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 accused’s skin. It was evident from both his mannerisms in court that he had changed his mind and had deliberately reneged from his previous statement as it dawned that he was the accused’s maternal uncle. The State correctly applied to have the witness declared hostile in terms of s316 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The court declared the witness hostile and he was impeached. At law, if a State witness who gave evidence incriminating an accused person to the police backtracks from that previous statement in court because of HCC 08/25 HCCR 867/24 some other reason or relationships with the accused, the State may opt to have the witness impeached. The purpose for the impeachment is to enable the State to cross examine its own witness which is not ordinarily the norm. The essence is to get the truth from the witness. The court may after declaring the witness hostile allow the witness to be cross examined and evidence led from him. This is not automatic. In terms of s316 above the State has to make an application. The court in turn has to pronounce itself and declare the witness hostile. The court can make use of the parts of ever evidence so obtained in that manner that incriminates the accused as stated in the cases of S v Millar 1971 (1) RLR 159 (A) and Mpofu & Anor v the State S-10 –89. In S v Millar 1971 (1) RLR 159 (A) at 160 it was noted that. “Impeachment of a witness's evidence does not necessarily mean that all of her evidence must be rejected. If, in spite of her attempts to shield the accused, she says in her evidence things which are against the interests of the accused, those things may be accepted as true.” See, S v Chari ZLR 231 (SC), S v Donga & Anor (SC) 1993 (2) ZLR 291 and S v Chunga & Anor HH 265-15. GILLESPIE J, in S v Mazhambe and Ors 1997 (2) ZLR 587 (H) a locus classicus on impeachment, expressed as follows- “…Conversely, the fact that a witness has had his credibility impeached by production of a previous inconsistent statement does not mean that his evidence, adverse to the party calling him, must necessarily be rejected. It remains evidence given in court and must be properly examined and a judicial determination reached as to whether or not to accept it. In particular, the explanation for the giving of the prior statement may be such that the credibility of the evidence actually given in court cannot be discounted. Similarly, where the court goes further and declares the witness hostile. The adverse evidence is effectively neutralized as evidence led by the party against itself. It is not, however, ipso facto to be disregarded. The evidence given by that witness, both under cross-examination by the party calling him and otherwise, may be considered and accepted or rejected in whole or in part depending upon the weight to be attached to it.” HCC 08/25 HCCR 867/24 The procedure for impeaching a hostile witness was outlined in the case of S v Muhlaba & Ors 1973 (1) RLR 178 and by C. Goredema “Procedural aspects relating to the impeachment of witnesses” 1989 legal forum volume 1 No 6.p.s. The steps to be followed or the impeachment procedure guideline as per the above authorities is as follows: 1. The State must firstly produce the previous conflicting statement made by the hostile witness. 2. He should walk through the statement with the witness, confirming dates, times, signatures. 3. The witness must specifically be asked whether he made the statement and admit to the signature. 4. If the witness admits to the contents and signature then he is cross examined to explain the discrepancies between the original testament on the contents he made and his or her current testament. 5. If he denied either the contents or signature then witnesses may be called for confirmation that he made the statement. Obviously, those who recorded the statements. All the above steps were followed to the letter by the State. After impeachment, the witness who had been declared hostile by the court, admitted being present on both the scene of the first confrontation and that of the actual stabbings. He however, confessed ignorance of where the murder weapon came from. This witness also made indications to the police confirming his first statement. When these were put to him by Mr Dhamusi for the State, the witness did not challenge them but admitted their contents. Nothing much came from the third witness, the police officer who attended the scene and arrested the accused apart from confirming the routine initial investigations borne in witness statements on record. In the case of and Tapiwa Chidemo v the State SC 68/24, the Supreme court recently highlighted that. “The court must sift truth from falsehood. There is no onus on the accused to prove the truthfulness of any explanation which he gives or to convince the court that he is innocent. Any reasonable doubt regarding his guilt must be afforded to the accused. See, S v Jochems 1991 (1) SACR 208 (A), S v Jaffer 1988 (2) SA HCC 08/25 HCCR 867/24 84 (C), S v Kubeka 1982 (1) SA 534 (W) at 537 F-H, R v Difford 1937 AD, S v Kuiper 2000 (1) ZLR 113 (S) On analysis, the above caption serves to illustrate the distribution of the burden of proof in a criminal trial. We are of the view that the accused’s story in the light of the evidence synthesized herein in is highly improbable and bordered on falsehoods. It is incomprehensible that a staggering drunkard as he described the deceased would then suddenly gain composure and attack him with a knife. He is the one who had a shop in the business complex which tallies with the evidence of the first witness that he then saw accused returning mumbling holding a knife raising his curiosity in the process. Further, the accused’s story that the same person whom he had described as in drunken stupor struck him on the forehead with a log did not gain momentum as no injuries were found on him at the time of his arrests or reported to the prison officers for he facilitation of medical assistance. He did not even have a scar to show for it. Both witnesses attested as to his aggressive conduct earlier during the day, it is highly unlikely that he could simply walk away from the deceased after being attacked by a log. The accused also lied that the place had been deserted when both witnesses who testified stated that it was a public holiday and people celebrated until morning. The court believes the evidence from the first witness which was corroborated by that of Twoboy Dube written evidence already part of the record and that of the hostile witness, on that the place was beaming with people celebrating Independence as opposed to that of the accused who said the place had been deserted save for the three. The accused also said the first deceased was so drunk to the extent that when he poked the accused, he staggered and fell. This is not consistent with one who then all of a sudden gathers strength enough to follow and then confronts the accused and his father in the manner stated by the accused. In the case, Chidemo (supra) held that, “ A court is empowered to factor in falsehoods by an accused in deciding whether he is guilty or innocent. See, S v Mtsweni 1985 (1) SA 590 (A), where the court stated that a false statement by an accused can be used in drawing an inference of guilt from other reliable evidence. See also PJ Schwikkard’s Principles of Evidence 2nd ed p 503-504.” HCC 08/25 HCCR 867/24 All the falsehoods in accused’s story cumulatively expose his guilty. Witnesses did not see any provocation from the first deceased, the reverse is actually true. Given the rendition of events there was no self-defence. The eye witness, whom we believe whose evidence, is buttressed with that of the impeached witness, alongside the uncontested admitted evidence documentary evidence all shows that the accused was never under any form of attack. Both defences of provocation and self-defence are unsustainable and out rightly rejected without further ado. In that regard, the essential elements for the crime and murder as correctly submitted by Mr Dhamusi as outlined in s47 (1) as restated in Dube v The State SC 83/22 are: Intending to kill the person or Any person who causes the death of another person. a. b. Realising that there is a real risk or possibility that his or her conduct may cause death, and continue to engage in that conduct despite the risk or possibility shall be guilty or murder. Evidently, from the evidence on record the trio involved in these offences had started the day drinking and celebrating the national holiday together. They were all drunk as explained by the accused if his story is to be believed, that the deceased could hardly stand and fell in the process of trying to poke the accused. Alcohol played a major role in the overall outcome of the events of that day from the unprovoked vulgar verbal insults directed at female patrons by the accused, the first physical confrontation up to the time of the murder. The defence of diminished responsibility due to voluntary intoxication though never raised to a large extent affected the accused’s behaviour of the day1. For that reason, we do not believe the accused had the actual intention to kill the deceased. We are however, convinced from the totality of evidence that the accused had constructive intention to murder the first deceased. That is by attacking his victims with a knife he realized that there was a risk or possibility that his conduct may cause death, nor matter how inebriated, but he continued to stab the victims despite the risks involved. See, S v Mugwanda SC 19/2002. The same cannot, however, be said of the second count. From the evidence on record, the second was caught in a crossfire when he tried to stop the accused from stabbing the first deceased. The first witness even illustrated that upon being tapped or tapping like gesture on the shoulder, the accused turned on the person who was restraining him without even 1 See S v Muchemesi HH 287/2015 ascertaining as to who the person was. He landed one fatal blow on the neck of the second deceased killing him instantly. He is found guilty of culpable homicide in respect of the second count. His actions were negligent but with no exhibition of the requisite mens rea to HCC 08/25 HCCR 867/24 kill. Sentencing Judgment The facts are by and large common cause. The accused has been convicted of murder with constructive intent in the first count. In the second count, with culpable homicide. Having weighed all the submissions made in mitigation and aggravation alongside the victim impact statement and the sentencing report we are of the view that the accused in count one, is sentenced to twelve years imprisonment. In count two he is sentenced to three years imprisonment. Both are sentences to run concurrently. We have laboriously tried to counterbalance the interests of the accused, the victim and the administration of justice. The accused’s youthfulness and stint in pre-trial incarceration played a major role in the reduction of both sentences. His historical background of the broken home syndrome, the negative psychological effect of growing up without a father figure and role model and the general artisanal mining environment with its violent exposure all impacted on the man he later became. The degree of blameworthiness is on the higher side given that a dangerous weapon was used with fatal consequences. A deterrent sentence is necessary, so as not shake societal public confidence in the criminal justice system and also to warn others of a similar background of the consequences of taking the law into your own hands. The abuse of otherwise handy home tools like knives should be stopped. Life is valuable. A clear message must be sent that killings over trivialities must be stopped. Nonetheless, justice should be tampered with mercy. The plight of today’s youth whose ancestors had been camouflaged and shielded in the then agricultural farms cannot be ignored. In the wake of lack of recreational facilities and meaningful engagements most of the youths are demoralized and desperate, a moving time bomb. The farming activities have been replaced by uncontrolled small scale mining ventures whereby the youths are forced into gangsterism for survival. Accordingly, it is ordered that, 1. Count 1, 12 years imprisonment. HCC 08/25 HCCR 867/24 2. Count 2, 3years. Both sentences are to run concurrently. National Prosecuting Authority, the State’s legal practitioners Chikwangwani Tapi Attorneys, the accused’s legal practitioners