The State v Phiri and another (118 of 124) [2024] ZWBHC 118 (15 August 2024)

1 HB 118/24 HCBCR 344/24 THE STATE Versus PRIDE PHIRI And FREEDOM NCUBE IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J with Assessors Mr. Mashingaidze and Mr Dewa BULAWAYO 22, 23 February 2024, 23 July 2024, & 15 August 2024 Criminal trial T. Muduma for the State M. Mahaso for the 1st accused P. Butshe for the 2nd accused DUBE-BANDA J: [1] The accused are appearing before this court charged with the crime of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“Criminal Law Code”). It being alleged that accused 1, accused 2 and one Justice Mbedzi - who is not in this trial - on 26 December 2021 assaulted Cleoparton Nyathi (“deceased”) by stabbing him with a knife, assaulting him with mopane switch and hitting him with stones, intending to kill him or realising that there was a real risk or possibility that their conduct may cause the death of the deceased and continued to engage in that conduct despite the risk or possibility. [2] The two accused who were legally represented throughout the trial pleaded not guilty to the charge. The prosecutor tendered an Outline of the State case and is marked Annexure “A”, and the accused persons tendered their respective defence outlines. Accused 1’s defence outline is marked Annexure “B” and accused 2’s defence outline is Annexure “C”. The outlines were read into record. In his defence outline, accused 1 stated that he saw the deceased who had robbed and stabbed his relative, and followed him with the intention of arresting and handing him over to the police. When he asked the deceased why he robbed and stabbed his relative, the deceased put his hand in his pocket and the accused thought he was drawing a knife. He then stabbed him in a pre-emptive attack. He stated further that he had no intention of causing the death of the deceased. In his defence outline accused 2 stated that HB 118/24 HCBCR 344/24 he joined a group that was pursuing persons who were alleged to have carried out a robbery. None of any group members had any visible weapons. Near Siyaso Garage the group came across the deceased and one Mkhululi Nyathi. Mkhululi Nyathi escaped and accused 2 chased him for over 200 metres, but failed to apprehend him. Accused 2 then returned to where he left the group, and on arrival he found the deceased blood soaked. Out of anger he took a mopane switch and struck deceased three times on the legs. He stated further that he had no common purpose with the one who stabbed the deceased, since stabbing was outside the common design of the group members. The State case [3] The two accused made admissions in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] (CP & E Act). The admissions relate to the evidence of certain witnesses as it appears in the summary of the State case. These are: [3.1] The evidence of Otilia Ndou. Her evidence is that on 26 December 2021 at 1700 hours she heard that people who stabbed Dumisani Moyo the previous day had been seen at Siyaso Garage, Beitbridge. Otilia Ndou in the company of accused 1 and 2 ran to the Garage. At the Garage, accused 1 and 2 ran to the direction of the deceased and his colleagues. She remained at the Garage hoping that the accused persons would apprehend the robbers. After 30 minutes she got to know that accused 1 and 2 had seriously injured the deceased. [3.2] The evidence of Mkhululi Nyathi. His evidence is that the deceased was his young brother. On 26 December 2021 at around 1810 hours, he and the deceased accompanied Wedzerai Zhou, Lacardia Mazise and Evidence Hove to relieve themselves at a bush near Siyaso Garage. He saw the two accused persons in the company of Justice Mbezi running towards them until they surrounded them. Accused 1 withdrew an okapi knife and tried to stab him, he ran way and the accused persons gave chase and hit him with a stone on his right hand. He returned to the scene after about ten minutes and found deceased lying facing downwards, his clothes tattered and soaked in blood. [3.3] The evidence of Walter Muchena. His evidence is that he is a member of the Zimbabwe Republic Police (ZRP) and the investigating officer in this matter. He HB 118/24 HCBCR 344/24 attended the scene and recorded warned and cautioned statements and took them for confirmation at the Magistrates Court. [3.4] The evidence of Doctor Linos Samhere. His evidence is that he is a medical practitioner stationed at Beitbridge District Hospital. He examined the remains of the deceased and compiled his finding in Post Mortem Report No. 411569. [4] The prosecutor produced with the consent of the accused persons the following exhibits: accused 1’s confirmed statement (Exhibit 1); accused 2’s confirmed statement (Exhibit 2); and Post Mortem Report No. 411569 (Exhibit 3). In his statement accused 1 stated that he had been informed by Otilia Ndou that the robbers were at Siyaso Garage. He managed to grab the deceased and assaulted him using his hands. The deceased put his hands inside the pocket, and he thought he was drawing a knife. The accused 1 then draw a knife and stabbed deceased four times, twice on the back, once on the buttocks and once below the neck. The deceased bled profusely. In his statement accused 2 stated that he did not stab the deceased. He chased a certain person who was in the company of the deceased but failed to apprehend him. When he returned to the scene, he saw deceased oozing blood and his clothes drenched in blood. He took a stick and hit the deceased on his legs about ten times. The Post Mortem Report states that the cause of death was: exsanguination; severed left common carotid artery; and stab wound on the neck. [5] The State called two witnesses and each accused person testified in his defence. The evidence of these witnesses will be summarised briefly. [6] The first to testify for the prosecution was Evidence Hove. Her evidence was that on 26 December 2021 at around 1800 hours, she was at Siyaso Garage with her friends. They asked Mkhululi Nyathi and deceased to accompany them to the bush because they wanted to relief themselves. The deceased was not in possession of a knife. She then saw the two accused with Justice Mbedzi running towards them. Accused 1 produced an okapi knife and tried to stab Mkhululi Nyathi but he managed to run away. Accused 1 then turned to the deceased and stabbed him fifteen times, on the neck, chest and back. She was five metres from where the stabbing was taking place. Accused 2 did not stab the deceased, he was using his hands. [7] Under cross examination by Mr Mahaso for counsel for accused 1, Evidence Hove testified that the previous day a friend of the deceased robbed one Dumisani Moyo. She HB 118/24 HCBCR 344/24 however agreed that there was an allegation that it was the deceased and Mkhululi Nyathi who robbed Dumisani Moyo. She categorically disputed that it was deceased and Mkhululi Nyathi who carried out the robbery. She denied that accused 1 and other persons approached the deceased and Mkhululi Nyathi and confronted them about the alleged robbery of Dumisani Moyo. She rebuffed the suggestion that when accused 1 approached the deceased, the deceased reached for his pocket which prompted the accused 1 to draw a knife and stab him. She said the deceased did not put his hands in the pocket, it was accused 1 who was holding an okapi knife. The deceased when he was being stabbed complained that he was being injured. [8] Under cross examination by Mr Butshe for accused 2, Evidence Hove disputed the suggestion that she and her friends drank beer the whole night proceeding the date of the stabbing. She testified that the first accused 1 tried to stab Mkhululi Nyathi, who then ran away. And she said she saw accused 2 chasing Mkhululi Nyathi who was running away. When he returned, he found deceased already stabbed. She did not see accused 1 picking a mopane switch and beating the deceased. Evidence Hove came across as a witness who had a reasonable recall of