S v Siwela and Another (203 of 2023) [2023] ZWBHC 12 (27 September 2023)

1 HB 203/23 HC (CRB) 136/22 THE STATE Versus MONDLIWETHU SIWELA And MICHAEL SASUMA VUMA IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J with Assessors Mr Mashingaidze and Mr Dewa BULAWAYO 25, 26 & 27 September 2023 Criminal trial Mr. K. M. Nyoni, for the State Mr. D. Abraham, for the 1st accused Ms. A. Mbeure, for the 2nd accused DUBE-BANDA J: [1] The accused persons, Mr Mondliwethu Siwela (accused 1) and Mr Michael Sasuma Vuma (accused 2) are appearing before this court charged with the crime of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Criminal Code). It being alleged that on 5 November 2021 the two accused persons assaulted Maxwell Dube (deceased) using fists and switches all over the body intending to kill him or realising that there is a real risk or possibility that their conduct may cause the death of the deceased and continued to engage in that conduct despite the risk or possibility. [2] The accused persons were legally represented throughout the trial. In his plea accused 1 admitted that he assaulted the deceased but he did not intend to cause his death. Accused 2 admitted that he assaulted the deceased to remonstrate with him, and did not intend to cause his death. A plea of not guilty was entered as required by law. The State tendered an outline of the summary of the State case (Annexure A), which was read and is part of the record. The accused persons through their Counsel tendered their defence outlines (Annexures B and C respectively). The defence outlines were read and are part of the record. [3] The following admissions by the accused persons were recorded in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] (CP & E Act). The admissions relate to the evidence of certain witnesses as it appears in the summary of the State case. HB 203/23 HC (CRB) 136/22 [3.1] The evidence of Dr. I. Jekenya is that he is a registered medical practitioner based at Mpilo Hospital. His evidence is that on 10 November 2021 he examined the remains of the deceased and compiled a post mortem (exhibit 1) depicting the injuries sustained by the deceased and the cause of his death. He observed that the cause of death was brain haemorrhage, head injuries and assault. [3.2] The evidence of Polite Nkomo is that on 5 November 2021 at 7:30 p.m. she was at her shop at Matiwana Business Centre. First, accused 2 entered the shop, and after a short while the deceased entered the shop holding three okapi knives and money which he placed on the shop counter. He said he won the money at a gambling school. He opened one okapi knife saying “I want to kill someone today.” He then ran outside the shop, and the two accused persons followed him. Accused 1 had a torch which he took from the shop. And after a while she heard a man’s voice screaming. She went outside the shop to check what was happening, she saw torch lights a few metres away from the shop. She did not go closer to observe what was happening, thereafter she closed the shop and went home. [3.3] The evidence of Forward Ndlovu is that on 5 November 2021 at around 8 p.m. he heard a voice of a person crying for help and checked what was happening. He saw accused 1 hitting the deceased with clenched fists several times all over the body and accused 2 assaulting him with switches several time all over the body. Accused 1 used both hands to tore deceased’s clothes. He warned both accused persons to stop assaulting the deceased, but they did not heed the warning. [3.4] The evidence of Cathrine Ndebele is that on 5 November 2021 deceased left home going to Matiwana Business centre and did not return home. She looked for the deceased and found him lying on the ground facing upwards. She tried to wake him up but he was unconscious. She saw several switches in the vicinity to where the deceased was lying down. The evidence of Edson Ncube is that he ferried the HB 203/23 HC (CRB) 136/22 deceased to Mayobodo Police Station and to Mayobodo Clinic. The evidence of Solomon Chaisimbi is that he is the investigating officer in this matter, and on 26 November 2021 he recorded warned and cautioned statements from the accused persons. [4] The State tendered with the consent of the accused persons the following documentary and real exhibits: the Post Mortem Report No. 220/182/2021 (exhibit 1) complied by Doctor I. Jekenya who examined the remains of the deceased. The confirmed warned and cautioned statement of the accused 1 (exhibit 2), and the confirmed statement of accused 2 (exhibit 3). Six mopani switches with the following measurements: weight 60g, length 75cm (exhibit 4.a); weight 170g, length 103cm (exhibit 4.b); weight 150g, length 75cm (exhibit 4.c); weight 200g, length 104cm (exhibit 4.d); weight 73g, length 37cm (exhibit 4.e); weight 70g, length 106.5cm (exhibit 4.f). [5] The State called one witness to give oral evidence and the accused persons testified in their own defence. The evidence of the witnesses will be summarised very briefly. [6] The State called the evidence of Calistas Moyo. He testified that the deceased was his cousin brother and the accused persons are local villagers. He said near Matiwana Business Centre at approximately between 7 p.m. and 8 p.m. he heard a voice of someone groaning and calling out the names of the accused persons and asking why they were killing him. He proceeded to the scene and saw that the accused persons were beating up the deceased. Accused 1 was sitting on the chest of the deceased and punching him with fists. Accused 2 was using a switch and beating him on his back. He testified that he got hold of accused 1 by the shirt to get him off the chest of the deceased. The witness was then pushed by accused 2, he fell down and had bruises on his arms. He became afraid then decided to leave scene and go to his home. [7] Under cross-examination by Counsel for accused 1, the witness testified that there was a torch that was illuminating the scene and as a result visibility was good. He said the deceased was lying down facing upwards and the accused 1 sitting on his chest. Under cross- examination by Counsel for accused 2, he testified that he did not know the reason the accused persons were beating up the deceased. Accused 2 was using switches to beat up the HB 203/23 HC (CRB) 136/22 deceased. He tried to reprimand the accused persons to stop beating up the deceased, but they did not heed his reprimand. Counsel put it to the witness that after the reprimand accused 2 left the scene, this was disputed and the witness said he left the two still beating up the deceased. Answering to the question by the court, he said accused 2 was beating up deceased using a switch taken from a mopane tree. [8] The court’s view is that Mr Calistas Moyo was a very good witness, he was honest and candid in his evidence. His evidence is corroborated by the evidence of Forward Ndlovu whose evidence was admitted in terms of s 314 of the CP&E Act. He gave a correct version of what he saw and did at the scene. His evidence is accepted as a correct account of what he saw, and it is accepted without reservation. [9] After the evidence of Calistas Moyo the prosecution closed the State case. [10] Accused 1 testified in his defence. He testified that he arrived at Matiwana Business Centre at approximately 11 a.m. He bought himself beer and started drinking, and at around 12 O’clock the deceased joined him and they consumed beer together. Later accused 2 arrived and bought his beer, and sat on a different bench. The drinking of beer continued until sun-set. The deceased went outside the shop, and when he returned, he was holding knives in both hands, and saying he felt like killing a person. The accused testified that he asked deceased as to who he wanted to kill, and at that point the deceased attempted to stab him. Accused 1 said he then took his bags intending to go home, and when outside the deceased throw stones at him. He testified that he ret