THE State V Nkosilathi MOYO

### Preamble
1
HB 161/20
HC (CRB) 81/20
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THE STATE

Versus

NKOSILATHI MOYO

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J with Assessors Mr. J. Sobantu and Mr. P Damba

BULAWAYO 28, 29 JULY AND 3 AUGUST 2020

Criminal Trial

B. Maphosa, for the state

B.C.Dube, with R. Mafirakureva for the accused

DUBE-BANDA J: The accused Mr Nkosilathi Moyo, is indicted before us for the murder of the deceased person. He was arraigned on 28 July 2020 on a charge of murder as defined in section 47 of the Criminal law [Codification and Reform] Act Chapter 9:23. It being alleged that on the 29th August 2018 and at house number 9136 Methodist Village, Bulawayo, the accused person unlawfully caused the death of Marvellous Ncube (who shall henceforth be referred to as the deceased)by striking him with a knobkerrie on the left side of the forehead intending to kill him or realising that there is a risk or possibility that his conduct may cause death, but continued to engage in that conduct despite the risk of possibility of death.

The accused pleaded not guilty to the charge. He was legally represented throughout the trial. The State called two witnesses whilst the accused testified in his own defence.  At the commencement of the trial certain documentary and real exhibits were placed before court by consent, these are:

1. Summary of the state case, marked Annexure “A”

2. Accused’s defence outline, marked Annexure “B”

3. An affidavit statement in terms of section 278(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] deposed to by Sehliselo Khumalo, marked Exhibit 1.

4. Post mortem report number 838-837-2018, marked Exhibit 2.

5.  Accused’s confirmed warned and cautioned statement, marked Exhibit 3.

6. A pink knobkerrie weighing 0. 645kg kilograms, Exhibit 5.

7.  Hammer with a metal handle coated with rubber with an iron head, Exhibit 6.

At the conclusion of the state case, the prosecutor sought admissions from the accused in terms of section 314 of the Criminal Procedure & Evidence Act [Chapter 9:07], these related to the evidence of certain witnesses as contained in the summary of the state case, i.e. the evidence of the following: Zamani Never Ncube; Petros Mahlangu; Budget Ndiweni; Thokozani Moyo and Linda Nyika. The admissions were duly made hence dispensing with the need for the prosecutor to lead evidence from these witnesses.

Summaries of evidence

For completeness we first provide a detailed summary of the evidence given by all the witnesses who testified in this trial. We start with State witnesses and end with the evidence of the accused.

The witnesses for the State:

The first witness for the State was Mr Blessmore Moyo. He testified thaton the 28 August 2018 at approximately 1 o’clock in the afternoon, he and the deceased went to the local shops to buy mealie meal.  They found the accused person seated at the shops. The deceased proceeded to poke the accused with his finger. The witness asked the deceased to stop poking the accused. The witness pulled the deceased away from the accused. After the witness and the deceased left, the accused stood up and said to the deceased that ‘you shall see.’ The deceased returned to the accused and a fight started between the two of them. They fought using bare hands. The accused picked up some stones and threw them at the deceased. The witness pulled the deceased and said let us go home.

The deceased and the witness went to their home. Around evening time two ladies asked the witness and the deceased to accompany them to buy beer at the accused’s home. When they got to the accused’s homestead, the witness and the ladies remained outside the yard, while deceased and one Mthokozisi got inside the yard. Mthokozisi returned to the gate and said to the witness that the money they had was not enough to buy beer. The witness got up and followed Mthokozisi inside the yard and that is when the witness says he heard the accused saying to his mother ‘mother I have killed someone.’

At that point the witness avers that the two ladies who had remained outside the yard got into the yard. The witness and the others then saw the deceased lying on the ground. The witness did not observe any injuries on the deceased, but saw some blood on his forehead. The accused had run to the kitchen to collect some water. He came with a twenty litre container of water.The accused came carrying a knobkerrie, a torch and a bucket of water.

This witness told the court that he saw the hammer, Exhibit 6 for the first time the following morning, i.e. after it had been removed from the deceased’s house by the police. According to the witness, he did not know that the deceased was going to accused’s home for a fight, to him the mission was to go and buy beer. This witness contends that the deceased wanted to continue the fight with the accused, which fight had started in the afternoon. The witness did not see any weapon in the hands of the deceased. He only heard accused saying ‘mother I have killed someone.’

During cross examination this witness said in the evening he did not witness the fight between the accused and the deceased. He merely heard the accused saying “mother I have killed someone.” It was put to the witness that it is was deceased who first hit accused with a hammer. The witness said he could not dispute this. It was put to him that the accused hit the deceased in self-defence, the witness did not dispute this assertion. He said the deceased had a grudge emanating from the fight that occurred between him and the accused in the afternoon. The witness confirmed that when the accused came with water to pour on the deceased to try and resuscitate him, it was dark that is why accused was carrying a torch. The   witness said he did not see the hammer that evening.

In cross examination, the witness confirmed that indeed it was the deceased who during the day poked the accused. He says the accused did not provoke the deceased. He said during the afternoon incident, the deceased followed the accused and assaulted him. The accused had to be saved by the villagers. The deceased had become too violent that the villagers had to intercede and protect the accused. The accused had to seek refuge from a certain homestead, but the deceased continued pursuing him. This witness told the court that the accused picked stones and threw them at the deceased, but deceased kept pursuing the accused. On being questioned by the court, this witness said the deceased was owing accused some money. The deceased was poking accused with his finger and saying ‘I will beat you up young man.’

The State presented the evidence of Lungisani Tshuma. He is a police officer and attached to the Criminal Investigations Department – Homicide Section. He hails from the same village as accused and deceased. He knew both the accused and the deceased growing up as young boys in the village. He recovered the body of the deceased, and found a hammer under deceased’s pillow. The hammer is before court as exhibit 6. He arrested the accused for the crime of murder.

According to this witness, the accused told him that the deceased was armed with a hammer. He said he was further told by other witnesses, who were not called to testify that the deceased was armed with a hammer. That is the reason why he recovered the hammer and itemised it as an exhibit.

The sate closed its case.

Defence witnesses

The accused testified in his own defence. He told the court that he is 21 years old, and was 19 years when the crime was allegedly committed. He knew the deceased, he used to stay in the neighbourhood. He said on the fateful day he was at the local shopping centre waiting for soccer players to turn up. While he was at the shops the deceased came in the company of Blessmore Moyo. The deceased bought a 5 kg maize meal bagand abeer called calabash. The deceased approached the accused and alleged that ‘you are belittling me.’ The deceased then hit accused with a bag of maize mealwhich he was carrying. He then poked accused with his figure saying he was belittling him. He slapped the accused. Accused said he left, when he was 30 to 40 metres away, the deceased followed him. Accused avers that he jumped a hedge and entered a certain homestead, deceased pursued him into that homestead. The deceased was armed with a knobkerrie. Accused says he tried to run away, deceased caught up with him in that homestead. The accused avers that at that time, most people were seeing what was happening and started to gather at the scene. An elderly person called Sodumo came and asked the deceased to leave that homestead. Accused was escorted by some people to another homestead. When the deceased left, accused says he then went to his home.

Accused avers that at approximately between 7 p.m. and 8 p.m., he saw people entering their homestead where he stays with his mother. These people were wearing long jackets. He realised that it was deceased and one Mthokozisi. He said when the two got into the homestead, they proceeded to his mother’s hut. Accused say at that time he was standing at the door of his mother’s hut. The two called accused’s mother and said they wanted to buy beer called double punch. The accused says the two did not talk to him, he then proceeded to sit at the door step of his hut. He says the distance between his mother’s hut and his hut is between 6 to 7 metres. Accused says he heard the two saying they wanted beer but did not have enough money, the money that they had was less by 20 cents.

The two left the homestead, when they were at the gate the deceased returned and went straight to where the accused was sitting, i.e. at the door step of his hut. He avers that the deceased asked him as follows ‘are you serious about what you did in the afternoon.’ The deceased was approximately two metres away from where the accused was sitting. Accused said he asked the deceased what he meant, because it was the deceased who had assaulted accused in the afternoon. According to the accused, the deceased repeated the allegation that accused was belittling him.

Accused contends while deceased was speaking, he saw him producing a weapon underneath his jacket. The accused believed that deceased intended to hit him with the weapon. Accused says it is at that point that he then pulled a knobkerrie from the roof of his hut. He says he hit the deceased with that knobkerrie, before the deceased could hit him. He says he hit him once and he fell down. Accused ran to collect water to resuscitate him. He saw the hammer next to the deceased, when he came with a bucket of water. It was dark so he used a torch. He was shown Exhibit 6, the hammer, he confirmed that it is the same hammer he saw next to the deceased. He avers that he does not know what happened to the hammer, when the deceased was taken away by his friends who he had come with. Accused says he was afraid of the deceased, because the deceased had beaten him up during the day, and he was coming to beat him up again now at his homestead.

During cross examination, accused conceded that the deceased died of the injuries caused by him. When asked why he hit the head, he said the incident happened so fast, he did not intend to hit the head. He was afraid as the deceased was advancing towards him. It was put to him that he used excessive force, he agreed. Accused contends that he was defending himself, because the deceased could have killed him. He was asked why he did not strike the hand that was carrying a hammer, his answer was,‘I do not know and I apologise to the court that this person ended up dying.’ Accused says in the afternoon the deceased assaulted him, in the evening when he came to his homestead, he tried to avoid him and proceeded to sit on the door step of his hut.

In cross examination the accused told the court that, when the deceased was taken to his home by his friends, he was talking. He was still insisting that he could not be beaten by the accused. Accused insisted that he saw the hammer after striking the deceased with a knobkerrie. In re-examination, he told the court that he was afraid of the deceased. The deceased had beaten him during the day.

The accused closed his case.

In his defence outline, the accused contends that he acted in self-defence by averting an imminent threat and danger to his life in the hands of the deceased.

The law on self defence

In terms of the law in this jurisdiction the defence of “self-defence” has been codified in section 253 of the Criminal Law (Codification and Reform) Act (Chapter 9:23).  It is a complete defence and the section provides as follows:

“(1)	Subject to this Part, the fact that a person accused of a crime was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything which is an essential element of the crime shall be a compete defence to the charge  if:-

where he or she did or omitted to do the  thing, he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent; and

he or she believed on reasonable grounds that his or her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape from or avert the attack; and

the  means he or she used to avert the unlawful attack were reasonable in all the circumstances; and

any harm or injury caused by his or her conduct –

was caused to the attacker and not to any innocent third party;

was not grossly disproportionate to that liable to be caused by the unlawful attack.

These principles of the defence of self-defence have been applied and re-affirmed in several cases in this jurisdiction. See State v Herold Moyo HB-19-2017 and State v Manzonza HMA-02-16.

In his book, A Guide to the Criminal Law of Zimbabwe, at page 45, the author Prof. G. Feltoe states as follows:

The law provides that a person is entitled to take reasonable steps to defend himself against an unlawful attack.  Harm, and sometimes death, may be inflicted on the assailant in order to wade off the attack.

It is settled law that the test for self-defence is an objective one.  In other words, the court must consider what a reasonable person in accused’s position would have done taking into account the specific circumstances of the case.  The courts must not take an arm chair approach where such a defence is raised.  The court must determine what a reasonable person in accused’s situation would have done to repel an unlawful attack in defence of his person or property. An unlawful attack means any unlawful conduct which endangers a person’s life, bodily integrity or freedom. See S v Moyo HB 36/20.

Legal principles

Proof of an accused’s guilt beyond a reasonable doubt is what the State must achieve before it succeeds in pushing the wall of guilt onto the side of the accused. There is no duty on an accused person to push any part of that wall onto the side of the State. An accused’s person should be acquitted if the State evidence is not strong enough.  He should be acquitted if there exists a reasonable possibility that his evidence may be true. See: S v Alex Carriers (Pty) Ltd en ‘n Ander 1985 (3) SA 79 (T); S v Radebe 1991 (2) SA 166 (T); S v Munyai 1986 (4) SA 712 (V).

In evaluating the evidence led, the court must not decide the matter in a piecemeal fashion. All the evidence presented must be taken into account.  The State’s case and the defence case are not to be viewed in isolated compartments.  They must be weighed, the one against the other, looking at both as part of a whole while all the time bearing in mind that it is the State that bears the onus of proving the accused’s guilt beyond a reasonable doubt.See: S v Chabalala2003 (1) SACR 134 (SCA); S v Van Aswegen2001 (2) SACR 97 (SCA).

The court does not have to believe the defence story, still less does it have to believe it in all its details.  It is sufficient if it views it as being reasonably possibly true. See: R v M 1946 AD 1023 at 1027; S v Jaffer 1988 (2) SACR 84 (C) at 89D.

The court must also not only apply its mind to the merits and demerits of the State and defence witnesses but also to the probabilities of the case.  Such probabilities should also be tested against the proven facts that are common cause. See:	S v Abrahams 1979 (1) SA 203 (A); S v Mhlongo 1991 (4) SACR 207 (A); S v Guess 1976 (4) SA 715 (A); S v Trainor 2003 (1) SACR 35 (SCA).

When the court is faced with a situation where there is doubt as to what happened in a particular case, the doubt must be resolved in favour of the accused. In Edward Chindunga v The State SC 21/02,the court stated that where an accused gives a reasonable explanation of his actions. That explanation cannot be rejected out of hand.  See also; S v Kuiper 2000 (1) ZLR 113 (S) and S v Manyika 2002 (2) ZLR 103 (H).

It is with these legal principles in mind that this court will proceed to analyse the evidence presented in this trial.

Analysis of the evidence

In analysing the evidence before us, we start by considering the events that occurred in the afternoon of the fateful day. We do so because the accused contends that whatmade him to strike at the deceased was the fear he had for him. In terms of section 253 (2) of the Criminal Law [Codification and Reform] Act in determining whether or not the requirements of self-defence have been satisfied a court shall take due account of the circumstances in which the accused found himself including any knowledge or capability he may have had and any stress or fear that may have been operating on his or her mind.

Did the accused have any reason to fear the deceased? The State’s version was placed before court by the witness Blessmore Moyo. We know from this witness that in the afternoon of the fateful day, the deceased found the accused at the shops. He poked him. He was poking him with his finger and saying ‘I will beat you up young man.’He was alleging that the accused was belittling him. The deceased had to be restrained by this witness from further poking the accused. The witness pulled the deceased away from the accused.  After the witness and the deceased left, the accused is alleged to have stood up and said to the deceased that “you shall see.” The accused denies having uttered these words, but even if he did, that would be a normal reaction of somebody who is being harassed. The State’s version is that after the accused allegedly said, “you shall see” the deceased returned to the accused and there was a fight between the two of them. They fought using bare hands. The accused is alleged to have picked up some stones and threw them at the deceased. This witness said again he pulled the deceased and said “let us go home.”

According to the version of the State, the accused did not provoke the deceased. After the deceased was pulled away by Blessmore Moyo, he again followed the accused and assaulted him. The accused had to be saved by other villagers. The deceased had become too violent that the villagers had to intercede to protect the accused. The accused had to seek refuge from a certain homestead, but the deceased continued pursuing him.

The version of the State, in its material respects, is consistent with the accused’s version. First, in his defence outline, the accused avers that:

that on the afternoon of the 29 August 2018, whilst he was sitting down at the local shops, he had been confronted by the deceased who slapped him several times on his head and from nowhere reiterating that accused person thinks he is better than anyone else in the community.

When the accused tried to run away, the deceased caught up with him and continued being violent by poking him on the head and chest with his finger, aggressively pushing him and threatening to teach him a lesson.

He will state that it was then that he was rescued by certain villagers whose compound is nearby. They took him in and also chased the deceased away.

Second, in his evidence in court the accused contends, that in the afternoon of the fateful day, the deceased slapped him. Accused ran and jumped a hedge and entered a certain homestead, the deceased pursued him into that homestead. Accused contends that he tried to run away, deceased caught up with him in that homestead. He avers that at that time, most people had seen what was happening and started to gather at the scene. An elder person came and asked deceased to leave that homestead. Accused was escorted to another homestead. After deceased left, accused was then able to go to his home.

The State’s version and that of the accused in relation to the events of the afternoon of the 29 August 2018, in material respects corroborate each other. What comes out is that the deceased was acting violently towards the accused. The deceased was the aggressor. He was poking and beating up the accused. We find that the evening of the 29 August 2018 the accused had sound reasons to fear the deceased.

It is common cause that in the evening the deceased and his friends proceeded to accused’s home, to buy beer. The beer was being sold by the accused’s mother. Accused told the court that the two (deceased and Mthokozisi) when they got to his mother’s hut, did not talk to him. Accused decided to leave them with his mother, and then proceeded to sit at the door step of his hut. The distance between accused’s hut and his mother’s hut is between 6 to 7 metres.

The two, i.e. Mthokozisi and the deceased left the homestead, when they were at the gate the deceased returned and went straight to where the accused was sitting, i.e. at the door’s step of his hut. The accused told the court that the deceased asked him whether he was serious about what he did in the afternoon. The two were now approximately two metres away from each other. Accused told the court that he asked the deceased what he meant, because it was him the deceased who had assaulted the accused. The deceased said the accused was belittling him.

Accused contends that while deceased was speaking, he saw him producing a weapon underneath his jacket. Deceased produced a weapon intending to hit accused with it. The accusedthen pulled a knobkerrie from the roof of his hut, and used it to strike the deceased once on the head and he fell down.

The only version before court as to what happened on the door step of the accused’s hut is that of the accused. It is trite law that in a criminal trial the onus is on the State to prove the commission of the offence beyond reasonable doubt and that there is no onus on an accused person to prove his innocence. This court is alive to the basic principles to be applied in dealing with the version of an accused. If the accused gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal. See S v Kuiper 2000 (1) ZLR 113 (S) at 118B-D; R v Difford 1937 AD 370. At 373.  In R v M 1946 AD 1023, DAVIS AJA said the court does not have to believe the defence story; still less has it to believe it in all its details; it is sufficient if it thinks that there is a reasonable possibility that it may be substantially true. There is no basis upon which this court can reject the version of the accused. We accept it, it accords with the probabilities of the case.

The court must also not only apply its mind to the merits and demerits of the State and defence witnesses but also to the probabilities of the case. Such probabilities should also be tested against the proven facts that are common cause. See: S v Abrahams 1979 (1) SA 203 (A); S v Mhlongo 1991 (4) SACR 207 (A); S v Guess 1976 (4) SA 715 (A); S v Trainor 2003 (1) SACR 35 (SCA). We know that in the afternoon of the fateful day, the deceased was violent towards the accused. In the evening the deceased went to accused’s homestead. The accused attempted to avoid him by leaving his mother’s hut andgo and sit on the door’s step of his own hut. The deceased followed accused to the accused’s hut. It was dark, that is why the accused when he came with the bucket of water, he was also carrying a torch to light the place. Accused told the court that the deceased continued being violent. The accused struck the deceased once. He used a knobkerrie that was in his hut. That was the closest weapon he could lay his hands on.There is no evidence that he used excessive force in the circumstances. The court must not take an armchair approach, it must place itself, as far as possible, in the position of the accused at the time of the events.  See S v Sataardien 1998 (1) SACR 637 (C).

The only reason the attacker would go to the accused’s hut was to continue the fight which stopped halfway in the afternoon. Otherwise deceased had no reason to go to the hut of a person he was fighting during the day, except to continue the fight. If he wanted beer, it was not being sold in the accused’s hut. To contend that the accused should not have hit the head of the attacker, or he should have hit the hand so that the attacker dropped the weapon, is disingenuous. The accused neither had the luxury nor the time to think and rationalise his response to the imminent attack directed at him. He had to act and to act at that moment to avert an unlawful attack against his person.

During the afternoon the accused ran away from the deceased, jumping hedges, entering other homesteads in the neighbourhood and being protected by other villagers while escaping an attack by the deceased. Accused was running because he was not at his home, he was escaping to finally seek refuge at his home.  Accused finally managed to get to his home. In the evening when he was now home there was nowhere else were the accused could escape to. He had to stand his ground. It must be understood that it is a risk to attack a person when he is in the refuge of his home and his hut. Worse still at night. Faced with such an attack a person is entitled to take reasonable steps to defend himself against an unlawful attack.  Harm, and sometimes death, may be inflicted on the assailant in order to wade off the attack.

The accused was reasonable in his belief that he was under attack. The actions of the attacker posed an immediate threat to the bodily integrity and the life of the accused. The accused was entitled to use all his strength and remedies he had at his disposal, even if these remedies meant that his attacker would die in the process. There was no duty on the accused to wait until his attacker first physically harmed him before he defended himself.Ifaccused had not acted he may well could have been the deceased.

The accused’s version is that the attacker drew a weapon intending to strike him. In his warned and cautioned statement the accused says:

I do not admit to the charge levelled against me, he got to the shops whilst drunk, attacked and struck me. I ran away and he followed me where I stay. He came carrying an iron object that was when I acted in self-defence. I neither admit nor deny the charges because I struck with a knobkerrie but he went to his place of residence and he passed away on in the morning.

In cross examination, State counsel put the accused to task about why in his warned and cautioned statement, he merely referred to an iron object, not a hammer. Nothing material turns on this issue, whether it was a hammer or an iron object, the accused was reasonable in his belief that he was under attack. In any event the accused is also protected by the provisions of section 255 of the Criminal Law [Codification and Reform] Act which provides as that:

If a person genuinely and on reasonable grounds, but mistakenly, believes that he or she is defending himself or herself or another person against an unlawful attack, he or she shall be entitled to a complete or partial defence in terms of this Part to any criminal charge in all respects as if his or her belief were in fact correct.

Whether the deceased had an iron object or a hammer, the accused believed that he was under attack, and he had to act.

Furthermore,the version of the state as testified to by Lungisani Tshuma is that the attacker was armed with a hammer.  This is the witness who removed the body of the deceased from the house. This is the witness who arrested the accused. He was part of the investigating team. He said he was told by the accused and by other witnesses who were not called to testify. That is the reason this witness recovered the hammeras an exhibit. The State cannot turn around and challenge the issue of a hammer, when its witness testified to it. The state cannot put a version before court, and when convenient to it start challenging the same version. Such is unattainable.

The accused is alleged to have thrown stones against the deceased during the afternoon encounter. There is no evidence that the deceased was hit with any one of those stones. In any event the accused had a right to defend himself. He could not be expected to just be running away without any effort to defend himself. It is also being alleged that after the strike on the deceased with a knobkerrie he said ‘mother I have killed someone,’ even if he said these words, nothing turns on this utterance. This was said after the attack, not before. It could have been different if he had said ‘mother I will kill someone.’ This appears to have been a spontaneous reaction after the deceased became unconscious.

Conclusion

The accused person’s defence is that he believed that he was under attack.  The accused person has given an explanation which has not been rebutted by the evidence adduced from state witnesses.  His explanation has not been proven to be false or improbable.  There are gaps in the evidence of the state case.  The only version on what led to the strike with a knobkerrie is the accused’s version.  The accused’s actions meet the requirement of self-defence as stated above. The allegations against the accused are largely speculative.  The state did not discharge the burden of proof to prove its case beyond a reasonable doubt.  When all the evidence has been assessed, we are satisfied that the state failed to prove its case beyond a reasonable doubt, and consequently we find the accused not guilty on the charge of murder.

Verdict:	Not guilty and acquitted.

National Prosecuting Authority, state’s legal practitioners

Moyo and Nyoni Legal Practitioners, accused’s legal practitioners