S v Makoni (CRB 12 of 2020; HMT 21 of 2020) [2020] ZWMTHC 21 (20 February 2020)

1 HMT 21-20 CRB 12/20 STATE versus RAMSEY SADDAM CHIVETE MAKONI HIGH COURT OF ZIMBABWE MUZENDA J MUTARE, 18 and 20 February 2020 Criminal Trial ASSESORS: 1. Mr Chagonda 2. Dr Sana Mrs J Matsikidze, for the State C Maunga (Jr), for the Accused MUZENDA J: Accused is charged with Murder as defined in s 47 (1) (a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] it being alleged by the State that on 14 May 2019 and at Mapinge Village, Chief Mutema, Chipinge, accused unlawfully caused the death of Trust Muzvireki by striking him with wooden logs all over the body intending to kill Trust Muzvireki or realising that there was a real risk or possibility that his conduct might cause the death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which Trust Muzvireki died. The accused pleaded not guilty. In his defence outline produced in court, Annexure B, he stated that on 14 May 2019, he went to the deceased’s place of residence to follow up on his stolen property namely two mobile cell phones. When he arrived at the homestead where deceased was, he asked him to return the cell phones. A misunderstanding between them broke out. The deceased armed himself with a log and accused disarmed him and assaulted deceased using the same log leading to the deceased’s bleeding. Accused left the scene only to be informed of the passing on of the deceased later in the evening around 1900 hours. He states further that he did not intend to kill the now deceased and prays that he be acquitted of Murder and be convicted of culpable homicide in terms of s 49 of the Code. The State summary, Annexure A, states that the accused and the deceased resided in different villages but under Chief Mutema in Chipinge District of Manicaland. On a day unknown to the prosecutor the two interacted over some cell phones which belonged to the HMT 21-20 CRB 12/20 accused. On 14 May 2019 the accused approached the deceased who had paid a visit to his maternal aunt at Mapinge Village and demanded his cell phones. When these were not availed to him, the accused became irate and started assaulting the deceased all over the body using clenched hands. The deceased sought refuge in his aunt’s kitchen but the belligerent accused pursued him and grabbed a log from the fire place which he used to assault the deceased. The accused went outside the kitchen and picked yet another log and used it to further assault the deceased all over his body rendering deceased unconscious. The deceased sustained multiple injuries from which he died. The post mortem report No. 104574C, produced by consent of accused’s defence counsel and marked exh 3 shows that: (a) deceased’s clothes were soaked in blood (b) there was a large laceration on the left cheek connecting skin and oral cavity (c) large laceration behind the right ear exposing occipital scalp (d) the head had a depressed skull fracture (e) bilateral compound tibial/fibula fractures Dr Makumbe concluded that the cause of death was exsanguination. The following witnesses evidence was admitted by court in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07], Lucia Sithole, Trish Sithole, Timothy Mhlanga, Peter Chikukwa, Admire Kamangira, Tafadzwa Majachani and Dr Brian Makumbe. The State applied to have the evidence of Alec Mashawa and Lewis Mlambo to be expunged from the State summary since they were not located. In addition to the production of the post mortem report as exhibit, the State produced by consent the sketch plan exh 1, the accused’s warned and cautioned statement, exh 2. Log one was also produced and marked exh 4, log 2 was marked exh 5, the certificate of weight for the 2 logs was produced and marked exh 6. Lucia Sithole’s undisputed evidence is that deceased was her nephew. On 14 May 2019 she was at Maundwa Clinic to receive donations when accused confronted her and confronted her and accused her of accommodating a thief at her place. Accused indicated to her that he was going to deceased in connection with his (accused’s) phones. Before accused left, he threatened to collect her goats in lieu of the missing cell phones. When she later got home that afternoon she found the deceased lying dead in a pool of blood in the kitchen. She also observed multiple injuries on the deceased’s head, face and limbs. HMT 21-20 CRB 12/20 Trish Sithole is a juvenile who was at Lucia Sithole’s homestead on 14 May 2019 when accused and his colleagues arrived. Her evidence is similar to Nelly Mtetwa in all material respects. Trish Mhlanga is a member of the constabulary. He is the one who apprehended the accused at Nditore Business Centre. Peter Chikukwa works for Zimpost and based at Chipinge. On 6 September 2019 he weighed 2 logs and compiled a certificate of weight. Admire Kamangira is a police detail based at Chipinge Rural. On 14 May 2019 he attended the scene and upon arrival he inspected the body of the deceased and observed that it had multiple injuries including a deep cut on the cheek. Nelly Mtetwa then identified to him two logs that had been used to assault deceased by the accused, he recovered them. He witnessed the recording of accused’s warned and cautioned statement as well as the accused’s indications. Tafadzwa Majachani is sergeant in the Zimbabwe Republic Police stationed at Chipinge Rural. He is the investigating officer. He also observed the injuries on the deceased’s body, he recovered the 2 logs identified as the weapons used to kill the deceased. He recorded the indications and extra-curial statements of the accused. Dr B Makumbe is a medical practitioner based at Chipinge District Hospital. On 27 May 2019 he examined the remains of Trust Muzvireki and he compiled a post mortem report no. 104574C. The majority of witnesses’ evidence having been admitted by the defence, the State called Nelly Mtetwa to give oral evidence. She is 19 years of age and was deceased’s wife. On 14 May 2019 she was at her maternal Aunt Lucia Sithole’s homestead. Her aunt left for Maundwa Clinic. She later followed her. When she got to Maundwa Clinic, Lucia instructed her to go back to the homestead to go and call deceased to come to the clinic to assist her to ferry her luggage. On the way back to the homestead the witness saw accused and 2 other men following her. Accused spoke to her and chided her for marrying a thief. Accused told her that they were going to Lucia Sithole’s place to collect their cell phones from deceased. Accused and Alec arrived at Lucia’s homestead first. When the witness later on arrived, the accused and deceased were seated at the entrance of the kitchen and talking about the cell phones. She heard the conversation between the accused and the deceased. When the accused demanded delivery of the cell phones from deceased, the latter informed accused that the cell phones were with someone in town and deceased will only hand over the cell phones to accused if accused pays deceased the money he owed him. When deceased gave that response to the accused, the accused attacked deceased. Both stood up and a fight ensued, however it was the HMT 21-20 CRB 12/20 accused who attacked deceased first and deceased fought back in defence of self. None of the accused’s friends restrained the pugilists. When the accused saw that deceased was having advantage over him, he went into the kitchen, picked up a log, exh 4 and struck the deceased. The person who went into the kitchen first was the deceased followed by the accused. When accused struck the deceased with exh 4, he went out of the kitchen and fetched the second leaner log, exh 5 and used it to assault the deceased. At that juncture Alec and his colleague ran away from the scene after realising that deceased had collapsed. He then picked the first log and dropped the two of them outside the kitchen hut and went away. At the time accused went outside the kitchen to pick exh 5, deceased was lying on the kitchen floor lifel