THE State V Mphathisi Sibanda

### Preamble
1
HB 97-19
HC (CRB) 100/18
XREF ENTUMBANE CR 97/7/13
XREF WEST COMM/ENT 335/13
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THE STATE

versus

MPHATHISI SIBANDA

HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Mr O Dewa and Mr E Mashingaidze

BULAWAYO 6 AND 7 JUNE 2019

Criminal Trial

T Muduma for the state

Ms M Mutshina for the accused

MABHIKWA J:	The accused who was 28 years old at the time the deceased met his death, is facing a charge of murder as defined in section 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused resided at house number 30549 Entumbane Township, Bulawayo whilst the deceased resided at house number 30098/6 Entumbane, Bulawayo.

It was the state case that on 26 July 2013 at around 0300 hours, the accused was drinking beer with a friend at house number 30187/26 Entumbane, Bulawayo where one Erika Sigauke operated a Sheeben.  The deceased was also at the same shebeen in the company of his friend, one Nhlonipho Mhlanga.

At same point, Mhlanga was accused of having attempted to steal from the accused by pickpocketing.  Earlier on at the time of their arrival, Erika Sigauke had initially denied the two entry into her shebeen because of Mhlanga’s known pick pocketing skills.  However, the deceased had begged Erika to allow them into the shebeen promising to keep his friend in check.  After the attempt to steal from the accused, Erica ordered both the deceased and Mhlanga out of her house.  As soon as they got out of the yard, she locked the gate but the two then threw stonesat the house.  This agreed the accused who stormed out of the house and charged towards the deceased and Mhlanga.

It was the state’s allegations that the accused then assaulted the deceased with a brick once on the head and also tripped him to the ground kicking him all over the body and left him lying unconscious.  He was taken back into the shebeen.  He was ferried to Mpilo Hospital the following morning at about 0600 hours in a taxi.  He died seven (7) days later on 2 August 2013 having been transferred to Harare for a surgical operation.

The state produced exhibits 3 and 4 respectively being the accused’s confirmed warned and cautioned statement as well as post mortem number 942/13.

The accused pleaded not guilty to the charge.  In his defence outline, he stated that he did not know the deceased prior to the fatal incident.  He stated further that he arrived at the said shebeen at around 8pm and continued drinking beer as he had been drinking in the afternoon with friends.  He states that whilst so drinking, he caught the deceased and Mhlanga in the act “searching him” colloquially meaning the act of pickpocketing.   A misunderstanding ensued which led them to be thrown out of the shebeen because of violence.  While outside, the deceased and Mhlanga threw stones at the house.

The accused states that he then proceeded to the gate and the two rogues threw stones at him.  He states at paragraph 8 of his outline that whilst outside the gate, he “fought” with the deceased and his friend Mhlanga.  The deceased then went across the road and threw stones again, accidentally striking his own friend Mhlanga who then fell down.  He states further at paragraph 10 of his outline that he again followed the deceased who started running away but he caught up with him.  He says they “fought” again for a short period of time.  Again the deceased picked up a stone, struck him above the left eye and fled.  It is the accused’s averment in the outline that while fleeing, the deceased fell down and he left him there lying down.  He states at paragraph 12 that in “the fight”, he did not use a weapon but it was the deceased and Mhlanga who were throwing stones at him.  He thus prayed for an acquittal on the murder charges.  The state led viva voce evidence from one witness (Zethi Nyoni).  The witness testified that at the material time, he was employed at Dube car park, opposite the house where Erica operated a shebeen.  He worked night shifts from 600 pm to 6am.  He knew the accused as a local man at Entumbane, but did not know the deceased during his lifetime.  He testified that on the fateful day, there was music playing at Erica’s place.

At around 0100 hours, the witness then heard the sound of people fighting. He also heard some shouting emanating from that place and someone exclaimed

“Mphathisi uzabulala umuntu, Mphathisi uzabulala umuntu” meaning “Mphathisi, you will kill someone, Mphathisi you will kill someone.”

The witness thereafter saw 3 men from that house running and chasing after each other.  They chased each other down to Zothile shops and he did not see what transpired there.  The witness said his place had no lights and was shadowed by a wall and some trees.  As a result, he did not see exactly who was chasing who.  He however said there was no other altercation at that place other than the one he witnessed.

After the evidence of Zeth iNyoni and very brief cross examination, the state produced by consent in terms of section 314 of the Criminal Procedure and Evidence Act, [Chapter 9:07], the evidence of Erica Sigauke as it appears in the outline of the state case.

That evidence is to the effect that Erica knew both the accused and the deceased as patrons at her shebeen which she operated from her house number 30187/26 Entumbane, Bulawayo on the fateful day, the accused and his friend Mkhululi Masuku arrived at her house and started drinking at around 1900 hours.

At around 2200 hours, the deceased and his friend Nhlonipho Mhlanga also arrived.  The witness initially denied them entry because of Nhlonipho Mhlanga’s propensity for pick pocketing but let them stay after the deceased had begged the witness to allow them in, promising to control Mhlanga and keep him in check.

The deceased appeared drunk and sat in the sitting room where the witness was sitting with the accused and his friend.

On 26 July 2013 between 0100 and 0200 hours, the accused approached her and complained that Nhlonipho Mhlanga had attempted to steal from him.  The witness in turn told the deceased, who also reprimanded Mhlanga, even pouring beer over his face. Erica nonetheless ordered the deceased and Mhlanga to leave her house.  Nhlonipho refused to leave the house even after the deceased had said they should leave.  The refusal by Nhlonipho angered the accused who stood up and pulled him out of the house with the deceased following behind.

A few minutes later, the accused returned but whilst they were seated, stones were thrown to the house shattering three (3) window panes.  The witness and the accused went out to investigate whilst Mkhululi Masuku, who was very drunk, remained in the house.

Whilst inside the house the witness heard someone exclaim in the Ndebele language

“Mphathisi uzabulala umuntu” meaning Mphathisi you will kill someone.”

The witness then phoned Dalubuhle Ngwenya who was with Sihosi Billiant to assist in restraining the accused.

After a while, the accused, together with other patrons returned to the house.  Another patron again remarked.

“Mphathisi uzabulala umuntu, ungalwi njalo” meaning “Mphathisi, you could kill someone, you must not fight like that.”

AS the patrons started leaving, George Mguni observed the deceased lying motionless outside the gate.  He was ultimately carried into the house, it initially being assumed that he was very drunk.  However, his relatives were called in the early hours of the morning and he was ferried to Mpilo Hospital by taxi.

The state also produced by consent in terms of section 314 of the Criminal Procedure and Evidence Act, the evidence of Tonderai Beto who is an attested member of the Zimbabwe Republic Police stationed at Entumbane.  He was assigned to investigate this case and recorded a warned and cautioned statement from the accused, which statement the accused made freely and voluntarily.  The said statement was later confirmed by the accused before a magistrate in court.

Having examined the deceased’s remains, Dr Gabriel Agneso in post mortem number 942/13 formed the opinion that the cause of death was:

a)	Severe head injury

b)	Subdural Hermatoma

c)	Assault

It has been submitted and argued in this case that the evidence adduced by the state and coming from a single witness is purely circumstantial with no direct evidence linking the accused to the commission of the offence in that no witness testified that they saw the accused assault the deceased.

Circumstantial evidence is allowed in our legal system’s law of evidence where there are sufficient proven facts from which the only inference from those facts is the accused’s guilt.  The inference should be the only possible and reasonable inference that can be drawn from such facts.  In other words, if there are two or more possible and reasonable inferences that may be drawn from the same proven facts, then the court is not entitled to draw any inference from them see S v Blom – 1939 AD 188.

In casu, the following proven facts are pertinent.

1.	That the accused was present at the scene where the deceased suffered the fatal injuries.

2.	That the accused had altercations with the deceased and “fought” with him at least twice.

3.	That there was throwing of stones during the fight.

4.	That more than once, patrons were heard exclaiming that the accused would/could kill someone from the way he was fighting “Mphathisi uzabulala umuntu” and “Mphathisi uzabulala umuntu, ungalwi njalo”

5.	The accused was the last person to be in physical contact or combat with the deceased before he left him lying motionless until he (deceased was) picked up still lying motionless and was ultimately placed onto a bed in the house before he was transpired to Mpilo Hospital by taxi early in the morning.

6.	That the deceased’s health deteriorated and he remained hospitalized until he succumbed to his death 7 days later on 2 August 2013.

The state witness was a complete on looker who was minding his own business at a place other than the exact scene of crime.  He in fact was known to the accused and not the deceased.  He has nothing to gain by lying to the court.  He had no reason to falsify his testimony in whatever way.  He indeed did not seek to exaggerate his evidence.  This is an offence that took place in the dead of the night and with stones being thrown.  His point of guard was unlit and shadowy.  He was obviously cautious himself not to draw too clause to the danger of the fight.  But he was emphatic that what he witnessed was a fight with people chasing each other.  He was also emphatic and clear that there was an exclamation of a person warning the accused that he would kill someone.  See also State v Irvene Moyo HB 30/18.  We cannot see how else there would be such an exclamation if the accused was not fighting in a dangerous way and overpowering whoever he was fighting.  We are convinced that this was the deceased.

In any case, the above evidence was corroborated by the evidence of Erica Sigauke admitted in terms of section 314 of the Criminal Procedure and Evidence Act.

It was further corroborated by the accused’s own defence outline particularly paragraphs 7, 8, 10 and 11 thereof, as well as the accused’s confirmed warned and cautioned statement produced and admitted of course in terms of section 256 (2) as read with section 113 of the Criminal Procedure and Evidence Act.

The accused was also the only witness in his own case.  He did not make a good witness.  It was clear that having realized that the state had not called certain witnesses, he decided to embellish his evidence to suit and answer the evidence led by the only state witness.  However the “panel-beating” of his evidence was his undoing.  In the final analysis, it seriously dented his credibility.

The accused gave the impression in his viva voce evidence that he and his friend Mkhululi got to the shebeen around 8pm.  The deceased and his friend arrived about three (3) hours later.  Whilst they were drinking, the deceased and Nhlonipho Mhlanga stood up as if intending to go to the toilet.  As they passed where he and Mkhululi were seated, one of them attempted to pick pocket from him.  They had an altercation as he asked what the culprit was doing with his hand in accused’s pocket.  He narrated to the shebeen owner what had transpired but she chased them all out saying she did not want any noise and violence in the yard.  He says as they walked out, the two culprits were walking in front of him.  Outside, they started accusing him of having heaved as if he owned the shebeen.  Another misunderstanding ensued when they had told him “Now that we are outside, we will fight you.”

He states that he and Nhlonipho started “manhandling” each other.  The deceased went to the other side of the road and threw stones accidentally striking his friend Mhlanga with one of them.  Nhlonipho Mhlanga allegedly fell down and there is no evidence about him thereafter.

The accused said he ran across towards the deceased who continued throwing stones at him.  When he got on the other side, the deceased ran around a tree.  At some point he (deceased) picked up a stone and struck him above the left eye.  He fell down.  He says apparently after striking him with a stone, deceased then tried to run away but fell down some few metres away.

When the accused himself got up, he says he noticed that the deceased had fallen down.  He says, the deceased must have hit against a rock when he fell and injured himself.  He got to where the deceased was, got hold of him and could just tell that the deceased was injured though he could not point to a specific injury or injuries.  He left the deceased lying there.

As already stated above, the accused in court embellished his evidence, completely down playing his role to the extent that the accused person in his defence outline, and in the police recorded statement is completely different from the person who testified in court.   For instance, in his recorded and confirmed statement as well as his defence outline, the accused used the term “we fought” on at least three (3) occasions.

1)	In his testimony, he chose to use the term “we manhandled” each other.  When asked what he meant, he explained that they did not fight but each time, they would just “hold, shove and push” each other.

2)	In his defence outline, statement and evidence of Erica in the outline, he was a Macho man following and fighting these two (2) nuisance makers.  In his testimony, he becomes a sheep, a saint, if not an angel.  Despite being wronged in the attempt to steal his phone and further being pelted and actually struck by a stone, he says he continued to follow the deceased simply to “apologize and tell him that what he was doing was wrong and we might end up injuring each other.”

3.	According to his testimony, the deceased was a vicious attacker.  First, shattering three window panes of Erica’s house, with patrons inside.  No one died there.  He struck his own friend Nhlonipho Mhlanga who fell down from the strike but he too did not die.  He also struck the accused himself again with a stone above the eye and he fell down but again did not die, yet somehow he, (the deceased), supposedly dies from a simple fall on his own.

4.	Having seen and touched the same person to whom he supposedly wanted to apologise moments earlier and make peace with him, and realizing that he was lying injured and motionless, he surprisingly went back to the shebeen and said nothing to the others but continued drinking.

Surely, in the circumstances portrayed above, expecting the court to believe such a story is to reduce this court to one that believes anything, even the fictitious children’s animated cartoon videos.

It is for this reason that the accused’s testimony then left a lot of glaring questions

unanswered.  For instance,

a)	why would there be the exclamation that “Mphathisi you will kill someone” if accused was not assaulting someone?

b)	Why would accused continue to follow the deceased and Nhlonipho if he was not fighting them?

c)	Why would the deceased run round a tree if the accused was not attacking him?

For the above reasons, the accused story is not only improbably but false.  The court finds that the accused fought and fatally injured the deceased.

The court however still took note of the fact that the accused had been very much provoked by the deceased and Nhlonipho.  First they attempted to steal his phone.  Thereafter they threw stones and possibly dared him to a fight as he alleges.  Both sets appear to have been drunk.  Evidence is that the accused started drinking beer in the afternoon and continued at the shebeen from around 7 or 8pm.  The incident happened after a further 3 to 4 hours of beer drinking.

The court also notes that there is indeed no direct evidence as to what exactly the accused did in the fight particularly the stone throwing.  From Zethi’s evidence, the accused was probably taking shots in the dark.

Further, the court notes that the incident took place during the cold July nights.  Deceased then lay in the cold for sometime before being taken into the house.  A further delay took place until around 6am when he was ferried to Mpilo.  His health deteriorated and an operation became necessary but it could only be performed in Harare.  The deceased eventually succumbed to his death in Harare exactly seven (7) days later before the operation was performed on him.

In those circumstances it is our finding that it cannot be concluded without doubt, that the accused had an intention to kill the deceased whether by way of dolus directus or dolus eventualis.

The accused must naturally have been incensed by the conduct of the deceased and his friend.  After the prolonged provocation and disrespect, he must have reacted but was negligent in his “fights” with the deceased, and this negligently caused the demise of the deceased.

Accordingly the accused is found not guilty of the murder charge but guilty of culpable homicide.

Sentence

In assessing sentence, the court will take into account the following:

1)	That the accused is now 34 years old.  The incident occurred when he was 28 years old and he has had to wait for 6 years for the wheels of justice to grind whilst the offence was hanging over his head.

2)	He has a young family to look after and is a first offender.

3)	Both counsel advised that the accused has been remorseful and contrite in that he

a)	religiously co-operated with the authorities and attended court without fail since 2013.

b)	he and his family are said to have assisted deceased’s family during the bereavement in bearing the expense of transporting the deceased’s body from Harare to Bulawayo. They also bought the deceased’s coffin as well as providing food and transport for the mourners during the funeral.  This, of course does not erase the loss of life.  This was an apology and compensation in a small way but also some form of cultural family cleansing and appeasement.

4)	The court will consider also the provocation and disrespect shown by the deceased and Mhlanga towards the accused and that accused may have naturally snapped and eventually acted in the manner he did, albeit negligently causing death.

5)	The court will also consider that the accused was intoxicated thereby compromising his sense of rational judgment at the same time exacerbating the degree of negligence on his part.

The court however frowns at every loss of a life no matter the circumstances.  Life is sacred and possibly that is the reason there is a funeral and mourners each time a life is lost, even for those considered as criminals by society.  That one is a rogue or a nuisance does not justify the taking away of his life.  In any case, in the circumstances of this case, it is possible that the deceased was not that much of a rogue himself.  Fingers from the evidence point more to the survivor, Nhlonipho Mhlanga.  Those who unnecessarily cause loss of life should know that they would be visited with exemplary sentences.

The accused’s personal circumstances, the circumstances under which the offence was committed and the interests of society shall all be blended into a delicate balance to constitute the interests of justice.

The court will temper justice with some measure of mercy, by imposing  a sentence based on a restorative rather than retributive justice in the hope that the accused will, after the sentence, pick up the pieces of his life and follow a path of good virtue.

Accordingly, the accused is sentenced to 7 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition he does not within that period commit any offence involving violence, for which he is sentenced to imprisonment without the option of a fine.

Effective sentence- 4 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Messrs T Hara and Partners, accused’s legal practitioners