S v Takavarasha (HB 37 of 2017; HC CRB 26 of 2017) [2017] ZWBHC 37 (31 January 2017)

1 HB 37/17 HC (CRB) 26/17 THE STATE Versus GUIDE NICHOLAS TAKAVARASHA IN THE HIGH COURT OF ZIMBABWE MATHONSI J GWERU CIRCUIT COURT 30 & 31 JANUARY 2017 Criminal Trial M. Shumba for the state E. Mandipa for the accused MATHONSI J: The accused person was 62 years at the time of the alleged offence. He has since celebrated his 63rd birthday on 9 January 2017. He was working as a caretaker while also doing panel beating and spray-painting at stand number 89 8th Street Gweru. At the same place there were other operators accommodated there who included the deceased Trevor Gezana, then aged 29 who was employed as a car washer. He is accused of causing the death of the deceased Trevor Gezana by striking him on the head and all over the body several times using two metal pipes intending to kill the deceased or realising that there was a real risk that death might result from his actions but proceeding regardless. The accused pleaded not guilty to the charge and stated in his defence outline that although he assaulted the deceased he acted out of anger after the deceased had provoked him. He stated that in the morning of 11 November 2016, he had been talking to one of the car washers about a vehicle which the said car washer had attended to the previous day which had thereafter failed to start. At that point the deceased had come running and shouted at him accusing him and a certain Mrs Beverly of charging them exorbitant rentals and rates. The deceased insulted him and then poked him on the mouth with a finger saying to him that he wanted him to be sent to prison presumably for assaulting him. He says he did not react HB 37/17 HC (CRB) 26/17 to those insults but simply went to his office. Whilst there he was called by the caretaker of Lutheran Church located next door who wanted him to mount a sink at their church. He was paid $20,00 for the rods to mount the sink. He then picked up 4 pipes from his office intending to proceed to Lutheran Church. It was while he was at the entrance to the premises where they worked that he was again accosted by the deceased who repeated the insults directed at him. He again poked him on the mouth causing him to stumble and fall down with his pipes as he retreated. Picking himself up, the accused says he used one of the pipes which was about a metre long to strike the deceased once on the left side of the head just near the neck. The deceased fell down and started to bleed from the mouth and nose. He says he dropped the pipe and went back to his office where he tried to commit suicide by taking poison. Of course the accused did not die. He was rushed to hospital, survived the attempt on his life and lived to face this charge of murder. The weapons allegedly used in the commission of the crime were produced as exhibits. The first is pipe one, exhibit 5, which is 0,74cm long, has a circumference of 10,5cm and weighs 1,111kgs. Pipe 2 which was produced as exhibit 6 is 1,86m long, has a circumference of 10,5cm and weighs 2,74kgs. The post mortem report prepared by Dr Ivian Betancourt, a pathologist at United Bulawayo Hospitals, following an autopsy conducted on the body of the deceased on 14 November 2016 which is in the form of an affidavit was produced by the state in terms of s 278 (2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. That section provides: “In any criminal proceedings in which it is relevant to prove – (a) any fact ascertained by a medical practitioner in any examination carried out by him which is proper to the duties of a medical practitioner; (b) … (c) any opinion of a medical practitioner referred to in paragraph (a) or (b) relating to any fact or treatment referred to in that paragraph; HB 37/17 HC (CRB) 26/17 a document purporting to be an affidavit relating to any such examination or treatment and purporting to have been made by a person who in that affidavit states that he is or was a medical practitioner and in the performance of his duties in that capacity he carried out such examination and ascertained such facts in such examination or administered such treatment, and in either case arrived at such opinion, if any, stated therein shall on its mere production in those proceedings by any person, but subject to subsection (11) and (12), be prima facie proof of the facts and of any opinion so stated.” (The underlining is mine) Subsection (11) provides that the affidavit shall only be admissible where the prosecutor or the accused person has been given 3 days notice of its intended production or consents to its production while subsection (12) gives the court the discretion to cause the medical doctor or any other person whose evidence it considers necessary to give oral evidence in the proceedings in relation to any statement contained in the affidavit or to cause written interrogatories to be submitted to the deponent of the affidavit for reply. Both those provisions are not relevant for the present case as no objections were raised under any of them. I have cited the provisions of s 278 (2) this early in the judgment in order to put in perspective the fulminations of the accused when he presented his evidence to the effect that he would have been happy with the production of X rays to confirm the alleged injuries. One can only ascribe such a statement to ignorance of the process involved when an autopsy is conducted. Clearly the need for an X ray pales to insignificance when regard is had to the fact that before submitting a report the pathologist would have made an internal examination of the body parts. Therefore for the accused to appear to challenge the autopsy results while stating such mundane reasons is the fruit of a desperate thought process. In any event, in terms of s 278 (2) the medical affidavit of a doctor who carried out an examination is proof of the facts and opinion of the doctor on its mere production. Nothing else needs to be said about that ill-fated challenge of the accused person. The evidence of the police officers who attended the scene and recovered exhibits, those who conveyed the deceased’s body to hospital for a post mortem and the investigating officer who recorded the accused’s warned and cautioned statement and that of the doctor who HB 37/17 HC (CRB) 26/17 conducted the autopsy was admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. In addition, the state led evidence from 2 eye witnesses, Isaac Nhimbe and Variet Sajeni. The two state witnesses corroborated each other in material respects. The import of their evidence is that the accused came to the group of car washers who included the deceased, Nhimbe and Sajeni. He complained bitterly that one of them had washed a vehicle the previous day and all of them had left the accused in a difficult situation because when the owner of the vehicle had come to collect his vehicle after the washers had left, he could not start the vehicle. An auto electrician had been engaged who confirmed that water had gone into the electrical system of the vehicle preventing it from starting. The accused had then told them that he was forced to fork out $20,00 from his pocket to pay the auto electrician for his services after the vehicle owner had refused to do so. Nhimbe was quick to point out that although the deceased is not the one who had cleaned that particular vehicle, he took it upon himself to respond to the accused’s claims. He told the accused in his face that he was lying as the engine of the vehicle in question had not been cleaned and that the accused was stating that lie in the hope of gaining something. As a result the deceased and the accused started exchanging harsh words. The accused retorted that the deceased was disrespecting him, interfering in a discussion which had nothing to do with him. When the accused expressed that he was angry with the deceased, Nhimbe says he intervened and calmed the older man down but not before the latter had demanded from the deceased sett