BERE J: On 10th
of April 2015, Nkululeko Vuma (the deceased) lost his life through
stabbing at Manwele Beer Garden in the suburb of Mzilikazi here in
Bulawayo. The accused person, Simon Ncube was responsible for the
stabbing hence he stands accused of the crime of murder as defined by
section 47(1) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23].
From the facts given in this case
it is clear that the following facts are not in dispute.
On the day the deceased met his
fate he was drinking beer at Manwele Beer garden with Ritha Nxumalo
and other patrons related to Ritha Nxumalo. At around 2100 hours in
the evening the accused arrived in the beer hall and after exchanging
greetings with his aunt Ritha and after having briefly conversed with
her the accused picked up a misunderstanding with her over the death
of his mother. It was this misunderstanding which prompted the
deceased to reprimand the accused for being disrespectful to those
who were around and much older than the accused.
It is common cause that the
misunderstanding between the deceased and the accused led to a fight
between the two leading to the accused being overpowered and fleeing
out of the bar. It is also not in dispute that when the accused ran
out of the bar he was pursued by the deceased who caught up with him
outside.
Ironically what happened outside
was outside the purview of any of the State witnesses. This is
because Ritha Nxumalo had gone to the toilet to relieve herself and
the other people including Thomas Dube who had witnessed the first
fight had remained in the bar. The details of what happened when the
deceased caught up with the accused outside the bar is privy to the
accused person only.
What Thomas Dube and Ritha
Nxumalo only saw outside was the deceased lying supine on the ground
with blood oozing from him. From Exhibit 'A', the post mortem
report, it looks like the stabbing was so bad that it severely
damaged the aorta artery and in the process causing severe left
haemothorax leading to the immediate demise of the deceased.
Tragically, as in most of these
cases, the deceased did not survive to tell his story. Only the
accused remains to tell us what exactly happened leading to the
stabbing itself. Deprived of the benefit of direct evidence the court
has been urged to rely on circumstantial evidence to try and find out
how exactly the deceased lost his life. I will come back to deal with
the principles governing conviction through circumstantial evidence
later in this judgment.
In denying the charge of murder
that has been preferred against him the accused principally raised
the defence of self defence after receiving what he referred in his
defence outline as “extreme assault and provocation from the
deceased.” The accused's brief script around his defence is that
after engaging in a fight with the deceased he was overpowered and
ran out of the bar with the deceased in hot pursuit of him. When the
deceased caught up with him the deceased tripped him to the ground
and continued to punish him with clenched fists while he lay down
struggling to free himself. The accused said as the deceased laid on
his belly with one hand holding him by his collar, the deceased
reached out for what turned out to be the murder weapon. But
fortunately as the two continued to struggle on the ground the
deceased dropped the knife which the accused picked up and stabbed
the deceased once on the collar bone, ending the deceased's life.
As already indicated, the
accused's defence is built around the defence of self-defence and
our codified law recognizes the existence of this defence.
Self-defence which is also referred to as defence of person can be a
complete defence if all the requirements set out in section 253 of
the Code are satisfied. It is important to re-state the requirements
of this defence as codified in our law. The relevant section reads as
follows:
“253. REQUIREMENTS
FOR DEFENCE OF PERSON TO BE COMPLETE DEFENCE
(1) Subject to this Part, the
fact that a person accused of a crime was defending himself or
herself or another person against 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 or 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
otherwise 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; and
(ii) was not grossly
disproportionate to that liable to be caused by the unlawful attack.
(2) In determining whether or not
the requirements specified in subsection (1) have been satisfied in
any case, a court shall take due account of the circumstances in
which the accused found himself or herself, including any knowledge
or capacity he or she may have had and any stress or fear that may
have been operating on his or her mind.”1
See also UCHENA
J's (now JA) position in The
State vs Webster
Choruma and Action Choruma.2
The accused's uncontroverted
evidence which incidentally got support from Thomas Dube and Ritha
Nxumalo was that both the accused and the deceased appeared to have
been drunk when they picked up a misunderstanding. We must therefore
assume that their power of judgment must have been compromised.
Thomas Dube, who is the only
witness for the State to have witnessed the first fight between the
accused and the deceased confirmed what the accused told the court
that he was overpowered by the accused and ran out of the bar with
the accused after him in hot pursuit. In his own words Thomas Dube,
was said to have stated the following in the State summary;
“This witness will state that
as they were drinking beer the deceased started a scuffle with the
accused person. This witness will state that he did not know how the
scuffle had started and what was the bone of contention. The scuffle
between the two continued until it generated to a fist fight. The
accused person was overpowered and he ran out of the beer garden,
however the deceased followed him in hot pursuit.”
My emphasis
Unfortunately for the State what
happened outside the bar was not witnessed by any of its witnesses.
The accused's testimony filled up that lacuna by providing graphic
details of how he was tripped by the deceased and continued to be
punished whilst lying down on his back right up to the stage when the
deceased pulled out a knife which the accused, by mere opportunity
used to stab him.
It is significant to us that the
stabbing was once.
In his evidence in chief and
under cross-examination the accused largely corroborated the evidence
of Thomas Dube. Thomas Dube could not controvert the evidence of the
accused surrounding the stabbing because he was not there when that
happened. The accused said that he used the knife by opportunity and
he felt that if he had no used it, it could possibly have been used
against him.
It is quite tempting for us
sitting here as a court and in the comfort of this court room to
start speculating on what the accused should have done to avoid the
killing. But practice and experience cautions us against adopting an
armchair approach when we deal with situations of self-defence. See
G Feltoe's views3
As a court we invited the accused
to take us to the scene of the stabbing when he was giving evidence.
The accused gave us a chilling account of what happened leading to
the deceased's stabbing.
We are unanimously convinced that
the accused's use of the knife in those circumstances was a
necessary evil.
There was a heated debate
generated in these proceedings as regards the origins of the knife
that turned out to be the murder weapon. Two schools of thought
arose. The prosecution urged the court to make a specific finding
that the knife was with the accused person at the time he was being
assaulted by the deceased. The defence on the other hand passionately
argued and urged the court to make a finding consistent with the
accused's testimony that the knife was in the possession of the
deceased person and that it was him who produced it when the accused
was down and being punished by the deceased.
In its argument, the State was
persuaded to take its position by the evidence of the accused's
sister Sibonginkosi Ncube who testified that on the night of the
assault when she was awoken by the accused, the accused tussled and
threw exhibit 2 on the top of her blankets and that she later gave
this knife to the police.
It must be emphasised that
Sibonginkosi was clear that this knife had no blood stains on it.
Given the injuries reflected in exhibit 1, the post mortem report, it
is very unlikely that that knife, if it was the murder weapon would
not have had blood stains. Our view is that if the State wanted to
derive some evidential value from that knife it should have been sent
for forensic examination.
In any event there is nowhere in
the State case where it is shown that exhibit 2 was at any time shown
to the accused for him to confirm that it was the murder weapon
before he was taken to court for trial.
The State also sought to rely on
the fact that when the knife was produced in court by consent in
terms of section 3144
it meant that the accused was accepting that it was the murder
weapon.
I do not believe that the
acceptance in evidence of the knife in terms of section 314 in this
case meant that the accused was accepting the knife as the murder
weapon because this was not suggested to him during its production,
nor was her counsel asked to confirm that the knife was being
produced as the murder weapon. The court's view is that it is a
misreading of section 314 that anything produced in terms of it is
immune from challenge in the absence of the other part having so
confirmed that. I draw an analogy with the production of a confirmed
warned and cautioned statement which is admissible upon its mere
production by the prosecution. This does not mean that such a
statement is immune from challenge by an accused if he decides to do
so. The effect is simply that the onus
shifts to him if he/she decides to challenge it.
In his evidence in chief, the
accused consistently maintained that the investigating officer never
showed him and sought his confirmation on the murder weapon. It was
only when he was in court that he gathered that the exhibit was being
referred to as the murder weapon. The accused's challenge to that
exhibit runs through his evidence in chief and examination of that
evidence. The accused maintained throughout his testimony that the
knife he used to stab the deceased was not before the court. Our
view is that the position remains probable.
The court has been urged by the
State counsel to pronounce the accused person guilty in this case on
the basis of circumstantial evidence. As observed by my brother
MAKONESE
J in the case of The
State vs Sonny
Kuzomunhu Chasi5;
“The law of circumstantial
evidence is however well traversed in our jurisdiction. The law on
this subject has its basis on the two cordial rules of logical
inference as laid down by WATERMEYER
(JA) in the case of R
v Blom
1939 AD 188, where the learned judge observed that the following
rules must be observed;
“(a) the inference sought to be
drawn must be consistent with all the proved facts. If it is not the
inference cannot be drawn.
(b) the proved facts should be
such that they exclude every reasonable inference from them save the
one sought to be drawn. If they do not exclude other reasonable
inference, then there must be doubt whether the inference sought to
be drawn is correct.”
See also the case of S
v Marange
1999 (1) ZLR 244 SC
where KORSAH
JA at page 249 referred to an English case as follows;
“Lord Normand observed in Tepes
v R
[1952] AC 480 @ 489 that;
'Circumstantial evidence may
sometime be conclusive, but it must always be narrowly examined, if
only because of this kind may be fabricated to cast doubt on another.
… It is also necessary before drawing the inference of the
accused's guilt from circumstantial evidence to be sure that there
are not other co-existing circumstances which would weaken or destroy
the inference.'”
The story told by the accused
person in this case is not without corroboration and it is as
follows:
When he entered Manwele Beer
Garden to drink beer he picked up a quarrel with the deceased and
this resulted in a fight in which he was overpowered and ran away.
The accused was then chased after by the deceased outside the bar
where a few minutes later the deceased was found in a pool of blood.
All this is confirmed by the State witnesses.
The accused goes further to give
a detailed uncontroverted explanation surrounding the circumstances
of the actual stabbing leading to the death of the deceased. Taking
into account the prior circumstances of the misunderstanding between
the deceased and the accused, we believe the story told by the
accused person is reasonably possible and in such circumstances guilt
by inference is clearly inappropriate.
In conclusion I wish to emphasise
the fact that the use of immoderate force will not excuse an accused
where the defence of self-defence is relied upon. I have already
dealt with the circumstances under which the accused stabbed the
deceased in this case.
The accused's uncontroverted
explanation is that in the hustling and pushing that he engaged in
with the deceased he thought he would stab the deceased by the
shoulder but unfortunately the knife unintentionally ended on the
collar bone. We do not believe that it can be said that the accused
used excessive force given the circumstances he was under when he
stabbed the deceased.
Consequently, our unanimous
position as a court is that the accused be given the benefit of doubt
in this case.
The accused is found not guilty
and acquitted.
National Prosecuting Authority, state's legal practitioners
Job Sibanda & Associates, accused's legal practitioners
1. Section 53 of Criminal Law
(Codification and Reform) Act (Chapter 9:23)
2. HH-103-10
3. A
Guide to the Criminal Law of Zimbabwe (Legal Resources Foundation)
2nd Edition p 45
4.
Criminal Procedure and Evidence Act [Chapter 9:07]
5.
HB-29-14
