THE State V Kholisani Jabulani Nyoni

### Preamble
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HB 151/19
HC (CRB) 83/19
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THE STATE

Versus

KHOLISANI  JABULANI  NYONI

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mrs A. Moyo and Mr Mashingaidze

BULAWAYO 26 & 30 SEPEMBER 2019

Criminal Trial

B. Maphosa for the state

T. T. Khumalo for the accused

MAKONESE J:	On the 25th September 2017 around 22:00 hours and at Nubobs 27 Mine, Mphoengs the accused had a misunderstanding with the deceased.  The accused stabbed the deceased eleven times all over the body with an Okapi knife.  The deceased’s stomach was ripped open leaving the intestines protruding.  The deceased was also stabbed in the testicles.  The accused fled the scene of the crime.  Deceased was rushed to Plumtree District Hospital.  He was later transferred to United Bulawayo Hospitals.  He died on 27th September 2017 as a result of injuries sustained in the attack.

The accused has been arraigned in this court on a charge of murder.  It being alleged that on 25th September 2017 at Nubobs 27 Mine, Mphoengs the accused person stabbed Mnqabeli Sibanda all over the body with an Okapi knife intending to kill him or realising that his conduct may cause the death of his victim.  The accused pleaded not guilty to the charge.  Accused tendered a limited plea of guilty to the lessor charge of culpable homicide.  The state did not accept the limited plea.  The matter proceeded to a full trial.

The state tendered an outline of the state case.  The bulk of the facts are not in dispute.  It shall not be necessary to recount the contents as of the synopsis of the state case.  The accused’s defence outline reads in part as follows:

“5.	He will confirm that on the date in question he left the mine in the company of the deceased, Mbongeni Mpofu and Mokolobetsi Johane Ndlovu, proceeding to Togotsweni Shops.  Later on, Mbongeni Mpofu and Mokolobetsi Johane Ndlovu returned to the mine.  He and the deceased remained behind imbibing alcohol and smoked dagga and went back to the mine around 2200 hours.

6.	He will aver that a misunderstanding ensued between him and the deceased when he stopped the deceased from attacking passers-by using a shovel, who had lit torches and whom they suspected of coming to steal gold ore from the mine.(sic)

7.	He will aver that he acted out of an impulse after the deceased had provoked him by uttering insults and calling him to come out of the tent to get some beatings.

8.	He will further state that upon getting out of the tent the deceased who was still carrying a shovel punched him and he stabbed him.

9.	He will further aver that at the time of commission of offence he was heavily intoxicated and did not fully appreciate his conduct.  He only thought he had stabbed the deceased twice.

10.	He will further state that it only dawned on him on the following day that he had injured the deceased as such he endeavoured to inform the Mine Manager Francis Butete who upon seeing him fled and ordered an armed mob to come after him.

11.	He avers that he had no intention of killing the deceased who was his close friend and regrets doing so.

12.	He will plead guilty to the charge of culpable homicide.”

In his confirmed warned and cautioned statement tendered into the record the accused admits the stabbing and proffers this version to the events leading to the murder.

“I admit to the allegations levelled against me of murdering Mqnabeli.  The now deceased asked me to assist him to attack two men who were passing near our mine.  I refused and he then insulted me about my mother’s clitoris and about my mother’s vagina.  He said I should come out so that he assaults me.  I then came out of the tent angry and armed with a knife.  The now deceased pushed me and I fell down.  I stood up and stabbed the now deceased with a knife which I was holding.  I had no intention to stab the now deceased. I realised it after it had happened and I regret the act of stabbing the now deceased.”

The statement was confirmed by a magistrate at Plumtree on the 24th October 2017.

A Post Mortem report compiled by Dr Sanganayi Pesanai following an examination of the remains of the deceased at United Bulawayo Hospitals on 27th September 2017 was produced by the state.  The deceased was aged 32 years. The cause of death is listed as:

Bronchoaspiration

Pneumonia

Peritonitis

Abdominal stab wound

Assault

On marks of violence, the pathologist revealed that deceased sustained eleven stab wounds.  It is necessary to set out in detail the nature and extent of the injuries observed by the pathologist.  They are as follows;

Satured stab wound right shoulder (3cm)

Satured stab wound right shoulder (4cm)

Stab wound right arm (4 x 2cm)

Stab wound right hand (5 x 2cm)

Satured wound right scrotum (6cm)

Stab wound right chest, satured 3cm, located 12cm from right nipple

Satured wound (4cm) located 4cm from right nipple, 3cm from midline

Stab wound left back (3 x 1cm) located interior margin of scapula

Stab wound left back satured 4cm, located on the midline margin of scapula

Satured stab wound 3cm from back mid-medial part of the scapula bone

Stab wound right abdomen, satured 5cm

It is evident that the deceased suffered deep and penetrating wounds, infllicted by a sharp object.  The stab wounds were inflicted randomly and excessive force was used.

The Okapi knife used in the stabbing was recovered from the accused the morning following the murder.  It was tendered as an exhibit by consent.  Its total length is 23.2cm.  The blade is 10cm long.  The handle is 13.3cm long and the width of the blade at its widest point is 2.3cm.

The state case

The state led viva voce evidence from its first witness NICHOLAS NYATHI.  He is a male adult aged 42 years.  He resides at Thokozile Ncube’s homestead in Mphoengs.  Both deceased and the accused were his workmates at Nubobs 27 Mine.  On the 26th September 2017 around 0700 hours he arrived at his place of work to commence duty.  Upon arrival he heard the faint voice of the deceased calling saying “mdala Mdluli dlulani ngapha,” meaning, “Old man Mdluli pass through here”.  The witness approached the tent and saw the deceased lying on a blanket.  The deceased’s overall was torn and his intestines were exposed.  The deceased indicated that he was dying.  The witness assured the deceased that he would be attended to.  The deceased informed the witness that “Sotsha” had stabbed him.  Sotsha is accused’s pseudo name.  Together with other mine workers, the witness searched for the accused whom they found hiding in a disused tent.  Upon being searched the accused surrendered a blood stained Okapi knife.  The accused was letter handed to the police.  The deceased was taken to hospital where he later died.

The witness fairly conceded that when the accused was apprehended he appeared drunk.  The witness gave his evidence well and he was not contradicted under cross-examination.  We accept the evidence of this witness as an accurate reflection of the events as he perceived them. There was no exaggeration on his part.  His evidence was credible and consistent.

Francis Butete

The second witness for the state was FRANCIS BUTETE.  He was the Mine Manager at Nubobs 27 Mine, Mphoengs, at the relevant time.  The accused and the deceased were his subordinates at the time.  On the day in question he was awakened by one Nicholas Nyathi who informed him that the deceased had been severely injured by the accused.  The witness proceeded to the scene of the crime.  Upon arrival he observed that deceased’s overall was torn and blood stained.  He phoned the police as well as Brunapeg Hospital requesting for an ambulance to ferry the deceased.  At that stage the witness noticed the accused emerging from an old abandoned tent.  The witness moved away from the accused fearing for his own safety.  The witness asked the workers to apprehend he accused.  On realising that he was outnumbered, accused surrendered himself and produced a blood stained knife.  The ambulance later arrived and the deceased was ferried to hospital.  He subsequently died from injuries sustained in the knife attack.  The accused was arrested and taken away to Plumtree Police Station.

The evidence of the witness was consistent, credible and reliable.  Counsel for the defence put very few questions to this witness.  His evidence was largely common cause.

The state sought and obtained formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07).  The evidence of the under listed witnesses as it appears in the outline of the state case was admitted into the record by consent namely:-

a)	Mokolobetsi Johane Ndlovu

b)	Mbongeni Mpofu

c)	Phineas Dladla

d)	Hilder Ndlovu

e)	Phumulani Moyo

f)	Boxen Vundla

The state closed its case.

Defence case

The accused KHOLISANI JABULANI NYONI elected to give evidence under oath.  The accused adhered to his defence outline.  He narrated how he had a misunderstanding with the deceased.  He averred that prior to the commission of the offence he had consumed substantial quantities of opaque beer and gold blend spirit.  He had also smoked dagga.  The accused’s drunken state was confirmed by Nicholas Nyathi who indicated that accused was drunk because of the manner of his walking.  This court accepts that the accused was drunk at the time of the commission of the offence.  Accused averred that he deceased subjected him to provocation in that he referred to his mother’s private parts.  Accused says this infuriated him and he lost self control.  Under cross-examination accused conceded that he exceeded the bounds of self defence.  He contended that he could not remember how many times he had stabbed the deceased.  When it was put to him that the deceased sustained eleven stab wounds all over the body he was unable to explain how he was   not able to remember that he had stabbed his victim multiple times.  What is disturbing about the stab wounds is that the blows were directed to vital parts of the body, the chest, the abdomen, the gentiles and the shoulders.  At the end of the violent episode of these stabbings, the deceased was left helpless on the ground with his intestines protruding.  His overalls were blood soaked and torn.  The accused fled the scene and hid in an abandoned tent.

Mr Khumalo, appearing for the accused conceded that the extent of provocation and intoxication was not sufficient to negative intent.  In terms of our law the defence of provocation has now been codified under section 239 of the Criminal Law (Codification and Reform) Act (Chap 9;23).  The defence of provocation will only be available to an accused person where it is shown that the accused lost his self control and that a reasonable person in the position of the accused would have lost self control as a result of such provocation.  The accused did not persist with this defence.  It became clear that any provocation that may have occurred would only save as a mitigating factor in sentencing.  As regards the defence of intoxication, the law provides in section 221 of the Criminal Code,  that an accused person will rely on this defence successfully if it is established that as a result of intoxication he was so drunk as to be incapable of formulating an intention to kill.  The deceased was stabbed multiple times with an Okapi knife.  The accused did not stab his victim once.  He did so several times and aiming at vital parts of the body.  All the wounds were deep and penetrating.  The degree of force used was excessive. The attack itself was brutal and left the deceased with his abdomen ripped open and intestines protruding.  Accused stabbed the deceased in the testicles.  The accused must have foreseen that death was a real possibility or at the very least must have realised that there was a real risk or possibility that death may ensue as a result of his conduct.  Mr B. Maphosa, appearing for the state argued that he state had succeeded in proving all the essential elements of the charge of murder. It is trite that whenever the prosecution is called upon to prove the intentional commission of the crime of murder it can prove actual or legal intention.  The test for both actual and legal intention is a subjective one.  The subjective test involves a consideration of the state of mind of the offender.  His personal mental make-up and personality must therefore be considered, together with such factors as intoxication, which may have influenced his requisite intention at the relevant time.  The issue to be determined by the court is essentially this, what was the state of mind of the accused?  Actual intention is proved where X deliberately causes the death of his victim.  He desires the actual consequence and strives to achieve his purpose.  In legal intention (dolus essentialis), the accused does not mean to bring about the death of the victim, but through some activity in which he subjectively foresees a real possibility that death may occur.  See S v Mugwanda 2002 (1) ZLR 574 (S) and S v Sigwala 1967 (4) SA 566 (A)

In this matter, for the court to return a verdict of murder with actual intent, it must be satisfied beyond reasonable doubt that either the accused desired to bring about the death of this victim and succeeded in completing his purpose or that while pursuing some activity, he realised that there was a real possibility that death may result.  The facts surrounding the attack and subsequent demise of the deceased are narrow.  By his  own admission, the accused stabbed the deceased more than once in the upper part of the body.  In his defence outline accused suggests that he did not know how many times he stabbed the deceased.  The Post Mortem provides vital information regarding the nature of the attack upon the deceased.  The deceased sustained eleven stab wounds.  The wounds are deep and are located in delicate parts of the body.  There are multiple stab wounds one of which resulted in the intestines being exposed.  One stab wound was directed to the chest cavity.  There was a stab wound on the genitals.  There can be no doubt that looking at the nature of injuries inflicted by the accused,  he reasonably foresaw death as a substantial possibility.  That being the case, and in our view, actual intention to kill was proved by the state beyond reasonable doubt.

In the result, the accused is found guilty of murder with actual intent.

Reasons for sentence

This is one of the most horrific murder cases this court has had to deal with. The accused was aged 29 years at the time of the commission of the offence. He stabbed the deceased eleven times all over the body, with an Okapi knife directing his blows to the chest cavity, the shoulders, the abdomen and the genitals.  The deceased was found after the knife attack lying hapless on the ground with his intestines exposed.  His overalls were blood soaked.  The accused, realising the extent of injuries he had inflicted his victim, fled the scene of the crime.  Accused was apprehended the following morning near the scene of the crime.  The accused’s conduct was savage and brutal.  The deceased must have suffered a slow and painful death.  Human beings should not reduce themselves to the brutality exhibited in this case.  All disputes must be resolved without the use of violence.  In mitigation, the accused’s defence counsel contended that the accused was intoxicated and that his sense of judgment was somewhat impaired.  This court accepts that accused had consumed intoxicating liquor and that this could have clouded his sense of judgment.  The court also accepted that accused was provoked by the deceased.  In the absence of controverting evidence the court would have to accept that there was some form provocation.  The accused is credited for having surrendered himself to his co-workers who quickly apprehended him.  The deceased did not escape or seek to deny any involvement in the murder. The accused appeared remourseful.  This,   however,  is a murder committed in aggravating circumstances.  The accused mutilated his victim with an Okapi knife before causing his death.  Accused’s moral blameworthiness is high.  The punishment must fit the offender and must serve the ends of justice.  A lengthy custodial sentence is called for.

Accordingly, accused is sentence as follows:

“30  years  imprisonment.”

National Prosecuting Authority, state’s legal practitioners

Ncube & Partners, accused’s legal practitioners