fight. The second accused denied, saying he only arrived at the peak of the brawl and restrained the opposing factions from fighting. This is said to have taken place at around 4pm in the afternoon. There was however, a second fight which then took place at the deceased‟s homestead at around 2100hours the same evening resulting in the fatal injuries.

The State allegations are that both accused persons took part in the second battle, on one hand. On the other, the accused persons both object to the involvement of the first accused but the second to a limited degree.

State Case and Evidence

In support of their case, the State tendered real and documentary evidence in the form of the autopsy report, accused persons‟ confirmed warned and cautioned statements, sketch plan and indications amongst other documents by consent. Direct evidence was led from the deceased‟s wife, Sandra Thabani who is the only single eye witness. The investigating officer Alice Mahadzva testified as to her investigations, collation of evidence and the recording of both the confirmed warned and cautioned statements and indications. The alleged murder weapons in the form of two stones weighing the average 10kgs each were produced. Each had visible dry blood stains. The big one had blood on both sides. The rest of the summarised state witness evidence was produced unopposed. Only two witnesses were called to testify in court.

First State Witness

Sandra Thabani, the deceased‟s wife was called as the first witness to give oral evidence. She related that the deceased returned to his homestead around 2100 in the evening with torn apparel. Upon being questioned on the state of his clothes he told his wife that he had a wrangle with the first accused over their longstanding farmland dispute. She also attested that after the explanation on the rent clothes, she dissuaded her husband from going to confront the accused persons who had later on arrived on their motor cycle.

The deceased had left their bedroom into their yard when a verbal altercation ensued between him and both accused persons. This witness who claimed she never lost sight of her husband saw the second accused striking the deceased once with a log which felled him to the ground. Thereafter, the second accused joined in by attacking the deceased with stones

whilst he lay on the ground. They all simultaneously continued with the onslaught on an already floored deceased who never arose from that fall. In turn she was begging and pleading with the accused persons to stop assaulting her now defenceless husband.

Sandra Thabani, stated that she then ran to inform a neighbour who accompanied her back to the scene but her husband, the deceased had already passed. She confirmed of the existence of a farm boundary dispute between her husband and the second accused. On cross examination she maintained that the fight commenced and ended in her homestead and at no given point did the deceased encroach the accused‟s homestead which was metres away.

The defence submitted that this witness lacked credibility as she missed the actual distance calculation between the two plots. Further, that she prevaricated in her testimony on whether or not she actually witnessed accused persons arriving on their motor bike or she was in her bedroom when the two arrived making her an unreliable witness.

Analysis of the first Witness’s Evidence

On analysis, the first witness‟s evidence may have had slight variations but it was not in the most important aspects of the commission of the offence. It is understandable that having been exposed to such a horrendous act, of seeing her beloved one being attacked and dying right before her eyes whilst watching helplessly will impede her from chronicling some minute details in sequence. The discrepancies were insignificant and did not undermine the crux of the matter or taint her evidence.

In our considered view, though point „A‟ on the sketch plan points to the field. This was the field whose boundary was at the heart of the party‟s hostility. It was not clear whether point “A” which was in the farm in dispute was on the deceased‟s side or not. From the sketch map produced, this was closer to the deceased‟s homestead and far from the accused. What is evident is that in the deceased‟s yard or compound there was no farmland. Logically point “A” must have been the disputed spot. That in itself does not point to the deceased as the encroacher or aggressor as suggested by Mr Muyemeki, counsel for the second accused, in an attempt to discredit the first witness‟s evidence. She had told the court that the assault took place on their side of the property. The court was satisfied that she was

truthful, honest and did not exaggerate. It is our finding that she was a credible witness who was not shaken under cross examination.

The Second State witness.

Alice Mahadzva testified as the second State witness. Nothing much of dispute came from this witness. She was a reliable witness. She, as a police officer and the investigating detail could have done more with her investigations. There was a lacuna in the evidence in respect to whether or not the place demarcating the field was a single file stone boundary or not. This meant she did not examine the ground were the deceased‟s remains lay. However, the court found that the rest of her evidence was unexaggerated and credible.

The Defence Case First Accused

Accused one pleaded not guilty to murder. He admitted fighting with the deceased and his brother Wellington Muzeya at the beer drinking place. He gave three different versions as to what transpired after the initial brawl. In his State outline, he claimed that after the fight he was unable to walk because of the intensity of the beatings he received from the duo. In his defence outline, he stated that he proceeded straight to his homestead and was with the second accused‟s wife. He then retired into the pig sty during the second altercation.

In court he gave two different statements. He stated that he arrived home after the fight at the homestead had already taken place. Upon arrival he went straight into the pig sty where he was awakened by his brother, the second accused. He then changed his version and said the fight took place when he was already in the pig sty as was drunk. He professed ignorance of the second fight during the course of his testimony, he had also stated that after the first fight he had gone into a nearby bush.

When these averments were put to him in cross examination by Mrs Teveraishe for the State, to reconcile the paralysis due to the assaults by the accused with the walking to the bush or the pig sty. He stated that he was too drunk as he had consumed more than four sachets of cheap liquor, known as Challenger. Mrs. Teveraishe further probed for an explanation as to whether he was in the bush, the pig sty or did partake in the attack of the deceased as alleged. No meaningful response was given. He was also quizzed on the reason

why they both decided to go to Tengwe in the middle to early hours of the night after the incident. He said that he had no choice but to obey the command of the second accused. He denied being present during or partaking in the assault that resulted in the death of the deceased. Accused one was not very convincing in terms of mannerisms in court.

Second Accused’s Evidence

In his viva voce evidence, the second accused, did not deny being at the scene of the first fight but states that he came much later and assisted in stopping the fight. He stated that upon arrival at his homestead, he was met with vulgar verbal insults against his parents. This did not sit well with him given that the deceased had assaulted his young brother, the first accused earlier during the day. This led him to pick a dead log or switch from his field and throw it towards the deceased. In his oral evidence he attested that the deceased was the first one to pick a log, and threw it at him. He then changed under cross examination to say the deceased picked a lump of dry mud. This was materially different from his defence outline where he never mentioned that the deceased attacked him first.

In his defence outline he denied intervening in the first fight in any manner but witnessed the fight between the deceased and his two brothers. He then saw the first accused running into the forest. He said after the verbal insults he chased the deceased through the fields. He then threw the log which he had picked and assaulted the deceased once at the back. In court he said he threw the projectile indiscriminately and it landed on the deceased‟s head. The deceased is said to have fallen upon being hit by the log.

It was his evidence that the deceased fell on the bordering stones demarcating their boundaries in the field. As such, the deceased‟s injuries were as a result of that fall. He stated that that was the only blow which was directed and landed on the deceased with no further assaults from him. In court, he had mentioned that, he never chased the deceased but hit him once with the log after he had insulted his parents. He stated that though they had boundary dispute, it was not the cause of the assault but the verbal assaults.

The story painted by the accused number two‟s confirmed warned and cautioned statement depicts a totally different picture. In this statement, he admits fighting the deceased on two separate occasions. The fight at both their homesteads was the second physical

conflict. He also acknowledged accosting the deceased at his homestead and attacking him with a stick which felled him to the ground. In that statement he also admitted to further assaulting the deceased on the head with stones twice whist the deceased lay on the prostrate ground. In his own words, he admitted that he only stopped after the deceased‟s wife begged him for forgiveness.

In his evidence in court, the second accused exonerated the first accused. He stated that he only collected him from the pig sty after the occurrence and took him on his motorcycle to their parents‟ home in Tengwe. He said he surrendered himself to the police station in Tengwe after he was phoned of the murder and the police investigations in Makonde. He pleaded not guilty to murder but guilty to culpable homicide.

Analysis of evidence, facts within the background of the law

Evidentiary analysis and findings

The state‟s case is made up of direct evidence from the first witness, an eye witness and the real evidence from the post mortem report, the sketch plan and the confirmed warned and cautioned statements from both accused persons, as well as the physical objects used in the commission of the offence. The autopsy report, outlines the cause of death, as severe head injury. It depicts, multiple skull injuries, epidural haemotoma on the left parietal region and a massive subdural haematoma on the left fronto, parietal region. This document illustrates the extent of the injuries directed at the deceased‟s head resulting in his death. The word “massive subdural haematoma‟ indicates excessive bleeding inside the brain.

Looking at the nature of the injuries as per this document, they do not show to be consistent with a heavy fall on a pile of stones as suggested by Mr. Marinda, the second accused‟s defence counsel. He failed in his attempt to discredit the Pathologist‟s findings yet he had consented to the production of the documentary exhibit. In our considered view, once a document is produced and admitted into evidence by consent then it becomes immune to critique as to the authenticity of its contents by the same part who had initially agreed to its contents by agreeing to its production without censure.

In actual fact, one fall cannot logically result in multiple skull fractures and other noted head injuries. We are told that indisputably, the deceased only fell once and never recovered to his feet. That is in contradiction with the multiplicity of the head injuries examined. What this points to is that, this piece of evidence is consistent with description of the manner of attack perpetrated on the deceased by the second accused, as reflected in the evidence embodied in accused two‟s confirmed warned and cautioned statement.

This leads us to the examination of the confirmed warned and cautioned statement. The law is very clear on the admissibility of such statements and their probative value once produced unchallenged. Section 253, of the Criminal procedure and Evidence act [Chapter 9:07] deals with extra curiae statements and their admissibility. See, S v Chingoona SC105/2002/207/2001.

In casu, the second accused in a way confessed to his role in the commission of the offence in his above-mentioned statement which is exhibit 2 on record. This document is corroborative of both the findings in the post mortem report and the evidence of the first State witness. From that perspective, even though most of the direct evidence came from a single eye witness evidence there is support from the said two documents.

In that regard, it is well established that a court can convict on single witness evidence. It is permissible in terms section 269 of the Criminal Procedure and Evidence Act, for court to convict a person on the single evidence of a competent and credible witness. In the case of Sauls & Ors 1981 (3) SA 172 (A) the South African Appellate Division stated that there was no rule of thumb to be applied when deciding upon the credibility of single witness testimony. The court must simply weigh the evidence and consider its merits and demerits. It must then decide whether it is satisfied that the testimony is truthful, despite any shortcomings, defects or contradictions in it.

The approach adopted in the Sauls case was followed in the case of Nyabvure S-23-

88. See also Worswick S-27-88; Mukonda HH-15-87; Nemachera S-89-86. The crux is that credibility and reliability of this witness must be very carefully assessed to see whether it is safe to convict on the basis of his testimony alone.

In Nduna & Anor HB-48-03, it was held that,

“where a conviction relies on the evidence of a single witness, discrepancies in the witness‟s evidence are not necessarily fatal. The discrepancies must be of such magnitude and value that it goes to the root of the matter to such an extent that their presence would no doubt give a different complexion of the matter altogether. Discrepancies whose presence do not usher in that change should be regarded as immaterial and as such of no value in the determination of the truth or otherwise of the matter at hand.”

In the South African case of Mokoena 1956 (3) SA 81 (A) at 85-86, it was laid down that the uncorroborated evidence of a single witness should only be relied upon if the evidence was clear and satisfactory in every material respect. Slight imperfections would not rule out reliance on that evidence but material imperfections would.

The court has already made a finding that its reading and deduction of the single witness‟s body language which encompassed her demeanour and power of recollection coupled with her chronicled rendition of events, with minor negligible imperfections made her a credible witness.

Issues

The issues that now arise are whether or not the State has proved beyond reasonable doubt that both accused persons individually and or acting in common purpose killed the deceased? Secondly, Whether or not the accused persons had actual or legal intention to bring about the death of the deceased? Lastly, whether or not they negligently caused the death of the deceased?

Factual and Legal Findings

The accused person principally, bears no burden of proof to prove either his innocence or his guilty. This is the common position of the law. See, R v Difford 1937 AD 370 See S v Kuiper 2000 (1) ZLR 113 (S) at 118C, to mention but a few. Once the accused‟s story is probable then it must be believed. The benefit of the doubt is accorded to the accused and calls for his acquittal. This further, statutorily embedded in section 18(1) of the Criminal Law Code which emphatically casts the onus to prove all the essential elements of an offence an accused person will be facing beyond any reasonable doubt. It reads:

Section 18 Degree and burden of proof in criminal cases

1. Subject to subsection (2), no person shall be held to be guilty of a crime in terms of this Code or any other enactment unless each essential element of the crime is proved beyond a reasonable doubt.

Now in respect of accused one, he says he did not participate in the fight which resulted in the deceased‟s death but only in the first fight. That is his defence. This is also supported by his confirmed warned and cautioned statement. However, the statement to the police is viewed against the background that he in the company of the second accused had fled from the area of the crime to a totally different location. Further, the statement was then recorded ten days after the commission of the offence. The State led by Mrs Teveraishe, in its closing submission queried why the accused fled the same night when he was an innocent man. In addition, the State advanced that it cannot be ruled out that the accused two took the bait and shouldered all the blame in-order to exonerate his brother.

The first witness places the first accused at the scene of the offence and as the person who actually picked the stones and attacked the deceased. The evidence of this witness has been accepted as credible. The first accused was the first one to pick a fight with the deceased at the shops. What is difficult to process is the various versions supplied by the first accused as to his physical and inebriation state when he departed the first place of the first altercation.

In his confirmed warned and cautioned statement he stated that the deceased left him incapable of movement. On the other hand, he said he found his way into either the homestead wherein he ended up with the second accused‟s wife. Lastly, he said he went straight into the pig sty. This is in contrast with what the second accused said in his defence outline which states he saw the first accused going into a forest after the initial fight. Clearly, the first accused could not stick to one story. It leaves the court struggling to sift which of the stories is accurate and real. These discrepancies make the first accused‟s defence improbable.

The version of the first witness if taken in the contest of the first accused‟s statement, that he was at some stage unable to walk, is more probable. She said the two accused persons arrived together on the second accused‟s motor cycle. This makes the court draw a reasonable inference that accused one was present during the commission of the offence and he committed the offence as per the eye witness. Another, proved fact is that, accused two said he was taking accused home to their parents. One wonders why that particular night when the

younger brother had been at the elder brother‟s home for almost three months. Why would they not wait until morning? Why did the police then arrest accused one after accused had already turned himself in? The only reasonably inference to be drawn from the cumulatively proved factors is that the accused person number one attacked the deceased person in the manner alleged individually and in concert with accused two. It cannot be ruled that he had an unsettled score emanating from the initial brawl.

The proved facts which are also common cause, are that the deceased was fatally assaulted at his homestead with a stick and stones. His head had numerous injuries that caused his death. He had a physical fight earlier during the day with the first accused in the presence of the second accused. There was a vendetta over a field parchment encroachment and barrier. The accused and the deceased had a verbal exchange of insults. That, soon after the attack on the deceased both the accused road a motor bicycle for a very long distance away from the crime scene. The accused persons were arrested at Tengwe. The autopsy report confirmed the extent and nature of injuries as consistent with prolonged attack on the head. The stones produced in court had dry blood. The second accused person‟s warned and cautioned statement indicates the use of two stones directed on the deceased‟s head. The eye witness actually saw with her own eyes, the first accused striking her husband, the deceased with stones.

Not only is there direct evidence from the first witness on the culpability of the first accused, but there is enough circumstantial evidence as synthesised above pointing exclusively to this accused person‟s guilt and not to his innocence. The law as outlined in numerous case authorities recognises conviction based on circumstantial evidence. In this case, the circumstantial evidence is assessed in conjunction with the direct witness‟s evidence and not in isolation.

In R v Blom, WATERMEYER JA referred to two cardinal rules of logic which governed the use of circumstantial evidence in a criminal trial:

1. The inference sought to be drawn must be consistent with all the proved facts. If it is not then the inference cannot be drawn.

2. The proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a

doubt whether the inference sought to be drawn is correct. See Muyanga v The State HH 79/13.

In R v Sibanda & Others 1965 (4) SA 241 (R.A.) it was noted at p 246 that, when assessing the adequacy of the circumstantial evidence available to it, a court must remain alive to the fact that:

“Generally speaking, when a large number of facts taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt. It is sufficient if there are reasonable grounds for taking these facts into consideration and all the facts, taken together prove the guilt of an accused beyond a reasonable doubt.”

The accused person number one‟s defence is thus, found to be substantially unbelievable and improbable given the above observations.

In respect, to accused number two, he placed himself at the scene. Through his own admissions he assaulted the deceased. His about turn in court, that he only threw the piece of wood he had at the deceased has been proved beyond a reasonable doubt through both direct testimonial and documentary evidence to be untruthful. The sequence of events in the warned and cautioned statement tallies with that of the first witness and controverts his chain of contradicting versions.

Nonetheless, what can be discerned from the totality of evidence is that both accused persons, though having an existing farm boundary grudge, did not set out or desire to end the deceased‟s life on the day in question. The deceased death was not their objective. Therefore, it cannot be said that there was actual intention. The evidence and the facts do not disclose that. See, S v Mungwanda SC19/2002.

The outstanding issue is whether or not the accused persons had constructive intent to bring about the deceased‟s death or they acted negligently? The following two sections of the Criminal law code define these two options.

S47 Murder

(1) Any person who causes the death of

(b) realising 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.

S49 Culpable homicide

Any person who

1. negligently failing to realise that death may result from his or her conduct; or

2. realising that death may result from his or her conduct and negligently failing to guard against that possibility;

In assessing the evidence cumulatively, we do take into account that there was an element of intoxication in the matrix on both the accused and the deceased. However, both accused admit that they were not drunk. They had driven home on a motor bike. After the tragic incident they drove thousands of kilometers to Tengwe. These are not actions of drunk persons. We do not believe that there was provocation either, but an exchange of insults culminating in the assault on the deceased.

Resultantly, it is our finding that, in continuously and repetitively striking the deceased with stones on the head after he had already been struck down by the first blow, demonstrates that subjectively, there must have been a realization of a real risk or possibility that through their conduct death may be occasioned but continued to engage in that conduct despite the risk or possibility. Both accused persons evidently acted individually and in common purpose. See, S v Mungwanda above. The State has managed to prove beyond a reasonable doubt that both accused are guilty of murder with constructive intent. See, State v Gumbo HB 119/18.

Accordingly, accused persons are found guilty of murder with legal intention.

In sentencing the accused persons, the court took into account submissions made both in mitigation and aggravation. It also considered the victim impact statement and presentencing report. The facts of the case are by and large common cause.

The two accused persons have in common the fact that they are all first offenders. On the day in question, they were under the influence of liquor. They were acting on previous altercations involving the deceased. Their family paid five beasts as reparation.

In assessing the accused persons individually, the first accused is youthful, prone to making impulsive decisions and acting pre maturely. He was 22 at the time of the

commission of the offence. We learnt from the sentencing report that he suffered a head injury that disturbed his mental faculties. For sometime he was mentally unwell but recovered. We were also told that whenever he indulges in liquor it is accompanied by irresponsible behavior. However, the degree of his culpability is high. He was involved in the first fight with deceased earlier during the day. The fact that his own brother Wellington Muzeya then took sides with a stranger in assaulting him illustrates that he was indeed a nuisance after the consumption of beer. He attacked the deceased whilst he had already been injured by the log and was down.

In coming up with an appropriate sentence we concluded that the offence was committed in common purpose given the 1^st accused‟s age and other mitigatory factors a sentence lesser than that of the first will meet the justice of the case.

In respect to second accused who is 34 years old and a family man, his degree of blameworthiness and participation is high. He had a previous grudge with the deceased as he attested in court. There is no evidence that he was provoked as both sides exchanged words leading to the confrontation. The presumptive sentence for murder with constructive intent is 20 years. The fact that accused paid five beasts in addition to those paid by his family making the total ten has an effect on the sentence. In State v Mukunguma HMT 21/20 a murder with constructive intent, the accused were sentenced to 20 years. In State v Malundu HC 68/2013 the sentence was 10 years. Given the mitigatory factors and the principles governing sentence that each case turns on its merits the mitigatory factors calls for a lenient sentence.

In aggravation however, an equally young life was lost. The family of the deceased is now orphaned. The wife is widowed. They are encountering financial problems, as the deceased was the sole breadwinner. Life was needlessly lost. The accused persons failed to restrain themselves. They took the law into their own hands. The attack was both vicious and brutal.

Taking into account the interests of society, the accused and the victim, we are of the view that the first accused should be sentenced to 7 years imprisonment. The second accused person is sentenced to 10 years imprisonment.

National Prosecuting Authority, the State‟s Legal Practitioners.

Mapaya & Partners, the 1^st accused‟s Legal Practitioners.

Masawi & Partners, the 2^nd accused‟s Legal Practitioners.