S v Mandizvidza (CRB 59 of 2015) [2015] ZWHHC 682 (6 August 2015)

1 HH 682-15 CRB 59/15 THE STATE versus GODKNOWS MANDIZVIDZA HIGH COURT OF ZIMBABWE MAWADZE J HARARE, 9, 10, 11 March and 7 August 2015 Assessors: 1. Mr Chakuvinga 2. Mr Chidyausiku Criminal Trial A Manhamo, for the State Advocate R Bwanali, for the accused MAWADZE J: The accused is facing a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The charge is that on a date unknown to the prosecutor but in November 2007 at Mafura Village, Chief Magonde, the accused unlawfully caused the death of Spiwe Mafura by striking her with a wooden log on the head causing injuries from which she died. The now deceased who was 53 years old and the accused were neighbours in the same village. The now deceased was staying with a 2 year old child at her homestead and the accused would at times help her with some chores of fetching firewood or looking after her cattle and donkeys. The background facts of this matter are as follows; On 11 November 2007 a fellow villager Tamali Hwangwa passed through the now deceased’s homestead and saw flies coming out of the now deceased’s bedroom. She also felt an unpleasant smell emanating from the same bedroom. As a result she informed fellow villagers including the village head. Fellow villagers discovered the now deceased’s decomposing body in her bedroom and made a report to the police. The accused was initially arrested by the police but they released him for lack of evidence. The accused was later HH 682-15 CRB 59/15 linked to the offence after the now deceased’s property was later found at one Erick Maseva’s house. Erick Maseva indicated that it is the accused who had brought this property to his house. The accused denied the charge and as per Annexure ‘B’ stated that he too learnt of the now deceased’s death from fellow villagers. The accused states that he was never found at the now deceased’s homestead. Apparently the accused did not in his defence outline address the question of how he is linked to this case with the property found at Erick Maseva’s homestead. In support of its case the State called the following witnesses; Tamali Hwangwa, Gilbert Karonga Banda, Enock Mafura, Erick Maseva, Esna Hove and Detective Sergeant Collen Zimbudzi. The accused gave evidence and did not call any witnesses. The following exhibits were produced by consent, and we shall briefly comment on each exhibit. Exh 1: Is a sack which the State alleges contained the grocery belonging to the now deceased. It was found at Erick Maseva’s house and Erick Maseva alleged that it was brought by the accused. Exhibit 1 is inscribed with the following information. “Aleck Mvura. E. Officer passport office, 2nd floor, 011 443 125.” It has not been disputed that that Aleck Mamvura is the now deceased’s brother who worked in Chinhoyi. It was identified by the now deceased’s son Enock Mafura as the now deceased’s property and was found in Erick Maseva’s house. Exh 2: Is a pink and black blanket. It has not been disputed that it belongs to the now deceased. Again it was identified by Enock Mafura in Erick Maseva’s house. Erick Maseva alleges it was brought by the accused. Exhibit 1 and exh 2 is part of the property the State alleges links the accused to this offence. HH 682-15 CRB 59/15 Exh 3: Is the post mortem report done by the doctor on 15 November 2007. The doctor noted the following: i) that the now deceased’s body was decomposing and her clothes were covered in blood ii) iii) iv) the now deceased had multiple bruises on the lower limbs the now deceased had a depressed skull fracture on the right front temporal bone the now deceased had a 2cm cut on the anterior neck with section on the trachea possibly caused by a sharp object v) that the cause of the now deceased was the depressed skull fracture. The cause of the now deceased’s death is not in issue. It is our finding therefore that the now deceased did not die due to natural causes but was assaulted causing the skull fracture. We now proceed to summarise the material aspects of the testimony of each witness and comment on their demeanour. Tamali Hwangwa The evidence of Tamali Hwangwa (Tamali) was admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. It is not disputed. Tamali stayed in the same village with the now deceased and the accused. She is the one who noticed on 10 November 2007 that something was amiss at the now deceased’s home when she passed through and saw flies coming out of the now deceased’s bedroom and felt a bad smell from the same bedroom. She advised Esna Hove a fellow villager and they both advised the village head Gwenya Maganga. The three of them proceeded to now deceased’s homestead and discovered the now deceased’s decomposing body which culminated in the report to the police. We now turn to state witnesses who gave viva voce evidence. Esna Hove Esna Hove (Esna) knew both the accused and the now deceased as fellow villagers. Her evidence was that a day before the discovery of the now deceased’s body she was at her fields when a 2 year old child who stayed with now deceased approached her towards sunset alone. She said the child said she had been brought to her fields by the accused and that the accused had disappeared. She did not see the accused. Esna inquired from the child HH 682-15 CRB 59/15 where the now deceased was and the child said she had gone to look for cattle. The now deceased did not come to collect the child and she spent the night with the child. The next day, Tamali then approached her explaining that something was amiss at the now deceased’s homestead which culminated in the discovery of the now deceased’s decomposing body. While the defence initially denied that it is accused who had brought the 2 year old to Esna the defence did not dispute this in cross-examination. In fact the accused admitted in his evidence that he is the one who took the child to Esna but did not hand over the child to Esna. No other useful questions were put to Esna and her evidence is unchallenged. We therefore accept it in toto. Enock Mafura Enock Mafura is the now deceased’s son (Enock). He knew the accused as his neighbour. At the material time in November 2007 Enock was staying in Harare. He received the news of the death of his mother on 12 November 2007 and proceeded home to bury her after the post mortem report had been done. He had no clue then as who had killed his mother. Enock testified that a week after burial of his mother he was approached by a fellow villager one Gilbert Karonga Banda who advised him of some property which had been left at Erick Maseva’s house allegedly by the accused at Runene Primary School where Erick Maseva was a teacher. Gilbert Karonga Banda had seen the property and was referred to Enock’s homestead. Enock said he proceeded to Runene primary School in the company of Gilbert Karonga Banda and one Chapfura a member of the neighbourhood watch committee (NWC) to see the property. At Erick Maseva’s house at Runene Primary School he was shown the property which included exh 1, exh 2, and groceries including 2kg sugar, 2 litres cooking oil, some 2 chickens and two buckets of shelled maize. He was able to identify the sack exh 1 and the blanket exh 2 as the property belonging to his mother the now deceased. He was able to identify the sack exh 1 inscribed with the names of his uncle (the now deceased’s brother Aleck Mvura) and used to see the blanket exh 2 with the now deceased. The groceries were contained in the sack. They took the property home and decided to approach the accused who had allegedly left the property with Erick Maseva. HH 682-15 CRB 59/15 Enock said when they approached the accused at his homestead and advised accused’s relatives about their mission, accused asked to wear his shoes and bid farewell to his grandmother but instead he fled into darkness. Under cross-examination Enock denied that they tried to assault the accused and caused him to flee. En