S v Siziba (23 of 2024) [2024] ZWMSVHC 23 (7 June 2024)

1 HMA 23/24 HCMSCRB 590/24 THE STATE vs TALENT SIZIBA HIGH COURT OF ZIMBABWE MAWADZE J. MASVINGO, 20, 21 May & 7 June 2024 Assessors 1. Mrs Chademana 2. Mr Mutomba Criminal Trial Ms M. Mutumhe, for the state O Mafa, for the accused. MAWADZE J: The 27year old accused is facing the charge of murder as defined in Section 47(1) of the Criminal law [Codification and Reform Act] (Chapter 9:23) [The Criminal Law Code]. The essence of the charge is that on 29 May 2023 at Mhandamabwe Business Centre, in Chivi the accused caused the death of the then 38 year old now deceased MARUFU KWANGWARE. The accused hails from Ntunjibila, Matopo’s in Bulawayo. He had been employed for about 3 months in Chihombodo Village, near Makovere Primary School in Chivi as a domestic worker looking after the employer’s homestead, herding cattle and doubling as a grinding mill attendant. The now deceased was a local person employed as a domestic worker at Mandamabwe Business Centre. The accused and the now deceased were not known to each other, The circumstances leading to the now deceased’s death can be summarised as follows; HMA 23/24 HCMSCRB 590/24 On 28 May 2023 in the evening the accused proceeded to Mabhiza bar at Mandamabwe Business Centre. According to the accused he had just been paid his monthly salary of US$80. Mabhiza bar was manned by a bar lady called Evelyn Marisa. She is 26 years old and a single mother. Evelyn Marisa doubled as a sex worker after closing business. The accused and Evelyn Marisa had had two sexual encounters before, purely on the basis of sex for money. Thus on 28 May 2023 the accused requested to be intimate with Evelyn Marisa in exchange for money. There is a dispute as to what fee was charged and whether any money exchanged hands. What is not in issue is that after Evelyn Marisa closed her bar she proceeded to Chikozho bar where the accused was around 01:00hrs now on 29 May 2023 to collect him. They both proceeded to Evelyn Marisa’s lodgings within the Mabhiza bar complex. Again it is not in issue that the two could not engage in sexual intercourse. The reasons thereof are in issue. Evelyn Marisa says accused had no money to pay for the sex, which payment was to be made before intimacy. The accused on the other hand says a paramour or a rival suitor came violently knocking at Evelyn Marisa’s door forcing Evelyn Marisa to leave the room accused was in. It is common cause accused and Evelyn Marisa spent the night in different rooms. It is not in dispute that the following morning there was an altercation between accused and Evelyn Marisa. The accused apparently demanded money he alleged he had paid to Evelyn Marisa for sexual favours which services were not rendered. On the other hand Evelyn Marisa dismissed accused claims as false. The accused later left for his work place, few kilometres from the business centre. It is not in dispute that later that day 29 May 2023 in the evening around 18:00hrs accused returned to Mabhiza bar where Evelyn Marisa was at work. What caused accused to return is in issue. The state case is as follows; The state case is that when the accused returned to Mabhiza bar on 29 May 2023 around 18:00hrs he had armed himself with a machete. The state alleges that the accused was consumed by jealous when he later saw Evelyn Marisa dancing to music with the now deceased. It is alleged that he went out of the bar, armed himself with the machete, entered the bar and charged HMA 23/24 HCMSCRB 590/24 towards the now deceased. The accused struck the now deceased twice on the head with the machete and fled from the scene. It is not in issue that accused was later arrested that night at his home. The now deceased meanwhile was taken to a local clinic, then to Chivi District Hospital, then to Masvingo Provincial Hospital and then to Sally Mugabe hospital in Harare where he died two days later on 31 May 2023 due to the head injury. The accused’s evidence is that on 28 May 2023 when he visited Evelyn Marisa’s work place he paid her US$30 in exchange for sex. It is accused’s case that when he later retired to bed that night with Evelyn Marisa some man came knocking at the door claiming to be her husband and threatening may hem. The accused said Evelyn Marisa then left the room after locking the accused inside only to have the room opened the next morning when the accused protested. The accused said since he had not had sexual intercourse with Evelyn Marisa he demanded the US$30 back leading to an altercation that morning. The accused said Evelyn Marisa then threatened to call people from Mashava to come and shoot the accused whom she said was a nuisance. The accused then left for his work place. It is accused’s evidence that at his work place he went to cut poles for his tomato garden with a machete. While in the bush he said Evelyn Marisa telephoned him and asked him to immediately proceed to Mabhiza bar to collect his US$30. The accused said he had no time to return home so he did put the machete in a sack and proceeded to Evelyn Marisa’s workplace. Upon arrival at Mabhiza bar Evelyn Marisa started to shout at him using foul language and proceeded to telephone her male friends who immediately came in a Wish motor vehicle including the now deceased. The accused said the now deceased immediately confronted him ordering him to sit down as the now deceased was pointing a firearm (a pistol) at him demanding to be offered accused’s hands in order to tie the accused. The accused said realising the impeding danger he acted faster by retrieving the machete from the sack besides him and struck the now deceased on the head forcing the now deceased to drop the fire arm. The accused said he fled and advised the police at the local police base before proceeding to his residence. Accused confirmed being arrested the same night but denied resisting the arrest. HMA 23/24 HCMSCRB 590/24 The state led evidence from Evelyn Marisa, her assistant one Rejoice Dhliwayo, the arresting detail Sgt Cloud Marutavana and the investigating officer. Assistant Inspector Hopewell Shingirirai Mupodyi. The accused gave evidence and did not call any witness. The evidence of other state witnesses, Tapiwa Kaso one of the beer patrons in Evelyn Marisa’s Mabhiza bar, Pertunia Tshuma a nurse at the local clinic and Dr Solomon Muzenda was examined the now deceased’s remains and prepared the post mortem report was all admitted in terms of Section 314of the Criminal Procedure and Evidence Act [Chapter 9:07]. A total of 3 Exhibits were produced being Exhibit 1 the post mortem report, Exhibit 2 the certificate of weight of the machete and Exhibit 3 accused’s confirmed warned and cautioned statement. The evidence of Tapiwa Kaso a patron in Mabhiza bar at the time accused struck the now deceased with a machete is said to be the same as that of Evelyn Marisa and Rejoice Dhliwayo. Pertunia Tshuma who attended to the now deceased soon after the fatal attack said she observed a deep cut stretching from the forehead to the back of the head. The now deceased was unconscious and bleeding profusely from the deep cut. She immediately transferred the now deceased to Chivi District hospital due to the severity of the injury. The cause of the now deceased’s death is not in issue. He was struck on the head with a machete. As per Exhibit 1 the post mortem report Dr Solomon Muzenda observed the following injuries; i) ii) iii) iv) v) Deep cut on left side of the head with exposed brain matter. Flattening of gyri and narrowing of sulci of brain consistent with brain swelling. Bleeding inside the skull Fracture of the skull vault. Super facial incised wound on the back. The cause of death is the injury on the head caused by a sharp force. The accused inflicted this injury with a machete. His denial of whether Exhibit 2 the machete is the one used or not is inconsequential. Needless to say there is no reason for the police to bring a wrong machete to court as an Exhibit. It would not help anything or stre