S v Mabeza (CRB 78 of 2015) [2015] ZWHHC 363 (1 April 2015)

1 HH 363-15 CRB 78/15 THE STATE versus VICTOR MABEZA HIGH COURT OF ZIMBABWE MUSAKWA J HARARE, 30, 31 March & 2 April 2015 ASSESSORS: 1. Mr Chakuvinga 2. Mr Chidyausiku Criminal Trial A Muziwi, for the state O Gasva, for the accused MUSAKWA J: The accused pleaded not guilty to a charge of murder in which it is alleged that on 9 April 2014 and at Hope Farm, Shamva the accused unlawfully and with intent to kill murdered Lilian Kabwe by assaulting her with a wooden hoe handle and fists all over the body thereby inflicting serious injuries from which the deceased died. It is common cause that the accused and the deceased were husband and wife. On the day in question the accused was upset by the fact that when he arrived home the deceased was quarrelling with their neighbour. The accused then assaulted the deceased. It is the nature of the assault that was perpetrated that is in issue. In his defence outline the accused claims that he assaulted the deceased with a switch. He did this in order to discipline the deceased as she had visited one Shadreck Chimupeni (Shadreck), a bachelor with whom she had an altercation which culminated in Shadreck clapping her. The day after the incident the deceased told the accused that she was not feeling well (presumably from the assault) and that she was suffering from gastroesophageal reflux. Thus she had dizziness and was vomiting and this led to her death. The accused gave the investigating officer the switch that he used. HH 363-15 CRB 78/15 The state led evidence from Sangurani Majora (Sangurani), Joyleen Kwainona (Joyleen), Mario Changa (Mario) and Samson Divirimwe. From Sangurani the court heard that the accused first assaulted the deceased with hands. When the witness interposed the deceased got the chance to run into his house. The accused tried to get in but the witness prevented him. The accused then went away. Upon his return the accused pleaded to see the deceased claimed he would not further assault her. That is when the witness let out the deceased. As they left he heard screams. He went to the scene and saw the deceased on the ground. When he sought to restrain the accused the latter kicked the deceased in the ribs with a safety shoe. He then stepped on the deceased’s head. The accused further picked a hoe handle and struck the deceased on the back of the thighs and on the buttocks. The accused continued to assault the deceased until he was disarmed by Shadreck. There were some aspects of this witness’ testimony that were not very clear. When Police attended the scene he was not present as he had gone away. Upon his return a statement was recorded. He also made indications but he claimed that he was not made to sign them as he was not present. Instead, he claimed that the indications were signed on his behalf by his wife. Joyleen was a work mate of the deceased. She and another visited the deceased when she failed to report for work. They found her lying down. She could not sit on her own and failed to eat when they fed her some porridge. She assisted in dressing the deceased. In the process she observed that the deceased had blackening of the skin on the right side of the chest and on the thighs. They secured a farm tractor to take her to hospital. However, whilst they were still within the farm she died. Upon taking her back to the house they placed the body inside after removing other things. During the process the accused and the deceased’s four year old son handed over exhibit 3, the hoe handle. The statement accompanying the handover of the hoe handle by the child is purely hearsay as that child did not testify. Mario confirmed accompanying Joyleen to visit the deceased. He was also present when the deceased died whilst on the way to hospital. He is the one who arrested the accused at a neighbouring farm. The accused was at a bar. When they returned the body of the deceased to her home their four year old child produced a hoe handle. He subsequently handed the hoe handle to the investigating officer. HH 363-15 CRB 78/15 There was some unsettling aspect of this witness’ testimony. During cross- examination he conceded that the accused had been handcuffed to the corpse overnight. He claimed this was done in order to deter him from fleeing. This witness is a member of the Constabulary. It was evident that he has but a very rudimentary grasp of the powers of law enforcement officers and the rights of suspects. Divirimwe testified on the investigations that they conducted. He described the injuries that he observed on the deceased. He was adamant that Sangurani and Constable Makusha personally signed the indications. The state produced the hoe handle, post-mortem report and the accused’s confirmed warned and cautioned statement. The post-mortem report noted the following injuries- “blood from the mouth and nostrils Haematoma on the limbs (thighs) and left lumbar area. This was said to ante mortem. Subgaleal haematoma (5cm) on the frontal area of the head Slight brain oedema Slight pulmonary oedema 800ml of blood in the abdominal cavity The liver was pale Laceration of spleen” The cause of death was given as haemoperitoneo, laceration of spleen and abdominal trauma as a result of assault. The confirmed warned and cautioned statement reads as follows- “Yes I have understood the caution. I deny the allegations of murdering Lilian Kabwe. Indeed I assaulted Lilian Kabwe with a switch six times on the back and twice on her legs but I had no intention to murder her. I wanted to discipline her since she had gone to a bachelor’s homestead who stays in the same compound where I stay. I was angered as to why she had gone to this bachelor’s homestead who then assaulted her. I assaulted Lilian Kabwe on a Tuesday and we spend (sic) the whole day together. The following day she complained that she was feeling dizzy. Lilian Kabwe then passed away on a Friday. Whilst she was alive she told me that she nauseating (sic). So I suspect that this illness has to do with Lilian Kabwe’s death. That is all I know.” In his testimony the accused told the court that when he arrived home he found the deceased seated by the doorstep. She was arguing with Shadreck. He ascertained that the deceased had gone to Shadreck’s house where she challenged him on what was in the sack he had brought from work. Having been rebuffed by Shadreck the deceased had retorted that he had AIDS. This is what prompted Shadreck to assault her. HH 363-15 CRB 78/15 As to why he was angered by this incident the accused explained that he suspected that the deceased and Shadreck were having an affair. The accused confronted Shadreck who remained defiant. This prompted him to go home from where he brought the hoe handle. When Shadreck emerged from his house armed with an iron bar the accused retreated and dropped the hoe handle. The accused then went to where the deceased stood and clapped her. He claimed he was angry that she had gone to Shadreck’s house. Although he claimed to have been drunk he conceded that he appreciated what he was doing. He confirmed being held by Sangurani as the deceased ran into Sangurani’s house. He also confirmed insisting that Sangurani let go of him. He justified this on his quest to resolve the matter with the deceased. Whilst on the way the deceased resisted going home and sat down. That is when he plucked a switch with which he assaulted the deceased. He claimed to have assaulted the deceased six times on the back and twice on the thighs. He admitted kicking the deceased before she ran into Sangurani’s house. On the following day Sangurani and his wife visited in order to check on the deceased. The deceased said she had not been injured although she complained of pains caused by the kick. Around midday the deceased complained of weakness and dizziness. Although she requested to be escorted to the toilet the accused did not assist. He thought she was not serious. The deceased went on her own and collapsed behind one Kingston’s ho