S v Mbewe & Anor (CRB 77 of 2016; HH 295 of 2017) [2017] ZWHHC 295 (12 May 2017)

1 HH 295-17 CRB 77/16 THE STATE versus TINASHE MBEWE and JOSEPH MASIYE HIGH COURT OF ZIMBABWE ZHOU J HARARE, 17, 18, 19 & 20 October 2016 & 12 May 2017 Assessors: 1. Mr Shenje 2. Mr Kunaka Criminal trial Miss N. Mazvimbakupa for the State B. Chikowero for the first Accused N. Chikowore for second Accused ZHOU J: The two accused persons appeared before this court facing a charge of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations against them are that on 2 November 2015 and at Kuwadzana Shopping Centre, Banket, the two accused persons, one or both of them unlawfully and with intent to kill, murdered the now deceased Perfect Matenda or realizing that there was a real risk or possibility that death might result stabbed the deceased with an okapi knife under the right armpit, thereby causing injuries from which the deceased died. Both accused persons pleaded not guilty to the charge. At the close of the case for the prosecution the second accused Joseph Masiye was acquitted in terms of s 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], on the basis that there was no evidence that he had committed the offence charged in the indictment or any other offence of which he might be convicted thereon. All the witnesses who testified for HH 295-17 CRB 77/16 the State did not give evidence that linked the second accused person to the offence, as illustrated in the summaries of the evidence given below. The State relied on evidence from eight witnesses. Six of those witnesses, namely, Lynnet Mapiki, Erick Jamhu, Tinashe Nyauswa, Ebrahim Cheziri, Simon Makosa and Nyasha Negato gave viva voce evidence. The evidence of two other witnesses, namely, Dr Kudzai Makova and Simbarashe Chima, was admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Dr Kudzai Makova is the Government Medical Officer who certified the deceased dead on 2 November 2015. On 3 November 2015 he undertook the postmortem examination of the remains of the deceased at Banket District Hospital and compiled a report in which he stated his observations and conclusions. The post-mortem report prepared by Dr Kudzai Makova gave the cause of death as “hemorrhagic shock secondary to bleeding from axillary vessels”. He stated in the post-mortem report that upon his examination of the deceased’s body he observed an extensive right axillary stab wound with severing of axillary vessels. This means that there was a stab wound which showed that the axillary vessels had been severed. The stab wound was in the right armpit. The report also shows that the doctor observed a left occipital scalp laceration and that the deceased’s clothes were drenched in blood. The first witness to testify was Lynnet Mapiki who is seventeen years old. She is doing Form Four. In addition, she is a member of the Zimbabwe Republic Police’s Junior Cops which, in her understanding is an organization which educates them on good behavior and awareness of one’s surroundings. She did not know the deceased during his life. She knew the first accused person because she had seen him previously as he resided at a house close to the house where the witness’s classmates and friends resided. She also knew the first accused’s first name, Tinashe. As for the second accused, her evidence was that she had only heard about him but had not seen him. Her evidence was that she knew that the fist accused is the one who killed the deceased. On the day in question she was left by her mother attending to the market stall around 10 o’clock in the evening. It was then that she saw the first accused person being pursued by nine persons. Some of those persons who were chasing after the first accused were throwing bricks. The accused person was running. Among the persons who were pursuing the first accused she recognized Tinashe Nyauswa and Erick Jamhu who also testified in this matter. She knew some HH 295-17 CRB 77/16 of those persons by only seeing them but did not know their names. There was another person who was also being chased together with the accused but she did not recognize that person. The witness stated that the accused person later returned to the shops. He was again chased by the same group that had previously chased him. This time around the deceased person was the one in front of the other persons who were pursuing the accused. The persons who were chasing after the accused person were drunk, according to the witness. They were following from a distance of about 48 metres behind the deceased, walking. Some of them were carrying bottles of beer. The deceased was also carrying a bottle of beer. The witness stated that the first accused person came and stood in front of their market stall. The deceased approached the first accused person intending to question and get hold of him. At that time the first accused produced a knife and stabbed the deceased on the left side. The deceased retreated and then fell to the ground. The accused person then ran away. The members of the deceased’s group pursued the first accused but failed to catch him. One Chimera who came to assist was assaulted by members of the deceased’s group who accused him of knowing the whereabouts of the first accused. The deceased was lying on the ground as motorists who came by refused to assist by providing transport. Eventually the deceased was conveyed from the scene by a person who was driving a white Toyota motor vehicle. The witness stated that the place where the events she described happened was illuminated by lights from the nearby shops and the light which was on her stall. During cross-examination she confirmed that the first accused had threatened that if the deceased and his colleagues continued to chase him he would stab them. She also confirmed that before he was stabbed the deceased had attempted to apprehend the deceased by grabbing him by the collar. The second witness, Eric Jamhu, stated that he knew both accused persons. He met the first accused person at the market place on the evening in question at about 7 o’clock. The first accused person was assaulting a young man when the witness confronted him about the assault. The first accused did not accept the interference by the witness hence the two of them got involved in a scuffle. The first accused picked a stone and struck the witness. The accused ran away after striking the witness with a stone. The witness proceeded to a nearby bar where he narrated to his colleagues, the deceased, Ebrahim Cheziri and Tinashe Nyauswa what had happened between him and the first accused. The deceased was his workmate. About fifteen HH 295-17 CRB 77/16 minutes later the two accused persons came into the bar and pointed in the direction of the witness and his colleagues. The deceased suggested that they have a discussion with the accused persons in order to reach an understanding on the misunderstanding that had taken place earlier on. When they got out a fight ensued and the accused persons ran away with the deceased, the witness and his colleagues following behind. He was about 5 metres behind the deceased. He noticed that the deceased had stopped chasing the accused, and was returning towards him, bleeding. He did not see how the wound was inflicted. He stated that the second accused was following behind him together with some other persons. He assisted in trying to bandage the wound on the deceased person and arranging transport for the deceased to be taken to hospital. During cross-examination the witness denied that he and his colleagues had thrown bricks at the first accused. When he was asked in cross-examination about the assault upon Chimera the witness stated that Chimera was only apprehended by the other persons not himself, and taken to the police so that he would disclose the whereabouts of the first accused. The witness stated that he was drunk when he and his colleagues left the bar chasing the first accused pers