S v Gwari (CRB 48 of 2019; HMA 50 of 2020) [2020] ZWMSVHC 50 (2 October 2020)

1 HMA 50-20 CRB 48-19 THE STATE Versus PETER GWARI HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO 25 MAY, 29 JUNE, 14 SEPTEMBER, & 2 OCTOBER, 2020 Assessors 1. Mrs Chikukwa 2. Mr Mushuku Criminal Trial Mr E. Mbavarira, for the state Mr F. Chirairo, for the accused MAWADZE J: The charge the accused is facing is one of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. The charge is that on 1 February, 2019 at Musavengana Village near Nyika Growth Point in Bikita, Masvingo the accused unlawfully caused the death of Moreblessing Mudakuchekwa by stabbing her once on the right cheek and once on the back of her shoulder with an okapi knife. The 25 year old deceased was staying in a room at a village near Nyika Growth Point with one Charity Matake. They were both sex workers. The accused also stayed near Nyika growth point and was a banana vendor. At some point the accused was in love with Charity Matake. There is a dispute as to the status of their love affair at the material time. The accused alleges the love HMA 50-20 CRB 48-19 affair was still subsisting but Charity Matake said she had terminated the love affair 5 days before 1 February 2019 due to accused’s alleged violent conduct. The now deceased and Charity Matake rented a single room. There were other rooms at this house all in a single file which were rented out to sex workers who plied their trade at Nyika growth point. The now deceased stayed with her two young children in the same room. It is common cause that on 1 February 2019 the now deceased was drinking beer at Hightown nite club close to her residence at Nyika growth point and her two children were alone in her room. Charity Matake was also in the same nite club although not drinking beer. Charity Matake later left for their residence. As per the State this was around 0100 hrs. The State alleges that the accused followed Charity Matake and found her in her room. It is said the accused requested to go to his nearby residence with Charity Matake but Charity Matake refused. Charity Matake was attending to one of the now deceased’s younger children who was strapped on her back. According to the State a misunderstanding erupted between accused and Charity Matake. It is alleged the accused started to assault Charity Matake. A fellow sex worker Elizabeth Tsaurai who was sleeping in the adjacent room ran to Hightown night club to alert the now deceased who was in Hightown nite club of the commotion in the now deceased’s room as one of the now deceased’s children was crying. The now deceased rushed to her room to confront the accused, alerting other neighbours, and closing the door of her room. It is alleged that the accused broke a window pane of the room and jumped out of the room. The now deceased had taken possession of a pepper spray from the room and sprayed the accused in the face. Thereafter it is alleged that the now deceased took a piece of firewood intending to assault the accused who was now out of the room but was disarmed of the firewood by the accused who in turn hit the now deceased once in the back. It is said the now deceased tried to pepper spray the accused again in a bid to ward off the attack as she fled. The State case is that the accused chased after the now deceased and caught up with her. It is said the accused produced an okapi knife and stabbed the now deceased firstly on the cheek and at the back. The now deceased collapsed and died instantly. The accused is said to have fled from the scene but was arrested the following day and the okapi knife was recovered. HMA 50-20 CRB 48-19 In his defence outline the accused raised the defence of self-defence. He said while he was inside the now deceased’s room with Charity Matake the room was surrounded by about five people who threatened to kill him. The accused said as he jumped out through the window he was pepper sprayed by the now deceased and totally blinded. He was then hit in the back with a piece of firewood. The accused said in a bid to defend himself he pulled out his okapi knife and threatened to stab whoever came close to him. The accused said in the process he blindly swerved the knife as a means of threatening his attackers after which he left. A total of 4 Exhibits were produced by consent and they are; Exhibit 1 is a port mortem report compiled by Dr Zihove on 4 February 2019. Dr Zihove’s evidence was admitted in terms of s 314 of the Criminal Procedure and Evidence, Act [Cap 9:07]. As per Exhibit 1, Dr Zihove who examined the now deceased made the following observations and findings; i) ii) the now deceased had a laceration covering the right cheek extending to the neck she also had a stab wound 7 cm deep and 3 cm wide at the back of her shoulder on the right side iii) according to Dr Zihove the cause of the now deceased’s death was the stab wound at the back of the chest which caused haemothorax The cause of the now deceased’s death is not in dispute. In simple language she was fatally stabbed with a knife at the back of her right shoulder. Exhibit 2 is the accused’s okapi knife, silver in colour. The accused does not dispute his possession of this knife and its recovery from him upon his arrest. It is the same knife which fatally injured the now deceased. As per Exhibit 3 the certificate of weight this okapi knife is 24 cm long and weighs 0,200 kg. Lastly Exhibit 4 is the accused’s confirmed warned and cautioned statement in which the accused said; “I have understood the caution. I admit to the allegation of stabbing Moreblessing Mudakuchekwa once on the right cheek and once on the right shoulder using a knife which resulted in her death. I stabbed Moreblesing Mudakuchekwa because she had sprayed me on my face using an irritating chemical. That is all.” Circumstances surrounding the accused’s arrest are not in dispute. The evidence of Biggie Chikomo who was part of the villagers who apprehended the accused at accused’s mother’s HMA 50-20 CRB 48-19 residence the following day is not in issue and was also admitted in terms of s 314 of the Criminal Procedure and Evidence, Act [Cap 9:07]. The accused was apprehended near Nyika growth point. The okapi knife Exhibit 2 was found in his pocket by Biggie Chikomo who is part of the villagers who took the accused to the police. The State led evidence from Charity Matake, Elizabeth Tsaurai and Inspector Lorraine Zishiri. The accused testified and did not call any witnesses. The only issue in this matter is whether the accused acted in self-defence. This is so despite the accused’s belated and misplaced attempt to deny that he fatally stabbed the now deceased. The evidence of Inspector Lorraine Zishiri is common cause and irrelevant to the issue in dispute. It is largely formal evidence. Inspector Lorraine Zishiri attended the scene and examined the now deceased’s body before taking it for a post mortem examination. She observed the laceration on deceased’s cheek and a stab wound on the back. Inspector Lorraine Zishiri confirmed that the accused was apprehended by local villagers the following day. The knife Exhibit 2 recovered from the accused was handed over to her. She then recorded Exhibit 4 the accused’s confirmed warned and cautioned statement. Lastly, at the scene she established that when this tragic incident happened there were 6 people present contrary to the crowd the accused later alluded to. It is testimony of Charity Matake (Charity) and Elizabeth Tsaurai (Elizabeth) which is contested and relevant to how the now decease was fatally injured on the night in question. Their evidence would be juxtaposed with that of the accused. We turn to that evidence. Charity Matake (Charity) Charity testified that she had terminated her love affair with the accused five days before this incident as she realised that accused was of violent disposition. She denied ever cohabiting with the accused besides just visiting his residence during their love affair which she said only lasted fo