.  For these reasons we find that accused 3 acted with a requisite intent as a co- perpetrator.  What is telling in this case is that the 4 accused persons told a lie that when they left their homestead they were going to the shops to go and drink beer and watch soccer.  None of them reached the shops even after the deceased had been stabbed they did not go to the shops.  The question is why.  We were told the shops were nearby and they wanted to go and watch soccer and drink beer.  So why did they not go there.  Accused 3 and 4 lied that when the deceased was stabbed they were not there as they were somewhere in the bush waiting for accused 1 and 2.  Why for example was accused 3 following the 3 brothers?  If his mission was to go to the shops why did he not go to the shops?  It is clear that they left their home armed with the intention of beating the deceased for what he had done the previous day.  The 1st and 2nd accused were angry because the deceased had assaulted accused number 4 who is their brother whom they claim is disabled. Accused 4 was angry because he said deceased had assaulted him for no apparent reason.  They wanted to revenge that.  As regards accused number 4’s intention we find that by stoning the deceased on the face he demonstrated his intent to kill the deceased in circumstances where the conduct of accused 1 can be ascribed to him.  This is coupled with his presence throughout the whole event without dissociating himself from the unlawful conduct.  Accused 4 acted with the requisite mens rea to murder the deceased.  Accordingly all the 4 accused persons are found guilty of murder in contravention of section 47(1) (b) of the Criminal Law Codification and Reform Act.

SENTENCE

You have been found guilty of murder in contravention of section 47 (1) (b) of the Criminal Law Codification Reform Act.  In assessing your appropriate sentence we will consider what has been submitted on your behalf, namely circumstances surrounding the commissioning of the offence and your personal circumstances.  We also take into account what has been submitted by the State Counsel in aggravation.  As regards your personal circumstances we note that all of you are family men.  You have children and that all of you are first offenders and that on the day in question you had taken some alcohol.  It is difficult for this court to assess the extent which you were intoxicated and therefore we cannot conclude that you were drunk.  This is because this issue was never brought up during the trial and it is also not included in the defence outlines.  However we note that there is evidence on record that accused 1 and 2 had taken traditional beer that morning.  Because of that, this court is not able to attach the sufficient weight to intoxication as a mitigatory factor.  As I indicated counsel for the defence should have done that because when one is conducting a criminal trial one should put material that one might use at a later stage before the court.  So the defence counsel should have fore sight and think ahead and say, in the event of a conviction I might want to use these factors as mitigatory features.  Equally the submission that accused persons paid 9 head of cattle as compensation has not been substantiated.  According to the State Counsel the deceased’s wife actually denied receiving any cattle from accused’s families.  Accused persons also had not produced proof of payment of those 9 head of cattle.  So this Court cannot take that as a mitigatory factor because the issue was brought up belatedly.  However we take as a strong mitigatory factor that you have been incarcerated for one year 7 months that is pre-trial incarceration which is undesirable.  We believe that you are not to blame for that delay.  And therefore you should benefit from that delay. So we will take that period into account in assessing the total sentence that we are going to impose.  We also note that all of you are first offenders.  And these courts have always said that first offenders should be treated with leniency so that there should be room for rehabilitation.  We note that 1st accused is 46 years old, the 2nd is 34 years old and the 3rd is 35 years old while the forth is 32 years old.  We hope there is room for a rehabilitative sentence so that when you eventually leave prison you will not behave in the manner that you behaved.   You turn over a new leaf and move on with your lives peacefully with your fellow citizens.  That is all we can find in mitigation.

On the aggravatory side we note that life was unnecessarily lost over a petty dispute involving 3 dollars.  And that the 4th accused had simply been clapped with an open hand.  There is an element of gangsterism that is you attacked the deceased as a group.  These courts must discourage such conduct among villagers.  They should learn to resolve disputes amicably.  In fact all of you are mature enough to understand that.  You are not teenagers.  And you should have thought of your families before you engaged in such conduct.  You used dangerous weapons where it was least necessary.  And after injuring the deceased who was your relative you did not render first aid or assist the deceased’s wife to ferry the deceased to the hospital.  In this regard we agree with the State Counsel submission that this is what brings in the element of callousness and brutality.  You simply did not care what was going to happen to the deceased.   These courts have always emphasised the sanctity of human life because life is God given and death is irreversible.  We agree with the State Counsel that you cannot compensate sufficiently for the loss of life and these courts’ revulsion towards such conduct is usually reflected in the sentences that they impose.  We have a duty to protect innocent citizens of this country so that the rule of law is not the rule of the jungle, discourage the use of dangerous weapons to kill innocent people.  We also noted as an aggravated feature, that you humiliated the deceased by causing him to flee his home in front of his wife and child.  And as I indicated accused 3 wanted a 3 dollar debt to be paid by the deceased.   And accused 4 had already been clapped by the deceased the previous day.   But for that, the accused persons were prepared to use extreme violence on the deceased.  For these reasons we found that a stiff custodial sentence is warranted.  The range that was indicated by the State Counsel in Chingai’s case is the normal range that this Court will impose for such conduct.  There are however differences in that in your case the moral blame worthiness is slightly lower because you have been found guilty of murder for what we used to call constructive intent.   Taking all these circumstances into account and the decision in S v Munechawo 1998 (1) ZLR  129 (H) we are of the view that you were supposed to be sentenced to 18 years imprisonment but we give you a discount of 3 years because of the 1 year 7 months imprisonment and the other mitigatory features.

Each of you is sentenced to 15 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Mugiya & Muvhami Law Chambers, accused’ legal practitioners