S v Mhlanga (HC CRB 60 of 2020; HH 125 of 2020; XREF BYO CENTRAL CR 150 of 2013) [2020] ZWBHC 125 (15 June 2020)

1 HB 125.20 HC (CRB) 60/20 XREF BYO CENTRAL CR 150/02/13 THE STATE Versus IGNATIOUS MEHLULI MHLANGA HIGH COURT OF ZIMBABWE DUBE-BANDA J with Assessors E Mashingaidze and J Sobantu BULAWAYO 9, 10 AND 15 JUNE 2020 Criminal Trial K. Ndlovu, for the state L. Ngwenya, for accused DUBE-BANDA J: The accused is charged with the crime of murder, committed in aggravating circumstances, as defined in section 47 of the Criminal Law (Codification and Reform) Chapter 9:23. It is alleged that on the 10th of February 2013, and at Mutize and Sons Flea Market, Bulawayo, the accused person acting in common purpose with Isaac Nyakurerwa and Mduduzi Timothy Mathema, one or more or all of them, assaulted Vengai Murisi with a wooden plank on the head and strangled him with a wire intending to kill him or realizing that there is a risk or possibility that his conduct may cause the death of such person, a male adult in his life there being. The accused pleaded not guilty to the charge. He was legally represented throughout the trial. At the commencement of trial, the summary of the evidence of State witnesses was produced and marked Annexure ‘A’. The defense outline of the accused person was produced and marked Annexures ‘B’. The Affidavit Statement compiled in terms of section 260(4) of the Criminal Procedure and Evidence Act was tendered and received by this court as an exhibit. It was marked Exhibit 1. Also a post mortem report was tendered and received as an exhibit by this court. It was marked Exhibit 2. The prosecutor sought admissions from the accused’s counsel in terms of s 314 of the Criminal Procedure & Evidence Act [Chapter 9:07]. First, the admissions sought were the following: HB 125.20 HC (CRB) 60/20 XREF BYO CENTRAL CR 150/02/13 i. Whether it is admitted that on the 10th February 2013, the accused was in the company of Isaac Nyakurerwa and Mduduzi Timothy Mathema. ii. Whether accused took part in the robbery that took place at Mutize Flea market. iii. Whether it is admitted that they took and stole three shangani bags from the same Flea Market. iv. Whether accused got a share from the stolen property, which he sold to members of the public. The admissions were made, making it unnecessary for the state to lead evidence in respect of the admitted facts. Second, the admission of the evidence of certain witnesses as contained in the summary of the state case was sought. That is, the evidence of Dr Sanganai Pesani, who examined the remains of the deceased and recorded a post mortem report. The evidence of Sidanisile Ncube at whose house the accused, Isaac Nyakurerwa and Mduduzi Timothy Mathema, shared certain property, comprising clothing and footwear, which was contained in three carrier bags. The three told the witness that the property was from Botswana. They gave the witness some items to sell on their behalf. The evidence of Pretty Lindiwe Khumalo who saw accused and Mduduzi selling items of clothing to the members of the public. She saw the accused and Mduduzi in possession of a big carrier bag full of clothes and footwear. She saw accused holding some cell phones in his hand. The evidence of Siyazuza Ncube, the Investigating officer. He was allocated a murder docket to investigate. During the course of the investigations, the witness managed to account for Isaac Nyakurerwa and Mduduzi. The accused remained at large and was only accounted for of the 11 October 2019. The admissions were duly made hence dispensing with the need for the prosecutor to lead evidence from these witnesses. The accused filed a detailed defense outline, and the material part of the outline reads as follows: 1. He will state that the deceased died as a result of the direct actions of Isaac Nyakurerwa and Mduduzi Timothy Mathema, who had tied him with wires on the hands, feet and neck during the robbery. Accused had no intention to cause the death of Vengai Murisi. 2. Accused will further state that prior to the fateful day, he did not know Isaac Nyakurerwa, but the same was known to Mduduzi Timothy Mathema. HB 125.20 HC (CRB) 60/20 XREF BYO CENTRAL CR 150/02/13 3. Accused and Mduduzi Timothy Mathema had been drinking beer together at Royal Hotel, where they met Isaac Nyakurerwa, who was known to Mduduzi Timothy Mathema. 4. Accused and Mduduzi Timothy Mathema were just common pick-pockets and after they left Royal Hotel, their mission was to go around pickpocketing unsuspecting individuals and drunks. 5. After they failed to find a victim, it is Isaac Nyakurerwa who spoke to Mduduzi Timothy Mathema and informed him that there was an unguarded flea market that they could break into that had an assortment of valuables they could sell. He was later roped in by the two after being convinced that the area was unguarded. 6. They went to the site and when they were inside the flea market they were startled by the deceased who attempted to apprehend them. During the scuffle, accused struck the deceased with a plank twice on the forehead and his blow had the effect of disorienting the deceased who was then held by Isaac Nyakurerwa and Mduduzi Timothy Mathema. 7. The two requested his assistance to hold him down and proceeded to tie him up with wires from coat hangers on the scene. After tying him up, he and Mduduzi Timothy Mathema were left to guard him while Isaac Nyakurerwa, who knew the place better had gone to ransack the flea market. 8. The two were drunk and it was Mduduzi Timothy Mathema who then noticed that Vengai Murisi was dead and went on to alert the accused and Isaac Nyakurerwa. The trio then took the property that had already been taken by Isaac Nyakurerwa and found a taxi, leaving the scene. 9. Accused will reiterate that he had no intention to murder the deceased and failed to appreciate that his accomplices had tied up the deceased in such a manner that he could not breath. The state case The State led viva-voce evidence from three witnesses, Langton Mutindi, Mduduzi Thimothy Mathema (Mduduzi) and Precious Mathema. The first was Langton Mutindi and his evidence can be summarized as follows: he is a member of the Zimbabwe Republic Police (ZRP). At the material time, he was stationed at Bulawayo Central Police Station, attached to HB 125.20 HC (CRB) 60/20 XREF BYO CENTRAL CR 150/02/13 the charge office duties. On the 11 February 2013, in the morning hours, a report of a murder case was received by the police. In the company of two other police details and the informant, the witness proceeded to the scene of the murder, at Mutize Flea market, situated along Lobengula Street, between 5th Avenue extension and Leopold Takawira Street, Bulawayo. At the scene, the informant showed the police details the body of a male person, on a steel table, lying facing upwards. The hands were tied to the table using a wire from a coat hanger. The feet were tied together using a coat hanger wire. Thereafter both feet were tied to a metal table. Another coat hanger wire was used to tie the neck to the table. There was a jacket string around the neck. There was a plank on the scene with blood stains. There was blood on the ground. When the police removed the wire around the neck, blood started coming out of the mouth. The police details then conveyed the body to United Bulawayo Hospitals. The second witness to give viva-voce evidence was Mduduzi. After this witness was sworn in, the prosecutor informed the court, that he was a convicted accomplice, who was serving a prison term. The court warned the witness in terms of section 267 of the Criminal Procedure and Evidence Act. This witness told the court that at the material time, he knew both the accused and Isaac Nyakurerwa, they were his friends. He told the court that on the date in question, he was with his two friends, Isaac Nyakurerwa and the accused drinking beer in town. From Royal Hotel, they went to a club called Esiqongweni, and continued drinking beer. According to this witness, they were all drunk, however he was aware of what he was doin