S v Malundu (CRB 68 of 2011) [2015] ZWHHC 68 (22 January 2015)

1 HH 68-15 CRB 68/11 THE STATE versus PHIBION MALUNDU HIGH COURT OF ZIMBABWE KUDYA J HARARE, 6 &7 June 2011, 4 June & 14 July 2014, 14, 16 & 23 January 2015 ASSESSORS: 1. Mr P. Chidyausiku 2. Mr S. Shenje Criminal Trial B. Murevanhema, for the State Mrs W. Kaneta, for the accused person KUDYA J: The accused person was charged with the murder of Nyamitumba Saopa who died at Ealing Farm Beatrice on 13 October 2008. He was alleged to have assaulted the deceased with a rubber baton stick resulting in hypovolemic shock, laceration on the spleen and pulmonary haemorrhage from which the deceased died. He denied the charge. The State called the evidence of two witnesses and produced two documentary exhibits. The two witnesses were Tonderai Kazembera who was employed as a general hand in charge of the tobacco nursery and doubled as a blacksmith at the farm in question and Sergeant Steyn Munovapei, the investigating officer. The two documentary exhibits were the confirmed warned and cautioned statement of the accused, exh 1 and the post mortem report exhibit 2. The trial was delayed by the absence of the forensic pathologist Dr Gonzalez who, at the conclusion of his contract, returned to Cuba, his home country before he could testify. Attempts to call him from his country to testify that were made between 7 June 2011 and 4 June 2014 proved futile. The matter was finalised without the benefit of his oral testimony. The accused also testified and called the evidence of two witnesses. These were John Gostino, his 29 year old brother-in-law and Chimbilani Njinga a fellow security guard at the farm. HH 68-15 CRB 68/11 It was common cause that the assaults which led to the death of the deceased took place at the farm workshop interchangeably referred to by the witnesses on both sides of the divide as garage. A basic description of the layout of the workshop was given by Njinga. It is fenced off from the rest of the farm. It is accessed through a gate separate from the main farm gate. It consists of sections housing farm equipment and tractors and an office. John Gostino stated that the area outside the workshop was lit by a tower light. His version was contrary to the uncontroverted testimony of Kazembera that a fluorescent lamp lit inside the workshop. The accused was the head of security at Ealing farm. Aleck Mlambo who was and remains a fugitive from justice from the time the trial commenced, worked under him. The deceased was an ordinary farm worker at the farm in question. Some irrigation pipes were stolen from the farm. Owen Masocha, an employee at the farm was arrested for the theft by farm guards. Before his arrest he had taken some of the pipes to Tonderai Kazembera to forge pots for him. Kazembera declined to do so and Masocha left with the pipes. The deceased was also apprehended on suspicion of the theft of the pipes. He was taken from the fields to the farm workshop for questioning at around 10 pm on 12 October 2008. He was detained and beaten at the workshop until he died at around 4 am on 13 October 2008. The evidence of Tonderai was that the deceased was interchangeably beaten by both the accused and Aleck Mlambo indiscriminately in the workshop veranda and outside that veranda in the dark. Tonderai stated that he was summoned from his house to the farm workshop by the accused at 10 pm on 12 October 2008 for questioning. On arrival, he found Isaac Gunya, Owen Masocha, Murambiwa, Chatonga, Ernest Mangoti and Aleck in the company of the deceased and the accused. Owen was handcuffed behind his back to a pole. The deceased was seated in the veranda. He was weak and in tears from which he concluded that he must have been assaulted before his arrival. Tonderai identified the pipes in the workshop as the ones Owen Masocha had earlier brought to him to forge pots. His story must have been similar to the one Owen had given in his absence for he was absolved of any wrongdoing by the accused. He was however detained at the workshop until 5am when he left for the tobacco nursery. At the workshop, the accused and Aleck took turns to indiscriminately hit the deceased on his buttocks and back with a rubber baton stick about 50cm long. The accused dragged the deceased from the veranda into a dark spot from where the howls and cries of innocence of the deceased were ignored as accused belaboured him in a bid to extract a confession from him. Aleck went after them in a bid to restrain the accused from assaulting HH 68-15 CRB 68/11 the deceased. Later the accused and Aleck carried the deceased, who was now unable to walk on his own, back to the veranda. The witness was released from the workshop by the accused at 5am. He proceeded to the tobacco nursery from where he received the news of the demise of the deceased. He failed to identify the baton stick in court with the assault weapon used on the deceased. He was cross examined by accused’s counsel. He maintained his testimony that he found deceased seated in the veranda when he reached the workshop. He disputed the contents of his statement to the police of 16 December 2008 to the effect that the deceased was brought to the veranda when the witness was already at the workshop. He disputed the contents in his statement that he left the workshop at the time the deceased was crying out in the dark. He again disputed the contents of his statement that Gunya told him that deceased had died at 4am. He maintained that Aleck followed the accused outside the workshop in order to restrain him from assaulting the deceased. He was not present when the deceased allegedly attempted to escape from the workshop and was for his efforts assaulted under his feet by Aleck and all over his body by Jonathan Gijima. He denied that some of the pipes were recovered from his house. They were recovered from the bush were Owen had hidden them. He maintained contrary to the accused’s version that he was present at the workshop in response to the accused’s summons. We found the witness a credible witness. In our view his denials of some of the contents of the statement to the police of 16 December 2008 did not dent his credibility. His evidence in chief and his responses under cross examination clearly demonstrated that he went to the workshop at 10 pm after the deceased’s arrest. According to Njinga, the deceased was taken to the workshop around 7pm by Aleck Mlambo, Jonathan Gijima and Isaac Gunya under a barrage of blows. That Tonderai was summoned to the workshop after 10pm accords with the probabilities. In his testimony, the accused stated that he was called from his house by Isaac Gunya and went to the workshop at 10pm. It was while he was present that he alleged that Owen Masocha confessed leaving some pipes with Tonderai, which he allegedly recovered from Tonderai’s home. Any head of security worth his salt in the shoes of the accused would naturally wish to question Tonderai as a possible suspect. Secondly, whether he left during the deceased’s cries in the dark or not did not detract from the assaults he saw. He did not attribute any further assaults to the deceased after carrying the deceased back into the workshop from the dark. Lastly, that he was told the deceased had died at 4am when he was already at the nursery did not dent his evidence that he left the deceased lying on the HH 68-15 CRB 68/11 ground at around 5 am. In our view the discrepancies are immaterial and do not affect the probative value of his overall testimony. Sergeant Steyn Munovapei, the investigating officer was assigned the matter at 10am on 13 October 2008. Constable Advance Sakonda from the Marirangwe police base brought accused and Aleck to him. He had a 50cm long black baton stick. He warned and cautioned the two suspects in the presence of Constable Chipfurutse and recorded their respective warned and cautioned statements in the crime investigations office. He further warned and cautioned the two suspects and proceeded with Sakonda to the scene of crime fo