S v Hamadziripi (CRB 20 of 2017; HH 220 of 2017) [2017] ZWHHC 220 (29 March 2017)

1 HH 220-17 CRB No. 20/17 THE STATE versus MEDDAS HAMADZIRIPI HIGH COURT OF ZIMBABWE PHIRI J HARARE, 27 & 29 March 2017 ASSESSORS: 1. Mr Gweme 2. Mr Gonzo Criminal trial A Muzivi, for the State L Mazonde, for the defence PHIRI J: This is a case in which the accused was facing a charge of murder as defined in terms of s 47 of the Criminal Law (Codification and Reform Act [Chapter 9:23]. At the conclusion of this matter both the State and the defence counsel agreed that given the evidence led before this court a conviction of murder in terms of the aforesaid s 47 of “the Code” could not be sustained. However the State, in its submissions, sought to persuade this court to find the accused guilty of Culpable Homicide in terms of s 49 of the “Code”. The defence, on the other hand, argued that even on the alternative charge of Culpable Homicide, which the State sought to persuade this court to uphold, the State failed to prove that the accused negligently foresaw the possibility of death occurring. THE FACTS Briefly the facts of this matter which was greed to be common cause are as follows; The deceased and the accused were in an extra marital relationship. On 2nd December, 2013 accused and deceased met along Chipoteke River in Chaparapata Village, Chief Chinyerere, Pfungwe where they had sexual intercourse twice. HH 220-17 CRB No. 20/17 A misunderstanding arose when the accused asked for money to buy soap. This infuriated the deceased who then slapped the accused once on the right cheek with an open hand. Accused then seized the deceased’s testicles and pulled them. The accused gave a demonstration, to the court, as to how she “grabbed the deceased’s testicles”. In her evidence led before this court she stated that she ran away and left for her homestead. She alleges that she left the deceased alive. On the 5th of December, 2013 at around 0700hours Wiseborn Abinarah, a duly attested member of the Zimbabwe Republic Police received a report that deceased’s body had been discovered in a dried up stream at Jeke/Matambo Village, Chief Chinyerere, Pfungwe. He ferried the body of the deceased to Mutawata Hospital where it was certified dead. Robert Tawanda Gongora testified before this court. He was a Medical Officer based at Mutawata Hospital, Maramba. On the 5th May, 2016 he was requested by the Criminal Investigations Department, Mutawatawa, to do an opinion on the possibility the pulling and pressure on the testes/verolum causing death. He testified that he found no authoritative conclusive evidence to suggest that possibility. Infact he commented that this issue went beyond his competence, and, accordingly the death of the deceased could not be medically determined. Mr Muzivi, for the State submitted that the surrounding circumstances of this coupled with what the accused stated in her warned and cautioned statement, shows that the accused underplayed the role she played in pulling and jerking the deceased’s testicles. He however admitted that medical evidence was inconclusive. He however sought to advance the argument that the accused’s actions accelerated the death of the accused. He cited ss 52 and 53 of the Criminal Procedure and Evidence Act, [Chapter 9:07], coupled with various case authorities to justify that although death may have been unexpected it was reasonably foreseeable. Also see the cases of S v Chirau and Ors A. D 1978 at 180 and S v Sibanda SC 147/87. HH 220-17 CRB No. 20/17 Mr Mazonde on behalf of the accused argued that the concept of negligence requires proof of : (a) The foreseability of death and (b) An assessment as to what should have been done to safeguard death occurring. He cited the case of S v Majoriva HH 88/2003 in support of these submissions. He further submitted that there was, conjecture or speculation on the part of the State as to whether the pulling or jerking of the testes caused the death of the deceased and whether or not, in the circumstances death was foreseeable. He further submitted that this court has to make a finding whether or not the deceased was unconscious at the time the accused left him and or whether or not the deceased was alive at the time the accused left him. He further submitted that there was no corroborative evidence establishing negligence on the part of the accused. The court is in agreement with submissions made by the defence for and on behalf of the accused. The State has failed to disprove the allegations of the assault perpetrated on the accused by the deceased. The State has also failed to establish, beyond reasonable doubt, that the pulling and jerking of the deceased’s testes resulted in the death of the deceased. Medical evidence is totally inconclusive of this fact. Similarly it has not been established beyond reasonable doubt that the accused, in the circumstances was negligent or foresaw the possibility of death occurring as a result of her actions. This court has also placed reliance on the celebrated case of Director of Public Prosecutions v Pistorius Oscar Leonard Carl 96/2015 ZASCA, 204 where the court extensively dealt with principles establishing criminal liability in a case of murder and or culpable homicide. In the final analysis this court holds the view that there exists reasonable doubt as to whether the accused was negligent and or foresaw the possibility of death occurring as a result of her actions. Accordingly this court finds and holds that the accused should also be found not guilty and acquitted on the alternative charge of Culpable Homicide. In the final analysis the accused is acquitted and discharged on the charge of murder in terms of 47 of “the Code” and Culpable Homicide in terms of s 49 of the Code. HH 220-17 CRB No. 20/17 National Prosecuting Authority, State’s legal practitioners Harare Law Chambers, defence’s legal practitioners