S v Marevanhema (HB 87 of 2021; HC (CRB) 122 of 2020) [2021] ZWBHC 87 (21 May 2021)

1 HB 87/21 HC (CRB) 122/20 THE STATE Versus NAISON TAKAWIRA ALLIAS MAREVANHEMA IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA Jwith Assessors MrMatemba and MsBaye GWERU 20 & 21 MAY 2021 Criminal Trial Ndlovu, for the State Chingwe, for the accused DUBE-BANDA J: The accused is charged with the crime of murder as defined in section 47 of the Criminal Law (Codification and Reform) [Chapter 9:23]. It is alleged that on the 2nd February 2018, and at Village Mapiye, Chief Samambwa, Zhombe in the Midlands Province, accused unlawfully caused the death of Tariro Kambarami (deceased), by stabbing her with a spear several times on the head, chest and arms, intending to kill her or realising that there was a real or possibility that his conduct may cause her death and continued to engage in that conduct despite the risk or possibility. 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. It shall not be necessary to repeat the entire contents of the state outline. It now forms part of the record. The accused tendered into the record an Outline of his Defence Case, which is before court and marked Annexure B. The state produced a confirmed warned and cautioned statement recorded by the police on 18 December 2018. The statement was confirmed by a magistrate on the 4th January 2019. It is before court as Exhibit 1. The state tendered a post mortem report compiled by Dr S Pesanai, at United Bulawayo Hospitals on 5 February 2018. The report is before court and marked Exhibit 2. Following an examination on the remains of the deceased, the Pathologist concluded that the cause of death was: haemorrhagic shock; haemponeumothorax; stab wound chest; and assault. The prosecutor sought and obtained admissions from the accused in terms of section 314 of the Criminal Procedure & Evidence Act [Chapter 9:07]. These related to the evidence HB 87/21 HC (CRB) 122/20 of certain witnesses as contained in the summary of the state case. That is, the evidence of Dr S Pesanai, who examined the remains of the deceased and recorded a post mortem report. The evidence of Lazarus Rumhungwe, a member of the Zimbabwe Republic Police (ZRP) stationed at Zhombe Police Station. He attended to the scene of crime. He saw the body of the deceased lying outside the yard in a pool of blood facing upwards. He observed that the body had a deep cut on the left side of the chest and a cut on the back side of the head. He failed to locate the accused. The evidence of Asedi Yasini, a member of the ZRP. On the 2nd February 2018, he ferried the body of the deceased to Kwekwe General Hospital mortuary. He again ferried the same body to United Bulawayo Hospitals for a post mortem examination. The body did not suffer any further injuries while under his care. The evidence of Tichaona Mabhunu, a member of the ZRP, and part of the investigating team in this case. He looked for the accused and failed to locate him. The evidence of Givemore Mutsinzwa, a member of the ZRP, and part of the investigating team in this matter. He, in the company of other members, on the 9th February 2019, arrested accused in Masvingo. Accused was asked about the weapon used in the commission of the crime, but it was not recovered. The evidence of Douglas Kapfumvuti and Willard Musiiwa, members of the ZRP, who recorded a statement from the accused. The statement was confirmed. The evidence of Sehliselo Khumalo, a member of the ZRP, stationed at Bulawayo Central Police Station. She received the body of the deceased and identified it to Dr. S Pesanai, who carried out a post mortem examination. The state led oral testimony from two witnesses. We are going to summarise the evidence briefly. The first to testify was Leonard Mhosva. He resides at Village Ndumo, Chief Samambwa, Zhombe. He is a member of the Neighbourhood Watch Committee stationed at ZRP Zhombe. He knows the accused as a local person. He knew deceased during her lifetime as she stayed in the same neighbourhood. Witness says he has been resident in the area from 1987, he was born there and he still resides in the same area. He is not sure when deceased came to the area, but she has been in the neighbourhood for approximately 6 years. Deceased was staying with her son doing Grade 5. She was married, and the husband stayed at a place called Torwoord. The witness used to see the husband at the village. He told the court the name of the husband. In his evidence in chief, this witness testified that on the 2nd February 2018, deceased made a report to him. As a result of the report he proceeded to the deceased homestead. He was wearing his police uniform. When he got to the gate, he was confronted by accused who was HB 87/21 HC (CRB) 122/20 carrying two long spears. The spears were made of iron, the first was 1.4 metres in length; diameter, he said it was the size of his two figures; it had a sharp end. The second spear was 1.6 metres in length; made of iron; diameter, narrower than the first spear, size of his one finger; it had a sharp end. He was first stabbed by the accused with a spear on his nose bridge. He was again stabbed on the stomach. He showed the court the scars from the stab wounds. It is in cross-examination that the court got to know the content of the report made by the deceased to this witness. State counsel avoided leading this witness to testify on the content of the report, as it would have been inadmissible hearsay evidence. Defence counsel, asked the witness to tell the court the nature of the report made to him by the deceased. This amounts to cross-examination on inadmissible evidence. In general, where inadmissible evidence is elicited by the cross examiner himself, it becomes admissible and may be used in the consideration of guilty. See: Pretorius JP Cross-Examination in South African Law (LexisNexis Butterworths 1997) 248-249). This is what occurred in this case. This witness then testified about the content of the report, being that accused had gone to the homestead of the deceased at night around 1 a.m. He violently broke the deceased’s door. Assaulted deceased once with a metal bar. He took a cell phone belonging to the deceased. Deceased said all she wanted was her cell phone and that accused must never come to her residence again. This is the report this witness was following when he went to deceased homestead. The second witness to give oral evidence is Rungano Mushangi. He resides at Village Mapiye, Chief Samambwa, Zhombe. He has been staying in this village from 1976 when he was born. He is now visually impaired. This disability afflicted him after the events he testified to. He knows the accused as he resides with his mother in the same village. He has known accused for a long time. He knew deceased during her lifetime as his neighbour. On the 2nd February 2018, during the afternoon, he was at his homestead, with two other persons. He heard someone calling out his name, he went outside to investigate. That is when he saw accused holding a blood stained spear and a jacket. Accused shouted that he had killed two dogs, pointing at the direction of deceased’s homestead. This witness immediately proceeded to the deceased’s homestead, which was close by. Upon arrival he saw deceased’s body lying on the ground a few metres from her yard. There was blood all over. He then made plans that the matter be reported to the police. HB 87/21 HC (CRB) 122/20 In cross examination by defence counsel, he said accused stayed at the same village with his mother. He said it was not correct that accused stayed with the deceased. Asked whether deceased was accused’s wife, he said he knew nothing about that. He says accused was four metres from him, when he announced that he has killed two dogs. After the conclusion of the testimony of Rungano Mushangi, the prosecution closed its case. Defence case The accused elected to give evidence under oath