S v Moyo (153 of 2022) [2022] ZWBHC 153 (9 June 2022)

1 HB 153/22 HC (CRB) 12/22 THE STATE` Versus CENT MOYO IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J BULAWAYO 7, 8 JUNE 2022 AND 9 JUNE 2022 Criminal trial T. Muduma for the State S. Huni for the accused DUBE-BANDA J: 1. The accused person is charged with the crime of murder as defined in section 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on the 19th October 2022, at Mpopoma River, Methodist Village, Bulawayo he unlawfully caused the death of Thulani Tembo (hereinafter referred to as the “deceased”) by shooting him with a CZ pistol on the abdomen intending to kill him or realising that there was a real risk or possibility that his conduct may cause death continued to engage in that conduct despite the risk or possibility. 2. 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. The accused tendered his defence outline and is before court and marked Annexure B. State case 3. State counsel with the consent of the accused tendered the following documentary exhibits: accused’s confirmed warned and cautioned statement (Ext. 1); post-mortem report number 197/159/2020 (Ext. 2); and a CID Forensic Ballistic Report (Ext. 3). HB 153/22 HC (CRB) 12/22 4. The State Counsel further sought and obtained admissions from the accused in terms of section 314 of the Criminal Procedure & Evidence Act [Chapter 9:07] (CP & E Act). These related to the evidence of the following witnesses as contained in the summary of the State case: i. The evidence of Ojilive Sibanda. His evidence is that he is a member of the Zimbabwe Republic Police (ZRP). He is stationed at Pumula Police Station. On the 19th October 2020, at around 1400 hours he received a report from the accused that he had shot the deceased who was poaching for sand at Mpopoma River, Methodist Village. He attended the scene where the deceased and his colleagues were found poaching sand as well as where the accused shot the deceased. He recovered the pistol from the accused and a spent cartridge. He also manged to look for the Nissan UD Truck that was used to carry poached sand and also found its driver. ii. The evidence of Doctor I. Jekenya. His evidence is that he is a qualified Medical Practitioner based at Mpilo Hospital. On the 3rd November 2020, and during the course of his duties he examined the remains of the deceased and complied his findings in the post mortem report number 197/159/2020 (Ext. 2). 5. The State called three witnesses. We are going to briefly summarise their evidence. The first to testify was Mandlenkosi Mhlanga. His evidence was that on the 19th October 2020, in the company of now deceased and Vodloza Sibanda they were poaching sand in the Mpopoma River. He was the driver of the Nissan UD Truck that was used to carry poached sand. Vodloza Sibanda and the now deceased were loaders. His evidence is that when the Rangers approached he started the Truck and drove past the vehicle used by the Rangers. The Rangers pursued them. The two i.e. Vodloza Sibanda and the now deceased were seated in the loading box. As he drove past the Rangers’ vehicle, a Ranger shot one rear wheel of the Truck. He did not see whom among the Rangers shot the wheel. The Rangers pursued the Truck, and at some point blocked it with their Council vehicle. He made a U-turn, and at that point he saw the accused disembarking from their vehicle and approached the Truck. He continued driving, and he heard HB 153/22 HC (CRB) 12/22 someone who was in the loading box of the Truck saying he had been shot. It was the deceased who was shot. He checked and realised that deceased had put his hands on the stomach. He did not stop to check. The now deceased was taken to Luveve Police Station and then to Mpilo Hospital for treatment. 6. His evidence is that he did not drive close to the vehicle of the Rangers. The now deceased was kneeling on top of the sand in the loading box. He heard a sound of one gun shot. He disputed that the bullet first hit the truck, ricocheted and then struck the now deceased. His evidence was that the accused directly fired into the loading box of the Truck. 7. In cross examination this witness conceded that they were poaching sand, and it was illegal. He testified that the vehicle used by the Rangers was a City of Bulawayo vehicle and clearly marked as such. He conceded that they were fleeing to avoid arrest. When it was suggested to him that he could not tell the court what exactly happened at the scene of shooting, his answer was that he noticed the accused disembarking from the vehicle and moving towards the Truck holding a fire-arm. As he continued driving he lost sight of the accused. He did not hear the gun shots. He became aware of the shooting when the now deceased told him that he had been shot. 8. The second witness to testify was Vodloza Sibanda. His evidence was that he was in the company of Mandlenkosi Mhlanga (1st State witness) and the now deceased and they were sand poaching in the bush. When the Rangers approached, they jumped into the Truck and tried to escape. He was with the now deceased in the loading box. The Rangers gave chase for about 2.1 kilometres. When their Truck made a U-Turn, accused disembarked from the vehicle and shot at the deceased. He only heard the sound of gunfire, and could not say the number of times accused fired the gun. He saw accused shooting at their Truck, and deceased started screaming saying he had been shot. 9. In cross examination he testified that they were fleeing to avoid arrest. He said he did not hear the first gun shot fired before the Truck made a U-turn because of the noise caused by the Truck. He then said he heard a gunshot fired by the accused. Asked the HB 153/22 HC (CRB) 12/22 number of the gunshots he heard, he said he did not count. Asked whether a bullet hit the vehicle, his answer was he would not know much about that. Asked by the court he first said he was seated in the loading box close to the head of the Truck. He also said they were standing in the loading box facing the front. He said accused shot from a distance of 45 metres. 10. The third witness to testify was Prosper Chidume. He is a member of the ZRP and the investigating officer in this matter. On the 23rd October 2020, he saw now deceased at the hospital. He observed that the now deceased had a gunshot on the lower left of the abdomen. He recovered the bullet that was removed from the deceased’s body. The bullet head was taken to Forensic Department in Harare. On the 24th October 2020, he visited the scene of crime, and observed that the Rangers pursued the Truck for a distance of 2.4 kilometres. He saw a mark on the left side of the loading box of the truck, and could not tell whether it was caused by a bullet. The outer rear tyre of the Truck was damaged by the Rangers. 11. At the conclusion of the testimony of Proper Chidume, the State closed its case. Defence case 12. Accused testified in his defence and called two witness, Mr Qhubekani Banda (Banda) and Mr Mduduzi Nxumalo (Nxumalo). 13. Accused testified that he is a Ranger in the employ of the Bulawayo City Council. He has been so employed for a period of twenty-six years. Part of his duties are to prevent sand poaching, and where it occurs to arrest the perpetrators. On the 19th October 2020, he had a team of Rangers which was patrolling at Mazwi Game Park. When the team arrived at a place frequented by sand poachers, he remained behind with a student on attachment while the other members of the team continued patrolling the area. A few minutes after the team had left he heard a gunshot. He then saw a Truck being driven at high speed, and his team mates pursuing using their Council vehicle. He noticed that one of the rear tyres of the Truck had been damaged. HB 153/22 HC (CRB) 12/22 14. He got in the vehicle and joined the pursuit of the Tr