S v Mazarira and 6 Others (46 of 2024) [2024] ZWCHHC 46 (11 June 2024)

1 HCC 46/24 HCCR 1641/23 THE STATE Versus KNOWLEDGE MAZARIRA and WONDER TAWANDA MUSENGI and TONDERAI MIRANZI and LUCKMORE MUSENGI and CALISTO MAGUNJE and TENDAI MAZARIRA and TAFADZWA CHIPFUPI CHITSA IN THE HIGHCOURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 13 February – 11 June 2024 Assessors: Mr. Mutombwa Mr. Kamanga G. T Dhamusi, for the State T. Matiyashe, for the Seven accused persons Criminal Trial BACHI MZAWAZI J: All the jointly charged accused persons pleaded not guilty to the charge of murder as defined by s47(1) of the Criminal law Codification and Reform Act, [Chapter,9:23]. The common thread running through their defences, is that though they were present at the scene of the two fights they did not kill the deceased. They also state that they never acted in common purpose with one another to commit the crime of murder. The allegations are that, on the 30th of May, 2021 the deceased, Takemore Ncube was assaulted twice at two different places by the accused persons acting individually and in concert. The first assault took place at a football pitch where both the deceased and the accused persons were watching soccer. An altercation between the deceased and two of the accused person‟s accomplices who are at large ensued. The first to provoke the said situation HCC 46/24 HCCR 1641/23 is one of the fugitives, Tichaona Musengi, who is said to have disturbed the match by beating spectators close to the pitch. One of those beaten was the deceased. Thereafter, a physical confrontation eventuated, transcending into the lorry that was to take them to their respective homes. The deceased who was being fought by most of the accused persons was overpowered. The first witness who intervened to stop the unbalanced brawl was also caught in the cross fire and assaulted. He was a cousin brother to the deceased. Another male adult named Hwidzo successfully stopped the wrangle. The deceased and Israel Joni, then took to their heels. When the deceased and Israel John arrived at their homestead, they first sought shelter at their aunt, Evelyn Chitenje‟s house. The deceased had visible injuries, torn apparel and was crying. When they were in the midst of explaining what happened, the accused persons made their way to that residence. Their torches were detected from a distance prompting the pair to flee once again. Evelyn told them to go and seek shelter elsewhere. At Evelyn Chitenje‟s house was Edwin Nyoni her son. Nyoni also witnessed the deceased‟s wounds and physical state. He also heard of the altercation between the boys and the Musengi family at a football pitch. Upon seeing the approaching crowd, which he stated were noisy and violent, Nyoni also was compelled to run for his dear life with the deceased and Israel. With nowhere to hide the deceased and his companion then ran to Everjoy Nhira‟s Shebeen cum house. A few moments later, whilst the pair was at Evelyn Nhira‟s house, the accused‟s gang arrived prompting the deceased to take refuge under Evelyn‟s bed. Edwin Nyoni was accosted and struck by accused one, he bolted. Edwin Nyoni witnessed the accused persons breaking the door at Everjoy‟s house and gaining entry before he escaped. The deceased was fished out from under the bed after an unsanctioned search in the house. His hands and legs were tied amidst intermittent assaults. He was taken outside and was severely assaulted by the accused persons until he died on the spot. The deceased was a mere 22-year-old youth. The accused were eventually apprehended and charged with their two accomplices now at large. In their defence outlines, all the accused persons shifted blame onto the two, Tichaona and David Musengi, who can no longer be located after being granted bail. As indicated earlier, they do not deny being at the scene of both assaults which were perpetrated on the HCC 46/24 HCCR 1641/23 deceased. They also stated in unison that when they followed the deceased in hot pursuit, they intended to apprehend him in order to surrender him to the police. Accused 1, Knowledge Mazarira, in addition to his defence outline, also testified in court and placed accused 2, 4, 6 and 7 at the scene of both crimes. He also attested that they partook in the assaults. This was marked a departure from his defence outline which only implicated the fugitives from justice. Wonder, Tawanda, Musengi adopted his defence outline lock, stock and barrel, as his full defence. In cross examination, he however, implicated accused one and accused six, the Mazariras. This was consistent with his evidence borne by his confirmed warned and cautioned statement. Accused 3 to 7, all did the same as accused number two. Notably, the accused persons consist of siblings from two distinct families. In their evidence in court during cross examination and in their confirmed warned and cautioned statements the two families gave evidence which implicated the other family and absolved those members of their families. By so doing, their cumulative evidence shows that they all were not only at the scene of the crime but that they all participated in the offence. Because of that divide and mudslinging none was willing to commit as to the degree and level of participation each accused took. This lacuna was to some extent filled in by the eye witnesses‟ testimonials. In support of their case, the State called six witnesses to give oral evidence. This was over and above the summarized witness statements and documentary exhibits admitted into evidence by consent. The postmortem report, a sketch plan and ancillary mortuary attendant and Pathologist affidavits consists of the documentary evidence produced. Israel John, was the first to testify for the State. His evidence was not rejected or attacked by the defence. He witnessed the football field fracas. He saw accused persons 1,2,4 and 6 assaulting the deceased at the field. He was also assaulted when he tried to stop them from teaming up on a single younger man. He saw all the accused pursing them from the field to one house after the other up to the last shelter. Evelyn Chitenji, Israeli John, Edwin Nyoni, John Rido, Everjoy Nhira and Talent all six State witnesses witnessed the violence which the accused person exhibited as a gang. They testified to the trail of breaking of doors and property at all the homes that the accused persons visited in search of the deceased. HCC 46/24 HCCR 1641/23 Some of these witnesses came into the line of fire of the accused persons‟ wrath and were assaulted. All these witnesses attested that they saw accused 1, 2, 4 6 and 7 being active participants in the fiasco alongside the other two on the run. Accused 1,4, 6 and 7 featured as the ones who were in the forefront whilst accused 2, a businessman in the area, was the ring leader and commander in-chief. The testimonial evidence of the six witnesses corroborated each other, as well as, with that which was embodied in the documentary evidence placed before the court. Their testimony, was logical, coherent, consistent and honest. The court found their evidence credible. The autopsy report revealed that the deceased had severe bruises all over his body. It read as follows, 1. Ecchymosis on both Cheeks, 2. Forehead ecchymosis, 3. Left shin, posterior and anterial wall abrasions, 4. Left knee abrasion, 5. Lineal ecchymosis on the anterial chest area, 6. Multiple lineal ecchymosis on anterial neck and back of neck area, 7. Multiple back and body ecchymosis, 8. Left flank multiple ecchymosis, 9. Left temple ecchymosis, 10. Left hand swollen, 11. Right temporal-parietal haemorrhage infiltration frontal and occipital bones, and 12. Focal left parietal subarachnoid haemorrhage. The Pathologist concluded that the cause of death was due to: (i) Inhibition Death (ii) Severe arterial neck trauma and (iii) Head trauma. It is evident from the post-mortem report above, that the deceased was brutally, mercilessly and relentlessly assaulted. The extent of the injuries does not support the accused‟s theory that they only wanted to subdue the deceased in order to hand him over to the police. To think that, after, the first assault the deceased was able to move on his own though in pain, as alluded to by Edwin Nyoni, translates to the conclusion that the rest of the fatal blows were inflicted whilst he was tied hands and feet, helpless and defence less. HCC 46/24 HCCR 1641/23 In addition to the above, the confirmed warned and cautioned statements of accused 1,2,4,6 and 7 are corroborative of the continued assaults perpetrated indiscriminately on the deceased by all the mentioned accused persons. The court rejects the assertion that the deceased had a knife and he stabbed accused four. No such evidence was given to the police or in the confirmed warned and cautioned statement. Accused four is said to have fought the deceased on the side of his brothers. His injuries were never reported to the police, if any. Further, he admitted that he never visited the prison hospital for medical attention, if at all he had been stabbed. That being the case the issues that are to be addressed are: 1. Whether or not the State adduced sufficient evidence to prove beyond a reasonable doubt that each and every accused person can be found guilty of the murder of the deceased 2. Whether the accused persons acted in common purpose to commit the offence In that regard, section 47 of the Criminal Law Code states, 47(1) Murder 1. Any person who causes the death of another person – i. intending to kill the other person; or ii. realizing that there is a real risk or possibility that his or her conduct may cause death; and continues to engage in that conduct despite the risk or possibility shall be guilty of murder. The Supreme Court in the case of Dube v The State SC 83/22, has this to say, “It is trite that there are four basic essential elements that must be proved to sustain a conviction of murder. These are: - (i) causing death of (ii) another human being; (iii) unlawfully; and (iv) intentionally.” Following that, in respect to the first issue against the background of the already analysed real and direct evidence above, the documentary, as well as, the witness testimonials, it is clear that the accused persons who do not deny their presence when the deceased was beaten the first and second time, did assault the deceased in the manner alleged. By so doing, they caused the death of the deceased, another human being. Their actions of taking the law into their own hands and exacting assaults of that magnitude on a fellow human being can only be deemed unjustified. HCC 46/24 HCCR 1641/23 What now remains to be established is the intention. The court however, must hasten to mention that no evidence was placed before the court linking the fifth accused to the commission of the offence. He was caught at the wrong place and at the wrong time. He tendered a defence of an alibi which was never explored and investigated by the police. The case of Alphonse Mushanawani vs The State SC143/21, reiterated that no onus lies on the accused to prove his alibi. Further, the appellate court highlighted that, if an alibi defence is raised at the earliest possible opportunity, then it must be properly investigated. Without further ado the fifth accused person is found not guilty and acquitted. Accused number three, did not deny being at the football ground and witnessed the beginning of the first fist fight mentioned. He told the court that, he left on his own accord and alone to Everjoy Nhira‟s drinking place. He was there when the rest of the accused persons visited the place in search of the deceased but he maintained that he was an innocent bystander. Thus accused three is also found not guilty and acquitted. He did however see accused 1,2,4,6 and 7 at the scene of the final attacks but could not bring himself to tell the court the role of each and every one of them. Nonetheless, he cannot be penalised for simply not divulging the degree of participation of his co-accused, as Mr Damusi for the State suggested. No witness saw him as a member of the accused gang. Talent confirmed that he came alone, sat alone and was consuming his beer alone, when the rowdy accused gang arrived. GREENBERG J in R v Difford1937 AD 370. At 373, enunciated that: - “No onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.” The State failed to prove accused number five‟s culpability through its evidence filed of record. The benefit of the doubt goes to the accused. Accused five is found not guilty and acquitted. However, the same cannot be said of accused 1,2,4,6 and 7. Their explanation is three pronged. They all, firstly, in their defence outlines absolved themselves from assaulting the deceased in any manner. They all parroted the two on the run as the only player in both assaults whilst each one of them was a mere spectator of the show. In court they adopted their HCC 46/24 HCCR 1641/23 defence outlines which they could not salvage under cross examination. They ended up each one inculpating the other. Their confirmed and warned cautioned statements bore the same discrepancies with each casting blame and pointing a finger at the siblings whom he was not related to. Irrefutable direct evidence of their violence on the day in question resulting in them acting like grey hounds hunting game, by going into the witnesses‟ home sanctuaries without permission or invitation, conducting unauthorised searches and extensively damaging doors by breaking them indicates concerted actions. Not only that, the manner in which they ventilated their anger on one of the witnesses‟ parked motor bicycle speaks to people who acted in unison with one voice. This chain of criminal and violent behaviour led them to unlawfully assault some of the witnesses leading them to desert their homes and hide elsewhere. It culminated in sniffing out the deceased from beneath the bed where he had hidden, tying him and severely assaulting him. Not even one of the said accused persons said he restrained the other. They admitted moving from one place to the other leaving the noted trail of disaster but not even a single one retreated or was forced to march with the rest. If all the above is taken cumulatively, it points to the logical conclusion that not even one of the accused persons would stop the other or renege because they were all participating together in the assaults as testified by the eye witnesses. These observations totally threw the accused persons varied defences off course, making them unbelievable, unreliable and improbable. In Tungamirai Madzokere and Others v The State SC 71/21 Justice Makarau CCJ, outlined three cardinal rules to establish the doctrine of common purpose as envisaged in s196 A of the Criminal law Code. The honourable judge highlighted that, principally, the State has to lead evidence tending to prove, i. ii. iii. Firstly, that the appellants knowingly associated with the person who killed the deceased, Secondly that such association was with the intention that each or one of them would kill or be prepared to kill the deceased and, Thirdly, that the appellants were present with the actual perpetrator when the fatal blow was delivered. Section 196A reads: Liability of co-perpetrators 1. If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit HCC 46/24 HCCR 1641/23 the crime, whether by virtue of having the intention to commit or the knowledge that it would be committed, or the realization of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed also to be the conduct of every co-perpetrator, whether or not the co- perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator. 2. The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they- a. were present at or in the vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or b. were associated together in any conduct that is preparatory to the conduct which resulted in c. the crime for which they are charged; or engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.” Notably, the accused persons, were gathered to exact mob justice on the youthful deceased with the intention to beat him into line as they adverted. Arresting citizens is the domain of the police. By assaulting the deceased, they were indulging in an unlawful assault and committing an offence. They thereby engaged in conduct that was preparatory to the conduct which resulted in the crime they are charged. They were all, as a team and a group in the vicinity of the offence in circumstances which implicated them both directly and indirectly in the commission of the crime. From the facts supported by evidence making them proved facts, it is the court‟s finding that the accused persons acted both individually that is, directly and in common purpose with one another to commit the offence. What then remains to be determined is whether the accused persons had actual or legal intention to commit murder or were negligent? In the oft quoted case of S v Mugwanda SC 19/2002, the honourable court amply, explained actual and legal intention when it stated as follows: “On the basis of the above it follows that for a trial court to return a verdict of murder with actual intent it must be satisfied beyond reasonable doubt that: a. Either the accused desired to bring about the death of his victim and succeeded in completing his purpose, or b. While pursuing another objective foresees the death of his victim as a substantially certain result of that activity and proceeds regardless… on the other hand, a verdict of murder with constructive intent requires the foreseeability to be possible (as opposed to being substantially certain making this a question of degree more than anything else) in the test for culpable homicide the test(s) he ought to, as a reasonable man have foreseen the death of the deceased.” HCC 46/24 HCCR 1641/23 In S v Mema HB 143/13 it was observed that, „In this case the intense attack with a bayonet knife occasioning three stab wounds speaks volumes to the vicious nature of attack. Such an attack denoted the attacker had an intention to kill for it was foreseeable death will occur.‟ In the case of The State v Wirosi [57/ 2021] ZWMHTC, the court held that, “It is now settled law that the aspect of intention can be safely informed from the nature of the weapon used, the part of the body where fatal wounds was inflicted, the number of blows, the intensity and viciousness of the attack.” Against the underpinnings of the above case law, that the accused persons had intention to kill is certain. However, this was not a premeditated killing. Therefore, the State‟s evidence does not support conviction of murder with actual intent. See, S v Micheal Munapo HMT 43/19. The evidence however, does show, from the autopsy report, the cause of death, the multiplicity of injuries indiscriminately aimed at all the vital parts of the human torso, and the gang attack, that death was foreseeable but the accused persons persisted with assaults regardless. In the final analysis, from the totality of facts and evidence, the state has managed to prove beyond a reasonable doubt the guilty of accused 1, 2, 4, 6, and 7. That is when five grown men teamed up assault a young youth persistently for a long time without restrain after hunting him like a dog, death was reasonably foreseeable. They were even more reckless when they continued with the other assaults after subduing and tying the victim on both hands and feet. Accordingly, accused 1, 2, 4, 6 and 7 are found guilty of murder with constructive intent. Sentencing Judgment The facts are by and large common cause. The accused stands convicted of murder with constructive intent. He individually and acting in concert with his accomplices assaulted the deceased to death. They, firstly assaulted the deceased at a football match. As this was not enough, they pursued the teen ager to where he had sought shelter. They randomly entered and broke people‟s homes and property in search of the deceased leaving a trail of disaster. HCC 46/24 HCCR 1641/23 They hounded him like a dog, sniffed him from underneath the bed, tied his hands and feet and savagely beat him whilst lying on the ground with unspecified weapons, booted fits and hands all over his body. The autopsy report is testimony to the extent and nature of the wounds inflicted and force used. The young man died instantly on the spot. They were violent. In mitigation, the accused persons 1, 2, 4, 6 and 7 are all adult men aged 42 to 52. They are first offenders. They paid monetary compensation equivalent to eleven beasts out of the twenty initially charged. They are family men. In aggravation, they assaulted a mere defenceless 19-year-old youth. The accused failed to demonstrate that they are adults in society and how adults settle disputes. They were the adults who were supposed to be role models and, in a position, to restrain one another. They teamed up to have a vengeanceful attack on the deceased after the disrupted football match. What is further aggravatory is that they had to chase after a man who no longer posed any threats or danger to either one of them. Life was lost over a resolvable issue. However, the court has taken into account that all the accused were heavily influenced by beer. This is a mitigatory factor. This is coupled by their payment of reparations. That illustrated remorse and contrition. We cannot rule out the fact that they will forever be haunted by the innocent blood they shedded. Nonetheless, justice must be seen to be done, to the accused, to society and the deceased. No one should take the law into their hands thereby throwing the rule of law into disarray. A clarion message should be sent that no matter what influential position one holds in life, no one is above the law. The wheels of justice will catch up with them. Communities should learn peaceful mechanisms of resolving disputes. Life is invaluable and irreplaceable. A deterrent sentence is justified in the circumstances of this case. The appropriate sentence in terms of the presumptive sentence is 20 years. In casu, given the above mitigatory factors and the accused persons‟ age groups the sentence in the case of State v Pedzisayi MSV 60/2022, is deserving. In this case after a finding of murder with legal intent, the court sentenced the accused to 10 years imprisonment. See State v Makundu HC 68/2015. Accordingly, accused persons are sentenced to 10 years imprisonment each. National Prosecuting Authority, the State‟s Legal Practitioners. Matiyashe Law Chambers, the 7 accused‟s Legal Practitioners. HCC 46/24 HCCR 1641/23