S v Gambiza (CRB 41 of 2017; CRB 42 of 2017; HMA 23 of 2017) [2017] ZWMSVHC 23 (6 April 2017)

1 HMA 23-17 CRB 41 – 2/17 THE STATE versus TORESAI GAMBIZA HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO, 10, 13, 16, 23 March & 3 & 6 April, 2017 Assessors 1. Mr J. Mushuku 2. Mr E. J. Gweru Criminal Trial Mr T. Chikwati, for the State Mr Mafa, for the accused MAWADZE J: The accused is facing the charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act, [Cap 9:23]. The accused was jointly charged with Personally Ngundu who is currently at large. The State successfully applied for separation of trial. The charge is that the accused or one or both unlawfully caused the death of Lessie Temai, a female adult by striking her with a switch and kicking her on 21 March 2015 in Madziya Village, Chief Murove, Mwenezi in Masvingo. HMA 23-17 CRB 41 – 2/17 The accused is 45 years old and his alleged accomplice Personally Ngundu is 27 years old. The accused resides in Munongwani Village, Chief Mawarire, Mwenezi, Masvingo. His alleged accomplice resides in Madziya Village, Chief Murove, Mwenezi, Masvingo the same village the now deceased resided. The now deceased was a 52 year old widow and is described as a person who was of ill health and well known for patronising beer drinks. On 21 March 2015 there was a beer drink at Ngundu’s homestead, the parents of the alleged accomplice Personally Ngundu in Madziya Village, Chief Murove, Mwenezi, Masvingo. There were a number of patrons partaking in the traditional brew which included the now deceased, Mukowa Moyo, Personally Ngundu and the accused. Esnath Ngundu the mother of the alleged accomplice was selling the beer at her homestead. It would appear from the evidence that the traditional brew was very intoxicating as many people who were present seemed to have been very drunk from the evidence placed before us. A number of brawls also arose which culminated in the now deceased’s demise. At about 1600 hours the now deceased and one Mukowa Moyo (Moyo) were involved in an altercation which degenerated in a fight. The source of dispute is said to have been a mini skirt the now deceased was wearing which provoked the ire of Moyo. The now deceased did not take kindly to being rebuked for her attire. The State alleges that Personally Ngundu who is at large stopped the fight by in turn assaulting both Moyo and the now deceased with a switch. The now deceased is said to have turned her wrath towards Personally Ngundu by shouting at him. It is alleged that Personally Ngundu responded by kicking the now deceased causing her to fall only to be helped to her feet by Esnath Ngundu who assisted her to sit down. The State alleges that the accused for no apparent reason took a switch a struck the now deceased on the head again causing her to fall down. It is alleged that Esnath Ngundu assisted the now deceased to get up and took her into one of Esnath Ngundu’s huts. The now deceased unfortunately passed on at around 1800 hours. The accused flatly denied assaulting the now deceased in any manner. Instead the accused lays the blame squarely on his alleged accomplice Personally Ngundu who is at large HMA 23-17 CRB 41 – 2/17 whom he said heavily assaulted the now deceased on the head with a switch. According to the accused the old adage that the guilty are afraid explains why Personally Ngundu is at large. The accused said Personally Ngundu’s mother one Esnath Ngundu a State witness is simply living by the saying that blood is thicker than water by protecting her son Personally Ngundu and falsely incriminating the accused. The accused who denied that he was heavily intoxicated said in his evidence that the now deceased and one Moyo who was also initially arrested in connection with this matter, are the persons who first quarrelled and then engaged in a fight. According to the accused Moyo was heavily drunk and he was unable to meaningfully fight back as the now deceased overpowered him. The accused’s version is that this fight was not stopped by anybody but the protagonists stopped on their own. The accused said Personally Ngundu then took a switch and assaulted Moyo whom he took out of the yard. Upon his return the accused said Personally Ngundu proceeded to assault the now deceased on the head with a switch and several times all over the body. The accused said Personally Ngundu then proceeded to kick the deceased with safety shoes on the chest causing her to fall headlong. Accused said the now deceased exclaimed that Personally Ngundu has killed her. The accused’s evidence is that at that point Personally Ngundu threw away the switch and ran away. The accused said he picked the switch and secured it on top of a garage well knowing it was an exhibit. The accused said Personally Ngundu’s mother Esnath Ngundu took the now deceased into one of her huts but came out to advise those people present that the now deceased’s condition was deteriorating. The accused said some water was poured on the now deceased to no avail as she passed on and most of the patrons vanished from the scene. The accused said he proceeded to the nearby Sengejira business centre where he unfortunately met Personally Ngundu who attacked the accused. The accused said his crime was telling people at Sengejira business centre what Personally Ngundu had done, that is killing the now deceased. The accused said he was severely assaulted by Personally Ngundu with one of the bigger switches in court produced as Exhibit 2(b) and was also hit on the head with a stone resulting in him bleeding profusely. The accused said no one came to his rescue as all the local people know Personally Ngundu as a person of a violent disposition who does not even hesitate to use weapon like knives. HMA 23-17 CRB 41 – 2/17 The accused said Personally Ngundu then fled from the scene and accused went to Esnath Ngundu’s homestead to wait for the police whom he heard had been called to attend the deceased’s death. The accused said he also hoped to report to the police the assault perpetrated on him by Personally Ngundu. However, when the police arrived the accused said the tables were turned as he was implicated in the murder of the now deceased. He said his report of assault was virtually ignored by the police despite the visible injuries he had. The police did not even bother to have him medically examined timeously even after the Magistrate had made such an order. Instead the accused said the investigating officer frantically tried to prevail upon the accused to coerce him to admit to having a hand in the now deceased’s death. The accused said he did not flee from the scene as his hands were clean and that he even tried to render first aid to the now deceased not because he had assaulted her but out of his good heart. He denied that any compensation was demanded from him by the now deceased’s relatives. It is accused’s contention that Esnath Ngundu and Pesani Singateri both State witnesses are simply conniving to falsely implicate him. Accused alleges Esnath Ngundu is trying to lessen her burden for compensation to the now deceased’s family by also involving the accused, and that Pesanai Singateri was the now deceased’s boyfriend. The accused thus insisted that he never laid his finger on the now deceased and has completely no hand in her demise. The post mortem report Exhibit 1 compiled by Dr Godfrey Zimbwa who examined the now deceased’s body on 22nd May 2015 reveals the following observations and findings; (i) (ii) the now deceased had facial and scalp bruises bilateral periorbital haematomas (iii) multiple bruises on the upper chest (iv) bleeding from the mouth and nostrils The doctor concluded that the cause of death was head injury arising from blunt trauma. The observations and findings by the doctor are not being challenged. It is therefore a fact that the now deceased was assaulted fatally. The State produced two switches Exhibit 2(a) a very thin switch 61 cm long and Exhibit 2(b) a thicker switch 144 cm long. The State alleges that both these switches were use