The accused pleaded not guilty to a charge of
contravening section 47 of the Criminal Law (Codification & Reform) Act
[Chapter 9:23]. He is alleged to have stabbed the deceased with a sharp object
under the armpit leading to his death.
In his Defence Outline, the accused denied the charge and
explained the circumstances of the deceased's death as follows. He, on 15
February 2009, met Victoria Laura Dhlamini at Fife Avenue Shopping Centre and
arranged a date with her for that afternoon. He picked her up from her parents'
house at No.2 Barrington Close, Waterfalls, and went with her to Zindoga
Shopping Centre to drink and braai meat. He took her back to No.2 Barrington
Close at about 7:00pm and proceeded back on his way to town. He was blocked by
the deceased's car forcing him to drive back to No.2 Barrington Close with the
deceased's motor vehicle in hot pursuit. He flashed and hooted his car as he
drove back to No.2 Barrington Close. When he arrived, he asked a man who had
opened the gate for Victoria Laura Dhlamini, when he brought her back, to open
the gate for him. The man did not open the gate but walked back into the
premises. The deceased got out of his motor vehicle and engaged him in a fight,
during which a dreadlocked man charged at him with a sharp object ready to stab
him. He warded off the blow, which, as a result, stabbed the deceased under the
armpit. The deceased slumped to the ground and died. The dreadlocked man fled
from the scene. The accused got into his motor vehicle and drove away from the
scene and eventually reported the incident to Southerton Police Station.
His defence was that he did not stab the deceased. He, in
the alternative, said if the court does not believe that the deceased was
stabbed by the dreadlocked man, and find that he stabbed the deceased then he
was defending himself from the deceased whom he believed to have been a robber
who had waylaid and blocked his way with intent to harm and rob him….,.
Victoria Laura Dhlamini told the court of how she met the
accused at Fife Avenue Shopping Centre and agreed to go with him to Zindoga
Shopping Centre that afternoon. He picked her from their home and they spent
time together at Zindoga Shopping Centre till about 7.00pm when he dropped her
at their gate. He drove off but came back within a few minutes hooting
continuously and flashing his lights. The events where so frightening that her
mother sent her and children to hide at the chicken runs.
Avril Sarudzai Dhlamini's evidence was to the same
effect. She is Victoria Laura Dhlamini's mother. She saw two cars approaching
their gate. The one in front, which was the accused's, was hooting continuously
and flashing its lights. The other car, which was behind, and was the
deceased's, parked behind the one in front but at an angle. It had one
headlight on. She, believing the people outside her locked gate could be
thieves sent Victoria Laura Dhlamini and the children to the chicken runs
behind the house. She confirmed that Obrian Sibanda went to the gate but could
not open the gate for the driver in front who appeared desperate. The motor
vehicle with one headlamp on remained at the gate. She became worried and
called Mrs Mahachi for help. Mrs Mahachi contacted a Mr Deketeke of the
Neighbourhood Watch. Mr Deketeke came after about thirty minutes. They then
went out and discovered the deceased's body and that it was that of Victoria
Laura Dhlamini's child's father. They noticed that the deceased's motor
vehicle's front number plates had been removed.
She reported the matter to Waterfalls Police.
Evangelista Ushe, the deceased's mother, told the court
that the deceased was her first child. He had a child with Victoria Laura
Dhlamini though they never got married to each other. She believed her son and
Victoria Laura Dhlamini where still in love though she was aware that their
relationship had problems which necessitated the intervention of an uncle to
reconcile them in December 2008. Victoria Laura Dhlamini had last visited her
home in August or September 2008 to show her the child. She, on that occasion,
had to call Victoria Laura Dhlamini's mother to ask her to send her brother to
come and speak to the deceased and Victoria Laura Dhlamini as they were
quarreling. On the fateful day, the deceased left home at 18.00 hours with both
number plates on his car. She was later phoned by the police who informed her
of her son's death. Under cross-examination, she said in December 2009 the
State declined to prosecute the accused. She went to see the police about it
because she wanted the person who killed her son to be punished. She confirmed
that when she went to the scene she noticed that her son's Mtubishi Lancer did
not have its front number plates on. They had to apply for its replacement.
She, however, conceded that she does not know who killed her son but denied
that he had left home with any dreadlocked person….,.
Nomatter Chigwende was employed as a maid at No.2
Barrington. The deceased came to No.2 Barrington after 6.00 pm on 15 February
2009. He inquired if Victoria Laura Dhlamini was at home. She told him she was
not. She spoke to him from a distance. She did not see any one else in his car
though she observed from a distance and it was getting dark. She observed that
the deceased's motor vehicle had its front number plates on. About an hour
later she, while in the house, heard hooting of motor vehicles which went on
for about 10 minutes. Obrian Sibanda went to the gate and came back reporting
that there were two cars at the gate and that he had been requested to open the
gate but he did not. Obrian Sibanda came back looking scared.
The State led evidence from Obrian Sibanda, its key
witness, who confirmed that the accused dropped Victoria Laura at about 7:00pm,
and drove away, but came back within 5 minutes with another motor vehicle
driving behind him. The accused was flashing the lights of his motor vehicle
and continuously blowing its horn to attract attention. He stopped in front of
the gate, came out and pleaded with him to open the gate for him. The deceased
parked his motor vehicle behind the accused's, at an angle, blocking the
accused's. Obrian Sibanda, fearing for his life, did not open the gate but
walked back into the premises leaving the accused holding a green bottle and a
cylindrical object 30cm long and 4cm thick in his hand. He had observed the
deceased's motor vehicle's door being opened and seen a leg coming out. He
could not see whether or not the deceased was alone in his motor vehicle. Both motor vehicles' did not have their
internal lights on.
The State's evidence from other witnesses did not improve
on Obrian Sibanda's evidence….,.
Counsel for the accused then applied for the accused's
discharge at the end of the State's case in terms of section 198(3) of the
Criminal Procedure and Evidence Act [Chapter 9:07]. The section provides as
follows;
“(3) If at the close of the case for the prosecution the
court considers that there is no evidence that the accused committed the
offence charged in the indictment, summons or charge, or any other offence of
which he might be convicted thereon, it shall return a verdict of not guilty.”
She submitted that there was no evidence to prove that
the accused stabbed the deceased and that he had an intention to cause the
deceased's death. She submitted that the State had not proved the essential
elements of the crime charged. She, in the alternative, submitted that the State
had not led any evidence to show that the accused was not defending himself if
the court finds that he is the one who stabbed the deceased. She submitted that
the State's case is based on circumstantial evidence and that the evidence
leads to the inference that the accused did not stab the deceased or, if the
court finds that he did, that he was defending himself.
In response to the defence's application, counsel for the
State submitted that the fact that the accused went home before reporting the
incident at the nearest police station should lead to the inference that he had
stabbed the deceased and wanted to remove blood-stained clothes before
reporting to the police.
The evidence led by the State must be considered in its
totality for reasonable inferences to be drawn from it. It is not proper to
pick and choose evidence to be used for drawing inferences. When circumstantial
evidence is to be used, all the evidence led must be considered to find the
facts found proved from which the reasonable inference should be drawn.
Inferences drawn from chosen bits and pieces of the evidence led will not be reasonable
and are of no evidential value. Unfortunately, that is how the State drew the
inferences it advanced in its opposition to the accused's application for
discharge.
L. H. HOFFMANN and D.T. ZEFFERT, in their book, The South
African Law of Evidence 4th Edition…, commented on the use of
circumstantial evidence as follows;
“The cogency of circumstantial evidence usually arises
from the number of independent circumstances which all point to the same
conclusion. Each fact may be, in itself, perfectly consistent with innocence,
but the court is not obliged to consider them in isolation. The question in a
criminal case is whether the evidence, as a whole, furnishes sufficient proof
of guilt.”
The facts which give the whole picture of the events
which led to the deceased's death must be considered.
In S v Hartlebury & Anor 1985 (1) ZLR (HC) McNALLY J…,
held that where the State seeks to rely on inferences drawn from circumstantial
evidence its necessary that objective facts giving rise to the inference be
established. The establishment of facts simply means those facts have been
found proved.
In this case, the following facts were established.
1. That the accused befriended Victoria Laura Dhlamini
after meeting her for the first time at Fife Avenue Shopping Centre in the
afternoon of the fateful day.
2. That the accused picked Victoria Laura Dhlamini from
her parents' home later that afternoon and took her to Zindoga Shopping Centre.
3. That at about 7.00pm he drove Victoria Laura Dhlamini
back to No.2 Barrington Close, in Waterfalls, and drove off in a happy mood.
4. He was intercepted by the deceased who used his motor
vehicle to block the accused's way.
5. The deceased had a child with Victoria Laura Dhlamini
and had, at around 6.00pm, come to No.2 Barrington inquiring on Victoria Laura
Dhlamini. He was told she was not at home. His motor vehicle then had both its
number plates on. The maid who he inquired from did not see whether or not he
had another person in his car.
6. The deceased was in the vicinity of No.2 Barrington
when the accused dropped Victoria Laura Dhlamini. He blocked the accused's way
as he drove from No.2 Barrington. He forced the accused to drive back to No.2
Barrington.
7. The deceased's motor vehicle's front number plates had
been removed. His mother confirmed that both number plates were on when the
deceased left home at around 6.00pm and were not on when she was called to the
scene by the police. It was now dark and there was no electricity in that area.
8. The accused drove back to No.2 Barrington,
continuously hooting his motor vehicle's horn and flashing its lights.
9. He got to the gate of No.2 Barrington and begged Obrian
Sibanda to open the gate for him. The deceased's motor vehicle had pursued him
to the gate of No.2 Barrington and parked behind him at an angle obviously
blocking his way out. Obrian Sibanda was afraid and refused to open the gate
for him. He walked back to the house as a person in the deceased's motor
vehicle stepped his leg out of the motor vehicle. Obrian Sibanda and the people
at No.2 Barrington were terrified by what was happening at the gate, to the
extent that Avril Sarudzai Dhlamini, Victoria Laura Dhlamini's mother, sent Victoria
Laura Dhlamini and the children to go and hide at the chicken runs.
10. Before walking back to the house, Obrian Sibanda had
seen the accused holding a green bottle and a cylindrical object about 4cm
thick.
11. Obrian Sibanda was not able to see into the accused's
and the deceased's motor vehicles as their internal lights were not on.
12. The accused's motor vehicle drove off at high speed
as Obrian Sibanda was about to get into the house.
13. The deceased's motor vehicle remained at the gate
with one headlight on.
14. The deceased was later found dead at the scene
outside the gate of No.2 Barrington.
15. The police found struggle marks at the scene.
16. The deceased had a stab wound under his armpit and
other injuries including those on his legs.
17. That the accused went to his Flat and changed his
clothes and later, voluntarily, reported the incident at Southerton Police
Station.
The above is the evidence from which reasonable
inferences should be drawn. Those inferences must be consistent with all the
proven facts and no other contrary reasonable inferences should be capable of
being drawn from those facts. See the case on S v Shonhiwa 1987 (1) ZLR 215
(SC).
The reasonable inference which can be drawn from proved
facts numbers one to six is that the accused did not know the deceased, or of
his relationship with Victoria Laura Dhlamini as he had met Victoria Laura
Dhlamini for the first time that afternoon. He was thus taken by surprise when
the deceased blocked his way with a motor vehicle which did not have its front
number plates on. He must have genuinely believed he was about to be robbed.
The inference which can be drawn from facts found proved
number seven to nine is that the accused genuinely believed he had been
intercepted by robbers and drove back to the only place he knew in the area - Number
2 Barrington - continuously blowing his horn and flashing his lights to attract
the attention of those who could help him. There can be no other reason why he
was blowing his horn continuously and flashing his lights. His intention to
seek help is confirmed by Obrian Sibanda who said he desperately begged him to
open the gate for him.
The reasonable inference which can be drawn from facts
found proved number nine to ten is that the accused, having been pursued and
blocked by the deceased's motor vehicle, armed himself with a green bottle and
a cylindrical object for purposes of defending himself as he had now been
cornered after Obrian Sibanda refused to open the gate for him.
The reasonable inference which can be drawn from fact
found proved number eleven is that the possibility of another person having
been with the deceased is not excluded.
The reasonable inference which can be drawn from facts
found proved numbers twelve to sixteen is that the accused, and whoever came
from the deceased's motor vehicle, struggled with each other leading to the
deceased's death and that the struggle took a very short time as demonstrated
by the deceased having driven off before Obrian Sibanda entered the house.
The inference the State sought to draw from the fact
found proved number seventeen is not the only reasonable inference which can be
drawn from it. The accused's explanation, as per his indications, that his
clothes got dirty from changing his motor vehicle's tyre, is also a reasonable
one.
The above inferences build up to only one reasonable
inference; that the accused believed he was under attack and sought to seek
refuge at Number 2 Barrington without success leaving him with no option
besides having to defend himself. The inference that another person joined in
the struggle and accidentally stabbed the deceased is strengthened by Obrian
Sibanda's observation that the accused was armed with a green bottle and a
cylindrical object about 4cm thick. When this is compared with the Doctor's
finding that a sharp object was used it becomes unlikely that the 4cm thick
object could have caused the deceased's injury found under the armpit. The fact
that the deceased was stabbed under the armpit means he was not just standing
but was in action which necessitated his lifting his arm and thereby exposing
his armpit.
This means there is no evidence on which a reasonable man
can convict as the accused was cornered and was clearly acting in self defence
- if he is the one who struck the fatal blow. There is also no evidence to
prove that the dreadlocked third person did not join the struggle and stab the
deceased as alleged in the accused's Defence Outline.
In the case of S v Kachipare 1998 (2) ZLR 271 (SC) it was
held (per GUBBAY CJ and SANDURA JA) -
“Where, at the end of the State case, there is no
evidence upon which a reasonable court might convict, the court has no
discretion: it must discharge the accused. The court may not exercise its
discretion against the accused if it has reason to suppose that the inadequate
State evidence might be bolstered by defence evidence. The evidence in this
case was purely circumstantial and was not evidence upon which a reasonable man
might draw the inference suggested by the State. The appellant should have been
discharged at that stage of the trial.”
The court is therefore satisfied that no reasonable man
can convict on the evidence adduced by the State for the reasons explained
above.
In the result, the accused is found not guilty
and is acquitted at the end of the State's case.
