S v Sibanda (106 of 2022) [2022] ZWBHC 118 (30 March 2022)

1 HB 106/22 HC (CRB) 13/22 THE STATE Versus LUCKY SIBANDA IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J with Assessors Mr. Mashingaidze and Mr. Ndlovu BULAWAYO 22, 23 February 2022 & 30 March 2022 Criminal trial K. M. Guveya, for the State Ms. Nkomo, with Mrs. Sibanda, for the accused DUBE-BANDA J: The accused person is charged with the crime of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on the 27th August 2019, and at around Compouns in Firstar and Spring Farm, Llwellin, Bulawayo accused struck Tsisti Theodora Hove (deceased) with a brick on the head intending kill her or realising that there was a real risk or possibility that his conduct may cause her death continued to engage in that conduct despite the risk or possibility. 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, and the accused tendered into the record an Outline of his defence case, which is before court and marked Annexure B. State case The State produced a post mortem report compiled by Dr S. Pesanai, at United Bulawayo Hospitals on the 23 September 2019. The report is before court and marked Exhibit 1, it shows that the cause of death was unascertainable due to the advanced decomposition of the body of the deceased. The State further produced and tendered into evidence a Samsung JL Cell Phone. It is before court as a real exhibit and marked Exhibit 2. Further the State produced a photograph and it was received by consent and accused admitted in evidence that is a true likeness of the person it purports to represent, i.e. himself. The photograph is before court and is marked Exhibit 3. HB 106/22 HC (CRB) 13/22 The prosecutor 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 certain witnesses as contained in the summary of the State Case, i.e. Annexure A. The evidence of Dr S. Pesanai was admitted. His evidence is that he is a duly qualified medical doctor. He conducted a post mortem examination on the body of the deceased and concluded that the cause of death could not be ascertained due to its advanced state of decomposition. The evidence of Never Ndlovu was also admitted. This witness did not know the deceased during her lifetime, and only knows the accused in connection with this case. On the 20th September 2019, at approximately 1200 hours he was herding his employer’s cattle when he spotted an object within some thickets. He discovered that it was a body of a human being in a state of advanced state of decomposition. On his way to the farm house to inform his employer he saw a navy blue T-shirt which was stashed in some bushes about 30 metres from the body, and a few metres away, there was a white plastic bucket which was damaged. This witness then reported his findings to his employer. Again to be admitted was the evidence of Gibson Malinga. He did not know the deceased during her lifetime, and only knows accused in connection with this case. On the 20th September 2019, at approximately 1200 hours Never Ndlovu informed him of the human body he had seen in the bushes. He went to the scene and the body was pointed to him by Never Ndlovu. The body was stashed in thickets and covered with some tree branches. The deceased was putting on a white top with black spots and a black skirt. This witness was shown a T-shirt which was about 30 metres from the body. There was also a damaged white plastic container in the vicinity. The evidence of Pardon Chimhere was also admitted. He is a member of the Zimbabwe Republic Police (ZRP) stationed at Fairbridge. On the 18 January 2020, on the basis of certain information his team arrested accused. The accused was informed of the offence he was arrested for, i.e. murder. An informal identification parade was held and Tapiwa Nkani, from whom the deceased’s cell phone was recovered identified the accused as the person who sold him the cell phone, i.e. Exhibit 2. HB 106/22 HC (CRB) 13/22 The evidence of Regis Chisekochevana was also admitted in terms of section 314 of the CP & E Act. He is the investigating officer. His evidence is that the body of the deceased was discovered in a state of advanced decomposition by a worker at Middlelands Farm, LIewellin. During investigations a court order was obtained compelling Econet Wireless Zimbabwe to supply an IMEI number as well as a call history and identify particulars in respect of deceased’s cell phone which had gone missing. The investigations established that the cell phone was being used by one Tapiwa Nkani. Tapiwa Nkani was interviewed and he indicated that he bought the cell phone from the accused. The recovered cell phone was given to deceased’s husband Kudakwashe Mushonga. His admitted evidence is that Kudakwashe Mushonga later returned to his office with a photograph of a male adult that was stored inside the cell phone (Exhibit 2). Mushonga said he did not know the person whose photograph was in the cell phone. Tapiwa Nkani confirmed that the person on the photograph was the one who sold him the cell phone. The accused was arrested on the 18th January 2020. On the 19th January 2020, the accused who was in his sound and sober senses and without any undue pressure being brought to bear on him made indications at the scene of crime. On the 20th January 2020, this witness recorded a warned and cautioned statement from the accused. The accused was in his sober senses, freely and voluntary without any undue pressure being brought to bear on him when he gave his statement. The evidence of Mbekezeli Bukhosi Dube was also admitted. His evidence is that on the 19th January 2020, he was part of a team that witnessed the indications made by the accused person at the scene of crime. The indications were made voluntarily and without any undue influence. On the 20th January 2020, he witnessed the recording of a warned and cautioned statement, and the accused who was in his sound and sober senses, gave his answers freely and voluntarily and without any undue influence being brought to bear on his person. The state called the oral evidence of four witnesses. We are going to briefly summarise their evidence. The first to testify was Kudakwashe Mushonga. Deceased was his wife. Early in the morning on the 27 August 2019, deceased left home to sell tomatoes. When she left home she was carrying a white bucket with tomatoes inside. She was putting on a dress, a top and sandals pink in colour. She had a blue J1 Samsung cell phone, which was in a brown cover. The witness left home around 8 a.m. to sell maize cobs. He got back home around 7 p.m. and the neighbours asked him whether he had spoken to the deceased during the day because her HB 106/22 HC (CRB) 13/22 phone was not reachable. He tried calling the cell phone and it was not reachable. The following day he reported a missing person at Cement Police Station. A month later he leant that a body had been found at a nearby farm. He went to Queen’s Park Police Station, there he was shown a bucket, a black tight, and a brown jacket, with different colours inside. He managed to identity the clothes and the bucket as things that deceased had when she left home on the 27th August 2019. He went to United Bulawayo Hospitals to check whether he could identify the body that was found at nearby farm. He identified the body as that of the deceased. Deceased had a certain mark on her leg, which helped the witness to identify the body as that of the deceased. The face had decomposed. He identified the top part of the dress she was wearing, and the bottom part had changed colour because of blood. This witness identified Exhibit 2 as the cell phone deceased was using and had in her possession when she went missing. The police working with Econet W