S v Manzonza (CRB HC 6 of 2016; HMA 2 of 2021) [2016] ZWMSVHC 2 (10 October 2016)

1 HMA 02/16 CRB HC 6/16 THE STATE versus COLLET BAIRA MANZONZA HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO, 28th and 29th September and 10th October, 2016 Assesors Mr S. Mutomba Mr E. Gweru Criminal Trial Ms S. Busvumani, for the state Mr D. Hwacha, for the accused MAWADZE J: The accused if 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 the 10 January 2014 at Number 20583 Nzungu Street, Rujeko ‘C’, Masvingo the accused unlawfully stabbed Antony Manzonza with a knife once on the upper right thigh intending to kill him or realising that there was a real risk or possibility that his conduct might cause death and continued to engaged in that conduct despite the risk or possibility. At the material time the then 19-year-old accused was residing with the 36-year-old now deceased who was his uncle (young brother to accused’s father) at No. 20583 Nzungu Street in Rujeko ‘C’, Masvingo together with the accused’s sibling Innocent Manzonza then HMA 02/16 CRB HC 6/16 aged 17 years, accused cousin Piniel Manzonza then aged 18 years and their aunt (sister to their father) Esnath Manzonza who was the eldest. The house in question belonged to accused’s parents. The accused’s father is said to have been in Beit Bridge prison at the material time and accused’s mother was at the family shop in Zvishavane. The deceased was employed by the accused’s parents as a commuter omnibus driver plying the Masvingo to Gweru route. The deceased had a wife and child who were not staying at this house. The facts which are common cause in this matter are as follows; On 10 January 2014 the accused arrived home and found his young brother Innocent Manzonza (Innocent) alone at home watching television at about 20.00 hrs. Accused asked Innocent to accompany him to ZAOGA church which they attended but Innocent refused. The State alleges that this was because the accused was drunk but Innocent said he refused because he had spent the whole day at church. This did not go down well with the accused who believed Innocent was prioritizing watching television. The accused proceeded to disconnect the DVD player and took the AV cables and left the house. The deceased later arrived from work and asked Innocent to accompany him to go and park the commuter omnibus at a local car park and Innocent agreed. When the accused arrived home thereafter he realised Innocent had agreed to accompany the deceased. The accused did not take kindly to this. Meanwhile Innocent had advised the deceased about his altercation with the accused earlier on and that accused had removed AV cables and took them away. The deceased then ordered the accused to connect the AV cables but accused refused and instead started to demand money, US$15 owed to accused by deceased for a jean trousers accused had sold to deceased in 2013. A misunderstanding arose and deceased took a broom stick or feather duster stick inside the house and assaulted the accused who sustained swellings and bruises and the broom stick got broken. The accused fled the house and picked stones which he threw at deceased who ran into the house and closed the door. A neighbour Gloria Mugweni (Gloria) intervened, and counselled the accused who calmed down and after about an hour accompanied accused to the house where Esnath Manzonza (Esnath) opened the door for accused and Gloria returned to her house as accused entered the house. The accused while in the house took a knife from the kitchen. The reason for taking the knife is in issue. The State alleges that he wanted to use the knife to threaten to kill the deceased but accused says he wanted to use it to fix the AV cables which he had connected but were no HMA 02/16 CRB HC 6/16 longer working. It is not in dispute that a misunderstanding arose again between accused and deceased. The cause of this dispute is in issue. The State alleges that it was caused by accused who blocked deceased’s way as deceased wanted to go and bath threatening to kill deceased. The accused on the other hand said it was because of the deceased who insulted accused saying he was not going to give accused the money for the jean trousers and that deceased went on to spite the accused by taking the jean trousers and throw it at the accused. The accused said he could not take the jean trousers as it was now worn out and instead demanded that deceased should pay for the jean trousers which irritated the deceased. The deceased proceeded to pick a log outside the house intending to assault the accused. The accused fled into the bedroom with the deceased in pursuit. The accused failed to escape from the bedroom and was held by the deceased as the two struggled. During that brawl accused stabbed the deceased on the right thigh once after which deceased released the accused who fled. The deceased bled profusely, collapsed and was moments later pronounced dead on arrival at Masvingo General Hospital. The issues raised by the accused in his defence outline are mostly not in dispute. We shall therefore only highlight those aspects which are in dispute. The accused said what initially angered the deceased was accused’s response that deceased was also a bully as deceased was refusing to pay for the jean trousers sold to deceased. The accused said this prompted deceased to arm himself with broom stick and assaulted accused several times causing accused to flee from the house. The accused’s story is that upon returning to the house it is the deceased who reignited the misunderstanding by boasting that he would not pay accused for the jean trousers alleging that the accused was ill disciplined and proceeded to impolitely throw the jean trousers at the accused which jean trousers were now worn out. The accused said he then insisted that deceased could not proceed to go and bath without resolving the issue of payment for the jean trousers. The accused said as he was working on the AV cables it is the deceased who went out to fetch a log in order to assault the accused. The accused’s version is that he fled into the bedroom where he was cornered by the deceased who attempted to hit him with the log on the head. The accused said he ducked and the log hit the wall and fell out of deceased’s hands. Accused tried to escape through the window but he said deceased held him from behind and then pinned accused judo style with deceased’s left hand around accused’s midriff while the inner side of the deceased’s elbow was tightly locked around accused’s neck. The accused said HMA 02/16 CRB HC 6/16 both Gloria and Piniel Manzonza (Piniel) who were at the scene did not assist him or intervene. The accused said he was still holding the knife in one hand and the cables in the other. He said he refused to drop the knife when Gloria requested him to do so because accused had first assaulted him with the broom stick, later tried to use the log and was now throttling him. Further, the accused said deceased ignored Gloria’s plea for the deceased to let go the accused but instead tightened his grip, squeezing even harder as accused stretched his leg trying to free himself. The accused said when the bed on which they were standing slid to one side they both fell down facing upwards with the deceased below the accused but keeping his vice like grip around accused’s neck using his fingers which caused accused to run out of breadth. The accused said in order to avoid being strangled to death he proceeded to thrust the knife into deceased’s thigh in order to inflict sufficient pain thereby compelling deceased to let go accused’s throat. In essence the accused said he acted in self-defence when he stabbed the deceased with the knife. In support of it’s the State produced by consent three exhibits which are as follows; Exhibit 1: is accused’s confirmed warned and cautioned statement in which the accused indicated that he acted in self-defence. It may be prudent for us to quote what the accused said;