THE State V Khonzaphi Mumpande

### Preamble
1
HB 136/25
HCBCR 2907/25
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THE STATE

Versus

KHONZAPHI MUMPANDE

HIGH COURT OF ZIMBABWE

KABASA J with Assessors T.E Ndlovu and J. Zulu

HWANGE 24 AND 25 JUNE 2025

Criminal trial

M. Dube, for the state

C. Manyeza, for the accused

KABASA J:	The accused appeared before us facing a charge of murder to which he pleaded not guilty but tendered a limited plea of guilty to culpable homicide.  The state did not accept the limited plea.  The matter therefore proceeded to trial.

The state alleges that on 26 December 2024 around 1800 hours the accused, deceased and other patrons were at Chitongo Business Centre when a misunderstanding ensued between the accused and the now deceased over the accused’s holding of the deceased’s niece’s hand.  The accused was annoyed at being reprimanded by the now deceased.  The two exchanged harsh words but the situation was quelled by other patrons.  The accused later withdrew a knife and stabbed the now deceased once on the chest before fleeing.

In his defence the accused did not deny inflicting the fatal injury using a knife.  He however said he was acting in self-defence after the now deceased and one Farai ganged up on him and Farai struck him on the shoulder with a brick whilst the now deceased held him by the collar.

The postmortem report gave the cause of death as acute cardio respiratory failure and hemopneumothorax.  The doctor observed a 3 x 1cm incisional wound on the left chest which was located on the midline 8 cm from the nipple and 12 cm from the clavicle whose direction was left to right, top to bottom and front to back.

The evidence of four witnesses was admitted in terms of s314 of the Criminal Procedure and Evidence Act [Chapter 9:07].  Evidence was led from one Farai Nkomo, the one accused said attacked him with a brick.

The 16 year old girl’s evidence established why the now deceased reprimanded the accused.  The accused accosted her, held her by the hand and would not let go of his grip until the now deceased intervened.

Thulani Munsaka whose evidence was also accepted as the truth and therefore admitted in terms of s 314, is accused’s uncle and the now deceased was his cousin.  His narration of events was the same as Farai Nkomo’s, the only witness who gave viva voce testimony.

Section 314 of the Criminal Procedure and Evidence Act states that:-

“(1)	In any criminal proceedings, the accused or his legal representative or the prosecutor may admit any fact relevant to the issue and any such admission shall be sufficient evidence of that fact.”

It follows therefore that just as Farai testified, the accused held the 16 year old girl’s hand and the now deceased reprimanded him telling him that she was “under age.”  This annoyed the accused and a misunderstanding ensued.  The two started pushing each other and the accused was armed with a brick and a knife.  They were restrained but efforts to disarm the accused failed as he resisted.  The two subsequently apologised to each other and each one left going in different directions.  A few minutes later the deceased’s body was found, clothes blood stained, about 70 m away from the shops.  He had a stab wound on the chest.

How then can one seek to discredit Farai’s evidence and accuse him of trying to distance himself from the stabbing when Thulani’s evidence was accepted as the truth.  It means Farai was not present at the time the now deceased was stabbed.  Thulani’s accepted version of events corroborated Farai’s testimony.

We find ourselves unable to criticize Farai’s testimony.  He gave his evidence well and more importantly Thulani’s evidence corroborated what he said.

What became clear therefore is that the accused was not subjected to an attack by the now deceased and Farai.  If there was no such attack, what was he defending himself from?

Even in his warned and cautioned statement he merely said.

“I Khonzaphi Mumpande do admit to the allegations levelled against me that I killed Manager Mwinde with a knife when we were fighting.”

There was no mention of Farai being involved and yet in his defence outline he portrayed Farai as the one who was more aggressive to the extent of hitting him with a brick.  If his story was one of self-defence would it have been difficult for him to show the nature of attack he was under?  Surely it would not have required him to think deeply regarding the reason he stabbed the now deceased.  He would simply have stated that Farai and the now deceased had ganged up on me and so I used a knife to defend myself.  The leaving out of such a crucial point portrays him in bad light.

It is as if he subsequently decided to embellish his story so the self-defence would have more weight.

He also would have us believe that the now deceased reprimanded him for merely greeting his 16 year old niece who he (accused) said is also his sister-in-law.  Who, in their right mind would object to a mere friendly greeting?  He did not simply greet the 16 year old and that is why the now deceased intervened.

Why then did he want to give a false narrative of what it is he did to the 16 year old which caused the now deceased to react?

Granted, the accused need not convince the court about the truthfulness of his story, whatever story he gives even if it be improbable, cannot be dismissed unless it is shown to be not only improbable but beyond doubt false.  (S v Kurauone HH 961-15, R v Difford 1937 AD 370)  Farai was away for barely 2 minutes when upon his return, he saw the now deceased lying motionless, stabbed with the very knife the accused had refused to give up when Thulani and Farai tried to disarm him.  What fight could have possibly occurred in such a short period of time?  It is curious that he came out of it unscathed and yet the other person lost their life.

Section 253 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) sets out the requirements which must be met when one pleads self-defence.  The very first requirement is that there must be an unlawful attack.  Was there such an unlawful attack?  We think not and as we stated earlier Farai who was said to be the one who propelled a brick at accused was not there when the stabbing occurred.

If the accused apologized to the now deceased and was genuine, why was he determined to keep the weapons he was armed with?  Why not surrender them as these were people who were knew each other, he would have retrieved the knife later. He was determined to keep it so he could use it and indeed he did.

His story does not stand up to scrutiny.  In trying to portray himself as the victim he shot himself in the foot and exposed himself as one who was not prepared to tell the truth of what happened.  He failed to knit his story well.  Had he been clever, he would have left Farai out of the equation and merely said it was just him and the now deceased.  Had he said so, it would have meant the court only had his version as the deceased did not live to tell his side.

Coming up with a coherent and plausible story is not the easiest of feats when one is not being completely honest.  The truth has a way of coming out as it did when Thulani’s evidence was accepted as the truth, which evidence was the same as Farai’s.

The use of a knife on a human being almost always ends in death.  A knife, by its very nature, is meant to cut but not a human being.  The accused sought to downplay what he did by saying he did not see where he was stabbing.  If, as he said, the now deceased was holding him by the collar, it means they were very close to each other.  What would have prevented him from seeing where he was stabbing?  He chose to stab the deceased on the chest perforating the right ventricular, which is the lower chamber of the heart.

The chest houses vital organs and a stabbing to the chest potentially leads to tragic results as happened in this case.

The accused must have appreciated that death could ensue but could not care less. The defence of self is not available to him.  As this was the reason he had given for stabbing the now deceased, it follows his annoyance at being reprimanded by the now deceased dictated his actions, resulting in the loss of life.  This was not negligence but the accused stabbed the now deceased appreciating the real risk or possibility that his conduct may cause death but continued nonetheless.

We have no hesitation in dismissing his story of self-defence and accordingly find him guilty as charged.

Sentence

You are a 24 year old first offender.  You are married with 2 young children.  You were the sole breadwinner for your family.  Your incarceration will adversely affect your young family.  At 24 you are relatively youthful.

You paid 9 beasts and US$200 as compensation to the deceased’s family.  This shows some measure of contrition.

A life was lost at your hands and the enormity of it is likely to haunt you for a long time to come.  It is a burden that will weigh heavily on you.

You have spent 6 months in pre-trial incarceration.

Aggravating is the fact that a life was needlessly lost.  You used a knife which you plunged into the deceased’s chest, giving him no chance at all of surviving the attack.  The use of knives in murder cases is worrisome.  It is as if it is the favourite weapon to ensure maximum damage.

Life is precious and there is need to respect the sanctity of life.

The deceased’s brother’s victim impact statement showed how his loved ones are devastated at such a tragic loss.  The deceased had a family and children who now have no father/husband and the burden of caring for the deceased’s family now rests on this brother who submitted a victim impact statement.

Your reaction was totally uncalled for.  You were annoyed because the deceased reprimanded you for accosting his 16 year old niece.

The statutory penalty is imprisonment of 20 years or life, with the lower limit being 5-15 years depending on the circumstances.

The presumptive penalty is 20 years where a weapon was used. You did not render an assistance to the deceased but left him lying there until Farai saw his lifeless body.

Because of your youthful age and the compensation you paid to the deceased family, we will not impose the presumptive penalty of 20 years.

You are accordingly sentenced to:-

16 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Mhaka Attorneys, accused’s legal practitioners