5
HCC 26/25
HCCR 473/25
THE STATE
Versus
MASHOKO MIDZI
HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI, 3 June 2025
Assessors: 1. Mr. Manyangadze
2. Mrs. Mateva
Criminal Trial
K. Teveraishe, for the State
T. H. Maromo, for the accused
MUZOFA J:
[1] On the 23rd of December 2022 at Chimwendo Compound Battlefields, Kadoma the deceased one Stanly Mpofu was stabbed four times and died. The accused was arrested and charged with murder of the deceased.
[2] The accused denied the offence. He raised an alibi as his defence from the onset. He denied threatening the police with a machete as alleged by the State. The accused was shot by the Police on arrest.
The State Case
[3] The State produced the post mortem report, the sketch plan and the accused’s confirmed warned and cautioned statement by consent of the defence. Evidence of four witnesses was also formally admitted in terms of s314 of the Criminal Procedure and Evidence Act (Chapter 7:09). Their evidence needs no summarization as it did not impact on the real issues in this case.
[4] Five witnesses gave oral evidence to prove the State case.
Agatha Sibanda
[5] She operated a canteen at Chimwendo compound. The deceased was her nephew. She also knew the accused as a local resident.
[6] On the fateful day, in the morning the deceased was at her canteen to buy some food. The accused was already at the canteen. The two had a conversation, probably the conversation was not cordial. The accused quizzed the deceased on why he always had access to the girls at the witness’ canteen. The news was that the deceased was dating Beatrice her recently engaged assistant cook. They argued and the deceased left.
[7] Later the deceased returned, he was drunk. The deceased must have been stone drunk as he sat outside dozing. He did not even respond when she spoke to him. It was evening. She saw the accused talking to deceased who was dozing. She was about 7m from them. There was no lighting, they used torches. She retired to bed.
[8] After about an hour, when she had already fallen asleep, she was jerked from sleep by a scream someone shouting ‘I am dying’ or words to that effect. She went outside to investigate with her torch switched on. She saw the accused chasing the deceased. She immediately woke up her assistant Beatrice.
[9] The two ladies, followed where the deceased ran to. They found him at Mai Maudi’s tuck-shop. He had collapsed. He was bleeding profusely from the thigh.
Beatrice Chinamasa
[10] She was employed at Agatha’s canteen as an assistant cook. She was only a week old on this job. She dated the deceased and the relationship was two days old.
[11] On the 23rd of December 2022, the deceased visited her at the canteen in the evening. Since she was still serving customers, the deceased sat outside on a log. He was drunk and dozing.
[12] When she finished serving customers, she tried to wake up the deceased to no avail. She left him outside and retired to bed.
[13] She did not see the accused on the day. While asleep she heard someone scream ‘I am dead”. Agatha whose room was nearby woke her. The two ladies knew that the deceased could have been attacked.
[14] They went outside where they saw some blood and followed the spoor until they got to where the deceased had collapsed. Many people had gathered. Others were trying to call the deceased’s relatives.
[15] She did not know who attacked the deceased. Agatha is the one who reported to the police. She was not aware that the accused was interested in her until after the commission of the offence. Agatha told her the accused was interested in her.
Givemore Marufu
[16] He was a police officer stationed at CID Kwekwe. He together with other officers arrested the accused.
[17] He said following a tip off he teamed with two officers. He was armed with a service pistol. They proceeded to accused’s cabin with their informer.
[18] On arrival they demanded that accused open the door while identifying themselves as police. There was no response. Constable Mqunyelwa then pushed the door, accused emerged wielding a machete. He advanced towards Mqunyelwa. He shot 3 times into the air, calling out the accused to drop the machete and surrender. The accused was undeterred. He advanced. He was left with no choice but to shoot at the accused. He shot him once on the ankle.
[19] Despite being shot the accused resisted arrest. They wrestled with him until they hand cuffed him.
Memory Ndlovu
[20] He was the investigating officer. When he was allocated the docket after the deceased’s uncle reported on 26 December. Accused had already been arrested by police officers at Battlefields.
[21] Since she was not involved in the arrest of the accused, she did not know whether he had resisted arrest. However, she observed that accused was shot, she was told he had resisted arrest. She also noted that Marufu was injured with a machete. She received the machete from the arresting details. No documentation was completed to confirm recovery and receipt by the police.
[22] She recorded statements from witnesses. She also drew a sketch plan which was produced in court by consent. The accused did not make any indications as he denied the offence. The accused raised alibi that he was drinking beer at Fambai Bar with two friends.
[23] He investigated the alibi. The bar owner said he had not seen the accused. The other two people accused drank beer with were his relatives. She must have concluded it was unnecessary to interview them.
[24] She described the scene of crime. There were no lights, and there was short grass. Under cross examination she said the accused’s relatives confirmed the alibi. Detective Seargeant Marufu reported the assault and the machete was used in the assault case. This could be the reason it was not before the court.
Graham Mqunyelwa
[25] He was a police officer. He was part of the arresting team. He said they went with their informer who showed them the accused’s place, a cabin.
[26] The accused did not open the door despite announcing their presence and he force opened the door. The accused was shot for resisting arrest. Constable Marufu was injured by the accused when he was resisting arrest. He could not remember where he was injured.
[27] The State then closed its case.
Defence Case
[28] The accused took to the witness stand. He narrated how he spent the day and the people in his company.
[29] He described how he was arrested. He said he was asleep. All of a sudden, the door was forcibly opened. He was woken up and rose. He was shot on the thigh. He sat down.
[30] The officer asked if he was Mashoko Midzi and whether he killed the deceased. He denied. He was then shot again on the ankle. He was carried into the police vehicle.
[31] He denied any altercation with deceased. He was not interested in Beatrice. He said he did not visit Agatha’s canteen this is a mistaken identity case. He denied resisting arrest. He also denied that he had a machete which he used to attack the police.
[32] The defence did not have any witnesses it then closed its case.
Closing Submissions
[33] We are grateful to both counsel for timeously filing detailed closing submissions which identified the issues and made detailed analysis.
[34] After identifying the applicable law, the State identified the issue as that of identification of the accused. It submitted that there was adequate identification of the accused. Agatha knew the accused for some time before the commission of the offence. There was light at the time he saw the accused chasing the deceased. She saw him and could not mistake him. The State witnesses were credible.
[35] For the accused after a detailed analysis of the evidence, it was recommended that we dismiss the State’s evidence on identification of the accused. Also, that the State did not disprove the accused’s alibi. The accused must be acquitted.
Issues for determination and the law
[36] In this case two issues present themselves for determination, whether the accused was positively identified as the assailant and whether the State disproved his alibi.
[37] It is the State’s duty to discharge the onus and prove the case beyond a reasonable doubt.
Identification
[38] In the celebrated case of S v Dhliwayo & Anor 1985 (2) ZLR 101 (S) the court enumerated some of the factors that must be considered in the assessment of a witness’ evidence on identification. The court must consider whether the witness was known to the accused prior to the commission of the offence, the lighting when the witness identified the accused, distance from the accused and circumstances under which the witness identified the accused. In other words, the Court must carefully analyse both the enablers and the disablers to proper and positive identification and come to a value judgment.
[39] Generally, evidence on identification needs to be of a high standard. There are instances where a witness may look and sound genuine yet mistaken. As stated in Xolile v S A 257/2017 (2018 ZAG PJ HC 509) cited for the defence;
“Even an honest person can identify the wrong person with confidence. Consequently, the witness must be thoroughly examined about the factors influencing his or her identification….. Particularly care should be taken if the only evidence connecting the accused with the crime is that of a single identifying witness…….” (italics for emphasis)
[40] It cannot be gainsaid that weak identification by a witness requires corroboration for the State to sustain a conviction.
[41] Agatha’s evidence was not credible. We accept that she did not see the accused’s face, she saw the back of the person who pursued the deceased. We say this because she heard a person scream, obviously she did not immediately bolt out of her room, she had to get a torch, open the door and go out. Certainly, these people were not waiting for her. Thus, she only saw the back.
[42] We do not accept the State’s assessment of Agatha’s evidence that she could positively identify the accused. The State failed to ask itself pertinent questions like when Agatha exited her room, she saw a person chasing the deceased. What were the factors that influenced her identification of the assailant. Her evidence was that she saw his clothes. That is weak identification. Similar clothes are produced en masse. It is not farfetched to assume that jeans and gumboots are common clothes in the mining communities for men.
[43] That the accused was seen within the canteen vicinity is doubtful. This piece of evidence was not corroborated. It is incomprehensible that Beatrice who was two days in love with deceased would not have seen him talking to the accused. How is it Beatrice did not see the accused if indeed he was at the canteen in the morning and later in the evening, particularly talking to the deceased.
[44] It is also not understandable that Agatha did not immediately identify the accused by name to the police who collected the deceased’s body or to anyone for that matter. Seeing someone being attacked and killed is not an everyday occurrence. It is heart rending and shocking that one can just blurt out even irrelevant things. How could she be calm and collected about it? Could it be that she was in the processing of reasoning out who she saw pursuing the deceased?
[45] Under cross examination she was at the verge of conceding that her identification was influenced by prior events. She said she was aware that, prior to this day that accused and deceased had fought. Also, that she suspected that their issue was about girlfriends. She must have concluded that these two had unsettled issues to resolve.
[46] There was compromised or restricted lighting from the torch. We were not how big the torch was neither were we told if it could illuminate a small or big area. For all we know torches provide limited lighting. She was about 7 to 10 metres from the accused and the deceased who were moving objects. How could she identify the accused remains a million-dollar question.
[47] It is noteworthy that firstly she said the accused was at the canteen in the morning and in the evening on the 23rd of December 2022. However, Beatrice her assistant who cooked and served customers did not see the accused. She said the accused spoke and actually argued with the deceased. Could it be possible that, Beatrice who was dating the deceased would not even seen this? We do not lose sight that Beatrice said the deceased came in the evening, he sat outside dozing. She did not tell the court about any argument. Is it possible that only Agatha could be the only one to see what deceased was doing. Beatrice and deceased were two days in love surely; she could not completely ignore her newly found love. We doubt Agatha’s evidence.
[48] We have no doubt that Agatha knew the accused prior to the commission of the offence. However, that knowledge should be taken contextually. In this case it seems her knowledge of the accused physically and the rumor mongering about him could have influenced her identification. We do not believe her evidence on the identification of the accused.
[49] The evidence therefore requires corroboration. We conclude that Agatha was a genuine but mistaken witness. Her evidence was influenced by other extraneous factors and not confined to what she saw on the day.
[50] Beatrice did not provide any corroboration. She could not even confirm Agatha’s story that the accused intended to propose her. She did not know about that.
[51 The police officers’ evidence did not provide any evidence on the identity of the accused. If anything, the evidence placed before us established police highhandedness when they arrested the accused
[52] Memory Ndlovu the investigating officer did not execute his duties efficiently. An investigating officer must tie all the loose ends of a case.
[53] In this case, under cross examination she made a number of self-destructive concessions. She said she drew up the sketch plan. The sketch plan showed that indications were made on the 23rd of December yet she received the docket on 26 December. The sketch plan and her evidence contradicted. She simply said she forgot to correct.
[54] The police officers who arrested the accused also were highhanded. The accused was shot allegedly for resisting arrest. There was no evidence that he resisted arrest. Of all the strange evidence placed before us, the following can take the prize. Memory and Graham said Marufu was stabbed by the accused. Marufu was mum about this. He did not tell us that he was attacked by the accused. In fact, he said the accused advanced towards Mqunyelwa that’s why he shot the accused. Mqunyelwa said the accused attacked Marufu. Surely how can two police officers contradict each other on such a pertinent issue unless nothing of this sort happened.
[55] The said machete was not produced. There was no evidence as to who recovered it and where it was recovered from.
[56] It is trite that in terms of section 49 of the Criminal Procedure and Evidence Act the police must seize any article suspected to have been used in the commission of the offence. The provision is mandatory. Where the accused denies the article, the seizure form can be produced as proof. Nothing was placed before us to prove that the machete was recovered from the accused. It is a serious offence to resist arrest or to attack a police officer conducting lawful duties. In variably it leads to an arrest. Resultantly, we conclude that the accused did not have the said machete. The police failed in their duty.
The Alibi
[57] We conclude that the state did not rebut the alibi. The accused presented his alibi at the earliest possible opportunity in the warned and cautioned statement in line with decided cases and the law see Mushanawani v State SC 108/22, S v Mandaza & Ors HH116/24.
[58] The accused fully disclosed the alibi as early as 26 December 2022. His statement was that;
“I have read and understood my rights as an accused person and I have also understood the nature of the caution. I deny the allegations levelled against me. On the 23rd of December 2022 at about 2100hours, I returned from Moyo Mine where I work in the company of Farai Chitimbe, Peter Banda and Tatenda Vengesai. We proceeded to Fambai Bar which is situated at Chimwendo Compound to buy some beer. We drank beer up to around 2200 hours. I later left and proceeded home to sleep in the company of Peter Banda whom I stay with. On the day in question, I never met the now deceased”.
[59] It was within the police’s capacity to record statements from Moyo Mine, the accused’s companions or someone from Fambai Bar, they did not record any statement. The State was content to present inadmissible hearsay evidence. The evidence from Memory was not what she perceived during investigations. It is what she heard from potential witnesses. It remains hearsay.
[60] The accused properly set out his alibi in the warned and cautioned statement. The State did not disprove it.
[61] It is wrong for a police officer to investigate an alibi by simply interviewing the witnesses and come to tell the court what the witness said. Obviously, this is hearsay evidence. It does not fall under any exception to be admissible.
[62] Memory should have recorded a statement from whoever he interviewed. That person then would give evidence. It is unacceptable for a police officer to be spokesperson for a witness.
[63] Memory was not so candid, he was conservative with the truth. In his evidence in chief, she said other people who drank beer with accused were his relatives to suggest that they could be biased. For a moment we thought he had not interviewed them. However, pressed under cross examination he conceded that he interviewed them and they confirmed the alibi. It had to take painstaking cross examination for the evidence to be come out.
[64] It is not uncommon that relatives or friends to support and shield one of their own. The Police need not shy from recording statements from relatives of accused persons. They should do so and leave the Court to make a value judgment on a consideration of all the evidence. Where a court is faced with that evidence, it must weigh the relatives’ evidence against the rest of the evidence before it. We did not have the benefit of such evidence. The alibi remained intact.
(65) From the forgoing, the State managed to raise a strong suspicion that the accused may have committed the offence. The standard of proof in criminal cases in proof beyond a reasonable doubt. In this case the evidence raised many unanswered questions leading to a doubt. In such instances the matter is resolved by giving the accused the benefit of doubt.
Accordingly, the accused is found not guilty and acquitted.
National Prosecuting Authority, the State’s Legal Practitioners
Choga and Associates, the accused’s Legal Practitioners