S v Maposa (CRB 22 of 2016; HH 827 of 2016) [2017] ZWHHC 827 (26 February 2017)

1 HH 827/16 CRB NO. 22/16 STATE versus LUCKMORE MAPOSA HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 15, 16 February 2016, 25 & 26 February 2016 Assessors: 1. Mr Mutambira 2. Mr Chikuvinga Criminal Trial Ms N Mazvimbakupa, for the State F F Hwenhira with him Miss R Muvishi and MissV F Nyamukapa, for the accused (pro deo) CHITAPI J: The accused is charged with the crime of murder as defined in s 47 of the Criminal Law (Codification & Reform) Act [Chapter 9:23]. It is alleged against him that on 24 July, 2014 at Maposa village 2A Sarukweza Sanyati, he unlawfully and with intention to kill caused the death of Admire Maposa by striking the deceased once on the left shoulder and once on the head using a metal arm of a plough thereby inflicting certain injuries from which the deceased succumbed to his death. The State further alleges that when the accused struck the deceased as aforesaid, he realized that there was a real risk or possibility that his conduct might result in death but continued in that conduct despite his realization of the real risk or possibility of the occurrence of the death of the deceased. The accused pleaded not guilty to the charge and in his defence which will be adverted to in due course he pleaded self defence and prayed for his acquittal on the charge or any competent verdicts which can be founded on the charge. The State opened its case by seeking admissions from the accused in terms of s 314 of the Criminal Procedure and Evidence [Chapter 9:23]. In terms of the said section, it is competent for HH 827/16 CRB NO. 22/16 the accused, the prosecutor or accused’s legal representative to make an admission of fact relevant to the issue before the court. Once admitted, the fact so admitted is taken by the court as sufficient evidence of that fact. The purpose of seeking and making admissions is to curtail the duration of the trial by obviating the need to adduce oral evidence of the admitted facts. The admitted facts become common cause facts. The accused through his defence counsel made the admissions as sought by the State Counsel. On his part and before making the admissions which will be dealt with hereunder, Mr Hwenhira for the accused applied to amend the accused’s defence outline by the deletion of paragraphs 9, 10 and 13 therefrom. The amendments were granted and duly noted on record. The admissions which the State Counsel sought and were duly made by the accused related to the summary of evidence of State witnesses Taurai Gundura, Mathew Tarusenga, Vimbai Rega and Doctors Mutombo and Mauricio Gonzalez. It is convenient to outline the admitted evidence at this juncture. 1. Taurai Gundura is a nurse and was on duty on 25 July, 2014 at Nyaunde Clinic when the deceased was referred to the clinic by the police for medical attention. He attended on the deceased and referred the deceased to Sanyati Hospital for further treatment. 2. Mathew Tarusenga, is a miner at Laston 12 Goldmine, Sanyati. He knew the deceased as a local person within the same area of Sarukweza. He acted as a good Samaritan and used his motor vehicle to convey the deceased to Sanyati Hospital after referral from Nyaunde Clinic and at the request of Workington Maposa. 3. Vimbai Rega is a nurse and was on duty at Sanyati Hospital on 25 July, 2014 when the deceased was brought to the hospital. The deceased was attended to by Doctor Mutombo in her presence. 4. Doctor Mutombo is a medical doctor stationed at Sanyati Hospital. He attended to the deceased and later referred him to Kadoma hospital from where he was referred further to Parirenyatwa Hospital where he died. 5. Dr Mauricio Gonzales is a forensic pathologist whose qualifications are legal medicine specialist. He conducted a postmortem examination upon the deceased. He compiled a report ref 820/14 which was produced in evidence by consent and its contents admitted. HH 827/16 CRB NO. 22/16 - - The highlights of his report following an examination of the deceased’s body at Parirenyatwa hospital were as follows: External examination : injuries on the left parietal area with surface wounds measuring about 6cm and being injuries suffered ante mortem. Internal examination: (i) (ii) Head: subgaleal haematoma on the left and right parietal area. Skull: depressed skull fracture (2cm x 5cm) on the left parietal bone. (iii) Brain: epidural haematoma on the right parietal lobe and marked brain oedema Cause of death: - epidural haematoma - head trauma - assault 6. The State also produced by consent of the accused the ox-drawn plough handle used by the accused to assault the deceased with. 7. The State also produced by consent the accused’s warned and cautioned which incorporated the accused’s reply to the charge of unlawfully assaulting the deceased with an arm of a plough resulting in his death. It reads as follows: “I admit that I caused the death of Admire Maposa. I struck him once on the head with an arm of a plough. I first fought with Calvin Mpofu who had taken away my religious worshipping stick which he used to stir traditional beer, which angered me. I latter assaulted Admire who intervened and supported Calvin Mpofu. He later died at Parirenyatwa Hospital. I had no intention of killing my young brother.” The admitted evidence is thus as summarized above. The accused’s defence outline in summary was to the following effect. 8. 9. Accused admitted being at the scene of the crime on the day and time of the incident. He initially passed by the scene and observed the deceased in the company of other persons drinking alcohol and his nephew Ndabiso Mathe was also at the beer drink. 10. He subsequently returned to the scene and observed his nephew Ndabiso Mathe crying and on enquiry as to why Ndabiso was crying, the accused was advised by the deceased’s wife that Calvin Maphosa was harassing Ndabiso and had dipped the accused’s religious staff into a pot with and used it to stir the beer, such an act being contrary to the HH 827/16 CRB NO. 22/16 accused’s religious beliefs. Additionally, Calvin was repeatedly branding Ndabiso a bastard. 11. That upon enquiry of Calvin as to why he was behaving in an unbecoming manner, Calvin grabbed the religious staff and threw it into the fire whereupon the deceased admonished Calvin that he should not throw the stick into the fire but should instead just go ahead to assault the accused if that is what he intended to do. 12. That Calvin then attacked him and a fight between the two ensued away from the fire in the shadows. 13. That the deceased joined in the fight and in a moment of panic the accused grabbed the nearest object that he could, struck Calvin on the shoulder and struck the deceased on the head. 14. That the deceased fell upon a car bumper and a wooden stool after which the accused found his way out of the fight and fled into the night. 15. That the accused later returned to the scene and conversed with the deceased who reported that he was no longer feeling well after the assault and the family started to make arrangements to take the deceased to the hospital. 16. That he only acted in self defence under the circumstances prevailing on that day and that any reasonable person could have acted likewise in the given circumstances. 17. That he was scared because of interacting with people who were drunk, out of their minds and as such feared for his life and limb and further that his only motivation in lashing out was to find an escape route from the melee. The state called viva-voce evidence from three witnesses namely Calvin Maposa, (Calvin), Luckmore Mposa (Luckmore); the two being brothers to the accused and the deceased as well as from Constable Hove, the attending police detail who also recorded witness statements, accused’s warned and cautioned statement and would appear to have been the investigating officer although he did not expressly state so. The summary of the evidence of the aforesaid State witnesses and its analysis is as follows; HH 827/16 CRB NO. 22/16 Calvin