S v Siziba (HB 244 of 2016; HC CRB 131 of 2016) [2016] ZWBHC 244 (23 September 2016)

1 HB 244/16 HC (CRB) 131/16 THE STATE Versus TINASHE SIZIBA IN THE HIGH COURT OF ZIMBABWE MAKONESE J BULAWAYO 22 & 23 SEPTEMBER 2016 Criminal Trial Ms N. Ngwenya for state H. Chimbetete for accused MAKONESE J: The deceased was aged 24 years when she met her death. She died in a most horrific manner. At the time of her death she was employed as a merchandiser with a company known as Ocean Foods. On the 19th March 2016 deceased dropped off from an omnibus at Makoni Shopping Centre in Pumula South around 2020 hours. She walked along an unnamed tarred road linking the business centre and her place of residence. Without any warning the deceased was struck on the back of her head with a stone and she fell down. Deceased sustained a deep wound on the back of her head and started bleeding profusely. The deceased somehow managed to stagger to her home. She collapsed upon entering her bedroom. She was rushed to hospital where she succumbed to the injuries sustained in the attack and died in hospital on 22nd March 2016. The 19 year old accused was arrested in connected with the murder of the deceased. A mobile phone stolen from the deceased at the scene of the crime was traced to the accused. Accused pleads not guilty to the charge of murder. He proffers a complete denial to the charge and states that he has been wrongly implicated. His defence outline amounts to a bare denial. He alleges that he will dispute each and every allegation of fact that is inconsistent with his defence outline and puts the state to the proof of each allegation against him. Accused further states in his defence outline that although he was found in possession of the deceased’s cellphone he had bought it from one Nkosilathi at a beerhall at Makoni business centre, Pumula South. HB 244/16 HC (CRB) 131/16 No-one witnessed the transaction and Nkosilathi’s further particulars are not known to the accused. The state tendered into the record the outline of the state case (exhibit 1). It shall not be necessary to repeat the entire contents of the state outline, which now forms part of the record. The defence outline was tendered as exhibit 2. Its contents are brief and short on detail and as I have already indicated. The accused’s confirmed warned and cautioned statement was produced and marked exhibit 3. The accused’s handwritten version of the statement was marked exhibit 3 (a). The English translation of the accused’s warned and cautioned statement which was duly confirmed of a magistrate at Tredgold Building on the 19th May 2016 is in the following terms: “My name is Tinashe Siziba. I stay at Robert Sinyoka at number 118. On 19th day of March 2016 I was drinking beer at Makoni Business Centre, Pumula South, Bulawayo. I left this place around seven in the evening now going home. I met a certain lady near a church in Pumula South. I struck her with a stone and she fell down. I took from her a phone and her bag. It was a Lumia Nokia type of phone with an Econet sim card (line). I opened her bag took out a white T-shirt written Oceans threw it down besides her. I ran away and when I got to a stream I threw away the bag taking away $2,00. I went home to retire to bed. I woke up in the morning and went to Kudakwashe Mxolisi Moyo’s place, I told him that I had a phone for sale but I did not tell him where I got it from. We left for Pumula Old business centre. On getting there we asked Mayors to look for someone who wanted it. Mayors sold the phone to Bekinkosi Gathuso for $15,00. Mayors came and gave me the money.” The next documentary exhibit 4, is the affidavit by Constable Edson Chikunguru who identified the body of the deceased at the United Bulawayo Hospital mortuary on the 22nd March 2016. The post mortem report number 246/242/2016 compiled by Dr Roberto Trencu, after an examination of the body of the deceased was tendered as exhibit 5. The post mortem report lists the cause of death as: (1) Severe cerebral oedema (2) Skull fracture compressive epidural haematoma (3) Head trauma in unknown circumstances HB 244/16 HC (CRB) 131/16 Exhibit 6 is a brownish handbag, identified as the one that was in possession of the deceased when she met her tragic death. A Nokia Lumia, black in colour, with a purple pouch was produced as exhibit 7. The cellphone was identified as belonging to the deceased. State Case Best Ntini The state opened its case by leading viva voce evidence from Best Ntini. He testified that he resides at 12129 Pumula South, Bulawayo. He knew the deceased as his niece. They were residing at the residence at the material time. On the 19th of March 2016 the deceased left for work at about 0800 hours. She was carrying a brownish hand bag. On the same date and at about 2000 hours the witness realised that the deceased had not returned from work. This was unusual. At around 2030 hours the deceased arrived home with blood stains all over her clothes. She went straight to her bedroom. The witness followed her to her bedroom and observed that she had a deep cut at the back of her head. She was bleeding severely. She was also bleeding through the ears. She appeared confused. She attempted to get up but collapsed to the floor. The witness was terrified by what he saw but deceased was unable to relate what had transpired. The witness summoned Christopher Gwisi a neighbour for assistance. The witness and his wife failed to secure an ambulance and subsequently deceased’s employer sent a motor vehicle which ferried the deceased to hospital. The following day when the witness went for a hospital visit he was informed that the deceased had been taken to the Intensive Care Unit. The deceased’s condition deteriorated and she died in the early hours of the 22nd of March 2016. The witness testified that he later recovered a T-shirt belonging to the deceased inscribed “Ocean Foods” at the scene of the crime. The witness testified that the deceased’s hand bag and cellphone were missing. The matter was left in the hands of the police who had commenced investigations. The evidence of this witness was given in a clear and logical manner. He was not contradicted under cross-examination. He gave his evidence calmly and did not exaggerate events. He narrated precisely what he knew in connection with the matter. His evidence is credible and the court has no hesitation in accepting his testimony HB 244/16 HC (CRB) 131/16 Ariel Ntini He resides at 12129 Pumula South Bulawayo with his father, Best Ntini. He knew the deceased during her lifetime as a cousin. His evidence is largely similar and corroborates that of the previous witness. He was seated in the kitchen when the deceased entered the house with blood dripping from her head. Her clothes were full of blood. The witness screamed and he called out for his father. He tried to speak to the deceased but she did not respond. The witness took a bucket of water and cleaned the wound at the back of her head. Best Ntini then went and sought the assistance of a neighbour one Christopher Gwisi. The deceased was taken to hospital where she died after a few days from injuries sustained in an attack upon her on the night of the 19th of March 2016. On the 18th May 29016 the witness was summoned to the CID Homicide offices at Bulawayo. Upon his arrival he was shown a variety of cellphones and was asked to identify the deceased’s cellphone. The witness positively identified a Nokia Lumia cellphone as the one belonging to the deceased. The witness recognized the purple pouch and the cracked screen. This witness confirmed that when the deceased left she was carrying a brownish bag. The witness confirmed that the handbag exhibit 6 and the cellphone exhibit 7 tendered in evidence indeed belonged to the deceased. The witness confirmed that he was not known to the accused prior to his arrest. He only came into contact with the accused when he observed him making indications at the crime scene. This witness gave his evidence in a simple and straight forward manner. There w