Sn v Shavi (HB 124 of 2017; HC CRB 73 of 2017) [2017] ZWBHC 124 (22 May 2017)

1 HB 124/17 HC (CRB) 73/17 THE STATE Versus FREDDY NYAMHANGA SHAVI IN THE HIGH COURT OF ZIMBABWE MAKONESE J with Assessors Mr Matemba and Mrs Baye GWERU CIRCUIT COURT 22 MAY 2017 Criminal Trial Shumba for the state Mandipa for the accused MAKONESE J: The deceased Nestai Ncube was employed as a lecturer at the Midlands State University at the time she met her death. She was 48 years old. She had been married to the accused since 2001 and resided at their matrimonial home at 33 Wentworth Road, Southdowns, Gweru. The accused who is aged 63 is facing a charge of murder, it being alleged that during the early hours of the 27th February 2016, accused armed himself with home-made mattock and struck the deceased with it on the head three times. As a result, the deceased sustained three deep wounds in the head, leading to her death. The accused pleads not guilty to the charge and in his defence avers that he acted in self defence as he was under imminent attack from the deceased. The bulk of the evidence in this matter is common cause or at least not in dispute. It shall not be necessary to repeat the contents of the state outline which has been tendered into the record of proceedings and now forms part of the record as exhibit 1. The defence outline was tendered as exhibit 2. In brief the accused’s defence was that prior to this fateful day the accused had established that the deceased was engaged in an extra-marital affair with one Prosper Maburo. The accused had confronted deceased’s lover who admitted the illicit relationship and promised to terminate the affair. This did not happen. In a desperate attempt to save his marriage the accused had roped in the assistance of two pastors from the Seventh Day Adventist Church, one Xmas Mutero and Artwell Tapera to counsel the deceased and persuade her to end the relationship. On the night of the 26th February 2016, the two pastors visited the deceased at HB 124/17 HC (CRB) 73/17 her matrimonial home and held lengthy discussions with the deceased. At the end of these discussions the deceased said she needed more time to consider the issue. The accused avers that following this discussion he retired to bed around 9pm. The deceased said she was going to the kitchen to wash dishes. The accused states that he did not notice the time the deceased came to the bedroom. He states that around 2am the following morning the deceased woke up and left the bedroom going to the toilet. When she returned she was in possession of a home-made mattock (exhibit 5) which she swung at him while he lay in bed. Accused managed to wrestle the deceased and dispossessed her of the weapon. Accused then struck the deceased three times in the head as she tried to get up from the bed where she had fallen. The deceased fell down and never got up again thereafter. She had been fatally injured. Accused locked the house and the outer gate to the premises and drove off to Sanyathi where he later handed himself to the police. Accused avers that he had no intention to kill the deceased but acted in self defence at the spur of the moment and did not have time to rationalize things but had taken immediate defensive measures. The state tendered the accused’s confirmed warned and cautioned statement (exhibit 3) recorded at Gweru on the 1st day of March 2016. In this statement, the accused gave his response to the allegations as follows: “On the night of Friday 26th February 2016, Pastors Tapera and Mutero had held discussions with Nestai Ncube on the marital problems between myself and Nestai Ncube as I was emotionally stressed. These related to her affair with Prosper Maburo which had been going on for quite some time resulting in her not coming home sometimes and to my former wife Grace Muchadenyika whom she thought I was having an affair with and she indicated that she was bitter. Nestai Ncube needed time to consider the request that she lets go off the bitterness (sic) and vengefulness. Early Saturday, around 0200 or 0300 hours, Nestai Ncube woke up to visit the toilet and after quite a long time, she came back and as I looked through the bedroom door I noticed that she was holding an object. On entering the bedroom she proceeded to where I slept and swung the object intending to strike me. We wrestled and I managed to get the weapon and struck her and she groaned. I left home thereafter fearing for my life as my brothers-in-law were known to be violent. Later, I phoned Xmas Mutero to go and check Nestai Ncube’s condition and possibly take her to hospital. I proceeded to Sanyathi to brief my mother and relatives on the matter and I voluntarily handed myself over to the police at Sanyathi Police Station. It was never my intention to cause the death of Nestai Ncube.” HB 124/17 HC (CRB) 73/17 After recording the accused’s response to the charge, the accused was asked further questions relating to his defence and two of those questions were as follows: “Q When you struck Nestai Ncube where was she? A She was on the bed after she had fallen on the bed when I was trying to take the object from her. (emphasis added) Q A How many times did you strike her and on which part of the body? Three times around the neck area” It is important to note that the accused stuck to his defence throughout the trial and did not depart from his defence outline in material respects when he gave viva voce evidence. The state tendered the post mortem report as (exhibit 4). The post mortem report was prepared by Dr Ivian Betancourt following an examination on the remains of the deceased at United Bulawayo Hospitals on the 29th February 2016. The pathologist concluded that the cause of death was: (a) Severe cerebral damage (b) Subdural haematoma, skull bones fractures (c) Severe head trauma due to unknown object On marks of violence, the report indicates that following injuries: (1) Sutured wound 10cm on the middle frontal region (2) Sutured wound 12cm on the right temporal and parietal region (3) Sutured wound 3cm on the back of right ear (4) Abrasion (one circular abrasions) on the left scapular region (5) Swollen both eyelids, marked on the right eyelid The post mortem further reveals the following injuries on the skull: HB 124/17 HC (CRB) 73/17 (1) Subgaleal haematoma on the frontal and both parietal areas and occipital region (2) Skull bones fractures (multiple) localized in frontal region (complete frontal region) and another big stellate fracture with bone fragments localized in right temporal and parietal region (3) Sortie of encephalic mass and severe brain damage (4) Big right subdural haematoma through the right skull fracture seen. The state produced the murder weapon, a home-made mattock as exhibit 5 and a visual observation of the weapon reflects that it is a garden tool shaped like a pick axe, with blunt edges on both sides. The mattock has a handle 89cm long. Its blade is 23cm long and it weighs 2.6kg. The state with the consent of the defence counsel introduced the summary of the evidence of the following state witnesses as it appears in the state outline by way of formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07), namely; (a) Xmas Mutero (b) Nixion Mupasiri (c) Osbert Jere (d) Prisca Mbwende (e) Conrad Ngungu (f) Detective Sergeant Mushura (g) Detective Sergeant Sakala (h) Dr I. Betancourt The state opened its case by leading oral testimony from its sole witness Constance Chirigo. This witness testified that she is employed at Gweru Provincial Hospital as a nurse. She has nine years nursing experience and she was on duty on the 27th February 2016 in the casualty ward when the deceased was brought to the hospital in an ambulance. The witness pushed the patient on the stretcher into the resuscitation room. The deceased was badly injured and was not able to talk. She observed two deep wounds, one near the forehead and the other at the back of the head. The deceased was bleeding profusely from these injuries.