S v Donga (97 of 2022) [2022] ZWBHC 97 (16 March 2022)

1 HB 97/22 HC (CRB) 55/22 XREF CR LUPANE 11/2/21 THE STATE Versus KHOLWANI DONGA IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J with Assessors Mr T. E Ndlovu and Mr S. L Bazwi HWANGE 10 & 16 MARCH 2022 Criminal trial B. Tshabalala, for the State G. Muvhiringi, for the accused DUBE-BANDA J: The accused person appears before this court facing seven counts. In Count 1 he is charged with the crime of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on the 9th February 2021, accused unlawfully caused the death of Robert Donga (deceased 1) by setting on fire the house in which the deceased was sleeping intending to kill him or realising that there was a real risk or possibility that his conduct may cause his death continued to engage in that conduct despite the risk or possibility. In Count 2 he is charged with the crime of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on the 9th February 2021, accused unlawfully caused the death of Praymore Khumalo (deceased 2) by setting on fire the house in which the deceased was sleeping intending to kill him or realising that there was a real risk or possibility that his conduct may cause his death continued to engage in that conduct despite the risk or possibility. In Count 3 he is charged with the crime of attempted murder as defined in section 189 as read with section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on the 9th February 2021, accused unlawfully set on fire the house in which Angel Mpala (complainant 1) was sleeping, intending to kill her or realising that there was a real risk or possibility that his conduct may cause her death continued to engage in that conduct despite the risk or possibility. HB 97/22 HC (CRB) 55/22 XREF CR LUPANE 11/2/21 In Count 4 he is charged with the crime of attempted murder as defined in section 189 as read with section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on the 9th February 2021, accused unlawfully set on fire the house in which Ayanda Donga (2nd complainant) was sleeping, intending to kill her or realising that there was a real risk or possibility that his conduct may cause her death continued to engage in that conduct despite the risk or possibility. In Count 5 he is charged with the crime of attempted murder as defined in section 189 as read with section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on the 9th February 2021, accused unlawfully set on fire the house in which Buhle Hadebe (3rd complainant) was sleeping, intending to kill her or realising that there was a real risk or possibility that his conduct may cause her death continued to engage in that conduct despite the risk or possibility. In Count 6 he is charged with the crime of attempted murder as defined in section 189 as read with section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on the 9th February 2021, accused unlawfully set on fire the house in which Bandile Donga (4th complainant) was sleeping, intending to kill her or realising that there was a real risk or possibility that his conduct may cause her death continued to engage in that conduct despite the risk or possibility. In Count 7 he is charged with the crime of attempted murder as defined in section 189 as read with section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on the 9th February 2021, accused unlawfully set on fire the house in which Andile Hadebe (5th complainant) was sleeping, intending to kill her or realising that there was a real risk or possibility that his conduct may cause her death continued to engage in that conduct despite the risk or possibility. The accused person was legally represented throughout the trial. He pleaded not guilty to all the counts and the matter proceeded to trial. The State tendered an Outline of the State Case, which is before court and marked Annexure A. The accused tendered into the record an Outline of his defence case, which is before court and marked Annexure B. HB 97/22 HC (CRB) 55/22 XREF CR LUPANE 11/2/21 State case The State produced into evidence two post mortem reports compiled by Dr I. Jekenya at Mpilo Hospital. The first report relates to deceased 1 (Robert Donga) and is before court marked Exhibit 1. It shows that the cause of death as fatal burns and intentional house burning (petrol). The second report relates to deceased 2 (Praymore Khumalo), and is before court as Exhibit 2. It shows the cause of death as burns and covid 19 infection. Further the prosecutor produced an affidavit deposed to by one B. Nyabanda a forensic scientist, and it was received in evidence. It is marked Exhibit 3. The scientist opined as follows: that the fire was wilfully and intentionally caused; the physical evidence indicated that an accelerant was used; the accelerant used could not be established; the 5 litres full container had petrol fuel; and there was nothing of forensic value that was obtained from the air dried clothes. Further the prosecutor produced accused’s confirmed warned and cautioned statement, and it was received into evidence. It is Exhibit 4. In the statement the accused says: I deny the allegations of torching a house were seven people were sleeping, which preferred (sic) against me. On the day in question, I retired to be and did not go outside during the night, moreso did not phone anybody. I woke up the next morning as early as 7 O’clock and went to search for cattle, I met Ayanda Donga who accused me of torching a house which her father Robert Donga was sleeping and threatened that I will die a painful death. I did not answer her. The prosecutor sought and obtained admissions from the accused in terms of section 314 of the Criminal Procedure & Evidence Act [Chapter 9:07] (CP & E Act). The admissions related to the evidence of the following certain witness as it is contained in the Summary of the State Case (Annexure A). The first is the evidence of Buhle Hadebe. Her evidence is that the accused is her uncle. On the 9th February 2021, Ayanda Donga woke her up and told her that there was fire in the sitting room. Ayanda Donga jumped out of the window and this witness followed her. Ayanda Donga assisted deceased 1 to leave the house through the window. Ayanda Donga also assisted Bandile Donga and Andile Hadebe, complainant 6 and 7 respectively to get out of the house. Deceased 2 escaped from the house through the window and his clothes caught fire which HB 97/22 HC (CRB) 55/22 XREF CR LUPANE 11/2/21 Angel Mpala (complainant 1) put out. Deceased 1, deceased 2 and complainant 1 had severe burns and were referred to hospital. Ayanda Donga reported that she saw accused fleeing from the scene. The second is the evidence of Phibion Donga. His evidence is that accused is his brother’s son. Deceased 1 was his uncle. On the 9th February 2021, at 0200 hours he received a call from Ayanda Donga and she said that the accused had set their house on fire and burnt the family and asked the witness to urgently come. Ayanda Donga said she had seen the accused. This witness proceeded to the homestead and found that deceased 1 and complainant 1 had been taken to hospital. The bedroom was extensively damaged and most of the property inside was burnt. A report was made to the police leading to the arrest of the accused at a roadblock along the Bulawayo-Victoria Falls road. Accused was driving a red Honda Fit. This witness also saw a 5 litre container with petrol that was picked by Ayanda Donga and handed to the police. This witness’s evidence is that there was a long standing dispute in the family that emanated from a piece of land that deceased 1 gave to his step son Mkhululi Mpala. Deceased 1 was accused of favouring Mkhululi Mpala ahea