S v Musengeiwa (CRB 48 of 2015) [2015] ZWHHC 422 (3 March 2015)

1 HH 422/15 CRB 48/15 THE STATE versus COSMAS MUSENGEIWA HIGH COURT OF ZIMBABWE HUNGWE J MUTARE, 25 February 2015, 3 & 4 March 2015 Assessors: 1. Mr Rajah 2. Mr Chidawanyika Murder Trial Mrs J. Matsikidze, for the State F. Matinhure, for the accused HUNGWE J: The accused denied that when he struck the deceased, one Lovemore Rwapunga he intended to kill him. He admits however, that the deceased died shortly after striking him, from the injuries sustained in the assault. There is no suggestion that the deceased had in any way posed a threat towards the accused. The death of the now deceased led to charges of murder as defined in s 47 (1) of the Criminal Law (Codification & Reform) Act, [Chapter 9:23] being prepared at the accused. He pleaded not guilty. The following facts are generally agreed or not in serious dispute. On 15 September 2013 around 2300hours the accused proceeded to one Maidei Tira’s quarters behind Headlands Hotel in Headlands. He knocked and demanded to know the male complainant inside her room. She ignored his demands. He forced his way in and asked the male person to identify himself. When no one responded to his satisfaction he went out and returned armed with a log. He struck the deceased with this log and left the room. The deceased attempted to leave the premises but was again struck on the head with the log by the accused before he could do so. A visitor Hampton HH 422/15 CRB 48/15 Takaendesa restrained the accused. The deceased thereafter left the premises. He was discovered outside the clinic early next morning when he could no longer talk. He died shortly afterwards. In his defence the accused told the court that prior to the incident, he had been dating Maidei for three months. On the night of the incident, he had escorted her to her quarters after she knocked off duty. Around 2300hours he noticed the now deceased entering the lady’s room. He went round to enquire as to who this person was and what interest he had in his girlfriend. He had knocked on the door and was allowed inside by Maidei. He then asked Maidei about the person he had seen enter her room. Maidei denied any knowledge of such a person. He switched on his cellphone light. Under the new light he saw the now deceased and challenged him to identify himself. He claims that the now deceased did not identify himself but instead pushed accused outside. The accused felt extremely provoked by the conduct of these two. He picked up a log from outside and went back into the room. Once inside, he struck the deceased once indiscriminately in the dark. He was restrained by Hampton Takaendesa from further attacking the deceased. He admitted that he negligently caused the death of the deceased. The evidence on the record however does not support the version given by the accused. The first point we observed was that the accused and the deceased were known to each other. As such, there would have been no basis for the accused to have asked the deceased to identify himself. Secondly, the claim of an affair or a love relationship between him and the lady, is not borne out on even on the accused’s own version. If he had escorted her to her quarters when he was on duty, she must have known that the accused was around or in vicinity of the Hotel on night duty. We find it highly unlikely that she would have brazenly invited another lover into her room and leave her door unlatched. It seems to us that the more probable events is that given by Maidei that she had turned down the accused’s proposals previously. Unbeknown to her, he still wanted her for himself only. No one, including Maidei, anticipated what was afoot. Thirdly, we do not accept that the accused was as drunk as he claimed in light of the following facts: (a) He was on night duty; even accepting that some guards are known to drink on duty, they would maintain some semblance of sobriety; (b) When cattle broke out he had participated in driving them back into the cattle pen; HH 422/15 CRB 48/15 (c) He remained alert as to the goings-on at Maidei’s quarters although he was occupied with other duties; (d) The clarity with which he narrated the chronology of events in our view betrays the lie in his claim of intoxication; (e) The room was not dark as he claimed. If it, was then he would not have taken a log and accurately struck the deceased without risking assaulting the lady. That he was able to take out only the man in that single blow shows, to a large extent, that he was sober enough to see who was who in the room and direct his blow where he intended. Fourthly, Hampton Takaendesa told the court that the accused uttered words to the effect that he would kill someone before he struck the deceased on the head. He then struck deceased twice on the head. It is important, in our view when assessing the credibility of witnesses to bear in mind the probable bias each witness brings into the case. For Hampton Takaendesa he had visited this area. He had no connection to either the accused or the deceased. He is, in our view, less likely to be biased in his evidence in any way. The lady may have been affected by the fact that her lover was killed by accused. She therefore has a reason to be biased against him. We however, do not consider that she was on the day double-crossing the two men. In our view, she knew the accused had a crash on him and had turned him down. She did not care about the accused. She had a lover in the form of the now deceased. She must have been sure therefore that there was no problem in flaunting her new lover in the open. Her evidence as to what happened inside the room is to be preferred and accepted over that given by the accused. The post-mortem report further confirms both the evidence given by Maidei as well as that given by Hampton. The deceased was struck twice on the head. In our view the accused subjectively realised that there was a real risk or possibility of death occurring from striking the deceased on the head twice but, notwithstanding the realization of the real risk, he persisted with his conduct. In our view he intended the natural and probable consequences of his conduct. We arrive at this conclusion because the accused had to be restrained. He was aiming his blows to the head. He had no reason to assault the deceased besides a pang of jealous. He intended to remove a rival suitor violently. He must be found guilty of murder as defined in s 47 (1) of the Criminal Law (Codification & Reform) Act, [Chapter 9:023]. HH 422/15 CRB 48/15 National Prosecuting Authority, legal practitioners for the State Goneso & Ndlovu, accused’s legal practitioners