S v Chinyani & Anor (CRB 61 of 2015; HH 147 of 2017) [2017] ZWHHC 147 (3 March 2017)

1 HH 147-17 CRB 61/15 THE STATE versus DOUGLAS CHINYANI and CHIREMBWE CHIREMBWE HIGH COURT OF ZIMBABWE MUSAKWA J HARARE, 26, 27 March, 13 November 2015, 24 February and 3 March 2017 Assessor: Mr Shenje Criminal Trial T. Kasema, for the state Z. Lunga, C. Kasiyo, for first accused F. Mawere, for second accused MUSAKWA J: During the course of 2016 Mrs Shava, one of the assessors passed on. In terms of s 8 (1) of the High Court Act [Chapter 7: 06] both the defence and the state consented that the trial proceed with one assessor and I accordingly direct so. The accused persons are charged with the murder of James Tsotsonga (hereinafter called the deceased). It is alleged that: “on 25 September 2011 and along Musvasvi Street, Bindura, the accused, one or more of them unlawfully and with intent to kill murdered James Tsotsonga or realising that there was a real risk or possibility that death might result stabbed James Tsotsonga with a knife on the right shoulder from which injuries the deceased died.” The charge could have been drafted with more precision. The summary of state case alleges that on 24 September 2011 the deceased left National Railways of Zimbabwe bar and proceeded to Chipadze. He was in the company of Maximina Katembo (hereinafter referred to as Maximina). They used a footpath. Along the way there was a confrontation with the accused persons. The deceased was stabbed on the right shoulder. Apparently the cause of this tragedy was Maximina who was the first accused’s girlfriend. As will be noted from the evidence, Maximina peddled sexual favours. HH 147-17 CRB 61/15 The first accused’s defence outline is very brief. He claims not to have been in Chipadze when the offence was committed. He further claims that Maximina must either be mistaken or is lying. On the other hand the second accused claims to have been in Mvurwi where he worked. He only learnt about the incident from his wife when he visited his home in Bindura. Although he had a working relationship with the first accused, they are not friends. He got to know Maximina after she was introduced to him by the first accused in December 2011. He was arrested in April 2012. The evidence led by the state essentially centres on Maximina. She is a simple young woman of limited literacy and intelligence. Her naivety is demonstrated by her casual reference to both the deceased and the first accused as her husbands. This was notwithstanding that she had only met the deceased for the first time on the fateful day. Maximina lived on and off with the first accused. She stated that she used to see the two accused together. At the time of the incident she had parted ways with the first accused. The evidence-in-chief of this witness did not flow. Perhaps it was the manner in which the evidence was led. Basically questions were put to her and she sort of gave short answers in reply. It may have been the best to let her narrate everything that took place from the time she met the deceased. Therefore, some details emerged during cross-examination and during questioning by the court. Maximina met the deceased who gave her US$5 for sexual favours. She later clarified that of that amount US$1 was used to purchase beer. As they walked from Chipenda Bottle Store towards Chipadze Shops they came across the two accused and another person. This was along a road behind Chipadze Primary School. The first accused told the deceased that the witness was his wife. A fight then ensued. Initially the deceased was assaulted with bare hands. The first accused then produced a small knife with which he stabbed the deceased. After the deceased fell down the first accused orderd the witness to go with him. She was not willing. They then left together with the second accused. They first went to a place called Mupandenyama which is in Chiwaridzo Township. Thereafter they left for the first accused’s residence. She stayed with the first accused for five days. There were eight other tenants at the house. She would do household chores but was afraid to leave. She explained that she was afraid that the first accused would catch up with her. Elaborating on this she referred to a HH 147-17 CRB 61/15 previous incident in which the first accused had assaulted her. This was after she had gone out without his knowledge. She got to know about the deceased’s death after three days. She overheard people talking about a body that had been found. The deceased was described by his nickname; ‘Bolt Cutter’ which the witness mistook for ‘Body Cutter’. On the fifth day when the first accused was asleep, the witness absconded. She went to live with a friend, Auxilia at a place she termed ‘Clusters’. The witness also stated that she was ill-treated by Police Officers during the course of investigations. At the Police Station, she claimed to have been beaten on the soles. She further stated that she was also burnt on the arm with a piece of iron that had been exposed to sunlight. As to why this happened, she said she naturally stammers. As she was being interviewed the Officers must have concluded that she was being evasive, hence the assault. Regarding the second accused, she further explained that he had held the deceased as the first accused assaulted him. She said she knew the second accused simply as Last ‘Mushurugwi’. Upon the second accused’s arrest she was called to Bindura Police Station where she was shown the second accused. She identified him as the one who had been in the company of the first accused. He was the only suspect shown to her at that time. Detective Sergeant Chimuto testified that he was allocated the matter on the same day of stabbing. He located one Mavis Meke of 35/36 Masvosve Street who is the one to first see the deceased. Apparently, this woman was not called as a witness. He traced a trail of blood to where he saw the blade of a knife minus the handle. It had blood stains. There was a pool of blood. Despite interviewing people he made no headway. He also visited the deceased at Bindura Hospital but he did not disclose his assailants. The deceased was transferred to Parirenyatwa Hospital on the following day. In January 2012 the witness received information relating to Maximina. As to how he got leads he stated that he picked information from some prostitutes, as prostitutes are some of their sources of information. Maximina was then picked up. She initially denied knowing anything. It is only when they brought in Auxilia Amando that she then opened up. Detective Sergeant Chimuto further stated that Maximina referred to the second accused as Last ‘Mushurugwi’. She led them to the first accused’s residence where he was arrested. They could not establish the second accused’s residence until April 2012. HH 147-17 CRB 61/15 They verified the second accused’s alibi of having been at work in Mvurwi. They confirmed that he was at work on the 24th September 2011 and finished at 1200 hours (actually 1 p.m.). No one could shed light on the second accused’s movements thereafter. When the second accused was eventually arrested they called in Maxima who identified him. This witness further stated that he knew the deceased who was an ex-employee of the National Railways of Zimbabwe. He elaborated that he was known as Jimmy or ‘Bolt Cutter’. The nickname arose from the brawls the deceased used to be involved in. The post-mortem report on the deceased was produced by consent. It noted the following injuries- -9cm deep wound on the right mid axillary fold superiorly -large haematoma in the axillary space -severed axillary artery on the lower on the border of the pectoral minor muscles -blood in the subpectoral region The cause of death was haemorrhage due to stab wound. With this evidence the state closed its case. Both accused applied for discharge. Their applications were dismissed and full reasons were given in a separate judgment. The first accused testified in his defence. He testified that he was self-employed. He did not know