The State v Enock Sibanda

### Preamble
1
HB 151/20
HC (CRB) 72/20
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THE STATE

Versus

ENOCK SIBANDA

HIGH COURT OF ZIMBABWE

DUBE-BANDA J with Assessors Mr E. Mashingaidze & Mr J. Sobantu

BULAWAYO 11, 12 JUNE and 6, 16 & 17 JULY 2020

Criminal Trial

K. Jaravaza, for the State

T. Muganyi and M. Mahaso for the accused

DUBE-BANDA J: 	The accused was arraigned before this Court on 11 June 2020 on a charge of murder as defined in section 47 of the Criminal law [Codification and Reform] Act Chapter 9:23. It being alleged that on the 22nd May 2019, and at an unknown place, the accused person assaulted Sisasenkosi Sibanda with open hands, clenched fists, waist leather belt and an unknown instrument on the head and all over the body intending to kill Sisasenkosi Sibanda or realising that there is a risk or possibility that his conduct may cause the death of Sisasenkosi Sibanda, he continued to engage in that conduct despite the risk of possibility of death.

The accused pleaded not guilty to the charge.  He was legally represented throughout the trial. The presentation of evidence ran for three days.   The State called three witnesses whilst the accused testified in his own defence and called one expert witness. At the commencement of the trial certain documents were placed before court by consent, these are:

Summary of the state case, marked Annexure “A”

Accused’s defense outline, marked Annexure “B”

Accused’s confirmed warned and cautioned statement, marked Exhibit 1

Post mortem report number 143/98/2019, marked Exhibit 2

The prosecutor sought admissions from the accused in terms of s 314 of the Criminal Procedure & Evidence Act [Chapter 9:07], these related to the evidence of certain witnesses as contained in the summary of the state case, i.e. the evidence of Dr I. Jekenya who examined the remains of the deceased and compiled a post mortem report; the evidence of Cephas Ndlovu;  Bekithemba Sigauke and Marvellous Sibanda. The admissions were made, making it unnecessary for the state to lead evidence in respect of the said witnesses. Notwithstanding the admission, the state proceeded to present the oral evidence from Dr. I. Jekenya.

Background

The background to this matter is reflected in the summary of the State case (Annexure A), which states that the accused is a businessman in the transport sector and he was 39 years at the time of the commission of the offence. The accused is married to one Zothando Ncube. Sisasenkosi Sibanda (deceased) was his second wife. The deceased was 29 years at the time she met her death. The accused and the deceased had one child together.

It is alleged that on the 22nd May 2019 between 1800 hours and 2200 hours and at an unknown place the accused picked a quarrel with the deceased after accusing her of infidelity. The accused then forced the deceased into his vehicle and drove to an unknown destination where he removed all her clothes. The accused is alleged to have assaulted the deceased all over the body with open hands, a leather belt and an unknown instrument. It is contended that the deceased sustained serious injuries while she was with accused.

When the accused returned with the deceased, she was lying on the back seat of his double cab Isuzu motor vehicle, she was stark naked and unconscious. She was taken to Mpilo hospital the following morning i.e. 23rd May 2019. At the hospital she was admitted to the Intensive Care Unit where she was put on oxygen. She did not recover and died on the 25th May 2019.

The State’s case which is largely based on circumstantial and medical evidence, is that the accused assaulted the deceased all over the body with open hands, a leather belt and an unknown instrument, causing her death. The case for the accused, apart from the denial of the charge, and although admitting that he was with the deceased at all material times, and that he beat her with open hands and a leather belt, is that the deceased jumped from a moving motor vehicle, sustaining the injuries that caused her death.

In seeking to prove its case against the accused the State led evidence from three witnesses. On behalf of the accused, the evidence of Dr Blessing Zambuko was presented before court challenging the finding of Dr I. Jekenya, the pathologist called by the State. The accused testified in his own defence.

Amongst the principal issues which fall to be determined in this matter are whether the deceased was beaten and sustained serious injuries which caused her death, or she jumped from a moving motor vehicle and sustained injuries which caused her death.

Summaries of evidence

For completeness we first provide a detailed summary of the evidence given by all the witnesses who testified in this trial. We start with state witnesses and end with the defence witnesses.

The witnesses for the State:

Edith Sibanda

The first witness for the state was Edith Sibanda, elder sister to Sisasenkosi Sibanda (deceased). She testified that on the 22nd May 2019 at 11: 30 pm the accused called her on a mobile phone requesting to see her. Accused indicated that he will arrive in 10 minutes from the time he made the call. He arrived. Accused instructed this witness to sit in the front passenger seat of his double cab motor vehicle. Accused then drove to number H 141 Njube Township where he was renting a room with the deceased. On the way accused narrated what happened. He said he saw the deceased with a boyfriend. He said after he saw them, the boyfriend fled.

This witness testified that the accused said to her he then asked the deceased to accompany him to his business stand, where he has buses. He said they drove along Khami Road, in Bulawayo. Along the way he kept asking her about the man who fled. He said the deceased threw her cell phone out of the moving car through the car window. Accused stopped the car, and they looked for the cell phone and recovered it. He said he then beat her when they recovered the phone.

This witness testified that when they (witness and accused) arrived at house number H 141 Njube, she heard someone groaning from the back seat of the motor vehicle. It is at that point that the accused informed the witness that the deceased was angry with the beating and decided to sleep at the back seat of the car. When the witness checked, she saw that the deceased was naked. The accused requested the witness to use her cloth to wrap deceased so that they take her into the house. He reversed the motor vehicle to inside the yard. Accused opened the door of the vehicle, and the witness lifted the deceased and covered her with a cloth.

This witness told the court that the accused carried the deceased, but after a few steps, he requested that the witness assist him carry the deceased into the house. When inside the house the accused said he wanted to do some compressions on the deceased before she slept. The witness put a blanket on the floor, so that accused could put the deceased there and do those compressions. The witness asked if the accused had not injured the deceased, he said he did not injure her. The witness testified that she noticed that the deceased had an injury on the left eye.

The witness told the court that as the accused was not staying with the deceased, he assured the witness that on that day he was going to spend the night with the deceased at number H 141 Njube.  With that assurance, the witness then requested the accused to take her back to her place of residence, i.e. house number G 101 Njube. She decided to leave because the accused assured her that the deceased was not injured. Accused took her home.

The accused phoned this witness at around 5 a. m of the following morning, i.e.  23rd May 2019. The accused told her that to the two, i.e. accused and the deceased had woken up. The witness then told the accused that she would visit them in the morning. At around past 7 a. m on the 23rd May 2019 the witness proceeded to number H 141 Njube. On her arrival, she found the accused was not there. She got inside the house, and found the deceased still sleeping. She tried to wake her up, but she was not responding. She phoned the accused, asking him where he was at that time. His answer was he was at Marondera Clinic looking for a doctor.

The witness then informed the landlady, Selina Ngwenya that the accused beat up the deceased, and that she was sleeping and not responding. After some time the accused person arrived at the house. The landlady said the deceased must be taken to a hospital. An ambulance was called, and she was taken to Mpilo Hospital.  At the hospital she was taken to Intensive Care Unit (I.C.U.).

The witness told the court that at the hospital the accused arrived with a police report. When the witness gave the nurses the police report, they said what was in the report was different from what this witness was narrating to them.  The witness said she read the report, it said the deceased was assaulted by people at a bus terminus in the morning, i.e. the 23rd May 2019.  The nurses insisted that they required a true police report, and directed the witness to the police station. When the witness arrived at police station, the police denied ever having receiving such a report, and directed the witness to go and make an official report at Njube Police Station.

The witness told the court that she did not manage to talk to the deceased from the moment she heard her groaning from the back seat of accused’s car, until she died on 25 May 2019. She said the deceased was not talking. The witness said the accused did not tell her that the deceased jumped from a moving motor vehicle. She only heard this jumping from the motor vehicle version at Western Commonage Court, where accused was appearing in court.

In cross-examination, the witness was asked whether it was correct that her evidence was based on what the accused told her, she confirmed this. She conceded that the accused told her that he saw the deceased in the company of a boyfriend. She was asked whether she was familiar with a person called Jacob Mwanga, she accepted that she knew him. She was asked whether she knew that Jacob Mwanga was a past boyfriend of the deceased, she said she did not know. She was asked whether she could deny the fact that Jacob Mwanga was the person seen by the accused in the company of the deceased. Her answer was, she did not know, she was not there. Asked whether there was a time she phoned Jacob Mwanga informing him about the death of the deceased, her answer was, “I do not remember making that call.” She said she did not remember phoning him, but she knows him as he stays in the neighbourhood. She was asked many times whether she did not phone Mr Mwanga, she continued saying, she could not remember.

It was put to this witness in cross-examination that the accused says the deceased jumped from a moving motor vehicle and sustained head injuries. She was asked whether there was a time accused advised her that deceased jumped from a motor vehicle, she said accused never advised her about the deceased jumping from a motor vehicle. She heard this for the first time at Western Commonage Magistrate’s Court. She said the accused told her that he beat the deceased with a switch. She was asked about the condition of the deceased on the 22nd May 2019, she said she was just sleeping. Asked whether she believed that the accused used a switch, she said she believed him, because he is not a violent person. She believed him because he said the deceased was not injured. She said she did not see injuries on the deceased, and “it was not like a person who will die.” She said deceased was not injured.

Asked whether she asked the accused the reason why the deceased was naked, she said she asked him, and was told that after the beating, the accused removed her clothes. Asked whether the accused told her that it was the deceased who asked that her clothes be removed, her answer was, “he did not tell me that.”

She was asked to confirm that on the following day, i.e. 23rd May 2019, the accused phoned her, she confirmed this. She was asked whether at the time she arrived at number H 141 Njube, i.e. morning of the 23rd May 2019, accused was not there, she confirmed that indeed the accused was not present. She was asked to confirm that accused had gone to look for a doctor at Marondera Clinic, Bulawayo, she said, “yes, he said so.” She was asked about the condition of the deceased when she arrived at house number H 141 Njube in the morning of the 23rd May 2019, she said, “she was still sleeping.” She was asked whether her condition was deteriorating, she said she realised that there was something wrong. When she tried to wake her up, by shaking her body, she was not responding.

It was put to the witness that accused says he is the one who called for an ambulance, after failing to get help at the Marondera Clinic. She said she could not dispute that because the landlady gave the accused the phone number of the ambulance.

It was put to the witness that the accused told her that the deceased confessed that the man seen with her on the 22nd May was her boyfriend, she said she was not told that. It was put to this witness that the accused told her that the deceased jumped from a moving motor vehicle, her answer was “that is not what he told me.” She was asked whether accused did not tell her that deceased threw her phone out of a moving car, she confirmed that accused told her that. She was asked whether she was told that the screen of the phone was damaged, the witness confirmed that indeed the accused said so, “but the phone screen was not damaged.”

She was asked about a police report allegedly given to her by the accused, she confirmed that indeed the accused gave her a police report. She was asked that she told the court in her evidence in chief that the report indicated that the deceased was assaulted by people at the terminus in the morning, she confirmed this again. She said when she took the report to Mzilikazi Police Station, the police denied issuing such a report. She was asked about what happened to the report, her answer was that it was taken by the police.

Counsel put it to this witness that there was never such a report, the witness said there was such a report, which stated that the deceased was assaulted by people at a bus terminus. It was put to her that “you confirm that you might have been mistaken in respect of the evidence you gave, about the report concerning the deceased being assaulted at the bus terminus?” Her answer was, “there was a police report, I could have been mistaken but the report was saying, she was assaulted.” It was put to her whether she was not sure about the contents of the report, she said “I will say so.” It was put to her that “most of the things you have forgotten due to the lapse of time,” her answer was “I have not forgotten.” It was put to this witness that she had forgotten that the accused told that the deceased jumped from a moving motor vehicle?” her answer was, “I have not forgotten.”

Counsel said, he was worried about the witness’s response about Jacob Mwanga, it was then put to this witness “you confirm you said you do not know that person? Her answer was she knew him, he stays in the neighbourhood. She was asked whether she denied that the deceased was in a love relationship with Jacob Mwanga, her answer was, she did not know, she did not follow what the deceased was doing. It was put to her that accused saw the deceased with Jacob Mwanga, her answer was, ‘I cannot deny, I was not there when he saw them.”

In evidence in chief and in cross examination this witness said the accused is a good man and very respectful. She had not seen the accused being violent. He is not a violent man. That is why she believed him when he informed her that he did not injure the deceased.

This witness was subjected to cross-examination as regards what she was told by the accused in the motor vehicle en-route to house number H 141 Njube. She was cross-examined on the alleged police report. This witness did not change her version.

Jacob Mwanga

The state called the evidence of one Jacob Mwanga. This witness told the court that he once had a love relationship with the deceased. The love relationship ended, and the two were now friends. He said on the 22 May 2019, the deceased telephoned him, asking him to accompany her to cross the stream that is close to his home. The deceased had to walk from house number G 101 Njube to H 141 Njube. He said this happened at around 7 p.m. He said deceased called him because he was nearby, and the stream deceased had to cross was near his home. According to this witness, after escorting her to cross the stream, they parted ways. According to this witness he did not see the accused on the 22ndMay 2019. He was phoned by Edith Sibanda (previous witness) informing him that the deceased was assaulted by her husband.

This witness was cross examined, and the sting of the cross examination was to show that as at the 22nd May 2019 this witness was still in a love relationship with the deceased. He denied. He insisted that the love relationship had ended, and at the material time they were just friends. It was put to this witness that he was the reason for the assault perpetrated on the deceased. His answer was “I do not know.”

This witness conceded that she used to have a love relation with the deceased. He accepted that the deceased phoned him asking that he escorts her across a scream in Njube. He conceded that the two were now friends. He accepted that he used to buy and have his lunch where the deceased worked. He accepted that he used to have regular communications with the deceased, and a day would hardly pass without him phoning her. He confirmed that he knew that the deceased was married. He accepted that the stream deceased had to cross is close to Figa Beer Garden which closes at 10 p.m. He accepted that around 7 p.m. the adjacent shops will be open and they will be people walking around. He testified that the deceased asked him to escorts her to cross the stream, implying that she was afraid to cross on her own. He says after crossing with her, he turned and went to his home. He denied that he saw the accused in the evening of the 22nd May 2019. This witness denied that Edith Sibanda knew of the relationship that had once existed between him and the deceased.

Dr I. Jekenya

The state called the evidence of Dr I. Jekenya, a medical practitioner who examined the remains of the deceased and compiled a post mortem report, which report is before court as Exhibit 2. Dr I. Jekenya referred to his post mortem report and explained certain terms and aspects of his observations made therein. We re-produce the material parts of the post mortem report, hereunder:

Post mortem report Ext. 2

Sisasenkosi Sibanda

Summary of history: said to have been assaulted on the 22/05/19 by her husband (a polygamist) along Solusi road. Came and slept at her home in Njube.

External examination:

Nutrition:                                  good, Brownish skin. Pale body.

Marks of violence: plaited her with oblique ridges and furrows running mainly from left frontal to right occipital.

There are multiple bruises of the frontal and parietal skin.

Right maxillary bruise 4 x 4, 5cm.

Swollen left eye region with subconjunctival haemorrhages.

Multiple bruises, whiplashes and scratches of the head, upper limbs, lower limbs, buttocks, back and chest wall. There is associated underlying soft tissue and muscle damage.

Right thigh antero-lateral whiplash is 28cm long and 1 to 2 cm wide.

Traumatized left hand and distal left forearm. The left hand has a dorsal subcutaneous haematoma of about 2 and 3 cm thick, extending through the wrist to the dorsal distal forearm distance 8cm.

The back has multiple whiplashes including the buttocks. There are multiple scratches of the lower limbs more noticeable on the left and the back.

Height                                                           163 cm.

Other remarks: severe forces were used to inflict noticed multiple injuries. People with head injury easily aspirate.

Causes of death:        	i. Intracranial haemorrhages

ii. Head and multiple injuries

iii. Callous assault

In his oral evidence the doctor said the deceased bleed excessively within the skull. He said such injuries are more common with assault rather than road traffic accident. He testified that the intracranial haemorrhages; head and multiple injuries are typical of assault, not road traffic accident.

In cross examination the doctor testified that the immediate cause of death was intracranial haemorrhages. This is said to occur when a blood vessel within the skull is ruptured or leaks. The doctor was asked to confirm whether intracranial haemorrhages could be caused by a fall. He declined to confirm that, he said many people fall and they do not develop intracranial haemorrhages. When asked whether the head injuries could be a result of a road traffic accident? His answer was, “you take everything globally, the totality of the post mortem report.” Asked whether the injuries recorded in the post mortem report could be seen by an ordinary person, his answer was “I saw multiple injuries.” According to this witness, the police saw the injuries and took photographs of such injuries.

A question was put to the witness, “what is your comment if I put it to you that the deceased person sustained the head injuries after she jumped from a moving motor vehicle and hit her head on the road,” his answer was “there are no features consistent with a road traffic accident.” The doctor posed a rhetoric question, and asked, “If someone had jumped from a moving motor vehicle, why keep them home and not take them to hospital immediately.”

Dr. I Jekenya discounted or refused that the injuries on the deceased were caused by jumping from a moving motor vehicle. He said it is not possible that the deceased jumped from a moving motor vehicle, he has never seen such. A question was put to the doctor, “the deceased had earlier on been assaulted by the accused before she jumped from a moving motor vehicle? The doctor said he could not answer that question. A question was put to the witness “could you confirm that intracranial haemorrhages can be caused by many causes? The answer was “yes.”

The doctor said if the deceased had jumped from a moving motor vehicle, she could have suffered abrasions. The doctor ruled out the possibility of the injuries having been caused by deceased having jumped from a moving motor vehicle. He said the injuries were consistent with assault. The doctor said she had no tar marks on her body, which rules out falling on a tarred road. This witness’s conclusion was that the deceased died of unnatural causes consistent with intracranial haemorrhages, head and multiple injuries and callous assault.

The state closed its case.

Defence case

Accused: Mr Enock Sibanda

The first witness of the defence was the accused himself. Accused told the court that on the 22nd May 2019, at around 7 p.m. he passed by his wife (deceased) family residence, number G 101 Njube, to collect the wife and the child. When he arrived there, he was told that deceased had already left. He proceeded to their residence, i.e. house number H 141 Njube, and found that she was not there. He waited for about 50 minutes, and she did not arrive. He said he had parked outside the yard, sitting in the car, since the wife had the keys. He said it was getting dark, he got worried because she had a five year old child. He then decided to walk along the path that the deceased would normally use when walking from house number G 101 to H 141 Njube. The accused testified that as he was walking he heard someone say “run away, here is my husband.”

According to the accused, after the woman instructed the man to flee, he realised that the woman was his wife (deceased).He saw that the man was sitting on a rock, and the deceased sitting on his lap. The man ran away. He said the deceased also tried to run away, but he managed to get hold of her. The accused said the deceased apologised and said the man was proposing love to her. The accused said he asked the deceased, and said “how can he propose love when you are sitting on his lap?”

According to the accused he asked about the whereabouts of the child. The deceased told him that she left the child at her family home, i.e. number G 101 Njube. The accused told the court that he then said to her “you left the child so that you could be naughty.” He then slapped her with an open hand. He said he slapped her four times, to warn her not to be naughty. He said he was doing it out of love, she was his wife, and he loved her. He said he slapped her on the cheek, and did not use too much force. He did not want to injure her, because she was just a woman.

According to the accused, when he was slapping her, the deceased was covering and protecting her face, he then removed his leather belt and started beating her, using the belt. He said he beat her five times using the belt.  He also said he did not use much force, she was his wife, and he loved her. He said he beat the deceased so that she would realise that what she had done was bad. He was not up to injuring her because she was just a woman. He wanted her not to repeat the mistake as she was a married woman.

According to the accused, after beating her with a leather belt, the two proceeded to their place of residence, being number H141 Njube.  On the way he asked her to show him where the boyfriend resides. She agreed and said she would show him where the boyfriend resided in Nkulumane, Bulawayo. The accused then drove along Masiyephambili road facing Nkulumane. Just after passing Nkulumane Complex robots, deceased asked him to pull the vehicle off the road, and told him that she had lied that her boyfriend stays at Nkulumane. He actually stays at B 136 Njube.

The accused told the court that he told the deceased that at that point he was no longer looking for her boyfriend anymore, he was driving to her parent’s residence to tell them that she has a boyfriend. He then made a U-Turn, back to Njube. He said she asked him not to take her to her parents. Accused said he insisted that he was taking her to her parents, so that they could warn her. He proceeded driving towards his in-laws place, i.e. G 101 Njube. She was seated on the back seat of his double cab motor vehicle.  It is at that point that accused says the deceased opened the door and jumped out of a moving car. He said he thought she had opened a door window, and when he checked, he realised that she was not in the car anymore.

He could not remember the exact speed he was driving at, it could be between 30 to 40 kilometres per hour. He stopped the car, and proceeded to where she had fallen. She had fallen on the tarred road. The distance between where he stopped and where she had fallen was about 10 to 11 metres. He said when he got to her, he asked her whether she wanted to kill herself, and her answer was “we must get back into the car.” He said the deceased had injured herself on the head. He said he noticed a swollen eye. He did not see any blood. He saw some bruises on her back. He assisted her to stand up and get into the car. She sat on the back seat again. According to the accused they continued talking.

According to the accused, he told the deceased that after what she had done, he was taking her straight to her parents. She told him that she had no intention to kill herself, she wanted to run away. It is at that point that he said she asked him to remove her clothes, i.e. tennis shoes and t-shirt, as she was feeling hot. At that point the accused said he telephoned deceased’s sister, Edith Sibanda, and told her that he had a quarrel with deceased, and that they will arrive at the family residence i.e. G 101 Njube in 10 minutes time. He says she asked him to remove her track bottom as she was still feeling hot. She asked to sleep, and said he must not disturb her. Accused said he did not take her to the hospital because she was not showing any injuries, except the swollen eye.

According to the accused, he found Edith Sibanda waiting at the gate of the family home i.e. G 101 Njube. He asked her to get into the car. He told Edith Sibanda that he had a quarrel with deceased and beat her up, she then jumped out of a moving motor vehicle. He said he asked Edith Sibanda whether they should get to the house and talk to the parents, she decided that they go and discuss at number H 141 Njube.

Accused said when they arrived at H 141 Njube , he drove the motor vehicle into the yard, and narrated to Edith Sibanda everything that happened. He said she asked about the whereabouts of the deceased and he told her that she was in the back seat of the motor vehicle. He said he asked Edith Sibanda to wrap her with a cloth because she was naked. He said they assisted the deceased to get into the house. He said the deceased was walking and sat on a chair. He did some compressions on her eye, prepared a blanket and made her sleep there. According to the accused it was agreed, i.e. between him and Edith Sibanda that she would notify the parents about the condition of the deceased. He drove Edith Sibanda back to her home, i.e. G 101 Njube.

The following day, i.e. on the 23rdMay 2019, in the morning at around 5 a. m., according to the accused he phoned Edith Sibanda and told her that the deceased was still sleeping. Accused said he noted that the swelling had grown worse. He said he drove to Marondera Clinic to try and get a doctor to attend to the deceased. He found nurses, who told him that the doctor was not around. He phoned the doctor, who said he wanted to sleep, he would be at work at around 8 a.m. He decided to go back home i.e. H 141 Njube, along the way he phoned Edith Sibanda, and told her that he failed to get a doctor. Edith Sibanda said to him they will meet at house number H141 Njube. When they met, they noted that the swelling was growing bigger. He said they agreed to take the deceased to hospital. The ambulance came and the deceased was taken to Mpilo hospital. He paid the hospital fees and the deceased was taken to the Intensive Care Unit (I.C.U.) He was given a prescription to go and buy, he did so. He was then informed on the 25thMay 2019 that she had died.

In cross-examination, he confirmed that the deceased was his second wife. He agreed that his first wife did not know of his relationship with the deceased. He said the deceased agreed that she had a boyfriend, that the person he found her with, was that boyfriend. She even showed him were the boyfriend stayed. He said when he found them, the man was sitting down, and the deceased was sitting on top of him.  He said when he saw them, he felt some pain. He said he did not beat the deceased in an inhuman manner. He denied that he used much force to beat the deceased. He conceded that the post mortem report does not contain a falsehood, but he did not use much force. The injuries were caused by falling from the car. He found her lying on the tarmac, but he picked her from the side of the road. He said he was driving at approximately 40 km per hour. He said he told Edith Sibanda, that the deceased was inside the motor vehicle. According to the accused he did not observe many injuries, except the swollen eye. He agreed that Edith Sibanda and the deceased did not talk, his explanation is that the deceased was asleep. According to him the deceased was able to walk, him and Edith Sibanda merely assisted her to get to the house. He denied that he gave Edith Sibanda a police report. He accepted that he had no right to assault the deceased. He denied that the deceased wanted to commit suicide, but wanted merely run away. He said he preferred a private hospital than a public hospital, because private hospital provide better care.

Dr Blessing Zambuko

The defence presented the evidence of Dr. B. Zambuko. He is a registered medical practitioner and consultant specialist pathologist. He holds a MB. ChB and MMed (Path) and his area of expertise is in the field of Anatomical Pathology. He has been a medical practitioner for fifteen years and he has been practising in the Pathology Speciality for eleven years and became a specialist pathologist six years ago.

He practises as a consultant pathologist – anatomic pathology, i.e. the speciality of medicine which is concerned with making diagnosis on tissue derived from human body and determining the cause of death in deceased persons by conducting autopsy. He has performed over a thousand post mortem examinations over the course of his career.

He is the chairman of the department of Pathology at the University of Science and Technology in Bulawayo, and lectures at the Midlands State University, Faculty of Medicine. He also trains government medical officers in post mortem procedure and diagnosis.

He told the court that he was instructed to review the post mortem report and affidavit prepared in respect of the remains of the late Sisasenkosi Sibanda (deceased) and submit an opinion on the said report and on related issues arising in the course of the review.

In a nine page report, before court as Exhibit 3, Dr Zambuko gave his opinion. This is what he says in conclusion:

There is insufficient evidence to definitely pronounce the physical mechanism of injury to the head and brain. To put it differently, there is no evidence linking the haemorrhage in the brain cavity to a specific physical injury process or weapon. Examples of specific injury types here include blunt trauma following a fall on the head or a blow inflicted with some (specialized) weapon.

The nature of the instrument or weapon (if any) used in inflicting injury or the surface on which the head injury occurred has not been elucidated.

There is evidence of assault with a belt strap (commonly leather or some other pliable material) but such an instrument has not been linked with the head injury and cannot commonly cause the intracranial haemorrhage described herein.

Therefore, the injuries which can be definitely attributed to assault in casu do not appear (have not been demonstrated) to be related to the haemorrhage causing death.

In cases of trauma, it is vital that an attempt be made to determine the mechanism of injury and the nature of the instruments or weapons causing injury. The forces necessary to cause injuries should be correlated with possible weapons.

Where there are multiple injuries, the temporal relationship of the injuries should be determined if possible.

It is frequently the case that the prosector carrying out a post mortem is not privy to all the details of the case he is examining. The information availed is often scanty and many a time more details emerge several days after the autopsy has been performed. It is good practice therefore, for the doctor / prosector carrying out a post mortem to avoid pronouncing an opinion on the manner of death.

In casu, I would not pronounce that assault, whether callous or otherwise, is the manner of death. Indeed, there is physical evidence of assault, but there is insufficient evidence to link the death to the assault.

Confirmation bias is a trap a prosector must avoid falling into. Most post mortem cases are accompanied by some sort of history. The role of the prosector however, it not to confirm whatever history they have been given.

Their role is to determine the cause of death as completely as is possible and to describe and interpret any other abnormalities that may be present.

One should perform a post mortem as if that have received no information whatsoever about the circumstances of death.

The accused closed his case.

Analysis and evaluation

The principal submissions on behalf of the State and the Accused

At the conclusion of the evidence, the State argued for a conviction on the count of murder in terms of section 47 (1) (b) of the Criminal Law [Codification and Reform] Act Chapter 9:23, which provides that any person who causes the death of another person realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.

It was submitted that the accused was angered with what he thought was an act of infidelity by the deceased. He then took it upon himself to discipline the deceased. He proceeded to assault the deceased until she became unconscious. The state submitted that the assault was callous. It is argued the callousness of the assault is corroborated by the post mortem report, Exhibit 2. It is contended that injuries sustained by the deceased were serious.

It is submitted by the State that the jumping from a motor vehicle version is nothing but just an attempt to clutch on straws. It is argued for the state as accused contends that he was driving at between 40 and 50 kilometres, jumping from a vehicle moving at such speed, could have caused serious abrasions on the body of the deceased. It is argued that Dr Zambuko, the expert of the defence, could not rule out assault as the cause of death. It is submitted that the accused was in pain and hurt by the thought that the deceased was cheating on him. That is the reason he committed such a callous assault, leading to the death of the deceased.

The accused sought an acquittal on the charge of murder. On his behalf it was contended that there is no evidence to convict him of the charge of murder in terms of section 47 (b) of the Criminal Law [Codification and Reform] Act. It is argued that the state hinged its case on the evidence of Edith Sibanda, who was not present when the deceased was assaulted. It is contended that on the evening of the 22nd May 2019, the condition of the deceased was not alarming. It was then agreed between the accused and Edith Sibanda to monitor the condition of the deceased overnight.

It was argued that the accused admits to assaulting the deceased, but the assault was measured. It is said the assault was designed to correct and rehabilitate the deceased. It is argued that there is evidence to the effect that the accused and the deceased had a loving relationship, there was no violence between them. It was contended that the assault by the accused did not cause the death of the deceased. He used a leather belt, which caused whiplashes, but could not cause head injuries. He wanted to see the man who was with the deceased. It is said the deceased jumped from a moving car and sustained head injuries. It was argued that the accused’s evidence has not been discredited. It is argued further that Dr I Jekenya’s post mortem report has serious deficiencies. It is inconclusive about the cause of death.

It was argued for the accused that no weapon has been produced which could have caused head injuries. Defence concedes that the following external injuries listed in the post mortem report were inflicted by the accused, which are number iv, v, vii and viii being;

multiple bruises, whiplashes and scratches of the head, upper limbs, lower limbs, buttocks, back and chest wall. There is associated underlying soft tissue and muscle damage. Right thigh antero-lateral whiplash is 28cm long and 1 to 2 cm wide.Traumatized left hand and distal left forearm. The left hand has a dorsal subcutaneous haematoma of about 2 and 3 cm thick, extending through the wrist to the dorsal distal forearm distance 8cm.The backs has multiple whiplashes including the buttocks. Multiple scratches of the lower limbs more noticeable on the left and the back.

Asked by the court to comment on the time-line of the events of the 22nd May 2019, Mr Mahaso who made submissions on behalf of the accused made a strange request, he sought leave to take instructions from the accused who was in the dock. This request was refused.  Such a procedure is unknown in our procedural law, it has no precedent. Mr Mahaso then submitted that Edith Sibanda’s evidence that accused phoned her at 11:30 p.m. and indicated that he would arrive at number G 101 in ten mines is disputed. We record here that the accused himself told the court that “I phoned her sister and told her to wait outside the yard and that we shall arrive in about 10 minutes.” Again the evidence by Edith Sibanda in this respect was not challenged in cross examination.

The court asked defence counsel to address the issue of the alleged fake police report, he initially said he has no submissions because the issue has been disputed in evidence, on reflection he made a U-turn and made very unhelpful submissions in this regard.

Counsel argued that the accused’s version is believable and this court must believe it. The court reminded counsel that he is raising the bar very high, the court does not have to believe the defence story, still less does it have to believe it in all its details, for him to be acquitted.   It is sufficient to acquit the accused if the court finds his version to be reasonably possibly true.

The defence conceded that the assault on the deceased perpetrated by the accused was unlawful. Notwithstanding this concession, the court was asked to find him not guilty and acquit him.

Evaluation

In the evaluation of the evidential material this court will observe the following principles; evidence must be weighed in its totality; probabilities and inferences must be distinguished from conjecture and speculation. 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 guilty must be afforded to the accused. See S v Jochems 1991 (1) SACR 208 (A), S v Jaffer 1988 (2) SA 84 (C), S v Kubeka 1982 (1) SA 534 (W) at 537 F-H.

In respect of Edith Sibanda, we find as follows; the fact that she was the elder sister of the deceased did not in our view impact the objectivity and truthfulness of her testimony. She even remarked that possible it was the deceased’s time to die. She made concessions were necessary.  Gave evidence favourable to the accused where necessary. She actually told the court that the accused is a good man and very respectful. He was not a violent person. She did not exaggerate what she was told by the accused. She did not exaggerate the injuries she saw on the deceased.  She withstood cross-examination and could not be shaken in the course thereof.  She gave her account of events in a consistent manner and successfully explained the issues put to her. She came across as a witness who had a reasonable recall of the events she testified about. Her evidence was not challenged in any material respects and there is no reason not to accept it. Her evidence can be safely relied upon. We accept it as the truth of the events she testified about.

Nothing much turns on the evidence of Jacob Mwanga. There is no evidence that he is the man allegedly seen by the accused in the company of the deceased. We record that the accused also did not say the man he says he saw with the deceased was this witness. There is no evidence that this witness was person who was with the deceased on the 22nd May at the time the accused says he caught up with her.

In evidence in chief, the prosecutor put it to this witness that Edith Sibanda denied knowing him. We record that this was an incorrect statement. The correct factual position is that Edith Sibanda admitted knowing this witness, but denied knowing that he had a love relationship with the deceased. According to Edith Sibanda, she knew Jacob Mwanga because he was staying in the neighbourhood.

We find that he made concessions were necessary. He admitted that he once had a love relationship with the deceased. Even after a factual incorrect statement was put to him, that Edith Sibanda denied knowing him, he did not deviate from his version. He insisted that the two, Edith Sibanda and he knew each other. He appeared to us as someone telling the truth.

Expert evidence

Experts have become a prolific feature in litigation.  Expert testimony was a substantial part of the evidential matter in this case. Given the extent to which expert witnesses have asserted themselves in the course of these proceedings, it is necessary for us to consider the role and function of experts in courts as developed through case law.

The fundamental principle for the hearing of expert evidence must remain central in the proceedings.  Experts are there to assist the court.   They must remain unbiased and true to their disciplines and expertise.  The court remains the trier of fact.  Adjudication of the dispute before it is the expertise of the court, not the expertise of any expert witnesses.

Expert evidence must be the independent product of the expert. If he is to be helpful he must be neutral. The evidence of an expert is of little value where he, or she, is partisan and consistently asserts the cause of the party who calls him. See Stock v Stock 1981 (3) SA 1280 (A).

The Court must not be presented with a product which is tailored to suit the party who calls for his or her expert opinion.  It must not only be the independent product of the expert, but it must be seen to be so.   An expert must make concessions where necessary and must consider material facts.

The evidence of the opinion of the expert should not be proffered on the ultimate issue.  The expert must not be asked to answer questions which the court has to decide. See S v Gouws1967 (4) SA 527 (EC) at 528D.The experts are there to assist the court and not the other way around.  They must remain conscious of the capacity in which they appear and they must try help the court through their expert knowledge.

Dr Blessing Zambuko conceded that the external examination as contained in the post mortem report is correct. That the deceased suffered the injuries as shown in the report compiled by Dr Jekenya. He contends there is no evidence to link or connect those injuries to the cause of death. He testified that the immediate cause of death was intracranial haemorrhages, and the underlying cause of death was a head injury. He testified that these could not be linked or connected to the injuries observed by Dr Jekenya. He conceded that intracranial haemorrhages have many causes, e.g. assault or road traffic accident. Dr Jekenya accepted this fact, but said in this particular case he ruled out road traffic accident, based on the observation he made on the body of the deceased, e.g. it had no tar marks, no abrasions  to show that it fell on a tarred  road. Dr Jekenya had an advantage of observing the body, which Dr Zambuko did not have.

Dr Zambuko testified that callous assault refers to a state of mind, i.e. the viciousness and brutality of assault mostly associated with crimes of passion. He said there is no evidence of callous assault in this case. We take the view that this is indeed a crime of passion. The accused was pained by the fact that he believed the deceased was cheating on him. Therefore find that Jekenya is correct when he observed that callous assault, caused the head injuries, which caused intracranial haemorrhages, which caused the death of the deceased.

Dr I. Jekenya came across as unbiased and objective.  He impressed the court as having the qualities of an expert. We accept that he is an expert and that the evidence he gave was trustworthy and reliable.    He was a completely credible witness within his field of expertise. We accept his evidence in its entirety and with reservation.

The testimony of the accused had an artificial ring to it almost as if he had been programmed to say what he was saying. We distinctly formed an impression that the accused was evading the truth and trying to mislead this court for the purposes of minimizing his role in the events that led to the death of the deceased. The evidence of the accused, where it contradicts that of the state witnesses, we reject it as false.  We find that the accused was a poor witness.

Exhibit 3, the report prepared by Dr. B. Zambuko was signed on the 23 June 2020. He testified on the 6 July 2020. There is no reason given as to why this report was not availed to the court and the prosecution immediately after it was signed on the 23rd June 2020. What is disturbing is that the defence expert report was not provided to the court and the prosecution timeously, it was provided during the commencement of the testimony of the witness. The court had to take a twenty minutes adjournment to peruse the report.This approach, if not guarded against properly, could disadvantage the court as a trier of fact.  Expertreports must be disclosed timeously for the benefit of all involved in the trial and in the interests of justice.

It is important that experts exchange reports well before the trial. The purpose of this is to prevent surprise and to give a witness the opportunity to come to trial prepared to counter the expert evidence adduced by his opponent. Again this enables experts to exchange views before giving evidence in court and to reach agreement on some of the issues to save court’s time. This was not done in this case.

Another disturbing aspect in this case is that the defence expert report was not availed to the prosecution expert, i.e. Dr Jekenya before he testified. There was no exchange of expert reports. During his testimony, Dr Jekenya was not made aware of the contents of the report of the defence expert. The contents of such a report were not put to him to give him an opportunity to comment thereon. He had no opportunity to comment on the various criticism of his work. In cross examination his finding were not challenged, apart from being put to him that intracranial haemorrhages may be caused by falling from a moving motor vehicle, which the doctor conceded but made the point that in this instance he excluded the falling from a moving motor vehicle as the cause of intracranial haemorrhages. It is unjust and unfair not to challenge a witness’s account in cross examination, then later argue - when it is no longer possible for the witness to defend himself or offer an explanation - that his evidence should not be accepted.

Furthermore, the expert witness of the defence did not examine the body of the deceased. It relied on the post mortem report compiled by the expert called by the State. We prefer the opinion of a doctor who has seen and examined the body of the deceased, than the opinion of doctor with higher qualifications who has not seen the body.

Notwithstanding the attack on Dr Jekenya’s qualifications, it being alleged that he is professionally junior to Dr Zambuko, and that he is not a specialist pathologist, we are satisfied that he is qualified to conduct a post mortem and produce a report. Dr Zambuko, when asked in cross-examination, whether Dr Jekenya is qualified to compile a post mortem report, after some prevarication, conceded that indeed Dr Jekenya is qualified to compile the post mortem before court, i.e. Exhibit 2.

We take the view that Dr Zambuko patently aligned his evidence to the version of the defence. An expert must be neutral and assist the court. Not give evidence tainted with biasness. For these reasons we attach less weight on the evidence of Dr. B. Zambuko, and where his evidence contradicts that of Dr Jekenya, we find it untrustworthy and we reject it.

Circumstantial evidence

There is no direct evidence on how the deceased met her death. The evidence is circumstantial.  We deal shortly with the aspect of what is meant by circumstantial evidence. Circumstantial evidence is sometimes described as a network of facts around the case.  It may come to nothing. On the other hand it may be absolutely convincing.

When dealing with circumstantial evidence the enquiry before the court is whether on the evidence before it, it could reasonably come to a conclusion that it was indeed the accused who perpetrated the offence in question. See: S v Nduna 2011 (1) SACR 115 (SCA). This involves a determination of whether the two cardinal rules of logic in R v Blom 1939 AD had been satisfied:

firstly, whether the inference sought to be drawn is consistent with all the proven facts because if not, then the inference cannot be drawn; and

secondly, whether the proven facts are such that they exclude all other reasonable inferences from them save the one sought to be drawn.  If the proved facts do not so exclude all other reasonable inferences, then there must be a doubt whether the inference sough to be drawn is correct.

See also:	S v Sesetse 1981 (3) SA 353 (A) at 369-370, S v Morgan 1993 (2) SACR 134 (A) at 172.

Circumstantial evidence in itself may at times furnish direct proof of issues in question.  In S v Reddy 1996 (2) SCR 1 (A) Zulman AJA held among others that circumstantial evidence is not necessarily weaker than direct evidence. That in certain circumstances it may even be stronger or of more value than direct evidence.

Inferences to be drawn when circumstantial evidence is utilised must be carefully distinguished from conjecture or speculation. If there are no positive proven facts from which the inference can be made, the method of inference falls away and what is left is mere speculation or conjecture.  See: Caswell v Powell Duffryn Association Collieries Ltd 1940 AC 152 at 169 per Lord Wright.

In order to decide whether the State has proved its case beyond reasonable doubt based on circumstantial evidence, the court needs to take into account the cumulative effect of the evidence before it as a whole. It is not advisable or let me say, it is impermissible and an incorrect approach to consider the evidence piecemeal.See S v Snyman 1968 (2) SA 582 (A) at 589F, S v Hassim 1973 (3) SA 443 (A) at 457H, S v Zuma 2006 (2) SACR 191 (W) at 209B-I.

The court must also not only apply its mind to the merits and demerits of the State and defence witnesses but also to the probabilities of the case.  Such probabilities should also be tested against the proven facts that are common cause. See:	 S v Abrahams 1979 (1) SA 203 (A); S v Mhlongo 1991 (4) SACR 207 (A); S v Guess 1976 (4) SA 715 (A); S v Trainor 2003 (1) SACR 35 (SCA).

We also record at this point that the material aspects of the evidence of Edith Sibanda and that of Dr I. Jekenya were not challenged in cross-examination. It is trite that if a litigant wishes to lead evidence to contradict an opposing witness, he should cross-examine the witness upon the facts which he intends to prove in contradiction, so as to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he or she should be cross-examined upon the matters which it will be alleged his or her evidence is unworthy of credit. Failure to cross examine may therefore, in an appropriate case, prevent a party later disputing the truth of the witness evidence. See Small v Smith 1954 (3) SA 434 (SWA) at 438.

We now analyse the evidence presented in this case in the light of the legal principles enunciated above. We are mindful of the old adage that it is better to acquit ten guilty persons that convict one innocent person.

The accused believed that the deceased had a boyfriend and was cheating on him. The issue of a boyfriend and cheating caused accused pain. He says so himself.  This is also shown by the fact that a good part of the cross examination of Edith Sibanda was directed at showing that the deceased had a boyfriend. The cross examination of Jacob Mwanga, was meant to show that he was that boyfriend. The accused when he testified, took some time talking about the boyfriend, and described how he found the deceased seated on the lap of a man, whom he says was the boyfriend.

The sting of the cross-examination of the state witness Jacob Mwanga was to show; first that he was that boyfriend seen by the accused in the company of the deceased; second that at the material time he was in a love relationship with the deceased. Furthermore, it was meant to show that he was the cause of the assault of the deceased by the accused. We find that whether there was a love relationship or not, the accused believed there was, and this made him angry.

Accused admits that when he found the deceased with what he calls a boyfriend, he beat her up, first using his opens hands, and when she was blocking him and protecting her face, he then used a leather belt. The accused wanted to know where the boyfriend stayed, and he even went to the home of Jacob Mwanga, the man he believed was the boyfriend. We find that this boyfriend issue caused him pain and made him angry. We locate the accused’s motive to beat up the deceased on his anger caused by what he considered a betrayal of trust by the deceased. We note that motive is not intention. We still have to ascertain whether he had the intention to commit the crime charged.

It is important to understand the time line in respect of the events that took place, and how it fits into the mosaic of this case. The accused passed through his in-laws house, number G 101 at around 7 pm, and found that the deceased was not at that home.  He was informed that the deceased had gone to house number H 141 Njube, their rented place. He proceeded to house H 141Njube and stayed for approximately fifty (50) minutes, the deceased did not turn up. He then decided to look for her, he then used the path that the deceased was expected to use when walking from house G 101 Njube to H 141 Njube. That is when he says he saw the deceased sitting on the lap of a man. According to his version that must have been at approximately 8 p.m.

An analysis of his version reveals that at approximately at 8 p.m. he says he drove to Nkulumane with the deceased. According to the accused the deceased then jumped from a moving motor vehicle.  At 11:30 p.m. he phoned Edith Sibanda and told her that he will see her in 10 minutes. In 10 minutes he arrived at house G 101 Njube, and found Edith Sibanda waiting for him at the gate. We conclude on these undisputed facts that he arrived at house number G 101 Njube, where Edith Sibanda was waiting for him at approximately 11:40 p.m. We record that the evidence of Edith Sibanda that the accused phoned her at 11:30 p.m. and said he will arrive in 10 minutes was not challenged in cross-examination.

We find on these facts that the accused was with the deceased between 8 p.m. to 11: 40 p. m.  This is a period of time of approximately three and half hours. The question is, where was the accused with the deceased for a period approximating three and a half hours? It is not in dispute that this is the time the deceased suffered injuries that led to her death.

In his evidence, the accused avers that the deceased showed him where the alleged boyfriend stayed.We know from the evidence that the deceased showed the accused the house of Jacob. We says so Jacob Mwanga testified that he was advised that the accused came to his home looking for him.

Then when did the deceased show him the home of Jacob Mwanga? We know from the evidence that it could not have been after the alleged trip to Nkulumane. We say so because the deceased was unconscious after that trip. She could not have shown him after that trip. She must have shown him before the trip, then what was the purpose of driving to Nkulumane? Edith Sibanda testified that the accused told her that he asked the deceased to accompany him to his business stand, where he has buses. Then they drove along Khami Road. This was not challenged in cross examination. We find that the trip was not for the purpose of the deceased showing the accused where the alleged boyfriend stayed. Our finding is at that point he already knew where the alleged boyfriend stayed.

It is a falsehood that there was a trip to Nkulumane to look for the alleged boyfriend.

The accused told Edith Sibanda that the purpose of the trip was to go to his business stand. In court the accused says it was for the purpose of the deceased to show him where the boyfriend stayed. He is hiding the real purpose of the trip. Our finding is that the accused tricked or forced the deceased to accompany him to some place where he callously assaulted her. This is so because the injuries described in the post mortem report were not inflicted in Njube. In Njube the accused said he only beat deceased a few time with open hand and a few times with a leather belt. The injuries seen on the deceased were inflicted at the place the accused took deceased to.

We find as proved that when the accused met the deceased at approximately 8 p.m. on the 22nd May 2019, she had no injuries. She, according to the accused, even attempted to run away from him. She could not outpace him, he caught up with her. He disappeared with the deceased between 8 p.m. and re-emerged with her at approximately 1:1 40 p.m. a period of about three and half hours. When he emerged with the deceased, she was now stark naked and unconscious. She could not talk. She was groaning. She could not walk. She did not talk to Edith Sibanda, until she died on the 25th May 20219.

The question is what happened to the deceased during the time she was with the accused person? Accused person admits that he beat her four times with open hands and five times with a leather belt. He contends that the beating was moderate and did not cause the deceased any injuries. It is said this was a light beating as she was a woman and he loved her.In his closing submissions Mr Mahaso repeated and repeated this light beating version.

This court has a post mortem report, before it. It described the external marks of violence observed by the doctor on the body of the deceased. The accused did not say the report contains false information. His expert witness did not say the report contains false information. In fact his expert accepted the correctness of the existence of the external injuries observed by Dr Jekenya on the body of the deceased.  Mr Mahaso in his closing submissions conceded that what was observed by Dr Jekenya are the injuries inflicted by the accused on the deceased. Counsel called the assault moderate punishment, not life threatening, to correct the deceased.

According to the post mortem report the deceased’s body exhibited serious marks of violence.  These are plaited hair with oblique ridges and furrows running mainly from left frontal to right occipital. There are multiple bruises of the frontal and parietal skin. Right maxillary bruise 4 x 4, 5cm.Swollen left eye region with subconjunctival haemorrhages.Multiple bruises, whiplashes and scratches of the head, upper limbs, lower limbs, buttocks, back and chest wall. There is associated underlying soft tissue and muscle damage. Right thigh antero-lateral whiplash is 28cm long and 1 to 2 cm wide.Traumatized left hand and distal left forearm. The left hand has a dorsal subcutaneous haematoma of about 2 and 3 cm thick, extending through the wrist to the dorsal distal forearm distance 8cm.The back has multiple whiplashes including the buttocks. There are multiple scratches of the lower limbs more noticeable on the left and the back. According to the post mortem report, severe forces were used to inflict the multiple injuries.

We find as proved these are the external injuries inflicted by the accused on the deceased on the 22nd May 2019 between 8 p.m. and 11:40 p. m. By any stretch of imagination such injuries, which the doctor described as callous, could not have been caused by the beatings as descried by the accused. The accused lied about the extent and force of the beatings he unleashed on the deceased. We find without an equivocation that the accused subjected the deceased to a brutal assault.

According to medical evidence, the causes of death were intracranial haemorrhages, head and multiple injuries and callous assault. The accused contends that the heads injuries were caused by the deceased having jumped from a moving motor vehicle. We ask, did the deceased jump from a moving motor vehicle?

We find as proved that the accused on the 22nd May 2019 did not tell Edith Sibandaon the phone that deceased had jumped from a moving vehicle. He does not tell her when he got to house number G 101 Njube at 11:40 p.m. He did not tell her in the morning of the 23rd May 2019. Edith Sibanda heard this story of jumping from a motor vehicle for the first time at Western Commonage Court, were the accused was appearing. We take the view that, if indeed the deceased had jumped from a moving motor vehicle, this is the first thing the accused would have told Edith Sibanda. He did not.

In his evidence, the accused avers that he did not take the deceased to the hospital because he did not see injuries, except the injury on the left eye. We know from the evidence that the deceased had serious injuries, which Dr. I. Jekenya attributed to a callous assault. Again the accused himself confirms that the deceased had sustained head injuries and bruises on her upper body. She was in pain. She had wounds. She had sustained serious injuries on the head.

Notwithstanding such pain, such injuries, the question is why did the accused not take the deceased to the hospital? He did not immediately after the alleged jump take her to hospital. He had a vehicle. By his own version the deceased had sustained serious injuries on the head and was in pain.

We find that he did not want to take her to hospital, because such was going to cause alarm and the involvement of the police. The following morning, i.e. 23rd May 2019, he accepts that the condition of the deceased had become worse, he had someone dying in his hands, and he did not call an ambulance or drive her to hospital. Instead he went to Marondera Clinic to look for a private doctor. Leaving the deceased alone at home. He did not tell the landlady about the condition of the deceased until she was told by Edith Sibanda on the morning of the 23rd May 2019.

At a public hospital a police report would be required. He tried to involve a doctor from a private clinic, to avoid the involvement of the police. He knew that the involvement of the police will inevitably lead to his arrest.

We find as a proved fact that the accused generated a fake police report. It is because of the alert nurses at Mpilo Hospital who noticed that the report contained false information. He did this to avoid the involvement of the police and an arrest.  He did not want the matter to be investigated.He did not want an investigation. If the deceased had jumped from a moving motor vehicle, there could have been no reason to avoid a police investigation.

The accused observed the deceased had suffered serious head injuries. She was in pain, and he did not take her to the hospital. He spent the whole night with her when she was in such a medical condition. In the morning of the 23rd May 2019 he went to look for a doctor at Marondera Clinic, leaving her alone at home. Gets a fake police report. All this shows that he did not want the assaults he perpetrated on the deceased to be known.

In his evidence in court, he maintains that the deceased had no injuries, except the swollen eye. This is a direct contradiction with his defence outline and confirmed warned and cautioned statement. He did not tell Edith Sibanda that the deceased was in the back seat of the car, until she heard her groaning. She was groaning because she was in pain. His explanation is that the deceased said he must not disturbed her because she wanted to sleep.She was unconscious, not asleep.

The accused contends that he was taking the deceased to her parents so that she could be warned not to have a boyfriend as she was a married person. How does one take an unconscious person for a discussion? How does one take an adult naked woman to her parents for a discussion? In his warned and cautioned statement accused contends that the deceased asked to be removed her clothes immediately after the alleged fall,he repeats this in his oral evidence in this court. If she was hurt to the extent that she felt hot to prefer to be naked, the only logically thing he could have done was to take her to a hospital. We find that the accused removed the clothes to hide the extent of the assaults he had inflicted on the deceased. We know from the evidence of the Edith Sibanda that the t-shirt was put in the washing basket, it was torn.

According to Dr. I Jekenya the causes of death are intracranial haemorrhages, head and multiple injuries and callous assault. Furthermore, according to the doctor, the head injuries observed on the body of the deceased were consistent with assault, and not jumping from a moving motor vehicle, as the cause of the injuries which led to the death of the deceased.

The doctor who examined the body of the deceased, ruled out or discounted the jumping from a moving vehicle. He found that the deceased did not jump from a moving motor car.  It is significant that Dr Jekenya testified that the deceased was subjected the callous assault. The deceased also had injuries which were not found to be consistent with someone who jumped from a moving motor vehicle. She had no abrasions and she had no tar on her body.

We know from the evidence that on the 22nd May 2019, the accused tried to carry the deceased into the house, he failed alone, and sought the assistance of Edith Sibanda. Notwithstanding this uncontroverted evidence, Mr Mahoso in his closing submissions kept repeating that the accused was assisted to get into the house. The evidence is clear that the deceased was not assisted into the house, she was actually carried. She was unconscious. She needed emergency medical attention, not these compressions at home by the accused. Furthermore,Mr Mahaso submitted that the condition of the deceased on the 22nd May 2019 was not alarming, the court asked him whether he read the defence outline and the warned and cautioned statement, which clearly says the accused observed that she had sustained head injuries and bruises in her upper body. The deceased was in pain. They also sought to clean her wounds and make her feel better.  We note that there is reference to “wounds’ not “wound.” In his warned and cautioned statement he says “Edith and I applied hot/cold compresses on her head after realising that she had sustained serious injuries on her head.”With these facts to argue that her condition was not serious is unattainable.

What emerges from the evidence is that the accused callously assaulted the deceased, before he drove to Edith Sibanda. This gels in with the time line, i.e. the three and a half hours period we referred to above, when the accused was with the deceased. The accused was with the deceased from approximately 8 p. m. and 11 40 p. m. This is period that the deceased suffered fatal injuries caused by the accused.

What is apparent is that the injuries were too severe. Inflicted with severe force as observed by Dr Jekenya, e.g. multiple bruises, whiplashes and scratches of the head, upper limbs, lower limbs, buttocks, back and chest wall. These and many more could not have been caused by four mere beatings on the face and five moderate beatings with a belt. We find that these were a result of a sustained and brutal assault.

The approximately three and a half hours the accused was with the deceased, this is the time he inflicted fatal injuries on the deceased. It is unattainable to submit that this court cannot make such a finding because it does not know the weapon that the accused used. The t-shirt that was worn by the deceased prior to her death, Edith Sibanda found it torn inside a laundry basket. We find that it was torn during the assault. The issue of the torn t-shirt was not challenged in cross-examination.

We found as a proved fact that the now deceased did not jump out of a moving motor vehicle. If he had done so, accused would have informed Edith Sibanda on the first telephone call that night. He did not do so. He would have taken her to hospital that very night. He did not do so.

We know from the unchallenged evidence of Edith Sibanda that the accused told her that the deceased threw her cell phone out of the moving car, they searched for it, found it with a damaged screen. However, Edith Sibanda informed the court that she saw the phone, it was not damaged. Accused was not telling the truth.

When accused returned with the deceased, she was stark naked. She was unconscious. Could not walk. Was groaning. Could not talk. Accused did not take her to hospital on the 22nd May 2019. On the morning of the 23rd May 2019, accused left the deceased home and went to Marondera Polyclinic, to look for a doctor. When deceased arrived at Mpilo Hospital, she was taken to Intensive Care Unit. She died on the 25th May 2019. The cause of death was intracranial haemorrhages, head and multiple injuries and callous assault.

The conduct of the accused is bizarre. He has someone stark naked in the back seat of his car. A person who suffered seriously injuries. Does not tell Edith Sibanda, he pretends everything is normal until Edith hears groans from the back seat.  He decided to kept a very injured person, first in the car, and second keep her at home the whole night.

The accused contends that after she allegedly jumped from the moving vehicle, she was talking, she asked him to first remove her t-shirt and shoes, later her track bottom because she was feeling hot. That must have been ten minutes before he got to Edith Sibanda. She was not talking. Accused avers that she was asleep. She could not have fallen asleep in that period of ten minutes. Our finding is that she was unconscious from the assaults inflicted by the accused.

A clear picture emerges that the accused wanted to create a falsehood that the deceased jumped out a moving vehicle. It is inconceivable that after jumping from a motor vehicle moving at between 30 to 40 km/h, the deceased will only have one visible injury above the eye. No abrasions. No tar on her body. No fracture. That after the fall, she could talk and ask that her clothes be removed, approximately ten minutes later, she would be unconscious until she dies on the 25th May.

The evidence, when viewed holistically, paints a vivid picture that the accused took deceased to some place, assaulted her until she became unconscious. Realising what he had done, phoned Edith Sibanda, but by then he had not manufactured the falsehood of jumping from a moving vehicle. In the morning, he ran to Marondera Clinic, to try and get a private doctor to help him in his problem. Got a fake police report to avoid an arrest. By the time the accused phoned Edith Sibanda, the deceased was, at the very least, fatally wounded, and death was inevitable.

The version of the accused disintegrated with illogical statements. A clear picture emerges that the accused created the jumping from the car story, to come up with a self-serving defence. He realised that he had fatally injured the deceased. This is the story he started peddling. He put it in his warned and cautioned statement, told it to Cephas Ndlovu and Bekithemba Sigauke.

As they say that a falsehood, like a short blanket, does not cover everything, if you cover your head, your feet sticks out, if you cover your feet, your head sticks out, and either way you are caught. That is the web accused finds himself entangled in.  See the remarks by Kabasa J in The State V Bhunu and Ngwenya HB 55/20.

In the final analysis of all the evidence before Court, we are guided by various legal principles to determine whether the charges against the accused have been proven beyond reasonable doubt. Proof beyond reasonable doubt does not involve proof to an absolute certainty.  It is not proof beyond any doubt, nor is it an imaginary or frivolous doubt.  This is the standard that must be met by the State’s evidence in a criminal prosecution.  The state must show that there is no other logical and reasonable explanation that can be derived from the facts, except that the accused committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.  See S v Reddy & Others 1996 (2) SACR 1 (A) 8 C-E

The onus on the State is not to prove that each separate item of evidence is inconsistent with the innocence of the accused, but that taken as a whole, the evidence is beyond reasonable doubt inconsistent with such innocence.  See S v Shackell 2001 (2) SACR 185 (SCA) at 194; State v Hadebe and others998 (1) SACR 422 (SCA) at 426 E-H.

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) and S v V 2000 (1) SACR 453 (SCA) and S v Jaffer 1988 (2) SA 84 (C).

Proof beyond reasonable doubt does mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt, but nothing short of that will suffice. See Miller v Minister of Pensions [1947] ALL ER 372 at 373.

We are satisfied that there is no other logical and reasonable explanation that can be derived from the facts, except that the accused committed the crime. There is no evidence that suggests that the accused is entitled to the benefit of doubt. There is no reasonable possibility that the deceased jumped from a moving motor vehicle. The jumping from a motor vehicle version is a false creation, a falsehood. We reject it.

Credibility

We have had the opportunity of watching all the state witnesses as well as the accused when they testified in this court. All the state witnesses gave their evidence in a calm, sequential and relaxed manner.  We distinctly formed an impression that they were truthful, honest and reliable as witnesses in this court.  Although there could be one or two contradictions in some of the details in their testimonies, same were not of any meaningful or material nature as to affect the quality of their evidence or cast doubt or aspersions on their credibility.  We can say here without any shadow of doubt that the state witnesses did not embellish their versions to disadvantage the accused herein.  We have no reason to reject or disregard their testimonies

We distinctly formed an impression that the accused was not telling the truth to this court. There are so many inconsistencies and improbabilities in the accused’s version that we can say without any fear of contradiction that he was an untruthful, unreliable and untrustworthy witness whose evidence cannot be relied on. His version of events is so improbable that it cannot be accepted as representing a true version of events in this case.	From the totality of the evidence led herein, inclusive of the accused’s version, we have been persuaded that the state has been able to prove a case against the accused beyond a reasonable doubt.

Conclusion

The prosecution has invited this court to convict the accused of murder in terms of section 47 (1) (b) of the Criminal Law (Codification and Reform) Act. which provides that any person who causes the death of another person realising that there is a real risk or possibility that his or her conduct may cause death, and continuesto engage in that conduct despite the risk or possibility;shall be guilty of murder. The test for realization of real risk or possibility is subjective and is provided in section 15 of the Act. It has two components, namely-

(a) Awareness that there is a risk or possibility that the conduct embarked on might result in the relevant consequence and the relevant fact or circumstance existed when the accused engaged in the conduct.

(b) Recklessness. This entails that despite the real risk or possibility the person whose conduct is complained of continued to engage in such conduct.

In terms of s 15 (2) of the Act, recklessness is implicit in the term realization of risk or possibility. Where awareness of real risk or possibility is proved, recklessness shall be inferred from the fact that the relevant fact or circumstance actually existed when the accused engaged in the conduct.

It is incumbent upon the prosecution to prove that the accused was aware of the real risk or possibility of death and despite that realization he persisted in the unlawful conduct which caused the death. In the present case the following facts are relevant to the determination of the accused’s realization of the real risk of death. The evidence shows that severe force was used in assaulting the deceased. This puts to naught, the accused version in court that he merely beat the deceased a few times with open hands and a leather belt. The assault was so forceful that it incapacitated the deceased and made her unconscious.

To deliberately embark on a callous assault of another human being entails an awareness of the real risk or possibility of death. The accused must have realized the real risk or possibility of the fatal consequences of his conduct.

These facts, in our view, are sufficient to establish beyond a reasonable doubt a realization by the accused that there was a real risk or possibility that the conduct embarked on by him may result in the death of the deceased and he continued to engage in such conduct despite the awareness of the risk or possibility of death.

We are satisfied therefore, taking into account the entire conspectus of the evidence that the State had discharged the onus resting upon it to prove the guilt of the accused beyond reasonable doubt.

We find as proved that the accused callously assaulted the deceased, which assault caused the head injuries, which head injuries and multiple injuries caused intracranial haemorrhages, which caused the death of the deceased.

In conclusion, from the totality of the evidence presented in this court we have been persuaded that the state has been able to prove its case against the accused beyond a reasonable doubt.

Verdict

Having carefully weighed the evidence adduced as a whole in the trial, the accused is found guilty of murder as defined in terms section 47 (1) (b) of the Criminal Law (Codification & Reform Act) [Chapter 9:23].

Sentence

It is firmly established that in determining upon an appropriate sentence a court should have regard to the nature of the crime the accused has committed, the interests of the community and the individual circumstances of the accused.  These considerations are commonly referred to as the 'Zinn triad’ after the often quoted decision of the Appellate Division that authoritatively confirmed them to be the relevant compass points. See S v Zinn 1969 (2) SA 537 (A).

The accused was 39 years at the commission of the offence. He is 40 years now. He is married with four minor children. One of the minor children is daughter to the deceased. He takes care of his 73 year old mother and nine children from his other siblings, some of whom are now late. He runs a transport business.

Mr Muganyi in his eloquent and helpful submissions in mitigation told the court that the accused met the demands of the deceased family. He was charged twenty-five head of cattle as compensation to the deceased family for the murder of their daughter. He has so far delivered five of those cattle. He paid deceased medical expenses, paid funeral expenses and paid for all requirements for the funeral, i.e. buying food for the mourners etc. He has made peace with the family of the deceased. Prior to his incarceration he was visiting the deceased family twice a week. The court was told that the deceased family even approached Njube Police Station for the purposes of withdrawing charges against the accused. The police declined to withdraw the charges.

The accused is a first offender. He is remorseful. He is sorry about the death of the deceased. It was argued that the accused did not plan the death, he did not have a script that he was following. There was no premeditation. He was just angry by what he considered the infidelity of the deceased. He is not a violent person. He had a loving relationship with the deceased. This was even testified to by Edith Sibanda, the sister to the deceased.

It was submitted that the conviction has left a permanent mark on the accused. At some point he might have to explain to his daughter what happened to the deceased. Society views him as a wife killer. It was argued that he is now a broken man.   We were referred to a plethora of case authorities that deal with sentence. We were invited to temper justice with mercy. Mr Muganyiemphasized that he was not down playing the gravity and the seriousness of the offence. We find his submissions well thought out and articulately presented.

For the state, it was argued that the murder was committed in aggravating circumstances as defined in section 47 (2)(c) of the Criminal Law (Codification and Reform) Act. We do not agree with this submission. Brutal murder it was, but it cannot be elevated to murder committed in aggravating circumstances. The State called for a severe sentence to reflect the gravity of the case.

However, we note that the accused committed a barbaric act of mindless brutality directed at a helpless and vulnerable woman. The crime is rendered all the more seriously by the fact that he betrayed the relationship of trust that existed between him and the deceased and by suddenly turning on her when she was helpless, brutally assaulting her, which assault led to her death. That the injuries inflicted by the accused were severe is borne out by the post-mortem report.

The interests of society are significantly implicated in a case such as this that involves both domestic violence and violence of an extremely serious degree against a woman. As both domestic violence and violence against woman generally are prevalent, society is entitled to expect of courts to impose sentences that send a message clearly that violence against the weak vulnerable in our society will not be tolerated.

The criminal law must deal effectively with gender-based violence. For instance, the criminal law must severely punish a man who responds with violence towards a woman when he believes that she is cheating on him. He had no right at all to respond by violence. The law provides remedies against a cheating spouse. There is a lawful answer to infidelity. No one is permitted to answer infidelity by violence. Such an attack must be condemned under the criminal law in order to disabuse the accused and like-minded men of these mistaken notions, that they can assault their spouses to correct and rehabilitate them. The act of punishment serves as retribution. It serves also to signify that such crimes will not be tolerated, that there is a significant and serious consequence to be suffered by the perpetrator.

This is the task that a sentencing court is called upon to carry out. It is required to take proper cognisance of the nature of the crime and to determine a sentence which balances the competing interests of the society and those of the individual perpetrator while meeting the objectives of punishment. The sentence must be blended with the requisite measure of mercy.

The evidence shows that an extraordinary degree of violence was deployed against a defenceless human being. The violence that preceded the killing of the deceased was such as to place this crime in the category of the most serious. It is difficult to conceive the degree of violence that you meted out against the deceased, and what the victim experienced in her last moments.

What a horrible way to end the life of another human being. This court must say it, and say it strongly that such conduct will not be tolerated. This court has taken a stand, and it will continue taking a stand, against this wanton violence and destruction of life. Such conduct must be answered with appropriate punishment.

There is no mathematical formula in sentencing. The personal circumstances of the accused and all that has been said on his behalf should enjoy appropriate consideration in coming up with an appropriate sentence.  A balanced approach is required. It is a balancing act.

However, after taking all factors in to account, we find that the following sentence will meet the justice of this case:

You are sentenced to 15 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Tanaka Law Chambers, accused’s legal practitioners