S v Chunda (HB 36 of 2017; HC CRB 161 of 2016) [2017] ZWBHC 36 (26 January 2017)

1 HB 36/17 HC (CRB) 161/16 THE STATE Versus PORTIFER CHUNDA IN THE HIGH COURT OF ZIMBABWE MATHONSI J GWERU CIRCUIT COURT 25 & 26 JANUARY 2017 Criminal Trial M. Shumba for the state Ms N. Maguranyanga for the accused MATHONSI J: The accused is charged with the murder of his own brother Tairod Chunda who was 35 years old and employed as a manager at Donbrooke Mine, Greendale, Mvuma Road, Gweru where the accused also worked. On 27 September 2015 the accused allegedly struck the deceased twice on the head with a chisel as a result of which the deceased died. It is alleged that the accused, the deceased and other mine workers were on duty at the mine in the early hours of the morning on that day when the accused was found by the deceased lazing around instead of working. On being ordered to do some work the accused refused. The deceased then grabbed the accused by the collar and a scuffle ensued. It was during that scuffle that the accused took a chisel and struck the deceased twice on the head. He sustained injuries from which he later died on the way to Parirenyatwa Hospital in Harare. The accused has pleaded not guilty to the charge. He stated in his defence outline that on the fateful day he could not execute his duties because he had diarrhea. As a result he had remained on the surface outside the mine shaft when the other workers went underground to work. While still outside the shaft in the company of Mica Ganya one of the employees, he received information that his co-workers had held a meeting and resolved that they would exclude him from sharing the proceeds of the mining operations given that he had not provided any work for 2 days. HB 36/17 HC (CRB) 161/16 The accused says that information jolted him into action. He was forced to go down the mine shaft along with Ganya in order to carry out mining duties. Whilst underground he met Gilbert Dube and Stephen Dube while the deceased and Wyson Makwemba were working further down the shaft. It was then that the deceased and Makwemba started shouting at Mica Ganya. The deceased was already agitated when he met the accused enquiring why he had come down the mine shaft when he was not feeling well. He says he told the deceased that he had done so owing to the resolution of the meeting that had been held in his absence. He refused to go out of the mine shaft when the deceased directed him to leave. It is then that the deceased grabbed him by the collar strangling him and threatening to kill him if he did not vacate the mine shaft. The accused went on to state in his defence outline that the deceased produced an Okapi knife which he used to cut the accused on the neck. He also tore his t-shirt. The deceased pushed him forcefully resulting in him, the accused, falling in a pool of water. While still on the ground he was struck by the deceased with a log. In retaliation and in self defence the accused says he took an iron bar which was near him which he used to strike the deceased to avert the attack by the deceased. As a result the deceased fell in a pit which had been recently blasted and started crying and his head was already swollen. He says he tried to assist the deceased who requested water and his tablets. Himself and the other workers carried the deceased out of the shaft. He was later ferried to Gweru Provincial Hospital from where he was referred to Parirenyatwa Hospital in Harare but died in Norton on the way there. The state produced the accused’s confirmed warned and cautioned statement which he gave to the police in answer to the charge of murder on 30 September 2015. The statement was confirmed by a magistrate on 24 December 2015. In that statement the accused stated in part: HB 36/17 HC (CRB) 161/16 “I admit to the charges levelled against me … I was the last one to get into the shaft. Tairod Chunda asked me why I had entered into the shaft yet I had indicated that I was sick. He ordered me to get out saying he did not want to work with me. He shouted and insisted that I go home since he no longer wanted to work with me. He threatened to assault me and he was restrained by Ganya and Makwemba. He broke free from the grip and held me by the collar, throttling me saying he wanted to kill me. He took a small knife and cut me on the neck. I fell into the water and got up. Tairod took a log intending to strike me with it but missed me. He then said, ‘You are not getting out I want to kill you’. I took a chisel and struck him twice on the head with it and he fell down. I suggested to the others that we take him out. He then asked for pills and I gave him. I phoned for a vehicle to ferry him to the hospital where he was treated and transferred to Parirenyatwa Hospital. Tairod Chunda then died in Norton on our way to Harare. I was arrested upon arrival.” The post mortem report was also produced. According to Dr Grayly who examined the body of the deceased, he observed ante-mortem multiple bruises on the thorax and abdomen. He concluded that the cause of death was brain damage, compound skull fracture and head trauma due to assault. The weapon used to assault the deceased was produced as exhibit. What is referred to as a chisel is not the normal hardware tool that a lay person is familiar with. This is a special tool used for mining purposes. It is common cause that underground miners use a hammer to strike it while chipping away rocks. It weighs 1,472kg, is 51cm long and has a circumference of 7,8cm. Clearly a formidable weapon. The evidence of Joseph Manenji, Doman Moyo, Samuel Tadzaushe and Dr Manicio Grayly was admitted in terms of s 314 of the Criminal Procedure and Evidence Act (Chapter 9:07) as it appears in the state outline. According to Manenji he was requested in the early hours of 27 September 2015 to ferry the injured deceased from Donbrooke Mine to Gweru General Hospital. Upon arrival at the mine he beheld the deceased lying on the ground. His head was swollen and he was having difficulties in speaking. He ferried him to hospital in the company of his co-workers. Doman Moyo is an attested member of the Zimbabwe Republic Police stationed at Gweru Rural Police Station. On 30 September 2015, he recorded a warned and cautioned HB 36/17 HC (CRB) 161/16 statement from the accused after cautioning him in accordance with the law. The statement was made freely and voluntarily and was later confirmed by a magistrate. Samuel Tadzaushe is another police officer who witnessed the recording of the statement. The state also led evidence from 3 mine workers who were present on the day that the deceased was assaulted. These are; Wyson Makwemba, Gilbert Dube and Mica Ganya. These witnesses corroborated each other in material aspects. As if in chorus the 3 of them testified that on 27 September 2015 the deceased, who was their manager, gave orders for all of them to go underground at the mine. While the deceased, Makwemba and Gilbert Dube went down the mine shaft the accused who was the deceased’s young brother remained seated at the surface. He did not give any reason for disobeying the order given by the manager and certainly did not mention that he was suffering from diarrhea. When the manager got underground and discovered that the accused had remained behind at the surface he returned twice to the surface to persuade him to commence work but the accused refused. Ganya who had also remained at the surface operating a generator which was pumping water out, says on the deceased’s earlier visit the accused had promised the manager that he would follow him underground later. It was only after Ganya had completed his task at the surface and had joined the other workers underground and was working at the deepest tunnel with the deceased and Makwemba that the accused followed. Even then, the accused is said to have gotten to the upper tunnel where Gilbert Dube was working and instead of joining others in performing duties, he decided to sit down and do nothing. All 3 witnesses confirmed that at tha