Harare High Court judge Justice Tawanda Chitapi said evidence obtained through prying into a cellphone should not stand in court as it would have been obtained illegally.
Justice Chitapi made the landmark ruling as he sentenced Fortunate Nsoro (36) of Chitungwiza for knifing her husband to death while their eight-year-old daughter watched, for refusing to show her a “suspicious” text message that he had received on his cellphone.
Nsoro fatally stabbed Petros Mutasa (55) in February last year, in a dispute over the text message which her husband had received on his cellphone.
Justice Chitapi convicted Nsoro of culpable homicide and sentenced her to 10 years in jail.
He suspended two years for five years on condition that she does not commit a similar crime within the period.
The judge said snooping into someone’s phone contravenes Section 57(d) of the Constitution, which guarantees every person the right not to have the privacy of their communications infringed.
“There is no law which provides that a husband or wife has a right to infringe on the privacy of the other’s communications. Whatever message which the deceased received was not intended for Nsoro, otherwise Mutasa would have conveyed the message to her. She (Nsoro) simply could not respect her husband’s right to privacy,” said Justice Chitapi.
It was, however, not mentioned in court the reason why Nsoro demanded to read the message.
“Nsoro’s insistence that Mutasa should divulge a communication made to him on his phone was in itself an infringement upon his right to privacy of communication,” said the judge.
Justice Chitapi said Mutasa was lawfully entitled to refuse to divulge the message he had received on his phone to his wife.
“In a way, by insisting that Mutasa divulges the message, Nsoro was the cause or torched the altercation which ended up with disastrous consequences. It is the court’s view that society should learn to respect privacy of communications. Many a time, the cellphone has been cause of matrimonial quarrels and domestic disputes because couples do not respect each other’s rights to communications made or received,” said the judge.
Justice Chitapi said the courts continued to be inundated with cases involving spouses invading the private communications of the other.
“This practice should be deprecated as it amounts to investigating or eavesdropping on one another. Usually, spouses who do this will be aiming to find evidence of wrongful conduct by the other.
“Eavesdropping on another’s cellphone is evidence of lack of trust in that other person and the courts are flooded with cases where couples or spouses seek to prove wrongful conduct by the other using evidence in the form of messages retrieved from another spouse’s phone,” he said.
The court heard that on February 26, 2015 shortly after 7pm, the couple was in the bedroom when Mutasa received a message on his mobile phone.
Nsoro demanded to read the message, but her husband refused. He also declined to divulge the contents of the message.
She got angry resulting in a dispute. The court heard that a fight ensued and Mutasa indiscriminately assaulted his wife.
Nsoro rushed to the kitchen and returned armed with three kitchen knives, which she used to stab her husband.
The court heard that Mutasa died on the same day after succumbing to the injuries.
A neighbour, who heard Mutasa screaming, reported the matter to the police leading to Nsoro’s arrest.
Post mortem results showed that the cause of death was due to post-haemorrhagic shock, lacerations, bruises, abrasions, stab and cuts consistent with use of sharp force.