CHEDA J: The accused is charged with 2
counts of murder.
In
count 1 it is alleged that he wrongfully, unlawfully and intentionally killed
Abel Ncube. In count 2 it is alleged
that he wrongfully, unlawfully and intentionally killed Isaiah Nyoni. He pleaded not guilty to both counts. I now will deal with each count as follows:
Count 1
It is common
cause that on the 12 May 2002, there was a beer drink at Plaxedes Ndlovu's
homestead in the Wabayi area, under Gwanda district. Deceased and other
villagers were also present. Accused had
an argument with one Andrew Siziba over an amount of Z$250-00. Thereafter accused went about forcibly
drinking other patrons' beer without their consent. Stephen Sikhosana who was amongst the patrons
advised him against his unruly behavior to no avail. A misunderstanding then arose. At that stage accused produced an okapi
knife. Stephen Sikhosana and Gillan Dube
tried to disarm him but they failed.
Accused jumped over the fire and stabbed the deceased under the armpit who
at the time was sitting around the fire.
He also stabbed John Moyo on the neck and then ran away. Accused also stabbed Plaxedes Ndlovu once on
the left shoulder and once on the left arm. The
state opened its case by leading evidence from Stephen Sikhosana. His evidence was that he arrived at Plaxedes
Ndlovu's homestead at about 1600 hours on the 12th of May 2002 as
there was some traditional beer. At
about 8 pm he observed accused who appeared drunk and was going about drinking
other people's beer, which conduct he disapproved and advised him to stop. He then observed accused going behind a hut
and when he came back, he was now top-less. When he came back accused removed an okapi knife
from his trouser pocket and was holding it in his hand. He and Gillan Ndlovu tried to disarm him but
they failed. He then observed him jump
over the fire, and he fell on the people who were sitting on the wheel
burrow. It is at that stage that he
stabbed Abel Ncube (the now deceased) once under the armpit and went further to
stab John Moyo on the neck. He then ran
away. At that stage he also stabbed Plaxedes
Ndlovu. These assaults were without
provocation. Accused was subsequently arrested.
Stephen Sikhosana gave his evidence
in a well balanced manner. He did not
seek to exaggerate at all. We find that
he was an honest witness and as such we accept his evidence without much ado.
Andrew Siziba also gave evidence. It
is his evidence that he was present at Plaxedes Ndlovu's homestead on the day
in question. At about 3pm accused asked for
$250.00 which he owed him and he explained that he did not have it at the
time. There was no problem
then and they set down and continued to drink beer. Accused
and Stephen Sikhosana picked up a quarrel.
Patrons tried to reason with accused to no avail. He then heard someone shouting words to the
effect that accused was armed with a knife.
While people tried to disarm him he heard that Abel Ncube, John Moyo and
Plaxedes Ndlovu had been stabbed by accused.
It is one of the stabs which led to deceased demise. This was his evidence.
His evidence is in corroboration
with that of the last witness. Of note
is that accused was a turbulent person on the night in question as he went
about drinking other people's beer. He
went about stabbing people without provocation.
He appeared drunk. We also find
that he gave his evidence very well and in a satisfactory manner and for that
reason we accept it.
Count 2
The state called
Thabani Ncube. His evidence was that
deceased was his brother while accused is a local man and neighbor whom he
regarded as a brother. On the 1st
of January 2004 he left with deceased for Dula Business Centre. They joined other revellers who were drinking
beer, but, he was not drinking. Deceased
asked for money to buy beer from him and he gave him. Deceased later reported that he had found
accused and had combined money for beer.
He, however, came back later and reported that accused had drunk all the
beer. Deceased went away for an
hour. This witness then followed him
after an hour and found accused and deceased holding each other as if they were
fighting. He then heard accused invite
deceased to come to a certain spot. He
did not bother at the time as he knew accused and deceased to be friends. Later, on he observed them exchanging
blows. He together with one Dingulwazi
ran towards them and observed that deceased was now losing breath and he fell
down. Accused let go of him, picked up
his hat and went away. He then went back
to where other people were and he brought Galvin Dube and the security guard to
the scene. Deceased then died. He disputed that Galvin Dube was involved in
the fight between accused and deceased as he is the one who went to call Galvin
Dube and the security guard.
This, in our observation was an
honest and truthful witness. We have no
reason to disbelieve him and his evidence is accepted in its entirely.
The
next witness was Galvin Dube. He stated
that accused is his neighbour while deceased was his cousin. His evidence is that on the night in question
he was at Dula Business Centre. He left
briefly, but, returned later and went into the bottle store. While he was in the bottle store he was
approached by Thabani Ncube who grabbed him together with the security guard
and reported to them that deceased had been stabbed. He together with others arranged for deceased
to be ferried to hospital. He did not
observe accused stabbing deceased neither did he observe the weapon used as he
was not at the scene.
Again this witness gave his evidence
very well and collaborated Thabani Ncube
in that he was not present at the scene of the crime. We accordingly accept his
evidence.
The state then closed its case after
producing the postmortem report as Exhibit 5 and the okapi knife as Exhibit 6.
Accused
gave evidence, and his evidence in relation to count 1 is that on the 12th
of May 2002 he was at Plaxedes Ndlovu's homestead where there was a beer
party. He drank both opaque beer and tototo
(an illicit brew)
There
was Andrew Siziba who owed him money whom he asked about this debt. This issue was, however, resolved amicably.
Stephen Sikhosana and Gillan Ndlovu interfered in this discussion. This was about 7pm. He had been drinking but
was sober. Stephen Sikhosana and Gillen Ndlovu
started attacking him. He tried to
escape, but, could not do so as the gate
nearer to him was closed. He ended up
jumping the fire as people were chasing him.
Asked
by his defense counsel whether he had an altercation with deceased, he avoided answering that
question as he merely said that there were people who were chasing after him
and he could not find his way out of the yard. He, however, went out through a small gate and
only heard later by villagers who came to alert him that he had stabbed people.
He, however, maintained that he was
clear of what was happening although he was beer drinking. He did not know that he had stabbed deceased.
With
regards to count 2, he told the court that on the 1st of January
2004 he went to Dula business centre in the company of others. At about 11pm he decided to go back home.
Amongst the people whom he had invited to accompany him home were the
deceased, Thabani Ncube, Galvin Dube and Ayanda Moyo. At about midnight he observed that there was
some misunderstanding between accused and deceased, but, does not know what had
caused it. During this commotion deceased started attacking him and they
started fighting with their hands.
During the fight some people joined in and he left in his scotch
cart. While he was leaving he heard
deceased calling Galvin Dube's name twice.
He denied having been in possession of a weapon and also denied stabbing
the deceased. This was how far his defense
could lead him through his evidence.
We find that accused was a very evasive
witness and untruthful. He told the
court that in count 1 he remembers all what happened but chose not to remember how
he stabbed, Abel Ncube, John Moyo and Plaxedes Ndlovu.
Again in count 2 although he had
been drinking he remembers some incidents and not others. What is interesting is that he chose to
remember all incidents which were irrelevant and not incriminating, but, forgot
all those that are incriminating. We find that he was being selective in his
memory and was merely engaging in deliberate diligence in ignorance.
Count 1
We find that accused acted recklessly in
stabbing the patrons at the beer drink without provocation. He used a knife
which is a lethal weapon at random. In
so doing he foresaw the possibility of killing someone, but, he continued
without let up or hindrance.
We
therefore find that the state has proved its case beyond reasonable doubt and
the accused is found guilty of murder with constructive intent.
.
Count 2
We find that
even if it was not accused's aim and object to kill the deceased, but, the fact
that he produced a knife and used it when he was fist fighting with the deceased,
he realized that this activity would most certainly result in the death of the
deceased. For that reason we find that
the state proved its case beyond reasonable doubt and accused is accordingly found
guilty of murder with actual intent.
Criminal Division, Attorney General's Office, applicant's legal
practitioners
Dube and partners, accused's legal practitioners
