THE State V Zacharia Manhuru

### Preamble
1
HCC 41/25
HCCR 823/25
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THE STATE 
versus
ZACHARIA MANHURU

HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
CHINHOYI, 24 & 25 June 2025. Judgment 4 July 2025

Assessors:   	1. Mr. Mutombwa
                    	2. Mr. Mutayiwa

Criminal Trial

M.M. Chitsiga for the State
T. Chehanga for the Accused

BACHI MZAWAZI J: Two people were savagely stabbed by a sharp unspecified object on the night of the 25th of April 2025, around 9pm close to Kuwadzana Shops in Banket. One of the victims of the attack, a male adult, died after staggering a few paces from the scene of the stabbing. The other one, a female aged 37 years was seriously slit on both hands, under the right-hand arm pit and the left-hand wrist and hospitalised.  The State case is made out of the evidence of this surviving witness which also led to the arrest and arraignment of the accused before this court. The accused stands charged with one count of murder and one count of attempted murder. He denies both charges.

State Case and Evidence
1st Witness

The summary of the State case originates from their key and sole eye witness Esinary Tembo. There is no need to regurgitate the same rather than delving straight into the said witness’s testimony and evidence. This witness attested being the landlord of both the deceased and the accused. She claimed that she grew up with the accused and knew him very well. He stayed at her residence in Kuwadzana township with his parents who were in actual fact her tenants.

It is this witness’s evidence that on the day in question she had left her homestead around 3 to 4pm to purchase some relish at the Kuwadzana shops. She met the accused’s mother at the shops and they went drinking from one place to the other ending up at a night club. She told the court that during the course of her escapades at the shops between 4pm and 5pm she met the accused whilst she was still in the company of his mother. Later on, around 7pm and 8pm she then met the deceased whom she agreed to accompany home.

The witness stated that the deceased started a few steps ahead of her. Whilst she was endeavouring to catch up with him, she heard the deceased greeting the accused by name. It is her evidence that this greeting was met with the stabbings on the chest sending the deceased staggering a few paces away. She then confronted the accused and challenged why he acted in such a fatal manner. She also received a heavy blow on the forehead from the accused who had responded by assaulting her with a beer bottle butt.  This is said not to have deterred her but continued with her inquisition before turning to walk away.

She then felt being grabbed and had her hands slashed, one after the other by the accused. She stated that at the time she and the deceased accosted the accused, he was standing by the corner of a house a few metres from the shop and was in the company of a woman whom she failed to identify.

On cross- examination this witness admitted that she had consumed a considerable mixture of different brands of alcohol. She apparently prevaricated in an effort to downplay her degree of intoxication. In her evidence in chief, she claimed to have consumed only one quarter of a quart of Black Label beer. Under cross and re-examination, she stated she had consumed three full quarts.  She conceded having imbibed a whole two litre of opaque beer by the name of a scud before her visit to the shops.

The witness was not consistent as to whether or not the place where she first saw the accused and witnessed the attack was well lit or dark. She initially stated that though there was no electricity at the shops, the place was illuminated from generators. When asked by the State she said the beam from the shops could not light the spot where the alleged crime took place.

This State witness failed to explain, even in view of the fact that people react differently to the same stimuli, why, she firstly, could not call out for help or alert the shop patrons when she first saw the first stabbings from a distance. Moreover, the alleged crime scene according to her indications on the sketch plan was only six metres away from the shops.  Secondly, she could not convincingly explain why then, after witnessing such a brutal attack on her companion she would then single handedly, boldly and brazenly confront an armed and dangerous assailant.

Again, the State witness, informed the court that after the attack on her person she made her way home with blood oozing profusely and collapsed a few steps to her house only to wake up in her hospital bed. Per contra, evidence from Nosizo Ncube the police officer who received and recorded the initial report actually recorded the report from the witness, Esinary Tembo who came in person at 2130 hours at the police Station. Esinary Tembo concealed this integral piece of information that she did indeed recover from her unconsciousness and made her way to file a report to the police. It is thus not clear as to who revived her and what time had lapsed between her stabbings and her visit to the police.

What also fails to make sense or add up is that the report of the murder was not made by the person who accompanied this witness to the police. It was made by a total stranger who had stumbled upon the body of the deceased on his way as disclosed by the admitted evidence.

Esinary Tembo’s evidence though coherent was inconsistent in crucial aspects as highlighted above thereby failing the credibility mark.

Officer Nosizo Ncube also stated that the report of the murder was made by one Honest Dzika who had discovered the body of the deceased at around 8pm on his way from the shops and not by Esinary Tembo. It suffices to note that the summarized evidence of both Ncube and Dzika was admitted into evidence by consent.

2nd Witness

The second State witness is the investigating officer, John Kwatamba. His evidence was to the effect that he attended the murder scene after being handed over the docket. He then trailed blood to where he then discovered the deceased’s remains. He only recorded the statement of what transpired from the first State witness. His investigations rested on what he extracted from the single witness.

Upon cross examination by Ms Chehanga for the defence, Mr Kwatamba failed to explain why he did not conduct any other independent evidence like the recovery of the murder weapon, the blood soiled clothes, or any other evidence linking the accused to the crime.  Ms Chitsiga for the State, quizzed him as to the lighting between the scene of the murder and the nearest shop or house and he failed to explain satisfactorily.  On why he did not recover the clothes that the accused wore on the night of the alleged murder when they arrested him the following morning, he said they had been washed and were on the drying line.

Discernibly, the 17 years experienced police officer, was visibly dishonest as to why they did not launch a manhunt on the already known killer the same night to avoid disposal or concealment of evidence. He stated that they went to the accused’s house on the night but found the whole house with more than five tenants locked. He was asked whether or not it was synonymous with suspects of such brutal killings to just go home retire like nothing happened only to stay put waiting for police arrest the following morning, not even fearing public reprisals or instant justice. His answer was behavioural patterns do differ with individuals. Officer Kwatama admitted that he did not do justice to the investigations of this case as he could have gathered more evidence from the accused’s workplace and the shops so as to verify timeframes and the clothes the accused was wearing before and after the alleged murder.

The court found the witness’s credibility questionable, as when asked he would only revert to what he gathered from the first witness and nothing more amongst other factors alluded to above.

State’s Closing Submissions

In her closing submissions, Ms Chitsiga for the State, urged that she has established ample evidence for the court to convict the accused on murder with actual intent and attempted murder. She argued that she has managed to meet the threshold of proof beyond a reasonable doubt.  She contends that, her case even though a single witness case, is made out of direct identification from a person who was acquainted to the accused, and was in his proximity when he challenged him face to face soon after the attack on the first victim.  In addition, relying on s269 of the Criminal Procedure and Evidence Act, [Chapter 9:07] and the cases of, Mokoena 1956(3) SA81(A), Nyabvure v S, SC23/88 amongst others, Ms Chitsiga adverts that, a criminal court can convict on the basis of a single competent and credible witness’s evidence.

Defence Case and Evidence

The accused person testified in his defence. Both in his defence outline and oral evidence in court, the accused denied committing the heinous offences. This was supported by his unwavering statement to the police denying any involvement even after alleged assaults perpetrated on him upon arrest. This is evident from the absence of any confirmed warned and cautioned statement. In fact, his warned and cautioned statement indicating the same was produced by consent though not confirmed.

In his oral evidence the accused, actually confirmed the length of his acquaintance with both the deceased and the first witness as well as her husband and their cordial relationships. He quizzed the first witness of why with no known violent background, history or acrimony with the duo he would launch such a motiveless and ruthless attack on either one of them.

Accused consistently and unshaken admitted passing through Kuwadzana Shopping centre at around 7pm from his work place where he had left around 4 to 5pm on a bicycle. He said he was in no position to dispute whether or not the first witness in the company of his mother saw him at the shops around that time. He however refutes, in turn seeing them nor chatting with them or any one of them. He mentioned that after purchasing his grocery items he left for his house where he stays with his wife and other tenants.

It was his evidence, that though his parents where still the tenants of the first witness and he once stayed there with them for a few years, he however, relocated firstly to his work place and then to where he was staying at the time of the arrest. He challenged ever owning the mentioned black jacket or wearing the clothes fitting the description made by the first witness on the alleged shop place meeting.

The accused stated that had the police checked him at his house on the fateful day they would have located him as he was there between the hours of 7 to 8pm after buying his groceries. He said that the police found him sitting at his homestead with his children on his lap when they started assaulting him for refusing to be cuffed. He was objecting on the premises that he was not involved in the commission of any offence. He affirmed that they confirmed his alibi as to the time he arrived home with his wife and it checked out.  He also stated that the police searched his home and found absolutely nothing linking him to the offence, nor any traces of blood. He denied changing any clothes stating that he was arrested wearing the same clothes he wore the previous night.

It was the accused’s outcry that had the police exhausted their investigations and dug deeper than scratching the surface as they did in this case they must have unlocked the truth or unveil the apparent shielded killer. He controverted that the witness was a married woman well known for her frequent beerhall visits, drunken stupors and intimate associations with men other than her husband.  As such a vengeful passionate attack from any of her disgruntled lovers, who should have been made suspects and thoroughly investigated cannot be ruled out. He punctuated that he is still wondering and coming to terms as to why he was made an easy targeted and scapegoat in a plot or ploy to conceal the real killer who may be wandering unchecked.

Defence’s Closing Submissions

In her closing submissions Ms Chehanga, implored the court to take a cautionary approach in assessing the inherent dangers in both identification and single witness evidence. It is her argument, that the state of mind of the witness after the consumption of a concoction of alcoholic beverages, the limited visibility and the impact of the blow she had received from the attacker all militate against the authenticity of her identification evidence.  Even more so, that she is an interested party. She argues that in the same vein, the same factors raised to discredit the identification evidence are also pertinent to the credibility of her single and uncorroborated evidence. In support of her identification evidence Ms Chehanga cited MCNALLY JA, as he then was, in the case of S v Nkomo 1989 (3) ZLR 117 (S). Resultantly, she prays for an acquittal on both counts citing the failure by the State to discharge their burden of proof beyond a reasonable doubt.

Issues

The issues for consideration can be classified into two.

Whether or not there was proper identification pointing exclusively to the accused as the perpetrator of both offences?

Whether or not the evidence of the single State witness is sufficient to sustain the conviction of the accused on both or either one of the two counts charged?

The law

Identification Evidence

The law recognises that humans, being humans are not automatons or imbued with artificial intelligence, eidetic and or photographic memories.  Not many are gifted with the ability of total and precise and accurate recollection of events or images. Several individual specific factors may affect their visual perceptions and their recollections in any given situation just as different reactions to a common stimulus. This is the main reason why identification evidence is treated with caution. The cautionary rule enjoining the court to tread with caution applies.

DUMBUTSHENA CJ, as he then was, in S v Dhliwayo and Anor 1985 (2) ZLR 101 (S) observed that,

“… because of the fallibility of human observation, evidence of identification is approached by courts with caution. It is not enough for the identifying witness to be honest; the reliability of his observation must also be tested. This depends on various factors such as lighting, visibility, eye sight, the proximity of the witness, his opportunity for observation, both as to time and the situation; the extent of his prior knowledge of the accused, the mobility of the scene, corroboration, suggestibility, the accused’s face, voice, build, gait and dress; the results of identification parade if any and of course the evidence by or on behalf of the accused person...” See

In Naki Oscar Xolile v The State (A257/2017) [2018] ZAGPJHC 509  it was highlighted that,

“Judicial experience has shown that evidence of identity should, particularly in criminal cases be treated with great care. Even an honest person is capable of identifying the wrong person with confidence. Consequently, the witness must be thoroughly examined about the factors influencing his or her identification… Particular care should be taken if the only evidence connecting the accused with the crime is that of a single identifying witness...”

R v Atfield [1983] AJ. No. 870 a Canadian Appellate Court decision held that,

“The authorities have long recognised that the danger of mistaken visual identification lies in the fact that the identification comes from witnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken. Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages of justice through mistaken identity. The accuracy of this type of evidence cannot be determined by the usual tests of credibility of witnesses, but must be tested by a close scrutiny of other evidence. In cases where the criminal act is not contested and the identity of the perpetrator is the only issue, identification is determinative of guilt or innocence; its accuracy becomes the focal issue at trial and must itself be put on trial, so to speak. The correctness of identification must be found from evidence of circumstances in which it has been made or in other supporting evidence. If the accuracy of the identification is left in doubt because the circumstances surrounding the identification are unfavourable, or supporting evidence is lacking or weak, honesty of the witness will not suffice to raise the case to the requisite standard of proof and a conviction so founded is unsatisfactory and unsafe…”

See, S v Mupande and 2 Others (58 of 2022) [2019] ZWSC 58 (20 November 2019

Single witness Evidence

Turning on the second evidentiary issue of equal cautionary approach concern, our law recognizes a conviction based on single witness evidence as long as the thresholds laid out in the case of S v Banana 2001 (1) ZLR 607 (S,) S v Banana 2000 (3) SA 885 (ZS) are met. What needs to be satisfied has been amplified in s269 of the Criminal Procedure and Evidence Act, [Cap 9:07]. That is, a court can convict a person on the single evidence of a competent and credible witness.

Authorities abound do recognize the inherent dangers in single witness evidence. Relying on single witness evidence means a choice between two competing goal posts whose equilibrium in most cases is offset by corroborating evidence from an independent source. Hence, the evidence that eventually persuades the court in such a box ring match scenario must very convincing, honesty, trustworthy, unself- serving, unbiased and reliable. See, S v Mupfumburi (Ref CRB 4609 of 2013) [2014] ZWHHC 464 This rings true in decided authorities preceding the Banana case above, See, Nyabvure v S SC23/88, S v Nemachera S-89-86 and S v Corbett 1990(1) ZLR 205S, v Mokoena 1956 (3) SA 81 (A) at 85-86.

Discussion

Evidently, this is a single witness case. The victim of the second stabbing is the only person claiming to have seen the accused and identified him as the perpetrator. We are now aware that a conviction can be sustained on such single witness evidence. What remains to be assessed is the veracity of that evidence based on the credibility of the said witness’s testimony. We can only do justice to this case if we tackle the evidence wholesomely not in piece meal. The court is also mindful of the fact that the identification evidence which allegedly links the accused to the crime emanates from the single witness evidence.

To begin with, the single witness stated that she heard the deceased greeting the accused by name. She was about 15 paces away following behind but her mental picture had vividly registered a name before seeing the person. Upon arriving where the perpetrator was, she confronted the person naming him from what she had heard already. She was greeted with a bottle strike on the forehead.

On assessment of this replay of the initial events only, we find it hard to rely of the witness’s evidence. Demonstrably from the record, a reasonable inference can be drawn that, if she had been struck in the manner she alleges, given her physical frame we witnessed in court, from a blow exerted by a person with such force as used on the deceased she would have been flatly knocked out and to the ground.

Secondly, it can be reasonably inferred that any reasonable person in that scenario would not only have failed to see the attacker but would not be able to move an inch away.  In any event drawing inferences from proved facts is not alien to courts. In S v Mtetwa HH63/2014 it was observed that:

“Even in the most straight forward of cases, one must nevertheless draw inferences…. The court is never free of drawing inferences …”

In Truter v Truter and Anor NPD 250 at 253 – 253, SELKE J in a civil delict matter noted that;

“…Then there is the class of case in which the court is asked not merely to decide upon the credibility of the evidence but also find by inference from the facts and circumstances established…”

In addition, the key witness admitted it was dark and that the beam coming from the shops was not sufficiently lighting the area of the crime.  Yet she said she could see that the accused had placed one of his fingers into the bottle. She also could identify the bottle as a black label quart bottle. How in those split-second moments would she have captured all that under the influence of liquor.

BECK JA in his article in the 1986 Vol 1 No 1 Prosecutors Bulletin at p 18 says:

“In assessing the quality of the single witness' evidence, to decide whether the accused should be convicted on the basis of this evidence, the court should be most attentive to the nature of the witness, looking at his apparent character, his intelligence, his capacity for observation, his powers of recall, his objectivity and things like that. The evidence should be carefully weighed against the objective probabilities of the case, and against all the other evidence which is at variance with it. The court must have rational grounds to conclude that the evidence of the single witness is reliable and trustworthy and is a safe basis for convicting the accused.”

Under such circumstances, in this case we are not convinced the witness saw or identified the accused as the attacker. Unique as her situation may be, rarely do people walk to and confront an armed assailant without raising alarm when only six metres from help and other people.  In addition, her credibility is further dented by her failure to disclose her visit to the police and when after her stabbings did, she went there.

She confirmed that the accused was of good character with no history of violence. No acrimony existed between the accused and the deceased nor between the accused and herself. Although she stated the accused kept a knife on his person as an emblem of self -defence, she confessed that it was never used in any form of physical combat. This then boils down to motiveless killing which does not make any sense.

Verdict

It suffices to note that for a criminal conviction to be sustained, the State has a prerogative to adduce direct or indirect evidence which points exclusively to the guilt of the accused person. The threshold of the standard of proof must also be met by the State. In a court of law, it’s all about evidence, direct or circumstantial.   The case of Tom v S (CA 01/2021[2022] ZAECGH 89 (29 November 2022) the judges of appeal in unison observed that,

“The fact is that the law draws no distinction between circumstantial evidence and direct evidence in terms of weight and importance, either type of evidence or combination of both may be sufficient to meet the required standard of proof in the factual context of a particular case.” See R v Mtembu 1950(1) SA 670 at 679, S v Reddy 1996(2) SCR 1(A) at 8.

In the absence of either form of evidence then the benefit of the doubt goes to the accused who goes scot free. R v Difford 1937 AD 370 @ 373; makes it succinctly clear that;

“…….. No onus rests on the accused to convince the court of the truth of any explanation which he gives. If that explanation is probable, the court is not entitled to convict unless satisfied not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal”.

We find the evidence of the accused probable and, in the absence of any other independent evidence linking him to the commission of the offence, credible. The identification evidence is open to doubt. The single witness is not credible, reliable or trustworthy. What is evident is a passionate attack on both the deceased and the witness leaving room for other suspects. The State has failed to prove beyond any reasonable doubt, a duty it is mandated to discharge, that it is the accused who killed the deceased or stabbed the first witness. See, Kereke v Maramwidze and Two Others SC53/24.

The police did a shoddy job. They should have carried out further investigations at the accused’s work place and other people to confirm his attire on the day, his movements and whereabouts.  The time of the commission of the offence is not certain. The accused though at the shopping centre at one stage or the other cannot be pinned to the time the offence was committed. His alibi was confirmed by his wife. It was the duty of the police to test its authenticity from the surrounding tenants and community.  It baffles why they waited till morning to arrest such a dangerous person. They did not recover any murder weapon, the alleged bottle used to strike the witness, bloodied clothes, shoes or any traces of blood on the accused. Their beatings failed to extract any leads from the accused. They failed dismally by relying and resting their investigations on single interested party evidence.

The Supreme court in the cases of S v Musonza & Ors S-217-88 and S v Tamba S-81-91 highlighted in S v Mupfumburi (above) made it clear that, in assault cases or similar cases where there is no corroborative evidence the parties being antagonists, the danger of bias, exaggerations self-preservation cannot safely be eliminated.

Accordingly, it is ordered:

Count 1, 	Accused found not guilty and acquitted.
Count 2, 	Accused is found not guilty and acquitted.

National Prosecuting Authority, the State’s Legal Practitioners

Legal Aid Directorate, the accused’s Legal Practitioners