THE State V Panganai Sibanda

### Preamble
1
HB 264/20
HC (CRB) 82/20
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THE STATE

Versus

PANGANAI SIBANDA

HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Ms C J Baye and Mr A.B Mpofu

GWERU 24, 28 AND 29 SEPTEMBER 2020

Criminal Trial

Ms N Chikuni, for the state

J Makiseni, for the accused

MABHIKWA J:	The accused is charged with contravening section 47 (1) of the Criminal Law Code.  He denied the charge and prayed for his acquittal on the murder charge.  Both the accused and the deceased were 26 years old at the time of the fatal incident.

The state case was briefly that on 27 November 2018, both were drinking beer separately at Mabhachi Bottle Store in Zhombe.  The accused suddenly confronted the deceased over a misunderstanding they had the previous year.  He then quickly stabbed the deceased once with a knife on the lower side of the stomach.  He tried to stab him for the second time but the deceased ran away.  He staggered to the door and fell by the veranda of the shop bleeding profusely.  The stab led to his death.

The accused’s defence was that it is true he was drinking beer separately from the deceased on the day in question.  He stated that he then went to the counter and found the deceased there having bought cigarettes.  He says that he saw the deceased removing a knife out of his trousers pocket and raised it up to stab him.   He managed to get hold of the deceased’s hand and the two then wrestled for the knife as the deceased tried to stab him.  The accused says that the knife fell from the deceased’s hand.  He swiftly picked it up and observed the deceased running out of the bar.  When he saw the deceased running out of the bar, he thought deceased was running to call his friends to come and assist in the fight.  He says he continued running when the deceased fell down on the veranda.

The accused says that it was while he was running away that he threw the knife away.  This was after realising that the knife was blood stained and that he himself was injured on the right hand wrist.  When he threw away the knife, he went home.  He denied stabbing the deceased.  He says he believed that the deceased accidentally stabbed himself during the wrestle for the knife.

The state called two witnesses to testify.  These were Bongani Rodgers and Jeremiah Chinonwe.  In addition, the state produced as an exhibit the confirmed warned and cautioned statement of the accused, marked Exhibit 3.  The state also produced a copy of the Post mortem report No. 1149-1148-2018 by Doctor Lara Diaz, marked Exhibit 4.  Further, the state applied for the admission of the evidence of ten (10) witnesses in terms of section 314 of the Criminal Procedure and Evidence Act.  There was no objection by the defence.

The important aspects of Bongani Rodgers’s evidence is that she resides at Pumula Farm in Zhombe and is employed by Mabhachi Bottle Store as a bar lady.  She knew both the accused and the deceased very well.  One was a local villager whilst the deceased was her son-in-law. From her evidence, it appears that she is not sure who of the two entered the shop first.  She however eventually states that the deceased approached the counter and bought cigarettes.  The accused also came to the counter so that at some stage, both were at the counter near her.  As she was in a bending position putting money in a cash box, she noticed the deceased run from the counter to the window and then to the door.  He attempted to open the door.  Within a short while, the door was opened and she saw the deceased lying down.  Before then, the accused had run out carrying a home made knife about 30 cm long.  As the deceased was lying down, the accused was then standing on the main road. She heard him saying words to the effect that;

“Get up from where you are lying.  If you do not, I will come and finish you off.”

She observed that the deceased was bleeding profusely from the lower part of the abdomen or stomach area.  She believes that it was during that short period when she bent down that the deceased was stabbed.  She refuted suggestions that it was the deceased who produced a knife.  She saw the accused wielding the knife and going out with it.  She was sure that deceased had been stabbed with a knife by the accused.  She also said she bent down for a short time and raised her head.  She also refuted repeated allegations that she had seen nothing.  She ruled out the possibility of the deceased being stabbed accidentally in a scuffle.  She was certain that at the time the deceased was stabbed, the accused and the deceased were not involved in a fight at all.

It is this court’s finding from the evidence of Bongani Rodgers and the surrounding circumstances that if there had been a fight, she would certainly have seen it.  Further, not only Bongani but in real life, other patrons would also have seen the fight over the knife.  There was no fight and this court has no reason to disbelieve Bongani.  Bongani has no reason to, and it has not been alleged that she has a motive to falsely incriminate the accused.  She did not seem to exaggerate what she had seen.  We accept that she told the court the credible truth of what she witnessed.

In our view, Bongani was corroborated by Jeremiah Chimonwe, the second state witness.  In fact, Jeremiah appears to have seen more than Bongani but there are no contradictions in their evidence.  He too resides at Brasslands in Zhombe.  On 27 November 2018, he was at Mabhachi Bottle Store.  It is the only bottle store at the business centre.  Both the accused and the deceased were also present there.  Other patrons, including Sydney and Aleck, who were in the company of the accused were drinking beer just outside the bar.  The deceased was in the company of Andrew Moyo and Kudakwashe Magabvu.

The witness himself was sitted on the veranda just near the door and facing the bar.  The accused was already in the bar.  The deceased entered the bar going to buy cigarettes.  The accused then got to him near the counter.  As they were standing side by side, near the counter, the accused produced a knife from somewhere in the front part of his body.  Although Jeremiah was not sure exactly where the knife was produced from, he indicated that the knife was pulled by the accused from his lower front part of the body.  After pulling out the knife, the accused raised his hand and thrust a blow.  The witness said he was only about 4 metres from both the accused and the deceased when the stabbing took place.  The accused just produced a knife from his lower part and stabbed the deceased on the lower bottom side of the abdomen.  He too saw a knife that was about 30 cm long.  He said the accused was putting on a pair of jeans.  He could have taken the knife from a front pocket or an under-pocket if he had more than one pair of trousers.  He too said the whole stabbing incident happened fast and there was no scuffle at all.  He too said after being stabbed, the deceased ran to the door and fell on the veranda bleeding profusely.  He too denied that the knife could have come from the deceased but that he saw the accused producing it instead.  He admitted that he heard that the two had a quarrel a year earlier.

Further, the two witnesses were corroborated by the accused’s own confirmed warned and cautioned statement.  The said statement was recorded at Redcliff Police Station on 10 January 2019 at 1620 hours.  It was recorded by one Sergeant Dube.  Sergeant Murefu L witnessed the recording of the statement.  In that statement, the accused stated that;

“ I do admit to the allegations leveled against me.  I stabbed Aaron Abel once using a knife on the stomach.  I stabbed him after he had once axed me using an axe after we had a misunderstanding whilst he was with his four friends.  Therefore when I saw him alone I revenged by stabbing him on the stomach.”

This statement was short, clear and unequivocal.  On 10 January 2019, the accused stated that this was a revenge stab for an incident that had happened earlier when he had been axed.  He saw the deceased alone, took out a knife and stabbed him once on the stomach.  There was no struggle at all for a knife produced by the deceased.  There was no accidental stabbing.  In fact in that short statement, he himself used the phrase “I stabbed” twice.  On the third occasion, he used the phrase “I revenged by stabbing him.”  Above all, that statement incidentally corroborated perfectly well, the state witnesses’ evidence that the accused drew the knife.  There was no scuffle and there was no accidental stabbing at all.

It is in his defence outline that the accused then gives this seemingly convenient, highly coincidental in many respects, and clearly fictitious story.  According to that outline, he enters the bar when incidentally there is only the deceased and the bar lady in the bar.  He becomes the third.  The deceased, according to him produces the knife, again incidentally when the bar lady is bending down to put money in a cash box.  They wrestle for the knife whilst deceased tries to stab him.  Incidentally again, no one notices this.  The knife drops from the deceased’s hand and he (the accused) swiftly picks it up with no one noticing it.  He runs away, incidentally thinking that the deceased is going outside to call his friends to fight him.  He again incidentally throws away the knife on his way home with no one noticing.  It should be remembered that according to his defence outline and according to the second state witness, there were people just outside the bar in the veranda.  According to his evidence there were seven (7) people in the bar.  They never saw the fight and struggle for the knife.  He too claims to have noticed incidentally at the time the deceased had fallen on the veranda and bleeding profusely, that “he had perhaps accidentally stabbed himself” in the abdomen “with his own knife.”  This story sounds too good to be true.  It is untrue.  It is outrightly false in our view.  As already stated above in his testimony in court, the bar lady bent down for a very short time.  When she raised her head, the deceased was already running to the window, then to the door and ultimately fell down.  Surely, there is no way the accused could have had a fight or scuffle with the deceased over a knife between that short period without the bar lady, or two of his friends hearing or seeing the fight, including the falling of the knife.  According to him, his friends were just about four (4) metres away.  This court believes the state’s witnesses that it was only the accused who had the knife and used it.  The injuries could not have been accidental.  Incidentally, the accused’s testimony and demonstration in court corroborated the doctor’s findings that the deceased had a wound in the left inguinal region.  He also remarked that the deceased must have been facing the aggressor at the time of the attack and could not defend himself.  The accused demonstrated how the two met each other briefly at the small counter area, facing each other with a small space separating them.  That is also what Jeremiah saw.

It is clear in casu that the defence of self-defence does not arise.  The defence of provocation if any, has now been codified under section 239 of the Criminal Code.  It is available as a partial defence on a murder charge.  The law would recognize the defence of provocation where the accused has completely lost self-control, and as a result of provocation causes loss of life.  The provocation must be sufficient as to make a reasonable person lose his self control.  In casu, the accused vainly makes reference to provocation but dwells much on the deceased accidentally stabbing himself.  We have no difficulty in rejecting the defence of provocation.  The evidence tends to suggest that the accused was simply harbouring a grudge against the deceased.

See also State v Decent Sibanda HB 245-18.

There was one stabbing in this case.  On the appropriate verdict, the court will agree with both the state and the defence that there was no evidence to indicate that the accused possessed the requisite actual intention to bring about the death of his victim.

In the circumstances, the accused in found guilty of murder with constructive intent.

Sentence

The accused was 26 at the time he committed the offence.  He is now approaching 28.  He is a grade 7 drop out.  His background and upbringing is said to have greatly influenced his behavior.  He is a first offender. He has a wife and two children to look after.  The court has been advised also that the accused was drinking beer and possibly drunk.  Drunkenness may also have affected his rational thinking on the day.  The court also has been told that the accused is a gold panner and may have generally been influenced by the violent behavior of gold panners.  Unfortunately, that is all in his favour and the court has been implored by his counsel to sentence him to 15 to 18 years imprisonment.

In aggravation, it must be noted as submitted by the state that bars, bottle stores, and other drinking places have indeed become war zones instead of recreational places.  The accused was unnecessarily armed and it can be said that he anticipates violence wherever he is.  The court agrees that stiffer penalties especially on patrons who move around armed with dangerous weapons should be metted out.

See State v Herold Moyo HB 19-17 where the Judge lamented the fact that bottle stores and bars have become war zones where people are needlessly and repeatedly killed in violent fashion instead of being places of enjoyment.  The accused in that case, just as in casu, had committed the offence when he was 26.  He was tried when he was 27.  He had stabbed the deceased with an okapi knife on the back and the shoulder.  The court rejected both the defences of self-defence provocation raised.  Infact the deceased was also the aggressor in that case.  He was convicted of murder with constructive intent and had been in custody on remand for nine (9) months.  In casu, the accused was the aggressor.

This court will agree with the state hat since it has been mentioned that the accused is a gold panner influenced by the violent behavior of gold panners, in fact that behavior should be put in check by these courts.  Cases of gold panners fighting and killing others like chicken are on the increase.  Surely a strong message must be sent through long imprisonment sentences that moving around armed with dangerous weapons especially in drinking places will not be tolerated.

The court will not brook any tolerance with those that take the law into their own hands.  In casu, the accused took the law into his own hands completely unprovoked at the time. He was revenging an incident a year old.  He has not even been clear whether at the time he was axed, it was the deceased who had actually axed him or one of his friends.  In any event that is hardly any provocation to talk about a year later.  The accused has been unrepentant and consistently claimed that the deceased stabbed himself.  He mounted a false and spirited defence.  Life is precious and once lost, it cannot be recovered or accidentally picked up like money.  The court did not even see and has not been shown any sign of axing on his head.

In State v Tatenda Masodhi HB 243-18 the accused suddenly drew a home made knife and stabbed the deceased with it once on the left side of the abdomen exposing the intestines.  As the deceased crouched after the stabbing, the accused fled the scene.  At least in that case, there had been some bit of provocation and quarrel over a cellphone and a woman just before the stabbing.  The accused was sentenced to twenty (20) years imprisonment with nothing suspended.

The only appropriate sentence is one that will send a clear message that the courts will not condone violence especially the use of knives and like weapons to settle old scores.  A lengthy custodial sentence is called for.  The court is aware that in sentencing the accused, it must primarily consider the accused’s peculiar circumstances, the offence and the interests of justice.

Accordingly the accused is sentenced as follows:

“24 years imprisonment.”

National Prosecuting Authority, state’s legal practitioners

J Masango Attorneys At Law, accused’s legal practitioners