THE State V Ronald Ngwenya

### Preamble
1
HB 62/25
HCBCR 1782/25
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THE STATE

Versus

RONALD NGWENYA

IN THE HIGH COURT OF ZIMBABWE

NDUNA J with Assessors T. Sibanda and Mr O. Dewa

BULAWAYO 6 & 15 MAY 2025

Criminal Trial

Mr V Moyo for the State

Mr M Matanhire for the Accused

NDUNA J: The accused faces one count of murder in that the state alleges that the accused stabbed and killed the deceased, one Ndumiso Khumalo by stabbing him on the chest. The accused duly advised by counsel pleaded not guilty to the charge.

The led the evidence of one witness, with evidence from one more witness being admitted into record by consent of the accused. The evidence of two other witnesses was expunged from the record of proceedings by consent of both parties. The accused gave evidence in his defence for the charge. The state and the defence submitted their closing submissions in writing and the court is indebted to them for that. Their submissions have been taken into account in arriving at an appropriate verdict in this trial.

The evidence led by the state from its sole witness was as follows; He was drinking beer at the shops with the others and the deceased. The accused was also drinking beer at a certain shop. The deceased left on what he claimed to be a cigarette lightening effort. That took him to the shop where the accused was. The witness later observed one of the patrons thereat running away. He then decided to go and check what was going on. It was at that moment that he found the deceased having been already stabbed and lying dead. The witness refuted claims made by the accused that he had sent the deceased to fetch the accused and bring him to the witness.

On the other hand, the defence called a single witness as well. That is the accused who testified in his defence. It was his evidence to the effect that the deceased came to where he was sitting and advised the accused that he was wanted by the witness. The deceased decided to take the accused to the witness by force. He was armed with an axe. (exhibit 4). The deceased tried to chop the witness once and the accused dodged the chop. He then attempted for the second time and the accused again dodged the chop. He then tried his third attempt and the accused again dodged the chop. He held the accused by the collar as he tried to chop him. The accused then reached for his knife and stabbed the deceased once on the chest. The deceased fell down and the accused took flight. The deceased eventually died from the stab wound.

What is clear is that the deceased had walked quite a distance from where he was drinking beer to where the deceased was drinking beer. He had gone past a number of shops. The court is not told from whom specifically he wanted to ask for the fire to light up his cigarette. This is so because there were a lot of people who had been partaking in beer drinking at the shops. The deceased had left all those shops and ended up at where he met his demise with the accused. He was armed with an axe.

What is clear is that the evidence of what happened between the accused and the deceased is emanating from the accused alone. He has outlined what he claims to have happened. There is no basis of refuting it as he is the only person who is speaking on the event.

In S vs Ncube HB125/23 the court was faced with a similar situation. It held as follows:

In terms of section 239 (1) (a) of the Criminal Law Code, that provocation reduces the murder charge to culpable homicide.

We were however of the view that this was a borderline case between murder and culpable homicide. The circumstances under which the deceased was struck with the axe were however largely based on the accused’s version as no one else witnessed it.

The court in The State vs Tavengwa Mupuna HH209/2016 gave the application of the defences being raised by the accused; provocation and self-defence. The court stated as follows: -

In terms of s 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the defence of provocation can only be a partial defence to the charge of murder and may reduce the charge of murder to Culpable Homicide if the elements outlined in s 239 (1) and (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] are satisfied. If those elements are not satisfied then the issue of provocation may simply be mitigatory to the charge of murder

The court went on and stated that;

The defence of self-defence is as provided for in s 253 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is a complete defence to a charge of murder.

However, the requirements outlined in s 253 (1) (a) to (d) should be satisfied. In terms of s 254 the defence of self-defence may be a partial defence to the charge of murder if all other requirements outlined in s 253 (1) are met except the requirement that the means used to avert the unlawful attack were not reasonable in the circumstances

And in Edward Chindunga v The State SC 21/02 it was held that:-

“..... In my view, the appellant gave a reasonable explanation of what he did during the night in question. That explanation cannot be rejected out of hand.

In S v Kuiper 2000(1) ZLR 113(S) at 118B-D it was stated as follows: -

“The test to be applied before the court rejects the explanation given by an accused person was set out by GREENBERG J in R v Difford 1937 AD 370. At 373, the learned judge said:-

‘... no onus rests on the accused to convince the court of the truth of any explanation he gives. If he 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 ...’

Similarly, in R v M 1946 AD 1023, DAVIS AJA said the following at 1027:

‘And, I repeat, 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 ...’”

In this regard attention is also drawn to S v Manyika 2002(2) ZLR 103(H), 105 A-G;

And lastly in S vs Bowa SC 47 of 2014 the court held as follows

I am satisfied that the court a quo misdirected itself in completely rejecting the claim by the appellant that the deceased came out holding an axe and that although he warned the deceased to drop the weapon, the deceased continued running towards him, as a result of which he then fired at him. There was a real possibility that the claim may have been true

So, the question here is whether the accused’s case meets all the essential elements of the defences he has raised?

The deceased is said to have come to where the accused was and demanded that they ought to proceed to where the state’s witness was. The court accept this explanation because there was no reason accused would have gone out to stab the deceased if he had not interfered with him. He took to drag the accused to the said witness. The deceased is said to have tried to hit the accused with an axe three times. Where upon the accused produced his knife and stabbed the deceased. He stated he did so in self-defence.

The holding of the axe by the deceased makes it real possible that he attempted to use it to chop at the accused. For a defence of self-defence, the actual attack on the accused is not a prerequisite. It is only to be shown that an attack was about to take place upon the person of the accused (See State vs Bowa (supra). That is enough for an accused to also take steps to defend himself. This is what happened here.

Now we have to look at the last aspect of the defence. In doing so we relate to section 254 of the Criminal Code. It provides as follows: -

254 When defence of person partial defence to murder

If a person accused of murder was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything that is an essential element of the crime, he or she shall be guilty of culpable homicide if all the requirements for defence of person specified in section two hundred and fifty-three are satisfied in the case except that the means he or she used to avert the unlawful attack were not reasonable in all the circumstances.

It is found that when the deceased sought to strike him with his axe, he was enforcing the accused’s compliance with the request that the accused attend to the call which the deceased had brought to him. Therefore, stabbing him with the magnitude of causing his death was not expected in the circumstances. The accused only needed to relinquish the hold the deceased had made upon him. It was not therefore reasonable for the accused to have fatally stabbed the deceased.

He was negligent in causing the death of the deceased.

He is accordingly not found guilty of the murder but guilty to capable homicide.

Sentence

The accused is 37 years old and was an ordinary member of the society. He is currently unemployed. He has no previous convictions.

The accused was found guilty of culpable homicide which is a very serious offence. The loss of life was unnecessarily caused. The accused is a first offender and is remorseful. He has been admitting to the offence of culpable homicide. The interests of society demand that those who commit crimes must be punished and, in deserving cases, that they be punished severely. We ought to differentiate between what is in the public interest and what society wants. Members of society cannot always get what they want as courts do not exist to win popularity contests, but exist solely to dispense justice. What may appear to be justice to the uninformed general public, however, may not necessarily be justice. The general public may not even know the difference between punishment and vengeance – a distinction which is very important when a court is exercising its sentencing function.

Fortunately, regardless of the level of understanding among the general public, Zimbabwe has a Constitution which applies to everyone and which protects everyone, including those who transgress the laws. As a country we have advanced to a modern era of balancing all the relevant factors. Retribution, which, however, from the legal point of view is not the same as vengeance, has, inter alia, yielded ground to other purposes of punishment.

In R v Karg 1961 (1) SA 231 (A), the South African Court stated the following at 236A-C:

While the deterrent effect of punishment has remained as important as ever, it is, I think, correct to say that the retributive aspect has tended to yield ground to the aspects of prevention and correction. That is no doubt a good thing, but the element of retribution, historically important, is by no means absent from the modern approach.

It is not wrong that the natural indignation of interested persons and of the community at large should receive some recognition in the sentences that courts impose, and it is not irrelevant to bear in mind that if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured persons may incline to take the law into their own hands. Naturally, righteous anger should not becloud judgment.”

It is impossible to deal with the interests of society without reference to the deceased and his family.

There is a delicate balance between the crime, the criminal and the interests of society. The extent of the negligence in culpable homicide cases plays an important role in coming to an appropriate sentence which should neither be too severe, nor too light.

It seems to me that in determining an appropriate sentence in such cases, the basic criterion to which the court must have regard is the degree of culpability or blameworthiness exhibited by the accused in committing the negligent act.

Relevant to such culpability or blameworthiness would be the extent of the accused’s deviation from the norms of reasonable conduct in the circumstances and the foreseeability of the consequences of the accused’s negligence. At the same time the actual consequences of the accused’s negligence cannot be disregarded.

Counsel for the accused in mitigation persuaded the court to impose a sentence of three years and further moved that accused be considered for community service. Such an approach would obviously be wrong. Accused had a dangerous weapon with him for no apparent reason.

Therefore, a sentence of 5 years imprisonment would be just. Further, the weapons which reared their heads in this case are forfeited for destruction by the state.

The following is therefore the order of the court in this case

The accused is sentenced to 5 years imprisonment

The knife used and the small axe are both forfeited to state for destruction.

National Prosecuting Authority, State’s legal practitioners

Matanhire Law Chambers, accused’s legal practitioners