S v Zvogbo (CRB GWERU 70 of 2005) [2005] ZWBHC 136 (28 December 2005)

Judgment No. HB 136/05 CRB Gweru 70/05 THE STATE Versus SAMSON ZVOBGO IN THE HIGH COURT OF ZIMBABWE NDOU J (with Assessors Messrs Ndlovu and Matemba) GWERU 29 SEPTEMBER, 29 NOVEMBER, 2 & 29 DECEMBER 2005 Ms D Malunga, for the state M Jaravaza, for the accused Criminal Trial NDOU J: The accused was aged 35 years old at the time of the offence. He is facing a charge of murder. It being alleged that on or about 17 January 2003 and at or near Chapwanya Primary School in Chirumanzu the accused did unlawfully and intentionally kill and murder Never Gumbo, a male adult in his life time there being. The accused denies the charge. Most of the facts are common cause and this will become apparent when the background of the case is highlighted. It is common cause the accused, his wife and the deceased were teachers at Chapwanya Primary School in Chirumanzi at the time of the offence. The accused and the deceased were friends. Notwithstanding this friendship, the deceased and the accused’s wife, in an act of betrayal, commenced a love affair. The accused became aware of the relationship. In fact it seems that elders and leadership of the school also became aware. The source of information was anonymous letters addressed to the accused and an incident where the accused found the deceased and his wife in a compromising situation HB 136/05 on 27 February 2004 i.e. some eleven (11) months before the offence. The deceased later approached the accused and apologised. He reduced his confession cum apology into writing i.e. exhibit 5. The accused forgave the deceased but it does seem that he did not forget. In any event he kept a record of the confession. In September 2004 the accused received an anonymous letter which in essence pointed out that the relationship between his wife and the deceased was continuing unabated. He questioned the two. They both dismissed the letter as having been overtaken by events. They said the letter was referring to the position before and they declared that they ended the affair on 27 February 2004 in circumstances described above. The accused accepted their explanation. However, on 17 February 2005 another anonymous letter was handed over to the accused. According to the accused he got the Okapi knife from his place of abode prior and not after, he was handed the anonymous letter. This piece of evidence is relevant in determining whether accused planned the murder. Besides the alleged existence of an adulterous relationship between the deceased and accused’s wife the letter added a new dimension that the adultery was actually taking place in the accused’s house i.e. the deceased would come and sleep at the accused’s house in his absence. The accused went on with his duties after receiving the said letter. He received it when he came back from the tea break. During the lunch hour the accused sent for the deceased. The latter came to the accused’s classroom. What transpired inside the HB 136/05 classroom was not witnessed by anyone as it was just the accused and the deceased. So there is only the testimony of the accused. According to the accused’s version, when the deceased came in he gave him the anonymous letter to read. The deceased read it. Accused said he told the deceased that he was going to close the door so that whatever they would discuss, would not reach the ears of third parties. He indeed closed the door. When he turned to face the deceased, without warning, provocation or any justification, the deceased struck the accused with a heavy blow resulting in the accused falling to the floor. At the same time the deceased was uttering words to the following effect “your stupid letters are now getting to my nerves. If your wife is a prostitute keep her firmly secured in your pocket like money. If your wife is a prostitute, she will continue to be a prostitute.” He says the heavy blow and the humiliating provocative ad mocking words emanating from the deceased drove him mad with anger. The deceased immediately opened the door and bolted and ran towards the school garden with accused in hot pursuit. From this juncture there some eye witnesses. There is no conclusive evidence on whether the accused was holding the Okapi knife in his hand or whether it was in his pocket. What is beyond dispute is that the accused eventually caught up with the deceased and inflicted the fatal injury. According to the medical evidence of Dr I Jekenya who conducted the post mortem examination on the deceased the examination revealed: HB 136/05 Externally: “There was a 4cm wide wound on the left chest wall just below the end of the left sixth rib near the sternum (chest bone). The wound passes through the chest wall muscles and goes to the apex of the heart making a 3cm wide hole into the heart cavity. This resulted in massive bleeding. Severe force was used”. Internally “Lung/pleura: Collapsed let lung with a massive pneumothorax (air in the chest cavity). There was a left massive haemothorax (blood in the chest pleural cavity) of about 900mls and right haemothorax of about 300mls.” “Cause of Death: Haemorrhagic shock Heart stabbing Chest wall stabbing” There are two issues for determination. First, whether the accused was acting in self defence when he inflicted the above injuries on the person of the deceased. If self defence is not sustained we shall have to consider the defence of provocation. With these issues in mind we proceed to consider the evidence of the different witnesses in turn and the relevance of such testimony in the resolution of the issues. Ethel Zvobgo: She is the accused’s wife. Their marriage is around seventeen (17) years old and is blessed with two children. With some measure of diving and ducking she eventually testified to the existence of an immoral adulterous relationship between her and the deceased. It is important not to lose sight of the fact that irrespective of her immoral conduct in this matter she is not the person on trial. The focus should always remain on the accused although the effect or impact of the 136/05 adulterous relationship on the violent conduct of the accused should be amplified where it is relevant. She confirmed the incident of 27 February 2004 and its ultimate resolution. She confirmed the two anonymous letters addressed to the accused and how the matters were dealt with after each receipt by the accused. Although she tried to underplay her voluntariness in the adultery, we hold the view that she was a willing participant. She naturally appeared very unsettled testifying about her adulterous relationship with the deceased. This is understandable bearing in mind that she was baring her moral misdemeanours in court, in the presence of her husband and in-laws and strangers in the public gallery. Most of what she said however, is not material to the resolution of the issues in this murder trial. Her wayward conduct seems common cause to us. She did not witness the fatal assault. She, however, described the accused as non-violent person of sober habits who spends most of the time with their children. She also described the accused and the deceased as having been best friends who treated each other as brothers. She also confirmed that some sexual acts between her and the deceased took place in her matrimonial home i.e at the school and that they started since 2003. She confirmed that the accused was going to sell maize cobs that afternoon and he took the Okapi knife from their house to cut the maize cobs. Under examination she also confirmed that the sexual acts with the deceased continued well after the letter of apology written on 27 February 2004 and in fact the last such acts took place just two (2) days before the date of the offence. HB 136/05 Tatenda Muroiwa: He was a grade 7 pupil in the accused’s class at the time of the offence. He said that around 1300 hours on the day of the offence, he was sent by the accused to call the deceased. He did so and the deceased obliged. This evidence is common caus