THE State V Khulekani Ncube

### Preamble
1
HB 173/19
HC (CRB) 94/19
---------


THE STATE

Versus

KHULEKANI NCUBE

IN THE HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mrs A. Moyo & Mr M. Ndlovu

BULAWAYO 4 OCTOBER 2019

Criminal Trial

B. Gundani for the state

B. I.  Masamvu for the accused

MOYO J:	The accused person faces a charge of murder, it being alleged that on the 28th of March 2019 and at Jani Bottle Store, Moffat area, Shangani, Fort Rixon he struck Mkhokheli Ncube with an axe once on the forehead resulting in him dying from the injuries sustained in that assault.

The following were admitted into the court record and were all duly marked:

the state summary

accused’s defence outline

the affidavit of Constable Mavhunduse

the post mortem report, which gives the cause of death as –

severe brain damage

skull fractures

axing

the accused’s confirmed warned and cautioned statement and the axe that  allegedly used in the commission of the offence

The evidence of –

Archford Gerald Mugulu

Joseph Mangwonda

Joshua Ticharwa

Joseph Shumba

Dr I. Jekenya

was admitted into the court record as it appears in the state summary.

The sate called 3 witnesses who gave viva voce evidence.  These were, Nkosinamandla Ncube,, Mlamuli Dube and Langa Ncube.

The witnesses gave an account of what they each witnessed prior to the attack on the deceased.

Nkosinamandla Ncube told the court that he saw deceased coming running with accused in hot pursuit.  He disarmed accused and dismantled the axe that accused had, and he took the blade and gave accused the handle.  That later accused then asked for his axe, put it back together and started to attack the witness, who blocked/dodged the blows 3 times.  He then fled and stood behind a tree, while accused then went straight to attack the deceased who was standing doing nothing.  This witness was related to deceased and was part of whatever had transpired between these 2 sides.  Under cross-examination the defence sought to show differences between the testimony by this witness and his statement to the police.  However, in such a case, the defence should be in possession of the actual statement that the witness gave to the police.  The witness must be shown his statement and confirm that it is his, that he understood the contents therein and that he signed it, that is when it can be used to militate against his evidence.  If the contents of the state summary are that disputed by the witness one will not appreciate without the statement itself if it is the witness who is departing from his statement or it is the state summary that does not give an appropriate picture.  To successfully show that a witness has departed from his statement to the police such statement must be tendered as evidence by the defence to show the discrepancies elicited during cross-examination.  It is not enough to quiz the witness not using the state summary and say it is precisely what he told the police because what he told the police is in his statement as crafted by the police and not necessarily the state outline.  For this reason the court will not make a finding that this witness departed from his initial statement.  In any event, the issues canvassed as the ones where the witness departed from have no bearing on the question before this court.  The question before this court is under what circumstances did the accused axe the deceased.  Did he act wrongfully in so doing, or was he justified?  That is the question to be answered.  This question is answered by the narrative that tells us how and when deceased was axed not necessarily the events occurring prior to the assault which is what the defence seemed to concentrate on.  To meaningfully assist the court, the counsel before it should endeavour to 1st establish what the issues before the court are.  What questions the court needs answers for and stick to material points in those respects.  It would not matter whether people were gambling or were not gambling but an altercation ensued.  What matters is what happened during this altercation.  Did the accused act wrongfully in the circumstances or are his actions justified.  It is for these reasons that the court finds that most of the “discrepancies” alleged between the  state summary and the version in court are not material to the crux of the matter which is how the deceased was assaulted and why?  I say so for, even if the parties gambled and some issue then followed , the bottom line is, was the accused  person then right or did he act lawfully in axing the deceased to death.  That is the issue.

Mlamuli Dube basically corroborated Nkosinanandla Ncube on the initial stage of the attack.  He saw the accused feign an attack on the 1st witness and he saw the accused walk towards the deceased who was doing nothing and strike him with an axe on the head.  Even if Nkosinamandla was an interested party and his evidence should thus be treated with caution in this respect it was corroborated by Mlamuli Dube in material respects.  This court notes that Mlamuli Dube told the court that deceased had his arms aside his body when he was struck whilst Nkosinamandla says he had them folded.  This court notes that this discrepancy is not material to the question before it in that whether deceased’s arms were folded and whether they  were besides his body, is only material to the extent of whether accused was under an attack by the deceased which issue is common cause that he was not.  In any event, witnesses do not have a photographic memory and witnesses do not watch an event with a view to recording every little detail for purposes of appearing in court in future.  Once an occurrence has happened, witnesses then try to recollect what they saw and human errors within the accepted degree cannot be held against them.  Unless if the discrepancy is on a material point, like where one witness says deceased wanted to strike accused and the other says deceased just stood.  Where the description differs but the effect of the material point is the same like in this case where the sum total of their evidence is that deceased just stood when he was attacked, the court has no reason to split hairs.  With respect to the challenges relating to his statement, this witness in fact said he never gave a statement to the police.  The defence, as I have already said, was duty bound to request for the copies of the statements drawn by the police and quiz witnesses using them and not the state summary.

The evidence of Langa Ncube, although it only touched on peripheral issues, it did to some extent corroborate that the 1st state witness’s evidence that he did take possession of the axe from accused and dismantled it and that an earlier altercation had indeed occurred that was quelled making people believe that there was then peace.

The case law authorities cited by the defence counsel on differences between the state summary and the version in court are correct in so far as there are material discrepancies, it is not every little detail that matters.  It is the question relevant to the determination by the court which should be consistent.

In every matter to be decided, there are material facts.  There are issues to be determined by the court.  There are questions to be answered before a court arrives at a determination and it is these material respects of a case that matter.  It is not every little detail that might be proven by the state.  In a murder trial, the state must prove that an accused person acted unlawfully, within the ambit of the provisions of the law of murder, for a charge to be sustained.  It need not necessarily prove all little facts as pertaining to time,, little details of the events leading to the fatal assault, how people stood or sat or distances in  strict terms, save for those facts which are pertinent and are relevant to the determination to be made.  It is for these reasons that this court finds that the discrepancies complained about by the defence which the defence itself did not show their relevance to the question in issue, are of no consequence in the findings to be made.  The account by the state witness on the assault is also corroborated by exhibit 4 being the post mortem report.

The accused person himself told the court in his defence outline which he adopted as his evidence in chief that he did assault the accused as alleged but that he was attacked and retaliated by grabbing the axe which was in his possession and tried to scare them off but accidentally struck the deceased on the forehead.  This, he says was when a scuffle had ensued between him on one side and Nkosinamandla, deceased and another person on the other side.  During cross examination he was asked after he stated that he accidentally struck deceased when he swung the axe he was asked the following questions:

Q	-	So how did you strike him

A	-	I pushed him and dashed back and I struck him

This means accused 1st pushed deceased, then dashed back then struck him.  It is not consistent him grabbing and accidentally swinging an axe that then struck the deceased.  These 2 occurrences are naturally exclusive in the view of the court in that he either pushed deceased, dashed back and then struck him, or he accidentally swung the axe and struck the deceased.  He was further asked the question –

Q	-	You were facing each other that’s why you struck him on the forehead and  he answered “Yes”.

He also confirmed that deceased was not armed.  He was further asked,

Q	-	So he was no danger to you

A	-	The danger came from Nkosi

Q	-	You say he was not armed you had pushed him, you left the one who was armed and hit the one who was not armed.

A	-	He continued coming to me intending to grab me again.

This version does not tally with the version given in the defence outline for accused did not have to strike the deceased who came towards him and was facing him in order to stop him from coming to grab him and at the same time accidentally strike the deceased whilst he swung the axe during the scuffle.  Only one of these occurrences would stand but certainly not both.  He tried again to go back to the defence in the defence outline when questions were put to him by the court that what he said under cross examination was now different from the defence outline and the court sought clarification.  He could not marry the 2 versions because they are certainly mutually exclusive.  So he failed even after being given an opportunity to explain the versions because he had no explanation.  He became the victim of fabricated stories which almost always crumble once they are subjected to cross examination.

The defence counsel submitted that the state failed to prove its case beyond a reasonable doubt in that its witness told different versions.  However, this court finds that the evidence of the 2 state witnesses Nkosinamandla Ncube and Mlamuli Dube was consistent in material respects.

It is common cause that it is the accused who struck deceased with an axe causing his death.  These witnesses proved that fact.  These witnesses also told the court the circumstances under which they observed deceased being struck which is to the effect that, he was not armed and was not being any threat to the accused’s life.  On the other hand, once the state has proved that accused inflicted the fatal blow in unjustifiable circumstances the accused must then rebut the wrongfulness of his actions by coming up with a version that is reasonable, probable, that exonerates him from any wrongdoing in the circumstances.  The question that arises is whether accused came up with a reasonably possible version that offsets the evidence of the state.  Accused has no duty to prove the truthfulness of his version but he simply has to furnish a version that is probable and could have occurred in the circumstances.  Now, the difficulty that faces the accused person in this case is that his version cannot be found to be reasonably possibly true, or probable where he comes with 2 versions that are mutually exclusive on the very basis or reason for his actions.  The accused has failed to come up with a probable version of what transpired that will leave this court to conclude that wrongfulness on his partner not be proven in the face of his defence.  The 2 versions mean one thing that accused is lying.  If accused is lying then this court has a right to throw away his version and accept the version of the state case.  It is trite that an accused person who lies on a material point corroborates the state case.  In the case of Masawi & Anor HH-11-94 the court held that lies told by an accused person on material respects could only be an indication of guilt.

It is this court’s finding that having thrown away accused’s defence the accused did act wrongfully on the date in question.

What is accused guilty of?

Accused struck the deceased with an axe on the head.  Factually, the axe is a lethal weapon, he aimed it at a vulnerable point of the body, he exerted force as evidenced by the post mortem report.  The axe went into the skull, right through the left brain.  It got stuck and could not come out.  What intention if any can be imputed to the accused’s actions.  We start by analyzing murder with actual intent.	Murder with actual intent is described by Professor Feltoe in the Guide to Zimbabwe Criminal Law page 96 as follows:

“With actual intent accused desires death, death is his aim and object, but there will also be actual intention where death is not the aim and object but accused continues to engage n an activity which he realises will almost certainly result in death.”

It is the position of our law that intention can be drawn as a matter of inference.  That is to say, accused did foresee death as a substantially certain result from his actions as death will be a natural and substantial result from such conduct.  In this case accused aimed an axe in itself a lethal weapon, at the forehead a vulnerable part of the body and exerted force in such a blow.  He must have foreseen that death was a substantially certain result from his actions but continued nonetheless.  It is accepted that death is substantially certain where he struck a man with an axe in the head in the manner that accused did.

It is for these reasons that accused person is found guilty of murder with actual intent.

Sentence

The accused is convicted of murder.  He is a 1st offender.  He is a family man.  He was intoxicated at the material time.  The accused however committed a serious offence, he started at the very deep end.  Beer drinking places have suddenly become unsafe.  Life is continually under threat in these places which should be for merry making.  Patrons butcher each other for every little misunderstanding.  These courts should emphasise the sanctity of life and send a message out there through appropriate sentences.  Being drunk although mitigatory, should not be used to excuse abominable crimes so as to trivialize the sanctity of life.  A fine balance must be struck where an accused’s intoxication led to a serious crime such as murder otherwise, the public will lose confidence in these courts especially where the intoxication is voluntary.

For these reasons, the accused is sentenced to 18 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Mutatu, Masamvu & Da Silva Gustavo, accused’s legal practitioners