S v Togara (CRB 63 of 2016; HH 13 of 2017) [2016] ZWHHC 130 (30 March 2016)

1 HH 13-17 CRB 63/16 THE STATE versus TENDAI TOGARA HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 21, 22 & 30 March 2016 ASSESSORS: 1. Mr Msengezi 2. Mr Mhandu Criminal trial A Muziwi, for the State B. T Kativhu with C Malaba, for the accused CHITAPI J: The accused charged with the crime of murder is defined in section 47 of the Criminal Law (Codification & Reform Act) [Chapter 9:23]. The State alleges that on 24 July, 2015, at the single women’s quarters, Suri Suri or Flyde Airbase, Chegutu the accused acting with intention to kill or realizing the real risk or possibility that his actions might result in death, unlawfully killed Martha Dondo by stabbing and slicing her throat with an okapi knife. The accused denied the charge and a plea of not guilty was entered by the court. The facts of this matter are largely common cause. When the trial commenced, the prosecutor sought admissions of fact from the accused through his legal counsel in terms of s 314 of the Criminal Procedure & Evidence Act, [Chapter 9:07]. The admission sought and made were (a) The evidence as set out in the summary of State case of State witnesses Nyarai Katsande, Daristo Khozi, Collen Mtomba, Takunda Lynet Kapeta, Jabulani Muhlanga, Peter Matsika, Doctor Mauricio Gonzalez. (b) The post-mortem report compiled by Dr Mauricio Gonzalez on 28 July, 2015 as provided for in terms of s 278 (2) of the Criminal Procedure & Evidence Act. (c) Accused’s confirmed warned and cautioned statement as provided in s 256 (2) of the Criminal Procedure & Evidence Act. HH 13-17 CRB 63/16 For purposes of sequence, the evidence in respect of which admissions were made will be dealt with after the analysis of viva voce evidence given by State witnesses Bornaparte Watadza, Kudzanayi Magaya and Leornard Njikiza. These witnesses’ evidence was to the following effect: 1. Bonarparte Charles Watadza: He is an attested airforce of Zimbabwe member and so is the accused who is a co- worker. The deceased was also an attested member of the force. He did not have personal knowledge of the marital relationship between the accused and the deceased but understood through rumour that the accused and deceased had once been married and had a child together. He understood that the accused had denied paternity of the child. He was aware of rumours doing the rounds at the airforce base that the deceased was involved in a love relationship with one of the senior officers, flight lieutenant Kurwaisimba. He did not deem it his business to investigate the authenticity or otherwise of the rumours. The witness described the accused as being on the reserved side, a man of few words who did not have many friends and was not known for violence. On the fateful day, the witness was seated on the verandah of block C female quarters flat conversing with one, Nyarai Katsande when the two suddenly heard two loud screams in the nature of a shrill. The two of then quickly rushed up the two floors from the ground floor where they were to the 2nd floor where the source of the screaming had come from. They got to the source of the screaming within five minutes and discovered that the screaming had its source from the deceased’s room and had come from the deceased. From the accused’s indications at the scene which indications were produced by consent as exh 4; the deceased’s flat is described as room 216 Flat 8 Women Quarters. When the witness and Nyarai Katsande got to flat No 216, the door into the flat which comes off a corridor was open. The witness had formed the opinion that the person who screamed was fighting with someone. On entry into flat 216, the witness saw the accused seated astride the deceased’s chest. He then held the accused by the shoulder and asked the accused what he was doing. The accused did not say anything but stood up off the deceased’s chest. He noted that the accused was holding a knife and that the deceased lay in a pool of blood. The deceased lay still and did not make any sounds except to try and get her hand to her throat but was failing to do so. She appeared too weak to move her hand to the throat. The witness stopped the witness Nyarai Katsande from approaching or getting to where the deceased lay on the ground and shouted at Nyarai Katsande to get out from the flat because HH 13-17 CRB 63/16 the deceased had been slit on the neck. The witness and Nyarai left the accused inside the flat leaning against the wall and rushed to report to their superiors. The deceased was bleeding profusely from the neck area and she was not armed nor were any weapons seen around her. The witness returned with the superiors after about 20 minutes and found the deceased still in the same position but accused was no longer in sight. The witness did not seek to try and render assistance to the deceased because he was afraid of the accused and the knife. The witness thought that the accused had run away or left the flat to escape mob justice by other officers and not making away from the military police. With regards how cases of infidelity or love affairs between senior ranked and junior ranked members are dealt with, the witness said that it was not allowed and an act of misconduct for a senior ranked member to have an affair with a junior ranked member. This witness impressed the court. He gave a simple narration of events and refused to make conclusions on matters to which he did not have personal knowledge. It was not surprising that his cross examination lasted for less than ten minutes and was not eventful. The witness’ evidence dovetailed with the admitted evidence of Nyarai Katsande as outlined in the summary of State case. Nyarai’s admitted evidence with regards the events of the fatal day corroborated the evidence of this witness. The court therefore accepted the evidence of this witness without reserve. 2. Kudzanayi Magaya Is a warrant officer class 2 and knows the accused and deceased as workmates albeit her juniors in rank. She knew the accused and deceased as husband and wife who had a child together. She received a report from the last witness and together with four other officers they proceeded to the deceased’s flat. She opened the door to the flat and observed the deceased who was attired in full military uniform lying on the floor on her back with her head turned to one side. The deceased lay in a pool of blood. She called out her name but the deceased did not respond. She shook the deceased’s body and observed no sign of life. She observed that the deceased’s throat had been slit and that blood was still oozing from the deceased’s throat. The witness summoned the military doctor and secured the scene awaiting the arrival of the police who had been summoned. The witness did not have knowledge of any strains in the accused/deceased’s relationship and thought that the two got along quite well. She had known the deceased for just two years and the accused for over three years as work colleagues. HH 13-17 CRB 63/16 The witness only got to hear of rumours about the deceased and accused’s strain in their relationship after the death of the deceased. She was asked in cross examination as to what rumours she had heard and she replied that the rumour concerned the appearance of the deceased and accused at court fighting over custody of their child. The deceased worked under the witness command and carried out guard and office duties. It was put to her that the deceased had been relieved of office duties because of her extra-marital affairs and she denied this and said that this rumour was pedalled by the accused after the deceased’s death. Nothing eventful came out of the cross-examination of this witness who gave her evidence in a forthright manner. The court accepted her evidence as a simple narration of what transpired after she had received the report of the occurrence at flat 216 from the last witness and Nyarai Katsande. 3. Leonard Njikizana Knows both the accused and deceased as workmates. He worked in the same office w