S v Chunga & Anor (CRB 108 of 2013) [2015] ZWHHC 265 (18 March 2015)

1 HH 265-15 CRB 108/13 STATE versus FREDERICK THEMBINKOSI CHUNGA and PATRICIA TEMBO HIGH COURT OF ZIMBABWE MUSAKWA J HARARE, 3, 5, 22 and 23 July, 16 and 18 October , 13 November 2013 and 19 March 2015 Assessors: Mr Chakuvinga Mr Gonzo Criminal Trial B Murevanhema, for the state H Nkomo, for first accused B Rupapa, for second accused MUSAKWA J: At the close of the state case accused persons applied for discharge. The two accused persons were arraigned on a charge of murder. They were originally jointly charged with Douglas Nyirongo who however, could not be accounted for at the time they were notified of the trial date. The prosecutor applied for separation of trials which was granted. The indictment is framed as follows:- “In that on the dates unknown but during the period between April 2005 and August 2005 and along a dusty road linking Burnhills and Mvurachena Farm, Raffingora, Frederick Thembinkosi Chunga and Patricia Tembo, one or both of them unlawfully and with intent to kill ran over George Nyachumbu with a Nissan HI Rider vehicle, registration number 569- 144 J thereby causing injuries from which the said George Nyachumbu died.” The summary of state case alleges that between April 2005 and October 2005 the first accused knocked down the deceased with his Nissan Hi Rider vehicle. This happened along a dirt road linking Burnhills and Mvurachena Farm, Raffingora. Some farm workers put the body in a sack before they buried it in the deceased’s field. Before burying the body they cut the deceased’s genitals. These genitals were given to the second accused person who HH 265-15 CRB 108/13 prepared some medicinal potion. The second accused also gave those who killed the deceased and disposed of his remains some medicine to ward off any vengeful spirits. The workers were promised some monetary rewards which never materialised. This culminated in the depositing of an anonymous letter implicating the first accused at a police station. The deceased’s remains were later disinterred from where they had been buried. In his defence outline the first accused denied the charge. He denies knowing the deceased during his lifetime. He also denies being involved in an accident or being involved in any physical contact with the deceased. The first accused further denies harbouring any superstitious beliefs. Being a registered land surveyor and a former secretary for lands, he conducts farming and is not engaged in any other business. He became aware of the allegations in 2006 when police picked him up following an anonymous letter whose contents he was not aware of. The second accused, in her defence outline denies practising witchcraft. She is a former employee of the first accused. She attacks the summary of state case as being vague and based on hearsay. She claims there is no allegation regarding how she is linked to the murder. The state led evidence from twelve witnesses. From Peter Bench Nyachumbu, the deceased’s brother the court heard that the deceased resided alone. The deceased used to visit him after attending church. They lived about seven kilometres apart. Having last met the deceased in October 2005 he paid him a visit in October 2006. Whilst wondering on the whereabouts of the deceased the witness came across a pit that had been dug for purposes of building a toilet. He wondered why the pit had been covered up. He went to the deceased’s kitchen from where he took a plastic jug. He used this to scoop soil from the pit. He reached some maize stalks and then came a bad smell. He dug further and saw a sack. The sack was fragile and he saw a dead body. A T-Shirt on the remains resembled that of the deceased. The witness then contacted police officers. There was no unanimity regarding how the remains were brought to the surface. Whilst Peter Bench Nyachumbu claimed that the officers instructed him to bring out the remains, the officers claimed they assisted him. Peter Bench Nyachumbu further stated that he had been detained for three days as police queried how he had established the presence of the body in the pit. HH 265-15 CRB 108/13 It emerged during cross-examination of this witness that in 2005 he had gone to Mozambique with the deceased. They had visited a place called Chikafa for the unveiling of their late father’s tombstone. The witness did not know any of the deceased’s friends. Although there was a neighbour close to the deceased’s place, he did not inform the neighbour about the tragedy. When police attended the scene where the remains were recovered, they did not search the deceased’s premises. They also did not conduct local enquiries. The exhumed remains were examined by doctors Masokovere and Moralice. Their joint affidavit noted the following:- “bilateral fronto-parietal bones on skull. No other evidence noted on rest of skeletal bones.” They concluded that- “Whether assault or fall not known. (blunt trauma).” The cause of death was given as severe head injury secondary to blunt trauma. Doctor Gideon Masokovere, a pathologist testified. His qualifications are doctor of medicine. He and doctor Moralice a Cuban pathologist examined the remains on 28 October 2005. The right frontal area of the skull showed signs of fracture. These presented as a crack on the front and on the lateral side. They were consistent with blunt injury whose cause they could not determine. Trauma being an injury, the cause could have been a fall or assault. The doctor conceded an affidavit cannot be attested vicariously. He also conceded that his English is bad. It would be understandable as he studied his bachelor’s degree and post graduate studies in Russian. He further explained that the remains had no flesh. The bones were intact with bone to bone contact. There was detachment on the right elbow. Police investigations were triggered by an anonymous letter which reads as follows- “Police, we give information that the man who was killed at Mudziwe was hit by a vehicle belonging to Mr Chunga of Bvurachena. He was finished off by guards who went with him home to hide/bury him. Chunga wanted to cause the arrest of the guard who stole some diesel at Bvurachena and he then said, if you do so I will disclose your case of murder. Chunga then abandoned it. The motor vehicle is damaged/dented.” HH 265-15 CRB 108/13 When detectives conducted their investigations as a follow up of the anonymous letter they arrested Maplan Kondori, Douglas Nyirongo, Elias Mayere, Gift Damiano, Lovemore Zulu Snade, Canaan Bvimba and an unnamed guard. They initially treated these as suspects and thus detained them. Warned and cautioned statements and indications were recorded from some of them. In the case of Canaan Bvimba a video of his indications was recorded. Through advice from prosecutors police decided to turn the initial suspects into state witnesses. Hence, sworn statements were recorded from them. Since they were implicating the accused persons police then arrested the two accused. A very remarkable development took place in the course of the trial. Maplan Kondori, Lovemore Zulu Sande and Gift Damiano were treated as accomplices and they were given the necessary warnings. All three departed from their sworn statements and were impeached. In the case of Canaan Bvimba he was clearly hostile and was cross-examined by the prosecutor. Maplan Kondori a former employee of the first accused testified that in the evening he was summoned by the guard, Douglas Nyirongo. They went to the workshop from where he was told to get a hoe and shovel. They then drove the first accused’s vehicle to where they saw a dead body. There was blood on the ground. They loaded the body and took it to Madziwe where they buried it in a pit. The body had been placed in a sack. After the interment they returned home. Douglas Nyirongo proceeded to see the first accused. This witness claimed to be illiterate. During cross-examination he prevaricated. At some stage Mr Nkomo for the first accused applied that he be exa