THE State V Timothy Njiva

### Preamble
1
HH 111/13
CRB 110/11
THE STATE
versus
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THE STATE
versus
TIMOTHY NJIVA

HIGH COURT OF ZIMBABWE
CHATUKUTA J
HARARE, 17 May, 23-24 May, 6-8 June 2012 &, 12 April 2013

ASSESSORS:
1. Mr Barwa
2. Mr Gweme

C. Chimbari, for applicant
T. Sakutukwa, for the defendant

CHATUKUTA J: The accused was charged of contravening s 47 of the Criminal Law (Codification and Reform) Act [Cap 9:23]. It was alleged that on 17 June 2007 and at Kadenge Business Centre, Mushonga Ward in Murewa, he fatally stabbed one Paul Ndombo (the deceased).

The accused denied the charge. He stated that he was defending himself from an unlawful attack by the deceased.

The State called the following main witnesses: Tonderayi Kurehwa, Lawrence Njiva and Sheppard Sibanda.

Tonderayi Kurehwa

He testified that he is a member of the Zimbabwe Republic Police. In 2007 he was based in Nyamapanda, Murewa. He is an assistant inspector and has been in the force for eleven years.

On the evening of 17 June 2007 he received a report from one Shepard Sibanda that the body of Paul Ndombo was in a lorry outside the police station. He examined the body and discovered a stab wound on the left chest. The body was conveyed to Musami hospital mortuary on 18 June 2007.

Nothing much turned on this witness’ evidence suffice to confirm the death of deceased.


Lawrence Njiva

He testified that he is the accused’s brother and was with him on the fateful evening. The deceased arrived at the shopping centre in his employer’s lorry. There were other people on the lorry. The accused proceeded to and got onto the lorry. An altercation ensued between the accused and the deceased. He did not know the cause of the altercation as he was about 40 m away from the lorry. He however gathered that the accused is said to have poured beer on people in the lorry. The accused had questioned the deceased about his conduct.

It was his evidence that the deceased alighted from the lorry and started manhandling the accused. He was not able to see clearly what was happening as visibility was poor. The only source of light was about 10 m away and there were some people between him and the lorry as people were disembarking from the lorry. He saw the accused lifting his right hand aiming at the deceased and he assumed that is when the accused stabbed the deceased. He denied observing the deceased head butting and striking accused with open hands.

The witness was evasive and on a number of occasions had to be reminded by the court that he was there to assist the court in explaining what transpired at the scene. In one instance he testified that he observed the deceased manhandle the accused yet he could not explain how the deceased manhandled the accused. In another instance he testified that visibility was poor and he could not see exactly what transpired.

It was difficult to comprehend why he did not show much interest in his brother who was allegedly being attacked by the deceased and did not consider it necessary to assist his brother who was under attack.

The evasiveness of this witness is understandable given his relationship to the accused. He clearly was reluctant to incriminate his brother, the accused. The court therefore finds that the witness was not credible. It is surprising that the State was content with his testimony as it did not in any way enhance the State’s case.

Sheppard Sibanda

He was driving the lorry on the day in question ferrying employees from his employer’s farm to the Kadenge area. The deceased was one of the employees on the lorry.

He stopped the lorry at Kadenge shopping centre to drop off some of his passengers. He observed the accused approaching the lorry in the company of two other persons. He assumed that they were passing by only to be surprised when he was called by the deceased that they had boarded the lorry.
 He went to the back of the lorry where the accused was and ordered him and his friends to alight. They did alight, so did the deceased. He assumed that the accused had left. He was surprised to hear shouts that the deceased had been stabbed. He is the one who made a report to the police and ferried the body of the deceased to the hospital.

Under cross-examination, he testified that although it was getting dark he still could see clearly. He confirmed there was a misunderstanding between the accused and the deceased and when he heard that the deceased had been stabbed he went to the back of the lorry and observed the deceased chasing after the accused. He disputed that the deceased would have attacked the accused as he would have been able to observe the attack given where he was when accused and deceased got off the lorry.

The witness gave his evidence in a clear manner. He confirmed that indeed there was an altercation between the accused and the deceased. Had he wanted to falsely incriminate the accused, he could have lied that the attack on deceased was not preceded by any altercation and that the deceased did not chase after the accused.

We are of the view that the witness was a credible witness and he did not exaggerate his testimony.

The post-mortem report prepared Dr Lucia Garcia was produced by consent. According to the report, the deceased had a 4 by 1.5 cm wound on the left chest. The deceased died of haemothorax as a result of an injury to the thoracic aorta.

The State also produced by consent the accused’s warned and cautioned statement made on 19 June 2007 and duly confirmed by a magistrate on 25 July 2008. The accused described how the deceased had attacked him, head butting him and grabbing his coat.

The State closed its case.

The accused testified in his own defence. He stated that he was at the shops drinking beer when the lorry arrived. He was in the company of two of his friends. He got onto the lorry to greet one Sharon who had called out to him from the lorry. The deceased ordered him to disembark since he was not employed at the farm where the lorry was coming from. As he was disembarking, his cousin who was also in the lorry told him that the deceased had been pouring beer on and had been abusive to some of the passengers in the lorry. He inquired from the deceased about the alleged conduct. An altercation ensued resulting in the deceased manhandling him by the collar of his jacket. The deceased head butted him and started assaulting him with open hands and fists. He attempted to free himself by turning around and in the process got throttled. It is at this stage that he produced the knife with his left hand and stabbed the deceased. His intention was to stab the deceased on the left arm and he missed. The deceased released him after the stab and the accused ran away. Although the deceased pursued him he failed to catch up with him.

The accused in our view was not a credible witness. He could not satisfactorily explain why he got onto the lorry in the first place. His explanation as to why Sharon invited him onto the lorry was riddled with inconsistencies. In one breath he said Sharon could not get off the lorry because there were too many people on the lorry and she could not move freely. He however conceded under cross examination that there were not many people on the lorry as others had already alighted. He then changed his evidence and stated that Sharon was reluctant to get off the lorry because she did not want to lose her sitting place on the lorry where she was protected from the wind.

He further could not explain why his cousin in the lorry reported to him about the deceased’s alleged abusive conduct and not to Sheppard who was in overall control of the lorry. He could not explain what his cousin expected him to do after the report and what he had intended to achieve by questioning the deceased.

He did not proffer any reasonable explanation as to why his friends alighted from the lorry and he returned onto the lorry despite having been ordered to get down by Sheppard. His return onto the lorry appears to have ignited the altercation with the deceased.

He could not also explain how he was able to turn around and give his back to the deceased when he alleged that the deceased was holding him by the collar throttled him. It was and is not conceivable that he attempted to stab the deceased on the left hand sideways and yet the deceased’s hand was over his shoulders. It was further inconceivable that as a result he stabbed the deceased in the middle of the chest.

It was also inconceivable that when he called out for help when deceased was allegedly assaulting him no one, even his friends who had been in his company heard him, his explanation being that there was a lot of noise. However, Sheppard was able to hear the deceased calling out that he had been stabbed through the noise.

The following facts, arising from the above evidence, are common cause. There was an altercation between accused and the deceased following which the accused stabbed the deceased on the left chest between the breasts. The wound was 4cm deep and 1.5cm wide. The deceased died soon after the attack from the wound inflicted by the accused.


The main issue for determination is, in our view, whether or not the accused inflicted the fatal wound in self defence. The onus rests on the accused to prove that he acted in self defence. He is required to prove that:

1. he was under an unlawful attack which had commenced or was imminent; and
2. his conduct was necessary to avert the unlawful attack and he could not otherwise escape from or avert the attack; and
3. the means used to avert the attack were reasonable in all the circumstances; and
4. the harm caused in averting the attack was not grossly disproportionate to that being caused by the deceased. (See s 253 of the Criminal Code, S v Magoge 1988 (1) ZLR 163 (SC)).

It is our view that the accused failed to prove that he was under an unlawful attack.

The only independent witness, that is Sheppard Sibanda, did not witness any attack on the accused by the deceased and was clearly in a position to have witnessed such an attack.

The inconsistencies highlighted above in the accused’s evidence in our view indicate that he in fact was the aggressor. He got onto a lorry he was not supposed to board. His friends who had boarded the lorry lighted and as per his evidence he remained behind. He could not explain why his cousin reported to him the deceased’s alleged abusive conduct. It is our view that he initiated the altercation by further asking the deceased about the allegation relayed to him by his cousin. He could not even explain what he intended to achieve in questioning the deceased about the allegations.

Further, the description of the attack on him by the deceased in the defence outline and evidence-in-chief is inconsistent with the description he gave in the confirmed warned and cautioned statement. In his defence outline he stated that the deceased was grabbing him in such a way that he could not use his hands. In his evidence-in-chief and under cross examination he testified that he could use both hands, one to shield the blows from the deceased and the other to attempt to loosen the deceased’s grip. The explanation as to how he managed to turn around, pull out a knife from his pocket and then stab the deceased was so dramatic that it is more of a scene in a Hollywood movie then in real life. The nature of the injuries are not consistent with the positioning of the parties as alleged by the accused. The accused alleged that he was standing in front of the deceased with his back to the deceased. The deceased was holding him in such a way that he could not free himself. They must therefore have been very close to each other, yet the accused was able to stab the deceased on the same side as the hand that was holding the knife. To dramatise it further, he was able to stab the deceased not on the side of the body or arm but on the middle of the chest nearer the left breast. The force used under the stated circumstances was so excessive that the stab wound was 4cm deep and lacerated the thoracic aorta.

The accused’s own brother, Lawrence, testified that although he saw the accused lifting one of his hands (which action he interpreted to be the stabbing of the deceased) he did not witness the deceased assaulting the accused with open hands and fists or head butting him. The accused and the deceased had been facing each other.

Further and more importantly, the accused’s defence in the defence outline and evidence-in-chief clearly contradicts the warned and cautioned statement. There is no mention in the warned and cautioned statement of the assaults with open hands and fists. The only attack mentioned is the head butting and grabbing of the coat which accused stated prompted him to pull out the knife and attack the deceased. The warned and cautioned statement was made on 19 June 2007, two days after the attack. The accused’s recollection of events was surely fresh and clearer then as opposed to the defence outline of 16 May 2012, five years later. It therefore appears that the alleged attack by the deceased was conceived in 2012 in preparation for the trial.

In the result the accused has not been able to discharge the onus that he was under any attack. The accused as submitted by the State should have realised that there was a real risk or possibility that the use of a knife would have fatal consequences.

The accused is accordingly found guilty of contravening s 47 1(b) of the Criminal Law (Codification and Reform) Act.

Sakutukwa & Partners, accused’s legal representative
The Attorney General, State’s legal practitioners
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