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HC (CRB) 151-14

HB 99-15

 

THE STATE

versus

VINCENT MPOFU

 

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 16 – 18 SEPTEMBER & 9 DECEMBER 2014,

17 FEBRUARY & 15 MAY 2015

 

Criminal Trial

 

Miss A. Munyeriwa for the state

S. Mawere for the accused

 

            TAKUVA J:  The accused was charged with murder, in that on the 23^rd of November 2013 and at number 10 Bon Accord Road Steeldale, Timberland, Bulawayo, the accused did wrongfully, unlawfully and intentionally kill and murder Enock Manyanga, a male adult, in his life time therebeing by striking him with an iron bar on the head and all over the body.  The accused pleaded not guilty.

            The state alleged in the summary Exhibit 1 that on the 23^rd of November 2013 at about 2030 hours, the accused came to the guardroom at number 10 Bon Accord Road Steeldale, Timberland, Bulawayo where he had a misunderstanding with the deceased over a hoe.  The altercation was stopped by Martin Ncube and the deceased left the guard room only to return shortly thereafter trying to force his way into the guard room but the accused blocked the door.  The deceased then left the area.  The accused then picked a wooden baton stick which was behind the door and tested it by striking the ground once with it, put it back and took a metal rod and followed the now deceased.  Accused struck the deceased on the back of the head with the iron rod causing the deceased to fall down and accused continued to assault deceased while he was on the ground.  Martin Ncube restrained and disarmed the accused who thereafter left the area.

            In his defence outline Exhibit 2 accused avers that he acted in self defence when he hit the deceased with an iron bar on the head.  Briefly accused’s version is that on the day in question, he was seated on a chair in the guard room when deceased entered and kicked him twice on the chin with booted feet.  Martin Ncube stopped the deceased from further assaulting the accused and the deceased left but returned shortly armed with an iron rod.  The accused closed the door to block him from entering the guard room.

            After about 40 minutes, the accused armed himself with an iron rod so as to “scare the deceased,” in the event deceased dared to attack him on his way to his room.  On the way and in the dispatch shade, accused was confronted by the deceased who was armed with an iron rod and he ran away.  The deceased however caught up with him and assaulted him with an iron rod on the hand resulting in the iron rod accused was carrying falling down.  Accused fell down and deceased approached him but slipped and accused heard a “hitting knock” and it appeared that the deceased hit his head against the iron pole that was supporting the store room shade.  The accused disarmed the deceased of the iron rod but deceased kept on coming and “accused hit him with the iron rod.”

            Exhibit 3 was an affidavit by a police officer who identified the remains of the deceased to Dr S. Pesanayi who performed a post mortem and compiled a report Exhibit 4.  The doctor observed the following injuries; Marks of Violence: 1. Blood from nose; 2. Bruises on the frontal region (3 x 1) cm; 3. Laceration Left Ear (2 x 1) cm; Laceration Right Parietal Region (5 x 1) cm, (6 x 1) cm

            Skull:   Depressed skull fracture, right parietal occipital bone (3 x 1) cm, Lineal fracture extending to the left occipital bone.

            Brain:  Extensive subarachnoid haemorrhage weight 1350g

            Cause of Death:

1. Intracranial Haemorrhage
2. Depressed skull fracture
3. Blunt Force Trauma Head
4. Homicide

Exhibit 6 was the metal rod with the following dimensions

1. Length 50cm; (ii) Weight 1,9 gr; (iii) Circumference 8.3cm

Exhibit 7 was a wooden baton stick with the following measurements;

1. Length 51cm
2. Weight 0,715 gr

Exhibit 8 and 9 were bundles of photographs

Exhibit 10 was the iron rod/fire stand with the following dimensions;

1. Length 1.5cm
2. Weight 1.5kg
3. Circumference 3.5cm

Exhibit 11 was the sketch plan

Exhibit 12 was the accused’s confirmed warned and cautioned statement

Exhibits 12A and 12B are copies of accused warned and cautioned statements.

The state’s first witness was Doctor Pesanayi a pathologist based at United Bulawayo Hospital.  He identified and explained his report.  Under cross-examination he said a blunt force trauma can be caused by many weapons.  He said the depressed skull was on the top of the head extending to the back and that the (3 x 1cm) is the area that went inside.  The area of impact was the top of the head.  When shown the weapon, he said the injuries could have been caused by the weapon.  He also denied that all the injuries could have been caused by the pole.  When it was suggested that the injuries were consistent with the deceased hitting his head on concrete, he said this was not possible because there was more than one injury on the head i.e on the right side and the back.

The state then called Martin Ncube a colleague of both accused and deceased.  He said there is no bad blood between him and the accused.  It was his testimony that the deceased found the accused inside the guard room discussing a dispute that had arisen between accused and deceased over a hoe.  Without saying anything deceased kicked the accused and the witness restrained the deceased who went out but returned unarmed and accused closed the door preventing deceased from entering the guard room.  The deceased left and accused remained in the guard room for approximately 30 minutes after which he started grumbling saying “they will see each other with deceased.”  Accused picked up a wooden baton stick Exhibit 7, knocked it against the floor and felt its weight before placing it on the floor.  Accused then took an iron bar Exhibit 6 and left the room.  After some time, the witness heard some noise outside and he rushed to investigate.  He saw accused chasing the deceased and when he was about 13 paces from them, he saw accused striking the deceased on the centre of the head with the metal rod and deceased collapsed.  Accused continued to strike deceased who was lying down, several times before the witness disarmed the accused.  He said visibility was good as the place was well lit.  It was his testimony that accused hit deceased twice on the head and five times on the right side while deceased was lying on the ground before he forcibly disarmed the accused.

The witness asked the accused why he had killed the deceased and the accused showed the witness a small wound on his chin and lower lip saying the deceased had injured him.  The accused went away holding a portion of the rod which had detached from the one the witness was holding.  Before walking away, the accused told the witness to “go and wake him up”.  The witness rendered first aid to the deceased and looked for help.  The witness was shown Exhibit 8a depicting a pole and he confirmed that deceased fell on the zinc sheets covering the drain and not on the pole.  He denied that deceased hit his head against the pole explaining that he is the one who moved deceased closer to the pole and he placed him on top of the fire stand which had been thrown there after cooking.  The witness said the deceased had no weapon when he was hit.  Under cross-examination, the witness confirmed that when the accused was kicked by the deceased he did not retaliate.  He however said before leaving the guard room, the accused swore saying “I am Gekeke’s son and today the deceased will see me.”

In our view the witness gave his evidence clearly and in a straight forward manner.  His demeanour was good and was not shaken under cross-examination.  Put differently, the complexion of his story never changed at all.  The criticism that Martin Ncube was biased against the accused is not borne by the evidence.  Martin Ncube gave evidence favourable to the accused when he conceded that deceased had previously attacked the accused.  Also, his evidence that deceased kicked the accused without any provocation and that accused did not retaliate, – clearly shows that the witness was neutral.  If he had wanted to lie against accused he would have easily denied these facts.

As regards alleged contradictions and inconsistencies, we do not find these to be sufficiently material to render his evidence worthless or incredible.  It was submitted that the witness could not have observed the events clearly from 13 paces away.  We disagree because the witness explained why he was able to see clearly.  In our view 13 paces as was indicated in court is a short distance.  It was also argued that Martin Ncube is an incredible witness because he kept on changing the spot where deceased fell.  While it is correct that the witness changed the position, we find this contradiction to be irrelevant and immaterial in that the witness said the deceased fell as a result of the blows to the head.  For that reason to submit that the fatal injury was as a result of that fall is to put the cart before the horse.  It was further submitted that the court should consider the obvious risk which exists in convicting on the basis of uncorroborated single witness’ testimony.  It is trite that the evidence of a single credible witness is sufficient to sustain a conviction on condition it is satisfactory in all material respects.  See section 269 of the Criminal Procedure and Evidence Act Chapter 9:07.

In casu, the witness’ testimony is corroborated by medical evidence and the probabilities.  If deceased was armed, accused could not have managed to deliver the fatal blow as he did, given the fact that deceased was physically stronger than the accused.  Previous conduct that is common cause indicates that deceased would not have fled from accused if accused had not been armed with the murderous bar.  This fact is even corroborated by the accused in that he said he had to arm himself before venturing outside where deceased was.

Whether or not there is another path behind the workshop is peripheral in our view.  There is no evidence that if accused had used that other path he would have avoided meeting the deceased.  The critical issue is accused armed himself in anticipation of a confrontation with the deceased.

For these reasons, Martin Ncube impressed the court as an honest and reliable witness.  He testified without guile and we have no reason to disbelieve him.  He is a credible witness in our view.

The state also relied on accused’s confirmed warned and cautioned statement (Exhibit 12).  It is trite that a confirmed statement is admissible upon its mere production by the State.

The defence claimed that since there were irregularities in the recording of the statement, it is not an accurate account of what accused said in Ndebele language and the court should not place any reliance on it.  The drama relating to the warned and cautioned statement arose from the fact that while the state produced Exhibit 12 as the confirmed statement, Mr Mawere produced Exhibits 12A and 12B as accused’s warned and cautioned statements.  These latter statements were not confirmed.  The irregularities or inconsistencies referred to, relate to the identities of police officers who recorded them and who acted as an interpreter.  It was also contended that Constable Vanhuvamwe who recorded the statement was not fluent in Ndebele.

The state led evidence from the investigating officer on the circumstances surrounding the recording of these statements.  The witness said Exhibit 12A is a rough draft which was prepared in the process of investigations and he does not know how it ended up with the defence counsel.  It was written by Constable Vanhuvamwe while Constable Bhebhe acted as an interpreter.  He later personally compiled Exhibit 12 and took it to court for confirmation.  It was duly confirmed and formed part of the docket.  He also referred to Exhibit 12B as another rough draft which did not form part of the docket.

While the police may have drafted Exhibit 12A and 12B in a sloppy and repetitive manner, the differences are superficial in that they do not affect the content and meaning of Exhibit 12.  We agree with the submission by the State Counsel that what is important here is the fact that the accused who was always represented by the same counsel since his remand appearance, never raised any query with regards Exhibit numbers 12, 12A and 12B during the confirmation proceedings.  The accused confirmed having made the said statement i.e. Exhibit 12 freely and voluntarily in his sober senses.  What is of importance is that the contents of Exhibit 12, 12A and 12B are the same.  While they are discrepancies in details concerning who recorded the statements (i.e. Exhibit 12A and 12B) and who translated it, the accused signed the same i.e. Exhibit 12 and with the advice of his counsel the statement was confirmed while defence counsel had knowledge of the existence of Exhibit 12A and 12B.”

We add that the cogency and value of the warned and cautioned statement as one of the pieces of evidence in this trial has not been dented by the mistakes made by the police in the rough drafts.

The state applied for the evidence of the following witnesses to be admitted in terms of section 314 of the Code;

1. Vengai Mudukuti
2. Wellington Chingarande
3. Stephanos Mudhumeni
4. Desire Havadi
5. Saul Utete and
6. David Madyauta

There was no objection by the defence and the evidence was duly admitted.  The state closed its case and the accused gave evidence in his defence.  The accused gave a detailed narration of the history of the matter and issues that are common cause.  He said after he had been kicked by the deceased, the deceased returned armed with an iron bar and threatened to “fix” him, he closed the door and deceased went away.  He remained in the guard room for approximately 45 minutes after which he armed himself with an iron bar, told Ncube why he was arming himself, and he left.  He denied hitting the floor with Exhibit 7 the wooden baton stick.  Accused admitted taking Exhibit 6 from the guard room but denied uttering threats against the deceased or swearing that he was “Gekeke’s son”.

Accused ran through he shed hoping that deceased was on the other side.  While inside the shed, accused said he saw deceased running in front of him in the dark as there was no light in the shed.  When accused turned, deceased also ran “in that direction” and they met as accused was coming out of the shed.  Accused tried to stab deceased with the iron bar he was holding to scare him but deceased who had raised his own iron bar continued advancing.  Accused said he moved backwards, slipped and “fell but remained balanced with his feet in the trench”.  However before falling down deceased hit him on his right wrist and the iron rod fell down and he left it there.

Whilst in the trench, deceased came running in such a way that there was “no way of stopping him”.  Accused jumped and hit deceased’s knee.  Accused heard deceased hitting the pole and he was thrown back towards accused.  He said deceased’s feet were around his neck and the iron bar was by “my left arm”.   Accused then grabbed deceased’s iron bar with his left hand, twisted and took it while holding it in the middle with both hands.  Accused said he swung the rod sideways intending to hit deceased but this was “not possible” as deceased also grabbed it and the rod eventually fell to the ground next to the pole.  Accused said he then ran to his quarters and on the way, he “felt that other iron bar prodding me on my ankle and I bent to pick it up”.  At that time, Martin Ncube arrived and asked him what he was doing.  Ncube ordered him to go away and he left with one piece of Exhibit 6 while the other end remained with Ncube.  Accused said he took the rod because he thought that the deceased was following him.

            Under cross-examination, the accused stuck to his story that he never hit the deceased insisting instead that the deceased hit his head against the pole.  However, he changed his version as regards how he ended up with the metal rod from the guard room saying he tried to reach out for “my own rod”.  Also when asked if he did strike the deceased with the iron rod during the scuffle, the accused’s answer was “we were holding the piece of rod.  I heard that he was hit by it but I did not feel the force – he was not injured.”

            Later, still on this crucial issue of how deceased got injured the accused in answer to the state counsel’s questions said,

“I do not know if he hit his head or shoulder against the pole as I was in a bending position.  He was thrown back in front of me and he sat on me with all his force.  He immediately got up.  Before he got up his iron rod was by my left side, I felt him dragging the metal rod and I then grabbed it with my left hand …   I then moved both hands to one side so as to try and knock him with the rod, his hands were also on the same rod so I failed to hit him well.  He held on to the rod tightly and turned it forcibly.  He tried to push me at the same time trying to disarm me.  He turned it and it slipped and fell down.  After that I then tried to reach out for my own rod and that is when Ncube arrived.  As I was running away I felt the iron rod hitting me on the leg.  I picked it up facing south”.

            The accused repeatedly said when he left the scene the deceased was not lying down injured but was just “standing there”.  Accused said Mr Ncube fabricated the portion relating to the swearing since he knows that accused’s father’s name is Gekeke.  As regards the confirmed warned and cautioned statement, he said he only told the police what appears on the upper part of the statement.  He also said he just signed it without reading it first.  Further, he denied telling the police that he assaulted the deceased while he was lying down, but admitted that he could have hit him as he (deceased) was standing up while wrestling for the iron bar.  He said later that he told the magistrate that he had freely and voluntarily made a statement to the police.

            I have deliberately set out accused’s evidence in detail in view of the submission by Mr Mawere that accused gave out “a candid, consistent and plausible account” of the fateful events of the night in question.  We disagree with this submission for the following reasons;

1. Accused was clearly untruthful about how Mr Ncube ended up with one end of Exhibit 6, the metal rod.  It is common cause that the rod is a detachable one and the police found accused with the other end.  Mr Ncube said he found accused in possession of the full rod assaulting deceased with it.  He then grabbed one end and pulled it.  The accused did not let go resulting in the separation.  Accused then went away with one end while he remained with the other.  It was demonstrated in court and Exhibit 6 is indeed detachable.  How can accused’s version be said to be candid and plausible when it fails dismally to explain this critical part of the events.  According to the accused, when Mr Ncube arrived, he was not armed and he only picked up the part of the rod he was found with on his way home after it hit his leg.  Earlier, he had said this “rod” fell down when his hand was hit by the deceased and he “left it there”.  The question becomes if accused is telling the truth, then at what stage and how did this “rod” separate or split into two?

Quite clearly, it is Mr Ncube’s version that is plausible in that it is corroborated firstly by the nature of the rod, secondly by the undeniable possession of the two parts by accused and Mr Ncube and thirdly by the pathologist who said it is likely that the injury/fracture was caused by this “rod”.

1. Accused’s version of how deceased got injured is fraught with inconsistencies and improbabilities.  Firstly, he denied hitting the deceased with the iron rod but ended up admitting that he could have hit deceased but he was not injured.  Secondly, he said deceased hit his head against the pole although he did not see that.  Yet later, he said, “He hit the pole with the right side of the head”.  Thirdly, the accused frantically tried to remove Exhibit 6 from the scene.  Not only that, he methodically tried to disassociate himself and the rod from the cause of the fracture.
2. According to the accused’s version after deceased hit his head against the pole, he fell down but quickly got up, the two then struggled or grappled or wrestled for quite some time until Mr Ncube arrived.  He then left deceased standing.  This version is totally false for the simple reason that deceased would not have been able to stand let alone struggle after sustaining extensive fractures on the skull.
3. It is highly probable that accused would strive to find an appropriate weapon to ward off an attack from the deceased who on the evidence was (i) physically stronger than him.

1. was armed with an iron bar (according to the accused)
2. had kicked him twice for not reason
3. was a bully who had previously severely assaulted him

yet strangely enough, the accused challenged Ncube’s evidence which sits in accord with logic and common sense.

1. The accused’s version on how the fatal injuries were sustained is not consistent with the actual injuries and the medical evidence.  It is the accused’s story that is incredible.  His story of how deceased chased him until he fell into a ditch, got up and went head first between the deceased’s legs and deceased slamming his face, first into the pole before falling to the ground is incredulous.  One wonders how he was able in all this fiasco to disarm the deceased before he himself was struck with the bar in deceased’s hands.  Accused’s version is totally incredible as to be laughable.  In our view, the conclusion that any reasonable person would arrive at after witnessing the performance of the accused in the witness stand is that there is more to his concealment of facts than meets the eye.  His testimony is incoherent, illogical, difficult to follow and generally untrue.  For these reasons we shall only rely on his evidence where other reliable evidence corroborates it.

The law in respect of self defence is a well beaten path.  This defence affects the unlawfulness element in that it excuses or justifies an accused’s action.  Its requirements are:

1. An unlawful attack;
2. Upon an accused or upon a 3^rd party where an accused intervenes to protect that third party;
3. The attack must have commenced or be imminent;
4. The action taken must be necessary to avert the attack;
5. The means used to avert the attack must be reasonable – see S v Sibanda S-7-87; S vs Mandizha S-200-91; S v Banana S-158-94

In casu, there is no credible evidence that accused was under an unlawful attack or that one was imminent.  The evidence of Mr Ncube which we have accepted shows that the accused was the aggressor pursuing the unarmed deceased.

Once it is found that one of the elements has not been met, it will only be of academic interest to consider the rest of them.  It has not been argued and in our view rightly so, that the assault on the accused was part of the res gestae of the deceased’s conduct in the guard room.

The next question is whether the state proved beyond reasonable doubt that the accused intended to kill the deceased.  In considering the issue of mens rea, it is necessary for the court to take into account all the circumstances of the case.  It must be established that the accused was guilty of murder with an actual intent to kill (dolus directus) or (dolus eventualis).

In S v Sigwalila 1967 (4) SA HOLMES JA stated that:

“The expression ‘intention to kill’ does not, in law, necessarily require that the accused should have applied his mind to compassing the death of the deceased.  It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such result.  This form of intention is known as dolus eventualis, as distinct from dolus directus.”

            Some eight years later in S v Sabben 1975 (4) SA 303 at 304B – F the same judge of appeal stated;

“The sudden flash of a knife is not always easy to classify in terms of the intention of the wielder.  Did he actually intend to compass the death of the deceased (murder with dolus directus); or was it a case of foresight of the possibility of resultant death, and persistence regardless whether death ensued or not (murder with dolus eventualis).  And through it all there is oft the interplay of elements such as emotional imbalance, the prickle of provocation, and disruptive insobriety flowing from the human over responding to the smile of liquor’s promises.  In seeking the right answer, in every case one has to think one’s way perceptively through the particular facts, with an approach more robust that exquisite”.  See also Tichaona Mudzana v S SC-67-04.

            In Robert Mugwanda v S SC-19-02 it was held per CHIDYAUSIKU CJ that 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 his 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.

On the other hand, a verdict of murder with constructive intent requires the foreseeability to be possible (as opposed to being substantially certain, making this a question of degree more than anything else) …”

            Applying these principles to the facts, the court makes the following findings:

1. after the accused had been assaulted by the deceased in the guard room, he swore and vowed to stand his ground against the deceased.  He then armed himself with Exhibit 6 after testing and disapproving of the strength of Exhibit 7.
2. Accused chased the deceased, caught up with him and struck him on the head with Exhibit 6.  That blow felled the deceased to the ground and accused continued to deliver more blows with that weapon causing injuries observed by the pathologist.
3. The deceased died from injuries inflicted by the accused using a very dangerous weapon.
4. Accused aimed at a vulnerable part of the deceased’s body, namely the centre of the head.
5. The resultant injury, namely depressed skull fracture with its dimensions is indicative of the degree of force wielded to cause such a trauma.

Based on these findings, we are satisfied that by striking the deceased on the head with such a lethal weapon, the accused foresaw the possibility (as opposed to a substantial certainity) but nevertheless continued reckless as to the consequences.

We therefore find that the state has proved its case beyond a reasonable doubt.  Consequently, the accused is found guilty of murder with constructive intent.

            There are no aggravating circumstances warranting the imposition of the death penalty as required by section 48 (2) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013.  Accused was bullied by the deceased on more than one occasion in the past and deceased was not punished.  Therefore there was an element of provocation and on the evidence the accused had been drinking beer on the night in question.

Sentence

            In assessing an appropriate sentence, the court will take into account what has been submitted in mitigation and aggravation.

            In particular, the court will consider the following mitigating factors:

1. the accused is a first offender;
2. the accused was assaulted for no apparent reason by the deceased on the night in question;
3. previously the deceased had assaulted the accused and deceased was not punished;
4. after being kicked on the chin/mouth by the deceased the accused was deeply angered and decided to revenge;
5. on the evidence, accused had been drinking beer prior to the altercation;
6. the accused is married and has 8 children;
7. he is remorseful;
8. he spent a period of ten months in pre-trial incarceration.

In aggravation the court takes into account the seriousness of the offence and the degree of recklessness exhibited by the accused.  Accused inflicted a number of blows to the deceased causing a series of injuries.  The courts must discourage people from taking the law into their own hands in the face of provocation.  The accused had ample opportunity to report the assault to the police which he did not do.  Life was needlessly lost and the courts must uphold the sanctity of human life by imposing appropriate sentences.

            For these reasons the accused is sentenced to 15 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition accused is not convicted of an offence involving violence upon the person of another for which he is sentenced to imprisonment without the option of a fine.

 

 

 

 

 

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