THE State V Thulani Proficient Msipha

### Preamble
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HB 148/19
HC (CRB) 82/19
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THE STATE

Versus

THULANI PROFICIENT MSIPHA

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr J. Sobantu and Mrs A. Moyo

BULAWAYO 24 & 27 SEPTEMBER 2019

Criminal Trial

K. Ndlovu for the state

T. Tavengwa for the accused

MAKONESE J:	On the 4th of July 2018, the deceased, a taxi driver reported for work at Proline Taxis, Bulawayo.  He took out his motor vehicle, registration number ACL 8064 and went about his duties.  He worked the whole day late into the night.  That same evening he was hired by an unknown person and drove with his passenger along the Bulawayo-Matopo Road.  From that day onwards, the deceased was never seen alive and was reported missing.  On the 5th of July 2018 the taxi was recovered at the 33km peg along the Bulawayo-Matopo Road.  The vehicle had been dumped.  The driver’s door window had been smashed and fragments of glass were scattered around the vehicle.  The driver was nowhere in sight. Relatives of the deceased stumbled  upon the body of the deceased on 22 July 2018.  The body was ferried to United Bulawayo Hospitals for a post mortem examination.

The 23 year old accused appears in this court on a charge of murder. The allegations being that on 4th July 2018 and at a bushy area near Nugget Mine in the Matopo area, Bulawayo, the accused person stabbed the deceased on the right shoulder, right arm and on his back with an Okapi knife intending to cause his death.  The accused pleaded not guilty to the charge.

Before the commencement of the trial the state sought formal admissions from the defence relating to the identification of the accused by a state witness Wishes Tsanyau.  The defence conceded that the accused had been properly identified by this witness at an identification parade.

The state tendered an outline of the state case into the record.  The synopsis of the state case reveals that there is no direct evidence linking the accused to the murder of the deceased.  The state largely relied on circumstantial and other pieces of evidence to prove its case against the accused. For his part the accused produced a defence outline denying any involvement in the murder.  The defence outline is essentially a bare denial set out in the following terms:

“TAKE NOTICE that the accused understands the charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act, (Chapter 9:23) levelled against him.  He will accordingly plead not guilty.

The accused will deny each and every material allegation of fact and law made against him.

Specifically accused will deny ever meeting, knowing, let alone killing the deceased person.

The accused will therefore put the state to the strict proof of all essential elements of the offence.

Wherefore, accused prays for is acquittal.”

The state then produced a Post Mortem report compiled by Dr Roberto Lara Diaz filed under PM number 708/707/2018 after an examination of the remains of the deceased.  The report concludes that the cause of death was: (1) Haemorrhagic shock; (2) Knife wound.

On marks of violence, the post mortem indicates that there was a wound in the anterior part of the right shoulder, and in external lateral part of the right arm as well as multiple abrasions on the back.  The summary of history on the post mortem report reflects that deceased was stabbed with a knife.  An Okapi knife with a brown handle was tendered into evidence.  Its weight is 33 grammes, its total length is 23.5cm.  The blade is 10cm long and its width at the widest part is 2cm.

The state case

The state led viva voce evidence from 3 witnesses.  Te first to testify was ONWARD ZINDONDA.  The witness was the deceased’s elder brother.  He testified that it was brought to his notice that the deceased had gone missing on 4th July 2018.  On the 7th July 2018 he proceeded to Proline Taxis where the deceased was employed at the time of his disappearance.  He was informed that the deceased was last seen alive on 4th July 2018.  On the 8th July 2018 he attended at the scene of the crime in search of the missing deceased.  He observed glass fragments around the motor vehicle which was being driven by the deceased.  A yellow taxi metre and receipts were found strewn on the ground around the taxi.  On 10th July 2018 the witness was invited by police detectives at CID Vehicle Theft Squad, Bulawayo.  He was asked to identify a Nokia cellphone which had been recovered during the course of investigations.  The witness positively identified the handset after scrolling through the phone and identifying his own number and those of other close family members in phone contacts.  The witness concluded that the Nokia cellphone belonged to the deceased.  Under cross-examination by defence counsel, the mobile phone was switched on and the witness confirmed that the contacts in the phone included his family members and those of his mother.  The witness told the court that they discovered the remains of the deceased some 500 metres from the scene of the crime on the 22nd July 2018.  He observed that the deceased had sustained a deep wound on the right shoulder from which he had bled profusely.  His clothes were blood stained.  The evidence of this witness was not discredited under cross-examination.  The evidence is an accurate reflection of the events relating to the witness’ involvement in the matter.  There was no exaggeration on the part of this witness.  The court accepts his evidence as being credible and reliable.

Wishes Tsanyau

This witness gave evidence which was largely corroborated by the accused.  It is common cause that on the 6th July 2018 the witness was robbed at knife point by the accused person who had hired his taxi and requested to be ferried to Emaganwini.  In the course of the robbery the accused stabbed the witness on the right shoulder with an Okapi knife.  The witness was robbed of $6 and a Samsung cellphone.  Critically, this witness indicated that when the accused hired him, he did not have enough cash to pay the full fare.  Accused gave him $3 cash and promised to pay him the remaining $7   upon   arrival at his place of residence.  The accused handed a Nokia cellphone to the witness as   surety for the remaining balance.  At Emganwini, accused pretended to be lost and lured the witness out of the motor vehicle before attacking him and robbing him.  The witness was able to escape and he drove away with accused’s mobile phone.  This phone proved to have vital information linking the accused to the murder of the deceased.  The witness later handed this phone to the police.  It was observed that the phone bore contacts with the Zindonda surname.  The witness alerted the police detectives to the contacts in the phone which had been handed to him by the accused.  The witness later identified the accused at an identification parade conducted on the 10th July 2018.  The accused does not deny that he robbed the witness at knife point. The accused revealed that he is currently serving a prison term for that robbery.

The evidence of this witness is credible and consistent in all material respects.

Edward Majawa

The third witness is Edward Majawa.  He is a duly attested member of the Zimbabwe Republic Police with 20 years experience.  He is currently stationed at the Vehicle Theft Squad, Bulawayo.  On the 8th July 2018 he was a part of a team of detectives who arrested the accused on various carjacking charges.  Upon his arrest accused was found in possession of an Okapi knife in his trouser pocket.  The witness confirmed that during their investigations they interviewed Tsanyau who told them how he had been lured and robbed by the accused on the night of 6th July 2018.  The witness disclosed that he had been handed a Nokia mobile phone by  Tsanyau.  On checking the phone contacts, numbers bearing the surname Zindonda were found.  The police became interested in the phone in that the surname bore resemblance to that of Witness Zindonda, another taxi driver who had gone missing a few days earlier.  It is important to note that at that stage the body of the deceased had not been discovered.  The police made contact with the first state witness Onward Zindonda who confirmed that the deceased was his brother and that he had gone missing for a number of days. The witness testified that when deceased’s body was eventually located accused was linked to his death and he was charged with murder.

The state sought and obtained formal admissions from the defence in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07). The evidence of the under listed witnesses was admitted into the record as it appears in the summary of the state case, namely;

Leo Huture

Amos Murima

Cynthia Mupungu

Wilson Gondo

Trust Tarusenga

Dr Roberto Lara Diaz

The state closed its case.

Defence case

The accused elected to give evidence under oath.  Accused admitted that he attacked, stabbed and robbed Wishes Tsanyau.  An Okapi knife was used in the robbery.  Accused admits he robbed the witness of an amount of $6 cash and a Samsung mobile phone.  He denied ever handing a Nokia cellphone to Tsanyau.  He insinuated that Tsanyau may have been the one who killed the deceased since the phone was in his possession before it was handed to the police.  Under cross examination the accused conceded that there was no logic in his assertion that Tsanyau could have murdered the deceased, taken the Nokia mobile phone and then handed the same phone to the police, implicating himself in the murder.  That would amount to self incrimination by Tsanyau. The accused’ in his defence desperately attempts to remove himself from the incriminating evidence.  There was no reason proffered by the accused why the state witnesses would seek to falsely implicate him.  The Nokia mobile phone provides a sufficient link of the accused to the killing of the deceased.  It is fortuitous that the Nokia phone remained in the possession of Tsanyau after the robbery.  The accused did not expect to leave the phone with Tsanyau.  He did not anticipate that his victim would survive the robbery and make away with the phone.

Analysis of the evidence

This court makes a finding that the accused’s version has several inconsistencies and improbabilities.  It is not disputed that the deceased was robbed on the night of the 4th July 2018.  His motor vehicle was discovered the day after the murder in the Matopo area.  The driver’s window had been smashed.  The deceased’s body was nowhere in sight.  On the 6th July 2018, the witness Tsanyau was hired and robbed by the accused using the same modus operandi.  The accused, it will be noted tried to smash Tsanyau’s taxi window using an Okapi knife.  The accused admits that he stabbed Tsanyau.  He took some cash and valuables from him.  The witness luckily escaped with a stab wound.

Mr Ndlovu appearing for the state has argued that the court must apply the doctrine of recent possession to the circumstances surrounding this offence.  In S v Kawadza 2005 (2) ZLR 321 (H) and S v Parrow 1973 (1) SA 603 (A) it was established that the doctrine of recent possession is to the effect that if three essential requirements are satisfied, the court may infer that an accused stole the goods found in his possession.  The doctrine is simply a common sense observation based on the proof of facts by inference.  For the court to rely and convict the accused based on this doctrine the requirements that must be met are that:

goods were stolen

goods were recently stolen

accused  has filed to give a reasonable explanation for his possession.

See also S v Everton Moyo HB-169-17

In this matter Tsanyau indicated that the accused handed him the Nokia cellphone when he hired him on the 6th July 2018.  This was barely two days after the deceased had gone missing.  This court has already rejected the accused’s version that Tsanyau must have murdered the deceased.  This court makes a specific finding that the Nokia mobile phone that was handed to the police by Tsanyau was the same phone taken from the deceased during the course of a robbery.  The phone contains phone contacts belonging to the Zindonda family members.  The phone was recently stolen in the robbery and murder of the deceased.  The evidence establishes an undeniable link between the robbery and murder of the deceased.

Circumstantial evidence

Mr Tavengwa appearing for the accused has argued that when all the evidence is put together, the state has failed to prove its case beyond reasonable doubt.  He contends that the circumstantial evidence sought to be relied upon is not consistent with all the proved facts.  In my view, in convicting an accused person on the basis of circumstantial evidence all the pieces of evidence must be considered.  The cumulative evidence must be tested and pass the test of credibility and reliability.  The court must apply the cardinal rules of logic as laid down in the case of R v Blom 1939 AD 188 at page 202-203.  These two cardinal rules are:

The inferences sought to be drawn must be consistent with all the proven facts.

The proved facts must be such that they exclude every possible inference of accused’s innocence, save the one sought to be drawn.

Application of the law to the facts

The state proved that the deceased, a taxi driver reported for work on 4th July 2018. He was never seen after reporting for work on that day.  The motor vehicle that was being used by the deceased was found dumped along the Bulawayo-Matopo Road.  The driver’s window had been smashed.  A missing person’s report was filed.  On the 22nd July 2018 he deceased’s body was discovered following a search by his relatives.  Tsanyau narrated how he was robbed and stabbed by the accused.  The mobile Nokia phone handed to him by the accused was linked to the deceased.  The accused has failed to give a reasonable explanation of how he came to possess the phone before handing it to Tsanyau.  The accused admits using an Okapi knife to rob Tsanyau.  At the time of his arrest he was in possession of the same knife.  The accused indicated that he carried the knife on the day of his arrest because he was planning to execute another robbery.  His denial of the offence is simply a bare denial of the allegations.  He has not given any reasonable defence to the allegations against him.  Accused’s testimony is not consistent nor credible.

We have no difficulty in finding that the state succeeded in proving its case beyond reasonable doubt.  As regards the issue of intention, the court notes that the accused lured the deceased to a secluded place.  His intention was to rob the deceased.  He armed himself with a knife with the intention to subdue his victim in the robbery.  When he stabbed the deceased he foresaw that his conduct could possibly cause the death of the deceased.  He persisted in his conduct regardless of the consequences.  It is now settled that murder with constructive intent is proved when these requirements are satisfied:

Foresight of the possibility of death occurring; and

Reconciliation with the foreseen possibility. See; Sv Mugwanda 2002 (1) ZLR 574(S)

There is insufficient evidence to prove murder with actual intent beyond reasonable doubt.

In the result accused is found guilty of murder with constructive intent.

Reasons for sentence

The accused committed a most heinous murder.  He lured the deceased to a remote location 33 km outside Bulawayo.  He armed himself with an Okapi knife.  He showed great resolve in the manner he executed the murder.  After stabbing the deceased he fled the scene leaving the deceased to bleed to death.  He showed no mercy to his victim.  Throughout the proceedings the accused did not show any remorse or contrition.  He raised a false defence and continued to avoid the evidence which pointed to him as the perpetrator.  He even tried to suggest that one of his victims in an earlier robbery could have been responsible for the murder.  The accused’s moral blameworthiness is high.

These courts have repeatedly warned that severe punishments would be imposed in murders committed in the course of robberies. Such murders are committed in aggravating circumstances.  We have, however, taken note of all the mitigating circumstances as highlighted by the accused’s defence counsel.  We shall take into consideration the following mitigating factors:

The accused is a first offender.

The accused s a youthful offender who was only 22 years at time of the commission of the offence.

The accused was immature and acted irrationally.

The accused is a family man with a minor child, 1 year 4 months old. He is in a customary union.

In assessing an appropriate sentence this court shall take into account the provisions of section 47 (4) (a) of the Criminal Law (Codification and Reform) Act (Chap 9;23), which provides that the maximum sentence for a murder committed in aggravating circumstances shall not be less than a definite period of 20 years.  The sentence which this court must impose must have a deterrent and rehabilitative effect on the accused.  The sentence must not break the accused but must allow him to pause and reflect on his conduct.  At his age, accused has a long life ahead of him.  He must however realize that he has been convicted of a very serious offence.  A lengthy prison sentence is unavoidable.

“The accused is sentenced to 25 years imprisonment.”

National Prosecuting Authority state’s legal practitioners

Muuso, Taruvinga & Mhiribhidi, accused’s legal practitioners