S v Dzama (32 of 2024) [2024] ZWCHHC 32 (15 April 2024)

1 HCC 32/24 HCCR 1666/23 THE STATE versus DOUBT DZAMA HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 15 April 2024 Assessors: Mrs Mawoneke Mr Kamanga Criminal Trial N. S. Sibesha, for the State M. James, for the accused MUZOFA J: The accused is facing a murder charge as defined in s47 (1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. It is alleged that on the 22nd of July 2023 the accused assaulted the deceased, one Vimbai Mapininga all over the body with intention to cause his death or realizing that there was a real risk or possibility that death may result and continued to engage in the conduct. The accused denied the offence and raised self-defence. In his defence outline he detailed what transpired on the day. In short he said he attacked the deceased after he entered his hut at night. He thought the deceased was a thief or a robber. The background to the case is undisputed and was set out in the summary of the State case marked Annexure 1. The accused was married to one Sharon Dzama hereinafter referred to as Sharon. They had four children. The accused resided in Harare and Sharon his wife lived in their rural home in Mhondoro with their four children. They took turns to visit each other, with the wife Sharon frequently visiting her husband the accused in Harare. On the weekend of 22 July 2023, Sharon was supposed to travel to Harare, she decided against going. She requested the accused to send some groceries. HCC 32/24 HCCR 1666/23 The accused, on second thoughts decided to visit his family instead of sending the groceries. He took a bus and arrived around 7pm. On arrival at their village, he did not proceed straight home to his homestead. He went to his uncle’s homestead to while up time. Around 9pm he was accompanied to his homestead by his uncle Munashe a young boy aged 17 years. When he got to his homestead, his wife and children had retired to bed. They woke up and exchanged pleasantries. They all share one room, semi divided by a curtain and a kitchen dresser. When they had just retired to bed the deceased arrived. What transpired after this, is in dispute. According to the accused the deceased, pushed the door and gained entry into his house. There was no light inside the room. The accused thought it was a thief or a robber. The State alleged that the accused had lured the deceased to his homestead. He must have suspected that he was having a love affair with his wife Sharon. This is what the State sought to prove in its case. The State produced the following exhibits by consent: 1. The post mortem report. The Doctor who examined the deceased’s remains concluded that death was a result of skull fractures, subdural and subrachnoid haemorrhage. 2. A confirmed warned and cautioned statement. In his response to the caution the accused said he struck the deceased thrice on the head in self-defence as the deceased had attacked him. 3. A sketch plan drawn from indications made by the accused and Sharon. 4. The wooden axe handle that the accused used to strike the deceased which was 75cm long, 5cm in diameter at the head and the handle was 2cm in diameter. 5. A white cellphone written Honour with a black cover. The evidence of two witnesses Patience Marozva and Kudakwashe Chiremba was formally admitted in terms of s314 of the Criminal Procedure and Evidence Act. Their evidence was formal. Patience was the nurse at Gora Clinic where the deceased was taken to after the assault. She examined the deceased and discovered that he had no pulse. She observed that the deceased had a cut above the left eye and a swollen right leg. The body was then conveyed to Mhondoro Rural Hospital mortuary after the police report. Kudakwashe Chiremba was part of the police investigation team. His evidence corroborated Litshoni Mpofu’s eveidence that was led before the Court. They conducted the investigations HCC 32/24 HCCR 1666/23 together. Three witnesses gave evidence in court. Sharon Dzama She was married to the accused for 13 years. They had four children. She gave her evidence in between tears probably regretting her conduct. The deceased lived in their neighbourhood in Mhondoro. He was her boyfriend. Their relationship was about 5 months. She stayed with her children at their village in Mhondoro. The accused, her husband would visit at times but she is the one who usually went to Harare. On the 22nd of July 2023 which was a weekend, she decided not to go to Harare. She spent the day doing her chores. In the evening when she and her children retired to bed, Munashe her 17-year-old uncle knocked the door. He said he had brought a parcel sent from Harare by the accused. To her surprise the door was pushed, opened then the accused and Munashe entered the hut. The accused was not in a good mood. His response to her greetings was not the usual response. Munashe immediately left. The accused was agitated. He asked about the children, where they were. He was shown and he physically checked who was sleeping and where. He then asked for her phone. He was given. He started operating it. She did not know what he was doing or checking on the phone. As he operated her phone they spoke about other issues. The accused then asked for an axe handle that was usually kept in the house. He searched for it. Sharon advised him that it was under the bed. He took it and placed it behind the door, where the accused also stood. After about 30mins or an hour, the deceased arrived. When the deceased arrived, he knocked once and pushed the unsecured door and entered the hut. HCC 32/24 HCCR 1666/23 The accused struck the deceased once on the back. Deceased turned and faced the accused. They tussled and pushed each other outside. They fought. She could not restrain them. She fled from the scene. She went to a neighbour’s homestead and reported. That night she did not return home. She spent the night in a field. She heard voices at the scene of crime. She returned the following day when she heard of deceased’s death. Under cross examination she said she had not invited the deceased to her place. Infact she never met her lover at accused’s homestead they had a love nest where they met. Although she admitted to have communicated with the deceased that day, she denied inviting him. She said inside the house it was dark but outside there was moonlight. She could neither deny nor confirm that the deceased could have invited the deceased. She was truthful why she had the relationship with the deceased. She said she had problems with the accused and the relationship soothed her stressful life. Lawrence Dzama He was the headman. Around 11pm on the day, the accused called him by phone and advised him that he had assaulted the deceased. He proceeded to the accused’s homestead but it took some time to get to the deceased’s homestead since its some distance and they walked on foot. When he arrived, he found the deceased lying beside a fire about one and a half metres from accused’s hut. They secured transport around 4am to take the deceased to Gora Clinic where he was declared dead on arrival. His cross examination was inconsequential. He had no knowledge of how the offence was committed. He saw three cut wounds on the deceased. Deceased could not speak when he got to the scene of crime. The accused looked very restless and was concerned about the delays in taking the deceased to the Clinic since there was no transport. Litshoni Mpofu He was assigned to investigate the case. He proceeded to the scene of crime in the company of other police officers. At the scene of crime, they recovered an axe handle. The deceased’s body which was at Gora Clinic was taken for a post mortem. Upon the accused’s arrest, he surrendered the deceased’s cellphone which was produced before the court. The accused told the witness that he browsed the deceased’s phone and saw communication between the deceased and his wife which confirmed their love relationship. Under cross examination, the officer confirmed that