S v Chipangura and Another (308 of 2023) [2023] ZWHHC 216 (10 May 2023)

1 HH 308-23 CRB 60/22 THE STATE versus KENNEDY CHIPANGURA and GIVEMORE MUNYARADZI JONGA HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 8 – 10 May 2023 Assessors: Mr Gweme Dr Mushonga Criminal Trial T M Havazvidi, for the State T K Takaendesa, for the defence MUREMBA J: The accused persons pleaded not guilty to the charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code). It is alleged that on 16 January 2022 at 1030 hours, the two accused persons in the company of one Mbonisi Moyo who was issued with a warrant of arrest and is at large, severely assaulted the deceased, Blessing Kandido at MC Building at the corner of Chinhoyi Street and Speke Avenue in Harare. They assaulted him with booted feet and clenched fists all over his body. After the deceased had been assaulted, he proceeded to make a report of assault at Harare Central Police Station. On 24 January 2023 the deceased’s condition deteriorated and he was taken to Parirenyatwa hospital where he succumbed to injuries sustained during the assault on the same date at around 2000hours. HH 308-23 CRB 60/22 In denying the charge, the accused persons said in their defence outline that they never assaulted the deceased. They said what happened is that their colleague Mbonisi Moyo left his bag with the deceased. When he returned in their company to collect the bag, the deceased failed to produce it. Mbonisi Moyo then assaulted the deceased. The accused persons said that they then restrained Mbonisi Moyo from further assaulting the deceased as the deceased had given an undertaking that he would look for the bag. The accused persons said that they were surprised after 10 days when they were told that the young man who had been assaulted by Mbonisi Moyo had passed away. In proving its case the State started by producing the post mortem report. It states the cause of death as global subdural hematoma and severe head trauma. Another significant condition that was observed was pulmonary edema. The post mortem report was produced by consent which means that the accused persons do not dispute the cause of death. The State then led evidence from Loveness Machekera. The gist of her evidence was that she works as a vendor near the place where the deceased was working. She would also see the accused persons coming to the premises where the deceased was working. There was a restaurant at these premises. Loveness Machekera said that on 16 January 2022 in the morning between 10 and 11am she was at her vending place when she heard some noise. When she went to investigate, she saw 3 people who included the two accused persons assaulting the deceased in the alley. She stood at the gate which was about 3-4m away from the scene of the assault. It was her evidence that she saw all the 3 people assaulting the deceased. None of them was trying to restrain the other(s). The deceased was lying on the ground as the accused persons and their colleague were taking turns to kick him with booted feet all over his body and head. As they were kicking him, he was rolling on the ground like a football. She said that the assault was vicious and she was afraid to get closer. The accused persons were very angry. She observed the assault for about 15 minutes and could not stand it any longer. Initially the deceased was crying, but he ended up being quiet as they continued to assault him. Loveness Machekera said that she did not witness how the assault stopped or ended as she had returned to her vending site. However, she saw the deceased after the assault on the same day as he was now leaving for the police station to make a report. She spoke to him and asked him why he was assaulted. He said that it was about the bag without elaborating. She noticed that he was swollen on the right side of HH 308-23 CRB 60/22 his forehead. He was also bleeding from the mouth and the nose. She said that she then saw the deceased on the next day. After that, she never saw him again. She only learnt of his death on 25 January 2022. The second witness to testify was Togara Mandimandi. He said that he was a security guard at the same premises the deceased was working. The deceased used to be a caretaker and was now a porter for vendors. This witness also said that he was attracted to the scene of the assault by the noise that he heard. When he went to investigate, he found the deceased being assaulted by 3 men who included the 2 accused persons. Just like the first witness, Togara Mandimandi denied seeing the two accused persons restraining their colleague from assaulting the deceased. He was adamant that he saw the three men assaulting the deceased by kicking him with booted feet on the head. He said the person who had tried to restrain them was a certain soldier who was in the company of one Beans who was also witnessing the assault. This soldier was almost assaulted as well. So, he stopped trying to restrain. Just like Loveness Machekera, Togara Mandimandi also observed that the deceased’s forehead was swollen on the right side. He was also bleeding from the nose and the mouth. The deceased explained to him that he had been assaulted because of the bag. The deceased did not explain further about the issue. This witness said that the assault was vicious and he observed it for almost an hour. The accused persons stopped the assault on their own as they promised to return for the deceased. The witness said that he had observed the assault at a distance of about 21 metres. He said that he was standing by the gate. He said that the deceased was assaulted as he was in a sitting position. Each time he tried to stand up, he would be pushed down by being kicked by his assailants. Loveness Machekera and Togara Mandimandi corroborated each other in all material respects. They both saw the two accused persons involved in assaulting the deceased. None of them saw the two accused persons restraining their colleague Mbonisi Moyo. They also saw the trio assaulting the deceased by kicking him with booted feet on the head. They both observed the same injuries on the deceased. The deceased was swollen on the right side of the forehead and he was bleeding from the nose and from the mouth. The third witness to testify was Blessing Mubairakuenda. His evidence was to the effect that the deceased was his friend. They had become friends because they were operating from the same premises. The deceased was a caretaker whilst the witness was self-employed as a vendor. HH 308-23 CRB 60/22 The witness knew the accused persons because they used to come to eat food at the restaurant which is at the premises where he was operating from. On 24 December 2021, the two accused persons came in the company of a third man and left their satchel. It looked like they forgot that satchel. The third man came back for the satchel on the next day. However, the deceased who had taken it to his home told him that the satchel had gone missing. The man was not amused by this. He held the deceased and assaulted him once. He then left promising to come back in the company of his colleagues. He then came back with the two accused persons on another day. The witness could not clearly recall the date when the three came. He however said that the three came drunk and they were each holding a quart of castle beer, drinking the beer. They asked the deceased about the satchel. The deceased said that it had been stolen. The first accused was the first to assault the deceased with an open hand on the face. The second accused then hit the deceased who was now in a kneeling position with his knee on the face. Thereafter, the three took turns to assault the deceased as they kicked him with booted feet. The witness recalled that accused one was wearing a pair of boots which was tan in colour. He could not recall what the other two were wearing in their feet. The witness said that the accused persons and the third man assaulted the deceased viciously for about 45minutes. People were afraid to restrain because the accused persons were vicious. They only stopped after the owner of the premises came with USD$15, 00 which he offered to them so that they could buy another satchel. They however did not accept the money. The witness said that he watched the assault from a distance of about 2 ½ metres inside the gate. Nothing obstructed him. The witness saw the deceased bleeding from the nose and the mouth. He however only saw that the deceased was swollen on the forehead about 2 days later. He said there are 2 gates at the scene where the assault happened. One is about 3-4 metres away and the other one is about 16 metres away from the scene. He was asked if he was sober when the incident happened and he said that he was. He said that he does not take drugs. The question was asked by the defence counsel in light of the fact that when this witness came to testify, he was coming from prison where he is serving 6 months’ imprisonment for possession of dangerous drugs, in particular crystal meth. During the defence case, the accused persons stuck to their story as given in the defence outline that they did not participate in the assault. They maintained that it was their colleague Mbonisi Moyo a fellow soldier who assaulted the deceased over his missing satchel. They HH 308-23 CRB 60/22 confirmed that the assault incident happened on 16 January 2022. They said that the satchel had been left by Mbonisi Moyo alone on 24 December 2021. The accused persons said that when Mbonisi Moyo started assaulting the deceased, the two of them had entered the restaurant. When they heard some noise, they rushed out only to find Mbonisi Moyo assaulting the deceased. He was assaulting him with open hands as he held him by the collar. Mbonisi Moyo then kicked the deceased who fell down and he started kicking him all over the body with booted feet. Mbonisi Moyo was very aggressive and it was difficult to restrain him. When they finally succeeded, he had assaulted the deceased for 3-5minutes. Accused 2 said that it was difficult to restrain Moyo because he is a heavily built man. Analysis What is clear from all the evidence that was led before the court is that the injuries that the deceased sustained on the day that he was assaulted are consistent with the cause of death as indicated in the post mortem report. The deceased died as result of severe head trauma. The State witnesses said that the deceased was being assaulted with booted feet all over his body and on his head. All the State witnesses noticed that the deceased was bleeding from the mouth and from the nose. Two of the witnesses also noticed that the deceased was swollen on the forehead on the very day soon after the assault. The third witness only made this observation about 2 days later. So, there is no doubt that what caused the death of the deceased are the injuries that the deceased sustained when he was assaulted. The issue which needs to be resolved is whether or not the two accused persons participated in the assault of the deceased. Put differently, this case is centred on the issue of identification. Prof. G. Feltoe Magistrates Handbook, Revised Edition, 2021 @ p 309 states that when the State case depends wholly on the issue of visual identification, special caution must be exercised by the court in order to avoid wrongly convicting accused persons on the basis of mistaken identification evidence. Genuine errors can easily be made by witnesses as human observation is very fallible. Therefore, the court must carefully assess the quality and reliability of the identification evidence as presented by the State. What is crucial is for the court to carefully look at the circumstances in which the identification was made. Greatest circumspection should be employed in cases where the witnesses did not know the accused HH 308-23 CRB 60/22 person(s) prior to the incident giving rise to the criminal charge(s). See S v Ndhlovu & Ors 1985 (2) ZLR 261 (S). In casu all the 3 State witnesses said that they saw the two accused persons assaulting the deceased together with their colleague. Although the witnesses seemed not to know the accused persons’ names, we are satisfied that they did see the two accused persons at the scene of the assault. This is because the accused persons confirmed that all the 3 State witnesses were at the scene of crime. The accused persons did admit that the three State witnesses were all known to them prior to the day of the assault. This means that the danger of wrongly convicting the accused persons on the basis of mistaken identity is out. The next crucial issue is to determine whether the accused persons were assaulting the deceased together with their colleague Mbonisi Moyo or whether they were trying to restrain him. It is our considered view that in a case where there is a dispute with regards to the role that was played by an accused at the scene of crime, the court must consider the following factors: the amount of time the witness had the accused under observation; the distance between the witness and the accused at the time of observation; the lighting conditions at the time; whether there were any objects in the way which would have prevented or obscured observation; whether the witness has good or poor eyesight and whether the witness was able to clearly see the face and the body of the accused. In casu all the three State witnesses said that when they were observing the accused persons and their colleague Mbonisi Moyo assaulting the deceased, nothing was obstructing them. Loveness Macheka was at a distance of 3 – 4 metres away, Togara Mandimandi was at a distance of 21 metres away and Blessing Mubairakwuenda was at a distance of 2½ metres away from the place of scene. All three said that there was nothing in front of them as they each watched the assault. The assault happened during broad day light around 10am. It is obvious that visibility was good at the time. No evidence was placed before the court to show that any of the State witnesses had poor eyesight. The witnesses had the accused persons under observation for a long time. Loveness said she observed the assault for about 15 minutes, Togara said for about an hour and Blessing for about 45 minutes. All these factors make us satisfied that the three witnesses could not have been mistaken about what they saw. In S v Nkomo & Anor 1989 (3) ZLR 117 (S) it was held that identification becomes HH 308-23 CRB 60/22 unreliable if the witness caught only a fleeting glimpse of the accused person from a considerable distance in poor light even in a case where the witness knew the accused prior. In casu the State witnesses were adamant that none of the accused was restraining Mboniso Moyo. In view of the discussion made above, we cannot find a reason why we should not believe them. This is more so in view of the fact that the post mortem reflects that the assault that was perpetrated on the deceased resulted in severe injuries. Such injuries can only be consistent with a protracted and vicious assault as described by the three State witnesses. The deceased could not have sustained such severe injuries after being assaulted by only one person for 3-5 minutes as the accused persons wanted this court to believe. In a bid to discredit the evidence of the State’s evidence the defence took issue with some inconsistences that were made by the witnesses. However, as was correctly submitted by the State counsel, the inconsistencies that the State witnesses made related to immaterial issues. In particular the defence counsel took issue with the position the deceased was as he was being assaulted. Loveness Macheka said that he was lying down. Togara Mandimandi said that he was seated and Blessing Mubairakuenda said that at first, he was on his feet and he then ended up lying down. In our view the inconsistencies were as a result of the fact that these witnesses got to the scene of assault at different times. Blessing was at the scene from the very beginning whilst Loveness and Togara went to the scene at different times after hearing some noise. The assault had already started. Their perception of the assault obviously differed depending on what was happening at the time they arrived. Besides, this is an assault which was protracted. It lasted 45 minutes to one hour according to Togara Mandimandi and Blessing Mubairakuenda. The deceased could have taken different positions during the course of the assault. Evidence was led to the effect that as the deceased was being assaulted there were times when he was trying to rise. This means that the deceased did not remain in one position throughout the assault. Over and above this, when an assault is happening the people that are watching cannot make the same observations. They cannot be expected to give an account of the assault with angelic precision. The defence counsel also took issue with the fact that none of the State witnesses told the court how many times the deceased was struck by each accused. It is unrealistic to expect witnesses to count the number of blows in an assault that takes 45minutes to 1 hour. It is even worse when there are three assailants involved. HH 308-23 CRB 60/22 The defence counsel also took issue with the fact that the 3 State witnesses were friends with the deceased or were known to the deceased. He said that their evidence should be treated with caution. Whilst this is correct, what should be borne in mind is that it is necessary to consider and analyse the evidence of such witnesses holistically. If there is nothing to show that their evidence is biased, the fact that the deceased was known to the witnesses cannot be held against them. Blessing Mubairakuenda admitted that the death of the deceased made him or makes him emotional. Any normal person becomes emotional when they lose a loved one. It is even worse when the death was as a result of murder. It must however be realized that being emotional is not synonymous with lying. It does not follow that when a person is emotional then it automatically means that they are lying about what happened. A person can be emotional and still tell the truth. In casu, nothing shows that Blessing Mubairakuenda was lying when he said that he saw the two accused persons and Mbonisi Moyo all assaulting the deceased. He was not the sole eye witness to the assault. The dangers of an eye witness lying to the court about what happened are reduced if several eye witnesses testify. In the present case two other eye witnesses testified. Of all the three witnesses, Loveness Machekera did not seem to have had a close relationship with the deceased. The deceased was just a person that she used to see around, the same way she said she used to see the accused persons around. The accused persons failed to advance reasons why the three State witnesses would all lie against them and say that they participated in the assault when they did not. This is simply a case where it was easy for the two accused persons to blame Mbonisi Moyo who was absent during trial and is on a warrant of arrest. There was an attempt by the defence to discredit the evidence of the last witness Blessing Mubairakuenda on the ground that he was convicted of possession drugs. The attack is without substance because he was not the sole eye witness to the assault. What he saw was also seen by the other two State witnesses. They all saw that the two accused persons participated in the assault together with Mbonisi Moyo. In view of the foregoing, we are satisfied that the State witnesses told the truth of what happened. The two accused persons and their colleague Mbonisi Moyo assaulted the deceased viciously for a long period of 45minutes to 1 hour. The State witnesses described the assault as vicious. Nobody could restrain them. People were afraid. Loveness Machekera had to go back HH 308-23 CRB 60/22 to her vending site after watching the assault for about 15 minutes. She could not stand what she was seeing. From the narration given by the three State witnesses, it is our considered view that whilst the accused might not have had the actual intention to kill the deceased, they must have realized that there was a real risk or possibility that death could result from their conduct but nevertheless continued to engage in that conduct despite the risk or possibility. They took turns to kick the deceased all over his body and on the head with booted feet and the assault lasted for 45 minutes to 1 hour. They only stopped after they had been offered USD$15 by the owner of the premises. On the basis of these facts, we will find the accused persons guilty of murder as defined in s 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Sentence In arriving at the appropriate sentence, we considered that both accused persons are first offenders with families to take care of. Accused one is 34 years old whilst the second accused is 31 years old. The two are the sole bread winners of their families. This means that their families are going to suffer because of their incarceration. The accused persons are going to lose their jobs as soldiers in the Zimbabwe National Army as a result of their convictions and being imprisoned. In aggravation we have considered that the accused persons caused the loss of life of a 28-year-old man. The deceased lost his life at a tender age. He was assaulted over a minor issue of a satchel which went missing in his possession. The issue could have been resolved without resorting to violence. It did not look like there was anything special in that satchel or about that satchel. What aggravates the offence is that the deceased’s plea to replace the satchel fell on deaf ears. The accused persons who are trained soldiers severely assaulted the young man for 45minutes to 1hour non-stop as they took turns to kick him on the body and on the head. The first State witness Loveness Machekera watched the assault for 15 minutes and left the scene. She could not continue to watch the vicious assault. All the witnesses said that although a crowd of people was gathered, everyone was afraid to restrain the accused persons. The accused persons were said to be very angry and vicious. Besides, the accused persons were known to be soldiers. Soldiers are known to be disciplined members of society. They are therefore expected to maintain peace and uphold the law. Members of society should not be afraid of them. HH 308-23 CRB 60/22 Instead, society should look up to them for protection. So, what the accused persons did in the present case is contrary to the expectations of society. They obviously tarnished the good name of the Zimbabwe National Army by the way they conducted themselves towards the deceased. Their actions cannot be condoned. The sanctity of human life should be respected. From the evidence led in this case, it is clear that this is a murder which was committed in aggravating circumstances as the assault that was perpetrated on the deceased was premeditated. See s 47(3) (a) of the Criminal Law Code. When Mbonisi Moyo came back alone for the satchel, he left saying that he would come back with his colleagues. When the three of them then came together on 16 January 2022, they started assaulting the deceased despite his plea to replace the bag. They assaulted him mercilessly. Besides the accused persons being trained soldiers, the court observed that accused persons are huge men. Accused two said that Mbonisi Moyo is even bigger than him. So, the deceased was severely assaulted by three huge men who are trained soldiers. On the other hand, the deceased was untrained and even younger than his assailants. It being a murder which was committed in aggravating circumstances, a sentence of 20 years’ imprisonment will in our view meet the justice of the case. The accused persons are thus sentenced to 20 years’ imprisonment each. National Prosecuting Authority, State legal practitioners T K Takaindisa Law Chambers, accused’s legal practitioners