S v Sibanda (17 of 2024) [2024] ZWBHC 13 (30 January 2024)

1 HB 17/24 HCBCR 49/24 THE STATE Versus MTHULISI SIBANDA IN THE HIGH COURT OF ZIMBABWE KABASA J with Assessors Mrs. C. Baye and Mr E. Shumba GWERU 29 and 30 JANUARY 2024 Criminal Trial M. Mhene, for the state B. Balamanja for the accused KABASA J: The accused appeared before us on a charge of murder as defined in section 47 (1) of the Criminal Law (Codification and Reform) Act, Chapter 9:23 to which he pleaded not guilty. The state alleges that on 3 September 2020 the accused in the company of Knowledge Museni went to Drunkard 21 Mine Safago in Shurugwi where they saw the now deceased who was seated in a tent. The accused signaled the now deceased to come out of the tent which he did. They proceeded behind the tent where the accused proceeded to stab the now deceased once on the chest. The now deceased managed to run away but collapsed after about 400 metres. He was ferried to Gweru Provincial hospital where he was certified dead on arrival. In his defence the accused explained that prior to 3 September 2020 the now deceased had fought with Knowledge which fight resulted in Knowledge sustaining a stab wound. On 3 September the accused went to Drunkard 21 Mine to mill his gold ore and he was then informed that Knowledge and one Tamsanqa had had another fight with the now deceased. He tried to investigate following the direction they had taken. He stumbled upon a spoor of blood. People who were strangers to him were coming from the direction where the spoor of blood was leading to. He decided to flee for fear that they would turn on him to avenge the attack on the now deceased. He was later arrested and upon his arrest the Police assaulted him forcing him to admit to the charge. The statement he was induced to give was later confirmed by a Magistrate but the Police Officers who had threatened him were allowed to sit in court during the confirmation proceedings. In seeking to prove its case the state produced the post-mortem report which gave the HB 17/24 HCBCR 49/24 cause of death as:- Acute anemia Hepatic laceration Stab wound The marks of violence observed by the doctor who conducted the post-mortem were:- a) b) c) Incised wound, 5 cm x 2 cm in the chest, 8th intercostal arch at 5 cm from sternum. Abundant free blood in thoracic cavity and Laceration in the right lobe of the liver which had a pale cut surface. The doctor’s evidence was admitted in terms of section 314 of the Criminal Procedure and Evidence Act, Chapter 9:07. The evidence of seven witnesses was also similarly admitted. The witnesses’ evidence chronicled the events which occurred after the now deceased was stabbed. Ephraim Nhimba was the one who ferried the now deceased to a clinic and to hospital where the deceased was pronounced dead. James Murandani is the now deceased’s father who was informed of the incident and accompanied the deceased to hospital. He checked the now deceased’s body and observed a stab wound on the right side of the chest. The now deceased informed him of the identity of the person who had stabbed him. On arrival at the hospital the now deceased was certified dead. The other witnesses were the Police Officer who attended the scene and observed the spoor of blood on the route the now deceased had taken, and the arresting detail who arrested the accused in Lower Gweru with the assistance of gold panners. Saul Bikwi was the Police Officer who ferried the deceased’s body for post-mortem examination which examination was done by Doctor Juana Rodriguez Gregori after the body was identified by a Police Officer, one Welcome Dube. The Police Officer who witnessed the recording of accused’s warned and cautioned statement and later took him for indications had his evidence admitted and so was not called to testify. HB 17/24 HCBCR 49/24 The state then led evidence form four state witnesses. The first witness was Godknows Masengu. He was with the now deceased on the fateful day. His testimony was to the effect that he accompanied the now deceased to look for cattle. When they arrived at Drunkard 21 mine they decided to join some people who were seated in a tent. The accused arrived shortly thereafter in the company of his colleague and he was holding a metal object which was sharp at the tip. He did not see how the accused summoned the now deceased but he saw the now deceased going to where the accused was. Just then people shouted that there were people chasing each other. He then saw the accused and his colleague running after the now deceased but they did not catch up with him. He followed the now deceased and on getting to where he was he had his hand on his chest and uttered the words “I have been killed my son.” He was ferried to hospital but was pronounced dead soon after arrival. This witness gave a detailed and clear account of the events of this day. He observed the accused for about 2-3 minutes in broad daylight. At the time of such observation all was well and so it cannot be suggested that there was anything that militated against the witness’s ability to observe the people who summoned his uncle, the now deceased and left with him. As the accused ran after the now deceased the witness was able to observe him and noticed the sharp object he was carrying. Is it possible that this identification was honest but mistaken? (S v Mutters & Anor S 66-89, S v Makoni & Ors S 67-89). Granted this witness did not know the accused before this day but when he met him he did not have a mere fleeting glance at him. This is because when the accused arrived he greeted the now deceased before they went behind the tent. Shortly thereafter the witness had reason to take note of the same accused who was now chasing after the now deceased. This was his uncle who he was with on their mission to find their cattle. Surely he would have had reason to have interest in taking note of this person who was chasing after his uncle. After failing to catch up with him the accused returned to where this witness was and so he had another opportunity to observe him before he left following the now deceased. We were satisfied the witness had ample time to observe the accused and could not have been mistaken. HB 17/24 HCBCR 49/24 We are fortified in so concluding because the witness’s evidence was materially corroborated by Douglas Mukutsha. Douglas had known the accused for about 3 months as he used to come to the mine where the witness worked. On this day the accused came in the company of one he knew as “Wasu” and they had gold ore for milling. He then heard a voice calling out that there were people who were having “issues” outside. He took barely 2 steps from where he was seated and observed the accused chasing after the now deceased. The accused was carrying a sharp metal object. This “Wasu” was following behind the accused as they chased the now deceased. They did not catch up with him and after a few minutes he saw the accused and “Wasu” coming back walking very fast. He decided to check on the now deceased and saw him trying to run but falling at each attempt. He followed and found him lying on the ground and bleeding from an injury which was on his chest. He was crying uttering the words “I have been injured, I am dying.” This witness is the one who called the mine driver who came and ferried the now deceased to hospital. The witness’s narration of the events was similar to the first witness except for the events which happened at the tent. This is because this witness was not at that place when accused and “Wasu” had their first encounter with the now deceased. It is important to note that this witness was not known to the now deceased in a manner that would cause him to seek to falsely incriminate the accused. He knew the now deceased as a person whose home was near where he worked and knew accused as a person who used to come to that mine to mill his gold ore. Why would this witness fail to recognize a person who he had known for 3 months? On this day he saw the accused in broad dayligh