S v Mapope (182 of 2022) [2022] ZWBHC 182 (29 June 2022)

1 HB 182/22 HC (CRB) 29/22 THE STATE Versus NOBERT MAPOPE IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J BULAWAYO 28 JUNE 2022 & 29 JUNE 2022 Criminal trial T. Muduma for the State Mrs S Drau for the accused DUBE-BANDA J: Introduction 1. The accused person is charged with the crime of murder as defined in section 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on the 26 May 2018, at Corner Helen Lane and Harold Road, Kensington he shot Tinashe Mutema (deceased) at the back and once on the lower backbone intending to kill him or realising that there was a real risk or possibility that his conduct may cause his death continued to engage in that conduct despite the risk or possibility of death. 2. The accused pleaded not guilty to the charge. He was legally represented throughout the trial. The State tendered an outline of the State case, which is before court and marked Annexure A. The accused tendered his defence outline and is before court and marked Annexure B. In brief the accused’s defence is that he shot and killed now deceased in self-defence. The State Case HB 182/22 HC (CRB) 29/22 3. In opening the State case State Counsel with the consent of the accused tendered the following documentary exhibits: post-mortem report number 499-198-2018 (Ext. 1); and a CID Forensic Ballistics Report (Ext. 2). 4. The State Counsel further sought and obtained admissions from the accused in terms of section 314 of the Criminal Procedure & Evidence Act [Chapter 9:07] (CP & E Act). These related to the evidence of the following witnesses as contained in the summary of the State case: i. The evidence of Brian Mwazikana. His evidence is that he is a member of the Zimbabwe Republic Police (ZRP) stationed at Criminal Intelligence Unit. Nothing more is said in the summary of the State case except that his evidence is similar and corroborates that of James Chomunakira. The evidence of Kudzai Munemo. All that is contained in the outline of the State case is that he is a duly attested member of the ZRP currently stationed at CID Hillside, and that his evidence is similar and corroborates that of Matizha Tafara. ii. The evidence of Sunboy Sibanda. His evidence is that he is a member of the ZRP. His evidence is that he saw a group of approximately +/- twenty male persons running towards the direction where there was the accused. He then heard four gun-shots coming from the direction of the accused. Few seconds later he heard accused saying “sit down.” The accused advised him that he had shot the now deceased and this witness then alerted the other teams who quickly arrived at the scene. iii. The evidence of Phakamani Sibanda. His evidence was that he resides at Shangani Mine compound and is a gold panner. He knew now deceased during his life time. On the 26th May 2018, at around 0700 hours in the company of Nyasha Ndiweni, Givemore Nyirenda, the now deceased and other four locals from Kensington were gathered around a fire next to their panning pits. They realised that they were surrounded by police officers but from a distance. They panicked and fled into different directions. It was during that commotion that HB 182/22 HC (CRB) 29/22 he heard gun shots, he is not sure how many gun shots were fired as he was running away. iv. He heard someone crying for help but did not know who that person was. He did not see the police officer who fired the gun as he ran and hid inside a pit which was approximately a meter deep. He was arrested by two police officers who removed him from the pit and they took three shovels, three axes and a gold detector which they had left near the pits. He escorted the police officers to a place where Nyasha Ndiweni and Givemore Nyirenda were arrested. That is when he saw the now deceased lying on the ground. v. The evidence of Nyasha Ndiweni. His evidence was that he resides at Shangani Mine compound and is a gold panner. He was in the company of Phakamani Sibanda and others already mentioned by Phakamani Sibanda. After noticing that they were surrounded by the police he ran away from the panning pits leaving his tools. After he ran about 300 metres he hid in a thick bush nearby. He heard gun shots and could not remember the actual number as there was a stampede with every one trying to escape. He heard of the now deceased crying for help but could not see him because of the thick bush. Two officers saw him and arrested him. He was taken to a place where Phakamani Sibanda and Givemore Nyirenda were. Police officers recovered three axes, three shovels and a gold detector near the fire place. These are the things that the gold panners left behind when they ran away. vi. The evidence of Cynthia Mupungu. Her evidence is that she is a member of the ZRP and the investigating officer in this matter. On the 26 August 2018, she was tasked to investigate a murder case involving the accused. On the 28 May 2018, a post mortem report was done by Doctor Pesanai at United Bulawayo Hospitals. On the 19 July 2018, the FN rifle and spent cartridges were sent to CID Forensic Ballistics for examination and the report indicates that the chamber and barrel showed gunshot residue an indication that the weapon was fired. A warned and cautioned statement was recorded from the accused. HB 182/22 HC (CRB) 29/22 vii. The evidence of David Sibanda. His evidence is that he is a member of the ZRP. On the 31st August 2018, at 0940 hours he witnessed the recording of a warned and cautioned statement from the accused. The accused gave his statement freely and voluntarily in the presence of his legal practitioner. viii. The evidence of Doctor Sanganai Pesanai. His evidence is that he is a duly attested medical practitioner based at United Bulawayo Hospitals. On the 28 May 2018, and during his duties he examined the remains of the now deceased and recorded his findings in a post mortem report number 499/498/2018. His conclusions were that the cause of death was haemorrhagic shock, haemopheumothox, penetrating chest truma and gunshot wound. 5. The State called two witnesses who gave viva voce evidence. We summarise their evidence and our findings on their credibility. The first to testify was James Chomunakira. His evidence was that he is a member of ZRP. He holds the rank of Assistant Inspector. On the 26 May 2018, he was the ground commander of the operation called “No to illegal Mining.” He was briefed about the operation in the presence of other members including the accused. The team had three fire arms, and accused was given an FN Rifle. When the team arriv ed at the targeted area, i.e. Kensington it was divided into three groups. One group was led by the accused person. After leaving accused and his group this witness proceeded to another point with some of the team members. The members who were seated in the loading box of the police vehicle informed him that they heard a gunshot coming from the direction where they had left accused and his group. When he and others returned running to where they had left accused and his team, he saw gold panners running away from the direction where they had left accused and his group. He said they were many gold panners and they managed to arrest some of them. 6. He received a phone call from the accused saying he must run to where he was as soon as possible. When he got to the point where the accused was, he saw him holding a firearm and he was shivering. The accused showed this witness a man who was lying HB 182/22 HC (CRB) 29/22 on the ground. Accused said a group of gold panners advanced towards him and attacked him with shovels. He said he fired three warning shots in the air, and then shot the man who was lying on the ground. He said the man he shot was advancing and attacking him. This witness noticed that the accused was not stable, he then disarmed him. He could not comment on the allegation that accused shot the now deceased who was fleeing, because he was not with the (him) accused at that