S v Gudo (316 of 2024) [2024] ZWHHC 316 (31 July 2024)

1 HH 316-24 HCHCR 1580/24 THE STATE versus FAITH GUDO HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 3-5; 14 June; 10 & 31 July 2024 Criminal trial ASSESSORS: Mr Shenje Dr Mushonga Ms T M Havazvidi, for the State F M Masarirevhu, for the accused MUREMBA J: That on the 11th of April 2022, at around 10.00 a.m. and at Plot 20, Wildbeast farm in Featherstone, the accused struck David Dube (the deceased) with a stone on the head thereby causing injuries from which the deceased died on the 20th of April 2022, is common cause. The post mortem that was produced by the State with the consent of the defence states that the cause of death was brain damage, severe head trauma and intra parenchymal hemorrhage. The accused, who is facing a charge of murder as defined in section 47(1) of the Criminal Law Codification and Reform Act [Chapter 9:23] (the Criminal Law Code), pleaded not guilty. He asserted that he did not intentionally cause the death of the deceased but acted in self-defence when he struck the deceased. The incident occurred in a field in the plot of the deceased’s employer, Mr Pepete. The deceased, along with his wife and three small children, resided on the plot and was responsible for herding the employer’s cattle. Notably, the employer and his family did not live on the plot. The accused also owns a plot and was a neighbour of the deceased’s employer. The dispute leading to the accused striking the deceased arose from the deceased’s employer’s cattle allegedly straying into the accused’s maize field and grazing his crop, which was at a critical growth stage. Around 9 a.m., the accused arrived at the deceased’s homestead, seeking the deceased. His explanation was that he intended to inform the HH 316-24 HCHCR 1580/24 deceased that he had observed him around 7 a.m. of that day, driving his employer’s cattle away from his maize field. When the accused arrived at the deceased’s homestead, it was evident that the deceased was not at home. Present were the deceased’s wife, Evernice Matikiti, and their three children. The eldest child, Runyararo, was nine years old at the time, while the other two children were aged seven and three years. Although there is no dispute that the accused informed Evernice he was looking for her husband, the disagreement arises over what the accused said next before leaving the homestead. Evernice Matikiti and her 11- year-old daughter, Runyararo, who testified as State witnesses claim that the accused made a chilling statement that if he were to encounter the deceased, either he or the deceased would die that day. Evernice said she questioned the accused about this ominous declaration, but he dismissed her inquiry as nonsensical and promptly departed. In contrast, the accused vehemently denied making any death threats to the deceased. According to him, he simply informed Evernice that the deceased’s employer’s cattle had invaded his maize field. Evernice, however, reacted strongly, accusing him of repeating his story. Interestingly, it is undisputed that the deceased’s employer’s cattle had previously trespassed into the accused’s maize field on multiple occasions. Furthermore, the accused had previously posted about one of the invasions on the community WhatsApp group. The accused said that on the fateful day, Evernice confronted him, questioning why he consistently reported the cattle invasions on the WhatsApp group. He said that he told her that he wanted the community to know what was happening. Evernice vehemently denied confronting the accused over this issue. It is undisputed that the accused then left the deceased’s homestead. His testimony indicated that he was heading to the chairman’s plot, Sydney Choto to report the deceased. While still in the deceased’s employer’s field, the accused encountered the deceased, who was driving his employer’s cattle. It was at this point that the accused struck the deceased with a stone to the head, resulting in injuries that ultimately led to the deceased’s death. However, the events leading up to this assault on the deceased are fiercely contested. The State’s version and the defence’s version diverge significantly. Evernice Matikiti, the deceased’s wife, and their child, Runyararo Dube, testified for the State, while the accused was the sole witness for his case. HH 316-24 HCHCR 1580/24 The State’s evidence Evernice testified that she observed the incident from a distance of 70 metres. According to her account, the accused struck the deceased in the face with a fist, causing him to fall to the ground. The accused continued to pummel the deceased. It took Evernice approximately two minutes to reach the scene. By the time she arrived, the deceased had already lost a tooth, and the accused was still assaulting him. Evernice attempted to restrain the accused, but he turned on her, assaulting her with fists to the head. Seizing the opportunity, the deceased got back to his feet. The accused then declared that he was going to the chairman’s place to report the deceased. The deceased contested that it was his employer’s cattle that had grazed the accused’s maize. He said he was going to accompany the accused to present his side of the story to the chairman. As they walked, the accused led, about 4 metres ahead of the deceased. Suddenly, the accused picked up a stone and hurled it at the deceased, who managed to dodge. A second stone followed, but again the deceased evaded it. Tragically, it was the third stone that struck the deceased on the back of his head. When the accused struck the deceased, he fell to the ground. Evernice, who was approximately 40 metres away at the time, was now on her way home with her children. Upon witnessing the accused hurling stones at the deceased, she sprinted toward them. Unfortunately, the third stone thrown by the accused struck the deceased when Evernice was about 8 meters away. Rushing to her fallen husband, Evernice observed that his skull was depressed inward, and he had lost consciousness. She promptly arranged for water to be brought to the scene, and after pouring water on him, he regained consciousness. The accused then arranged for a motor vehicle to transport the deceased to Chivhu General Hospital. Subsequently, the deceased was transferred to Harare Hospital, where he eventually succumbed to his injuries on April 20, 2022. Evernice disputed any involvement in assaulting the accused, together with her husband. She also denied asking her daughter, Runyararo, to fetch a log and a dog. According to Evernice, their dog was aggressive, and releasing it would have seriously harmed the accused. She clarified that the dog was always kept tied to the scotch cart at home. Evernice emphasized that their relationship with the accused, their neighbour, was strained even before they began working for their employer. The ongoing conflict stemmed from their employer’s cattle, which frequently strayed into the accused’s plot and grazed on his crops. The incident with the accused occurred during the three months they stayed at their employer’s plot. HH 316-24 HCHCR 1580/24 During cross-examination, Evernice recounted that while she was still at home, she witnessed the accused knocking down the deceased with a clenched fist. The deceased retaliated by landing two or three blows on the accused as Evernice arrived at the scene, attempting to restrain the accused. However, Evernice denied allegations that she hit the accused with a log or pulled his genitals while her husband held him. She also refuted the claim that her daughter had untied the dog from the scotch cart, disputing the claim that when the accused began throwing stones at the deceased, the dog was charging toward him. Furthermore, Evernice rejected the suggestion that she instructed her children to bring stones for the deceased to use against the accused. Runyararo Dube’s testimony closely mirrored her mother’s account. At the time of the incident, Runyararo was nine years old and from the way she reco