S v Bweronofa (HB 90 of 2021; HC (CRB) 115 of 2020) [2021] ZWBHC 90 (28 May 2021)

1 HB 90/21 HC (CRB) 115/20 THE STATE Versus TALENT BWERONOFA IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J with Assessors Mr Matemba and Ms Sithole GWERU 27 AND 28 MAY 2021 Criminal Trial Ms. Chikuni, for the State Ms. Nyeverai, for the accused DUBE-BANDA J: The accused is charged with the crime of murder as defined in section 47 (1) of the Criminal Law (Codification and Reform) [Chapter 9:23]. It is alleged that on or about the 8th May 2018, and or near Wanderer Mine, Shurugwi, in the Midlands Province, the accused person unlawfully caused the death of Hardlife Delight Javangwe (deceased) by throwing stones at him and causing him to fall into a deep shaft intending to kill him or realising that there was a real risk or possibility that his conduct may cause the death and continued to engage in that conduct despite the risk or possibility. The accused pleaded not guilty to the charge. He was legally represented throughout the trial. The State tendered an outline of the state case, which is before court and marked Annexure A. The accused tendered into the record an outline of his defence case, which is before court and marked Annexure B. The state produced a confirmed warned and cautioned statement recorded by the police on the 8th May 2018. The statement was confirmed by a magistrate on the 9th May 2018. It is before court as Exhibit 1. The statement reads: I do not admit to the allegations that I killed or caused the death of Hardlife Javangwe, but I slapped him twice with open hands on the head. I took a chisel from the ground near one Harare intending to threaten Hardlife Javangwe with it but James Banya took it away from me. I picked a stone and threw it at Hardlife Javangwe. Hardlife Javangwe left in a hurry in the company of Pasca Mlambo saying he was going to collect his mining syndicate. I started mining gold with Nyasha Munjanja. Whilst mining I was told by Evidence Murera that Hardlife Javangwe, whom I had fought with had fallen into the mine shaft. The State tendered a post mortem report compiled by Dr S Pesanai, at United Bulawayo Hospitals on 11 May 2018. The report is before court and marked Exhibit 2, it shows the HB 90/21 HC (CRB) 115/20 injuries sustained by the deceased and cause of his death. The Pathologist concluded that the cause of death was: severe subarachnoid haemorrhage; skull fractures; and head injury in unclear circumstances. The prosecutor sought and obtained admissions from the accused in terms of section 314 of the Criminal Procedure & Evidence Act [Chapter 9:07]. These related to the evidence of certain witnesses as contained in the summary of the state. That is, the evidence of Dr S. Pesanai, who examined the remains of the deceased and recorded a post mortem report. The evidence of James Banya, whose evidence is that on the 8th May 2018, at 0001 hours, the deceased and Pasca Mlambo arrived at the mining site, they appeared drunk. The deceased ordered people to move away from his mining site. The accused person slapped the deceased several times on the face, and he further picked a chisel intending to hit deceased with it. The witness took the chisel from the accused. The accused took a stone and threw it towards the deceased. Deceased ran away. The body of the deceased was found 150 meters down the shaft. The evidence of Vumindaba Mpofu, the investigating officer in this matter. He recorded a warned and cautioned statement from the accused, and such statement was confirmed by a magistrate. The evidence of other members of the investigating team, which is substantially similar to the evidence of the investigating officer. The state called two witnesses and accused testified in his own defence. We are going to summarise the evidence briefly. The first state witness to testify was Pasca Mlambo. He resides at Chibvongodze Village, Chief Munyika, Gutu in Masvingo. He knows the accused as an artisanal miner in Wanderer Area. He knew deceased during his lifetime as his uncle. On the 8th May 2018, deceased and the witness proceeded to the underground tunnel of B and B Mine, Wanderer, in Shurugwi. The two found accused and other persons mining. The deceased asked accused what time his group would finish mining, because he (deceased) and the witness also wanted to mine. A misunderstanding arose between accused and the deceased. Accused slapped deceased with open hands on the cheeks. Accused picked a chisel intending to use it to assault the deceased. He was disarmed by James Banya. Accused picked up a stone and threw it towards the deceased. He missed him. He picked another stone and started chasing after the deceased. The witness testified that he followed the two, i.e. accused and the deceased, then he met accused who was returning to his work station in the tunnel. He then saw dust, and HB 90/21 HC (CRB) 115/20 realised that deceased had fallen into the shaft. It was dark in the tunnel, the miners were using head torches. He noticed that deceased was drunk. The second witness to give oral evidence is Edson Nyavira. He resides at Village 15, Chief Munyikwa, in Gutu. He is an artisanal miner at Wanderer Mine, in Shurugwi. He knows accused person as a fellow gold panner. He knew deceased as a fellow gold panner and they came from the same rural home. This witness testified that on the date and time in issue, the two, i.e. Pasca Mlambo and deceased came to the mine, they were carrying cans of beer. Deceased was very drunk. They came to where other persons were working, and said they had come to work. A dispute arose between accused and deceased, it was about who had the right to mine at that point in time. Deceased poured beer on the accused and insulted him about his mother. Accused got angry and started slapping deceased with open hands. He slapped him on his cheeks. Accused picked a chisel, wanted to assault deceased with it, but he was disarmed. Deceased then ran away. Accused picked a stone and threw it towards the deceased. When deceased was running, he got to a curve in the tunnel. That is the point this witness last saw the deceased. The shaft was 250 metres from where this witness and other miners where, including the accused. Accused only moved three metres following the deceased, threw stones and returned to his work station. It was dark in the tunnel. Miners were using torches. Deceased had no torch. It was dark in the tunnel, and one could not find his way without a torch. After the conclusion of the testimony of Edson Nyavira,the prosecution closed its case. Defence case Accused testified that on the date and time in issue, Pasca Mlambo and the deceased came to the mine and found accused and other persons working. Deceased told accused that they, i.e. deceased and Pasca Mlambo wanted to mine, accused told him that it was not possible since accused and other persons were still mining. Deceased then insulted accused about his mother. Accused testified that after the insult, he got angry and slapped deceased with open hands twice. Deceased removed the trousers he was wearing on top of another trouser. He put his hands in the pocket. Accused picked up a chisel, and was disarmed by James Banya. Accused picked a stone threw it towards the deceased. Deceased then said he was going to collect his syndicate members. Deceased then went away with Pasca Mlambo. Accused testified that he told deceased that they will find him at his work station. Accused testified that he does not know what happened as the two, i.e. deceased and Pasca Mlambo were walking HB 90/21 HC (CRB) 115/20 out. The defence closed its case. The law and analysis of evidence Proof of an accused’s guilt beyond a reasonable doubt is what the State must achieve before it succeeds in pushing the wall of guilt onto the side of the accused. There is no duty on an accused person to push any part of that wall onto the side of the State. An accused person should be acquitted if the State evidence is not strong enough. He should be acquitted if there exists a reason