The State v Lizwe Sibanda

On 14 October 2024, the accused allegedly unlawfully and intentionally caused the death of Vusimuzi Sibanda by beating him three times on the head with a log. The State alleged that the accused went to a tent where the deceased was sleeping at night and, in the company of State witness Bekikhosi Gumbo, assaulted the deceased on the head with a log. A second State witness, Nigel Tshuma, testified that the accused arrived and assaulted both the deceased and himself before he escaped. The accused admitted attacking the deceased but claimed he struck him on the trunk/belly, not the head, and alleged that the first State witness was responsible for the fatal head injuries. The accused further claimed the attack arose from a dispute while playing cards and that he intervened to save the first witness from the deceased's attacks. Medical examination revealed the deceased sustained injuries only to the head, with no injuries to the body where the accused claimed to have struck.

• Whether the State proved beyond reasonable doubt that the accused caused the death of the deceased
• Whether the accused's version that he struck the deceased on the trunk rather than the head was reasonably possibly true
• Whether the failure to put the accused's version to State witnesses during cross-examination affected the credibility of the defence
• What the appropriate sentence for murder should be in the circumstances

The accused was found guilty of murder and sentenced to 20 years imprisonment. Articles used in connection with the murder were forfeited for destruction.

An accused person's version can be rejected as a fabrication where: (1) it is not put to State witnesses during cross-examination, depriving the court of the opportunity to assess their responses; (2) it is materially contradicted by objective medical evidence; and (3) it is disclosed only when the accused testifies, suggesting a deliberate attempt to avoid challenge. Where an accused admits to assaulting the deceased and medical evidence establishes that fatal injuries were inflicted on the part of the body the accused claims to have struck, and no injuries exist where the accused claims to have directed his blows, the accused's version is so improbable it cannot reasonably possibly be true. Murder warrants a substantial custodial sentence reflecting the sanctity of human life, and courts should generally follow statutory sentencing guidelines absent exceptional circumstances.

The court observed that it is extremely important to put the defence case to State witnesses to enable the court to evaluate the worthiness of both the defence and State cases. The court noted that the accused's conduct in withholding his version until giving his own evidence suggested a deliberate attempt to present a version that would remain unchallenged. The court commented that the absence of any apparent reason for the assault made the offence very serious. The court noted that the accused's intoxication at the time must have contributed to the violence leading to the deceased's death. The court remarked that its first duty is to safeguard the sanctity of life, which is why murder is the most serious crime.

This case reinforces important principles in Zimbabwean criminal procedure regarding the duty to put one's case to opposing witnesses during cross-examination, following the principle established in S v P. It demonstrates that failure to confront State witnesses with the defence version can be fatal to an accused's credibility. The case also illustrates the application of South African jurisprudence (S v Chabalala and S v Shackell) on evaluating evidence and testing an accused's version against inherent probabilities. It confirms that courts will reject defences that are demonstrably inconsistent with objective medical evidence. The case further demonstrates the application of statutory sentencing guidelines (SI 146 of 2023) for murder offences and the principle that murder, as the most serious crime involving the taking of human life, warrants substantial custodial sentences.