Single witness https://old.zimlii.org/taxonomy/term/10485/all en S v Hlambelo (HB 236-20, HC (CRB) 100/20) [2020] ZWBHC 236 (12 October 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/236 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>THE STATE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>WILLIAM HLAMBELO</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA J with Assessors Mr Ndlovu and Mr Bazwi</p> <p>HWANGE CIRCUIT COURT 7 and 12 OCTOBER 2020</p> <p> </p> <p><strong>Criminal trial </strong></p> <p> </p> <p><em>Mr. B. Tshabalala, </em>for the state</p> <p><em>Ms L. Mthombeni, </em>for the accused</p> <p><strong>DUBE-BANDA J:</strong>    The accused is charged with the crime of murder as defined in section 47 of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. It being alleged that on the 26 May 2019, at M.H. Bottle Store, Lonely Mine, Inyathi the accused unlawfully struck Hero Mkandla (deceased) with an axe on the head and once on the thigh, intending to kill him or realising that there is a real possibility that his conduct may cause the death but continued to engage in that conduct despite the risk or possibility. </p> <p> </p> <p>The accused pleaded not guilty to the charge. He was legally represented throughout the trial. The State tendered an outline of the state case. It shall not be necessary to repeat the entire contents of the state outline. It now forms part of the record. The accused tendered into the record an outline of his defence case. </p> <p>The State produced a confirmed warned and cautioned statement recorded by the police at ZRP Inyathi on 3rdJanuary 2020. The statement was confirmed by a magistrate on the 4thMarch 2020. The statement reads: </p> <p>I deny the charge levelled against me of killing Hero Mnkandla because I am not the one who struck him with an axe. Hero Mnkandla and Nkanyiso Mpofu were refusing to leave the bar whilst I was telling them it was time to close. I tried to plead with them but they refused stating that the bar is not mine and the money they are spending at the M.H. is way too much,I even get paid with the one they spend at the bar. I advised that it was now late and everyone has left save for the two of them. I reminded Hero that he once requested to sleep inside the bar stating that he was very drunk the following morning he had stolen phones, money and beer. As I was still talking to them Hero took out some money and pressed the slug I took the balls and threw them inside. Hero then dragged me by my trousers and took out a knife. When he tried to stab me I got hold of his hand and fell him down. Nkanyiso came armed with an axe when he tried to strike me he missed and hit a torch which was on the head and it fell down and there was darkness in the bar. Hero was still grabbing me by my trousers Nkanyiso tried to axe me I dodged by using Hero as my shield. I did not notice how many times he assaulted him because it was dark. </p> <p>The state tendered a post mortem report compiled by Dr Juana Rodriguez Gregori at United Bulawayo Hospitals on 17 September 2019.  Following an examination of the remains of the deceased, the pathologist concluded that the cause of death was:</p> <ol> <li>subdural haematoma</li> <li>skull bones fracture</li> <li>severe head trauma</li> </ol> <p><strong>State ca</strong><strong>se</strong></p> <p>The state led oral testimony from two witnesses. The first to testify was Nkanyiso Mpofu.  He resides at number 12 Fetkill Village 8, Lonely Mine, Inyathi. He knows the accused as a local, he usually sees him at the shops. The deceased was his friend. On the 26 May 2019, at around 1930 hours the witness and the deceased went to M.H. bar for a beer drink. At around 2100 hours the bar person closed the bar. She said those with drinks must finish their drinks and leave the bar. The witness was seated on top of the mini-soccer machine and the deceased was standing at the door. The patrons were using torches as a source of light. The accused entered the bar, looked at all directions as if he was looking for someone, produced an axe and struck the deceased on the head and thigh. Accused opened the door and left. Patrons left the bar running. The witness called out the deceased’s name several times but he did not respond. When he got closer to the deceased he noticed that he had a deep cut on the head that was bleeding. The witness tried to get help from the people who worked at the bar, he could not get any help. He later went home to inform his mother, and proceeded to inform the deceased’s grandparents. The deceased was ferried to hospital in Inyathi and later to Mplilo Hospital, Bulawayo. He was treated and discharged. The deceased later died on the 6 September 2019, at his rural home. </p> <p>The second to testify was Trust Jim Pandeni. He resides at his own homestead, Decide Village 1, Naleni, Inyathi. He knows both the accused and the deceased, they are local village people. On the 26 May 2019, at around 2000 hours, the witness was at the M.H. Bar, where he was drinking beer. The deceased and his friend Nkanyiso Mpofu, entered the bar and started insulting patrons using vulgar language. The deceased drew an okapi knife from his pocket, and started to sharpen it on the floor. The deceased and his friend were lifting up the mini-soccer machine and hitting it on the floor. The witness left the bar as the environment was getting violent. He did not see the accused. </p> <p>The prosecutor sought admissions from the accused in terms of s 314 of the Criminal Procedure &amp; Evidence Act [<em>Chapter 9:07</em>]. The accused admitted the evidence of certain witnesses as contained in the summary of the state case. That is, the evidence of Dr Gregori, who examined the remains of the deceased and recorded a post mortem report. The evidence of Nokuthaba Mpofu, the bar lady at MH Bottle store, the scene of the crime. According to her evidence, on the 26 May 2019, at around 2000 hours, she advised all patrons to leave the bar, because it was time to close. The patrons refused to move out. The deceased said she should not close the bar but let them continue drinking. She proceeded to close the door, switch off the radio and the lights and allowed those who needed to finish their drinks to do so. The following morning she learnt that there was violence at the bar and she observed blood stains on the veranda. The evidence of Constable Mushanyu, the investigating officer in this case was admitted in terms of section 314 of the Criminal Procedure and Evidence Act. He visited the scene of crime on the 30 May 2019. He interviewed the witness Nkanyiso Mpofu. He arrested the accused. The witness failed to recover the murder weapon, i.e. the axe. In June 2019, the witness visited the deceased at his home, and observed that he had a deep cut on the head and on the left thigh. The last to be admitted was the evidence of Sergeant Ndlovu, who recorded a warned and cautioned statement from the accused. </p> <p> </p> <p>This is the State case. </p> <p><strong>Defence case </strong></p> <p>The accused elected to give evidence under oath. He testified that he was 39 years old. He works at M.H. Bar. He is a general hand, and his duties entail, amongst others, the collection of empties and making sure that after work the doors of the bar are closed and secured. He knew the deceased during his lifetime. The police had told the bar personnel to close at 8 p.m. On the 26 May 2019, at 8 p. m. they decided to close the bar. The bar lady told the patrons that the bar was closed, and she asked those with unfinished drinks to finish and leave the bar. She switched off the radio and the lights. She gave accused a hat with a head-torch. Most patrons complied and left the bar. Two patrons remained, i.e. the deceased and Nkanyiso Mpofu. </p> <p>The accused told the two to leave the bar. Nkanyiso Mpofu said to the accused that the “bar is not yours.” The deceased said they are spending a lot of money at the bar, the accused is paid from the money they spend in the bar. Accused reminded the deceased that previously the deceased said he was drunk and unable to go to his home, he was allowed to sleep in the bar for the night. He woke up at night and stole beer, phones and cash. The deceased proceeded to put some coins in the mini-soccer machine (slug) and the balls came out. The accused picked the balls and threw them back into the machine. While he was putting the balls back into the machine, the deceased got a hold of the accused by his trousers. The deceased was holding an okapi knife, in an attacking position. Accused grabbed the hand that was holding the knife, and stripped him, and deceased fell to the ground. When deceased tried to stand, accused pushed him to the ground. </p> <p>Nkanyiso Mpofu realised that his friend was being overpowered, he drew out an axe, and tried to strike the accused who was now on top of the deceased. Accused evaded the strike and Nkanyiso Mpofu hit his (accused’s) head torch, it became dark. During the fight that ensued, the accused got on top of the deceased. Accused then realised that Nkanyiso Mpofu had joined the fight on the side of the deceased. He pushed the deceased who was on the ground to be on top of him (accused). The accused heard the deceased say “strike William,” he then realised that Nkanyiso Mpofu had missed him (accused) and struck his friend with the axe. At that point he noted that the deceased was no longer holding him. He left the bar and ran away. </p> <p>Accused closed his defence case.</p> <p><strong>Analysis of the evidence </strong></p> <p>            Nkanyiso Mpofu is a single witness in respect of the actual striking of the deceased with an axe. No other witness was present when the actual axing of the deceased occurred. In terms of section 269 of the Criminal Procedure and Evidence Act [Chapter 9:07], an accused may be convicted of any offence of murder on the single evidence of any competent and credible witness.<a href="//A476E02D-8A1F-4E17-9E3C-4F3BC64EC9FB#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>It is trite law, however, that, as a result of the danger of relying exclusively on the sincerity and perceptive powers of a single witness, a judicial practice has evolved that such evidence be treated with special care. The cautionary rule originated in remarks made by De Villiers, JP in <em>R v Mokoena </em>1932 OPD 79, to the effect that the evidence of a single witness should only be relied upon where it is “<em>clear and satisfactory in every material respect</em>”. However, over the years a more flexible approach to the testimony of a single witness has been generally accepted. This follows the decisions in cases such as <em>Rv Nhlapo </em>1953 (1) PH H 11 (A), <em>R v Bellingham </em>1955 (2) SA 566 (A), <em>R v Abdoorham </em>1954 (3) SA 163 (N), <em>R v Mokoena </em>1956 (3) SA 81 (A). </p> <p> </p> <p>            In <em>R v Nhlapo</em>1953 (1) PH H 11 (A), it was stated that the cautionary rulemay wellbe helpful as a guide to the right decision, it naturally requiresjudicious application and cannot be expected to provide, as it wereautomatically, the correct answer to the question of whether theevidence of the crown witness should be accepted as truthful andaccurate. The court added that it does not mean that an appeal must succeed “if any criticism, however slender, of a witness’s evidencewere well founded”. In <em>R v J </em>1966 (1) SA 88 (SRA), the court expressed the view that the cautionary rules are “no more than guides, <em>albeit</em>very valuable guides, “which assist the Court in deciding whether the Crown has discharged the <em>onus</em>resting upon it”. The court added that the exercise of caution should not be allowed to displace the exercise of common sense. And once a judicial officer has anxiously scrutinised the evidence of a single witness he should not be ‘swayed’ by fanciful and unrealistic fears.The courts have stated that there is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of a single witness. The trial Judge will weigh his evidence, or consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told. </p> <p> </p> <p> According to Nkanyiso Mpofu, he knows the accused as a local person as he usually sees him at the shops. He said the accused walked into the bar, looked at all directions as if he was looking for someone, then struck the deceased on the head and thigh and then left. The evidence shows that the accused was employed at the bar. Nkanyiso Mpofu did not tell the court that the accused was employed at the bar.We know from the evidence of Pandeni thatthe deceased and Nkanyiso Mpofu, entered the bar and started insulting patrons using vulgar language. The deceased drew an okapi knife from his pocket, and started to sharpen it on the floor. The deceased and his friend were lifting up the mini-soccer machine and hitting it on the floor. The Pandeni left the bar as the environment was getting violent. The evidence of Nokuthaba Mpofu shows that after the bar was closed, the deceased refused to leave the bar. The evidence of Pandeni reveals that the situation at the bar was very violent, the violence was caused by the deceased and Nkanyiso Mpofu. The violence occurred before the accused entered the bar. We know from the evidence that there was a fight at the bar before the axing of the deceased. Pandeni saw the deceased drawing out an okapi knife, this must be same okapi knife that accused says deceased produced intending to stab him. </p> <p>Nkanyiso Mpofu says nothing about the violence they caused at the bar. He says absolutely nothing about the violence that he and deceased caused at the bar. He says nothing about the okapi knife in the possession of the deceased. He does not tell the court that the accused worked at the bar. He merely says he knows the accused as a local person. He created a bizarre situation, of an accused just entering the bar, without saying anything, axing the deceased and then leaving the bar.  It is Pandeni a state witness who told the court that the violence at the bar was caused by the deceased and Nkanyiso Mpofu. They insulted patrons using vulgar language. The deceased was seen by sharpening an okapi knife on the floor. We take the view that Nkanyiso Mpofu was not candid with this court. His evidence cannot be truth of what happened at the bar, which resulted in the axing of the deceased. He was an untruthful, unreliable and untrustworthy as a witness.</p> <p>We cannot say the evidence of Nkanyiso Mpofu is clear and satisfactory in every material respect. As a result of its shortcomings and defects we are not satisfied that the truth has been told. We cannot say his evidence is truthful andaccurate. We take the view that he is not a credible witness as anticipated by section 269 of the Criminal Procedure and Evidence Act. </p> <p>It is trite law that in a criminal trial the <em>onus </em>is on the State to prove the commission of the offence beyond reasonable doubt and that there is no <em>onus </em>on an accused person to prove his innocence. This court is alive to the basic principles to be applied in dealing with the version of an accused. In <em>S v Kuiper </em>2000 (1) ZLR 113 (S) at 118B-D:- the court said the test to be applied before the court rejects the explanation given by an accused person was set out by GREENBERG J in <em>R v Difford</em>1937 AD 370. At 373, the learned judge said:- </p> <p> </p> <p>no<em>onus </em>rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal. </p> <p> </p> <p>Similarly, in <em>R v M </em>1946 AD 1023, DAVISAJA said the following at 1027: </p> <p> </p> <p>And, I repeat, the court does not have to believe the defence story; still less has it to believe it in all its details; it is sufficient if it thinks that there is a reasonable possibility that it may be substantially true.</p> <p>The accused has given a version. He works at the bar. There is evidence from Pandeni that the deceased and Nkanyiso Mpofu caused violence at the bar and insulted patrons using vulgar language. There is evidence from Pandeni that the deceased was in possession of an okapi knife. He sharped it on the floor. The violence caused by the two, i.e. Nkanyiso Mpofu and the deceased caused the witness Pandeni to leave the bar. He left the bar because he thought the deceased and Nkanyiso Mpofu belong to a group called “<em>amabhabhazi</em>” gangs who assault people at night. </p> <p>The accused gives a version about the circumstances that resulted in the axing of the deceased. The deceased put some coins in the mini-soccer machine, got the balls, but accused threw the balls back into the machine. Then a fight started. Deceased produced an okapi knife, this must be the same knife Pandeni says deceased was sharpening on the floor. Accused testified that it is not him who axed the deceased. He avers that during the commotion, the fight, in the dark Nkanyiso Ndlovu missed the accused and axed the deceased. We are not making any finding that Nkanyiso is the one who axed the deceased. All we are saying is that the explanation given by the accused cannot be said to be false beyond a reasonable doubt. He has no <em>onus</em>to convince the court of the truth of any explanation he gives. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal. </p> <p>The state in cross-examination did not challenge the version of the accused in any material respects. The accused was asked a mere thirteen questions. The first eight questions did not go to the heart of the matter. The last five questions were the flowing: </p> <p>Q.         <a href="//A476E02D-8A1F-4E17-9E3C-4F3BC64EC9FB#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a>You did not see the first witness strike the deceased? You are assuming? A.<a href="//A476E02D-8A1F-4E17-9E3C-4F3BC64EC9FB#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a>I saw the axe when it hit the torch. I heard the deceased say hit William. It was dark.  Q. Nkanyiso Mpofu saw you hit the deceased twice.  A. He did not see me. Q. He says he saw you with his torch strike the deceased. A. No one had a torch. Q. I put it to you that you are the one you struck the deceased.  A. Is not me. Q. By striking the deceased you saw that he could die? A. I did not strike him. </p> <p>The accused’s version remains unchallenged and intact. He was not discredited in cross-examination. It cannot be said that the accused’s version is false beyond a reasonable doubt. </p> <p>The conduct of the accused after the fight at the bar is somewhat bizarre. He runs away and leaves two people at the bar, one who previously had stolen beer, cash and phones. He does not report the matter to the police. He does not alert his workmates of the fight and that he left people inside the bar. This conduct raises a suspicion that he might be the killer of the deceased. But suspicion is not proof. Our law requires proof beyond a reasonable doubt for a conviction to follow. In our law there can never be a conviction anchored on a suspicion, strong as it might turn out to be. </p> <p>There are gaps in the evidence of the state case. The state did not discharge the burden of proof to prove its case beyond a reasonable doubt. When all the evidence has been assessed, we are satisfied that the state failed to prove its case beyond a reasonable doubt, and consequently we find the accused not guilty on the charge of murder. </p> <p>Verdict: Not guilty and acquitted.</p> <p> </p> <p> </p> <p><em>National Prosecuting Authority,</em>state’s legal practitioners</p> <p><em>Dube, Nkala and Company</em>, accused’s legal practitioners</p> <p> </p> <p> </p> <p><a href="//A476E02D-8A1F-4E17-9E3C-4F3BC64EC9FB#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a><strong>269 Sufficiency of one witness in criminal cases, except perjury and treason</strong></p> <p>It shall be lawful for the court by which any person prosecuted for any offence is tried to convict such person of any offence alleged against him in the indictment, summons or charge under trial on the single evidence of any competent and credible witness:</p> <p>Provided that it shall not be competent for any court—</p> <p>(<em>a</em>) to convict any person of perjury on the evidence of any one witness as to the falsity of any statement made by the accused unless, in addition to and independently of the testimony of such witness, some other competent and credible evidence as to the falsity of such statement is given to such court;</p> <p>(<em>b</em>) to convict any person of treason, except upon the evidence of two witnesses where one overt act is charged in the indictment or, where two or more such overt acts are so charged, upon the evidence of one witness to each such overt act;</p> <p>(<em>c</em>) to convict any person on the single evidence of any witness of an offence in respect of which provision to the contrary is made by any enactment.</p> <p> </p> <p> </p> <p><a href="//A476E02D-8A1F-4E17-9E3C-4F3BC64EC9FB#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a>Question.</p> <p><a href="//A476E02D-8A1F-4E17-9E3C-4F3BC64EC9FB#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a>Answer.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/236/2020-zwbhc-236.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=31000">2020-zwbhc-236.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/single-witness">Single witness</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Fri, 13 Nov 2020 08:22:14 +0000 Sandra 9916 at https://old.zimlii.org S v Nezandoyi (HMT 20-20, CRB 10-20) [2020] ZWMTHC 20 (19 February 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/20 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>STATE                                               </p> <p>versus</p> <p>LYDIA NEZANDONYI</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZENDA J</p> <p>MUTARE, 11, 12, 17 and 19 February 2020</p> <p> </p> <p> </p> <p><strong>Criminal Trial</strong></p> <p> </p> <p> </p> <p>ASSESORS:   1. Mr Magorokosho   </p> <p>2. Mr Mudzinge</p> <p> </p> <p> </p> <p>Ms <em>TL Katsiru</em>, for the State</p> <p><em>V Chinzamba</em>, for the Accused      </p> <p> </p> <p> </p> <p> </p> <p>MUZENDA J: The accused is facing a charge of Murder as defined in s 47 (1) (a) or (b) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] and the State alleges that on 24 February 2019, and at Zandoyi Village, Bvumbura, Chief Mutambara, Chimanimani in Manicaland, the accused unlawfully caused the death of Mejury Matiza by striking her several times on her body with a stick, intending to kill her or realising that there was a real risk or possibility that her continued conduct might cause the death continued to engage in that conduct despite the risk or possibility thereby causing injuries from which the said Mejury Matiza died. The accused pleaded Not Guilty to the charge.</p> <p>In her defence outline, (Annexure “B”) she stated that she never assaulted the deceased either as alleged or at all. She denies causing the death of the deceased or act in a manner in which the deceased’s death could have been foreseeable. According to accused she saw deceased slip and fall hard on a rocky and stony surface at her homestead, thereafter she observed the deceased fall three more times. When deceased fell for the fourth time, accused went to her aid and carried deceased home. She further stated that she will dispute the evidence of Gracious Matiza, Godfrey and Joseph Matiza, in as far as it suggests that she assaulted the deceased and caused some visible injuries. She indicated that she will accept the rest of the State evidence subject to clarification of the pathological report only. She prayed for an acquittal.</p> <p>The facts of the matter appear from the Summary of the State case, (Annexure “A”). Accused is aged 28 years, deceased was accused’s step daughter aged eleven (11) years. On 24 February 2019 at around 1230 hours, the accused was at home with her two step daughters and her son Leon. The accused sent Gracious, aged ten years, to a neighbour’s house. Accused picked a stick, called deceased into the bed-room house and whilst inside the house, assaulted deceased several times upon her body. Deceased exited the house crying holding her head and back. Accused sent deceased to go and fetch water. On her way to fetch water deceased was instructed to drive a beast away from the fields, on her way deceased fell down three times and the fourth time she became unconscious.</p> <p>Accused took the deceased to their homestead, deceased was vomiting. The deceased’s father, Joseph Matiza, rushed to the scene from the garden when he heard deceased crying. Joseph enquired from the accused what had happened but accused person denied any knowledge as to what could have happened. Joseph took the deceased to Mutambara Mission Hospital whereupon arrival she was further referred to Mutare Provincial Hospital where she was admitted. On 9 March 2019 deceased died. A post-mortem by Dr Aisa Serranole concluded that the cause of death was due to brain haemorrhage, head contusion and head injury.</p> <p>STATE CASE</p> <p>            The evidence of the State witnesses namely Temba Mutsakani Manzete, Caroline Kitsire, Innocent Zano, Shepherd Mataure, Catherine Mvundure, Blessing Zumba, Partson Mudimbwa and Christina Chikodza was upon the application of the State and consent of the defence counsel, admitted in Court in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].</p> <p>            The confirmed warned and cautioned statement of the accused was produced by consent and marked exh 1 the English version of the statement reads:-</p> <p>“I understood the nature of the allegations being levelled against me by the State. I do not admit to the charge. On this day I sent the now deceased to the well to fetch some water. On the way I further instructed her to drive away some cattle so that they should not enter into the field. She then slipped and fell down as she ran to drive cattle. I approached her and she appeared to be very weak and I lifted her and ferried her home. I did not assault the now deceased. She was later taken by Joseph Matiza to hospital.”</p> <p> </p> <p>            The State called Gracious Matiza, as its first witness. Deceased was her elder sister, and accused is the witness’s step mother, to her (Gracious). Accused was in court because she assaulted Mejury. She did not know the offence which had been committed by Mejury that caused accused to assault her. What she recalls was that when she came back to her parent’s homestead from the errand she had been tasked by the accused, she heard accused calling the now deceased for the latter to go into the house where accused was. This call to the deceased occurred after accused had picked a firewood stub. Deceased heeded to the call and went into the house. Later, the witness heard sounds of someone being beaten, she then observed deceased emerging from the house crying. She was holding a five litre plastic container in one of her hands. The witness heard accused ordering deceased to go and drive some cattle which were about to go into the field. She saw deceased obliging to the order but before deceased could reach where the cattle were, she fell, she saw her rising, stood up but fell again for the second time, stood up once again but fell for the third time, she managed to rise but fell for the fourth time at the fourth fall she never rose again. When she heard the deceased being assaulted by accused inside the house, she was standing at a distance of about fifteen metres from the house. She identified the firewood stub in court as the one which was used by accused to assault the deceased. She further told the court that when deceased fell accused was standing within the yard of the family’s homestead. Accused later went to where deceased was lying, lifted her up, tried to console deceased and carried her to the house. She added that when deceased emerged from the house immediately after the assault she observed that deceased was touching the back of her head and also her back along the waist. She does not agree with the accused when the latter says she never assaulted the deceased.</p> <p>            Under cross-examination by Mr <em>Chinzamba</em>, the witness disputed that where deceased fell is a rocky or stony area. She also stated that she did not access the house or hut where deceased was being assaulted but she could hear deceased screaming whilst inside the house and simultaneously accused was hushing her to keep quiet. At the time of the assault the witness could see her uncle, Godfrey Matiza, seated at his homestead, but she would not know whether Godfrey could hear deceased screaming. She also repeated what she stated in her evidence in chief that when deceased emerged from the house where the assault took place she was holding her left side of the head and back; did so even at the time she went to fetch water and was still sobbing and at times cried loudly. She also confirmed that when deceased went to drive the cattle, she ran but still holding her back and waist. The witness elaborated that when deceased fell, she did so by the face and stomach, she never fell on her back. She also noted that when deceased emerged from the house after the assault she was drooling.</p> <p>            After accused lifted deceased the witness noted an injury on the left side of her belly region, Godfrey and Joseph also saw the injury. She also told the court that she is the one who identified the firewood stub, she found it near the outside fireplace, the stub had been left by the accused inside the house, she had previously seen the stick before the assault of the deceased when accused was standing at the door of her house. The witness was also questioned about the relationship of the deceased and accused. She told the court that the relationship between the two had developed into acrimony of late when she saw accused denying deceased food and on the other occasion, assaulted her. The witness had since left the parental homestead and gone to stay with an aunt in Chegutu. She concluded her cross-examination answers by stating that from the first fall to the point where she finally collapsed without being able to rise again was a short distance.</p> <p>            The State then called Godfrey Matiza as a witness. He is the young brother to deceased’s father. On the fateful day he was at his homestead 40-50, metres away from the scene of the alleged assault where he was shelling maize. He later saw deceased coming towards his homestead crying. He remonstrated her against unexplained crying and asked her why she was crying, she did not tell him. He observed her walking with one hand  holding her hand on the left had side, he saw her walking for a short distance and fell, he was at a distance of  4-5 metres from where deceased was. He later heard accused ordering deceased to go and drive some cattle which were about to go into a nearby maize crop field, as she moved towards that field, she fell again.</p> <p>            She placed the water containers down and staggered going towards where the cattle were. She called the name of the lead ox three times after the call, she fell again. At that stage accused walked through a pathway which has stones or rocks on either side going to where deceased was lying. The witness confirmed that there are sparsely distributed stones around the area but stated that the deceased fell headlong and at the place she fell for the second time the area is grassy, the second place of fall was 6 metres away from the first place she had fallen. He observed the accused lifting deceased and taking her to the house. She placed deceased at a place where accused normally conducted her prayers and accused started praying. When the witness finally followed accused to the latter’s homestead, he found deceased lying but observed drool oozing from deceased’s mouth and nostrils. The witness assisted deceased’s father to look for transport to ferry deceased to Mutambara Hospital. He further told the court that he noted a fresh wound close to deceased’s rib cage area when the father was changing her clothes in preparation to take deceased to the hospital. To the witness, the relationship between deceased and accused was cordial.</p> <p>            Under cross-examination he told the court that because of the distance between his brother’s and his homestead he did perceive deceased screaming. When deceased approached the witness’s homestead, he saw Gracious standing by the wreck built for plates, outside the house. Although the witness confirmed that where deceased fell there is a stony surface, he did not see deceased’s head hitting the ground, nor upon observing her did her discern any visible injuries on the head. He did not ask the accused whether she had assaulted the deceased, he only got the information from Gracious. He identified the stick and handed it to the police. The State then called Joseph Matiza, deceased’s father. The relationship between deceased and accused used to be very cordial but as time moved on it became unfriendly.</p> <p>            On the day in question he recalled being summoned by accused through deceased who was sent to call the father who was at the garden. Upon arriving at the homestead he was told by the accused that deceased had caused his son Leon to fall. The accused did not know what deceased had done to her son Leon. After the briefing, the witness went back to the garden barely had he settled at the garden did the witness hear deceased crying he called out to accused to establish what had caused deceased to scream, he did not get a response from the accused, the witness resolved to go back to the homestead to find out. He found Gracious standing near the wreck for the plates and observed accused giving order to deceased to drive away the beasts. He then saw the accused carrying the deceased in her arms. He asked the accused as to what had happened to the deceased and accused told him that she knew nothing that could have happened to the deceased that led to the condition deceased was then in.</p> <p>            At the time deceased was handed over to the witness, her blouse was unravelled, it exposed a fresh injury just below her abdomen, above the hip. The witness asked accused whether she had not done anything to the deceased but she told him that she has not done anything to her. He kept on asking accused that question because earlier on accused had told him what deceased had done to Leon. He was asked to describe the terrain where the deceased fell and he told the court that from his homestead going towards Godfrey Matiza’s place, there is a lawn surface but on another side there are some gravel or stones or erosion brought about by cyclone Idai.</p> <p>            Under cross-examination by defence counsel, the witness stated that from the date he took deceased to hospital he was seeing accused after a long period of time. After the death of his daughter he asked accused to go and stay with her parents. He was asked about the injury he saw on the body of the deceased, he remained adamant that he saw it. Before he left the garden for the second time, he heard deceased crying, from a distance he saw her coming out of the house/ hut, stood between two huts where there was a wreck and when he returned to the homestead he was surprised to see her emaciated compared to the condition she had been. Before the alleged assault, deceased was healthy.</p> <p>            The State then called Assistant Inspector Herbert Chari. His evidence is that the place where deceased stayed is stony there are both big and small stones. Under cross-examination he stated that he saw the place where deceased fell, if one hits against such surface one may sustain injuries. However the place where deceased finally fell was patchy grass. The stick allegedly used to assault the now deceased was given to the police by Gracious.</p> <p>            The State then called Constable Tinashe Chikomo, the investigating officer in this matter. He drew the sketch plan which was produced by consent and marked exh number 2. He also produced the stub, exh number 3, the certificate of weight, exh number 4. He confirmed that the scene of the crime is rocky. The rest of his evidence is what he heard from State witnesses</p> <p>The last witness to be called by the State was Dr Blessing Zamba, a medical doctor. He was called specifically to assist the court in explaining the medical terms of the post mortem. The post mortem showed that there were no visible wounds or injuries. The skull indicated that there were no fractures but the left side of the brain showed that there was significant internal bleeding, there was clotted blood on the left side covering the entire side of the left side, the brain was swollen, the lungs were congested because of the nature of the injuries on the head, the head was hit against a hard object resulting in severe brain oedema. For one to sustain that injury, severe force could have been used. The post mortem report was produced as exh number 5.</p> <p>Under cross examination, the doctor was asked if the stick, exh 3, could have caused the injuries, he answered in the affirmative. He further explained that depending on the degree of force used by the assailant and also the vulnerability of the victim, yes the stub could have caused such an injury on the head. The haematoma was located on the left hand side of the head and a blunt object cannot be ruled out. He added that if a skull could have hit on a sharp edged stone that sharp object could have raptured the skull.</p> <p>After the evidence of the medical doctor, the State closed its case. The defence counsel applied for discharge of the accused at the close of the State case. He submitted that the State had failed to lead evidence which is reliable. The State witnesses were in sufficient inconsistent and contradictory. The State failed to prove the cause of death of the deceased. The State failed to call a pathologist who should have discounted the other possible cause of death like falling on a stony area, the State thus left a number of medical questions hanging. The defence also submitted that the State witnesses were contradictory on the aspect of whether there were visible injuries or not on the deceased. Also there was conflicting evidence on where the stub was recovered and by whom. The defence also attacked the State on whether deceased fell on a rocky surface or not. The defence prayed that the accused be discharged at the close of the State case.</p> <p>In response the State submitted an application of this nature, the test is whether the State had managed to prove a prima facie case for an accused to answer, not proof beyond a reasonable doubt. It submitted that Gracious Matiza saw accused calling deceased into the house holding a stub and heard deceased being assaulted and that she was screaming. Godfrey Matiza saw the deceased crying falling down staggering and falling down again. The doctor confirmed that a blunt force trauma was used to inflict the injury and a stick produced in court could have caused such an injury on an eleven (11) year old girl. The State contended that the accused had a case to answer.</p> <p>After the application and State response I dismissed the application and indicated that my reasons for such a dismissal of the application would follow I ordered that accused be put on her defence, she had a case to answer.</p> <p>The accused adopted her defence outline, confirmed warned and cautioned statement to form the basis of her defence. She denies assaulting the deceased in any way. She admitted most of the State witnesses’ evidence from the falling of Leon, her summoning of the husband from the garden, the return of the husband from the garden, the presence of Gracious at the scene, the sending of the deceased to fetch water, the order to drive the cattle and the falling of the deceased on four occasions. What she disputes is the assaulting of the deceased and the knowledge of the stick allegedly used on the date in question to assault the deceased. The accused did not put a spirited challenge to the evidence that deceased emerged from the house where she was crying and was seen by Godfrey Matiza crying. The accused’s counsel never challenged this crucial piece of evidence, the question that remains to be probed is why was the deceased crying? The next question for this court to decide is whether this court to decide is whether the accused assaulted the deceased leading to the injuries that ultimately caused deceased’s death?</p> <p>APPLICATION FOR DISCHARGE OF ACCUSED AT THE CLOSE OF STATE CASE</p> <p>            The court gave <em>extempo</em> ruling dismissing the application for discharge at the close of the State case and indicated that full reasons for such a dismissal will be provided in the main judgment. These are they.</p> <p>            In the matter of <em>S v Kachipare</em><a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a> it was held<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a></p> <p>“the wording of s 198 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07] made it clear that where at the end of the State case, there is no evidence upon which a reasonable court might convict, the court has no discretion: it must discharge the accused. The court may not exercise its discretion against the accused if it has reason to suppose that the inadequate State evidence might be bolstered by the defence evidence. The evidence in this ease was purely circumstantial and was not evidence upon which a reasonable man might draw inference suggested by the State. The appellant should have been discharged at that stage of the trial.”</p> <p> </p> <p>            In the matter of <em>S v Morgan Richard Tsvangirai and Others</em><a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a> it was held:</p> <p>“In terms of s 198 (3) of the Criminal Procedure and Evidence Act, where at the end of the State case the court considers that there is no evidence that the accused committed the offence, it has no discretion but to acquit.</p> <p> </p> <p>In particular, the court must discharge the accused at the close of the case for the prosecution where:</p> <ol> <li>there is no evidence to prove an essential element of the offence</li> <li>there is no evidence on which a reasonable court acting carefully, might properly convict</li> <li>the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.</li> </ol> <p> </p> <p>Whilst it is settled that a court must acquit at the end of the State case where the evidence of the prosecution witnesses has been so manifestly unreliable that no reasonable tribunal could safely convict on it, such cases will be rare and would occur only in most exceptional cases where the wintesses’ credibility is so utterly destroyed that no part of his material evidence can possible be believable.”<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a></p> <p> </p> <p>            Accused was seen by Gracious Matiza holding a firewood stub standing at the entrance of her house, called deceased into the house, was heard by Gracious assaulting deceased, deceased was heard screaming obviously in pain during the assault and when deceased emerged from the house where the assault was taking place she was crying holding her head and her back. Immediately thereafter she was ordered to go and fetch water. On her way to fetch water she fell, rose up, staggered and fell again. This chain of events was chronicled by Gracious Matiza. In the court’s view her evidence was believable and consistent. Indeed the State had established a <em>prima facie</em> case for the accused to answer. It was so ordered.</p> <p> </p> <p>WHETHER ACCUSED ASSAULTED THE DECEASED</p> <p>            Joseph Matiza, deceased’s biological father during his testimony provided very essential information that explains the reaction of the accused. On that day the accused threatened to assault Leon with a stick. Leon ran towards deceased presumably seeking refuge or protection, the deceased evaded Leon’s thrust and fell. The accused was not happy about the conduct of the deceased. She sent deceased to go and call Joseph, the father who was attending to his garden. Joseph heeded and went back to the homestead. He was told about the fall of Leon due to the conduct of the deceased. Joseph did not reprimand the deceased or comment on that. He went back to the garden, after a while Joseph heard deceased screaming from the direction of the homestead. He immediately went back to find out the cause of the crying. He tried to call out accused’s name to find out what was happening but he did not get a response.</p> <p>            Upon arrival at the homestead he observed Gracious standing at the wreck for plates. He then saw accused carrying the deceased in her arms. From the foregoing chronicle of events we conclude that the accused was incensed by the fall of Leon and to her, deceased had caused accused’s son to fall. When she saw that the father had not punished the deceased she decided to punish deceased by assaulting her. Gracious Matiza, though of a tender age of eleven years, appeared extra-ordinarily calm to a rigorous cross-examination by the defence but she did not shake or prevaricate nor contradict herself. Her story is very clear: upon her return from where she had been send by the accused, she saw accused calling deceased into the house. Accused was holding a stub in her hand. The deceased entered the house and immediately thereafter Gracious heard the sound of beating, contemporaneously deceased screamed and accused was telling her to keep quiet.</p> <p>            Later Gracious saw deceased emerging from the house holding her head and back part of her waist crying. The deceased was sent to go and fetch water. She obliged albeit in pain and still crying. Gracious saw her falling on four occasions, the four occasions relating to deceased’s fall are confirmed by accused in her defence outline. At the time deceased was sent to go and fetch water, she was weak and at one occasion staggered after the first fall. The defence contend that there was conflicting evidence on the part of the State witnesses, but the accused seem to agree unreservedly on what transpired from the time deceased left her (accused’s) house after the assault.</p> <p>            The court is conscious to the fact that there is a single witness pertaining to what transpired at the house where deceased was assaulted.</p> <p>            In the matter of <em>David Worswick v the State</em><a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a> the then Learned Chief Justice dumbutshena held that:</p> <p>“Whenever the court considers and assesses the evidence of a single witness, its first duty is to examine his evidence critically. In this regard it is salutary to pay attention to what diemont ja, said in <em>S v Sauls and Ors</em><a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6">[6]</a></p> <p> </p> <p>‘There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness. The trial judge will weigh his evidence will consider its merits and demerits and having done so, will decide whether its trustworthy and whether despite the fact that there are shortcomings or defects or contradiction in the testimony, he is satisfied that the truth has been told. The cautionary rule referred to by de Villiers jp in 1932 may be a guide to a right decision but it does not mean “the appeal must succeed if any criticism, however slender of the witnesses’ evidence were well founded” (per schreiner ja in R v NHLAPO<a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7">[7]</a>) it has been said, more than once that the exercise of caution must not be allowed to displace the exercise of common sense.”</p> <p> </p> <p>            In the matter of <em>SFW Group &amp; Ano v Martel &amp; Another</em><a href="#_ftn8" name="_ftnref8" title="" id="_ftnref8">[8]</a> the technique generally employed by these courts in factual disputes where there are two irreconcilable versions on the evidence, may be summarised as follows:</p> <p>“To come to a conclusion on the disputed issues, a court must make findings on:</p> <ol> <li>the credibility of the witnesses. This depends on the court’s impression which in turn depends on a variety of subsidiary factors such as:-</li> </ol> <ol> <li>the witness candour and demeanour in the witness box.</li> <li>his bias, latent and blatant</li> <li>internal contradictions in his evidence</li> <li>external contradictions with what was pleaded or put on his behalf or with established fact or with his own extra-curial statements or actions.</li> <li>the probability or improbability of particular aspects of his version, and</li> <li>the calibre and cogency of his performance compared to that of other witnesses’ testimony about the same incident or events.</li> </ol> <ol> <li>the reliability of the witnesses: this depends apart from the factors mentioned under (a) (ii), (iv) and (v) above. On (i) the opportunities the witness concerned had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof.</li> <li>the probabilities: this necessitates an analysis and evaluation of the probability or improbability of each party’s version. On each of the disputed issues.</li> </ol> <p>In the light of its assessment of (a), (b) and (c), the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case presumably rarely occurs when a court’s credibility findings compel it in one direction and its evaluation of general probabilities in another. The more convincing the credibility findings the less convincing will be the evaluation of general probabilities. But when all factors are equipoised, probabilities prevail.”</p> <p>No one saw the accused assaulting the deceased and as such the court has to rely on circumstantial evidence in this matter. In the matter <em>S v Reddy and Others</em><a href="#_ftn9" name="_ftnref9" title="" id="_ftnref9">[9]</a> the South African Appeal outlines the proper approach in circumstantial evidence as follows:</p> <p>“In assessing circumstantial evidence one needs to be careful not to approach it upon a piecemeal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. It is only then that one can apply the oft quoted dictum in <em>R v Blom</em><a href="#_ftn10" name="_ftnref10" title="" id="_ftnref10">[10]</a> where reference is made to two cardinal rules of logic: firstly, that the inference sought to be drawn must be consistent with all the proved facts and secondly, that the proved facts should be such that they exclude every reasonable inference from them, save the one sought to be drawn. The fact that a number of inferences can be drawn from a certain fact taken in isolation, does not mean that in every case the State, in order to discharge the onus which rests upon it, is obliged to indulge in conjecture and find an answer to every possible inference that ingenuity may suggest any more than the court is called on to seek speculative explanations for conduct which on the face of it is incriminating.”</p> <p> </p> <p>Having considered the facts and the law in this case we have come to the conclusion that accused’s version that deceased sustained the injuries after falling on a stony area is improbable and not proved at all. The mere presence of the rocky or stony surface does not necessarily mean that the deceased fell on the stone and got injured. The deceased was assaulted by the accused and when she fell she had been already injured in the head. The injuries detected by the pathologist were caused by the accused who assaulted the deceased on the head and back.</p> <p>The accused’s intention was to chastise the deceased. She however exerted great force in so doing. We are unable to find accused guilty of Murder in these circumstances. The accused negligently caused the death of Merjury Matiza, she failed to realise that by assaulting deceased on the head using a blunt object could result in her death. Accordingly the accused is found guilty of contravening s 49 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>], Culpable Homicide and Not Guilty of Murder.</p> <p><strong>Sentence</strong></p> <p>Accused is a female first offender who was a step mother to the deceased. In arriving at an appropriate sentence the court will factor in both the mitigatory and aggravating features in this case. The sentence provided for in s 49 of the code stretches from life imprisonment down to a fine exceeding level fourteen. Such a sentence shows that the law regards a conviction of culpable homicide as a serious offence. Deceased collapsed four times showing that she was in great pain and when she fell on the 4th occasion she never regained consciousness till she passed on.</p> <p>The nature of the head injuries also show that the force used by the accused was severe. Efforts must be made to guard against domestic violence more so against young children, worse if such violence ends up in a loss of life of a young girl. Children are the future of the nation and life must not be lost unnecessarily as in this case.</p> <p>Accordingly, accused is sentenced as follows:</p> <p>4 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition accused is not convicted of an offence involving violence to the person of another and to which accused will be sentenced to imprisonment without an option of a fine.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>National Prosecuting Authority</em>, State’s legal practitioners</p> <p><em>Mugadza Chinzamba &amp; Partners</em>, accused’s legal practitioners- Pro-Deo</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> 1998 (2) ZLR 271 (S)</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> At 271 G-H per gubbay cj (as he then was)</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> 2003 (2) ZLR 88 (H) per garwe j (as he then was)</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> See also Attorney-General v Bvuma and Ano. 1987 (2) ZLR 96 (S)</p> <p>AG v Mzizi 1991 (1) ZLR 321 (S)</p> <p>AG v Tarwirei 1997 (2) ZLR 75 (S)</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> SC 27/88</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> 1981 (3) SA 172 (AD) at 180 E-G</p> <p><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a> AD 10 November 1952, quoted in R v Bellingham 1955 (2) SA 566 (A) at 569</p> <p><a href="#_ftnref8" name="_ftn8" title="" id="_ftn8">[8]</a> 2003 (1) SA 11 (SCA)</p> <p><a href="#_ftnref9" name="_ftn9" title="" id="_ftn9">[9]</a> 1996 (2) SACR 1 (A)</p> <p><a href="#_ftnref10" name="_ftn10" title="" id="_ftn10">[10]</a> 1939 AD 188 at 202-3</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/20/2020-zwmthc-20.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=41934">2020-zwmthc-20.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/20/2020-zwmthc-20.pdf" type="application/pdf; length=389710">2020-zwmthc-20.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/culpable-homicide">Culpable homicide</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/malicious-injury-property">Malicious injury to property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/culpable-homicide-sentence">Culpable homicide (Sentence)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/circumstantial-evidence">Circumstantial (EVIDENCE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/single-witness">Single witness</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Tue, 07 Jul 2020 10:51:36 +0000 Sandra 9765 at https://old.zimlii.org S v Mhlanga (HH 125-20, HC (CRB) 60/20 XREF BYO CENTRAL CR 150/02/13) [2020] ZWBHC 125 (15 June 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/125 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>THE STATE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>IGNATIOUS MEHLULI MHLANGA </strong></p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA J with Assessors E Mashingaidze and J Sobantu</p> <p>BULAWAYO 9, 10 AND 15 JUNE 2020</p> <p> </p> <p><strong>Criminal Trial</strong></p> <p> </p> <p><em>K. Ndlovu</em>, for the state</p> <p><em>L. Ngwenya</em>, for accused</p> <p> </p> <p> </p> <p><strong>DUBE-BANDA J</strong>:     The accused is charged with the crime of murder, committed in aggravating circumstances, as defined in section 47 of the Criminal Law (Codification and Reform) Chapter 9:23. It is alleged that on the 10th of February 2013, and at Mutize and Sons Flea Market, Bulawayo, the accused person acting in common purpose with Isaac Nyakurerwa and Mduduzi Timothy Mathema, one or more or all of them, assaulted Vengai Murisi with a wooden plank on the head and strangled him with a wire intending to kill him or realizing that there is a risk or possibility that his conduct may cause the death of such person, a male adult in his life there being.</p> <p>The accused pleaded not guilty to the charge. He was legally represented throughout the trial.</p> <p>At the commencement of trial, the summary of the evidence of State witnesses was produced and marked Annexure ‘A’.  The defense outline of the accused person was produced and marked Annexures ‘B’. The Affidavit Statement compiled in terms of section 260(4) of the Criminal Procedure and Evidence Act was tendered and received by this court as an exhibit. It was marked Exhibit 1. Also a post mortem report was tendered and received as an exhibit by this court. It was marked Exhibit 2.</p> <p>The prosecutor sought admissions from the accused’s counsel in terms of s 314 of the Criminal Procedure &amp; Evidence Act [<em>Chapter 9:07</em>]. First, the admissions sought were the following:</p> <ol> <li>Whether it is admitted that on the 10th February 2013, the accused was in the company of <em>Isaac </em>Nyakurerwa and Mduduzi Timothy Mathema.</li> <li>Whether accused took part in the robbery that took place at Mutize Flea market.</li> <li>Whether it is admitted that they took and stole three shangani bags from the same Flea Market.</li> <li>Whether accused got a share from the stolen property, which he sold to members of the public.</li> </ol> <p>The admissions were made, making it unnecessary for the state to lead evidence in respect of the admitted facts. </p> <p>Second, the admission of the evidence of certain witnesses as contained in the summary of the state case was sought. That is, the evidence of Dr Sanganai Pesani, who examined the remains of the deceased and recorded a post mortem report.  The evidence of Sidanisile Ncube at whose house the accused, Isaac Nyakurerwa and Mduduzi Timothy Mathema, shared certain property, comprising clothing and footwear, which was contained in three carrier bags.  The three told the witness that the property was from Botswana. They gave the witness some items to sell on their behalf. The evidence of Pretty Lindiwe Khumalo who saw accused and Mduduz<em>i </em>selling items of clothing to the members of the public. She saw the accused and Mduduzi in possession of a big carrier bag full of clothes and footwear. She saw accused holding some cell phones in his hand. The evidence of Siyazuza Ncube<em>, </em>the Investigating officer. He was allocated a murder docket to investigate. During the course of the investigations, the witness managed to account for Isaac Nyakurerwa and Mduduzi. The accused remained at large and was only accounted for of the 11 October 2019.</p> <p>The admissions were duly made hence dispensing with the need for the prosecutor to lead evidence from these witnesses.</p> <p>The accused filed a detailed defense outline, and the material part of the outline reads as follows:</p> <ol> <li>He will state that the deceased died as a result of the direct actions of <em>Isaac </em>Nyakurerwa and Mduduzi Timothy Mathema<em>,</em> who had tied him with wires on the hands, feet and neck during the robbery. Accused had no intention to cause the death of Vengai Murisi.</li> <li>Accused will further state that prior to the fateful day, he did not know Isaac Nyakurerwa<em>, </em>but the same was known to Mduduzi Timothy Mathema<em>. </em></li> <li>Accused and Mduduzi Timothy Mathema had been drinking beer together at Royal Hotel, where they met Isaac Nyakurerwa, who was known to Mduduzi Timothy Mathema<em>.</em></li> <li>Accused and Mduduzi Timothy Mathema were just common pick-pockets and after they left Royal Hotel, their mission was to go around pickpocketing unsuspecting individuals and drunks.</li> <li>After they failed to find a victim, it is Isaac Nyakurerwa who spoke to Mduduzi Timothy Mathema and informed him that there was an unguarded flea market that they could break into that had an assortment of valuables they could sell. He was later roped in by the two after being convinced that the area was unguarded.</li> <li>They went to the site and when they were inside the flea market they were startled by the deceased who attempted to apprehend them. During the scuffle, accused struck the deceased with a plank twice on the forehead and his blow had the effect of disorienting the deceased who was then held by Isaac Nyakurerwa and Mduduzi Timothy Mathema.</li> <li>The two requested his assistance to hold him down and proceeded to tie him up with wires from coat hangers on the scene. After tying him up, he and Mduduzi Timothy Mathema were left to guard him while Isaac Nyakurerwa, who knew the place better had gone to ransack the flea market.</li> <li>The two were drunk and it was Mduduzi Timothy Mathema who then noticed that Vengai Murisi was dead and went on to alert the accused and Isaac Nyakurerwa. The trio then took the property that had already been taken by Isaac Nyakurerwa and found a taxi, leaving the scene.</li> <li>Accused will reiterate that he had no intention to murder the deceased and failed to appreciate that his accomplices had tied up the deceased in such a manner that he could not breath.</li> </ol> <p> </p> <p><strong>The state case </strong></p> <p>The State led <em>viva-voce</em> evidence from three witnesses, Langton Mutindi, Mduduzi Thimothy Mathema (Mduduzi<em>) </em>and Precious Mathema<em>.</em>  The first was Langton Mutindi and his evidence can be summarized as follows: he is a member of the Zimbabwe Republic Police (ZRP). At the material time, he was stationed at Bulawayo Central Police Station, attached to the charge office duties. On the 11 February 2013, in the morning hours, a report of a murder case was received by the police. In the company of two other police details and the informant, the witness proceeded to the scene of the murder, at Mutize Flea market, situated along Lobengula Street, between 5th Avenue extension and Leopold Takawira Street, Bulawayo. At the scene, the informant showed the police details the body of a male person, on a steel table, lying facing upwards. The hands were tied to the table using a wire from a coat hanger. The feet were tied together using a coat hanger wire. Thereafter both feet were tied to a metal table. Another coat hanger wire was used to tie the neck to the table. There was a jacket string around the neck. There was a plank on the scene with blood stains. There was blood on the ground. When the police removed the wire around the neck, blood started coming out of the mouth. The police details then conveyed the body to United Bulawayo Hospitals.</p> <p>The second witness to give <em>viva-voce</em> evidence was Mduduzi. After this witness was sworn in, the prosecutor informed the court, that he was a convicted accomplice, who was serving a prison term. The court warned the witness in terms of section 267 of the Criminal Procedure and Evidence Act.</p> <p>This witness told the court that at the material time, he knew both the accused and Isaac Nyakurerwa<em>,</em> they were his friends. He told the court that on the date in question, he was with his two friends, Isaac Nyakurerwa and the accused drinking beer in town. From Royal Hotel, they went to a club called Esiqongweni, and continued drinking beer. According to this witness, they were all drunk, however he was aware of what he was doing. Before mid-night they left the Esiqongweni club for their homes.</p> <p>On the way, they decided to jump the wall into the Mutize Flea market for the purposes of stealing. They had no money, so they wanted to steal property and sell so that they will have money. The witness said they all agreed with the plan. They thought there was no one inside the Flea Market. Inside the market, they discovered that there was security guard inside. They caught him and tied him. When he was tied, the accused hit him three times with a plank on the head.  He was hit with the plank after he was tied. The plank was found inside the market. It was approximately 50 – 70 centimeters in length and 7 – 10 centimeters in width.</p> <p>He says the reason the guards neck was tied, is because he was crying, they wanted to stop him from making noise. He says at the time they were tying him, he did not realize that he would die, since he was drunk. According to this witness, the three accomplices were all assisting each other to subdue the security guard, who is now the deceased. </p> <p>After subduing the security guard, the accused was left guarding him, whilst the witness and Isaac Nyakurerwa proceeded to steal from the market. They took three carrier bags, colloquially referred to as shangani bags. They threw the bags outside the durawall of the market. They looked for a vehicle to carry the bags. A vehicle was found and the bags were taken to Makokoba Township, Bulawayo.</p> <p>They shared the loot and sold some stolen items. The witness says, he could not recall whether it was the following day, or not, while having a braai at a place called Mashumba, they leant that a person was killed at a place where they committed the crime, they then fled.</p> <p>The third witness to give <em>viva-voce</em> evidence was Precious Mathema<em>.  </em>She is sister to Mduduzi. She told the court that, she was given a carrier bag by Mduduzi and the accused to keep. The bag contained clothes inside. When asked where they got the clothes, accused and Mduduzi said they had travelled to Botswana, suggesting that it is where they got clothes contained in the bag.  Then they told the witness that they killed a security guard at the Flea market, in town.</p> <p>After the conclusion of the testimony of Precious Mathema<em>, </em>the prosecution closed its case.</p> <p> </p> <p><strong>Defense case</strong></p> <p>The trial proceeded to the defense case with the accused taking to the witness stand. He testified that on the date in question, the three accomplices were drinking alcohol in town. They decided to go to the Flea Market to look for some money. He says the idea to steal from the Flea Market came from Isaac Nyakurerwa. Furthermore, Isaac Nyakurerwa was the first enter Market, followed by Mduduzi, and he was the last to enter. When they were walking inside the Market, a security guard woke up and started screaming. In addition, he said Isaac Nyakurerwa tried to stop the guard from screaming. Accused then saw a plank, picked it up and tapped the now deceased on his head, to make him silent. He says he tapped him on the forehead. That is when Isaac Nyakurerwa and Mduduzi tied the security guard.</p> <p>The accused says he did not know how tight the guard was tied because he was drunk. He says after he was tied, Isaac Nyakurerwa left to look for property to steal. He and Mduduzi remained guarding the security guard. He testified that Mduduzi is the one who noticed that the guard had died.</p> <p>He testified that Isaac Nyakurerwa saw three bags, then called and informed accused and Mduduzi of the bags. The bags were taken and thrown outside the durawall of the market. They got a taxi which carried them and their loot to Makokoba Township, Bulawayo.</p> <p>Under cross-examination, he testified that Mduduzi lied when he said the accused hit the guard with a plank after he had been tied. He says it is a lie that when the two where tying the security guard, he(accused) was holding him down. He says when the guard was being tied, he was tasked to guard and to see people who might enter the Market. He says, he was 2 to 3 meters away from the place where the security guard was being tied. Furthermore, he said he was drunk, he was staggering as he was walking. Moreover, he says even if he knew that the market was guarded, he would have still gone, because he wanted money.</p> <p>The accused conceded that when inside the market, they decided to rob the security guard.  When the guard saw them, he started screaming, calling for help. The guard did not try to arrest the accused and his accomplices. The guard was apprehended. He says he hit the guard with a plank, not to injure him, but to ensure he stopped screaming. He says the guard was fighting them and that is why he hit him with a plank. He accepted, that once the guard was tied to the table, he became subdued. He accepts that there is no way he could have stopped the robbery.</p> <p>The accused says he was drunk, and could not see his accomplices tie the guard in the neck. He says he did not know that the guard was dying. He testified that he did not check whether the guard was breathing or not. He accepted in cross examination that he was not acting under compulsion from his two colleagues. In re-examination, he told the court that the whole scene lasted for 15 minutes.</p> <p>After his testimony, the accused closed his case.</p> <p> </p> <p><strong>Analysis of the evidence </strong></p> <p>After the witness Mduduzi was sworn-in, the prosecutor informed the court that he was a convicted and serving accomplice. As a result the court warned him in terms of section 267 of the Criminal Procedure and Evidence Act. The witness was informed that exaggerating the part allegedly played by the accused or minimizing his own role will not affect his sentence in any way. He confirmed that he understood the warning.</p> <p>Mduduzi is a single state witness in respect of the events that took place inside the Flea Market, resulting in the death of the security guard.</p> <p>           Where the case against accused rests on the evidence of one single accomplice, section 270 Criminal Procedure and Evidence Act applies. This section provides that a court may convict an accused on the basis of the evidence of a single accomplice, provided there is competent evidence other than the single and unconfirmed evidence of the accomplice which proves to the satisfaction of the court that the crime was actually committed.</p> <p>This Court is alive to the basic principles relating to the evidence of an accomplice witness, as was stated in <em>S v Masuku </em>1969 (2) SA 375 (N.P.D) at 376 by LEON J: under the heading “Caution in dealing with the evidence of an accomplice:”</p> <p>(1) an accomplice is a witness with a possible motive to tell lies about an innocent accused; for example, to shield some other person, or to obtain immunity for himself (2) corroboration, not implicating the accused but merely in regard to the details of the crime, not implicating the accused, is not conclusive of the truthfulness of the accomplice.  The very fact of his being an accomplice enables him to furnish the court with details of the crime which is apt to give the court the impression that he is in all respects a satisfactory witness, or, as had been described “to convince the unwary that his lies are the truth”. (3) Accordingly, to satisfy the cautionary rule, if corroboration is ought, it must be corroboration directly implicating the accused in the commission of the offence.  (5) Such corroboration may, however, be found in the evidence of accomplice provided that the latter is a reliable witness.  (5) Where there is no such corroboration, there must be some other assurance that the evidence of the accomplice is reliable. (6) That assurance may be found where the accused is a lying witness, or where he does not give evidence.  (7) The risk of false incrimination will also, I think, be reduced in a proper case where the accomplice is a friend of the accused.  (8) In the absence of any of the aforementioned features, it is competent for a court to convict on the evidence of an accomplice only where the court understands the peculiar danger inherent in accomplice evidence and appreciates that acceptance of the accomplice and rejection of the accused is only permissible where the merits of the accomplice as a witness, and the demerits of the accused as a witness are beyond question.  (9) Where the corroboration of an accomplice is offered by the evidence of another accomplice, the latter remains an accomplice and the court is not relieved of its duty to examine his evidence with caution.  He, like the other accomplice, still has a possible motive to tell lies.  He, like the accomplice, because he is an accomplice, is in a position to furnish the court with details of the crime which is apt to give the court, if unwary, the impression that he is a satisfactory witness in all respects.’</p> <p> </p> <p>                  The courts have interpreted section 270 of the Criminal Procedure and Evidence Act to mean that even where there is no proof <em>aliunde</em> of the commission of the offence, accused can still be convicted if there is corroboration in a material respect of the evidence of the accomplice. In <em>Mubaiwa</em> 1980 ZLR 477 (A) at 479H-480A this is stated as follows:</p> <p>the purpose of this section is that the court must be satisfied that the crime to which the accomplice testifies has, in fact, been committed. If not, there can be no conviction at all. Even where there is no proof <em>aliunde</em> that the crime has been committed, the statutory requirement can still be satisfied if there is corroboration in a material respect which convinces the court that the accomplice can safely be relied on when he or she says the crime was committed, though it need not directly implicate accused. In such a case, the requirement is satisfied because, despite the lack of proof <em>aliunde </em>of the commission of the offence, the accomplice is no longer ‘single and unconfirmed’.”</p> <p>           In <em>Lawrence &amp; Anor</em> 1989 (1) ZLR 29 (S), the Supreme Court laid down that with single accomplice testimony, there should be a two-pronged inquiry. The court must first satisfy itself that the offence with which accused is charged has been committed before convicting. Secondly, the court must look for corroboration, for if there is no evidence <em>aliunde</em> proving the commission of the offence then there can still be a conviction if the court is satisfied that there is corroboration of the evidence of the accomplice sufficient to satisfy the court that the witness is to be believed. See also <em>Moyo</em> 1989 (3) ZLR 250 (S).</p> <p>               Thus, if the evidence of the accomplice is single and unconfirmed there must be proof <em>aliunde</em> of the commission of the offence. If, on the other hand, there is material corroboration of the testimony of the accomplice, the evidence is no longer single and unconfirmed and there need not be proof <em>aliunde</em> of the commission of the offence.</p> <p>            Was the offence with which the accused is charged committed? According to the evidence of Langton Mutindi, a member of the ZRP, in the morning of the 11 February 2013, he was shown the body of the deceased. The body was lying on the top of a steel table. The hands and legs were tied to the steel table with coat hanger wires. Deceased’s neck was also tied to the table with another hanger wire. There was a plank beside the body. There was blood on the ground, just below the deceased’s head. The post mortem, Exhibit 2, shows that the cause of the death of the guard was asphyxia caused by strangulation.</p> <p>            Furthermore, accused admitted in terms of section 314 of the Criminal Procedure and Evidence Act, that on the 10th February 2013, he was in the company of the two accomplices, and that he took part in the robbery that took place at Mutize Flea market. This is the Flea market where the body of the deceased was found by Langton Mutindi. Therefore, the crime of murder, to which Mduduzi testified was indeed committed.</p> <p>                 Is there evidence <em>aliunde</em> proving the commission of the offence? The evidence of Langton Mutindi, the existence of the body of the deceased, the cause of the death, admissions made by the accused, the accused defense outline, where he says the security guard died as a result of the direct actions of Isaac Nyakurerwa and Mduduzi, who had tied him with wires on the hands, feet and neck during the robbery, amounts to evidence <em>aliunde, </em>proving the commission of the offence.</p> <p><em>         </em>In <em>S v Makanyanga</em>1996 (2) ZLR 231, the court said the cautionary rule in respect of accomplice evidence is a rule of practice. Evidence of an accomplice may be relied on if there is a safeguard which excludes the danger of false incrimination. The evidence must be corroborated by some other independent evidence which shows its truthfulness and that the evidence is worthy of belief.</p> <p> </p> <p>         Mduduzi did not seek to exaggerate or magnify the role played by the accused in the commission of the offence. He does not say it was accused’s idea to go and steal at the Flea Market. He does not say it is the accused who tied the security. He easily conceded that the accused did tie the security guard. Mduduzi did not minimize the role he played in the death of the security. He easily accepted that it is him and Isaac Nya<em>kurerwa</em> who tied the security guard. They tied his feet together, and tied them to the steel table. Tied his neck with a wire, which is the immediate cause of the death.  In fact, his evidence is in sync with accused’s defense outline. We accept his evidence in its material respects, as representing the truth of what happened at the Flea Market, leading to the death of the security guard.</p> <p>           In his evidence the accused was trying to escape from his defense outline, received by this court and marked Annexure B. He also tried to minimize the role he played in the events that resulted in the death of the security guard. In cross-examination, he was evasive, started to introduce the issue of compulsion by the other two accomplices. We refuse to accept the case of compulsion. It was just an afterthought. After the robbery and the tying of the security guard, he continued in the company of the two accomplices. He even went with Mduduzi to the house of Precious Mathema, a witness in this court and a sister to Mduduzi. He said to Precious Mathema that he had travelled to Botswana, where he got the stolen clothes.  He participated in the sharing and the sale of the loot. He did not report the matter to the police. This is not the conduct of a person who was under compulsion.</p> <p>           Accused tried to exaggerate his level of drunkenness, saying he did not know what was happening. He testified that he was staggering due to drunkenness, we note that he managed to climb over the perimeter wall at the Flea market. He managed to hit the security with three heavy blows with a plank. In his defense outline, he says the blows disoriented the security guard. These must have been heavy blows indeed, which could not come from someone who was very drunk as the accused would want this court to believe.</p> <p>           In his evidence, the accused now says he was “tapping” the now deceased with a plank. We find that this is a falsehood. In his defense outline he says “he struck the deceased with a plank twice on the forehead and his blows had the effect of disorienting the deceased,” this could not have been tapping. Tapping is in fact a light blow, which could not have had the effect of disorienting the security guard.</p> <p>           The accused further testified that he was standing guard 2 – 3 meters away from the point where his accomplices were tying the security guard, this again is a falsehood. It was introduced as an afterthought, in order to distance himself from the strangulation that caused the death of the security guard. In fact it contradicts his defense outline, where he says the two accomplices requested his assistance to hold the guard down when he was being tied with wires from coat hangers on the scene. His defense outline is consistent with Mduduzi’s version that the accused helped to subdue the guard as he was being tied up.</p> <p>           Finally, we have had the opportunity of watching all the state witnesses as well as the accused when they testified in this court. All the state witnesses gave their evidence in a calm, sequential and relaxed manner. We distinctly formed an impression that they were truthful, honest and reliable witnesses in this court. We can say here without any shadow of doubt that the state witnesses did not embellish their version to disadvantage the accused.</p> <p>           On the contrary, the accused was a woeful witness in the witness stand. He contradicted what was put to state witnesses on his behalf and even came up with new versions that were at odds with his entire testimony. He did not hesitate to deny what was contained in his defense outline. We distinctly formed an impression that the accused was evading the truth and trying to mislead this court, for the purposes of minimizing his role in the events that led to the death of the security guard. The evidence of the accused, where it contradicts that of the state witnesses, we reject it as false. </p> <p> </p> <p><strong>Onus of proof </strong></p> <p>It is trite law that in a criminal trial the <em>onus</em> is on the State to prove the commission of the offence beyond reasonable doubt and that there is no <em>onus</em> on an accused person to prove his innocence.</p> <p>This court is alive to the basic principles to be applied in dealing with the version of an accused. In <em>S v Kuiper</em> 2000 (1) ZLR 113 (S) at 118B-D:- the court said the test to be applied before the court rejects the explanation given by an accused person was set out by GREENBERG J in <em>R v Difford</em> 1937 AD 370. At 373, the learned judge said:-</p> <p>no <em>onus</em> rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.</p> <p>Similarly, in <em>R v M</em> 1946 AD 1023, DAVIS AJA said the following at 1027:</p> <p>And, I repeat, the court does not have to believe the defence story; still less has it to believe it in all its details; it is sufficient if it thinks that there is a reasonable possibility that it may be substantially true.</p> <p>           <em>In</em> <em>casu,</em> we find that the accused version, to the extent that it contradicts the evidence of other witness, false. It is thus rejected as false insofar as it is in conflict with the state evidence.  It cannot be said to be reasonably possibly true.</p> <p> </p> <p><strong>Common purpose </strong></p> <p>The state alleges that the accused person acting in common purpose with the two other accomplices, assaulted Vengai Murisi with a wooden plank on the head and strangled him with a wire intending to kill him or realizing that there is a risk or possibility that his conduct may cause the death of such person. In such a case, the state must prove the existence of a common purpose to commit the crime charged, i.e. murder.</p> <p>In terms of section 196A of the Criminal Law [Codification and Reform] Act, the doctrine of common purpose is part of our law. In <em>S v Thebus and Another</em>2003 (2) SACR 319(CC) the Constitutional Court in South Africa had the following to say:</p> <p>The reliability requirements of a joint criminal enterprise fall into two categories. The first arises where there is a prior agreement, expressed or implied, to commit a common offence. In the second category, no such prior agreement exists or is proved. The liability arises from an active association and participation in a common criminal design with the requisite blameworthy state of mind.</p> <p> </p> <p>The evidence before court is that the accused and his accomplices went to the Flea market for the purposes of stealing. The evidence is that they were of the view that the market was not guarded, in the sense that there was no guard to be found there. It is only when they were inside that they saw the guard. The guard started screaming, then they decided to subdue him and stop him from screaming. The evidence does not show that there was a prior agreement, expressed or implied, to commit the crime of murder.</p> <p>In the absence of prior agreement, liability arises from active association and participation in the criminal design. In this case, the issue is, was there active association and participation in a common criminal design with the requisite blameworthy state of mind? In <em>S v Mgedezi and Others</em>1989 (1) SA 687 (AD) at 705I-706C, Botha JA stated the following regarding concept of common purpose:</p> <p>In the absence of proof of a prior agreement, accused no. 6 who was not shown to have contributed causally to the killing or wounding of the occupants of room 12, can be held liable for those events, on the basis of the decision in <em>S v Safatsa and Others</em> 1988 (1) SA 868 (A), only if certain prerequisites are satisfied. In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the inmates of room 12. Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite <em>mens rea</em>; in respect of the killing of the deceased, he must have intended them to be killed and performed his own act of association with recklessness as to whether or not death was to ensue.</p> <p> </p> <p> </p> <p>Was the accused present at the scene of the crime? The deceased was murdered at the Mthize Flea Market. The evidence of the Mduduzi, places the accused at the scene. According to this witness, the three accomplices, climbed over the perimeter wall and entered the Flea Market. Initially, they thought there was no one at the market, while inside they discovered there was someone, that someone is the security guard, the now deceased person. They caught him and tied him. Accused hit him with a plank. The security was found dead at the same Flea market. The body of the security guard was found by Langton Mutindi<em>.</em></p> <p>The accused corroborates Mduduzi’s evidence, as to his (accused) presence at the scene of crime. First, in his defense outline he says:</p> <p> </p> <ol> <li>They went to the site and when they were inside the flea market they were startled by the deceased who attempted to apprehend them. During the scuffle accused struck the deceased with a plank twice on the forehead and his blow had the effect of disorienting the deceased who was then held by Isaac Nyakurerwa and Mduduzi Thimothy Mathema.</li> <li>The two requested his assistance to hold him down and proceeded to tie him up with wires from coat hangers on the scene. After tying him up he and Mduduzi Thimothy Mathema were left to guard him while Isaac Nyakurerwa, who knew the place better had gone to ransack the flea market.</li> </ol> <p> </p> <p>Furthermore, in his evidence in court he testified that when they were walking inside the Flea Market, they saw a security guard. The security guard woke up and started screaming, they then moved towards him. Isaac Nyakurerwa tried to stop the guard from screaming. Accused says he saw a plank, picked it and tapped the now deceased on his head. Therefore, the evidence shows, and we find as a proved fact, that the accused was present at the scene of crime.</p> <p>Secondly, was the accused aware of the assault on the security guard?  The evidence of Mduduzi, is that it is the accused who hit the deceased with a plank. In his evidence in chief, Mduduzi testified that:</p> <p> </p> <p>Q. What was his (now deceased) position when you tied him?</p> <p>A. He was lying on a stand at the Flea Market, which is similar to a table.</p> <p>Q. Was he able to wake up in that position?</p> <p>A. We had subdued him in that position.</p> <p>Q. Where was the accused person?</p> <p>A. He was there, we were assisting each other.</p> <p>Q. What do you mean, by assisting each other? What did accused do?</p> <p>A. We were assisting each other in everything. Accused was assisting us to subdue the person, that is why he hit him with a plank.</p> <p> </p> <p>The accused in his defense outline and evidence in court, corroborates the fact that he is the one who hit the security guard with a plank. In cross examination, Mduduzi, was asked as follows:</p> <p>Q. Accused will further tell the court that you commanded him to hold down the now deceased whilst you were tying him on the table?</p> <p>A. Is not true. </p> <p>Q. Confirm that accused played no role in tying the now deceased?</p> <p>A. Is not true that there is no role he played in tying the now deceased. We did that together.</p> <p> </p> <p>Earlier the witness was asked:</p> <p>            Q. He will tell the court that the tying on the neck was the direct cause of death.</p> <p>A. I will not comment on the cause of death, only the doctor can say that. We were together with accused person. After hitting him with a plank, he was not standing. He was assisting to subdue him.</p> <p> </p> <p>Again, we find as factually proved that the accused was aware and participated in the assault on the security guard.</p> <p>Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. His actions of hitting the security guard with a plank, and helping to subdue the guard when he was being tied up, shows that he intended to make common cause with the two accomplices who actually tied up the guard. They tied the neck of the guard, which caused the death. He was assisting to subdue the guard to be tied up. We find that he intended to make common cause with the other two accomplices.</p> <p>Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. He manifested his sharing of the common purpose by hitting the security guard with a plank, and helping to subdue him as he was being tied up, as described above.</p> <p>Fifthly, he must have had the requisite <em>mens rea</em>; in respect of the killing of the deceased, he must have intended for him to be killed and performed his own act of association with recklessness as to whether or not death was to ensue. As outlined above, he hit the now deceased with a plank. Subdued him as his neck was being tied to a metal table and his mouth was tied with a cloth outside. He saw the deceased being placed on the top of a steel table, his hands tied to a steel table with coat hanger wires, his feet tied together with coat hanger wires which was tied to the steel table, and his neck tied to a steel table with coat hanger wires. In cross examination, it was put to him that, when you held down the deceased, you directly associated yourself with your colleagues who were tying him, whose actions brought about the death, and all accused could say was, “I was not thinking that way.”He must have seen that the wire around neck will strangulate the security guard. Therefore, we are satisfied that the accused had the requisite <em>mens rea</em>; in respect of the killing of the guard, he must have intended him to be killed and performed his own act of association with recklessness as to whether or not death was to ensue.</p> <p>Disassociation may be raised as a defense in respect of a criminal charge anchored on common purpose.  In <em>S v Ndebu and Another</em>1986 (2) SA 133 (ZSC) the court, as per McNALLY JA, expressed itself as follows at 135F:</p> <p>It would seem clear that English law requires more than a simple last minute withdrawal to enable a participant to escape a verdict of guilty on the main offence, e.g. a declared intent to withdraw from a conspiracy to dynamite a building is not enough, if the fuse has been set; he must step on the fuse.’</p> <p> </p> <p><em>In casu,</em> the accused did not dissociate himself from the common criminal enterprise perpetrated by him and his accomplices.  He did not step on the fuse. Therefore, we find that the accused acted in common purpose with the other two accomplices, to cause the death of the security guard.</p> <p> </p> <p><strong>Conclusion </strong></p> <p>The prosecution has invited this court to convict the accused of murder in terms of section 47 (1) (a) of the Criminal Law (Codification and Reform) Act, which provides thatany person who causes the death of another person - intending to kill the other person; shall be guilty of murder.  In terms of section 47 (1) (a) the accused desires death. Death is the aim and object or death is not aim and object but in the process of engaging in some activity foresee death as a substantially certain result of that activity and proceeds regardless as to whether this consequence ensues.</p> <p>The accused and his accomplices decided to go and steal at the Flea Market, because they believed that the place was not guarded. They did not expect to find a person at Market. Upon seeing the security guard at the market, who screamed, calling for help, they then tried to stop him from screaming. Mduduzi testified that the security guard cried and they tied his neck so that he stops making noise. Tying him with wires was to ensure that he does not scream. The accused was left guarding the guard because it was thought he would untie himself, and cause trouble for the robbers.</p> <p>On these facts, we are not satisfied that it can be said beyond a reasonable doubt, that the accused and his accomplices desired the death, and that death was their aim and object. We are further not satisfied beyond a reasonable doubt that the only reasonable inference to be drawn is that the accused and his accomplices did foresee the death of the security guard as a substantially certain consequence of their activity.  We cannot, therefore conclude that the accused’s avowed intention was to cause death.</p> <p>We now turn to section 47 (1) (b)of the Criminal Law (Codification and Reform) Act. The test for realization of real risk or possibility is subjective and is provided in section 15 of the Act. It has two components, namely-</p> <ol> <li>Awareness that there is a risk or possibility that the conduct embarked on might result in the relevant consequence and the relevant fact or circumstance existed when the accused engaged in the conduct.</li> <li>Recklessness. This entails that despite the real risk or possibility the person whose conduct is complained of continued to engage in such conduct.</li> </ol> <p>In terms of s 15 (2) of the Act, recklessness is implicit in the term realization of risk or possibility. Where awareness of real risk or possibility is proved, recklessness shall be inferred from the fact that the relevant fact or circumstance actually existed when the accused engaged in the conduct.</p> <p>It is incumbent upon the prosecution to prove that the accused was aware of the real risk or possibility of death and despite that realization he persisted in the unlawful conduct which caused the death. In the present case the following facts are relevant to the determination of the accused’s realization of the real risk of death.</p> <p>In the post mortem report, Exhibit 2, the following appears:</p> <p>Marks of violence</p> <p>Friction bruises on the right frontal region with swelling. High oblique groove present on the neck +-8m long consistent with the string. Both legs tied with a wire together. Wire on the left hand. String around the neck.</p> <p> </p> <p>Other remarks</p> <p>The bruises and the scalp haematoma are suggestive that the deceased sustained blunt force trauma to the head which in incapacitated him when he was tied with wires and the strangulated with the string.</p> <p> </p> <p>Cause of death</p> <p>Asphyxia</p> <p>Strangulation</p> <p>Blunt force trauma head</p> <p>Homicide</p> <p> </p> <p>There is evidence before court that it is the accused who hit the security guard with a plank three times on the head. According to the post mortem report, a blunt force trauma on the head, incapacitated the security guard. This is the injury that was inflicted by the accused with his strike using a plank. This strike caused a scalp haematoma (this occurs on the outside of the skull, and often can be felt as a bump on the head). This is suggestive that severe force was used in hitting the security guard with a plank on the head. This puts to naught, the accused version in court that he merely “tapped” the guard on the head, he hit the guard three times on the head. This strike was so forceful that it incapacitated the guard. In fact, this is what the accused says in his own defense outline.</p> <p>The immediate cause of death is said to be <em>asphyxia,</em> this is a condition arising when the body is deprived of oxygen, causing unconsciousness or death; suffocation. There is evidence before court that a coat hanger wire was used to tie the security guard’s neck, the neck was tied to the steel table. The body was deprived of oxygen. This act was the immediate cause of death.</p> <p>To deliberately embark on an assault of another person, depriving him of oxygen, with a wire on the neck, entails an awareness of the real risk or possibility of death. The accused must have realized the real risk or possibility of the fatal consequences of his conduct.</p> <p>These facts, in our view, are sufficient to establish beyond a reasonable doubt a realization by the accused that there was a real risk or possibility that the conduct embarked on by him may result in the death of the security guard and he continued to engage in that conduct despite the awareness of the risk or possibility of death.</p> <p>In conclusion, from the totality of the evidence presented in this court, inclusive of the accused’s version, we have been persuaded that the state has been able to prove its case against the accused beyond a reasonable doubt.</p> <p> </p> <p><strong>Verdict</strong></p> <p>            Having carefully weighed the evidence adduced as a whole in the trial, the accused is found guilty of murder as defined in s 47 (1) (b) of the Criminal Law (Codification &amp; Reform Act) [<em>Chapter 9:23</em>].</p> <p> </p> <p><strong>Sentence </strong></p> <p>Mr <em>Mhlanga</em>, this Court must now decide what sentence is appropriate for the offence for which you have been found guilty. To arrive at the appropriate sentence to be imposed, this Court will look at your personal circumstances, take into account the nature of the offence you have been convicted of, factor in the interests of society, weigh same against the others and then blend them with the requisite measure of mercy.</p> <p>The offence for which you have been convicted of is a grave and serious offence. The prevalence of the crime of murder is such that cognisance is sometimes lost of the extreme consequences that flow from it. A life is ended. And with it the enjoyment of all of the rights vested in that person: the right to dignity, the right to equality and freedom, and the right to life itself. Not only is a life ended, but the lives of family and friends are irreparably altered and damaged. It is for this reason that the rule of law requires that the perpetrator should generally be visited with harsh punishment.</p> <p>The act of punishment serves as retribution. It serves also to signify that such crimes will not be tolerated, that there is a significant and serious consequence to be suffered by the perpetrator. </p> <p>This is the task that a sentencing court is called upon to carry out. It is required to take proper cognisance of the nature of the crime and to determine a sentence which balances the competing interests of the society and the individual perpetrator while meeting the objectives of punishment. It does so in the context of the fundamental values that underpin our legal system. It is a task rightly considered to be very difficult.</p> <p>Guidance is to be derived from the empowering legislative provisions. It is also to be derived from the principles encapsulated in judicial precedent, while taking into account the particular facts before court.</p> <p>In this instance section 47 (4) (a) of the Criminal Law [Codification and Reform] Act provides that a person convicted of murder shall be liable—(<em>a</em>) subject to sections 337 and 338 of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>]<em>, </em>be sentenced to death, imprisonment for life or imprisonment for any definite period of not less than twenty years, if the crime was committed in aggravating circumstances.</p> <p>The murder you have been convicted of was committed in the course of robbery, and therefore, in the terms of section 47 (2) (iii) of the Criminal Law [Codification and Reform] Act, it was committed in aggravating circumstances.</p> <p>At the time of the commission of the crime, you were 19 years old. In of terms of section 48 (2) (c) (i) of the Constitution of Zimbabwe (Amendment (No. 20) Act 2013, the death penalty must not be imposed on a person— who was less than twenty-one years old when the offence was committed. By virtue of your age at the time of the commission of this offence, the death penalty is out of consideration.</p> <p>What remains to be considered is imprisonment for life or imprisonment for any definite period of not less than twenty years. In your favour is that at the time of the commission of the offence, you were 19 years old. You were just a teenager. You were the youngest in the group of three robbers. Prior to the commission of the crime you had been taking alcohol. There is evidence from Mduduzi, that all the three accomplices were intoxicated, but not to a degree as to make you not aware of what you were doing. Again, we factor into the equation that the murder was not pre-meditated. You intention of entering the Flea Market, was not to kill, but to steal.</p> <p>The mitigating factors in your favour come into insignificance when consideration is given to the nature of the crime. The evidence shows that an extraordinary degree of violence was deployed against a defenseless human being, who had done you no wrong, and who was merely working for himself and his family.  The violence that preceded the killing the deceased was such as to place this crime in the category of the most serious.  It is difficult to conceive the degree of violence that you meted out against the security guard, and what the victim experienced in his last moments. He was tied with very strong wires. His hands tied to a steel table. His feet tied to a steel table. His neck tied to a steel table. He was crying, calling for help. This plea of mercy by the security guard did not move you to spare his life.</p> <p>What a horrible way to end the life of another human being. All this was done for you to make money. This court must say it, and say it strongly that such conduct will not be tolerated. This court has taken a stand, and it will continue taking a stand, against this wanton violence and destruction of life.  Such conduct must be punished, and punished severely. </p> <p>However, after taking all factors in to account, we do not intend to remove you permanently from society.  We leave you with a window, to enable you to reform and participate in the development of society. In the result:</p> <p>You are sentenced to 25 years imprisonment.</p> <p><em>National Prosecuting Authority</em>, state’s legal practitioners</p> <p><em>Mathonsi Ncube Law Chambers</em>, accused’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/125/2020-zwbhc-125.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=49232">2020-zwbhc-125.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/125/2020-zwbhc-125.pdf" type="application/pdf; length=389449">2020-zwbhc-125.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/accomplice-see-evidence-accomplice">Accomplice See EVIDENCE (Accomplice)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder-sentence">Murder (Sentence)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/extenuating-circumstances-murder-sentencing">extenuating circumstances in murder sentencing</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/accomplice-0">Accomplice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/single-witness">Single witness</a></li></ul></span> Thu, 25 Jun 2020 07:52:10 +0000 Sandra 9700 at https://old.zimlii.org S v Ncube (HB 14-18, HC (CRB) 15/18) [2018] ZWBHC 14 (31 January 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/14-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE Versus ENOCK NCUBE IN THE HIGH COURT OF ZIMBABWE MAKONESE J with Assessors Mrs Moyo and Mrs Mashengele BULAWAYO 30 &amp; 31 JANUARY 2018 Miss S. Ndlovu for the state T. Dube for the accused MAKONESE J: The accused person has been arraigned in this court on a charge of murder in contravention of section 47 of the Criminal Law (Codification and Reform) Act (Chapter 9:23). The state alleges that on the on the 5th of September 2011, and at Imvelo Ranching Compound, Plumtree in the Mangwe District, the accused unlawfully and intentionally stabbed and killed Norman Maseko, a male adult aged 25 years at the time of his death. The accused pleads not guilty to the charge. In his defence outline, accused avers that on the day in question he was indeed at Imvelo Farm where there was a party being hosted by one Misheck Sibanda. As the night progressed copious amounts of alcohol were consumed by the accused, the deceased and other persons. Accused was involved in an altercation with one Mandlenkosi Maphosa. Accused admits that he was involved in a fist fight with Mandlenkosi. The fight was stopped by Misheck Sibanda. Accused alleges that he was thereafter assaulted by several persons, before he fled the scene. Accused denies stabbing the deceased and denies ever engaging in an exchange of blows with the deceased. Accused further denies ever carrying a knife on the day in question. His version is that deceased was stabbed by someone else as there were several other persons involved in the scuffle. As regards the knife which was allegedly used in the commission of the crime, accused stated that he had no knowledge of such knife. The state tendered the outline of the state case into the record of proceedings as exhibit 1. The affidavit of Constable Nicholas Sibanda who conveyed the body of the deceased to the United Bulawayo hospitals was tendered as exhibit 3. The post mortem report number 601/597/2011 was produced as exhibit 4. With the production of these documents the trial commenced. It is important to indicate that before the commencement of the trial the state and defence counsel advised that the murder weapon, being the knife could not be produced as part of the evidence as it had been accidentally destroyed by the police. The state called its first witness Misheck Sibanda to testify. This witness was central to this case as the murder occurred at his compound at Imvelo Farm. He hosted the fundraising party event that subsequently resulted in the tragic death of Norman Maseko (the deceased). His evidence was to the effect that between 0200 hours to about 0300 hours on this fateful day, the accused and one Mandlenkosi Maphosa were involved in a misunderstanding over a girlfriend. The witness stepped in between the deceased and Mandlenkosi and managed to stop the fight. During the commotion, one Reason who was heavily intoxicated staggered and fell on the music system (DVD player) causing it to crush to the ground. This sound system belonged to the deceased, who was enraged by the damage caused to his DVD player. Deceased believed that the accused had caused the damage to his music player and immediately attacked the accused person. Misheck Sibanda once again intervened and stopped the fight. It is evident that most of the persons attending the function were drunk. The deceased went behind the house to switch off the generator as it was clear that the fights had spoiled the function. The witness stated that at the stage, he observed the accused removing his trousers and pulling out something which he then hid behind his back. A little while later Misheck states that accused pulled up his trousers again and announced in a threatening tone that none should come near him. The deceased then charged from the back of the house and engaged the accused in a fight. The witness heard deceased utter words to the effect that “the boy has stabbed me” (referring to the accused). Misheck states that the deceased lifted up the accused and threw him to the ground and stamped upon his body several times. The witness observed the deceased collapse to the ground. He shouted out to his wife to bring some water. The deceased got up as soon as water was poured over him. The deceased, however, fell down a few metres outside the farm compound. The deceased never got up again and died as a result of the injuries sustained in the stabbing. The witness gave his evidence well but a few lingering questions remained unanswered. Under cross- examination, the witness admitted that he did not observe the actual stabbing. The witness indicated that although he had noticed the accused place his hand behind his back he did not notice a knife. From his account it cannot be inferred that accused was seen on the night in question in possession of a knife. The witness conceded that the lighting was not that good as the generator that provided lighting had been switched off. From the evidence of this witness, it cannot be said with absolute certainty that the accused caused the fatal stabbing. The state then called one Silibaziso Moyo as its second witness. This witness knew the accused as a herd boy and workmate at the farm where they were both employed. The witness also knew the deceased as a farm worker employed at Imvelo Farm. On the 5th of September 2011 Constable Laita and other detectives from Plumtree police station arrived at the farm and showed her a knife. The witness who was rather dramatic and graphic in the manner she testified indicated that she positively identified the knife, which she said belonged to her. Upon being shown the knife, she stated that she recalled that she had earlier lent the knife to her sibling one Kelton Nyathi. When she demanded her knife back she was informed that the knife had been handed over to the accused who had asked to use it. Her efforts to recover the knife from Kelton Nyathi hit a brick wall, when accused stated that he had since lost the knife. She described the knife, indicating that it had a white handle and a blade with an emblem of a crocodile. The knife was blood stained. When cross-examined as to whether she was certain that the knife shown to her was the one used in the murder the witness indicated that she could not be certain. It may very well be, that the knife shown to the witness was the one used in the murder but the fact of the matter is that there was no evidence placed before the court to indicate that, that was the knife used in the fatal stabbing. Further, there was no evidence to prove that accused used that knife to stab the deceased. The evidence of Silibaziso Moyo consequently took the state case no further. The accused gave his evidence under oath. He stuck to his defence which one can easily describe as a bare denial. His version is that he had a fist fight with one Mandlenkosi Maphosa, following a dispute concerning a girlfriend. He was overpowered in the fight and he ended up on the receiving end. Several persons attending the party joined in the fight and trampled upon him. He sustained serious injuries in the process and does not know how, and who, stabbed the deceased. He testified that, the following day he learnt from his workmates that the deceased had been stabbed and had died the previous day. Analysis of the evidence It is not disputed that accused died as a result of a stab wound, and this is supported by the results of the post mortem report compiled by a pathologist Dr Sanganai Pesanai. An examination of the remains of the deceased conducted by the pathologist concluded that the cause of death was: (a) haemorrhagic shock (b) stab wound (c) assault An internal examination revealed that there was a perforation of the left ventricle and clots in the pericardium. It is trite law that in criminal maters the state carries the burden of proof beyond reasonable doubt. The court may not convict an accused person in a criminal trial where the accused proffers a defence which is reasonably possibly true. The principle has been established and settled that even in cases where the accused has been found to be an utterly hopeless liar, the court may not convict unless the essential elements of the charge have been proven in all material respects. The state may not therefore grope in the dark, with the faint hope that somehow evidence will be found to convict an accused person. Where reasonable doubt exists, the accused is entitled to the benefit of that doubt and he must be acquitted. In this regard see S v Makanyanga 1996 (2) ZLR 231; S v Kuiper 2000 (1) ZLR (1) 113 (s); R v Difford 1937 AD 370 and R v Mlambo1957 (4) SA 727 (A). In R v Difford (supra) at page 373 the learned judge remarked thus: “… no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt is false. If there is any reasonable possibility of his explanation being true, then he is entitled to an acquittal.” I must say, the state in this matter was left in an invidious position. The only eye–witness, Misheck Sibanda could not confirm that the accused had in his possession a knife at the time of the fatal stabbing. The witness could also not confirm that without any doubt, it was the accused and no one else who stabbed the deceased. Several persons were in attendance at the party that night. There were fist fights that broke out. Evidently, the accused and his companions were somewhat intoxicated. The state could not avail the evidence of the rest of the witnesses mentioned in the outline of the state case. The witnesses could not be located by the police as they had relocated to South Africa, presumably in search of greener pastures. I have no doubt that the state case would have been stronger had further witnesses been called to corroborate the evidence of Misheck Sibanda. In terms of section 269 of the Criminal Procedure and Evidence Act (Chapter 9:07) a conviction on the evidence of a single witness shall be lawful, provided, the state adduces credible and reliable evidence upon which the court may convict. See also S v Corbett 1990 (1) ZLR 205 (SC) and S v Mokoena1956 (3) SA 81 (A). Conclusion In my view there is substantial doubt as to whether the accused is indeed the one who stabbed the deceased. Accused’s defence was not proved to be patently false. No other independent and credible evidence was led by the state to prove the case beyond reasonable doubt. As I have already intimated, the benefit of the doubt must and should in such circumstances, be given to the accused person. In the circumstances, and for the aforegoing reasons, it is this court’s finding that, the state has failed to prove its case beyond reasonable doubt. In the result, the verdict of the court is as follows: “The accused is found not guilty and acquitted.” National Prosecuting Authority, state’s legal practitioners Mathonsi Ncube Law Chambers, accused’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/14/2018-zwbhc-14.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22786">2018-zwbhc-14.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/14/2018-zwbhc-14.pdf" type="application/pdf; length=135146">2018-zwbhc-14.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence">evidence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/admissibility-evidence">Admissibility of evidence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/single-witness">Single witness</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Wed, 11 Apr 2018 14:07:29 +0000 admin 8715 at https://old.zimlii.org