The State v Believe Mpofu [2024] ZWCHHC 143 (8 November 2024)

1 HCC 08/25 HCCR 867/24 THE STATE versus BELIEVE MPOFU HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 30 October, 5 & 8 November 2024 Assessors 1. Mr Mutombwa 2. Mrs Mateva Criminal Trial G. T. Dhamusi, for the State M. James, for the accused BACHI MZAWAZI J: The accused was brought to court on two counts of murder in contravention of s47 of the Criminal Law Reform and Codification Act, [Chapter 9:23] The allegations are that on the 18th of April 2024 he fatally stabbed two of his then drinking buddies, Sadamu Mawuka aged 30 years and Simbarashe Mukono aged 45 at a bar, at Tutsi Mine Milling Tuckshop. Simbarashe Mukono, the second deceased, was the accused’s estranged father who had paid him a recent visit. Sadamu Mawuka, was a well- known beer reveller with a generous pocket. On the day in question, the duo of father and son were being spoiled with opaque beer when an altercation between the first deceased Sadamu and the accused arose. At some point, the accused had become a nuisance, insulting female beer patrons to the dismay of the first deceased leading to the said initial confrontation. After the fight had been stopped, the first deceased decided to migrate from the cheaper to a more refined clear beer brandy on his own. This did not auger well with the accused who demanded the same treatment. Further, incensing the HCC 08/25 HCCR 867/24 accused, the first deceased parted ways with the father and son pair and relocated to a new drinking spot in the same vicinity. The accused person, in turn, left the first drinking site. He returned armed with a home -made knife. He stabbed the first deceased several times all over his body. The second deceased rushed to the scene, tried to restrain the accused from the murderous attack, but was also caught in the cross fire. He was stabbed once on the right side of the neck, fell down and died on the spot. Upon realizing the gravity of the situation, the accused threw the knife down and fled the scene. The first deceased succumbed to his injuries the following day at the hospital. Two defences of provocation and self -defence were proffered by the accused. It is the defence case that, it is the first deceased who provoked the accused necessitating him to act in his own defence and that of the second deceased. He stated that, the first deceased who was in a very drunken state, to the extent of staggering, approached him whilst transferring data from his phone to the other, demanding one of his phones. The first deceased, then poked him. Ironically, in that staggering state, the first deceased is said to have grabbed a log from a stack of firewood and struck the accused once. Accused stated that he did not retaliate but went to report the incident to his father who was at a different drinking place all together. It is the accused’s version that his father, deceased two, then advised him that it was about time they left the place for home. On their way home, the deceased followed intending to attack the accused. The second deceased who was tailing closely behind the accused then turned to defend accused and the blunt of the deflected blow fell on him and was stabbed in the neck in the process. Accused then came to the aid of his father after hearing the screams from the stabbing. He highlighted that when he knelt down to attend to his father, the first deceased charged at him intending to stab him. Both wrestled. Accused disarmed the first deceased but the first deceased continued to assault him with booted feet and fists leading him to resort to the use of the knife. In court the accused said that the place was deserted and only the two deceased and him-self were present at the time of the commission of the offence. In his HCC 08/25 HCCR 867/24 evidence, it is the first deceased who killed the second deceased who took the blunt of a deflected blow aimed at the accused. In order to prove its case, the State called three witnesses. The rest of the witness evidence was submitted by consent. Several exhibits including the post mortem report and the murder weapon were also produced uncontested. The first witness, Blessed Maphosa an independent eye witness, not related to any of the three people involved in this murder was an honest and credible witness from the court’s point of view. He fearlessly testified with clarity and honesty. He did not exaggerate as to what transpired before his curiosity was drawn by the accused’s own actions. It is this witness’s evidence that, as it was a significant national public holiday, most of the male residents in that community were celebrating and revelling at the main and only business area at Tutsi Mine. He stated that from where he was, he was attracted by the accused’s frenzied disposition. He knew the accused as one of the locals. He heard him mumbling angrily that he cannot be assaulted in such a manner whilst holding a knife and moving rapidly. This, prompted the witness to follow the accused to where he was heading. He actually witnesses the accused approaching, the first deceased, whom the witness also knew as a local person, and stabbed him violently several times. The witness stated that he also attempted to stop the accused from stabbing the first deceased, but the accused did not stop his enraged attacks. The witness then saw the second deceased, whom he did not know at the time, rushing to restrain the deceased. The accused turned upon his second prey stabbing him once on the neck. From the first witness’s rendition of events, it is the accused who stabbed both victims. At the time of the deadly assaults, the witness did not perceive any form of provocation from the two deceased persons. The witness‘s testimony discredited the accused’s evidence that the place had been deserted, with the three people involved in this saga as the only inhabitants. This averment was also supported by the testimony of those who were at the scene of the crime drinking and celebrating Independence Day adduced and placed on record unchallenged. In particular the admitted written statement of Twoboy Dube who stated that the place was beaming with patrons celebrating Independence up to the early hours of the morning. HCC 08/25 HCCR 867/24 There were minor discrepancies as to the exactitude of the witness’s position, location and visibility when he first saw the accused charging with a knife upon cross examination. However, the witness acquitted himself well, that he may not have been precise as to his initial exact position but he stuck to his guns as to his ability to see and what he actually witnessed first-hand. The material aspects of this witness’s evidence remained unscathed. There was no evidence of overzealousness, or any bad blood between the witness and the accused that was adduced. He was not shaken on the material aspects of his defence. As already remarked, the court found that he passed the credibility mark. Indeed, there were minor insignificant and immaterial discrepancies in this witness’s testimony as the defence counsel Ms James was quick to note and attack in her closing submissions. These relates to the exact place and the visibility where the witness was when he first observed the accused mumbling and charging with a knife. We find the slight variance negligible as the rest of his evidence was credible. In S v Nduna & Anor HB-48-03 it was held that, “Where a conviction relies on the evidence of a single witness, discrepancies in the witness’s evidence are not necessarily fatal. The discrepancies must be of such magnitude and value that it goes to the root of the matter to such an extent that their presence would no doubt give a different complexion of the matter altogether.” Innocent Mpofu, the second State witness turned hostile. He was reluctant to give evidence. His statement to the police which is part of the record portrays a totally different picture from what he was then stating in court. It was clear that the departure from the initial statement was to save