S v Labuschagne and Anor (HB 49 of 2003) [2003] ZWBHC 49 (2 April 2003)

HB 41-2003 CRB 48-49/02 THE STATE Versus RUSSELL WAYNE LABUSCHAGNE And WALTER RYAN CLAASEN HIGH COURT OF ZIMBABWE KAMOCHA J BULAWAYO, 9-12, 23 and 25 July, 20 and 22 August, 1-3 October 2002, and 3 April 2003 Mr H. S. M. Ushewokunze III, for the State Mr J. James, for the defendant Criminal Trial KAMOCHA J: The two accused who are aged 40 years and 25 years respectively pleaded not guilty to a charge of murder. It being alleged that on 28 November 2000 at Sinamwenda River, Binga both did wrongfully, unlawfully and intentionally kill Wilson Mudimba a male adult in his life-time therebeing. The State and defence outlines were read and produced as exhibit one and two respectively. The confirmed extra curial statement by accused one was produced as exhibit 3 and that of the second accused as exhibit 4. Exhibit 5(a) was a document containing indications made by both accused on 9 January 2001 and 5(b) were photographs. Exhibit 6 were indications made by Siansole Muchimba. The map of the Sinamwenda area was Exhibit 7. The State called six witnesses to give viva voce evidence. The first witness was Siansole Muchimba “Muchimba” who is a resident of Sinamwenda Village in Binga. He is a fisherman at Chibiya Fishing Camp and has been in that business for at least 8 years. He knows the first accused as a fishing camp operator in that area and had been in the area for about 3 months. The second accused is known to him in connection with this case only. He knew Mr Wilson. HB 41-2003 CRB 48-49/02 Mudimba – “Mudimba” who was a local man in the Sinamwenda area of Binga. Mudimba in fact used to go out fishing with the witness and had been in the fishing business for at least 4 years. Both used to earn their living by fishing on the upper limits of Lake Kariba and on the tributaries of the Zambezi River. On 28 November 2000 the witness and his fishing partner Mr Wilson Mudimba who, for ease of reference, shall be referred to as the “deceased” set out in a metal canoe to go fishing along one of the Zambezi River’s tributaries known as the Sinamwenda River at about 5 pm. While they were on the river they cast their nets. Shortly after they had set their nets and were about 30 to 40 metres from the river bank the two accused approached them from the direction of their fishing camp in a speed boat driven by the first accused. Before they got to where the witness and his colleague were the first accused called out to them asking them what they were doing and if they did not know that what they were doing was prohibited. Thereafter the first accused increased the speed of his speedboat heading for the canoe in which the witness was with the deceased. He went for the canoe at right angle. He hit it on one of the sides at that angle. That was the side on which the deceased was. The canoe capsized. The deceased clung to the front section of the speedboat after the impact but the witness was thrown into the water. He, however, swam towards the speedboat and also clung onto it on one side. Their canoe started to float away. All the four people were now at the speedboat where a struggle ensued. Both accused went for the witness and took hold of him each on either side and pulled him into the speedboat. He put up a struggle resulting in the three of them falling into the water. The two accused let go of the witness and returned into their boat. After returning to their boat both accused went to the deceased who still clung to their boat. The oar that he was using to paddle the canoe fell into the speedboat when he clung to it. The second accused took hold of the deceased’s hand while accused one struck him with the oar. The HB 41-2003 CRB 48-49/02 beating continued as the boat floated. One of the blows with the oar missed the deceased and landed on a section of the boat and the oar broke into two pieces. As the assault went on, their boat kept on floating towards a dry tree stump protruding in the water. When the oar broke accused two let go of the deceased who then went and clung to the tree stump. After the deceased had clung to the dry tree stump, the two accused went towards the witness who was at that time swimming, using back stroke, towards the river bank which was about 30 to 40 metres. On seeing that they were going for him, the witness then went under water and continued swimming to the shore. He emerged as he got to shallow water. He then started wading through the water when it was between waist and chest level and finally got to the shore. As he emerged from the water he noticed the accused still in their boat, going back to the deceased who still clung to the tree stump. When the accused got to where the deceased was they struck him with the boat as he still clung to the tree stump. Deceased fell into the water. The deceased then allegedly called out to the witness saying: “Friend, I am dying.” The witness allegedly said to him: “Try to swim towards the bank of the river.” The deceased however failed to swim and started sinking into the water. As he was sinking the accused drove towards him and the witness got the impression that they wanted to get him out of the water but he had unfortunately disappeared into the water. The witness then shouted at the accused persons saying he was going to report them for killing his friend. On hearing what the witness said the accused drove the speedboat towards him but he ran into the bush and went round to the other side of the river. When he was on the other side of the river he saw their boat parked on the opposite side but the accused were not there. He then ran to make a report. HB 41-2003 CRB 48-49/02 The first person he saw was the deceased’s brother-in-law called Samuel Mwinde. He told Mwinde what had allegedly happened. The two decided to go to a certain white man known as Michael Shaw and ask him to radio the police at Binga. On their way they met a police reservist known as Makore to whom the witness also made a report about what the accused persons had done to his colleague. Makore then joined them to go and report to Michael Shaw. On arrival at Michael Shaw’s house the witness made a report to Michael Shaw about the incident at the river. The witness requested Shaw to radio the police so that they could come while there was still a possibility of finding the deceased’s body in the water. But Shaw said he would not do that before he spoke to the first accused and suggested that the witness should return the next morning. The witness, Mwinde and Makore then went away. The next morning the three went back to Shaw and requested him to phone the police. Shaw is alleged to have been reluctant to do so and said he did not want to be a witness. The three then decided to go to the river and to try and locate the body. On their way to the river they had to go past the first accused’s camp as the first accused saw them walk past he then said he did not want to see the witness there but the three continued on their way. When they got to the river they took a canoe and went to the scene. They examined the tree stump and allegedly noticed blood on it. From there they went to a place called Chibuyu to phone the police at Siabuwa. The witness told the court that he had been in the fishing camps area for a period of not less than 14 years. He knew the area very well. He said Sinamwenda River is crocodile infested and has a lot of hippos, he himself was an experienced swimmer who had been swimming from the time he was a small boy. He, however, could not say how good a swimmer the deceased was, but he held the view that the deceased could not swim to safety that day because of the assault allegedly perpetrated on him. He emphasised it was due to the assault that the deceased HB 41-2003 CRB 48-49/02 disappeared into the water and he had never seen him again since that time. The witness was subjected to skilful and thorough cross-examination for two days. Under cross-examination of the witness it was established that his level of educati