THE State V Munyaradzi Nyoni

### Preamble
1
HB 110.20
HC (CRB) 92/19
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THE STATE

Versus

MUNYARADZI NYONI

IN THE HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mr J Sobantu and Mrs A Moyo

BULAWAYO 22 AND 27 MAY 2020

Criminal Trial

T Muduma, for the state

Miss T Nyathi, for the accused

MAKONESE J:		The 41 year old accused appears in this court facing a charge of murder in contravention of section 47 (1) (a) of the Criminal Law Codification and Reform Act (Chapter 9:23).  The accused denies the allegations.  The accused avers that he struck the deceased once in the head.  He contends that he did so in self defence.

The facts surrounding the commission of the offence are that on the 26th September 2018 and at around 2100 hours the deceased and his girlfriend Sibonisiwe Mpofu were walking along a footpath behind Magwegwe Water Reservoir, Bulawayo.  At that same time  accused confronted the deceased and his companion and without saying a word attacked the deceased with a brick on the head.  The deceased fell down.  The accused threatened Sibonisiwe and ordered her to sit down.  The accused searched Sibonisiwe’s handbag and deceased’s satchel.  Accused stole a Huawei cellphone, Mobicel Tablet and a Nokia cellphone, belonging to his victims.  Accused further assaulted the deceased several times on the head with a brick before fleeing the scene with the stolen loot.  Sibonisiwe managed to escape from the scene.  The deceased who had fallen unconscious was picked up from the scene and taken to Mpilo Central Hospital by passer-bys.  He later died from injuries sustained in the attack.

On 5th October 2018 information was received leading to the recovery of the Huawei cellphone belonging to Sibonisiwe Mpofu.  The cellphone had been sold to Nkazimulo Dube by the accused.  At around 1200 hrs on the same day the accused was arrested at the Renkini Bus Terminus, Bulawayo. Upon his arrest accused was searched by police detectives.  A black Mobicel tablet belonging to Sibonisiwe was recovered.  Accused subsequently led the police to his residence where a maroon satchel bag was recovered.  Further investigations resulted to the recovery of a red Nokia cellphone that had been donated to accused’s girlfriend, one Ethel Dhliwayo by the accused person soon after the commission of the offence.

The accused tendered into the record a defence outline in the following terms:-

“……….

Accused will plead not guilty to all counts and state as follows:-

Accused was on his way from Basics Supermarket along with his girlfriend whom at the time was allegedly dating the deceased (emphasis added)

He will state that as he was carrying his girlfriend’s handbag he was approached by three men, including the deceased who accused him of having stolen their girlfriend who was at the time in the company of the accused.

One of the three men hit the accused on the head with a bottle while the other men stabbed and assaulted him while on the ground.  Accused bears the scars to that effect.

Accused will further state that he managed to free himself from the aggressors who were still in pursuit and picked up a brick in the process hitting the deceased in a quest to vent off the attack.

He will state that he had no intention whatsoever to hit, let alone to kill the deceased as his actions were solely to defend himself from the attack that was imminent.

He will state that the statement he made to the police was not made freely nor voluntarily

……………..”

The state tendered a Post Mortem Report compiled by Doctor S Zvapano following an examination of the remains of the deceased.  The cause of death is listed as:

Subdural haematoma

Severe head injury (skull fracture)

Callous murder

On external examination, the Post Mortem reveals that the deceased had facial abrasions, a deep cut 4.5cm on the left parietal.  An examination of the skull further revealed that there was a fracture 6cm long and 3mm wide on the left parietal with associated multiple fragmental fractures.  There was evidence of massive left parietal subdural haematoma, with midline shift to the right.  On other remarks, the report reflects that the skull fracture could have been caused by a metallic like object such as an axe.  Severe force must have been used to cause such injury.  The Post Mortem was filed under PM Number 348/214/2018.

The state then tendered a black Huawei cellphone being serial number IMEI 354759001687469 as an exhibit.  A black Mobicel Tablet phone bearing serial number IMEI 3543700613990206 was also tendered as an exhibit.  A red Nokia cellphone serial number IMEI 358250-0376744827 was tendered as an exhibit.  The state produced a maroon satchel bag as its last exhibit.

State Case

The state led viva voce evidence, from its first witness SIBONISIWE MPOFU.  She was the main witness for the state.  She was at the crime scene on the fateful night.  She was present when the accused person attacked the deceased, her boyfriend.  She was unable to identify the accused on the night of this attack as it was dark.  She narrated that in the evening hours on the date of the attack she was taking a stroll along a footpath near Magwegwe Water Reservoir.  She was in the company of the deceased.  The accused came from behind them.She thought he would pass them.  They opened the way for him.  Accused who was armed with a brick hit the deceased once on the head.  The deceased immediately fell to the ground.  The accused continued to assault the deceased on the head several times as the deceased lay on the ground motionless.  Accused threatened to assault the witness after she pleaded with the accused to stop the assault.  Accused turned onto the witness and attacked her on the head with the brick and she fell unconscious. When the witness gained consciousness she observed that accused was still assaulting the deceased.  Accused demanded that she surrender all the cash she had to him.  The witness indicated that she had no money on her person.  Accused searched her hand bag and deceased’s satchel and took a Mobicel Tablet phone, a red Nokia phone and Huawei cellphone, black in colour.  The witness managed to escape and made a report at Magwegwe Police Station.  The witness returned to the scene in the company of police details only to discover that the deceased had been removed from the scene.  The accused was nowhere in sight.  The witness was later informed that the deceased had died at Mpilo Central Hospital on the 2nd October 2018.

We found the evidence of this witness to be credible and reliable.  She gave her evidence comfortably and was not contradicted in any material respects under cross-examination.  We accept her evidence as an accurate reflection of the events, as she perceived them on the day in question.  She identified the mobile phones and the satchel that were produced as exhibits as the items stolen by her assailant on the night of the attack.  This witness denied that she was in a love relationship with the accused.  She did not know accused prior to this offence.

The state led evidence from its second witness NKAZIMULO DUBE.  On the 2nd October 2018 and around 1400 hrs the witness was at Renkini Bus Terminus, Bulawayo.  The accused approached him and offered for sale a Huawei cellphone, black in colour.  The accused wanted Z$40 Bond.  The witness negotiated with accused and paid Z$30 Bond for this phone.  The witness inserted a new phone sim card and began using the phone.  On the 5th October 2018 police detectives confronted the witness and quizzed him about the mobile phone.  The witness handed over the phone to the police.  The accused informed the police that he had bought the phone from the accused person.  The police instructed the witness to phone the accused.  This witness called the called person leading to his arrest.  The accused admitted having sold the phone to this witness.

The evidence of this witness was clear and credible.  He was not controverted in any material respects under cross examination.  He has confirmed that he had known the accused for a period of three months before the commission of the offence.  The witness had no motivation to lie against the accused.

The state sought formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07).  The evidence of the under listed witnesses was admitted into record as it appears in the summary of the state case, namely:

ALFRED LUTHULI

STEPHEN CHADA

ETHEL DHLIWAYO

MATHEW MABUNGU

DAVID MADYAUTA

BUKHOSI M NCUBE

DOCTOR ZVAPANO

The state counsel closed its case without leading further evidence.

Defence Case

MUNYARADZI NYONI

The accused gave evidence under oath.  He adhered to his defence outline.  He averred that on the day in question he had gone to MaMkwananzi Bar in Old Lobengula where he met Sibonisiwe Mpofu the first witness.  He alleged that Sibonisiwe who was known to him as MaMpofu was a lady of the night who plied her trade at the beer garden.  Accused indicated that he had proposed love to the witness.  They negotiated to have a sexual encounter for a fee of R50.  Accused alleged that he had left the bar in the company of his new found love in search of a spot to enjoy and have sex with Sibonisiwe.  At this stage of his oral testimony, accused appeared to somewhat depart from his defence outline.  Accused stated that he was confronted by three men.  One of these men claimed that he had stolen his girlfriend.  The three men attacked him.  The deceased threw a stone at the accused.  In retaliation, the accused took a brick and struck the deceased once on the head.  The accused denied that he had struck the deceased repeatedly with a brick.  This, despite the fact that the Post Mortem report clearly shows that the deceased sustained multiple skull fractures.  The accused suggested that deceased sustained the fatal head injuries when he hit his head on the hard ground.  He even suggested that the place where deceased fell was rocky.

What became evident is that accused’s version in the defence outline was not consistent with his oral evidence.  To begin with, in his defence outline, the accused indicates that Sibonisiwe was his girlfriend.  In his evidence in-chief, the accused averred that Sibonisiwe was a lady of the night whom he met at MaMkwananzi Bar.  In his defence outline, accused gives the impression that he was on his way to Basic Supermarket when he was attacked by deceased and his companions.  In his evidence under oath, accused narrates that he had left the supermarket when he was confronted and attacked by the deceased.  The deceased and Sibonisiwe were at a secluded place, on their own.  The accused’s entire version of events was clearly a tissue of lies designed to mislead the court.  His suggestion that he launched an attack on the deceased in self defence is simply untrue.  The requirements for the defence of self defence are codified in our law in terms of section 253 of the Criminal Law Codification and Reform Act.  The requirements may be summarised as follows:

The accused was warding off an unlawful attack.

The unlawful attack had commenced or was imminent.

The force used to repel his attack was reasonable and not disproportionate to the unlawful attack.

These requirements for the self defence are set out in several decided cases in this jurisdiction.  See:  State v Ncube SC 229/12, State v Nkomo SC 55/12, State v Moyo HB 19/7, State v Mudenda HB 66/15.

ANALYSIS OF EVIDENCE

In analyzing the evidence presented in court there can be no doubt that the accused attacked the deceased on the head several times.  The injuries reflected in the Post Mortem are evidently serious.  The degree of force used was severe.  Sibonisiwe testified that accused attacked the deceased on the head several times whilst he lay on the ground.  The accused was clearly the aggressor and not the victim.    I agree with state counsel Mr Muduma, that there was an element of pre-meditation.  The accused’s defence is not only false, but beyond doubt palpably false.  We reject his defence without hesitation.  The accused not only foresaw death as a substantial possibility but desired to bring about the death of the deceased.  After immobilizing the deceased, the accused robbed the victims of mobile cellphones and a satchel bag.  The property stolen from the deceased and his girlfriend was linked to the accused person.  The Huawei cellphone was sold to NKAZIMULO DUBE by the accused.  The Nokia mobile phone was donated to ETHEL DHLIWAYO by the accused.  The accused placed himself at the scene of the crime by admitting that he struck the deceased.  The only issue for determination is whether the accused lacked the necessary mens rea to murder his victim.

On the evidence led, we are satisfied that the state succeeded in proving that the accused intended to kill his victim. Once deceased was on the ground, the accused continued his vicious attack. He did not relent. His aim and motive was to bring about the death of the deceased. The injuries in the Post Mortem suggest that accused used severe force. Accused directed the blows at the head.

In the result, and accordingly, accused is found guilty of murder with actual intent.

Sentence

The accused has been convicted of a very serious offence.  This was murder committed in aggravating circumstances.  The murder was pre-meditated and carried out in pursuance of a robbery.  It is sad that lives continue to be lost as a result of robbers who attack their victims to steal gadgets such as cellphones, which they go on to sell for as little as Z$30 Bond.   The accused attacked his victims viciously and with extreme brutality.  He repeatedly struck the deceased with a brick on the head leading to fatal head injuries.  The deceased must have endured a slow and painful death.  The deceased’s girlfriend was lucky to escape with less serious injuries.

In assessing an appropriate sentence, we take into account all the mitigating features of the case as outlined by accused’s defence counsel, Ms Nyathi.  We shall take into account that the accused is a first offender  who has already spent 1½ years in remand custody pending trial.  The accused has the usual family responsibilities.

We did not however detect any flicker of remorse on the accused’s part throughout the proceedings.  He   pursued a false and hopeless defence to the bitter end.  These courts would fail in their duty to protect the sanctity of human life if lenient sentences were imposed where life is callously and needlessly lost.  The 22 year old deceased was studying Chemistry at the National University of Science and Technology.  The accused chose to end his life prematurely.

The sentence this court shall impose must reflect the seriousness of the offence.  The court shall however in this instance save the accused from the ultimate sentence of the death penalty for the sole reason that accused admitted attacking the deceased. He did not entirely distance himself from the attack.  It is our view, that because the murder was committed during the course of a robbery, the only appropriate sentence other than the death sentence is as follows;

Sentence

“Accused is sentenced to Life Imprisonment.”

National Prosecuting Authority, state’s legal practitioners

Messrs Shenje and Company, accused’s legal practitioners