S v Sifelani (HB 84 of 2021; HC (CRB) 118 of 2020) [2021] ZWBHC 84 (20 May 2021)

1 HB 84/21 HC (CRB) 118/20 THE STATE Versus CEPHAS SIFELANI IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J with Assessors Mr Matemba and Ms Baye GWERU 18, 19 AND 20 MAY 2021 Criminal Trial M. Shumba, for the State B. Balamanja, for the accused DUBE-BANDA J: The accused 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 is alleged that on the 15th December 2018, and at Dimbamihwa Business Centre, in the Midlands Province, the accused person unlawfully caused the death of Obert Tshuma (deceased), by stabbing him once on the right side of the chest and twice on the right thigh with an okapi knife, intending to kill him or realising that there was a real risk or possibility that his conduct may cause the death and 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. The accused tendered into the record an outline of his defence case, which is before court and marked Annexure B. The State placed before court a confirmed warned and cautioned statement recorded by the police on 18th December 2018. The statement was confirmed by a magistrate on the 4th January 2019. It is before court as Exhibit 1. The statement reads: I do admit the charge, I stabbed Obert Tshuma twice using a knife, once on the chest and once on the thigh. I also got injured on my leg and below my jaw but I do not know what injured me. The State further tendered a post mortem report compiled by Dr Roberto Lara Diaz, at United Bulawayo Hospitals on 19th December 2018. The report is before court and marked Exhibit 2, it shows the injuries sustained by the deceased and cause of his death. The Pathologist concluded that the cause of death was: acute anemia; right lung injury and stab wound. HB 84/21 HC (CRB) 118/20 The State placed before court a knife. Its colour and measurements are as follows: it has a brown wooden handle; length of handle is 13 cm; it has a silver blade and a pointed end; the upper part of the blade has pliers; length of blade is 11cm; total length of the knife is 24 cm; weight is 0.059 kg. The knife is before court as a real exhibit and marked Exhibit 3. The prosecutor sought and obtained admissions from the accused in terms of section 314 of the Criminal Procedure & Evidence Act [Chapter 9:07]. These related to the evidence of certain witnesses as contained in the summary of the state. That is, the evidence of Dr Roberto Lara Diaz, who examined the remains of the deceased and recorded a post mortem report. The evidence of Prisca Muzenda, a nurse stationed at Nyama Clinic. On the 15th December 2018, at about 1900 hours, this witness saw a group of people at the clinic, and in the middle of this group was the body of the deceased wrapped with a blanket. The witness informed the persons with the body of the deceased to make a police report. The evidence of Tonny Mudariki, this witness is a member of the Zimbabwe Republic Police (ZRP), stationed at Maboleni Police Station. He is the investigating officer in this matter. His evidence is that the accused gave his warned and cautioned statement freely and voluntarily, without undue influence. Accused made indications at the scene of crime, and a sketch plan was drawn. The evidence of Simbarashe Chaniwa, he is a member of the police. He recorded a warned and cautioned statement from the accused. The statement was given freely and voluntarily without undue pressure. The evidence of Johnson Mugodho, a member of the police stationed at Maboleni Police Station. He accompanied the remains of the deceased to United Bulawayo Hospitals for a post mortem examination. His evidence is that no further injuries were inflicted on the body of the deceased from the death to when the doctor held the post mortem examination. The State called three witnesses and accused testified in his own defence, and called one witness. We are going to summarise the evidence briefly. The first state witness to testify was Chamunorwa Lunga. He resides at Phakama Village, Headman Nyama, Chief Sogwala, and he is not employed. He knows the accused as a local person. He also knew the deceased as a local person. On 15 December 2018, at Dimbamihwa Shopping Centre, he saw one Bekimpilo Mlilo (accused’s witness) slapping the deceased with open hands. When the accused got to the point where there was Bekimpilo Mlilo, deceased and other persons, one Admire Tshuma, who was part of the group started to run away. He then saw deceased running away, and the accused in hot pursuit. Deceased ran for about 20 to 35 metres, and while running he looked backwards, tripped and fell on a drain. He fell facing upwards. Accused person got to HB 84/21 HC (CRB) 118/20 where deceased was. He started stabbing the deceased. Deceased was lying facing upwards. He was kicking upwards. The witness was about 30 away metres from the two, i.e. accused and deceased. This witnesses demonstrated what he says he saw happening, accused moving his hands towards the deceased, deceased lying on the ground facing upwards and kicking. Then accused left the scene. Deceased stood up, walked a few meters and fell down facing upwards. Witness walked towards the deceased, and saw that he had been injured. Deceased had a wound on the right side chest, and was bleeding profusely. Assistance was sought and deceased was taken to the clinic. The second witness to give oral evidence is Admire Tshuma. He resides at Village Vete, Headman Nyama. He is related to both accused and the deceased, although he is closely related to the latter. While he was buying airtime at Silo shop, he heard noise outside the shop. He got out of the shop and saw Bekimpilo Mlilo slapping deceased with open hands. The two were fighting. Deceased had no weapon. While witness was asking the two about what they were doing, he was stabbed by the accused. He fell down. Accused proceeded to pursue deceased who was running away. While running, deceased looked back and fell down. He fell facing upwards. Deceased tried to kick accused. While deceased was still on the ground, accused stabbed him on the thigh and chest. After the stabbing, accused took his bicycle and went away. This witness was ten metres from the stabbing scene. He saw the knife that was used, but does not know the type. Deceased was then taken to the clinic. The third witness to give oral evidence is Alberto Mtayikwa. At the material time he was a member of the police, stationed at Maboleni Police Station. He was part of the investigation team. Accused made indications which resulted in the recovery of the knife. The witness identified the knife which is before court as Exhibit 3, as the knife recovered following indications made by the accused. He observed injuries on the body of the deceased. Accused also had injuries. After the conclusion of the testimony of Alberto Mtayikwathe prosecution closed its case. Defence case HB 84/21 HC (CRB) 118/20 The accused elected to give evidence under oath. He testified that he is 35 years old, and his address is Dimbamihwa School. His evidence is that he initially did not have a dispute with the deceased. His dispute was with one Mbongeni Tshuma. When he was at the shopping centre, on the fateful day, deceased questioned him about the misunderstanding he (accused) had with Mbongeni Tshuma. Mbongeni Tshuma was a young brother of the deceased. Accused says he told deceased that he (deceased) “was young, if there is anything he intended to do, he must do it.” Accused says deceased said to him, “if you are a man, wait until sunset, it will be proved then.” Accused testified that he got worried, phoned his young brother to come to the shopping centre because they were people who were threatening him (accused). The young brother came to the shopping centre, approached th