S v Mazhambe (CRB 26 of 2016; HH 171 of 2016) [2016] ZWHHC 171 (4 March 2016)

1 HH 171/16 CRB 26/16 THE STATE versus MIKE MAZHAMBE HIGH COURT OF ZIMBABWE ZHOU J HARARE, 18 & 19 February & 4 March 2016 Assessors: Mr P. Chidyausiku Mr T. R. Gweme Criminal Trial A. Masamha, for the State T. Mutemachani, for the Accused ZHOU J: The accused appeared before this court charged with the crime of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations against him are that on 18 March 2014 and at Nyamuzihwa Night Club, Patchway, Kadoma, he unlawfully and with intent to kill, stabbed the now deceased Ngoni Sibanda, once with a knife on the left side of the collar bone, thereby causing injuries from which the deceased died. The allegations are that the incident happened around 0200 hours on the day in question when the accused and the deceased were drinking beer at the night club referred to above. It is alleged that a misunderstanding ensued between the deceased and some other patrons in the course of which the deceased threw an empty beer bottle at those other patrons. The bottle missed the intended targets. The accused person then produced a flick knife and advanced towards the deceased. The latter fled by running out of the night club. The accused pursued him. When the deceased stumbled and fell on his back the accused person stabbed him with the flick knife on the left side of the collar bone. The accused fled from the scene. The deceased was ferried to Kadoma General Hospital where he was pronounced dead upon arrival. In accordance HH 171/16 CRB 26/16 with the law a plea of not guilty was entered, and the State proceeded to lead evidence from its witnesses. The evidence of five witnesses for the prosecution was admitted by consent in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Those witnesses are Patrick Chinyama, Clayton Moyo, Joseph Manda, Munyaradzi Mapfumo, and Doctor Mauricio Gonzalez. Three other witnesses testified orally in court. They are Zondai Sithole, Trust Pfuko and Elias Musvosvi. In total the state relied on evidence from eight witnesses. In his very brief defence outline the accused stated that on the night in question the deceased threw an empty beer bottle at him for no apparent reason. When he inquired from the deceased as to why he was attacking him the deceased insulted him. In a fit of rage and under the influence of alcohol he produced a knife and charged towards the deceased who took to his heels. The deceased ran out of the bar with the accused person in pursuit. The accused person caught up with the deceased and stabbed him once. The accused stated that he never had the intention to kill the deceased person. The post-mortem report prepared by Dr Mauricio Gonzales shows that the deceased died as a result of a stab wound. Patrick Chinyama’s evidence was that on 18 March 2014 he was drinking beer at Nyamuzihwa Night Club, Patchway, Kadoma when he saw the deceased having a fist fight with two male patrons in the night club. The deceased threw a half empty beer bottle towards the two, but missed them. The accused rose from his seat and at that stage the deceased fled from the night club with the accused person in pursuit. The witness later learnt that the deceased had been stabbed. Zondai Sithole’s evidence was that on the day in question at about 0200 hours he was seated at the verandah of Nyamuzihwa Night Club drinking beer when he saw the accused person running after the deceased wielding a knife. The deceased fell down. The accused stabbed the deceased when he had fallen down. After being stabbed the deceased rose and tried to walk but fell down behind a toilet. The witness looked for transport to convey the deceased to hospital. He was later informed by Sergeant Musvosvi that the deceased had died. Trust Pfuko, a member of the Neighbourhood Watch Committee who was employed as a security guard at Nyamuzihwa Night Club was one of those who were seated at the verandah HH 171/16 CRB 26/16 when the deceased emerged from the night club being pursued by the accused person. The two, deceased and accused, were running. He followed them with the intention of restraining them. The deceased fell on his back. The accused person stabbed the deceased once on the left collar bone. After stabbing the deceased the accused person fled from the scene. This witness stated that on that day he had started work at 2000 hours of that evening on which the deceased was stabbed. He had seen the deceased drinking opaque beer. The accused person was playing a game known as snooker. He stated that the deceased was drunk, and was staggering. The witness stated that he never saw the accused person consuming beer. Clayton Moyo’s evidence was that on 18 March 2014 at about 0200 hours he met the accused person. The accused person was wielding a knife when he met him. He proceeded to where the deceased was and observed that he was bleeding profusely. The deceased was ferried to Kadoma General Hospital. The witness learnt of the deceased’s death on 19 March 2014. Joseph Manda who resides at Patchway Shops, Kadoma, is the one who ferried the deceased to Kadoma General Hospital. His evidence was that the deceased was pronounced dead upon arrival at the hospital. Whilst in his custody the deceased did not suffer any injuries. Elias Musvosvi, an officer in the Zimbabwe Republic Police, is the investigating officer in the case. He was previously stationed at Battlefields in Kadoma, but at the time of giving evidence he was based at Sanyati Police Station. He did not know the accused person other than in connection with the instant matter. He, however, knew the deceased person during his life time as a person who resided in the Patchway area. After receiving the report about the stabbing of the deceased he proceeded to Nyamuzihwa Night Club where he interviewed Zondani Sithole and Trust Pfuko. He recovered clothes which the accused was wearing at the time that he stabbed the deceased. The clothes were behind Masimba Bar. They consisted of a white three-quarter pair of shorts, an orange shirt and a white and black shirt which had been left in a plastic bag on top of a decomposing dead dog. He arrested the accused person at Twinlands Farm following a tip-off. He is the one who recorded the warned and cautioned statement from the accused person. He recovered the knife which had been used to stab the deceased person from the accused person who had wrapped it in a khaki shirt and had hidden it at his friend’s house at Twinlands Farm. He also took the accused person for indications which he recorded and produced a sketch plan. The okapi knife, a white three-quarter pair of shorts, an orange and white long-sleeved soccer HH 171/16 CRB 26/16 jersey, a black and white short-sleeved shirt, a long-sleeved khaki shirt, and a brown wallet were produced as exhibits. Munyaradzi Mapfumo’s evidence which was admitted in terms of s 314 of the Criminal Procedure and Evidence Act is a member of the Zimbabwe Republic Police as well. He was invited to the scene of the offence by the last witness, and was present when the accused’s blood- stained clothes were recovered. He was also present when the knife was recovered, as well as when a warned and cautioned statement was recorded from the accused person. His evidence was that the accused person made his statement feely and voluntarily. He was present, too, when the accused person elected to make indications pursuant to which Sergeant Masvosvi drew a sketch plan. He stated that the accused person made the indications without any undue influence. Dr Mauricio Gonzalez is a legal medicine specialist. On 21 March 2014 he examined the remains of the deceased at the request of the Zimbabwe Republic Police, Kadoma Rural. Following the autopsy he prepared the post-mortem report referred to above which was produced as exh. 1. The accused gave evidence and called no other witness. He stated that he is a farmer at Twinlands Farm which is about seven k