THE State V Takwana Sibanda AND Naison Sibanda

### Preamble
1
HB 111/19
HC (CRB) 24/19
---------


THE STATE

Versus

TAKWANA SIBANDA

And

NAISON SIBANDA

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr T.E. Ndlovu & Mr J. Sobantu

HWANGE CIRCUI COURT 3 JULY 2019

Criminal Trial

Ms M. Munsaka for the state

C. Muleza for 1st accused

U. Nare for 2nd accused

MAKONESE J:	On the 10th May 2018 and at around 16:00 hours, Chitekete place in Muyobe Village, Chief Siabuwa, Binga, was the venue for a drinking party.  Traditional brew was for sale.  Estery Muzamba was host to several villagers who had gathered to enjoy the alcoholic drink commonly known as “skokiana” or quick brew.  The beer is known to be popular in the country side for its affordability and potency.  The beer is typically brewed over one day. It was at this place, where the deceased, Charles Chama Muzamba, the first and second accused and others were gathered and consuming alcohol.  The first accused was aged 23 years at the time, while is elder brother second accused was aged 38 years.

The accused persons have been arraigned in this court on a charge of murder.  It being alleged that on the day in question the two accused persons assaulted the deceased with booted feet and clenched fists in the waist and abdomen, thereby causing his death.  Both accused persons pleaded not guilty to the charge.  The state tendered an outline of the state case which sets out the circumstances surrounding the commission of the offence.  The undisputed facts are that the accused persons arrived at Chitekete, Muyobe Village in the early hours of the morning.  They consumed copious amounts of alcohol.  Later in the day, the deceased arrived.  Before he could consume alcohol he confronted accused one and demanded payment of a $1 debt.  The debt had arisen out of the sale of some undisclosed quantity of tobacco.  Accused one indicated that he did not have the money to liquidate the debt.  His proposal to settle the debt by giving the deceased fish worth $1 was spurned by the deceased.  The deceased left the scene for a short while. He returned to where accused one was seated on a log.  The deceased pressed accused one for is money.  Accused one pleaded to be given time to sell his fish so he could settle the debt.  The deceased would have none of it.  He wanted immediate payment of his money. A serious argument ensued.  Deceased dragged the first accused’s leg. First accused fell off the log landing on his back. Deceased then struck the first accused on the chest.  In retaliation, first accused delivered several blows to the deceased’s face, rib cage and abdomen.  Whilst deceased lay on the ground, first accused sat upon the deceased’s chest and delivered several blows in quick succession around accused’s abdomen and rib cage.  At that stage, some of the imbibers tried to restrain the first accused and failed.  Accused two joined in the assault by kicking the deceased’s testicles and lower abdomen.  Deceased sustained serious injuries.  He later died upon admission at Binga Hospital on 12th May 2018.

In his defence outline, accused one denies the allegations of murder.  Accused one stated that he merely responded to the attack by the deceased and in fear of being gravely injured by the deceased.  Accused one avers that he pushed the deceased, stood up and struck him with a fist on the face and the deceased fell down.  Accused one contends that he was restrained from further assaulting the deceased by accused two and David Sibanda.  Accused one stated that his uncle Elias Siamkoka who was present offered to pay the deceased the $1 debt.  The deceased received the $1 and left the homestead complaining of severe pains.  First accused avers that he acted in self defence.  He tendered a plea of guilty with respect to culpable homicide.

Accused two, likewise, denied the allegations of murder.  He avered that at no stage did he, through his conduct, kick or assault the deceased in any manner.  He alleged that he in fact restrained his brother, accused one, from responding to the assault perpetrated upon him by the deceased.  The second accused prayed for his acquittal and seemed to shift all the blame to the first accused.

The state produced a confirmed warned and cautioned statement recorded from the first accused at Binga on the 13th May 2018.  The statement is in the following terms:

“I admit the allegations that I assaulted Charles Chama Muzamba when he asked for his $1,00  for tobacco that I bought from him on credit.  He assaulted me first and I was just fighting back only that I overcame him when we were fighting.”

The confirmed warned and cautioned statement recorded from the second accused on the same day at Binga police is in the following terms:

“I deny the allegations against me that I assaulted Charles Chama Muzamba.  I was only restraining when he was fighting with Takwana Sibanda when they were having a misunderstanding over a matter of a $1,00 for tobacco that was bought on credit by Takwana Sibanda from Charles Muzamba.  I restrained them by pulling Takwana Sibanda away from a fight.”

Dr Sanganai Pesanai, is a medical doctor based at United Bulawayo Hospitals.  On the 14th May 2018 and during the course of his duties he examined the remains of the deceased and compiled his findings in a post mortem report filed under number PM 458-457-2018.  The cause of death is listed as:

Aspiration

Severe peritonitis

Perforated small bowel

Blunt force trauma (abdomen)

Assault

On summary of history, the post mortem report reveals that the deceased had been assaulted with booted feet multiple times in the abdomen.  The post mortem report now forms part of the record.

The state sought and obtained formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07).  The evidence of the under listed witnesses as it appears in the outline of the state case was admitted into the record with the consent of defence counsel, namely:

Matthew Machaka

Dr S. Pasanai

The state led oral evidence from three crucial witnesses who observed the incident that led to the demise of the deceased.  The first to take the witness stand was ESTERY MUZAMBA.  She is aged 66 years.  She resides at Chief Siabuwa area of Binga.  She is a fairly simple woman who gave her version of events in a clear, mature and composed manner.  She was known to the deceased and to the two accused persons.  She narrated that on the day in question she was selling alcohol at Chitekete place.  She confirmed that when the deceased arrived he demanded his $1 debt from accused one.  Accused one indicated that he did not have the money.  The deceased became angry and aggressive.  He dragged the accused by his leg resulting in him falling from a log he was seated.  The deceased then struck the first accused once on the chest with a clenched fist.  The deceased and accused one engaged in a fist fight.  The deceased was however overpowered by first accused.  She observed that whilst deceased lay on the ground the accused delivered several blows on deceased’s mid -section and abdomen.  Some elders intervened to stop first accused from further assaulting the deceased.  The elders included Ndolama Nkemech Muzamba, Elias Siamkoka and David Sibanda.  This witness indicated that after the first accused had overpowered the deceased, the second accused kicked the deceased in the abdomen and testicles twice.  The witness made a graphic demonstration of how the deceased had been kicked by the second accused and suggested that accused two acted as if he was kicking a soccer ball.  The witness was cross-examined at length by defence counsel but she maintained her version as she perceived the events of this fateful day.  She rejected the suggestion that accused two had played no part in the assault.  She confirmed that her eyesight was good and rejected the notion that she was asleep at the material time.  In fact she retorted that she could not have been asleep as she was the one selling the alcohol.  The evidence of this witness was credible and truthful in every material respect.  We have every reason to accept her evidence as an accurate reflection of the events as they transpired.

NDOLAMA NKEMECH MUZAMBA

The second witness called by the state is a 67 year old man who is married to the first witness.  He is known to both accused persons as locals residing in the same village.  He was at Chitekete area, Muyobe Village were traditional beer was being sold by the first witness.  He stated that he was alert as he wanted to ensure that the sale of alcohol was done in an orderly manner.  Several patrons bought and consumed large quantities of alcohol.  His evidence regarding the events of that day is substantially similar to the first witness.  He corroborated the evidence of Estery Muzamba in every material respect.  He observed that the deceased was the initial aggressor.  He confirmed that the deceased had started the altercation by dragging and pulling the first accused’s leg.  He confirmed that the deceased was however no match against first accused person.  He asserted that the first accused delivered several blows on deceased’s mid- section and abdomen whilst deceased lay hapless on the ground.  This witness confirmed that a fight did occur involving the deceased and accused one.  The witness is one of the elders who intervened to stop first accused from further assaulting the deceased.  This witness firmly averred that he had witnessed accused two kicking the deceased’s testicles with booted feet.  The second kick was on the deceased’s lower abdomen.  The witness indicated that after the assault the deceased was complaining of severe pain in his testicles.  The witness stated that the deceased uttered the following words:

“These people have killed me.”

What is crucial is that this witness would not have said “these people have killed me”, if only the first accused was involved.  Under cross-examination the witness maintained that his eye sight was good and that he was so close to the scene of the fight that he clearly observed what had transpired.  The witness confirmed that he is one of the elders who restrained accused persons from further assaulting the deceased.  He assisted the deceased by placing him in a safe place after this incident.  When the witness was asked whether he had any motivation to falsely implicate the accused persons his response was that he was very old and would not do such a thing.  We are satisfied that this witness gave his evidence well.  His evidence is clear, consistent and credible.  We accept his version of the events of that day.

ELIAS SIMWAMI SIAMUKOKA

The last witness to be called by the state is 64 year old ELIAS SIMWAMI SIAMUKOKA.  He was known to the deceased person.  Accused persons are his brother’s sons.  The accused persons are brothers and he considers them as his children.  On the day in question he was consuming alcohol at Chitekete place, where the first witness was selling traditional beer.  He had consumed some alcohol but was in control of his senses.  He was able to observe the events that led to the demise of the deceased.  His evidence fits in well with the testimony of the first two witnesses.  He corroborated the evidence of the other state witnesses.  There was fight that erupted between deceased and accused one.  The cause of the fight was the deceased’s persistent demand of a $1.00 debt owed by first accused. The deceased was the initial aggressor.  The first accused overpowered the deceased and struck several blows upon his body whilst he lay down.  The second accused then stamped the deceased in his lower abdomen and testicles.  This witness was subjected to extensive cross-examination but he maintained his version of events.  We found the evidence of this witness to be straight forward.  There was no exaggeration on his part.

Defence case

TAKWANA SIBANDA

The defence opened its case by leading oral testimony from the first accused who elected to testify under oath.  The first accused conceded that he was negligent in causing the death of the deceased.  He admitted having assaulted the deceased after he had been subjected to extreme provocation.  He averred that he merely acted in self defence.  As the case progressed the first accused did not adhere to his defence outline.  He suggested in his evidence in chief that accused two had played no role in the attack upon the deceased.  He took all the blame for the injuries reflected in the post mortem report.  He gave the impression that the deceased might have sustained injuries to his testicles and lower abdomen at the time he was kicking in the air trying to free himself from the deceased’s grip on his legs.  The court had the impression that the first accused was trying to protect his brother.  In other words, he was prepared to be the “fall guy” and save his brother.  It is noted that accused’s explanation as to how the deceased may have sustained injuries in the abdomen and testicles was not only improbable but false.  The state witnesses who were very close to the scene witnessed the second accused “stamping” upon the deceased.  The deceased was heard complaining that these people had killed him.  He was also heard saying that his testicles had gone into his stomach and had disappeared.  None of the state witnesses, who had no motive to lie could confirm that accused two played the role of a peacemaker.  The first accused is however, for his part, credited, for accepting responsibility and tendering a plea of guilty with respect to the lessor offence of culpable homicide.

NAISON SIBANDA

The second accused, NAISON SIBANDA gave evidence under oath.  It is noted that he denied this offence from the time the charge of murder was raised against him.  In his confirmed warned and cautioned statement he flatly denies the allegations.  In his brief defence outline he denies the allegations and indicated that his brother, the first accused would exonerate him.  In his evidence in chief the second accused stuck to his defence outline and maintained that he had in fact helped to intervene to stop the fight.  The problem with second accused’s defence is that there is overwhelming evidence that he was an active participant in the assault.  The weight of the evidence from the state witnesses is such that there is the inexcusable conclusion that the accused’s version is not only improbable but false.  The second accused chose to come to court and tell a string of lies and lay all the blame on his younger brother.  This is the most disturbing feature of the case.  We are satisfied that the second accused made a conscious decision to seek to mislead the court by laying the blame on first accused.  The accused person failed to show why all the state witnesses would gang up and concoct false testimony against him.

I am aware that the celebrated case of R v Difford 1937 AD 370 at p373, settles the requirements on proof beyond reasonable doubt.  While the accused is expected to give an explanation, such explanation must be probable and consistent with the established facts.  An explanation that is patently false will not provide a defence to a criminal charge.  The accused who gives false testimony and provides an improbable and untruthful account is not entitled to an acquittal. We are satisfied that the state succeeded in proving the guilt of the accused.

In the result, both accused are acquitted on the charge of murder. Accused persons are convicted of culpable homicide.

Sentence

In assessing an appropriate sentence the court shall take into proper consideration the mitigating features of the case as set out by accused’s defence counsel.  The court takes into account that both accused persons are first offenders.  The first accused pleaded guilty to the lessor charge of culpable homicide and showed some measure of remorse.  The accused persons spent nine months in custody pending trial. The second accused denied responsibility and attempted to escape liability by sifting blame to his younger brother.  Both accused persons have the usual family responsibilities.  Their families will lose the financial supply from the accused persons who face custodial sentences as a result of this conviction.  The court bemoans the lack of self- control by both accused persons in the face of provocation and physical attack by the deceased.  The moral blameworthiness of both accused persons is not high considering that the deceased acted extremely unreasonably in provoking and attacking first accused over a $1 debt.  Even when accused offered to trade -off his fish to settle the debt the deceased was adamant that he wanted his money.  Deceased acted aggressively, removed his slippers and shirt and challenged first accused to a fight before delivering one blow to first accused’s chest after dragging his leg and causing first accused to fall from a log.  Whilst the court has taken into account that the deceased caused the altercation, there was need for the accused persons to act responsibly and exhibit self-restraint.  The court accepts that the accused persons had been drinking alcohol the whole day and that their sense of judgment was somewhat impaired by the effect of intoxicating liquor.  Violence of any form against any person which leads to loss of life inevitably leads to custodial sentences in appropriate circumstances.  In this matter there are weighty mitigating circumstances which must result in the imposition of a moderate sentence.  A lengthy term of imprisonment is not called for.  The sentence this court shall impose must be just and fair and must meet the ends of justice.  Before handing down the sentence the observation is made that the conduct of the second accused in kicking the deceased in the abdomen and testicles was barbaric and reprehensible.  A person who targets a man”s most vital organ such as testicles is not only cruel but cowardly and must be ashamed of himself.  This court shall impose the same sentence for both accused persons.  The conduct of accused persons in the circumstances led to the loss of life.  It is inappropriate to hand different sentences for conduct arising from the same offence.

In the result accused persons are sentenced as follows:

“Both accused are each sentenced to 6 years imprisonment.”

National Prosecuting Authority, state’s legal practitioners

Legal Aid Directorate, Hwange 1st accused’s legal practitioners

Dube, Nkala & Company 2nd accused’s legal practitioners