S v Majasi & Anor (HB 102 of 2016; HC CRB 35 of 2014; HC CRB 36 of 2014) [2016] ZWBHC 102 (23 March 2016)

1 HB 102-16 CRB (HC) 35-36-14 THE STATE versus EDGAR MAJASI and PRECIOUS NKOMO HIGH COURT OF ZIMBABWE MOYO J BULAWAYO 22-23 MARCH 2016 Criminal Trial T. Hove for the state N. Mangena for the 1st accused T. Make for the 2nd accused MOYO J: The two accused persons face a charge of murder, it being alleged that on or about 29 August 2011 in a bush in Filabusi they murdered Alphios Mabhena an adult male. The state tendered the following in exhibits 1) The state summary which was marked Exhibit 1, the confirmed warned and cautioned statements for both accused persons which were marked Exhibit 4 and 5 respectively. 2) The affidavit of the police officer who identified the deceased’s body which was 3) 4) marked Exhibit 6. The post mortem report which was marked Exhibit 7 The drill bit, which is the weapon that was allegedly used in the murder which was marked Exhibit 8. 5) And the psychiatrists report by Dr Poskotchinova, in relation to accused and which was marked Exhibit 9. The first accused’s defence counsel tendered the first accused’s defence outline which was marked Exhibit 2. HB 102-16 CRB (HC) 35-36-14 The second accused’s defence counsel tendered the second accused’s defence outline which was marked Exhibit 3. The state called the evidence of the deceased’s wife Sakhelene Ndlovu, she confirmed her husband’s disappearance around the 21 of August 2011 while doing business in Filabusi, her efforts to locate him through the assistance of the police. She also positively identified remains that were recovered by the police in a disused mine in Filabusi as those of her husband she also positively identified the motor vehicle that was recovered from the accused persons as that of her late husband. These were the material respects of this witness’s evidence. Nomusa Zimba who stated that she had been the deceased’s girlfriend, confirmed that the deceased had been in Filabusi at the material time and that he was last seen in the company of the two accused persons and other people leaving Matshayimpinzi. She also confirmed that the accused was driving a Toyota motor vehicle at that material time. Those were the material respects of this witness evidence. Lazarus Gwerena told the court that he marked for the deceased operating a compressor at the mine. He told the court that he last saw the deceased in the company of the two accused persons as they left the mine to go and buy some drill bits. He said that it must have been in September 2011. Pressed further by the first accused’s defence counsel as to whether he was certain that indeed it was in September or August 2011. He then told the court that due to lapse of time he cannot insist that it was in September but it was around that time of the year. This witness gave his evidence well and nothing much turned on his cross examination. We accordingly believe this witness as we find him to be credible. The first accused’s defence counsel sought to make a suggestion in his closing submissions that this witness deposed from his testimony as contained in the state summary in that in the state summary it was stated that the trio left to by explosives but in court the witness was now saying they had left to buy drill bits. This submission in my view came a little too late as the witness was never questioned on this disparity during cross examination. As it is that aspect of his evidence remains unquerried and the first accused person’s defence counsel had a duty to question the witness so that his testimony would be tested in that regard. To let the witness go away and submit that he was lying does not assist the court at all. Refer to HB 102-16 CRB (HC) 35-36-14 In any event, the Supreme Court has held that witnesses are not responsible for the information contained in the state summary as it is not prepared by then neither is it prepared on their specific instructions like the accused’s defence outline. Refer to the case of Ngqabutho Ngwenya told the court that he assisted the police in recurring the remains of the deceased from a disused mine pit. He also confirmed he recovered a drill bits that could be exhibit. He said the deceased’s remains were intact same for the head as there was no hair. Evans Mangisi told the court that he bought the motor vehicle, a Toyota 2,7 petrol from the two accused persons in Gokwe, who told him that it was for their brother in Republic of South Africa. He confirmed they had brought it for accident damage repairs and he subsequently … interested in it. He said he gave the accused persons $40-00 to go and collect the motor vehicle papers in Harare as the first accused had told him the papers are in Harare. He also told the court that the motor vehicle was white and the first accused had asked him to paint it black but he refused as that was illegal. He said he later gave the accused persons $180-00 to go and collect their brother so that they could finalise the deal. Nothing much arose during the cross examination of this witness. He gave his evidence well and we find that he told the court the truth. The investigating officer Gugulethu Sibanda testified on the matter he followed up on the case, landing him on Lazarus Gwerena who told him that the deceased had last been seen in the company of the two accused persons. He then went to look for accused two found him in his home and he admitted to the mine and led the police details to the disused mine pit where the deceased’s remains where recovered. He also implicated accused one. The investigating officer followed upon this lead to Gokwe and recovered the motor vehicle from the deceased’s Evans Mangena who led him to the first accused persons. The accused’s wife positively identified both the deceased’s body the motor vehicle. Nothing much turned on this witness testimony. The evidence of Dennias Ndlovu, Walter Pfava, Constable Marufu, Sibanda Election, Debra Madewa Maniko and Dr S Pesanai was admitted into the court record by consent in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The first accused person’s defence outline is to the effect that he bought the said motor vehicle from deceased in HB 102-16 CRB (HC) 35-36-14 300g of gold. Deceased had a business partner called Khumbulani Tshuma and they sold the motor vehicle to him while together. He paid a deposit of 100grams of gold and later paid 200grams to Khumbulani Tshuma when Khumbulani Tshuma demanded it. At that time the deceased was said to have travelled to the Republic of South Africa. In his defence outline he said the agreement of sale was verbal. He denied ever selling the said motor vehicle to Evans Mangisi. In his evidence in Chief the first accused person told the court that he entered into a written agreement of sale with the deceased when they sold each other the motor vehicle. He admitted to being given $40-00 by Evans Mangisi to go and collect the motor vehicle papers from Harare although he said he just wanted Mangisi to give him money when he said he was going to collect the motor vehicle papers from Harare, since he had all the papers at his house in Gokwe. He told the court that he never went back to Filabusi and that he never heard of deceased or his death. He also told the court that later, he was give $40-00 by Evans Mangisi and he gave the second accused person who had insisted sometime in mid-October the $40-00 as money for busfare. There is an issue with the first accused’s version of events where he told the court that second accused came to Gokwe at the time that he (first accused) took the motor vehicle for repairs to Evans Mangisi, but at the same time he says the second accused come mid- October and yet he also says they took the motor vehicle to Mangisi in September. It is not clear as to what exactly transpired here. The bottom line having is that the first accused person confirms that the second accused person did come to Gokwe at the material time. I will later show the significance of this when I assess the e