S v Sibanda (183 of 2022) [2022] ZWBHC 183 (29 June 2022)

1 HB 183/22 HC (CRB) 77/22 THE STATE Versus JOSPHAT SIBANDA IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J BULAWAYO 9 JUNE 2022 & 29 JUNE 2022 Criminal trial K. M. Guveya for the State T. Ndlovu for the accused DUBE-BANDA J: Introduction 1. The accused person is charged with the crime of murder as defined in section 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on the 1st January 2022, and at a Sewage Stream near Roman Catholic Church, Pumula South, Bulawayo he drowned Constance Chitete (hereinafter referred to as the “deceased”) three times inside the Sewer Stream until she lost consciousness intending to 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 of death. 2. 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. The accused tendered his defence outline and is before court and marked Annexure B. 3. In brief the accused’s defence is that he was so intoxicated that he had a blackout and did not have an appreciation of what he was doing when he caused the death of the now deceased. HB 183/22 HC (CRB) 77/22 The State case 4. In the opening of the State case the State counsel with the consent of the accused tendered the following documentary exhibits: post-mortem report number 04-04-22 (Ext. 1); and accused’s confirmed warned and cautioned statement (Ext. 2). 5. The State Counsel further 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 the following witnesses as contained in the summary of the State case: i. The evidence of Witness Sibanda. His evidence is that on the 1st January 2022, at around 0500 hours, he was jogging with his wife along an unnamed road in Pumula South heading towards Godlwayo Drive. As they got onto the foot path from the unnamed road, he heard a voice of a woman screaming from the left side of the road within the bushy area of the sewer scream. ii. As the witness and his wife carried on with their run along the foot path which connects Godlwayo Road, the screams of the woman intensified and could be heard that she was moving towards Godlwayo Drive a few meters away from the Bridge. The woman was screaming and shouting saying: “Help me, he wants to kill me.” This witness and his wife increased their pace rushing towards Godlwayo Drive to see what sort of help the woman needed. As the witness and his wife got to Godlwayo Drive, he saw accused aggressively holding her by her shoulders and the woman who was struggling to free herself. Whilst at a distance of about thirty-seven meters the witness’s wife shouted to alert the two of their presence by saying: “hey you what are you doing leave her” but the accused did not stop. iii. The witness and his wife moved to a point towards the bridge along Godlwayo Drive and stopped. The witness saw accused holding deceased by the shoulders. It was almost sunrise. The witness’s wife shouted saying: “Hey you, leave that HB 183/22 HC (CRB) 77/22 person alone.” The accused was aggressively holding deceased by the shoulders and she was struggling to free herself and screaming lounder. iv. Accused violently pushed the deceased into the sewer stream and accused immediately followed after her by jumping into the stream. This witness and his wife then rushed to the bank of the sewer stream where accused was standing before he pushed deceased into the stream. The witness observed that the sewer waters were almost below accused and deceased’s shoulders. He also observed some struggle marks on the banks of the stream caused by accused and deceased. v. Accused then immersed deceased twice into the sewer waters with an approximate two minutes interval. The witness’s wife began screaming out for help and appealing to the accused to stop what he was doing but accused did not stop, instead he immersed deceased for the third time. This witness saw accused pressing deceased continuously by the back of the neck with a tight grip immersing her in the sewer water. The deceased was gasping for air by splashing the sewer water but accused did not stop to allow her to gasp for air. Now deceased eventually became motionless. vi. This witness seeing that deceased’s life was in danger and he was helpless, rushed home to go and alert the Police about the incident. He left his wife at the banks of the sewer stream monitoring the accused. He reported at Pumula Police Station and the police accompanied him to the scene. Upon returning to the scene, this witness’s wife showed the police the place where the accused was hiding. They could not see deceased’s body which had submerged under the water. The police persuaded the accused to come out of the water, but he refused. A crowd started gathering at the scene and accused pelted it with stones. This witness retreated to his vehicle leaving the police managing the scene. vii. The evidence of Kudzai Wemba. His evidence was that he is a member of the Zimbabwe Republic Police (Z. R. P.). On the 1st January 2022, in the company HB 183/22 HC (CRB) 77/22 of Witness Sibanda and other police officers he attended the crime scene. It was an active scene. At the scene Lwazi Sibanda directed his team to where accused was hiding. This witness asked the accused to come out of the sewer stream and asked him where the body of the deceased was, and the accused did not respond. The witness noticed that a crowd was slowly gathering at the scene, and he continued to persuade the accused to come out of the sewer stream. The accused began throwing stones towards this witness and the crowd. The witness retreated and returned to talk to the accused to reveal where the body of the deceased was. Accused finally pointed out at a place in the sewer stream where there were some reeds and said that was the point where the body of the deceased was. viii. This witness asked the accused to bring out the body of the deceased. Accused proceeded to the place where he had pointed out, and lifted the body of the deceased and carried it to the banks of the stream. He left the body on the banks and quickly returned to the sewer waters. He continued throwing stones to the witness and the crowd. ix. This witness observed that the body of the deceased had some froth on the nose, scratch above the left eye and some reddishness on her back. One Ruth Sibelo arrived and identified the body to Sergeant Moyo as that of Constance Chitete. This witness continued to persuade the accused to come out of the sewer water and he eventually came out. Upon reaching the banks of the river accused punched Sergeant Moyo, felling him down. The crowd pounced on the accused and assaulted him with fists, booted feet and sticks. This witness intervened and convinced the crowd not to assault the accused. This witness and Constable Dube assisted by the public managed to handcuff the accused. Later in the day accused complained of painful left leg and hands and he was taken to hospital for treatment. x. The evidence of Delight S Netha. Her evidence was that she is a member of the Z. R. P. and was that she was part of the police team that attended an active scene HB 183/22 HC (CRB) 77/22 on the 1st January 2022. Lwazi Sibanda showed the police where the accused was hiding in the sewer waters. Accused finally came out of the waters and was arrested and handcuffed with the help of the public. Her evidence is that Detective Sergeant Munyanyi of CID Scenes of crime took photographs of the body before it was placed inside the police dead body metal box. Her evidence is that during the time the body was under her care it did not suffer further injuries. xi. The evidence of Brian Munyanyi. He is a member of the Z. R. P currently