THE State V Shepherd MOYO

### Preamble
1
HB -19
HC (CRB) 89/18
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THE STATE

versus

SHEPHERD MOYO

HIGH COURT OF ZIMBABWE

MABHIKWA J

GWERU 7 FEBRUARY 2019

Criminal Trial

S Pedzisayi for the state

P Mabukwa for the accused person

MABHIKWA J: 	The now 24 year old accused person is facing a murder charge, it being alleged by the state that on 29 August 2017 at Imbizo Inn Night Club, in Kwekwe the accused unlawfully caused the death of Nqabutho  Ndlovu by stabbing him once on the neck and once on the back with a knife intending to kill him or realizing the real risk or possibility that his conduct may cause death but continued to engage in that conduct nonetheless.

It was the state case that the accused was 22 whilst the deceased was 23 at the time he met his death.  It was also alleged that both were drinking beer at the said night club.  The accused was known at the night and locality as a gold panner.  The deceased was unknown. The deceased allegedly spilt beer on to the accused accidentally.  The accused reacted violently and struck the deceased with a beer bottle in the head.  The deceased ran away leaving one of his sandals in the club.  He returned an hour later looking for his sandal.  The accused then spotted him, grabbed him and stabbed him on the neck.  The deceased ran out of the night, was pursued and stabbed again on the back.  He still managed to run towards incomplete building near the club with the accused in hot pursuit.  Accused caught up with him and trapped him to the ground but was restrained by his friend and homeboy, one Respect Sahi.  The deceased finally got into the incomplete building and died there.  When the police were called, he was already dead.

The accused’s defence was that he had a tough upbringing having dropped out of school at Form 2 level and started artisanal mining (chikorokoza) at that tender age up to now.

He states that in 2016, he was mining in the Bulawayo area when he was viciously attacked by other makorokozas who wanted to rob him of his gold ore.  The attack left him with permanent injuries on the face and a partially paralysed left hand.  He also now suffers from paranoia.  He states that as a result of that attack, he always carries a pocket knife for his protection wherever he goes especially wherever artisanal miners trade.  He states that he did not know the deceased prior to his death.

On the 29th August 2017, he was drinking beer at the said night club in the company of Respect Sahi and a live band was performing all night long. He had with him $80-00 for beer and his usual knife.  He further states that from about 2000 hours he drank an assortment of beers that included castle light and a brand of whisky known as Two-keys.

He states that whilst enjoying his beer and music, deceased approached had accused him of having previously, assaulted one Talent Ndlovu, a younger brother to him deceased.  The accused states he remembered the incident and denied as it had been the mine claim owner who had assaulted Talent not him.  Despite the accused’s denials, deceased insisted.  He allegedly went on to pour the beer he was drinking onto accused and challenged him to a fight.

State that he pushed the deceased away causing him to loose balance and fall to the floor.  Says despite the provocation, he did not take any further action and the deceased went away.

States that the deceased written about an hour later in the company of a gang holding an assortment of weapons, stones and bottles.  The deceased pointed to where deceased and Sahi were standing, other revelers, reading the mood started going out says he sensed danger but could go nowhere since he was on the threshold of the building.  The deceased and his colleagues attacked him by throwing their weapons at him until a fight ensued between the accused and the deceased. During the fight he realized he was in danger.  On the spur of the moment, he drew his knife and stabbed the deceased. Says he acted in self-defence in a state of drunkenness and following extreme provocation.  That he had no intention to kill and therefore prays for an acquitted on the charge of murder and be found guilty of culpable homicide.

At the start of the trial, the evidence of Erasma Chitambira, Rodwell Ndaba and Innocent Chivige was admitted in terms of section 314 of the Criminal Procedure and Evidence Act, [Chapter 9:07].  Also admitted in terms of the same section was the evidence of Dr. S Pesanai and his Post Mortem Report 821-82902017. The said post mortem report reveals the cause of death as:

a)	Hemorrhagic shock

b)	Lacerated left jugular vein

c)	Stab wound neck

d)	Assault

The doctor observed as marks of violence a stab wound on the neck and another on the back giving measurements of the two stab wounds.

a)	That both the deceased and the accused were at the murder scene on the night of the killing is common cause.

b)	That both were drunk

c)	That the accused had in his possession a knife which he used on the deceased.

d)	That the accused was known in the locality but deceased was not.

The issues to be determined by the court are:

a)	The circumstances under which the accused stabbed the deceased and whether or not he acted in self-defence.

b)	Whether he had the requisite intention to kill either in the form of dlolus directus or dolus eventualis.

The state called two witnesses, Langton Mafenya and Tariro Phiri.  The court will deal with and analyse their evidence simultaneously because of similarity.  It should be noted right from the onset that the evidence of the two witnesses corroborated in the following respects:

1)	That at the very start of the misunderstanding, the accused attacked the deceased with clenched fists and the deceased did not fight back.  Both witnesses went on in fact to the part of the state outline which stated that accused struck the deceased with a bottle on the head.  They both infact explained that the bottle was thrown but missed.  This shows honestly on the party of the two witnesses.

2)	That the deceased returned into the bar after sometime looking for his sandal (1) out of a pair that he had apparently left in the bar in the initial attack.

They both narrated with clarity that as the deceased was looking for his sandal, (pushy) as they referred to it, the accused saw his, spring approached, removed a long knife which was in its poche around his hip area, and stabbed him on the neck.  The stab, caused a gushing of blood that literally sprayed the bar.  The stab and gushing of blood, especially as illustrated by Miss Phiri looked quite scary even in court.  The real attack must have been horrific.

3)	They both narrated that as the deceased ran or staggered for dear life, the accused followed and caught up with around the door steps or exit area, where he stabbed him again on the back.  The deceased then went into an incomplete adjacent building.

4)	Both testified that after the very first attack, accused was grabbed and refrained by his friend from further attacking the deceased.

5)	Both witnesses also corroborated well that there was plenty lighting in the bar and that there was no form of entertainment.  The claim by accused in his defence outline that there was a live band playing all night long is therefore false.

6)	They both corroborates well that at no stage did deceased attack the accused or even retaliate.  The accused was the aggressor throughout.  They further refuted claims that the deceased had returned with a gang of friends and attacked the accused.  They were both adamant that such a claim was out rightly false.

7)	Both testified and refuted intimations that people went out of the bar after the deceased’s return for the second time, they both testified that people went out later after deceased had been stabbed not much people in the bar as suggested by the accused.

8)	corroborated well that Mbiza Garandichauya police is 3.5km not 700m as claimed by the accused.  There are only a few things that one of the two witnesses could have seem which the other did not see.

The only two things worth noting that were observed by Miss Phiri which Langton did not observe are that at the very start of the initial attack, Ms Phiri had seen the deceased, drunkenly staggering towards a pillar with the club, where the accused and his friends were gathered drinking beer.  She did not clearly see what happened really in that staggering as deceased got there but in no time, she saw the accused speaking in Ndebele and throwing a floury of punches at the deceased.  The scenario described by Ms Phiri in this aspect of the case does not give room for the talk about an earlier assault of the deceased’s younger brother as shown in paragraph 8 of the defence outline and more so as narrated in evidence by the accused.

The court believes, as testified by Ms Phiri and as shown in the outline of the state case that in that very short period, deceased either stepped on the accused or mistakenly spilt beer on him.  The accused stood up charging like a bull or lion in the jungle.  Miss Phiri also narrated, making indications, how the menacing sought a tissue from a vendor, unrolled it and menacingly wiped the blood dripping knife.  One could see that Ms Phiri may have been affected and could still visualize the harrowing deed in her head.  The witnesses were known to him and not the deceased- Even he in paragraph (outline) says he did not know the deceased.

The court accepts the evidence of the two witnesses who were infact very difficult even to cross examine.  They were very truthful and on a number of facts corrected what would have wrongly put the accused in very bad light.

The accused testified in his case and did not make a good witness.  In fact he could not sustain his case.  It was clear from there onset that his case was unsustainable.

In the end he admitted that when the deceased came back to the club and hour after the initial altercation he did not attack him, neither did he provoke him.  This is the subject – he says he only thought that since the deceased had returned and was wandering about, he might waylay him.  He then stabbed him in the manner he did.

The state and defence have commendably submitted that for that reason, self defence and provocation as defences in this case fall away.

As regards intoxication as a defence, it is clear as well and counsel for the accused has again commendably conceded that that defence cannot be available to the accused.  When it became clear to the accused that from the evidence and cross examination, that the defences of self-defence and extreme provocation cannot hold, he sought solace and refuge in the defence of intoxication.

The state counsel asked the accused that since he had already agreed that when the deceased came into the night club for the second time he neither attacked him no showed any signs of any imminent attack, why then did he attack him.  The accused responded that he only saw the accused holding a beer bottle and decided to attack first.  He was further reminded that and asked that holding a beer bottle by the deceased was not strange and was inconsequential since this was at a night club and everyone else including the accused himself, were holding beer bottles drinking.

The accused then admitted and claimed that at that stage he was so drunk that he did not even realize or appreciate what he was doing or the consequences of his conduct.  The accused in this area of his evidence gave winding answers.  He would agree several times that the deceased did not provoke him and therefore did not want to lie about it.  He claims that he saw people going out of the club and the accused wondering about.  He says he thought the accused would in the course of wondering about waylay him and strike first.  So he says that he stabbed the deceased as he went past him.  He says at that stage, the deceased was not or attacking or provoking.  He was just going past near him.  Asked as to how close, he illustrated a distance like between him in the witness stand and the prison officer standing next to him, a distance of less than a metre.  He then claims that due to the state of his drunkenness he does not even remember how exactly he stabbed the deceased.  He then goes on to claim that he does not even remember the alleged pursuit and second stabbing by the exit of the night club.  He claims that he did not remember the alleged grabbing of him by his friend Sahi and being refrained by other patrons who were pleading with him to stop what he was doing.

In fact he had earlier claimed in his evidence in chief and his defence outline that he had commenced drinking at about 2000 hours when he drank about 5 pints of castle-light beer and later a 750ml bottle of “Two-Keys” whisky which he emptied with his friends before reverting to the castle light beer pints.

Section 219 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] defines what intoxication is, that is to say it results from the ingestion of any form of alcohol or drug.   Voluntarily intoxication there in is defined as self-induced intoxication whilst involuntary is non-voluntarily/self-induced intoxication.

Section 22 defines when involuntary intoxication may be a complete defence to a crime.  In casu, it is common case the intoxication was voluntary and this court will not spend time discussing it.

Section 221 state that intoxication is no defence to crimes committed with required state of mind and it reads as follows:

“If a person charged with a crime requiring proof of intention, knowledge or the realization of a real risk or possibility—

a)	was voluntarily or involuntarily intoxicated when he or she did or omitted to do anything which is an essential element of the crime; and

b)	the effect of intoxication was not such that he lacked the requisite intention, knowledge or realization.

Such intoxication shall not be a defence to the crime, but the court may regard it as mitigatory when assessing the sentence to be imposed.”

The court however, finds that the accused knew what he was doing.  He was not so drunk as to lose his mental faculties and self-control.  He could see the deceased and remember him as the person he had quarreled an hour later.  He knew the vital parts of the body which he targeted in stabbing the deceased.  He did not stab any other person but the deceased.  See my brother MATHONSI J’s sentiments in S v Jeffrey Stole –HB-126-18 and CHIDYAUSIKU CJ (as he then was) in Mugwanda v The State S-19-02;

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Sentence

In assessing sentence, the court will take into account that the accused is a young first offender.  He has a young family of his wife and a 2 year old baby.  He had a rough upbringing without both parents.  He thus dropped out of school at Form 2 level leaving him literally uneducated.  The court also takes into account that he had consumed alcohol and had earlier on had a quarrel with the deceased.

He also paid six herd of cattle to the deceased’s family by way of apology and compensation in a small way.

The court also agrees with the submissions of both counsel that his was not a murder committed in aggravating circumstances as envisaged by section 47 (4) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as read with Part XX section 8 (2) of the General Laws Amendment Act No. 3 of 2016.  The court will consider as mitigatory the fact that or constitution prohibits the sentencing to death of persons 21 years and below.  The accused was just 1 year above that cut off age at the time he committed the murder.  At 22, he still acted out of youthfulness and immaturity.  For those reasons, he has been spared the death penalty.

However, this was an extremely bad case.  A callous and yet very senseless killing taking away the life of another young and innocent person.  The accused murdered with such viciousness a defenseless, drunken young man who had done nothing to him other than perhaps a little disturbance to him, not even an irritant.  These cases, have on several occasions lamented cases of gold panners who, after sweating for their money , spend it recklessly on beer/booze and in the process behave so irresponsibly and as if they own the universe.  The accused on that day behaved as if he belonged to the animal kingdom with no regard for human life whatsoever.  He behaved like a lion king in the jungle yet even lions and tigers in the jungle know that you do not relentlessly pursue a submissive opponent.  Asa result a young life was needlessly lost and cannot be replaced.

Young people of the accused’s age, have alarmingly resorted to violence as a way of resolving disputes especially at their drinking spots.  These young people, particularly artisanal miners (makorokoza), boastfully move around with such dangerous weapons as machetes, knives, iron rods and stand ready to use them at the slightest provocation.  To them, life appears worthless.  The court cannot stand watch.  Stiff penalties to deter such conduct are then necessary.

The court will still however take into account the fact that the accused has spent 1 ½ years in pre-trial incarceration.  The court also considers that though belatedly, the accused ultimately admitted that he killed the deceased when he had neither attacked nor provoked him and was sorry for that.  Indeed in his demeanor, he ultimately appeared remorseful and repeatedly asked for forgiveness.

Accordingly, the accused is sentenced to 24 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Mabukwa Attorneys, accused’s legal practitioners