S v Tenha (690 of 2022) [2022] ZWHHC 690 (30 September 2022)

HH 690-22 CRB 08/22 THE STATE versus JUSTIN TENHA HIGH COURT OF ZIMBABWE MUNGWARI J HARARE, 18 February & 30 September 2022 Assessors: Mr Gweme Mr Jemwa Criminal Trial D H Chesa and TMukuze for the State F Gororo and A Murutayi for the accused MUNGWARI J: Justin Tenha (herein after referred to as “the accused”), appeared before us charged with the crime of Murder in contravention of s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9.23] (hereinafter referred to as “the Code”). Prosecution alleged that on 9 September 2020 he struck Tendai Kanjanda (hereinafter referred to as” the deceased”) with logs and stones. The attack caused mortal wounds. In detail, the allegations were that on the night of 9 September 2020 the deceased and his friend Wallace Mwase were drinking beer at some unlicensed premises (shebeen) in an area called New Lines in Mbare. The accused who suspected the deceased of having stolen his scrap wire, got wind of his whereabouts. He followed the deceased to the watering hole. He confronted him about the missing scrap wire. The accused was visibly angry. He attempted to assault the deceased but was restrained from doing so. Sometime later the deceased sent an emissary to apologize to the accused on his behalf. The apology appeared to have been accepted. With that in mind and convinced that he had appeased the accused, the deceased and his friend returned to drinking their beer. After a while they left the shebeen and headed home which was a cabin they occasionally put up in. On arrival they retired to bed. At around 2300hrs the accused once more sought out the deceased. This time he went to the deceased’s cabin. When he got there he forcibly entered the room and started assaulting the deceased and his friend. The deceased’s friend took to his heels and somehow escaped. He

HH 690-22 CRB 08/22 left the accused still assaulting the deceased. The assault spilled outside the cabin and into the yard. Some passersby saw the deceased being assaulted by the accused on the head with a log and a stone. They heard him begging for forgiveness from the deceased. The following morning the deceased’s lifeless body was discovered at the scene. A police report was subsequently made. The post mortem report concluded that death was due to a ‘severe brain oedema, hemorrhagic area in the occipital region and moderate head trauma caused by assault.’ After the assault, the accused fled the scene. He was only arrested on 18 September 2020, some nine days later at a farm in Macheke were he had now secured employment as a farm hand. Upon his arrest he was subsequently charged with the murder of the deceased. The accused pleaded not guilty to the charge and denied having followed the deceased to his cabin on the mentioned date. Contrary to the state’s assertions the accused maintained that although he had earlier in the day gone to the shebeen and met the deceased there, he never attacked him in the manner described. Instead he said he engaged in a fist fight with the deceased at the shebeen. He confessed that the cause of his aggression was his missing scrap wire which he suspected had been stolen by the deceased. The fight had occurred about four hours after he had started drinking the illicit brew sold at the shebeen. Soon after the fight he had gone to his uncle’s house to sleep. He did not follow the deceased to his cabin. He denied having fled the scene and said that he left for Macheke because he had been scheduled to go to his uncle’s farm on that day in order for him to take up a part time job that he always used to do during the tobacco season. He denied having any knowledge of how the deceased ended up dead. COMMON CAUSE ISSUES The issues which are not in dispute in this trial are that:

1. There was a misunderstanding between the accused and the deceased earlier on the day in question. That disagreement was about the accused’s scrap wire which deceased was suspected of having stolen.

2. The deceased apologized to the accused and some kind of truce ensued

3. Later in the evening, after the deceased had retired to sleep in his cabin, someone attacked him and his friend

4. The friend fled and left the deceased at the mercy of the assailant.

5. The deceased sustained severe injuries from which he died. His body was discovered the next day

HH 690-22 CRB 08/22 STATE CASE The state opened its case by applying to tender the accused’s confirmed, warned and cautioned statement. The defence consented to the admission of the statement. The statement was recorded from him at CID Homicide in Harare on 19 September 2020. It was confirmed by a magistrate sitting at Harare on 21 September 2020. The statement was accordingly admitted as exhibit no

1. In the statement the accused mentioned the following under caution: “I do not deny the allegations of killing the now deceased. What happened is that we fought after he took from me my wire and sold it. When I asked him about the wire an argument ensued between us. This resulted in a fight two days after he stole my wire. We did not get a chance to talk to him until the time I left. I later learnt about his death after the fight” Prosecution thereafter applied to produce the autopsy report compiled by Doctor Lauidun Malogon Martinez a pathologist employed at Harare Central Hospital. The doctor had examined the remains of the deceased on 14 September 2020. He noted multiple injuries on it. In particular, he observed five plague abrasions on the frontal region, the right hip, the right thigh, right elbow and forearm and on both legs. He also noted a 3cm wound in the chest area. Lastly he noted a fracture in occipital skull bone, severe brain edema and hemorrhaging in the occipital region. He concluded that the cause of death was as a result of: a. severe brain edema b. hemorrhagic area in occipital region c. moderate head trauma Again with the consent of the defence the postmortem report was duly admitted into evidence as exhibit no

2. The cause of the deceased’s death was therefore uncontentious. In addition to the above, the evidence of the Rachel Masiya, Samuel Mawadza and Tendai Machiriori was formally admitted in terms of s314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as it appeared in the state’s summary of evidence. The evidence of those witnesses established the following relevant facts:

1. The accused confronted the deceased at a shebeen run by Rachel Masiya at around 7pm on the fateful night demanding to be compensated for the scrap wire allegedly stolen from him by the deceased.

2. Although no fight ensued between the two, the accused was visibly unhappy with the wrong committed against him.

3. The deceased was contrite and went to the extent of sending an emissary to plead for forgiveness from accused.

4. The deceased’s body was discovered the following morning lying on the ground in New Lines Mbare.

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5. The accused was arrested on 18 September 2020 at Durlstone Farm Macheke where he was employed as a farm laborer and had fled to following the events of the night of 9 September 2020

6. A warned and cautioned statement was recorded from the accused according to the law

ORAL EVIDENCE The State led viva voce evidence from three witnesses namely Walter Wallace Mwase, Bernard Nyerenyere and Dela Matariro. The accused on the other hand was the sole witness for the defence.

Issue for Determination

When the state’s allegations, the defense’s arguments and the common cause issues outlined above are put together it is apparent that the only issue which arises for determination is the identity of the person who attacked the deceased at the cabin. In view of that we proceed to summarise and analyse the witnesses’ evidence in so far as it deals with the identity of the deceased’s assailant. Walter Wallace Mwase (Wallace) He survives as a pushcart operator in Mbare and was a close friend of the deceased. He was present and in the company of the deceased at Rachel’s shebeen when the confrontation between the accused and the deceased occurred. He corroborated the evidence of Rachel that no fight took place at the shebeen. He was present and sleeping with the deceased later that night when the accused broke into their cabin and started assaulting them indiscriminately with booted feet, hands and a weapon resembling a knobkerrie. He identified the accused with the aid of a street light that shone into the cabin’s opening. In fact he said the accused had identified himself as Jasi, a moniker for the accused’s real name Justin. He also identified him through his voice when he repeatedly demanded payment for his scrap wire as he beat up the screaming deceased. Accused was well known to him and they often drank beer together at the shebeen. The witness informed the court that he and the deceased had consumed opaque beer. They had laced the beer with an illicit brew. That made the beer’s alcohol content more concentrated, more potent and consequently more intoxicating. For that reason he was drunk and so were the accused and the deceased. The deceased however appeared the drunk amongst the three of them. He made that conclusion because from the shebeen the deceased had staggered and literally crawled back to the cabin. He struggled to maintain his balance.

HH 690-22 CRB 08/22 In that hopeless drunken stupor, so the witness narrated, the deceased was defenceless. He could only plead with the accused to desist from assaulting him. Unfortunately the pleas fell on deaf ears. At some point during the assault, the witness said he managed to slip out of the cabin as the accused continued to bludgeon the deceased. He made good his escape only to discover the following morning that the deceased had died Nothing significant came out of the cross examination except an insistence by the witness that he was drunk but only moderately so. He insisted that he had consumed approximately four opaque beers mixed with the illicit brew as already stated. He poured half a bottle of the illicit brew into each container of opaque beer. The sizes of the containers as well as the combined alcohol content were not made known to the court. We were unable to properly assess the potency of the mixture. We therefore accepted that in the absence of any evidence to the contrary the witness was indeed moderately drunk. On the other hand, the witness said, whilst the accused was drunk his movements were steady, his thoughts appeared coordinated and his speech was coherent. That made the witness to believe that the accused knew and understood what he was doing. In our view, the coherence with which this witness narrated the events persuaded us to accept that although he had been drinking alcohol, he fully appreciated what was happening. The fact that he remembered to escape from danger buttresses our conclusion. He saw and could comprehended that there was danger. He ran for dear life. In addition he was refreshingly candid with the court. He did not seek to fill in the gaps where he had no knowledge of the issues. Slow in manner of speech he plodded on with his testimony. We noted that in spite of this handicap he had an amazing knack of recollection. No amount of cross examination could shake him. The significance of his evidence was not lost to the court. There was no question that his evidence was truthful. The only issue which needs to be interrogated is whether the witness properly identified the accused as the assailant. In a long line of authorities, courts have always been cautioned against readily swallowing a witness’s evidence of identification hook, line and sinker. A witness in that regard need not only be honest. His evidence must be completely reliable. In S v Mtetwa 1972

(3) SA 766 at 768A-C HOLMES JA stated that: "Because of the fallibility of human observation, evidence of identification is approached by the Courts with some 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 and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused's face, voice, built, gait and dress; the

HH 690-22 CRB 08/22 result of identification parades, if any, and of course, the evidence by or on behalf of the accused. This list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighted one against the other, in the light of the totality of the evidence, and the probabilities." Wallace’s evidence falls into the same category that the court in Mtetwa was referring to. We should therefore be sure that he properly identified the accused. The only blemish we find on the witness is that by his own admission, he had consumed alcohol. Generally alcohol tends to impair a person’s judgment. Our observation as already stated is however that the witness as shown by his actions, was moderately drunk and could tell left from right. He was therefore not in a state where he could failed to recognise the accused. We are fortified in making this finding by the following additional factors. (a) Witness and accused were known to each other prior to this incident The evidence before us is that the accused on one hand and the witness and the deceased on the other were acquaintances of sorts. They had on many occasions drank beer together at the shebeen. There was therefore no question of mistaking someone else for the accused by the witness. (b) The accused and the witness had net earlier on in the day at the shebeen. The witness had had occasion to observe the accused. They had spoken together. The witness knew the accused’s voice. (c) When the accused arrived at the deceased’s cabin, he had not bothered to hide his identity. He openly declared that he was Jasi. He shouted and ranted as he demanded his scrap wire or payment for it. The witness said he recognised that voice. He knew that indeed it was Justin, the accused person in this matter. (d) The cabin was illuminated by a street light whose beam shone into the cabin. That light made visibility very good. It in turn enabled the witness to recognise the accused. (e) The assault took place in a cabin. By its nature, it is a small structure. It follows therefore that the accused was very close to the witness when the assault on the deceased took place. He could observe the accused’s features at very close range. With this in mind, the witness’s identification is what the law recognises as very accurate. In fact with the cumulative effect of all the factors stated above, it exceeds identification and becomes recognition. Wallace did not identify the accused. He recognised him. We are thoroughly satisfied with this particular witness’s identification of the accused. It is completely reliable.

HH 690-22 CRB 08/22 Once that is accepted, the evidence placed the accused firmly at the deceased’s cabin well after 11pm. It confirmed that the accused had come in a combative mood. He was still angry about his missing scrap wire. If Wallace’s evidence was reliable then the corroboration of it by Bernard Nyerenyere is damning.