S v Muzira (30 of 2024) [2024] ZWCHHC 30 (12 April 2024)

1 HCC30/24 HCCR1669/23 THE STATE versus LINOS MUZIRA HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 12 April 2024 Assessor Mrs Mawoneke Mr Kamanga R. Nikisi, for the State N. Charehwa, for the accused Criminal Trial MUZOFA J [1] The accused is facing a charge of murder. The State alleges that on the 27 th of June 2020 at Shumbayaonda Business Centre, Chief Chirau, the accused assaulted the deceased, Donald Chitofiri with stones and bricks intending to kill him or realizing that there was a real risk or possibility that death may ensue but persisted in the conduct. [2] The accused denied the charge. Although he admitted having an altercation with the deceased, he remained adamant that he did not cause the deceased’s death. He shifted the blame to the deceased’s friends who threw a brick to strike him but missed and hit the deceased. In another breath he raised provocation. The State Case [3] To prove its case the State produced the following exhibits by consent. i. The post mortem report which recorded that death was due to severe multiple open skull fractures. ii. The accused’s confirmed warned and cautioned statement in which he denied the charge. He said he fought with the deceased. HCC30/24 HCCR1669/23 iii. iv. The sketch plan. A certificate of weight in respect of the stones and bricks allegedly used by the accused. v. The stones and broken bricks used by the accused. [4] The evidence of four witnesses was formally admitted in terms of s314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. [5] The admitted evidence by Rudo Matekenya, James Bright, Deniah Memory Chivhanga can be summarised as follows. [6] The accused and deceased were at Shumbayaonda Business Centre together with other patrons gambling. The accused had US$1.00 which he intended to exchange for the local Zimbabwe currency. The deceased, offered to transact with the accused. He took the US$1.00 from the accused. However, he did not deliver the local currency equivalent. [7] Obviously the accused was not amused, he was angry and tried to retrieve his one dollar but failed. The accused briefly left the scene. He returned and warned the deceased that he would kill him. He threw a brick at the deceased. There was commotion. Most patrons ran away from the scene. [8] The deceased was severely injured. He lay on a veranda. Bright James was called to provide transport to ferry the deceased to the hospital. When Bright arrived at the scene the deceased had died. They called the police. [9] Seargent Deniah Chivhanga of ZRP Zvimba attended the scene of crime together with other officers. At the scene she observed that the deceased lay in a pool of blood. The deceased had multiple head injuries. Where the deceased lay, there were several stones and bricks which she recovered. They were produced as exhibits. The body was taken to the mortuary and a post mortem conducted. [10] Two witnesses Quiet Nyamidzi and Batsirai Kambarami gave evidence. They knew both the accused and the deceased as local community members. [11] Quiet Nyamidzi HCC30/24 HCCR1669/23 The deceased was his nephew. He knew the accused as one of the local residents in their community. On the fateful day he went to the Business Centre late in the day. When he arrived, he found some people gambling. The accused and the deceased were also at the Business Centre gambling. [12] The accused demanded his US$1.00 from the deceased. He did not know the genesis of this US$1.00 issue. They started pushing and tussling. The deceased tore the accused’s Covid pass. The offence took place during the Covid pandemic period. During this time traveling was limited. Only persons with valid traveling passes could travel. When the accused’s pass which enabled him to travel to work was torn by the deceased he got even more agitated. They continued to fight but were eventually refrained. [13] The accused briefly left the scene. The deceased resumed gambling. He stood by shuffling playing cards. While he did so, the accused threw a brick that struck the deceased. The deceased fell. Patrons ran around some rushed off the scene. He also left the scene to advise his friend about what transpired. He returned to the shops with his friend. [14] When they arrived at the scene, the deceased was lying on the ground. Accused was striking the deceased. He held the accused by his belt and refrained him from further assaulting the deceased. At this stage he did not see what the accused used to assault the deceased. [15]When he refrained the accused, they left going to a funeral. Later they advised the deceased’s grandmother about what transpired. [16] He did not see anyone striking the deceased except the accused person. [17] His cross examination skirted the issue about the deceased’s friends throwing bricks and stones. It focused on the provocation. Quiet conceded that the deceased was the author of the altercation. Firstly, he took the accused’s money and did not hand over the local currency equivalent. Secondly, he tore the accused’s Covid pass. The accused was visibly angry. [18] He was adamant that he saw the accused striking the deceased on the head. [19] Batsirai Kambarami HCC30/24 HCCR1669/23 He operated a shop known as Mukokera General Dealer at Shumbayaonda Business Centre and stayed at the shop. He was not at the shop during the day. He returned home around 3pm. There were people gambling. The deceased arrived at dusk. The assault on the deceased took place by the veranda of his shop. [20] Around 7pm they had retired to bed. Shortly thereafter he heard some noise and a stampede of people running away. He heard a voice threatening to kill someone or words to the effect, “I will hit you, you will not see tomorrow”. Obviously, he knew there was trouble, he decided to go outside and call for help. [21] He opened the door and saw the accused carrying stones in both hands approaching the veranda. He quickly closed the door for fear of being attacked. [22] He heard the accused continue to swear that he would damage the deceased beyond repair. At that time he was not aware of the identity of the person being attacked. [23] Under cross examination he confirmed that he did not know how the altercation started. He did not see the accused striking the deceased. He only saw the accused with stones and swearing. He also heard the deceased scream in pain. [24] Despite the witness professing ignorance on how the altercation started, he was questioned about the deceased’s friends. Naturally he did not know anything about it. The questions should have been directed to Quiet. [25] He was also quizzed about the illumination at the scene. He was clear, it was at night but there was moon light. He reconciled smoothly with Quiet’s evidence who said they had phone torches. He explained that they may have used the torches while gambling. On his part he could see the accused since there was moonlight. He could easily identify the accused since he had known him for one and a half years. The State then closed its case. The Defence Case [26] The accused adopted his defence outline. He elected to briefly explain what transpired. [27] He said he had an altercation with the deceased. He then fought with the deceased. He did not give details how they fought. HCC30/24 HCCR1669/23 [28] His cross examination was brief. There was no need for a sustained one for that matter. The accused was clear that he was provoked. [29] He was not quick to give details of how he fought with the deceased. It is only after some incisive questions that he let out some information on how he fought with the deceased. [30] He said as they tussled, he heard the deceased call out to his friends to strike the accused. A stone was thrown at him, he ducked and it struck the deceased. According to him the deceased’s friends targeted him . He could not tell who threw the stone. The defence case was then closed. Closing submissions [31] Both legal practitioners addressed the court in terms of s200 of the Criminal