S v Mupayiki (CRB 100 of 2015; HH 199 of 2016) [2016] ZWHHC 199 (18 March 2016)

1 HH 199-16 CRB 100/15 BRYN MUPAYIKI versus THE STATE HIGH COURT OF ZIMBABWE MAWADZE J HARARE, 7, 12, 13, 16 October, 2, 3, 6 November 2015 & 18 March 2016 Assessors 1. Mr Chakuvinga 2. Mr Chiwanda Criminal Trial D. H. Chesa, for the State B. Museba, for the accused MAWADZE J: The accused in this rather bizarre and unusual case is charged with two counts of murder as defined in s 47 (1) of Criminal Law (Codification and Reform Act) [Chapter 9:23] arising from unrelated circumstances. In count 1 the charge is that on 3 February 2013 at the corner of a road linking Chambara business Centre and the Harare to Masvingo highway in Chivhu the accused unlawfully and intentionally caused the death of MOSES TOPODZI by hitting him with a clenched fist and a concrete block in the head several times thereby inflicting injuries from which MOSES TOPODZI died. In count 2 the charge is that on a date unknown to the Prosecutor but in April 2013 at Hampshire Farm eastern Featherstone in Chivhu the accused intending to kill MEHLULI DHLAMINI or realising that there was a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility, hit MEHLULI DHLAMINI on the jaws with fists and drowned him in a pool of water with three big stones tied around his body thereby killing him instantly. The facts giving rise to count 1 are as follows: The accused and the deceased MOSES TOPODZI (hereafter the 1st deceased) were paternal half-brothers and the 1st deceased was not staying with their father one Murambiwa HH 199-16 CRB 100/15 Mupayiki as his mother was divorced. The accused was staying with their father and his mother. The 1st deceased was older to the accused. It is common cause that on 3 February 2013 the 1st deceased met accused who was in the company of Justice Mukuya and Shepherd Shonhiwa as he was going to Mutangadura village from Nyamhere business centre. It is alleged that accused then lied to the 1st deceased that the 1st deceased was wanted at accused’s home to collect some clothes which had been bought for 1st deceased by their aunt and this caused the 1st deceased to proceed in the direction of accused’s home with the accused. It is stated that on the way the 1st deceased expressed his wish to join his family, that is his father and accused’s mother and that the accused did not like this development. At that stage the state alleges that the accused unexpectedly hit the 1st deceased with a clenched fist and the 1st deceased fell down unconscious. The accused is said to have proceeded to drag the 1st deceased for about 33 metres off the road they were using and picked a concrete kilometre peg which the accused used to strike the 1st deceased several times on the head until he died. It is not issue that the 1st deceased’s body was only discovered by Annaniah Mupayiki some three days later on 6 February 2013 and the matter was reported to the police. The accused was subsequently arrested through police investigations. The State alleges that the accused thereafter made indications leading to the recovery of the concrete kilometre peg. The post mortem was done on 1st deceased on 8 February 2013 by Dr Kanyemba who concluded that the 1st deceased died due to severe destructive head injury caused by a sharp object. In count 2 it is alleged that on a date unknown to the prosecutor but in April 2013 the accused and the now deceased MEHLULI DHLAMINI (hereinafter the 2nd deceased) were on their way to Manyere area in Chivhu when they got near No 1043 Hampshire farm Featherstone when the accused hit the 2nd deceased with fists causing him to fall down. The accused is said to have dragged the 2nd deceased to a pool of water in a stream and submerged his body with three big stone after undressing him. The 2nd deceased’s floating and naked body was only discovered by one Fungai Musami on 28 April 2013 and a report was made to the police. A post mortem done by Dr Tasimbanashe Masamha shows that the 2nd deceased died due to head injury and cervical spine injury caused by assault. The 2nd deceased’s identity remained unknown for some time. It is the State case that the 2nd deceased’s clothes HH 199-16 CRB 100/15 were later discovered by one Joyce Mudyiwa near the scene of crime and that this led to the establishment of the 2nd deceased’s identity. In his defence in respect both counts 1 and 2 the accused denied that he killed both the 1st and 2nd deceased. In respect of count 1 the accused said he indeed met the 1st deceased on 3 February 2013 as alleged and that he proceeded to Nyamhere business centre with the 1st deceased where he left the 1st deceased at the business centre and proceeded to his home. The accused denied killing the 1st deceased or taking his cell phone. In fact that accused said he was equally shocked when the 1st deceased’s body was discovered and that he also attended 1st deceased’s funeral. In respect of count 2 the accused said he first met the 2nd deceased in Marange in November 2012 when they were both looking for diamonds and they became friends. In March 2013 the accused said he met the 2nd deceased at Mushayavanhu business centre in Gutu where the 2nd deceased asked accused to assist the 2nd deceased in finding buyers of the 2nd deceased’s diamonds. The accused said they agreed to go to South Africa to sell the diamonds. The accused said in April 2013 he was called by telephone to 2nd deceased’s rural home in Gutu in order to finalise their journey to South Africa and that the accused met the 2nd deceased’s sister at Chisheche business centre in Gutu who took him to 2nd deceased’s home as 2nd deceased had gone to Masvingo. The accused said the 2nd deceased returned home at night and the following day they both proceeded to Chivhu enroute to South Africa. While in Chivhu accused said he took the 2nd deceased to accused’s uncle’s house one Sydney Rwafa and that they late met accused’s friend Nyararai Magamu. The accused said he later went with 2nd deceased and Nyararai Magamu to cross road night club in Chivhu to drink beer that day where thereafter both accused and 2nd deceased took two prostitutes and separated after agreeing to later meet at the same night club at 0300 hrs. The accused said he returned to Sydney Rwafa’s house to collect his bag and went to the night club to meet 2nd deceased but found that the 2nd deceased was not there and that his cellphone was not reachable. The accused said he then left the night club and never met the 2nd deceased again. The accused said he only later learnt of 2nd deceased’s death after his arrest. Accused said when he failed to locate the 2nd deceased at the night club he proceeded to Chitungwiza and never tried to call the 2nd deceased again. The accused in concluding his defence outline disowned both his confirmed warned and cautioned statements in respect of count 1 and 2 saying he was forced to sign them under HH 199-16 CRB 100/15 threats of death and assault by police officers. The accused said he did not challenge the statements before the magistrate during confirmation proceedings for fear of being victimised by the police who had threatened to deal with him if he disowned the statements before the magistrate. The accused therefore said he challenges the admissibility of the statements. During the trial the following exhibits were admitted by consent. Exhibit 1: This is the post mortem report in respect of CTI in relation to the 1st deceased compiled by Dr Alice Kanyemba. Dr Alice Kanyemba also gave viva voce evidence which was not challenged. She made the following observations and findings: (i) (ii) that the 1st deceased’s body was decomposing with maggots the 1st deceased had defensive wounds on the upper part of the arms which were consistent with the 1st deceased trying to block the blows inflicted on him with his arms. (iii) that the 1st deceased had a stab wound on right clavicle and right axilla which was 15 cm deep, that is from