THE State V Layton Sibanda

### Preamble
1
HB 77.20
HC (CRB) 32/20
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THE STATE

Versus

LAYTON SIBANDA

IN THE HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mr T. E Ndlovu and Mr N Ndubiwa

HWANGE 16 MARCH 2020

Criminal Trial

B Tshabalala, for the state

G Muvhiringi, for the accused

MOYO J:	The accused person faces a charge of murder, it being alleged that, on the 12th of April 2019 and at Violet Khabo’s homestead he stabbed the deceased Nontokozo Khabo several times all over the body and she later died from the wounds inflicted by accused’s conduct.

The following were tendered into the court record.

the state summary

the defence outline

the accused’s confirmed warned and cautioned statement

the postmortem report

the flick knife that was allegedly used in the commission of the offence

They were all duly marked.

The state led viva voce evidence from 2 witnesses namely Violet Khabo and Faith Sibanda.  The evidence of Sergeant Ndlovu, Constable Museva and Doctor S Pesanai was admitted into the court record as it appears in the state summary.  Accused gave evidence for the defence.

The first state witness Violet Khabo told the court that accused arrived at her homestead on the night in question, that he announced himself and deceased went outside to meet him.  That they spoke amicably as she could hear deceased laughing with a low voice.  Deceased came to her and told her that accused was leaving.  The witness questioned why accused would leave at night in bad weather.  Accused then asked deceased to take her outside the gate.  She then heard deceased call her to come quickly and see something.  She then ran, when she got there, accused was seated on top of deceased just outside the gate with deceased facing upwards and the accused fled.  She then realised that deceased had been stabbed.  The second witness said, she followed her mother outside and found accused having fled and deceased having been stabbed.  Deceased tried to walk but fell down after running towards a neighbour’s gate.  Accused then called her on the phone asking her to come and get money to take deceased to hospital.

Accused says he went to deceased’s home as he wanted to collect his bike and birth certificate.  He was welcomed.  Accused and deceased then spoke about the birth certificate and the bike.  They then had a misunderstanding when deceased refused with those things.  He then asked for the birth certificate only.  She refused, he then left and deceased followed her to the gate and she then said she wanted to show accused who she was and she said she would assault him, she then picked a log and she tried to strike him with it, he disarmed her and tripped her.  He then stabbed her while she was on the ground.

The facts are thus largely common cause.  The state witnesses did not witness any altercation between accused and deceased, in fact they spoke amicably until they left for the gate.  Accused says a misunderstanding ensued with deceased picking a log to assault him, and he disarmed deceased, tripping and felling her, and then stabbing her.  We have no other evidence to counter the accused’s version.  In fact the state case agrees with accused’s version that he arrived peacefully and spoke to deceased amicably.  Something must then have gone wrong for the violence that later ensued to take place.  This court will never know the truthfulness of accused’s version, but unfortunately it is all we have.  It has not been shown to be false in any way.   It is trite that an accused’s version should not be dismissed merely because he is an accused, but it must be rebutted and proved to be false which has not been done in this case.  This court does have numerous questions on what exactly transpired between the 2, but unfortunately there is nobody else to tell the tale.  The court is stuck with accused’s version which is the only version.  The accused’s version is that, he came and announced himself per the state witness’s testimony, and seemingly they did not know of any suspicious issues between the 2 which is obviously what led deceased’s mother to allow deceased to go and attend to accused.  Deceased’s mother even wanted accused to put up at her homestead because of the bad weather.  She also heard them speak amicably outside.  She also did not tell the court of anything that she knew that would lead to accused killing deceased.  Something must have gone wrong by the gate there as accused says.  Accused also arpparently called the sister to come and get the money to send deceased to hospital.  It is this court’s finding that accused did act wrongfully on the date in question from the facts.

The state counsel submitted that accused be found guilty of murder with actual intent as he carried a flick knife and stabbed deceased when she had fallen.  State Counsel further submitted that the defence of self is not available to the accused.

We agree with the submission that the defence of self is not available to the accused as he had already disarmed deceased and stabbed her while she lay on the ground.  However, for this court to find accused guilty of murder with actual intent, it must be satisfied that accused desired death, death was his main aim and object or that death may not have been his main aim and object but that he continued in a conduct that would most certainly result in death. It is difficult from the facts to find that there was actual intention despite the nature of the assault because it is not shown that accused was not reacting to a misunderstanding.  The altercation that accused says occurred makes it difficult to find actual intention as accused’s moral blameworthiness is reduced by the factors that led to the stabbing.  The defence counsel submitted that accused should be found guilty of murder with constructive intent, that is, that accused had legal intention.  Legal intention is when accused does not mean to bring about death but he continues to engage in an activity after he foresees death as a real possibility.  In assessing the accused’s mental status, this court has to consider the circumstances of the commission of the offence and that there was peace when accused arrived, and when he spoke to deceased until they left for the gate.  Something must then have happened causing them to fight.  Such is unknown but accused will be given the benefit of the doubt as he has not been shown to be lying.  Although it is hard to believe that deceased attacked accused in the manner alleged, that has not been rebutted in any way and this court must use facts as presented in the court record unless dispproved.  As long as accused reacted to some misunderstanding, despite the brutality of the assault, his moral blameworthiness is affected by his judgment of the whole situation.  The state did not rebut that a misunderstanding could have occurred.  His reaction although brutal, cannot in my view be judged as being similar to that of a person sets upon a mission to kill another.

Some element of provocation does exist from the facts, that is deceased allegedly refused with his property and attacked him first, he then overreacted in an act of retaliation and stabbed deceased 5 times.  For the court to reject accused’s narration of the events preceding the stabbing it must be having another version to counter accused’s.  The correct verdict in such circumstances would be murder with constructive intent.

It is for these reasons that the accused will be found guilty of murder with constructive intent.

Sentence

The accused is convicted of murder.  He is a first offender.  He is a father of a 4 year old girl.  He has spent about a year in remand prison.  It is not clear what transpired on the day in question but accused was armed with a lethal weapon and brutally assaulted a defenceless woman causing her fatal injuries.  These courts frown at the loss of life through violence.  Although the facts do exhibit some misunderstanding, the extent of the provocation remains unclear as accused could have either fled or hit the deceased with the same log that she allegedly used.  Stabbing a woman lying down defenceless on the ground is a brutal act which in sentencing, the court must take note of the serious aggravation of such.  Life is sacred and a community should be conscientised that butchering each other to death on the slightest of misunderstandings is frowned at by these courts.  A deterrent sentence is called for due to the degree of violence exhibited.  Ordinarily, accused could have been sentenced to about 20 years imprisonment because this is a bad case of constructive intent but due to the fact that he has spent almost 1 year in remand prison, he will thus be sentenced to 19 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Mvhiringi & Associates, accused’s legal practitioners