S v Shumba (HB 9 of 2017; HC CRB 1 of 2017) [2017] ZWBHC 9 (17 January 2017)

1 HB 09/17 HC (CRB) 01/17 THE STATE Versus MELUSI SHUMBA IN THE HIGH COURT OF ZIMBABWE BERE J with Assessors Mrs E. Mashengele & Mrs A. Moyo BULAWAYO 17 JANUARY 2017 Criminal Trial T. Muduma for the state P. Muzvuzvu for the accused BERE J: The accused stands charged with the offence of murdering the deceased Precious Mundando as a result of assault perpetrated against her on 31 March 2008. The allegations are that on the day in question the deceased was accompanied by her mother Khesiwe Mundando to go and seek the services of the accused who was a traditional healer since the deceased was a mental patient. It was alleged that during the course of the purported treatment the accused started assaulting the deceased claiming that he was exorcising her of the demons in her. It was said the accused assaulted the deceased all over the body with clenched fists, trowel as well as hitting her against the walls of his treatment room. It was stated that the assaults were so severe that they eventually took the deceased’s life on 7 April 2008 at United Bulawayo Hospitals where she had been detained for treatment. The post mortem report which was tendered as exhibit 2 concluded that the cause of death of the deceased was: (a) Septicaemia (b) Septic sores, and (c) Assault The accused flatly denied having authored the deceased’s demise and alleged that on the day in question, and before he had commenced treating the deceased, the deceased, who HB 09/17 HC (CRB) 01/17 appeared to have lost her memory started conducting herself in a violent manner. In her violent conduct, the deceased hit herself against a locker which caused her to fall down hitting a clay pot with her head which resulted in her being seriously injured. The accused further said that as the deceased stood up she attempted to bolt out of the treatment room and in the process hit her forehead against a door wench and sustained a cut on her head again. According to the accused person, it was such injuries which informed the cause of the deceased’s death and not the assault. Khesiwe Mundando, the deceased’s mother was the key witness for the state and her evidence was a repetition of the allegations as put forward by the state. She generally gave her evidence well and up until the accused gave his own testimony it would have been persuasive to take her evidence as containing a ring of truth. Jenipher Dube, the deceased’s step sister confirmed the injuries that caused the deceased’s demise. Her only disadvantage was that she was not privy to the alleged assault as she was not at the scene at the relevant time. So strictly speaking, her evidence could not have been taken to have corroborated Khesiwe Mundando’s testimony on assault. The rest of the evidence of the state was admitted as recorded in the state summary and this pertained to the evidence of Solomon Rundofa, Constable Takazira, Constable Nyamukaiwa, Assistant Inspect Munyanyi and Doctor Pesanai. The admissions were made in terms of section 314 of the Criminal Procedure and Evidence Act1. The accused was the sole witness for the defence and his evidence was largely a repetition of is defence outline which was rooted in his warned and cautioned statement which was recorded from him on 10 April 2008, almost 10 days after the deceased’s alleged assault and 3 days after the deceased’s demise. 1. Chapter 9:07 HB 09/17 HC (CRB) 01/17 It will be noted that upon his arrest the accused gave a fairly detailed account of what exactly happened to the deceased. Sadly up until the accused was taken to court, his defence had not been investigated. When the accused gave evidence in defence of his case, he merely repeated what he had earlier on told the police. The accused did so with such a convincing tongue that it was impossible not to believe his story. Whilst acknowledging the sufficiency of the evidence of a single witness in criminal cases I did highlight the need to exercise extreme caution when one wishes to rely on the provisions of section 269 of the Criminal Procedure and Evidence Act. See S v Chikurunhe2. In the same case I did re-state the dangers of succumbing to the dictates of the “boxing match approach” in certain cases as condemned by the Supreme Court. In the instant case, the court was being asked to secure the conviction of the accused on the strength of the single evidence of Khesiwe Mundando. The court’s discomfort was heightened by the fact that when Khesiwe said she saw the accused assaulting the deceased, this was in the glare of other patients who were queuing to be assisted by the accused person. None of these people were called or had their statements recorded by the investigating officer in this case. To me that approach amounts to carrying out shoddy investigations in a criminal matter whose evidential threshold is proof beyond a reasonable doubt. When the accused’s turn came to give evidence he gave a consistent story that explained how the deceased got injured on 31 December 2008. The accused’s story could not just be dismissed without any justification. In the court’s view the story was reasonably possibly true. The investigations carried out by the state left the accused’s case intact. 2. 2014 ZLR (2) p 260 HB 09/17 HC (CRB) 01/17 I find myself having to re-state what I stated in S v Chingurume that: “In conclusion, I wish to point out that because of the strong position held by the State, particularly in the investigation and subsequent prosecution of an accused in a criminal case, the State is obliged to carry out exhaustive investigations. It has the machinery to do so and it should not expect to be rewarded with a conviction after carrying out shoddy investigations like what happened in this case3”. It is for these reasons that the accused is found not guilty and acquitted. The National Prosecuting Authority, state’s legal practitioners Muzvuzvu Law Chambers, accused’s legal practitioners 3. S v Chingurume (supra) p 266