The State v Tamison Sibuyuni Muleya

On 4 March 2017, the accused and the deceased (Lubhu Munsaka, who was deaf and dumb) were drinking homemade brew ("tototo") at Dolphas Ncube's homestead together with Raymond Mudenda, Dolphas Ncube, and one Jameson. The State alleged that during this beer drink, the accused assaulted the deceased with a hoe handle, striking him on the head and back. The deceased was found dead either on the same day or the following day (5 March 2017). The State's case rested on the evidence of two witnesses: Raymond Mudenda, who testified that he saw the accused strike the deceased on the head once and twice on the back with a hoe handle without any prior quarrel; and Dolphas Ncube, who testified that he witnessed a quarrel between the accused and deceased where the deceased said "voetsek" to the accused before being struck. Neither witness reported the alleged assault to police at the scene on 5 March 2017. The witnesses only came forward with their accounts after being assaulted by the deceased's relatives at the funeral on 12 March 2017, when the relatives suspected that something had happened to the deceased at Dolphas' homestead. The matter was initially treated as a sudden death.

• Whether the State proved beyond reasonable doubt that the accused assaulted the deceased
• Whether the State proved beyond reasonable doubt that the accused caused the death of the deceased
• The credibility of State witnesses who gave contradictory accounts and delayed reporting the alleged assault
• Whether the onus of proof in a criminal matter was discharged by the State

The accused person was found not guilty of murder and was acquitted.

In a criminal prosecution for murder, the State bears the onus of proving beyond reasonable doubt that the accused committed the offense. Where State witnesses provide materially contradictory accounts of the alleged events, fail to promptly report the alleged criminal conduct without reasonable explanation, and have a demonstrable motive to falsely implicate the accused (such as deflecting suspicion from themselves after being made suspects), their testimony cannot be accepted as credible evidence sufficient to discharge the State's burden of proof. The credibility of witnesses is assessed not only by the consistency of their testimony but also by their conduct and demeanor, and by examining whether their actions are consistent with their stated version of events.

The court observed that the State should have called Jimmy Nkomazana as a witness to bridge the gaps in its case rather than leaving the court to guess. The court also noted that the investigating officer's explanation for the witnesses' delay (fear of witchcraft) was inconsistent with the witnesses' own explanations in court, further undermining the coherence of the State's case. The court made specific findings about Dolphas Ncube's demeanor in the witness box being highly questionable, suggesting judicial skepticism about his truthfulness beyond the specific contradictions identified.

This case illustrates the critical importance of credible and consistent witness testimony in criminal prosecutions, particularly in murder cases. It demonstrates that where State witnesses provide contradictory accounts, fail to promptly report alleged criminal conduct without reasonable explanation, and may have a motive to falsely implicate an accused person (in this case, to deflect suspicion from themselves), the court will not accept such evidence as sufficient to discharge the State's burden of proof beyond reasonable doubt. The case also highlights the importance of calling all material witnesses where there are gaps in the State's case. The judgment reinforces the principle that in criminal matters, the onus is on the State to prove guilt beyond reasonable doubt, and where witness credibility is fundamentally undermined, an acquittal must follow.