S v Dube (170 of 2022) [2022] ZWBHC 170 (16 June 2022)

1 HB 170/22 HC (CRB) 79/22 THE STATE Versus SUCCESS DUBE IN THE HIGH COURT OF ZIMBABWE MAKONESE J with Assessors Mr J. Ndubiwa and Mr J. L. M. Zulu HWANGE 15 AND 16 JUNE 2022 Criminal Trial Mrs C. Gorerino, for the state Ms C Manyeza, for the accused MAKONESE J: On 1st of January 2021 and at 0100 hours the accused and the deceased were celebrating New Year’s day at Phokuhle Nyoni’s homestead at Dromoland, Inyathi. Also in attendance were Imanathi Ndlovu, Vusumuzi Moyo and Clement Moyo. At around 0400 hours when others had retired to bed, accused in the company of his co-accused, Vusumuzi and Clement took the deceased to Mtshoko Dam where they assaulted him with an axe and bricks on the head. The deceased died as a result of injuries sustained in the assault. The body was discovered by Livious Ndlovu on the edge of the dam the following day. Accused was arrested and confessed to having attacked the deceased. Accused is facing one count of murder in contravention of section 47 (1) (a) of the Criminal Law (Codification and Reform) Act (Chapter 9:23). Accused denied the charge of murder and tendered a plea to the lessor charge of culpable homicide. The state rejected the limited plea and the matter proceeded to trial. The state tendered a Summary of the State HB 170/22 HC (CRB) 79/22 case which now forms part of the record. It shall not be necessary to repeat the contents of the state outline. Accused tendered a brief defence outline in the following terms: “1. He and Clement Moyo were friends to the extent of becoming brothers. 2. The deceased assaulted Clement’s young brother, Imanathi Ndlovu which did not go down well with them. 3. Imanathi Ndlovu was severely assaulted to the extent of failing to walk properly. 4. He together with Clement Moyo and Vusumuzi Moyo sought to reprimand the deceased. 5. 6. He used bricks to assault the deceased to reprimand the deceased. He never intended to kill the deceased but rather to reprimand him.” In a confirmed warned and cautioned statement recorded on the 9th of January 2021 at Inyathi Police Station, the accused confessed having committed the offence. In his statement, the accused narrated what transpired on the fateful day as follows: “I have understood my rights. I admit to these allegations levelled against me. I assaulted Phathisani Ngwenya with bricks three times on the head and I was in the company of Clement Moyo and Vusumuzi Ngwenya and they also assaulted him. Clement is the one who suggested that we assault him because he had fought with Clement Moyo’s brother.” Dr Juana Rodriguez Gregori is a Forensic Pathologist based at United Bulawayo Hospitals. On the 4th of January 2021 he examined the remains of the deceased. He recorded his findings in a Post Mortem Report filed under report number 10/09/21. The report reveals HB 170/22 HC (CRB) 79/22 that the cause of death was: 1. 2. 3. Encephalic Dilaceration Skull Bones Fracture Head Trauma On marks of violence the report reflects that the pathologist observed a contused wound on the left parietal and frontal regions. On internal examination, there were signs of hemorrhage infiltrate, and laceration on the left parietal and frontal region. There was a comminute fracture from the right parietal to the left. The state introduced the following physical exhibits into the record: 1. 2. 3. 2 bricks with a total weight of close to 3 kg. A blanket that was being used by the deceased before the assault. A pair of push-ins inscribed ‘’champion.” THE STATE CASE The state led viva voce evidence from Phokuhle Nyoni. The witness testified that he resides at stand 34, village 38 Dromoland in Inyathi. The witness knew the deceased Phathisani Ngwenya (also known as Mbare), as a gold panner in the Dromoland area. The witness described the deceased as a humble person who was reserved. He was a peaceful individual. The witness knew the accused as an artisanal miner. He worked with him at the relevant time. Phokuhle narrated that he was also known to Vusumuzi Moyo and Clement Moyo as gold panners in the same area. On the 1st of January 2021 at around 0100 hours the witness was seated alone in his kitchen. His brother-in-law Imanathi arrived at his house. HB 170/22 HC (CRB) 79/22 Imanathi was breathing heavily. He announced that he had just assaulted the deceased with a fist on the face over an issue involving a girl. As they were talking the deceased arrived. Deceased confirmed that he had been hurt by Imanathi in a fist fight. Deceased had a small cut on the forehead. A short while later, the accused and Vusumuzi and Clement also arrived. Accused was visibly drunk. He was moderately drunk. The witness continued his discussion with Imanathi about the assault on the deceased. At that point accused interjected and said, “Imanathi you are weak and stupid, you should have beaten him heavily.” The witness reprimanded the accused. Accused appeared to have taken the advice of the witness. The witness went and retired in his bedroom. The accused and his colleagues remained in the kitchen. The witness told accused and his friends to leave his residence as he wanted to rest. Everyone else left except for Imanathi. When accused woke up the following day he was approached by Livious Ndlovu who reported that deceased’s body was floating at Mtshoko Dam. The dam is about 150 metres from the witness’s homestead. The witness rushed to the scene in the company of other neighbours. They confirmed that deceased was dead. His hand and leg were in the water. The rest of his body was on dry land. The witness observed that the deceased had a cut on the back of the head, the centre of the forehead, and an injury on the hip. The trousers were lowered at the back exposing his buttocks. The witness explained that Imanathi was implicated in the murder. The body was retrieved from the scene by the Police. Accused was later arrested by the police on allegations of murder. The evidence of this witness was largely common cause. His evidence was not controverted by defence counsel under cross-examination. We found the evidence of this witness to be credible in all material respects. HB 170/22 HC (CRB) 79/22 The state led no further viva voce evidence in support of the state case. The state sought and obtained formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07). The evidence of the under listed witnesses was admitted by consent as it appears in the outline of the state case; (1) Sinqobile Nkomo (2) Sgt Nxongo (3) Dr Juan Rodriguez Gregori The state closed its case. DEFENCE CASE The accused, elected to give evidence under oath. Accused gave evidence that was at variance with his defence outline. From the onset accused fought a battle which was not his. Accused cried more than the bereaved. Accused was never provoked by the deceased. Accused was never involved in a fight, let alone a misunderstanding with the deceased. In essence, accused poked his nose into matters that had nothing to do with him. Phokuhle had reconciled the deceased and Imanathi. The two had forgiven each other. The accused decided to escalate tensions between the deceased and his friends, Clement and Vusumuzi. In what appeared to be a slip of the tongue, accused indicated that Clement and the deceased had a previous misunderstanding. It would seem from accused’s evidence, that Clement bore a grudge with the deceased. Even with that scenario, the accused involved himself in a matter he was not a part of. The attack on the deceased was purely a revenge attack. By his own admission, the accused, Vusumuzi and Clement sought out for deceased. They confronted him whilst he was fast asleep. They dragged or carried him to the dam. They laid him down. Clement produced an axe and struck the deceased twice on the head. Accused HB 170/22 HC (CRB) 79/22 struck the deceased three times on the head whilst he lay down injured. Accused admits that he used bricks to assault the deceased. There is evidence that t