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HB05-12 - THE STATE vs INNOCENT PHIRI

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Procedural Law-viz final orders re ex tempore judgment.
Procedural Law-viz rules of evidence re warned and cautioned statement iro the presumption of clarity of events nearer the date of the event.
Procedural Law-viz rules of evidence re extra curial statements iro the presumption of clarity of events nearer the date of the event.
Procedural Law-viz rules of evidence re the language of record iro translation of warned and cautioned statements.
Procedural Law-viz rules of evidence re the language of record iro translation of extra-curial statements.
Procedural Law-viz rules of evidence re expert evidence iro postmortem report.
Procedural Law-viz rules of evidence re physical evidence iro murder weapon.
Procedural Law-viz rules of evidence re unchallenged evidence iro section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz rules of evidence re undisputed averments iro section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz rules of evidence re uncontroverted submissions iro section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz rules of evidence re corroborative evidence iro pervasive influence.
Procedural Law-viz rules of evidence re findings of fact iro witness testimony.
Procedural Law-viz rules of evidence re Defence Outline iro disparities between the Defence Outline and oral submissions.
Procedural Law-viz rules of evidence re Defence Outline iro inconsistencies between extra-curial statements and oral submissions.
Murder-viz intention.
Murder-viz culpable homicide re violent conduct.

Murder re: Culpable Homicide iro Violent Conduct, Exceeding Limits of Self Defence and the Eye for an Eye Doctrine


The 41 year old accused was facing a charge of murder. It being alleged that on 3 August 2006 he did wrongfully, unlawfully and intentionally kill and murder Nation Phiri a male juvenile. This happened at Margaret Sibanda's homestead, Stand Number 110 Johnsley Resettlement, West Nicholson.

The accused is the maternal uncle of the deceased.

When the charge was put to him he tendered a plea of not guilty. The State Outline was read and produced as exhibit 1 while the Defence Outline was also read and produced as exhibit 2.

In his Defence Outline, the accused stated, inter alia, that he was the deceased's uncle. He had stayed with the deceased from the time of his birth until he was 10 years when the mother of the accused (who was the deceased's grandmother) took him as she was, at that time, staying alone. She needed someone to live with. The accused, however, maintained the role of the deceased parent or guardian. When he visited his mother she informed him that the deceased had become a delinquent and had started drinking beer and had burnt one of the huts in the homestead. The accused averred that thereafter he asked the deceased to go with him to view cattle in their kraal. The accused and the deceased discovered that some of the cattle were missing. They then went to look for the missing cattle in the direction of the fields. The accused said when they were in the fields he tried to advise the deceased to stop his bad behaviour. When he questioned him about the incident of the burning of the hut he gave a rude answer saying he wanted to see what would happen if he burnt the hut. It was then that the accused lost his temper and chastised the deceased using switches, mainly on the lower part of the body; and immediately stopped when he realized that the deceased had sustained injuries.

He went on to state that he and his mother tried to save the deceased but he unfortunately died during the same night.

Exhibit 3 was the accused's confirmed extra-curial statement he made to the police five days after the murder was committed. The statement reads thus:-

“I admit the charge of causing the death of Nation Phiri. I caused his death by beating him up with three switches. I also kicked him with tennis shoes. I did not intend to cause his death but to chastise him. He had developed a habit of smoking and drinking alcohol, and so he experimented by setting a hut on fire wishing to see what would happen.”

The English version of what the accused said omitted to say that the accused kicked the deceased with tennis shoes on the back as reflected in the Sindebele version.

Exhibit 4 was an affidavit by Constable Pascal Ndlovu who identified the body of the deceased to Dr Sanganai Pesanai the pathologist who examined the remains of the deceased and compiled a post mortem report which was produced as exhibit 5.

Exhibit 6 were three (3) mopane switches. They are now dry and show signs of being broken while they were wet. The longest was 70cm long weighing 0.015 grams; its circumference was 5cm at its widest point and 3cm on its smallest part. The second one was 53cm weighing 0.20 grams; its circumference was 3.8cm on the widest part and 3cm at its thinnest point. The third one was 52cm long weighing 0.20 grams; its circumference was 5cm at its widest part and 3cm on its smallest part. The switches would have been heavier at the time the accused used them.

The evidence of the following witnesses was admitted by consent in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]; Aleck Nyathi, Sergeant Thandolwenkosi Moyo; Constable Gugulethu Sibanda and Constable Pascal Ndlovu.

Viva voce evidence was led from the mother of the accused, Margaret Sibanda, who is also the grandmother of the deceased. Dr Sanganai Pesanai was the second witness.

Margaret Sibanda told the court that she resided at Number 110 Johnsley Resettlement, West Nicholson. She knew both the accused and the deceased as they were her son and grandson respectively. The deceased was a son of her late daughter. A decision was made that the deceased should go and live with his grandmother after the death of his mother. The deceased was about 5 years then. Both the witness and the deceased still remained the responsibility of the accused as he was their bread winner.

This explains why the witness was a reluctant witness as she gave evidence.

Her story did not flow. She had to be probed in order to say something.

What can be gathered from her story is that during the month of August, when she was away, the deceased torched the kitchen hut which got completely consumed by fire. She discovered this on her return and asked the deceased who confessed that it was him who had done it as he wanted to get some light. She accepted the event as an accident. The following day, the accused, who lives in the Matshetsheni area, paid his mother a visit as he usually did since he supplied her and the deceased with food and other needs. He asked her about the hut and she told him that the deceased had burnt it but that was an accident. The deceased was present when she was relating the story to the accused but he is said not to have said anything. Instead, the accused is said to have asked the deceased about cattle and asked the deceased to go with him to look for the cattle which were reported to be missing.

After the two had been away for a long time the witness said she got worried about their long absence and decided to go in the direction they had gone. She then heard the deceased screaming and went in that direction and found the deceased lying down. He was unable to stand up. In fact, before she got to where the deceased was she met the accused on the way and asked him what had happened but he just laughed and said nothing had happened. On realizing that the deceased had been injured and was unable to get up she went back home to collect a wheel barrow so that she could use it to carry him. When she brought the wheel barrow she tried to put him in order to carry him but she was unable to do so because the deceased said he felt severe pain when in the wheel barrow.

The accused returned to the scene.

He then carried the deceased home on his shoulders. The witness said she noticed a lot of weals on the deceased's body. His head was swollen. The deceased had been assaulted by the accused for being mischievious and burning the kitchen hut. The grandmother said the deceased was well behaved until the time he started smoking tobacco. She said he did not drink beer but was just naughty.

The grandmother reiterated that the accused looked after her and the deceased well as he used to provide food for them every month. He used to pay school fees for the deceased and bought him uniforms and other clothes. The accused had heavy family commitments in that he had two wives and eight (8) children to look after in addition to the witness and the deceased.

The next witness was Dr Sanganai Pesanai who is a pathologist based at United Bulawayo Hospitals. He examined the remains of the deceased and compiled exhibit 5, the post-mortem report. He read through it, and, under marks of violence, he noted the following lineal bruises;

Left abdomen: 3 bruises 10x1; 6x1; 5x1.

Thigh: 8x4.

Back: 3 bruises 5x11; 4x1 and 3x1.

Buttock: 3 bruises 5x1; 6x1; 4x1.

Frontal region: 3 bruises 3x1; 2x1 and 6x1.

Right back: 3 bruises 4x1; 8x1 and 6x1.

Abdomen 4x1.

He noted multiple bruises in both lower limbs. He said these were so many that it was difficult to count them that is why he just recorded them as multiple bruises.

The internal examination revealed a left scalp haematoma and subarachnoid hemorrhage. Death was due to subarachnoid hemorrhage following a head injury as a result of the assault.

The doctor said the bleeding in the brain can be caused by a fall or even a violent shake. He ruled out the possibility of the switches that were exhibited in court causing the bleeding in the brain because they were too small. He said the switches caused the lineal bruises. The sustained use of the switches could have caused death on their own; but death, in casu, was caused by bleeding in the brain.

The accused kicked the deceased once on the thigh causing a bruise of 8x4cm and once on the back causing a bruise of 5x11cm. He did not kick the deceased on the head. So the bleeding in the brain was not caused by a kick as there is no bruise to show that a kick was delivered to the head.

The accused gave evidence but had no witnesses to call. He maintained his story, as reflected in his Defence Outline and confirmed extra-curial statement.

What happened is in fact common ground. He was angered by the burning of the hut and when he confronted the deceased the child gave a childish answer by saying he wanted to see what would happen. That was typical of a child as he did not appreciate the seriousness of what he had done. The accused was also not happy with the reports he had received about the deceased; in that he had started tobacco smoking, and, possibly, beer drinking. His aim was to chastise him but the chastisement went terribly wrong.

It was excessive.

He himself said he beat him up with three (3) mopane switches until he realized that he had beaten him up too much. He said the beating took about 10 to 15 minutes. By any standard, beating up a child for such a long period is brutal.

But, did the accused realise that his actions would result in death ensuing and continued with the assault irrespective of whether or not death ensued?

It was belatedly suggested the accused may have been influenced by alcohol which he had taken.

That was a hopeless after-thought which must be rejected outright. The accused never raised that in his statement to the police. Neither does it feature in his Defence Outline.

His mother did not say he appeared drunk.

Be that as it may the legal question is whether the accused had the requisite mens rea to kill? Did he realize that his actions would cause the death of his nephew?

He severely beat him up by delivering multiple blows with switches. But, the switches did not cause the bleeding in the brain and it is not ordinary human experience that beating up a child with switches causes death.

The unexpected occurred.

There was bleeding in the brain which could have been caused by a fall or violent shaking. Is it in ordinary human experience that when a person is kicked and falls down bleeding in the brain would occur? I think not.

It, therefore, cannot be said the accused realized that his attack on the child would result in death but still persisted with his attack. There is evidence, on the other hand, that his action amounted to gross negligent and brutality.

He is found guilty of culpable homicide but is found not guilty of murder.

Approach re: Language of Record


Exhibit 3 was the accused's confirmed extra-curial statement he made to the police five days after the murder was committed. The statement reads thus:-

“I admit the charge of causing the death of Nation Phiri. I caused his death by beating him up with three switches. I also kicked him with tennis shoes. I did not intend to cause his death but to chastise him. He had developed a habit of smoking and drinking alcohol, and so he experimented by setting a hut on fire wishing to see what would happen.”

The English version of what the accused said omitted to say that the accused kicked the deceased with tennis shoes on the back as reflected in the Sindebele version.

Warned and Cautioned Statements, Indications, Evidence Aliunde & Presumption of Clarity of Events Nearer Date of Event


Exhibit 3 was the accused's confirmed extra-curial statement he made to the police five days after the murder was committed. The statement reads thus:-

“I admit the charge of causing the death of Nation Phiri. I caused his death by beating him up with three switches. I also kicked him with tennis shoes. I did not intend to cause his death but to chastise him. He had developed a habit of smoking and drinking alcohol, and so he experimented by setting a hut on fire wishing to see what would happen.”

The English version of what the accused said omitted to say that the accused kicked the deceased with tennis shoes on the back as reflected in the Sindebele version.

Physical Evidence re: Approach


Exhibit 6 were three (3) mopane switches. They are now dry and show signs of being broken while they were wet.

The longest was 70cm long weighing 0.015 grams; its circumference was 5cm at its widest point and 3cm on its smallest part. The second one was 53cm weighing 0.20 grams; its circumference was 3.8cm on the widest part and 3cm at its thinnest point. The third one was 52cm long weighing 0.20 grams; its circumference was 5cm at its widest part and 3cm on its smallest part. The switches would have been heavier at the time the accused used them.

Corroborative Evidence re: Admissions, Unchallenged Evidence, Right to Examine Witnesses & Audi Alteram Partem Rule


The evidence of the following witnesses was admitted by consent in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]; Aleck Nyathi, Sergeant Thandolwenkosi Moyo; Constable Gugulethu Sibanda and Constable Pascal Ndlovu.

Corroborative Evidence re: Pervasive or Undue Influence, Partisan Evidence, Prejudicial Evidence and Witness Coaching


Margaret Sibanda told the court that she resided at Number 110 Johnsley Resettlement, West Nicholson. She knew both the accused and the deceased as they were her son and grandson respectively. The deceased was a son of her late daughter. A decision was made that the deceased should go and live with his grandmother after the death of his mother. The deceased was about 5 years then. Both the witness and the deceased still remained the responsibility of the accused as he was their bread winner.

This explains why the witness was a reluctant witness as she gave evidence.

Her story did not flow. She had to be probed in order to say something.

Findings of Fact re: Witness Testimony, Candidness with the Court and Deceptive or Misleading Evidence


Margaret Sibanda told the court that she resided at Number 110 Johnsley Resettlement, West Nicholson. She knew both the accused and the deceased as they were her son and grandson respectively. The deceased was a son of her late daughter. A decision was made that the deceased should go and live with his grandmother after the death of his mother. The deceased was about 5 years then. Both the witness and the deceased still remained the responsibility of the accused as he was their bread winner.

This explains why the witness was a reluctant witness as she gave evidence.

Her story did not flow. She had to be probed in order to say something.

Expert Evidence, Opinion Evidence and Toolmark Evidence re: Approach and the Limited Expert Knowledge of the Court


Dr Sanganai Pesanai…, is a pathologist based at United Bulawayo Hospitals. He examined the remains of the deceased and compiled exhibit 5, the post mortem report. He read through it, and, under marks of violence, he noted the following lineal bruises;

Left abdomen: 3 bruises 10x1; 6x1; 5x1.

Thigh: 8x4.

Back: 3 bruises 5x11; 4x1 and 3x1.

Buttock: 3 bruises 5x1; 6x1; 4x1.

Frontal region: 3 bruises 3x1; 2x1 and 6x1.

Right back: 3 bruises 4x1; 8x1 and 6x1.

Abdomen 4x1.

He noted multiple bruises in both lower limbs. He said these were so many that it was difficult to count them; that is why he just recorded them as multiple bruises.

The internal examination revealed a left scalp haematoma and subarachnoid hemorrhage. Death was due to subarachnoid hemorrhage following a head injury as a result of the assault.

The doctor said the bleeding in the brain can be caused by a fall or even a violent shake. He ruled out the possibility of the switches that were exhibited in court causing the bleeding in the brain because they were too small. He said the switches caused the lineal bruises. The sustained use of the switches could have caused death on their own; but death, in casu, was caused by bleeding in the brain.

The accused kicked the deceased once on the thigh causing a bruise of 8x4cm and once on the back causing a bruise of 5x11cm. He did not kick the deceased on the head. So the bleeding in the brain was not caused by a kick as there is no bruise to show that a kick was delivered to the head.

Defence Outline, State Outline re: Approach, Testimonial Discrepancies and Prevaricative or Inconsistent Evidence


Exhibit 3 was the accused's confirmed extra curial statement he made to the police five days after the murder was committed. The statement reads thus:-

“I admit the charge of causing the death of Nation Phiri. I caused his death by beating him up with three switches. I also kicked him with tennis shoes. I did not intend to cause his death but to chastise him. He had developed a habit of smoking and drinking alcohol, and so he experimented by setting a hut on fire wishing to see what would happen.”…,.

The accused gave evidence but had no witnesses to call. He maintained his story, as reflected in his Defence Outline and confirmed extra-curial statement….,.

It was belatedly suggested the accused may have been influenced by alcohol which he had taken.

That was a hopeless afterthought which must be rejected outright. The accused never raised that in his statement to the police. Neither does it feature in his Defence Outline.

Criminal Trial – Ex Tempore

KAMOCHA J: The 41 year old accused was facing a charge of murder. It being alleged that on 3 August 2006 he did wrongfully, unlawfully and intentionally kill and murder Nation Phiri a male juvenile. This happened at Margaret Sibanda's homestead, Stand Number 110 Johnsley Resettlement, West Nicholson.

The accused is the maternal uncle of the deceased.

When the charge was put to him he tendered a plea of not guilty. The State Outline was read and produced as exhibit 1 while the Defence Outline was also read and produced as exhibit 2.

In his Defence Outline the accused stated, inter alia, that he was the deceased's uncle. He had stayed with the deceased from the time of his birth until he was 10 years when the mother of the accused (who was deceased's grandmother) took him as she was at that time staying alone. She needed someone to live with. The accused, however, maintained the role of the deceased parent or guardian. When he visited his mother she informed him that deceased had become a delinquent and had started drinking beer and had burnt one of the huts in the homestead. The accused averred that thereafter he asked the deceased to go with him to view cattle in their kraal. Accused and deceased discovered that some of the cattle were missing. They then went to look for the missing cattle in the direction of the fields. The accused said when they were in the fields he tried to advise the deceased to stop his bad behaviour. When he questioned him about the incident of the burning of the hut he gave a rude answer saying he wanted to see what would happen if he burnt the hut. It was then that accused lost his temper and chastised the deceased using switches mainly on the lower part of the body and immediately stopped when he realized that deceased had sustained injuries.

He went on to state that he and his mother tried to save deceased but he unfortunately died during the same night.

Exhibit 3 was the accused's confirmed extra-curial statement he made to the police five days after the murder was committed. The statement reads thus:-

I admit the charge of causing the death of Nation Phiri. I caused his death by beating him up with three switches. I also kicked him with tennis shoes. I did not intend to cause his death but to chastise him. He had developed a habit of smoking and drinking alcohol, and so he experimented by setting a hut on fire wishing to see what would happen.”

The English version of what the accused said omitted to say that the accused kicked the deceased with tennis shoes on the back as reflected in the Sindebele version.

Exhibit 4 was an affidavit by Constable Pascal Ndlovu who identified the body of the deceased to Dr Sanganai Pesanai the pathologist who examined the remains of the deceased and compiled a post mortem report which was produced as exhibit 5.

Exhibit 6 were 3 mopane switches. They are now dry and show signs of being broken while they were wet. The longest was 70cm long weighing 0.015 grams; its circumference was 5cm at its widest point and 3cm on its smallest part. The second one was 53cm weighing 0.20 grams; its circumference was 3.8cm on the widest part and 3cm at its thinnest point. The third one was 52cm long weighing 0.20 grams; its circumference was 5cm at its widest part and 3cm on its smallest part. The switches would have been heavier at the time the accused used them.

The evidence of the following witnesses was admitted by consent in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]; Aleck Nyathi, Sergeant Thandolwenkosi Moyo; Constable Gugulethu Sibanda and Constable Pascal Ndlovu.

Viva voce evidence was led from the mother of the accused Margaret Sibanda who is also the grandmother of the deceased. Dr Sanganai Pesanai was the second witness.

Margaret Sibanda told the court that she resided at Number 110 Johnsley Resettlement, West Nicholson. She knew both accused and the deceased as they were her son and grandson respectively. The deceased was a son of her late daughter. A decision was made that deceased should go and live with his grandmother after the death of his mother. The deceased was about 5 years then. Both the witnesses and deceased still remained the responsibility of the accused as he was their bread winner.

This explains why the witness was a reluctant witness as she gave evidence.

Her story did not flow. She had to be probed in order to say something.

What can be gathered from her story is that during the month of August when she was away the deceased torched the kitchen hut which got completely consumed by fire. She discovered this on her return and asked the deceased who confessed that it was him who had done it as he wanted to get some light. She accepted the event as an accident. The following day the accused who lives in the Matshetsheni area paid his mother a visit as he usually did since he supplied her and deceased with food and other needs. He asked her about the hut and she told him that the deceased had burnt it but that was an accident. The deceased was present when she was relating the story to accused but he is said not to have said anything. Instead accused is said to have asked deceased about cattle and asked deceased to go with him to look for the cattle which were reported to be missing.

After the two had been away for a long time the witness said she got worried about their long absence and decided to go in the direction they had gone. She then heard the deceased screaming and went in that direction and found the deceased lying down. He was unable to stand up. In fact before she got to where deceased was she met the accused on the way and asked him what had happened but he just laughed and said nothing had happened. On realizing that deceased had been injured and was unable to get up she went back home to collect a wheel barrow so that she could use it to carry him. When she brought the wheel barrow she tried to put him in order to carry him but she was unable to do so because the deceased said he felt severe pain when in the wheel barrow.

The accused returned to the scene.

He then carried the deceased home on his shoulders. The witness said she noticed a lot of weals on the deceased's body. His head was swollen. The deceased had been assaulted by the accused for being mischievious and burning the kitchen hut. The grandmother said the deceased was well behaved until the time he started smoking tobacco. She said he did not drink beer but was just naughty.

The grandmother reiterated that accused looked after her and the deceased well as he used to provide food for them every month. He used to pay school fees for the deceased and bought him uniforms and other clothes. Accused had heavy family commitments in that he had two wives and 8 children to look after in addition to the witness and deceased.

The next witness was Dr Sanganai Pesanai who is a pathologist based at United Bulawayo Hospitals. He examined the remains of the deceased and compiled exhibit 5 the post mortem report. He read through it and under marks of violence he noted the following lineal bruises;

Left abdomen: 3 bruises 10 x 1; 6 x 1; 5 x 1.

Thigh: 8 x 4.

Back: 3 bruises 5 x 11; 4 x 1 and 3 x 1.

Buttock: 3 bruises 5 x 1; 6 x 1; 4 x 1.

Frontal region: 3 bruises 3 x 1; 2 x 1 and 6 x 1.

Right back: 3 bruises 4 x 1; 8 x 1 and 6 x 1.

Abdomen 4 x 1.

He noted multiple bruises in both lower limbs. He said these were so many that it was difficult to count them that is why he just recorded them as multiple bruises.

The internal examination revealed a left scalp haematoma and subarachnoid hemorrhage. Death was due to subarachnoid hemorrhage following a head injury as a result of the assault.

The doctor said the bleeding in the brain can be caused by a fall or even a violent shake. He ruled out the possibility of the switches that were exhibited in court causing the bleeding in the brain because they were too small. He said the switches caused the lineal bruises. The sustained use of the switches could have caused death on their own but death in casu was caused by bleeding in the brain.

The accused kicked the deceased once on the thigh causing a bruise of 8 x 4cm and once on the back causing a bruise of 5 x 11cm. He did not kick the deceased on the head. So the bleeding in the brain was not caused by a kick as there is no bruise to show that a kick was delivered to the head.

The accused gave evidence but had no witnesses to call.

He maintained his story as reflected in his Defence Outline and confirmed extra-curial statement. What happened is in fact common ground. He was angered by the burning of the hut and when he confronted the deceased the child gave a childish answer by saying he wanted to see what would happen. That was typical of a child as he did not appreciate the seriousness of what he had done. The accused was also not happy with the reports he had received about deceased. In that he had started tobacco smoking and possibly beer drinking. His aim was to chastise him but the chastisement went terribly wrong.

It was excessive.

He himself said he beat him up with 3 mopane switches until he realized that he had beaten him up too much. He said the beating took about 10 to 15 minutes. By any standard beating up a child for such a long period is brutal.

But did the accused realise that his actions would result in death ensuing and continued with the assault irrespective of whether or not death ensued?

It was belatedly suggested the accused may have been influenced by alcohol which he had taken. That was a hopeless after-thought which must be rejected outright. The accused never raised that in his statement to the police. Neither does it feature in his Defence Outline. His mother did not say he appeared drunk.

Be that as it may the legal question is whether the accused had the requisite mens rea to kill? Did he realize that his actions would cause the death of his nephew?

He severely beat him up by delivering multiple blows with switches. But the switches did not cause the bleeding in the brain and it is not ordinary human experience that beating up a child with switches causes death.

The unexpected occurred.

There was bleeding in the brain which could have been caused by a fall or violent shaking. Is it in ordinary human experience that when a person is kicked and falls down bleeding in the brain would occur? I think not.

It, therefore, cannot be said the accused realized that his attack on the child would result in death but still persisted with his attack. There is evidence on the other hand that his action amounted to gross negligent and brutality.

He is found guilty of culpable homicide but is found not guilty of murder.

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