THE State V Phillimon Ndiweni

### Preamble
1
HB 103-19
HC (CRB) 49/19
XREF GWANDA P 183/17
XREF CR 11/02/17
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THE STATE

versus

PHILLIMON NDIWENI

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 18 -21 JUNE 2019

Criminal Trial

Ms N Ngwenya for the state

Ms T Nyathi for the accused

MOYO J:	The accused person faces a charge of murder it being alleged that on the 12th day of February 2017, he assaulted Julius Ndlovu with an axe resulting in his death.

The accused person pleaded not guilty to the charge.  He pleads self defence.  The following were admitted into the court record as exhibits and they were all duly marked

1)	the state summary

2)	the defence outline

3)	the accused’s confirmed warned and cautioned statement

4)	the post mortem report.  It gives the cause of death as brain damage, skull fracture, chop

wound.

5)	and the axe that has allegedly used in the commission of the offence.

The evidence of Leny Dube, Vincent Magombedze and Dr S. Pesanai was admitted into the court record in accordance with the law.

Monicah Ndebele and Abednigo Ncube gave viva voce evidence for the state.

The accused person gave evidence for the defence.  The facts of this matter are largely common cause.

Accused fetched firewood near the deceased’s homestead.  This did not go down well with deceased who insulted the accused and later accosted him carrying an axe and a stick.

It is not clear as to the exact nature of the altercation because there is no eye witness.  The accused himself gives different versions in his confirmed warned and cautioned statement, his defence outline (paragraph 6 there in and in his viva voce evidence).

In his confirmed warned and cautioned statement he says when deceased tried to chop him with an axe, he disarmed him and then used it to chop deceased once on the ribs and once on the head.

In his defence outline he says deceased tried to attack him with a stick and an axe, he dodged and the accused used his own axe to hit the deceased.

In his viva voce evidence he says deceased first attacked him with stones, which he dodged and deceased then tried to strike him on a number of times with him dodging until he took the axe and struck the deceased.

Abednigo Ncube is the only state witness who seems to have witnessed the last stage of the fight.  He says he saw deceased raising his arms with the elbows bent in a defensive mode and saw accused wield the axe and strike deceased on the head.  He said deceased carried nothing at that material time although he admitted that there was on the ground a small axe and a stick meaning that it is true that at some stage deceased was armed.

Accused’s version creates problems because of the disparities therein.

Self defence

A defence of self does not hold from variant facts.  If an accused person wants to rely on the defence of self he must establish such defence on consistent facts so that the court is satisfied that he indeed acted in self defence.  If an accused gives differing versions of the same event, he strips himself of such defence for he then fails to establish factually the grounds for such a defence as the court cannot rely on a witness who is seemingly untruthful.

The only version that the court has which is consistent with all the circumstances of the case is that of Abednigo Ncube.  Even if the accused had been under an unlawful attack from the deceased, clearly at the time that he struck the deceased, the deceased was no longer attacking him and was unarmed and using his arms to defend himself from the accused person’s blows.  The accused person could thus not be held to have acted in self defence as he struck deceased at a time that deceased was unarmed and was apparently no longer attacking the accused person.  The accused person was then acting in retaliation for, soon after disarming the deceased, he could have left as he was no longer under attack.  In this respect therefore, the accused person has failed to satisfy all the requirements of section 253 of the Criminal Law Codification and Reform Act, which serialises the requirements for such a defence in order to avert an unlawful attack.

Verdict

It is for these reasons that this court finds that accused’s actions on that day were indeed unlawful and wrongful.  The accused person struck deceased on the head and ribs with an axe, this was a brutal assault which could not have been anything else but fatal.  Although it cannot be held that accused had formulated the intention to kill the deceased, he nonetheless should have foreseen death as a real possibility in the circumstances.  Accused person is accordingly convicted of murder with constructive intent.

Sentence

The accused person is convicted of murder.  He is aged 63 years old.  He is a family man and a breadwinner.  He is a first offender.  He showed remorse.  He has spent almost 2 ½ years in pre-trial incarceration.

The deceased in this matter was the aggressor over a petty issue involving firewood.  Perhaps for village dwellers firewood is a valuable asset as it is their source of energy but even then there is no justification for a dispute over firewood to escalate to the levels that the dispute between accused and deceased did.  These courts frown at the loss of life through violence.  Life is sacred and there can be no excuse for villagers to be butchering each other over the slightest provocation.  A message should be sent out there, very loud and clear, that those who do not uphold the doctrine of the sanctity of life shall not be treated with kid gloves by these courts.

However, the interests of justice demand that this court looks at all the circumstances of this case, that is the accused person’s personal circumstances, the circumstances of the commission of the offence and the public interest.

The accused’s personal circumstances can thus not be overlooked, he has spent almost 2 ½ years in prison that’s a weighty mitigating feature.  He is a first offender that has shown remorse.  He is also in the afternoon of his life, at 63 years old.  The deceased was the aggressor on the day in question for, instead of confronting the accused, he should have sought the village head’s peaceful intervention.  People should learn to desist from violence as a means of resolving disputes.  Violence never resolves disputes but instead escalates them.  It is for these reasons that while the accused person would have been given an effective sentence of about 15 years in the circumstances, his pretrial incarceration would earn him a discount of about 3 years.  His age would further cause this court to further reduce the sentence by another 2 years meaning that he is left with 10 years effective.

The accused person is accordingly sentenced to 10 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Messrs Makiya and Partners, accused’s legal practitioners