THE State V Gerald Mubaiwa

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HH480-13
CRB No 57/13
THE STATE
versus
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THE STATE
versus
GERALD MUBAIWA

HIGH COURT OF ZIMBABWE
BHUNU J
HARARE 14, 21, 22, 27 March 2013 and 18 December 2013

Assessors: 1. Mr. Mhandu. 2. Mr. Chakuvinga.

I. Chingarande, for the state
M.Z. Chijara, for the defence

BHUNU J: The deceased succumbed to death on 18 December 2011 from burns sustained in a horrific inferno at her matrimonial home on 14 December 2013. The circumstances under which she sustained the mortal burns are hotly contested. That the deceased caught fire after she had been doused in paraffin and then set alight is beyond question.

What is in dispute is whether the deceased committed suicide or was murdered by the accused as alleged by the state.

It is common cause that the accused and the deceased cohabited as lovers in the Domboshawa area where they rented a cottage within shouting distance of Mverechena Business Centre. On the fateful day the two retired to bed and bolted the door. Later on they had a domestic dispute resulting in a scuffle. A short while later witnesses saw the deceased engulfed in a ball of fire. The accused also sustained severe burns on his hands in the same inferno. Although the commotion attracted the attention of witnesses no one saw or witnessed how they had caught fire.

The State relied solely on the deceased’s dying declarations to her sister Elinah Kachere and the attending doctor Kudzai Mukosera. They both testified that before her death she blamed the accused for having caused her burns. While Elinah’s evidence is vague and imprecise that of the doctor is more precise and to the point. Elinah’s evidence was to the effect that the deceased advised her to stop crying and look at what the accused had done to her.


To put the doctor’s evidence in its proper perspective it is necessary to quote his evidence verbatim. According to my longhand notes this is what he had to say:

“I was on duty, casualty department when I received a patient from Domboshava with a history of having received burns. I proceeded to take a history. She told me that she had paraffin poured on her by her husband. As she tried to escape she knocked over a burning candle resulting in a fire.

I then proceeded to examine her. I discovered that she had sustained burns to the face, neck, chest, abdomen, back, buttocks and both thighs which burns were superficial and totalling 49% body surface area.

I then proceeded to administer appropriate treatment. After administering treatment I then referred the patient appropriately to the general surgeons.

She indicated that she had sustained the burns inside her house. I saw her on 15 December 2011.

She had 49% burns. If one has burns beyond 35% the risk of death is high. That is why she was referred from the lower hospital to a higher hospital.

She was fully conscious and alert. She knew what she was saying. She was obviously in pain. I have been a doctor for the past 6 years. I wouldn’t say that she knew that she was going to die.

In my mind I knew that her chances of survival were very minimal. Her prognosis was very poor. She then passed away 3 days later in the evening which means that my prognosis was right.”

Under examination by the Court the witness was asked:

“Q. Did the deceased exhibit any signs that she was conscious of the possibility of death?
A. From my assessment I did not have any reason to suspect that she knew she was going to die. I wouldn’t say that she was in a state of hopelessness. Normally when patients come to hospital they are hopeful.

Questions arising
Q. You say you could not have ascertained her state of mind. Does that rule out that she was afraid she was going to die?

A. No”

The doctor’s evidence concerning the deceased’s state of mind at the time she attributed her injuries to the accused is amply corroborated by her sister Elinah Kachere. She told the court that when she saw the now deceased in the motor vehicle that ferried her to hospital she was hopeful that she would survive. When they got to the hospital the now deceased refused to be assisted to walk saying that she could walk on her own. She advised her to stop crying to look at what the accused had done to her.

Section 254 of the Criminal Procedure and Evidence Act [Cap 9:07] provides for an exception to the hearsay rule in that it renders dying declarations admissible. The section provides as follows:

“254 Admissibility of dying declarations
(1) A declaration made by any deceased person upon the apprehension of death shall be admissible or inadmissible in evidence in every case in which such declaration would be admissible or inadmissible in any similar case depending in the Supreme Court of Judicature in England.”

It is important to note in passing that dying declarations in both England and South Africa are only admissible in cases of murder or manslaughter which is equivalent to culpable homicide in our law. It follows therefore that the same position obtains here at home in Zimbabwe.

The rational for the admission of dying declarations despite being hearsay evidence was well articulated in R v Hine 1910 CPD 371 where the Court observed that

“The principle upon which this species of evidence is admitted is, that they are declarations made in extremity when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the more powerful consideration to speak the truth; a situation so solemn and so awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.”

Although the above philosophical sentiments constitute powerful persuasive rational justification, it is by no means conclusive and does not fit every case. There certainly would be exceptional cases where a dying person might have a motive to misrepresent facts particularly where there is a history of acrimony and enmity between the deceased and another as appears to be the position in this case. It is not difficult to imagine a dying person in those circumstances being mistaken or deliberately misrepresenting facts in order to get even with his adversary as a parting shot as he departs this world. His vision and perception of the facts and circumstances surrounding his mortal injury is likely to be coloured and distorted by fear and apprehension of death. This must have prompted Hoffman and Zeffertt in their Book *The South African Law of Evidence* 4th Ed 1990 at p 643 to remark that:
 “These sentiments were highly questionable even at the time when they were uttered but the exception has become too firmly imbedded in the law to be dislodged. Even if it is allowed that a dying person could have no motive to lie, there is still considerable danger in relying upon his statement because his injuries are likely to have impaired his memory or powers of observation. The court must therefore take into account that the value of a dying declaration as evidence is diminished by the lack of opportunity to cross-examine the declarant.”

According to Hoffman and Zeffertt the requirements for the admissibility of a dying declaration can be summarised as follows:

1. The declarant must have died.
2. The case must be one of murder or culpable homicide.
3. The declarant must have made the statement in a state of hopeless expectation of death.
4. The statement must be complete.
5. The declarant must have been a competent witness at the time the statement was made.

From the doctor’s evidence it is clear that the declarant, that is to say, the deceased made a complete statement to the doctor. She accused the accused of pouring paraffin on her thereby causing her to catch fire from a burning candle.

Both the doctor and Elinah were unanimous in saying that the deceased was hopeful that she would survive. It was Elinah’s evidence that when she attempted to assist the deceased to walk she turned down the offer saying that she could walk on her own. The doctor was more precise in saying that although the deceased was badly injured she was hopeful that she would recover from her injuries.

As we have already seen from Hoffman and Zeffertt one of the essential elements for a statement to qualify as a dying declaration is that it must have been made by the deceased in a state of hopeless expectation of death. In this case there is no evidence that when the deceased made the statements accusing the accused of causing her burns she was in a state of hopeless expectation of death. For that reason alone none of her statements to qualifies as a dying declaration. The statements are therefore inadmissible as dying declarations.

Reliance on dying declarations in the absence of any other evidence as to how the deceased met her death is fraught with the danger of convicting an innocent person in that the declarant cannot be subjected to cross-examination to cross check the veracity of the declaration.

Dying declarations therefore ought to be taken with a measure of scepticism and rejected off hand where they fall short of essential elements and safeguards. Thus in the absence of any other evidence pointing to the accused’s guilt it would be wholly unsafe to convict the accused of the crime charged.

For that reason the Court comes to the conclusion that the State has failed to prove its case against the accused beyond reasonable doubt. The accused is accordingly found not guilty and discharged.

Attorney General’s Office, the state’s legal practitioners.

C. Kuhuni Attorneys, the accused’s legal practitioners.
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