S v Chishaka (CRB 163 of 2016; HH 264 of 2017) [2016] ZWHHC 264 (1 November 2016)

1 HH 264-17 CRB 163/16 THE STATE versus DOCTOR CHISHAKA HIGH COURT OF ZIMBABWE HUNGWE J MUTARE, 26 October 2016 & 1 November 2016 Assessors: 1. Mr Rajah 2. Mr Chagonda Criminal trial M Musarurwa., for the State Ms N Nyamwanza for the accused HUNGWE J: The accused was charged with murder as defined in s 47 of the Criminal law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). He pleaded not guilty. The allegations arose from the events of 7 August 2015 where it is alleged that the accused unlawfully and with intent to kill or realizing that there was a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility, assaulted John Siziba with a knife by stabbing him once on the left arm pit thereby causing injuries from which the said John Siziba died. Both the State and defence are agreed that on the day in question the accused and other farmers gathered at the accused’s residence. This residence is situated on land belonging to Wattle Company on which the farmers were occupying illegally. As at this date, the farmers had no lawful authority or permit from the relevant authorities to occupy the land, or to carry out farming operations on that land. The relevance of the status of the land will be clear later. HH 264-17 CRB 163/16 However the farmers believed that because they had resettled themselves there in 2012 they had a right to be on that land. They put up some structures, part of which became central to the facts in dispute during the trial. It would appear and the parties are agreed, that the Wattle Company had sought and obtained an eviction order which the relevant authorities had enforced leading to the destruction of some of the temporary structures and huts. The accused’s granary was partly destroyed but to what extent was an issue of some dispute. Exhibit 5 the sketch plan, shows that it was partly destroyed at the time of the commission of the offence. The evidence led at trial which was admitted into the record in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] included the following: a) The post mortem report of the examination by Doctor Chizaza (exh 3); b) The accused’s warned and cautioned statement which was confirmed before the magistrate at Mutare on 26 August 2015; c) The sketch plan drawn by Sergeant Mapfumo and confirmed by Sergeant Chifamba. Following upon the consent to the production of the above documentary exhibits, the evidence of their makers became a non-issue and therefore the evidence of Dr Chizaza, and Sergeant Mapfumo and Chifamba was admitted without contest. In addition to the above evidence the State relied on the following witnesses: 1. Maxwell Katevera, the Estates Manager of Wattle Company; 2. Bongani Manase, the security guard at Wattle Company; 3. Edmore Chipukutu, the chain saw operator; 4. Perfect Toopera, a general hand and 5. Tapiwa Chawasema another general hand. The thrust of the evidence of these five witnesses established the following facts. By 7 August the Wattle Company had effectively physically evicted the illegal squatters from this section of the estate. The work gang was deployed to go and establish a new plantation on that date. The exercise required the clearing of the indigenous trees and bushes, marking holes, marking the lines and the pit in which to establish the new seedlings. This process is commonly called “mark and pit”. Since the section had been contested land, the estates manager decided to accompany the gang together with his loss control officer, one John Siziba, the now deceased. They commenced HH 264-17 CRB 163/16 the mark and pit process and continued without incident until they got to the accused’s partly destroyed grain rack which is represented by the rectangular shape on exhibit 5 the sketch plan. It stood on their way. The chain saw operator got orders to rip it down. Edmore Chipukutu (“Edmore”) set upon this task. Up till then no-one amongst the Wattle Company workers was aware that the squatters or farmers were waiting somewhere within vicinity of the land. The accused and his group then emerged from nowhere. This group ordered Edmore to desist from cutting down the structure. One of the six- member group grabbed Edmore whilst another went for the chain-saw which Edmore had first switched off. The deceased urged them to stop what they were doing. Upon hearing this caution the group turned on the deceased and announced that they actually wanted him. The group was armed with sticks. They made a horse-shoe formation around Siziba the now deceased. Upon realising that he carried a fire arm. The group shouted that the pistol must be taken. In fear of being disarmed and the possible consequences of the fire-arm falling into their hands, the deceased passed the pistol to Bongani Manase, (“Bongani”) the security guard being the person then closest to him. Bongani Manase bolted away with it with Zorodzayi Mahumbure behind him. The group set upon the deceased. The accused welded a knife. On realizing the danger faced by one of their own, Bongani then fired a warning shot into the air. By then the accused had stabbed the deceased. Upon hearing the round of a gunshot the group disengaged and fled from the scene leaving the deceased lying prostrate and writhing in agony. The fallen Siziba got up and staggered for a few meters before he fell headlong. There were shouts from the Wattle Company workers that Siziba was dead. We preferred this version of events to that proffered by the accused for the reasons which will follow. The accused’s defence can be summarized as follows. The farmers took occupation of this land in 2012 and cleared it to embark on their farming operations. Although they had no lawful permit to farm or occupy this land, the accused maintained that they are in the process of clearing the hurdles which remain in their way to secure authority to farm the land. On the day of this incident they were in peaceful possession of the land upon which they had erected structures at their expense. The accused insisted that the land did not belong to the HH 264-17 CRB 163/16 Wattle Company. Particularly relating to the fateful events, the accused stated in his defence outline that when the group of between thirty and thirty-five Wattle Company workers descended upon this field they began to dig it up. When they got to the grain rack, one of them began to destroy it using a chain-saw. This act constituted an act of provocation. The accused ran towards this chain-saw operator. The latter pointed the chain-saw in his direction threatening to rip him to pieces. He ran away. His fellow farmer, Muswere Nyenyai approached the deceased who was the chain-saw operator’s supervisor. Meswere Nyenyai urged the deceased to instruct the chain-saw operator to stop the destruction and digging of holes since the matter was before the courts. As Muswere Nyenyai was speaking to the deceased, other farmers gathered around the two. The deceased then drew a fire-arm and fired three shots into the air threatening to kill anyone who came near claiming that they were disturbing his work. Muswere Nyenyai moved closer to the deceased and urged the deceased to stop firing shots. The deceased then threw the pistol to his colleague who got away with it. The deceased grabbed Muswere Nyenyai. Other Wattle Company workers began to assault Muswere Nyenyai using hoes and machetes. The other farmers joined the melee. Muswere Nyenyai was seriously injured in this melee. The deceased held Muswere Nyenyai firmly and the accused who still held a knife he had been using at his residence, decided to shake off the deceased’s grip. The accused says that in the process the deceased was accidentally “cut on his left armpit.” In short he acted in defence of another person. However this differs quite markedly from the statement exhibit 4, his statement to the police. In it he states: “On that particular day I wa