The State v Everton Sibanda and Ronwell Sibanda

### Preamble
1
HB 190.19
HC (CRB) 52/19
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THE STATE

Versus

EVERTON SIBANDA

AND

RONWELL SIBANDA

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Mr T E Ndlovu and Mr J L M Zulu

HWANGE CIRCUIT 6, 7, 8 & 14 NOVEMBER 2019

Ciriminal Trial

Ms M Munsaka, for the state

U M Nare, for the 1st accused

D Ncube for the 2nd accused

MABHIKWA J:	The two accused persons appeared in this court facing a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act, Chapter 9:23.  They were 23 and 19 years old respectively at the time of the commission of the offence.  The deceased Nkosikhona Gumbo was 19 at the time he met his death..

It was alleged by the state that on 26 December 2018 at about 0200 hours the 1st accused met deceased in the vicinity of Mpumelelo General Dealer’s shop at Mathe Business Centre in Tsholotsho.  The two had an unknown unresolved grudge.  It was also alleged that accused 1 started assaulting the deceased with open hands.  The 2nd accused allegedly joined in and stabbed the deceased several times with an okapi knife.

The accused pleaded not guilty to the charge and denied the allegations against them.  The state’s only witness to give viva voce evidence was Praymore Sibanda.  The two accused persons are his cousins whilst the deceased was his nephew.  All four (4) of them were therefore closely related.  Praymore told the court that on 26 December 2018, he was at Mathe Business Centre at Tsholotsho just enjoying the Christmas festivities.  He said generally, he and other patrons, including the accused were buying beer and drinking.  Sometime during that night or evening he left the shop belonging to Ryan’s father going to Promise’s shop.  He then heard the noise of the deceased crying out saying:

“Mudongo don’t assault me, Mudongo why are you assaulting me.  Don’t assault me I gave uncle his phone.”

The witness said he realised that the crying voice was from the deceased.  The name he was calling on “Mudongo” is accused 1’s alias name.

The witness ran towards the direction of the distress cries, shouting or calling upon his cousins not to assault “the boy” meaning the deceased.  He implored the accused to stop the assault as he continued to run to the scene.  As he got nearer, he observed accused 1 sitting on top of the deceased assaulting him.  Accused 2 was also assaulting the deceased standing at his front.  It must be noted that this witness says that when he first heard the deceased’s screams, he was about 20 metres away.  He ran and at about 10 metres, the screams were continuing.  As stated above, the witness himself also shouted, imploring the accused to stop the assault.  At the same time, he continued running until he got right to the scene of assault.  This is where he found accused 1 sitting on top of the deceased precisely sitting on the pelvis and abdomen area assaulting him whilst accused 2 was kicking him.

The witness stated that he got hold of accused 2 refraining him.  He asked the two cousins why they were assaulting “the boy”.  Accused 1 stood up, ran for a short distance and picked what the witness called a prick still baying for the deceased’s blood.  He however eventually threw the brick towards the witness who blocked it with his arm.

The witness says at the time, the deceased got the chance to escape and disappeared into the night.  The witness himself, having been struck by accused 1, had become angry and chased after accused 1 who outpaced him.  The witness repeatedly said to the court that at that time, on that night he last saw the deceased at the time of his escape.  He did not realize or suspect, at the time, that deceased had been injured that badly.  He had thought it was just a beer drink fight among boys.  He went to the shops after being outpassed by accused 1.  He then met accused 2 and again asked why they were assaulting “the boy”.  Accused 2 said the assault was about one uncle Ndabe’s phone.  He was surprised when the next morning, people were gathered where the deceased’s corpse was, seemingly within the vicinity of the business centre and scene of assault.

The witness also reiterated that he personally had not seen a knife or any other weapon during the assault right up to the time he chased after accused 1.  Let me state at this stage that the evidence of this witness breaking the assault and chasing after accused 1 into the night for about 100 metres will be relevant and important to note later on in this judgement.  The witness further testified that on the morrow, after the discovery of the deceased’s body, it appeared that the fight had started from behind the shops considering that they spotted a blood trail, some coins, a satchel and a full bottle of “hot stuff” beer on the same trail together with struggle marks.

When asked if he observed anything on the body of the deceased, the witness said the deceased had been covered with a cloth but he was badly injured, specifically, the witness said he observed a forehead injury.

An impression was given in cross-examination that this witness could not have seen the alleged assault because it was dark and that there was loud music playing.  This witness was adamant however, that he first heard deceased’s screams perhaps because he had left the side and position where he originally had been and where there had been loud music playing.  He was attracted to the screams and naturally was bound to re-act because the voice of the screaming person was that of his nephew who was pleading with “Mudongo”- a cousin to the witness and also an uncle to the deceased to “stop the assault.”  Indeed when he eventually got to the scene the deceased was still crying for mercy.  The witness did not at any time see the deceased retaliate.  Rather, the two accused persons were savagely assaulting him.  It was put to him that in fact accused 1 had just been greeting the deceased when a passing car lit them. That is when accused 2 allegedly appeared and stabbed the deceased, and ran away.  The witness vehemently refuted that as untrue.  He further said he found the two accused assaulting the deceased and anyone who claims otherwise would be lying.

It was also put to him that accused 1 did not even know for what reason the 2nd accused stabbed the deceased but this again was refuted by the witness who said it was clearly concerning Ndabe’s phone as evidenced by deceased’s screams.  The witness explained that Ndabe is an uncle to him and the two (2) accused.  The deceased had been, at one stage sent by uncle Ndabe to buy some tobacco for him.  The deceased obliged, but as he went to buy the tobacco, he went with uncle’s phone playing music promising to bring it back on his return.  The witness states that apparently, the deceased went away and did not return with both the phone and the tobacco.  The two accused were heard by the witness one day saying the deceased was probably taking advantage of uncle Ndabe’s crippled right arm to do as he pleased.  Uncle Ndabe had been looking for him and asking him to bring back the phone for couple of days then.  The two were heard saying that they would teach the deceased a lesson.  This, coupled with the deceased’s cries mentioning the phone must have been the cause of the attack according to the witness.

This court found Praymore Sibanda to be a very credible witness. We had no difficulty whatsoever in accepting his evidence as the truth of what transpired that day.  Praymore clearly was a witness with no motive to lie, against anyone or in support of anyone.  He told the court more than once that all (i.e the two accused persons and the deceased), were his boys and he had no reason to lie about anything or anyone.  The incident itself, in the middle of the night, took him by surprise and he seems to have just instinctively reacted by rushing to the scene of his nephew’s cries.  To suggest otherwise would clearly be wrong.  An insinuation was in fact made in cross-examination that the witness was more closely related to accused 2 than to accused 1.  However, the witness reiterated that such an insinuation was improper.  He said that what can only be true is that the accused 2’s home was nearer to his than that of the 1st accused but in terms of blood relations, all four (4) including himself and the deceased were closely related in the same measure.

As stated above according to Praymore, he came running and found the two accused assaulting the deceased.  He did not see any knife or weapon.  He quickly broke the assault.  The deceased escaped and the witness pursued accused 1 for about 100 metres but was outpaced.  There was no further assault thereafter.  Looking at this evidence and that of the accused persons both in court and in their confirmed extra-cural statements, as well as their defence outlines, it is clear that all the assault and stabbing of the deceased mentioned by the accused especially 2nd accused, took place before Praymore’s arrival.  This means that the assault and stabbing of the deceased several times referred to by accused 1 in his extra-curial statement, took place before Praymore arrived.

Further, the struggle marks, the blood trail and items picked up on the trail also show that the attack on the deceased must have started long before Praymore’s arrival.  This means that when he was found by Praymore assaulting the deceased, accused 1 was aware that the deceased had been stabbed already.  Yet accused 1 persisted in that conduct notwithstanding the foreseability and real risk of death.  In fact, according to accused 2, accused 1 had started the assault himself.  This corroborated Praymore’s evidence.  Under the above circumstances, it would therefore be naïve to then hold that the 1st accused did not assault the deceased because no one saw a weapon at that time of the night.  It would be equally naïve to hold that accused 1 did not use “any weapon” and did not inflict “any injury” in those circumstances.  Even accused 2 cannot vouch for him on that point.  In any event, before he died, the last words that are known to have been uttered by the deceased as his last were  – “Mudongo do not assault me, Mudongo why are you assaulting me.  Do not assault me, I gave uncle his phone.”

After these utterances deceased is not known to have uttered or to have had any opportunity or reason to tell any other person about the incident before he was picked up dead.  It is however common knowledge that between his cries and the time he was found dead, there was only a matter of a few hours.  He may well have died minutes after the utterances.  We are convinced that the deceased’s utterances that night, crying out as he did, pleading with accused 1 to stop assaulting him qualifies as a dying declaration.  The question is, why would the deceased cry out Mudongo’s name and implore him to stop assaulting him if he was not the person inflicting pain on him?  Can accused 1 be exonerated from “all “ the injuries that were observed by the pathologist simply because no one says he “saw him with a weapon” at that time of the night?

In the conduct of their defences, the accused persons were neither helpful to the court nor to themselves.  They gave two (2) conflicting defence outlines with each literary “throwing a live snake” onto the other to use recent colloquial language.  This was more so in respect of accused 1.  In his defence outline accused 1 states that he and the deceased were illuminated by a passing vehicle just as they had met and were greeting each other.  The 2nd accused suddenly appeared.  Like a mad man he stabbed the deceased with an okapi knife without saying anything.  He says the deceased then tripped into a small hole in the ground and accused 2 stabbed him again whilst he was on the ground.  The 1st accused says it was him who restrained accused 2 giving the deceased a chance to disappear into the darkness.  In his confirmed warned and cautioned statement, accused 1 says almost the same, save to say that in that statement, he claimed that the accused 2 stabbed the deceased on the head with an okapi.  He also adds that after being stabbed on the head the deceased ran away and fell on the ground whereupon accused 2 followed and stabbed him several times whilst lying on the ground.  Accused 1 says that he followed and saved the deceased.

In his evidence-in-chief however, the 1st accused told the court that as he and deceased were having a handshake, accused two arrived and had a misunderstanding with the deceased.   He said as the two were having the misunderstanding he noticed that the 2 of them had a grudge somehow, which the deceased had probably long forgotten about but accused 2 was still holding onto.  He also noticed during the misunderstanding that the 2nd accused was holding a knife and scratched the deceased with it on the forehead.  He said as the two quarreled, with accused 2 still holding the knife, the deceased fell into a dump pit.  At that time accused stabbed deceased once on the back.  He then refrained accused 2 from further assaulting the deceased who then stood up and escaped.

The court dismisses this defence and evidence by accused 1 as being not only impropable but false.  Firstly, in his evidence, the story of what transpired has shifted from accused 2 suddenly appeared from nowhere in the middle of a night and like a mad man stabbing the deceased “without saying anything.”  In evidence in chief, the two first had a misunderstanding and quarreled over an apparent long standing grudge.

Secondly, this story implies (and indeed 1st accused claimed so in evidence and cross examination) that Praymore Sibanda was never at that scene, never witnessed anything and therefore his evidence is a complete fabrication.  But the question is - for what reason and benefit would Praymore concoct such a polished story of a midnight attack that he never saw?  No plausible reason has been advanced by accused 1.  Thirdly, the court already having made a finding that the deceased made a dying declaration, why would deceased cry out literally accusing the same man who now claims to have been his savior?  Why would deceased cry out begging ‘Mudongo” not to further assault him when the said “Mudongo” is the man who had just been greeting him nicely moments before and was the same man who was saving him from knife attacks by accused 2?  The evidence of the deceased’s cries is then corroborated by accused 2’s evidence that he too found accused 1 assaulting the deceased.  He joined on the side of the 1st accused and ultimately stabbed the deceased, and that Praymore indeed found them assaulting the deceased.

Further, the court will reject in total the claims by both accused that they did not know the reason(s) for the attack on the deceased by either of them.  The court finds that the two accused savagely attacked the deceased and ultimately caused his death as a result of the issue of the cellphone.

To the extent that the defence and evidence of accused 2 is inconsistent with that of Praymore Sibanda, the court dismissed accused 2’s evidence as improbable and false.  In any event, accused eventually abandoned his two defences and prayed that due to his recklessness as a result of drunkness, the court may find him guilty of murder with constructive intent.

It is the court’s finding that the doctrine of common purpose does not even arise here.  In any event it would not be open to accused 1 in the circumstances, regard being had to his defence outline and evidence in court.  According to him, he never participated in the assault at all.  He claims he was a savior.  It would have been open to him had he been claiming that he did but not in common purpose with accused 2 or that at some stage he dissociated himself from an initial plan and then proved the essential elements of dissociation.

The court remains cognissant of the fact that the admissions, confessions and evidence of one accused is generally inadmissible against his core-accused to rely on to convict.  But in the same vein, the court would not generally rely on the uncorroborated admissions, confessions and evidence of one accused person to exonerate and acquit a co-accused.  In any event, accused 2 himself has been found to be untruthful in a number of ways.  For example, he presents the court with two (2) completely different scenarios of what happened when he was allegedly struck by an axe handle by the deceased.  According to  paragraph 3 of his defence outline, he asked the deceased about the phone.  The deceased struck him with an axe handle.  In a fit of rage, and feeling provoked, he stabbed the deceased with an okapi knife.  He therefore had an okapi knife.  He was therefore not being candid with the court that he was attacked by the deceased much earlier during the day just as he arrived at the business centre.  The court can therefore not be asked as insinuated by both counsel for the accused to use the accused 2’s evidence and defence outline to acquit the 1st accused.

From the evidence before us, we are convinced that it was only the evidence of the single witness Praymore Sibanda, which was clear and colourless, with no exaggerations or half truths whatsoever.  The court believes that he (Praymore) witnessed the events that he narrated, to it.  Ultimately the court is satisfied that it was not deceived by a seemingly plausible witness.

Counsel for the second accused conceded and prayed that accused 2, be found guilty of murder with constructive intent.  This also appears to be the state’s prayer at the end of the state counsel’s submissions, that both accused were reckless and foresaw death hence they both should be convicted of murder with constructive intent.  We believe that the submissions by accused 2’s counsel and the state counsel were judiciously made.  The post mortem report reveals that excessive force was used to inflict the injuries that led to deceased’s death.  The doctor noted about four (4) wounds which may well be stab wounds, but specifically refered to two as being “stab wounds.”

It is the court’s finding that both accused persons attacked the deceased and were reckless as to the consequences of their attack.  The 1st accused cannot escape liability of the consequences according to the evidence before us.  Moreso, he cannot persuade the court to rely on the evidence of accused 2 to acquit him on the basis that accused 2 testified that he did not see him using a weapon.  This incident happened almost at midnight.  Neither Praymore nor accused 2 can vouch that accused 1 never used any weapon.  In any event and according to the evidence, both found the assault having commenced and do not know for how long the 1st accused had been assaulting the deceased before they arrived at their different times.  In the case of Praymore, he got there running and the assault did not continue for long before he stopped it but deceased had been screaming.  The witness does not know exactly when and where it had started.  That he said he did not see a weapon and it being at night does not mean that indeed a weapon of whatever nature was never used.  The same goes for accused 2, who in any event found an ongoing assault accused one assaulting an unretaliating deceased.  He cannot, and did not vouch that before his arrival, no weapon was used.  He obviously cannot even know what the nature of the assault was.

In State v Tatenda Maghodi HB 243.18 the deceased and the accused were discussing the issue of a cell phone belonging to the deceased.  The deceased had been involved in a love relationship with a lady whom he gave a phone to use during their love affair.  They later broke up and the lady married the accused.  The deceased tried to get the phone from the woman (Herzel) without success and eventually took the accused to task over the phone with the accused reluctant to part with the phone.  A misunderstanding ensued between the two whereupon the accused suddenly drew a home-made knife and stabbed the deceased once on the left side of the abdomen exposing the intestines.  Accused then fled the scene.  The accused was found guilty of murder with constructive intent.

See (1) also State v Everton Moyo –HB-16.17

(2) State v Gambaya – HB-26.19

In State v Mugwanda –SC-19-02 the Supreme Court set out the requirements of actual and legal intent that accused, who while engaged in some activity, does not mean to bring about the death of the victim but foresees the possibility of such death and he continues to engage in that conduct or activity regardless of the foreseable risk of death as a consequence, would be convicted of murder with constructive intent.

The requirements for a verdict of murder with constructive intent are:

a)	Subjective foresight

b)	as to possibility, not probability

c)	recklessness

see also State v Emmanuel Bhuwe HB 248-18

It is the court’s finding that the accused were utterly reckless in the manner they attacked the deceased.  It is also the court’s finding that they indiscriminately attacked a younger non-retaliating victim seeing the possibility and real risk of death occurring but proceeded with the attacks nonetheless.

In the result, and for the foregoing reasons, both accused are found guilty of murder with constructive intent.

Sentence

The court will consider what was submitted in favour of the accused by defence counsel.  The court will also take into account the fact that although intoxication could not save them as a defence, it is nonetheless a strong mitigatory feature that affected the accused’s sense of judgement in attacking the deceased.  It was Christmas partying time and the accused appear to have been drinking since morning until very late in the evening when the fatal assault took place.  There is mention of “hot stuff” beers.

The accused are 23 and 19 respectively.  To that extent, they both acted with youthful immaturity.  On personal circumstances, the court will consider that the accused 1 is married and has a child, he is 23 years and a first offender.  Accused 2 is single and has no children.  Both accused appeared remorseful.

The court will however not condone violence of any kind to settle petty scores in particular the notion among many young people that Christmas time is a time to parade one’s Macho ego after deliberately getting drunk.  The court will also remind the criminally minded that life is sacred and should be respected at all times.  In casu, the life of a young innocent victim was needlessly lost.  Because of the strong mitigatory features in this case, particularly intoxication and youthfulness the court will temper the sentence with some measure of mercy.

Accordingly – 15 years imprisonment

National Prosecuting Authority, state’s legal practioners

Dube, Nkala and Company, 1st accused’s legal practitioners

Legal Aid Directorate, 2nd accused’s legal practitioners