S v Mazendame (156 of 2022) [2022] ZWBHC 156 (17 May 2022)

1 HB 156/22 HC (CRB) 68/22 THE STATE Versus MASIMBA MAZENDAME IN THE HIGH COURT OF ZIMBABWE MOYO J with Assessors Mr A. B Mpofu and Mr W. T Matemba GWERU 16 AND 17 MAY 2022 Criminal Trial M Shumba, for the state T. Kamwemba, for the accused MOYO J: The accused person faces a charge of murder it being alleged that on the 1st of April 2021 at about 0300 hours the accused fired a rifle and shot deceased Clearance Mhanga on the forehead, neck and shoulders thereby causing his death. The accused person denies the charge. The following were tendered into the court record as exhibits and they were all duly marked - - - - - the state summary the defence outline the accused’s confirmed warned and cautioned statement the post mortem report the firearm allegedly used The state led evidence from 3 witnesses and the accused gave evidence for the defence. That is Tinotenda Makonese, Tafara Makonese and Simon Mutseta. The evidence of the following witnesses was admitted into the court record as it appeared in the state summary in accordance with the law. The evidence of HB 156/22 HC (CRB) 68/22 - - - - - - Daniel Muwala Richard Mazvawidza Brighton Batai Leonard Kauteno Sharon Nyoni Dr Juano Rodriguez Gregori The evidence of Sifelani Dhauya was expunged from the court record. The state led viva voce evidence from 3 witnesses. Unfortunately, the evidence of these 3 witnesses is after the fact. They did not witness what happened before and during the shooting. They all come in after the fact. The accused’s version is the only version relating to the events before and during the shooting incident. Tinotenda Makonese was the first to testify, all he told the court is that he lives at No. 14 Hudson Road Lundi Park Gweru where accused was employed as a Security Guard. At around 3 am he heard a gunshot and an alarm. He checked the CCTV and saw a person over the durawall exiting. Accused later told him that he had seen a dead body while checking the perimeter fence. The dead body was on a yard adjacent to their yard. He said he could not dispute that there were many intruders as during those times there had been a lot of intruders in the area. HB 156/22 HC (CRB) 68/22 Tafara Makonese was the next to testify, his testimony was basically similar to that of the previous witness but, he confirmed that accused told him that there were many people that had intruded. He said he told the police about the CCTV footage which they also viewed. Simon Mutseta was the next to testify and he told the court that on the fateful day he was on duty with the accused and that he went to sleep when it was his turn to sleep. At around 1 – 2 am he heard some noise and woke up, accused told him that a person had intruded and he fired a gun. In the morning he saw the deceased’s body but he stood at a distance. He did not observe any weapons or stones at the scene. Questioned as to the fact that accused saw 3 – 4 people, he said he could not dispute that but accused told him that he had seen a person as in one person. The accused gave evidence for the defence. He told the court that he is employed as a Security Guard and that he was so employed at the material time. He told the court that on that fateful morning, as he guarded the premises some stones were thrown, and the dogs were running away and scared. He said he was seated opposite where these people were coming from. They came in and he could see that they were people. The area was not well lit. He cocked the gun and then fired a warning shot towards their direction as he wanted to scare and disperse them. They were armed although he could not clearly see what they were armed with. Asked under cross-examination that he aimed at the deceased and in the direction of the noise, he told the court that the firearm faced upwards whilst he was in a seated position. Asked further, why he did not fire in the air he replied by saying he aimed into the air whilst in a seated position. He was asked to explain how the bullet hit the deceased on the forehead and he replied by saying he was not sure because he had seen these other 3 intruders and not the deceased. He told the court that there had been a spate of intruders and robberies HB 156/22 HC (CRB) 68/22 in the area and that he had previously fired in the same direction but no one had been injured. He said he could not see clearly what they carried but they had weapons. It was put to him that he shot deceased in full view and he disputed that. He also demonstrated to the court that he sat down and pointed the firearm upwards but facing the direction where the intruders were coming from. The state counsel submitted that the accused’s actions should be found to be wrongful and negligent in the circumstances for the following reasons:- 1) That Simon Mutseta said accused told him about only one intruder and that therefore accused is lying when he says there were more. - This court is unable to make this finding because the other state witness Tafara Makonese said the accused person told him that there were many people that had intruded. It then becomes difficult to use Simon Mutseta’s version on what he was told by accused yet the other state witness does confirm the accused’s version on that point. In that respect, the accused should get the benefit of the doubt on that point as this court cannot accept Mutseta’s evidence and reject accused’s evidence yet the other state witness confirms it. An accused’s version is not rejected for the simple reason that he is an accused. The state must rebut it and show beyond a reasonable doubt that it is false. The state counsel also submitted that we should find that the accused deliberately lied in his defence outline on a material point regarding whether the intruders were armed with machetes or not. Since in his evidence in chief he was saying they were armed without specifying the weapons. Clearly, from the accused’s version, intruders had come to this area before armed with machetes etc obviously as a human being he cannot be penalized for having assumed what HB 156/22 HC (CRB) 68/22 he was accustomed to. This court is not satisfied that there was a deliberate lie in this respect in a bid to mislead the court. At this juncture I would also comment on the demeanor of the accused person in the witness box. He did not strike the court as someone bent on lying at all costs. In fact he appeared to be telling the court the truth. There is nothing both in the court record and in his demeanor that would make this court doubt his version for an accused’s version is not doubted or rejected for the simple reason that he is an accused. There must be more to such a finding than minor imperfections in his testimony. The state counsel further submitted that the absence of weapons at the scene the following morning should also point to the fact that these people were not armed at all. However, it would be very dangerous in my view for the court to make such an assumption since there are allegedly other 3 intruders that fled. What if they fled with the weapons? It would be stretching it too far to hold that their mere absence the following morning would mean that they were never there, as the intruders could have fled with the weapons. It is simply unknown what could have become of the weapons if they were there, this is a grey area that the state itself has no evidence to shed light on. It is trite that in our criminal justice system no factual findings can be made where there is a gap evidentially, in that instance the accused benefits. The state counsel further submitted that the accused must have aimed the gun at the deceased resulting in him being struck on the forehead as it would have been impossible for him to be struck on the forehead if accused had pointed the gun upwards. Again, this court is of the view that such a finding cannot be made in the circumstances of this case as there is no evidence that was led from a ballistic expert to tell the court the characteristic