The
accused person faces a charge of murder in that it is alleged that on the 30th
of December 2012, he stabbed and killed Zenzo Ncube. The facts of the case,
which are mostly common cause, are as follows.
The
accused person, who was with others, amongst them his younger brother,
Nkosiyalinda Ngwenya (the second State witness), were at a borehole in Ngoma
area of Gwanda. They were looking for their donkeys. The deceased
arrived at the borehole in the company of Honest Siziba (the first State
witness). Honest Siziba and the deceased were also looking for their
donkeys. They found the accused and the other boys, including the
accused's younger brother Nkosiyalinda Ngwenya, at the borehole. They
asked them if they had seen their donkeys to which the accused, and the others
who were in the accused's company, answered in the negative. The two, that
is the deceased and Honest Siziba then left the borehole. After walking
for some distance, the deceased and Honest Siziba heard sounds of bells that
resembled the sound of the bell of their donkey. The sound came from the
direction of the borehole. They then went back to the borehole to check on
this lead. At the borehole, they realised that the sound they were
tracking in fact was not for their donkey's bell. Honest Siziba then asked
the accused to pump water for him from the borehole so that he could
drink.
The
accused did.
The
deceased drank water and as he was leaving he called the accused's younger
brother, Nkosiyalinda Ngwenya. Nkosiyalinda Ngwenya refused as he was on a
mission looking for donkeys. The deceased then chased Nkosiyalinda Ngwenya,
caught up with him and fell him down, whereupon he then pulled him by the leg
and is so doing dragged him. The accused then intervened. He queried
as to why the deceased did that and the deceased then asked him (the accused)
what he intended to do about it. When the deceased walked away, the accused
then decided to confront him and they came face to face. The accused then
acted as if he was walking away for some short distance, when the accused was
now behind the deceased, he drew out a knife and stabbed the deceased from the
back at the back of the neck. He pulled out the knife and fled from the
scene. At the time, the accused approached the deceased, when the deceased
asked him what he intended to do, the accused and the deceased were standing
close to each other facing each other. It is at that juncture that the
accused then acted as if he was going away, that is passing the deceased
walking towards the direction that the deceased had his back on. He then
turned after passing the deceased and then stabbed him once at the back of the
neck. Honest Siziba then assisted the deceased to get to the nearest
homestead. He left the deceased at that homestead in the company of the
resident of that home and went to call the deceased's relatives. At the
time he came back, that is when he discovered that the deceased had passed on.
It
was also the evidence of Nkosiyalinda Ngwenya that Honest Siziba was carrying a
stick at the time all this happened but that he did not use it on anyone. Nkosiyalinda
Ngwenya estimated the size of the stick to be about +/- 40cm long and about +/-
10cm thick. He said, nonetheless, Honest Siziba had just been carrying
that stick when all this was happening and did not use it to strike anyone or
threaten anyone - including the accused person.
It
is also common cause that at the time the deceased pulled Nkosiyalinda Ngwenya he
had burn injuries from a previous unrelated incident on his tummy and
thighs. Both State witnesses who gave viva voce evidence,
that is Nkosiyalinda Ngwenya and Honest Siziba, told the court that there was
never a fight between the deceased and the accused.
The
evidence of the rest of the witnesses as indicated in the summary of the State
case…, was admitted in terms of section 314 of the Criminal Procedure and
Evidence Act with the consent of the defence counsel.
The
Defence Outline was read and tendered and it was marked Exhibit II. In the
Defence Outline, the accused's version is primarily similar to that of the State
case, the only difference being in paragraph 4 thereof reads as follows:
“He
will further state that the deceased and his friend started fighting with the
accused and they hit him with a stick. In self defence, he drew an okapi
knife from his pocket and stabbed the deceased once on the right side of the
neck.”
It
is crucial at this juncture to mention that in his evidence in chief, the
accused abandoned this assertion as clearly he did not tell the court that the
deceased and his friend fought with him or that they hit him with a stick; he,
in fact, stated a version similar to that of the State witness and only
differed on the aspects of his own apprehension in that he felt angry and
threatened by the deceased's conduct. He also told them that in fact
he had a grudge with the deceased in that on Christmas day ( approximately 5
days prior to the fateful day), the deceased had insulted him and he was
restrained by his (accused's older brother) who was present then. He went
on to tell the court that in fact when the deceased started harassing him,
(accused) actually thought that the deceased was continuing in his conduct as
he had previously insulted him days prior to the fateful day….,.
The
accused person himself says at the time that the deceased dragged Nkosiyalinda
Ngwenya, he queried this and the deceased asked him what he was going to do
about it. He then says when the deceased walked away, he decided to
confront him and they came face to face. He then indicates to the deceased
that what he was doing was wrong and that he (accused) was not pleased with
it. He then says he got angry at the time that he confronted the deceased
and he ended up stabbing him.
Under
cross-examination, he said he decided to use a knife as he feared that the
deceased and Honest Siziba would overpower him.
He
confirmed that the deceased and Honest Siziba did not attack him in any way but
that he thought because of the pending grudge maybe they had come to attack
him. Under cross-examination, he said he did not intend to kill the
deceased but that at the stage when he walked past the deceased to the back of
the deceased, it was at that stage that he was overcome by anger. He also
said he stabbed the deceased as he wanted him to flee and leave his young
brother alone.
The
court has to make a finding at this stage if at all the accused person acted in
self-defence on these facts.
Section
253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides
on self defence as follows:
“253(1)
Subject to this part, the fact that a person accused of a crime was defending
himself or herself or another person against an unlawful attack when he or she
did or omitted to do anything which is an essential element of the crime
shall be a complete defence to the charge if:-
a)
When he/she did or omitted to do the thing, the unlawful attack had commenced
or was imminent or he or she believed, on reasonable grounds, that the unlawful
attack had commenced or was imminent, and
b)
His or her conduct was necessary to avert the unlawful attack and he or she
could not exercise escape from or avert the attack or he or she believed, on
reasonable grounds, that his or her conduct was necessary to avert the unlawful
attack and that he or she could not otherwise escape from or avert the attack,
and
c)
The means he or she used to avert the unlawful attack were reasonable in all
the circumstances, and
d)
Any harm or injury caused by his or her conduct –
i)
Was caused to the attacker and not to any innocent third party;
ii)
Was not grossly disproportionate to that liable to be caused by the unlawful
attack.”
In
this case, the accused person's young brother was attacked by the
deceased.
The
first requirement of section 253 of the Criminal Law (Codification and Reform)
Act [Chapter 9:23], that there should be an unlawful attack on the accused or a
third party, is satisfied.
The
accused person states, in his own evidence, that at the time that the deceased
attacked Nkosiyalinda Ngwenya, he queried this and the deceased then asked him
what he would do about it. He then says when the deceased walked away, he
decided to confront him and they came face to face.
It
is important to note that in his own words, the accused queried the deceased's
conduct and although the deceased responded with indignation, the deceased,
however, started walking away, meaning that the deceased had, at that stage,
abandoned the attack on Nkosiyalinda Ngwenya.
The
second requirement for self-defence in section 253 of the Code is not satisfied
from these facts as it clearly provides that the accused's conduct should be
necessary to avert the attack and it should be in such circumstances as the accused
cannot escape from. But, it is clear from the facts that at the stage the
accused approached the deceased and stood before him face to face, the deceased
had already abandoned the attack and was already walking away. From the
accused's own evidence, the deceased had heeded the accused's query although he
commented as to what the accused would do about it, he then let go as he was
walking away.
What
then prompted the accused to confront the deceased in the manner that he did is
no longer what section 253(b) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23] envisages; as section 253(b) does not avail itself to a person
who attacks another when in fact the attack has ended and the attacker is
retreating from the unlawful action.
Section
253(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] stipulates
that the means used to avert the attack must have been reasonable in the
circumstances.
Clearly,
the accused was unarmed and although Honest Siziba was armed with a stick, as
stated by Nkosiyalinda Ngwenya, Honest Siziba was never part of the attack…,. So
why would the accused use a knife on an unarmed man who had since stopped the
unlawful attack on the accused's brother? It can thus not be found that
the accused's conduct was necessary in the circumstances. What makes
matters worse is that the attack had ended so where would the necessity to avert
the attack then come from?
Section
253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is to the
effect that the harm caused must be on the attacker and it should not be
grossly disproportionate to that liable to be caused by the unlawful
attack. The deceased dragged Nkosiyalinda Ngwenya with his hands, the
accused queried, the deceased started walking away; meaning to then attack the
deceased with an okapi knife in the circumstances is certainly grossly
disproportionate to the harm the deceased was likely to cause, or had already
caused, to Nkosiyalinda Ngwenya (since the attack) was over. So the
accused's reaction was grossly disproportionate to the harm already caused by
the deceased to Nkosiyalinda Ngwenya as the deceased had already stopped and
was walking away. Clearly, there was no more impending harm as the
deceased, who was unarmed, was now walking away.
For
the aforestated reasons, it is our finding that self defence is not available
to the accused on the facts before me.
The
accused person acted wrongfully in the circumstances.
