S v Hunda (643 of 2023) [2023] ZWHHC 483 (28 November 2023)

1 HH 643-23 CRB No. 30/22 THE STATE versus CLAYTON MABASA HUNDA HIGH COURT OF ZIMBABWE MUNGWARI J HARARE, 26 May 2022, 15 & 28 November 2023 Criminal Trial Assessors: Mr Mhandu Mrs Chitsiga P Gumbo, for the State O Marwa, for the accused MUNGWARI J: Clayton Mabasa Hunda, (hereinafter called “the accused”) appeared before us charged with the crime of murder in contravention of s 47(1), of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations against him are that on 8 November 2021 and at 34 Rolf Avenue, Harare he unlawfully and with the intent to kill or realizing that there was a real risk or possibility that such conduct may cause death but continuing to engage in such conduct despite the risk assaulted Janet Pongolani (hereinafter “the deceased”) several times all over the body with open hands and fists. The deceased who was his wife sustained fatal injuries from which she died instantly. The background to the fatality as alleged by the state is that on the evening of 8 November 2021, the couple had a disagreement which degenerated into a physical attack on the deceased by the accused. He used his hands and fists to repeatedly strike her all over her body. The situation worsened when the accused dragged the deceased onto the bedroom floor and in the process forcefully pulled out her braids. As a result of the assault, the deceased lost consciousness. Realizing the severity of the deceased’s condition the accused panicked and informed his brother Vincent Vusumuzi Gumede. A report was made to the police and an ambulance was called for assistance. Upon arrival, the ambulance paramedics noted that the deceased was lifeless. The accused was subsequently apprehended by law enforcement agents HH 643-23 CRB No. 30/22 whilst the body of the deceased was conveyed to Parirenyatwa Hospital for an autopsy. The postmortem report concluded that the cause of death was diffuse brain injury, with evidence of blunt force head injury consistent with positional asphyxia. The accused pleaded not guilty to the charge and in his defense outline stated that on the fateful day he and the deceased were happily drinking whisky at their house from about 6 pm in the evening. By around 9 pm, both of them were intoxicated. Despite being the only people in the house, they had a disagreement which escalated as already described earlier. The accused went on to state that during the fight they both fell to the ground where the deceased accidentally hit her head against the furniture in the house. As a result, she remained motionless on the floor. Initially the accused attributed her immobility to the effects of alcohol. However, upon realizing the severity of the fall, he attempted to administer first aid while calling out her name but she did not respond. He then sought assistance and only became aware that she had died upon the arrival of the paramedics. He denied assaulting the deceased all over her body with fists and open hands with intent to cause her death as alleged or at all. He also stated that he did not realize any real possibility that she could die. In summary, the accused claims that the deceased’s death was the result of an accidental fall during a physical altercation. It was not from a deliberate assault. He prayed that the court finds him not guilty. State case Prosecution opened its case by applying that the evidence of Tanda Chisi and Portia Marava be formally admitted into evidence in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. With the consent of the defense their evidence was duly admitted. It became undisputed that at around 2230 hours Tanda Chisi who owns the accused and the deceased’s rented accommodation at 34 Rolf valley was awakened by the news that the accused had during a misunderstanding, assaulted the deceased into unconsciousness. He rushed over to the cottage where the couple resided where futile efforts to revive the deceased were made. Vusumuzi Vincent Gumede brought the police and an ambulance to the house. The ambulance paramedics advised that the deceased was already dead. Investigations were carried out by the police leading to the arrest of the accused. As can be seen, the evidence of the two witnesses did not add anything new to the state case. All that they said was already common cause. The prosecutor led oral evidence from five witnesses in Knowledge Mashereni, Montrina Mapetese, Vusimuzi Gumede, Philomina Gumede, and Doctor Tsungai Victor HH 643-23 CRB No. 30/22 Javangwe. Below we summarise the evidence of the witnesses in so far as it relates to the issues which arise for determination. Knowledge Mashereni (Knowledge) He is a gardener and resides at 34 Rolf valley. He confirmed that he knew the accused, who was a tenant at his place of employment. His evidence was that the couple had been residing at the house for nearly a year. His relationship with both husband and wife was cordial. The staff quarters where he resided was located a mere five metres from their cottage. His further testimony was that on the fateful day he was engaged in some construction work when he saw the accused and the deceased approach him. They appeared to be in a jovial mood. Eventually they retired to their own house. At around 9 pm the witness was awakened by a knock on his door. When he stepped out, he saw the accused who informed him that he had a disagreement with his wife, resulting in him assaulting her and causing her to faint. The witness probed further and the accused revealed that he had poured water on the deceased in an attempt to revive her and had called his brother Vusumuzi Vincent Gumede for assistance. The witness recounted that the accused informed him that he had reassured the landlady that everything was alright, when she came to his door to enquire. Alarmed by the obvious misrepresentation to the landlady, Knowledge refused to accompany the accused to his quarters to assist him and returned into his quarters. The accused returned shortly thereafter to ask him once more to assist but the witness declined reiterating the need to involve the landlady as well as the police. The witness remained in his room until the following day at approximately 5.30 am when he noticed the arrival of police officers, who informed him of the deceased’s passing. During cross-examination the witness revealed that the accused approached him in a state of panic. His fear was palpable. He also noted from the accused’s speech that he was moderately drunk. Despite the close proximity of their dwellings, the witness stated that he did not hear any sounds of a struggle or screams emanating from the accused’s residence. He also did not hear the landlady attending to the accused’s cottage. The witness clarified his inability to hear any sounds by stating that it was dependant on the location of the room where the noise would originate from. In addition to the misrepresentation to the landlady regarding the situation at the accused’s residence the witness was clear to the court that he was hesitant to get involved in the accused’s issues particularly after learning that the deceased was unconscious. HH 643-23 CRB No. 30/22 The witness remained steadfast in his testimony. The court was impressed by his composure on the witness stand. He remained unshaken during cross examination and consistently stated that he did not hear any sounds of a scuffle from within the accused’s house but that the accused had informed him that he had assaulted the deceased resulting in her fainting. The witness had a good relationship with the couple and demonstrated that he had no reason to falsify his testimony. He struck us as a truthful witness worthy of belief. Montrina Mapetese (Montrina) She is married to Tanda Chisi, the accused’s landlord. By extension she is the accused’s landlady. She resided with the couple at 34 Rolf valley. Montrina lived in the main residence, while the accused occupied a cottage located less than ten meter