Judgment No. HB 138/2002

Case No. HC 73/2002

THE STATE

Versus

NKULULEKO NLEYA

IN THE HIGH COURT OF ZIMBABWE

CHEDA J

BULAWAYO 23 NOVEMBER & 12 DECEMBER 2002

Mrs I. Nyoni for the state

Siziba for the accused

Judgment

CHEDA J: Accused was charged with murder to which charge he pleaded

not guilty.

The brief facts of the matter as outlined by the state are that both accused and

deceased were aged 23 at the time of this offence. On 25 December 2000 at about

2130 hours both accused and deceased were drinking beer at Tokwane business

centre. Some misunderstanding developed between the two of them, which resulted

in a quarrel. The two were separated by one Sikhumbuzo Mlalazi who pulled the

deceased away and warned the two of them against fighting near his shop.

Subsequently accused approached deceased and stabbed him with an Okapi knife

resulting in his death.

The state opened its case by calling one Sikhumbuzo Mlalazi whose evidence

was that on the day in question he found the two sitting in the verandah of his shop

and it appeared that there was a misunderstanding. He separated the two by pulling

deceased to the back of his shop. After 30 minutes he saw accused coming from

behind his motor vehicle holding a knife and he uttered the words “ I am going to kill

you.” At that stage deceased was following him. This witness then noted that

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deceased was bleeding below the shoulder. He further observed that he was unable to

talk, was shivering, leaned on this witness’ motor vehicle and subsequently fell

down. Deceased died as a result of the stab wound.

This witness also observed that deceased was more argumentative than the

accused and was speaking in a loud voice. He pulled him away because it was clear

that deceased was more quarrelsome. He did not hear what they were quarrelling

about. He also stated under cross-examination that when he got to the verandah

accused pleaded with him to ask deceased to refrain from fighting him. He could not

say who was in possession of the knife as he did not see it. From his general

observation he concluded that both accused and deceased were drunk. He further

stated that when he pulled deceased away from accused, deceased was in fact

advancing towards accused. The state closed its case.

The accused through his legal practitioner Mr Siziba led evidence. His

evidence was that on the day in question, he arrived at the business centre at about

4pm and started drinking beer until 7pm. Deceased then arrived and started nagging

him by asking him to buy him beer. His response was that he did not have any

money, but obviously deceased did not believe him and he persisted with his request.

Deceased started insulting him by telling him that he was a very proud person as he

regards himself as a South African and struck him with a fist on the face. As a result

of this assault accused then ran away and sought refuge in the bottle store, but,

deceased followed, whereupon accused again ran out of the bottle store and back

again to the bottle store with deceased still in pursuit. Sikhumbuzo Mlalazi found

them in the verandah a point at which Sikhumbuzo Mlalazi intervened.

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He also stated that deceased in fact had a knife which knife he attempted to use on

him but he ducked the blow and finally got hold of the knife and subsequently stabbed

him. Such was the evidence of the accused.

The state, through Mrs Nyoni has argued that the defence raised by accused,

being that of self defence should not avail accused because accused was not under

imminent danger as he stabbed deceased after they had been separated by

Sikhumbuzo Mlalazi. She further argued that the court should disregard accused’s

evidence as he was not a credible witness at all but rather believe that of Sikhumbuzo

Mlalazi as he was a neutral person.

Mr Siziba on the other hand argued that accused should benefit from the

defence of self-defence. The requirements for self-defence are:

1. there must be an unlawful attack

2. the attack must be on the accused

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.

The court’s approach to this defence should be as objective as possible, as it

should take into account the circumstances the victim would have been in, in that

attack, namely his emotions, the survival instinct and psychological pressure he would

be under, in his quest to escape from the attack and the possibility of a fatality

resulting therefrom. This point was emphasised by his Lordship VAN De VENTER AJ

in Ntsomi v Minister of Law and Order 1990(1) SA 512 at 530B where he stated,

“My conclusions may be summarised as follows:

1. In finding the equilibrium of force between the counter attack in self defence and assault, the court should apply an objective test ex post facto but avoid an armchair perspective …”

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In this matter there was no eyewitness. It has however been proved by the

state that both accused and deceased were drunk and that deceased appeared to have

been more quarrelsome of the two and hence I find that he was the aggressor when

they were at the verandah as evidenced by Sikhumbuzo Mlalazi.

It is also a proven fact that accused was under attack. It is not entirely clear

whether at the time of the stabbing the attack had already commenced for the second

time or was imminent. The accused was in my view an honest witness and his

evidence is to a large extent corroborated by the state witness with regard to the

sequence of events of the evening, therefore, I have to give him the benefit of doubt

about the attack.

The only problem which the court faces is with regards to the means employed

to avert the attack and the necessity of the action taken. Accused was aware that

deceased was drunk and had been nagging him for a while. Accused had all the

opportunity of avoiding further confrontation with the hopelessly drunken deceased

who was not prepared to listen to reason. In such circumstances accused should have

taken avoiding action and left deceased on his own.

In order for defence of self-defence to hold accused should satisfy all the

requirements. Accused, however, has failed to satisfy the last two requirements and

as such his defence cannot succeed.

Accused was under imminent attack without provocation and had been

drinking although it has not been suggested or proved that he did not appreciate what

he was doing. In my view he did not have an actual intention to kill the deceased, this

is buttressed not only by his warned and cautioned statement but his evidence in chief

which was very consistent.

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I therefore find him guilty of murder with constructive intent.

Attorney General’s Office applicant’s legal practitioners

Cheda & Partners defendant’s legal practitioners