S v Chivengwa (CRB 195 of 2016; HH 1 of 2017) [2016] ZWHHC 100 (8 December 2016)

1 HH 1/17 CRB 195/16 THE STATE versus BERNARD CHIVENGWA HIGH COURT OF ZIMBABWE ZHOU J HARARE, 8, 9, 10, 11 & 22 November & 8 December 2016 Criminal Trial Assessors: 1. 2. Mr Kunaka Mr Mhandu A Muzivi, for the State G Tapera, for the Accused ZHOU J: The accused was arraigned before this court on three charges. The first charge is of kidnapping as defined in s 93 (1) (b) (i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In respect of that count the allegations are that on 17 October 2015 and at Dzapasi Village, Chief Mangwende, Murewa, the accused with intent to deprive a child of her freedom of bodily movement, intending to cause such deprivation or realizing that there was a real risk or possibility that such deprivation may result, ambushed and kidnapped the now deceased Vaida Mubaiwa. The second count is of murder as defined in s 47 of the Criminal Law [Codification and Reform] Act. The allegations in respect of that count are that on the same date to which the kidnapping charge relates and at the same Dzapasi Village, Chief Mangwende, Murewa, the accused unlawfully and with intent to kill, murdered Vaida Mubaiwa or realizing that there was a real risk or possibility that death might result waylaid and assaulted the deceased with an axe handle all over her body thereby causing injuries from which the deceased died. The third count is of defeating or obstructing the course of justice as defined in s 184 (1) (a) of the HH 1/17 CRB 195/16 Criminal Law [Codification and Reform] Act. This count is based upon the allegations that on 17 October 2015 and at Dzapasi Village, Chief Mangwende, the accused, with intent to cause judicial proceedings to be defeated or obstructed, or realizing that there was a real risk or possibility that proceedings may be defeated or obstructed, dumped the body of the deceased Vaida Mubaiwa in a gum tree plantation. The accused pleaded not guilty to all the three counts, and pleaded an alibi. The facts which are not in dispute are as follows. On 17 October, 2015 in the evening the deceased was at her homestead in the company of her two friends, Chengetai Chivengwa and Shantel Chivengwa. She went to the bathroom to collect a bucket which she had left there. She was heard screaming by her two friends who then ran away to alert their grandmother. The following morning the lifeless body of the deceased was discovered dumped in a nearby plantation of gum trees. The postmortem report, exh. 1, which was prepared by Dr Mauricio Gonzales, a Forensic Pathologist, concluded that the cause of the death of the deceased was: “(a) suborachoid haemorrhage; (b) Base skull fracture; (c) Head trauma”. The foregoing were, according to the report, secondary to assault. The postmortem report was prepared pursuant to a postmortem examination of the remains of the deceased which was conducted on 21 October 2015. The evidence of Dr Mauricio Gonzalez was admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The issue for determination is the identity of the person who kidnapped the deceased and/or caused the death of the deceased, and dumped her remains in a gum tree plantation. In seeking to prove its case the State relied on the evidence of eleven witnesses. The evidence of four of those witnesses, namely, Dr Mauricio Gonzalez referred to above, Dr S. Ganyani and Violet Chipika, and Walter Mazorodze was admitted in terms of s 314 of the Criminal Procedure and Evidence Act. Viva voce evidence was given by seven witnesses. These are: Chengetai Chivengwa, Shantel Chivengwa, Chipo Nyapwere, Courage Chipuriro, Moreblessing Masuka, Benjamin Thamangani and Christopher Chaboka. Chengetai Chivengwa was a Form Six pupil and a friend of the deceased at the time the deceased lost her life. She gave her date of birth as 16 November 1996, which means that she was just below nineteen years old when the incident happened. She is also a daughter of the HH 1/17 CRB 195/16 accused’s young brother, which means that the accused is her paternal uncle. She stated that she regarded the accused person as her father. Both the accused person and the deceased also resided within the same village where she resided with her parents. After her return from school on 17 October 2015 she interacted with the deceased person on at least three occasions prior to the evening. On the first occasion the deceased passed by the witness’s grandmother carrying a bag of mealie-meal. The name of the grandmother is Maud Chivengwa who testified on behalf of the accused person. On the second occasion the deceased visited the witness at the residence of the latter’s mother and shared some chicken meat with her. The witness, the deceased and the witness’s sister Shantel Muvengwa who is the second witness in this case proceeded to a place at some bridge where they spent about thirty minutes before the deceased left the witness and Shantel and proceeded to her residence. Later on after 5 o’clock in the afternoon the deceased came to the witness’s residence and together with the witness and Shantel, the three of them proceeded to fetch some water from a borehole. After fetching the water the witness took the water to her grandmother’s homestead while the deceased proceeded to her residence. She stated that after leaving the bucket of water at her grandmother’s residence she proceeded to her mother’s homestead to collect her books as she wanted to do some reading. This was now around 6 o’clock in the evening. As she was returning from her mother’s homestead she met the deceased who was in the company of Shantel Chivengwa. The two girls informed her that they had met the accused person. The information given to her by the two was that the accused person was wearing a black pair of trousers and a black t-shirt which had a white patch on the front. The accused person had appeared drunk to the two girls, and had attempted to conceal his identity by kneeling down. The witness walked with the deceased and Shantel to her grandmother’s residence. The deceased then advised that she intended to proceed to her residence to lock the doors as her grandmother was away. The witness and Shantel then accompanied the deceased to her residence so that she would lock the doors. When they got to the deceased’s homestead the latter decided to collect a bucket which she had left in the bathroom. As the deceased got to the bathroom the witness noticed the accused person leaning by the wall of the bathroom. She saw that he was wearing the black t-shirt which had been described to her earlier on. The accused was just some 5-6 metres from where she was when she saw him. As soon as the deceased entered the bathroom the accused person followed into the HH 1/17 CRB 195/16 bathroom. The deceased screamed in a manner that suggested that she had been throttled or attacked. The witness and Shantel ran back to their grandmother’s residence also screaming. They dropped the plates of sadza which they had carried when they had left the grandmother’s homestead. She and her young sister rushed back to their grandmother’s residence and informed her of what had happened. There is a distance of about 500 metres between her grandmother’s residence and that of the deceased. She collected a solar lamp and went to a field in between her grandmother’s residence and that of the deceased’s grandmother and started shouting that the deceased had been attacked. This was after she realized that her grandmother was procrastinating. No one responded to their call. When their grandmother had joined her they went together to the deceased’s homestead. They did not find the deceased but managed to pick the plates which she and her sister had dropped. When she briefed her grandmother, Maud Chivengwa, about what she had seen in connection with the attack upon the deceased Maud Chivengwa indicated that such matters caused her blood pressure to rise and would cause her to collapse. The witness then proceeded to he