S v Moyo (CRB 6 of 2017; HMA 16 of 2017) [2017] ZWMSVHC 16 (17 March 2017)

1 CRB 6/17 HMA 16-17 THE STATE versus ZORODZAI MOYO HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO, 31 January, 2 February, 6 & 17 March, 2017 Assessors 1. Mr S. Mutomba 2. Mr P. N. Dauramanzi Criminal Trial E. Chavarika for the State J. Maweni, for the accused MAWADZE J: The accused is facing a charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform Act) [Cap 9:23]. The charge is that on 4 December 2015 at Maluzo Village, Chief Mazetese, Mwenezi in Masvingo the accused unlawfully caused the death of Nyashadzashe Moyo by stabbing him with an okapi knife once on the left side of the abdomen and once at the back. The accused and the 21-year-old deceased lived in neighbouring villages and were well known to each other. Apparently they also once worked together at Mkwashi Ranch in CRB 6/17 HMA 16-17 Gwanda. The now deceased was once employed at Mkwashi ranch as a grinding mill attendant and when he left employment the accused took over that job. The now deceased stayed with his grandmother Violet Moyo and his siblings. The allegations against the accused are that on 4 December 2015 the accused and the now deceased met along a foot path from Kabhora shops and that they had an unspecified misunderstanding. The accused is alleged to have produced an okapi knife and stabbed the now deceased on the left side of the abdomen thereby eviscerating the small bowel. As the now deceased tried to flee he was allegedly chased after and stabbed for the second time on the left side of the back near the midline. The now deceased is said to have trudged home and managed to make a report to his grandmother Violet Moyo. The accused is said to have proceeded to his workplace at Mkwashi ranch. The now deceased was ferried to Masase Mission hospital but died on admission. The post mortem conducted by Doctor Pesanai revealed the cause of death as haemorrhage shock and perforated left illiac vessel due to stabbing. The accused denies attacking the now deceased in the manner alleged or in any manner. In his defence outline the accused said the now deceased harboured a grudge against the accused as the now deceased alleged that the accused had caused the now deceased to be dismissed from employment as a grinding mill attendant and went further to take that job. The accused said as a result whenever he met the now deceased accused would be threatened with assault. The accused went further to state that on 2 November 2015 he met the now deceased and was assaulted resulting in accusing losing his tooth. Turning to the events of the day in question on 4 December 2015 the accused said he left his workplace going to Kabhora business centre where he found the now deceased present. The accused said the now deceased threatened to kill the accused forcing the accused to flee back to his workplace. At his workplace accused said he advised his supervisor one Mpilo Ndlovu about the now deceased’s threats. The accused said he was surprised the next day on 5 December 2015 when police arrested him on the allegations that he had killed the now deceased. The accused said he protested his innocence to the police despite being severely assaulted by the police. The accused said he never assaulted or stabbed the now deceased. CRB 6/17 HMA 16-17 In support of its case the State led evidence from Violet Moyo, Lovemore Zhou, Mpilo Ndlovu, Cornelius Moyo and Sgt. Hilda Grace Chitemere. The evidence of Dr Pesanai was admitted in terms of s 314 of the Criminal Procedure and Evidence, Act [Cap 9:07]. The accused gave evidence and did not call any witnesses. Two exhibits were produced by consent and they are; Exhibit 1: - This is an okapi knife which weighs 0.06 kgs, is 23.5 cm long with a blade measuring 10.2 cm and the handle is 13.3 cm long. The accused admits that the okapi knife belongs to him and that it was recovered at accused’s homestead after his arrest. The accused however denies using this okapi knife to fatally stab the now deceased. The State alleges that this okapi knife is the murder weapon. Exhibit2: - This is a post mortem report compiled by Dr Pesanai on 7 December 2015 after carrying out an autopsy of deceased’s body. The following material observations and findings were made by Dr. Pesanai. (a) the now deceased had a stab wound on the left abdomen measuring 4 x 2 cm situated 5 cm from the midline and 8 cm from the pubic bone with evisceration of the small bowel (b) a stab wound on the left side of the back measuring 5 x 2 cm situated 5 cm from illiac crest and 5 cm from the midline at the back (c) perforated illiac vessel (d) retroperitoneal haematoma (the membrane covering the bowel) with about 500 ml of blood and blood clots in the abdomen containing about 250 ml of blood (e) the doctor concluded that the cause of death was haemorrhagic shock and perforated left illiac vessel arising from the stab wounds. The contents of the post mortem are not in issue. Our view is that the nature of the injuries on the now deceased are consistent with the use of a knife or a sharp object, which is inherently a dangerous weapon. The injuries clearly reflect that the attack was grisly, brutal and savage. The blows were clearly directed at the vulnerable parts of the human anatomy. Even the dimensions of the wounds inflicted reflect the severity of the attack. The small +intestines were disembowelled. This is consistent with use of or application of sever force. It may well be that the injury or stab wound at the back was inflicted as the now deceased tried CRB 6/17 HMA 16-17 to flee. The intention of the person who inflicted these injuries on the now deceased in our view is clear. It was to kill or cause death. This can be inferred from the nature of the weapon used, the part of the body the stab wounds were inflicted, the number of blows delivered and the sheer intensity and viciousness of the attack. We are therefore inclined to conclude and make a finding that whoever inflicted those injuries on the now deceased desired death to result or did forsee the death of the now deceased as substantially certain in the circumstances but nonetheless inflicted those injuries. The question this court has to resolve is who inflicted those injuries on the now deceased. This is a factual rather than a legal issue. In order to resolve this question, we turn to the evidence placed before us by both the State and the defence. THE STATE CASE 1. Dr Pesanai The evidence of Dr Pesanai is simply to the effect that he examined the now deceased’s body and compiled the post mortem report. This evidence is not contested. We turn to viva voce evidence. 2. Violet Moyo Violet Moyo (Violet) is the grandmother of the now deceased and a very elderly woman. She stayed with the now deceased. Violet told the court that the now deceased left employment at Mkwashi ranch in Gwanda in November 2015 and briefly left for South Africa but later returned home. She said the now deceased had worked as a grinding mill attendant at Mkwashi ranch, a job later taken up by the accused after the now deceased left employment. She is well known to the accused. Violet testified that she was unaware of the nature of the relations between the accused and the now deceased except that she recalled one day when the accused passed by her homestead and called out at the now deceased after which the two CRB 6/17 HMA 16-17 left walking together. She described the now deceased as a decent young man of sober habits who also did not smoke and took care of his siblings. Turning to the events of 4 December 2015 Violet said she came from the fields with the now deceased after which they had their lunch. The now deceased then left home around 2 – 3 pm as she was doing her laundry. At around 3 pm the now deceased came home crying saying that he had been stabbed by the accused whom he described as “Zoro the grinding mill attendant employed at Siziba’s plot.” She said the now deceased was in severe pain and was unable to give further details of the