THE State V Learnmore MOYO

### Preamble
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HB 76/20
HC (CRB) 76/20
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THE STATE

Versus

LEARNMORE MOYO

IN THE HIGH COURT OF ZIMBABWE

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

HWANGE HIGH COURT 17 MARCH 2020

Criminal Trial

B. Tshabalala for the state

N. Ndlovu for the accused

MOYO J:	Accused faces a charge of murder, it being alleged that on the 7th of June 2015 at Chidobe 2 Shopping Centre, Victoria Falls he assaulted the deceased Gabrone Ncube once on the head with a log intending to kill him.

He denies the charge.  The following were tendered into the court record;

the state summary

the defence outline

the post mortem report

the log that was used

The evidence of Tonnex Mpofu was expunged from the court record and that of Sergeant Chenjerayi and Dr Jekenya was admitted into the court record as it appears in the state summary.  Course Mpofu and Chester Mpofu gave viva voce evidence for the state.  Accused gave evidence for the defence.

The facts of this matter are fairly straight forward.  The state case is that Course Mpofu, deceased and Chester Mpofu and other persons were by a braai stand.  Accused came, having an altercation with one Elvis.  Accused wanted to assault Elvis with a log and he was restrained by Course Mpofu.  Deceased then commented that accused is the one who was wrong.  Accused then took a log and assaulted deceased who was seated.  Accused was reacting to deceased’s comments.  He also tried to pour the braai ambers on the deceased and also dragged him, he trampled on him.  The evidence of the 2 witnesses who testified in court was similar and corroborative of each other’s accounts.  Course Mpofu was related to deceased but Chester Mpofu said he knew both deceased and accused as people from his area.  Even if the defence counsel took the witness to task about what was contained in their statements to the police, this court takes note that Chester Mpofu in particular commented that he gave a statement, it was not read to him and he was made to sign.  That was not shown to be untrue in any respect.  In any event, concocted testimonies crumble during cross examination but in this instance both witnesses were adamant about what they had seen, what they had told the police and what they told the court.  No actual discrepancies were shown with regard to their testimonies.

Defence counsel also challenged them to say the trampling is not outlined by the post mortem report.  We are however not told if deceased suffered injuries as a result of the trampling.  Had the witness said so then perhaps the post mortem report would be relevant.

The accused denies that he was the aggressor on the altercation between him and deceased.  He says deceased wanted to strike him with a stool, causing him to defend himself.  Naturally, this court would not be able to choose the version of the state witnesses over that of the accused but in this case the accused’s version is found wanting in some respect.

In his defence outline paragraph 3, he talks of an altercation between himself, deceased and the patrons.  In paragraph 4, he states that deceased and other patrons were now surrounding him and threatened to assault him.  In paragraph 5, he says in the ensuing chaos, deceased then picked a wooden stool and charged at him.  That, fearing that the deceased and the other patrons would assault him and realising that he was outnumbered he then picked a log and struck deceased once on the head.

In his evidence in court however, he says he had an altercation with Elvis on their way to the braai stand and that Elvis then wanted to assault him with a broken bottle and accused then drew a log from the braai stand.  The 1st state witness held him and he took the log and put it back in the fire.  Deceased then stood up carrying a stool and said brother in law you are wrong we are supposed to assault you.  Deceased said accused must be assaulted.  Elvis had since fled.  He says he then realised that he would not be able to run away and asked why it was not possible to run away, he said there was a shop and a shed.  There are thus actual differences in accused’s case, in his defence outline he says he was being attacked by a number of people including deceased, he was under siege, causing his to act in the manner he did.  In court after hearing the evidence of the state witnesses, he decided to tell us about Elvis and the altercation they had being only 2.  He also then singles out the deceased as his fighter in his evidence in court.  Accused is clearly lying.  What is in his defence outline and what he told the court cannot be true.  Its either he was being attacked by everyone as per his defence outline or he was fighting Elvis at first and then deceased.  It is trite that if an accused lies in his defence on material respects his lies then corroborate the state case.  The accused lied on a factual aspect as to the nature of the fight and as to the reason why he felt compelled to act in the manner that he did.   In his defence outline, everyone or a number of people fought him.  In his evidence in court, it is only the deceased.

A crucial point in his defence outline is that he fought deceased in the manner that he did because he felt threatened and outnumbered by the mob and could therefore not easily escape.  In his testimony in court, he says it is the deceased only who was attacking him and that he could not flee because of a shop and a shed.  For this discrepancy in the defence case, this court is at liberty to throw away accused’s version and accept the seemingly reliable testimony by the state witnesses as to what transpired on the fateful day.

It is thus the court’s finding that there was never an unlawful attack on the accused, he simply did not like deceased’s comments and then attacked the deceased who was seated.  In this unprovoked attack, it is also the finding of this court that accused did act wrongfully on the date in question and from his conduct he must have foreseen death as a real possibility.  It is for these reasons that the accused will be convicted of murder with constructive intent

Sentence

The accused is convicted of murder, he is a first offender.  He has a minor child.  This is one case where a senseless attack was made on an elderly person who had done no wrong.  Life was lost unnecessarily due to accused’s unbecoming conduct.  Beer drinking places should be for merry making and not places of slaughter.  Accused behaved in a rowdy manner on the date in question.  It is from these reasons that this court finds that an appropriate sentence will be that the accused be sentence to 18 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Mvhiringi & Associates, state’s legal practitioners