This
record was placed before me endorsed with us following comments from
the learned Senior Regional Magistrate in Chiredzi.
“Clerk
of Court send this record for review 2/11/17”…,.
The
complainant expressed his displeasure over the acquittal of the
accused on a charge of attempted murder as defined in section 89 as
read with section 47(1) of the Criminal ...
This
record was placed before me endorsed with us following comments from
the learned Senior Regional Magistrate in Chiredzi.
“Clerk
of Court send this record for review 2/11/17”…,.
The
complainant expressed his displeasure over the acquittal of the
accused on a charge of attempted murder as defined in section 89 as
read with section 47(1) of the Criminal Law (Codification and Reform)
Act [Chapter
9:23]….,.
The
facts of this matter are as follows:-
The
accused, who is a school teacher, is a brother in law to the
complainant (as he is married to the complainant's sister). On 25th
May 2015 the accused was visited at his residence by the complainant
and his wife's relatives, including the wife's father. The
purpose of the visit is bitterly contested. This was at the accused's
residence in Tshovani Township in Chiredzi. According to the State
case, a dispute arose between the accused and the complainant over
the sufficiency of transport costs tendered by the accused to his
wife's relatives. It is alleged that in the ensuing argument he had
stabbed the complainant on the right rib side and the right elbow
with a knife.
A
medical report compiled by Doctor Ngere however shows only one stab
wound on the right side of the abdomen and not on the elbow. It shows
that moderate force was used and that the injuries, though serious,
were not life-threatening.
This
calls into question the appropriateness of the charge preferred
against the accused moreso as Doctor Ngere was not called to amplify
on the medical report.
The
accused maintained, in his defence, that the misunderstanding between
him and the complainant was centred around demand for outstanding
lobola (bride price) by his wife's relatives and payment of their
transport costs. The accused insisted that the complainant threatened
to harm the accused. The accused's case is that he tried to leave
the house but the complainant blocked him on a number of times. The
accused said as he tried to flee the complainant caught up with him
and attempted to harm him with a sharp object. A tussle ensued
between the two and the accused believes the complainant fell on his
own weapon hence the injury was self-inflicted. The accused said he
managed to flee. The accused, who was legally represented, said all
he did was to act on self-defence and prevent harm which was about to
be inflicted upon him.
I
find no procedural irregularity in the manner in which this criminal
trial was conducted. The State led evidence from the complainant,
Tavonga Varanga, and his father, Keneth Ndarara. The medical report
referred to earlier on was tendered. The accused gave evidence and
called his brother, one Enock Mapindure, as a defence witness since
he was also part of this gathering. The trial was therefore properly
conducted observing all the dictates of a criminal trial.
The
trial magistrate considered all the evidence led in the judgment. The
applicable law was applied to the facts. I shall simply summarise the
evidence for clarity purposes.
The
complainant's evidence is that the purpose of their visit was not
to demand any lobola but to attend to the accused's sick wife. He
disputed that any demand for transport costs was made. In fact, his
version of events is that the meeting was held amicably hence the
attack perpetrated on him was inexplicable.
In
relation to the attack, he said as he was going to his motor vehicle
the accused followed him. It was at night. Only the two of them were
present. The complainant said the accused suddenly attacked him with
what he later saw to be a knife in the abdomen exposing his bowels
after which the accused fled.
Kenneth
Ndarara, the complainant's father, was clearly a confusing witness.
He testified that the dispute with the accused was over his sick
daughter, the accused's wife. He corroborated the complainant that
no demand for lobola or transport costs was made. What was unclear
and consistent about his evidence is whether he witnessed the alleged
attack on the complainant by the accused or how the complainant was
injured. Initially he said he witnessed the attack but in cross
examination he said he did not see how the complainant was stabbed.
He was inconsistent on whether he saw the weapon used. Indeed, the
complainant's evidence suggests that only the accused and the
complainant were at the place the complainant was injured.
The
accused maintained his version on how the complainant was injured.
The accused's father, Enock Mapindure, testified that the
complainant was very violent on the night in question and would not
allow the accused to leave the house where the discussions were being
held. He said when the accused managed to leave it is the complainant
who persued the accused and that no one else was present when the
complainant got injured except the accused and the complainant.
In
brief, this was the evidence placed before the trial magistrate.
As
already alluded to, the trial magistrate gave a very lucid judgment.
The trial court first grappled with the dispute around the purpose of
the visit of the complainant and his relatives at the accused's
residence. Was it to attend to the accused's sick wife or to demand
outstanding lobola and reimbursement of transport costs? After
dealing with the demeanour and credibility of the witnesses a finding
of fact was made in which the trial court believed the accused's
version as regards the purpose of the visit.
The
next issue dealt with by the trial court is the gravaman of this
matter which is how the complainant was injured.
In
my view, a proper finding of fact was made that only the accused and
the complainant were at the place where the complainant was injured.
Secondly, the trial court discussed, at length, as to why it found
the accused's version to be credible. Further, the law in relation
to the defence of self-defence was outlined and applied to the facts
found proved. The trial court rightly concluded that the accused
should be believed in saying he acted in self defence. The State case
was found to be inadequate. Indeed, it is clear that the State failed
to discharge the onus thrust upon it to found a conviction on a
charge of attempted murder or any other permissible verdict.
It
is not un-common that any complainant who reports a criminal matter
to the police expects that the alleged culprit should be convicted.
In casu, the protestations by the complainant, while understandable,
clearly lack merit.
The
trial magistrate's findings cannot be faulted.
In
the premise, I confirm the proceedings as in accordance with real and
substantial justice both in relation to the procedural and
substantive aspects of the law.
