1

HB 69/15

HC (CRB) 175/14

Nkayi CR 77/04/14

THE STATE

versus

NDABEZINHLE NCUBE

 

 

 

 

HIGH COURT OF ZIMBABWE

MAKONESE J

HWANGE 19 & 20 MARCH 2015

 

 

 

Criminal Trial

 

 

 

Miss N Ngwasha for the state

Mr T Mukuku for the accused

 

 

 

MAKONESE J:        The accused aged 36, has been arraigned in this court on a charge of murder.  The state alleges that on 29 April 2014 and at Mfunda Village 4, Nkayi, the accused did wrongfully, unlawfully and intentionally kill and murder Thobekani Masuku a female adult aged 21 years at the time of her death.  The accused pleaded not guilty to the charge and tendered a plea of guilty on the lessor charge of culpable homicide.  The state did not accept the plea to the lessor charge and the matter proceeded to a trial.

The state outline (Exhibit 1) was tendered into the record.  In brief the state alleges that the deceased was aged 21 years at the time she met her death.  The accused was aged 35 years at the time of the commission of the offence.  The accused and the deceased were lovers and resided in the same village.  The deceased was customarily married to one Musa Mbano who resided and worked in South Africa at the relevant time.  On 29 April 2014 at around 1900 hours the deceased was walking home with Irvin Tshuma, a nine year old juvenile when she met the accused.  The accused was armed with an axe, knobkerrie and a piece of rolled wire.  Accused and deceased then began to discuss their relationship.  An argument ensued and degenerated into a verbal exchange.  The accused struck the deceased several times on the neck, head and the back.  The deceased fell to the ground and died on the spot due to injuries sustained in the attack.  The deceased fled the scene.  On 5 May 2014 the accused was arrested at Mkobongwe village at Zhombe in connection with the murder.

The defence tendered a defence outline (Exhibit 2).  It is necessary to set out the contents of the accused’s defence outline, which is in the following terms:

“Accused’s defence outline

 

Accused pleads not guilty to the charge of murder preferred against him.

 

1. He will state that he was happily married to his wife with whom he had children.

 

1. He was tempted and he fell into a love relationship with the deceased.  Deceased told him that she was single and never disclosed to him that she was married.  He asked deceased’s aunt who confirmed that she was single.

 

1. Because of the relationship with deceased, accused’s marriage broke and his wife left together with the children.

 

1. Deceased was not feeling well as she appeared to be suffering from cancer.  She became seriously ill that accused believed she would die (sic)

 

1. Because he loved her, accused sold all his belongings consisting of three thousand bricks, 8 zinc sheets, 2 bicycles, a wheelbarrow, a bed, 4 goats, all the maize in the granary, all chickens and lastly a scotch-cart.

 

1. All the money he realized from the sale of his belongings he used it for the treatment of the deceased having agreed with her that they would get married.

 

1. When deceased had recovered, her husband returned from South Africa where he had been and she began to be evasive.

 

1. He met her on the fateful day and they began to discuss about their affair and intended marriage.  He also asked her what she would do since she was pregnant.

 

1. Deceased answered him rudely saying she was no longer interested in the affair and that she did not know whether she was pregnant or not and also that she was pregnant then she would give birth and give the accused his child.

 

 

1. Accused who had destroyed his family and had sold all his belongings was extremely provoked to the extent of losing all his senses accused in a moment of rage he struck the deceased with an axe which he had, and the deceased died as a result.

 

1. He admits that he cause the death of the deceased but avers that he acted out of extreme provocation.

 

Wherefore he prays that he be found not guilty and that he be acquitted of the charge of murder and he offers a plea of guilty to the lessor charge of culpable homicide.”

 

The state produced the accused’s confirmed warned and cautioned statement, with the consent of the defence.  The warned and cautioned statement is marked Exhibit 3 and was duly confirmed by a magistrate at Nkayi on 22 May 2014.  The warned and cautioned statement is in the following terms:

“I Ndabezinhle Ncube plead guilty to the charge of murdering Thobekani Masuku.  My first reason being that when we fell in love she lied to me that she was not married but she had a child.  To my surprise when Musa Mbano her ex-husband returned from South Africa they reconciled and when I asked her about the relationship she told me not to worry as there was no such relationship.  I waited patiently for a week but there was no change since she later on told me that she would bear my child and give it to me since she was four months pregnant.  At that moment the devil worked upon me and I chopped her thrice on the neck with an axe.  I then left the spot to go and hang myself.  I threw the axe which I had used into the Gweru River.  The other reason why I murdered Thobekani Masuku is that I had a homestead, a wife and three children and as a result of my relationship with Thobekani Masuku my homestead collapsed.  Thobekani Masuku and I had agreed to marry each other but she later on changed her mind.”

 

The state then produced an Affidavit by Constable Sehliselo Khumalo confirming that the deponent identified the body of the deceased as that of the person murdered by the accused.   Constable Sehliselo Khumalo conveyed the remains of the deceased to United Bulawayo Hospitals for a Post Mortem examination.  The affidavit was marked Exhibit 4.  The last documentary Exhibit 5, is the Post Mortem Report.  Dr S. Pesanai is a qualified medical practitioner attached to United Bulawayo Hospitals.  On 2 May 2014 he examined the remains of the deceased and compiled his findings in the Post Mortem Report number 314/313/2014.  As a result of the examination, the Doctor concluded that the cause of death was:

1. Spinal injury
2. Multiple chop wounds
3. Homicide

On external examination, the pathologist made the following observations:

Chop wounds involving:

1. Right ear (5 x 1) cm
2. Right neck (9 x 2 x 4) cm
3. Right chin ( 2 x 1) cm
4. Right neck (9 x  5) cm
5. Right above the shoulder blades
6. Back of neck (3 x 2 )cm
7. Occipital region (9 x 5) cm
8. Left above shoulder (1 x 1) cm
9. Below left ear ( 5 x 3)cm
10. Left neck (4 x 2) cm
11. Cutting in the throat and oesophagus ( 9 x 11)cm
12. Fracture right jaw
13. Fractured occipital bone.

The report also reflects that the deceased was carrying a male foetus weighing 180 grams.  The state applied for the evidence of the following witnesses, to be admitted by way of formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07], namely Phumulani Masuku, Jackson Dzosa, Zerbert Dube, Ngonidzashe Chibanda, Dr S. Pesanai.  The defence consented to the admission of the evidence of these witnesses as it appears in the outline of the state case.

The state led oral testimony from Irvine Tshuma, a male juvenile aged 9 years.  His evidence was to the effect that on the fateful day he was in the company of his aunt, the deceased.  They were coming from the clinic.  He was not feeling well on that day.  They were walking towards their homestead in the evening hours.  They met the accused.  The deceased advised the accused to stop coming to her homestead as he not was supposed to be seen there.  The accused complained that the deceased was neglecting him and asked how she (deceased) would feel if he dumped her.  The witness said that a misunderstanding ensued resulting in the accused striking the deceased with an axe on the back of the head.  The witness went further to explain that he observed the accused striking the deceased three times.  He saw deceased fall to the ground.  He ran away in terror as the accused continued to strike the deceased.  The young juvenile said he feared for his life.  He confirmed that he knew accused and deceased to be lovers.

The court accepts the evidence of this witness as consistent, credible and worthy of belief.  The witness was composed and appeared to have no hesitation in narrating what he had observed.  It is noted by this court that the evidence of the witness corroborates what accused himself stated in his evidence in chief, namely the following:

(1)        that when accused and deceased met they spoke about the state of their relationship.

(2)        that accused complained to the deceased that she was evading him

(3)        that accused struck the deceased at the back of the head and neck on at least three occasions using an axe.

            The second witness to take the witness stand was Nomsa Masuku.  She testified that she is employed at Dombodema High School, Plumtree, as a Laboratory Technician.  She spent most of her time at the school where she resides and occasionally visits her homestead in Nkayi.  The deceased was her sister.  She was not known to the accused whom she only met on one single occasion.  She confirmed that deceased was customarily married to one Musa Mbano and one minor child was born out of that union.  At the time of her death the deceased was four months pregnant.  She did not know whether the accused was responsible for the pregnancy.  She testified that she only learnt about the relationship between accused and the deceased after the death of the deceased when she heard villagers talking about it.  The witness did not exhibit any signs of any malice or hatred towards the accused.  She gave her evidence well.  She is worthy of belief.  There was no tinge of exaggeration in her evidence.  The court accepts her evidence as being truthful and credible.  The state closed its case after leading evidence from the two witnesses. 

            The accused gave evidence in support of his case.  He gave a very detailed narration of the background to the affair with the deceased.  Accused essentially testified that he had left his first wife, collapsed his marriage, sold all his personal belongings in the hope and belief that he would settle down and marry the deceased.  He told the court that everything changed when deceased’s husband Musa Mbano returned from South Africa where was he based.  Accused stated that the deceased had become evasive about the future of their relationship.  He said he was shattered by the realization that deceased appeared to be sidelining him.  He said he had given the deceased some time to consider her stance but the deceased had seemed to move closer to Musa Mbano.  The accused was free to give the court all the details regarding his relationship with the deceased but when he came to the events of the fateful day that led to the death of the deceased he became withdrawn.  The accused appeared to be very uncomfortable and reluctant to explain why and how he had delivered the fatal blows upon the deceased using the axe.  When he was pressed under cross-examination to explain how he had struck the deceased he informed the court that he was overpowered by satanic forces.  Accused said that the deceased had ‘left him with no choice.”  Asked to explain what he meant by this accused failed to clearly articulate what he meant.  By his own admission, the accused struck the deceased at least three times using the axe.  He confirmed that he struck the deceased at the back of the head and neck.  He however failed to adequately explain why the post mortem report indicated that deceased had suffered at least twelve chops wounds on the upper part of her body and why her throat was cut.  The accused proffered the defence of provocation, that he was angered by the deceased and that he had acted out of anger and lost self control.  Accused confessed that he threw the murder weapon, the axe into the Gweru River and that immediately after committing the offence he had fled the scene.  The accused was not a consistent witness.  He appeared to be withholding all the details about the matter, more particularly why he struck the deceased.  Accused did not admit that he had had intended to kill the deceased.  He stuck to his version that he was overpowered by Satan.  Accused did not impress as an honest witness.  In his warned and cautioned statement Exhibit 3 accused alleges that he had waited patiently for a week but there was no change in their relationship.  It is clear that accused had ample opportunity to reflect on his relationship.  The accused’s relationship with Musa Mbano was not a sudden discovery.  He knew about the relationship and was aware that deceased had a child aged two years with Musa Mbano.  It is our view that the submission by state counsel that accused developed the attitude that if he could not have the deceased person, then none else was to have her.  The accused must have decided to kill the deceased when he realized that he had lost her to Musa Mbano.  The accused stated that he realized that deceased was slipping out of his grip when the following events occurred:

(a)        when deceased joined Musa Mbano to go and obtain a Birth Certificate at Nkayi.

(b)        when deceased became evasive about their future

(c)        when he saw a love message from Musa Mbano on the deceased’s mobile phone.

            The court was advised by the accused that just moments before he attacked the deceased she had told him that if she was pregnant with his child, he would hand over the baby to the accused after giving birth.   The accused stated that these words were the ultimate trigger that caused him to act in an irrational manner.   He said he lost his senses.

            The law on the defence of provocation is reasonably well traversed in our jurisdiction, and section 239 (2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows:

“(2)      For the avoidance of doubt it is declared that if a court finds that a person accused of murder was provoked but that-

 

1. he or she did have the intention or realization referred to in section forty seven; or
2. the provocation was not sufficient to make a reasonable person in the accused’s position and circumstances to lose his or her self-control;

 

the accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided for in section two hundred and thirty-eight.”

 

            In Robert Mugwanda v The State page 9 of the cyclostyled judgment,  SC 19/02, at the court held as follows:

“----for a trial court to return a verdict of murder with actual intent it must be satisfied beyond reasonable doubt that:

1. either the accused desired to bring about the death of the victim and succeeded in completing his purpose, or
2. while pursuing another objective foresees the death of his victim as a substantially certain result of that activity and proceeds regardless.”

 

See also Levison Sithole v The State SC 16/07.  In casu, the injuries sustained by the deceased as reflected in the Post Mortem Report indicate that the deceased sustained several chop wounds.  It is self evident that the accused struck the deceased repeatedly and with excessive force in the neck, head and even cut the deceased’s throat in the process.  The state in our view proved beyond any reasonable doubt that accused desired to bring about the death of the deceased.  This is not one of those cases where one single blow is delivered at the spur of the moment.  The accused subjectively foresaw death as a substantially certain result.  The defence of provocation is not available to the accused in the circumstances of this matter.  The provocation was not sufficient to make a reasonable man in the accused’s position and circumstances to lose self-control (to that degree).  The number of chop wounds reflected in the Post Mortem Report are not consistent with sudden anger and loss of self control.  The injuries are consistent with someone desiring to bring about the death of another.

      We are satisfied, therefore that the state has proved its case beyond a reasonable doubt and accused is found guilty of murder with actual intent.

 

Sentence

In assessing an appropriate sentence the court will take into account all the mitigating factors that have been raised on behalf of the accused by his defence counsel.  The court will consider that there was indeed some provocation and that accused was angered by the realization that his relationship with the deceased had all but collapsed.  We take into account that accused has spent 10 months in prison awaiting trial and that to some extent he had already served part of his sentence.  The aggravating factors in this case, however far outweigh the mitigating circumstances.  The court notes that the accused’s reaction was irrational.  He did not strike the deceased with one single blow but repeatedly struck the deceased resulting in her sustaining 12 chop wounds on the back of the head, the neck, and a cut in the throat.  This was savage attack.  The foetus also died as a result of the attack.  This is a classical case of gender based violence.  The accused gave the deceased no chance whatsoever when he realized that she had fallen to the ground.  He showed no mercy to his victim and was determined to end her life in a most brutal fashion.  The courts have a duty to protect the sanctity of human life.  A lengthy custodial sentence is the only appropriate sentence.

Sentence: 35 years imprisonment.

 

 

 

National Prosecuting Authority, the state’s legal practitioners

Marondedze, Mukuku, Ndove and partners, the accused’s legal practitioners