9
HCC 67/24
REF: HCCR 419/24
THE STATE
versus
FRIDAY NCUBE
and
ANYWHERE BHERO
and
GIFT MOYO
and
WELLINGTON MANGWENDEZA
and
TRAVOLTA DUBE
and
MORRIS MASVAURA
and
TINARWO KANENGONI
HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
CHINHOYI, 06 June - 22 July 2024
Assessors: 1. Mr. Mutombwa
2. Mrs. Mateva
Criminal Trial
A. Sibesha, for the State
W. F. Chipato, for Accused 1
G. Mukanduri, for Accused 2
M. James, for Accused 3
F. Misihairambwi, for Accused 4
R. Mupitah, for Accused 5
T. Chitambira, for Accused 6
T. Madamombe, for Accused 7
BACHI MZAWAZI J: The seven accused persons have been arraigned on a charge of murder in terms of s 47(1) of the Criminal Law Codification and Reform Act [Chapter 9:23]. They have all denied the charge by pleading not guilty. It is accused 2, 3, 4, 5 and 6’s defence that they were neither present nor participated in the commission of the offence. Accused 1 admits being part of the group which accosted and assaulted the deceased rival gang but denies being present at the time the deceased was being assaulted to death. Accused 7 does not deny his presence or his participation in the assault of the deceased on the fateful day.
The allegations are that, at around midnight of the 13th of July 2020, the seven accused persons, individually and in concert, armed themselves with lethal weapons which included machetes, axes and bricks and assaulted the deceased, Samuel Dhlana to death. The deceased was in the company Tongai Sibanda and Tinashe Ncube who both escaped unharmed. The deceased was overwhelmed by the brutal attack and succumbed to his injuries. A police report was subsequently made by a witness who saw the wounded deceased. The offence is said to have been a revenge attack, motivated by the assaults that had been perpetrated on the first accused’s brother, one Johannes Ncube and his wife, Joyce Mujajati on the 8th of July the same year. The crime was committed at Tollrose mine, Blagdon Farm.
The discernible issues from the brief facts are:
Whether or not the conduct of the accused persons resulted in the death of the deceased?
Whether or not the State has proved beyond a reasonable doubt that the accused person individually or in common purpose caused the death of the deceased?
The State led oral evidence from one witness, Tongai Sibanda. The rest of the evidence from eleven of its witnesses was tendered unchallenged alongside the documentary exhibits and some of the alleged murder weapons.
Tongai Sibanda testified that, he was well known and related to all the seven accused persons. Some are his patrilineal blood relatives whilst the rest were previous work mates at Tollrose Mine. He frequently brushed shoulders with all of them in their common freelance jobs as artisanal miners and shared residency within the mining compound. He stated that the1st accused was his nephew. He was born to his father’s sister. They grew up together and knew each other from the tender ages of five and six years. He also pointed to accused 3 as the brother of accused 1and also brothers to accused 4 and 5.
It is this witness’s evidence that, on the day in question whilst in the company of the deceased and Tinashe Ncube, he met accused 1, 2 and 3 at a drinking spot. Tinashe Ncube is notably a brother to both the witness and the already mentioned accused persons. Accused 3, who had an unresolved vendetta with the witness over his assault on their other brother, Johannes is said to have assaulted the deceased with a catapult. The witness stated that, he and his companions did not retaliate but relocated to a different drinking venue. Though he mentioned the presence of accused 1 and 2, he did explain their reactions or the role they played during that first encounter.
After imbibing more liquor, at the new location and digressing for a short while at a restaurant they left for home. The witness’s route home passed through accused 2’s homestead. On their way to their respective homes, they were unaware that the accused persons had planned an ambush by way laying them at accused 2’s homestead. Just when they were close to accused 2’s place of residence they were greeted by a shower of bricks. Upon realizing that it was the accused’s gang, the witness tried to reason with them through verbal exchange to no avail. He says they were heavily armed, pelting bricks and chanting a slogan code “zero one zero one” and shouting that they wanted to teach him a lesson over his rowdy and uncouth behavior, as well as, avenge the assault on Johannes and his wife. He saw one of the thrown bricks landing on the deceased.
The witness attested that although it was dark and in the presence of a lot of people, he could not mistake all the accused persons’ identities. He identified them through their voices and the torches they were holding. He also heard accused 4 being summoned to collect a shot gun from the vehicle which was parked at accused 2’s homestead, before fleeing in different directions with Tinashe. Some of the accused persons followed them in hot pursuit. The witness later returned to the spot where the physical confrontation started and saw the deceased already dead.
This witness gave his evidence convincingly and in detail. He denied being part of large a gang but only that of his two mentioned friends. He also refutes that his group was armed. Though there were slight variations in his statement given to the police and in his evidence in chief, these were negligible given that the offence took place in 2020 and the trial in July 2024. They were not material and did not go to the root of his testimony. Needless to say, his evidence was corroborated in the crucial areas by the evidence given by accused 1 and 7, as well as, that of the two other witnesses Fungai Khanyisani and Aston Karinda which was uncontested.
Fungai Kanyisani’s evidence which forms part of the unchallenged testimonies on record reinforces that of Tongai Sibanda in two respects. Firstly, that there were torches that lit the area and secondly, that there was only one gang, that of the deceased’s assailants. She attested peeping through her bedroom window at 10pm of the tragic day, witnessing a group of people holding torches and assaulting a single person lying and crying on the ground though she could not make out their faces. She was too terrified to go out even after the gang had left until her husband, Aston returned from work at around 0100hours.
When Aston went into his yard to investigate the person turned out to be the deceased. In turn the husband was also too scared to render any assistance and left the deceased crying and begging him to provide him with some warmth. At around 0500 hours he discovered that the deceased had sprawled into his kitchen and died there. Aston’s evidence further confirms that the person who died is none other than the victim of the attack witnessed by his wife. He is the one who made the police report. Interestingly, it seems from this couple’s evidence the deceased was attacked in their yard not that of accused 2 which in a way supports accused 7’s evidence that they parked their car on accused 2’s yard. If the car was in the yard, then logically it occupied his yard leaving no room for any physical altercation. Tongai also stated that his gang was accosted by the accused’s rival gang when approaching accused 2’s house not exactly at his house.
As can be discerned, the above two witnesses give credence to Tongai’s testimony. His evidence can no longer be classified as single witness evidence in so far as the source of light, the commotion, a gang attack which represents the collective presence of all accused persons save for accused 6, and the death of the deceased.
Further, Tongai’s identification evidence is reinforced by the fact that, firstly, his acquaintances with and the length of time he had known, talked, worked and lived with all the accused persons. Secondly, on the day of the occurrence he had interfaced and interacted with accused 1, 2 and 3 earlier during the course of the day. Thirdly, he exchanged words with the accused at the time and during the commotion trying to make peace with them. The accused persons’ voices were audible as they are said to have been shouting and sloganeering. Against such a firm back ground the witness’s voice identification cannot be doubted. We are convinced that Tongai’s evidence is credible especially in light of the following accused 1 and 7’s evidence.
All the accused persons’ evidence in their defence took three forms, the defence outline, evidence in -chief and under cross examination. The first was their individual defence outlines which they all adopted into evidence. By so doing, it became part of the real and direct evidence subjected to cross examination and affirmed on oath.
Accused 1 gave honest and consistent evidence. He bolstered Tongai’s evidence that there were two rival camps, the deceased’s and the accused persons’. He confirmed the existing relationships by blood and through work between the rival factions. He attested that he grew up with the first witness who gave him a torrid time by constantly bullying him and assaulting him. The most recent was over a lady of the night accused 1 had brought to their homestead. He told the court that he had begrudgingly played coward and Tongai’s punch back for too long and he seized the opportunity to avenge him on the day of the scuffle. So when he and his gang arrived where Tongai’s trio was he did not waste time but targeted Tongai and chased him in the company of accused 5.
Accused 1, admits to meeting the deceased’s team which had a notorious criminal reputation, in the company of accused 2 earlier that day. He said he had two interactions with the opponent gang which ended with no incident. The third and last one is that of the warfare. The first interaction involved the flash disk which had been lent to accused 2 by Tongai. The second, was when Tongai and his crew met him and accused 2 at a restaurant roasting chicken. This encounter again ended peacefully. Accused 1 and his companion did not react when Tongai took part of their braai meat without permission and departed.
However, at some point that day, when accused 1’s brother, accused 3 came bleeding, saying he had been attacked by the deceased gang over the demand on him to buy them beer, accused 2 reported the occurrence to accused 4 over the phone. Accused 4 then came in the company of accused 5 and 7 and others whom he could not recall. The congregated group resolved to confront the deceased’s gang. They drove and parked their vehicle at accused 2’s place and went in search of their opponents. They failed to locate them at their usual drinking joint but then met them on their way back to accused 2’s place. A gang fight then ensued. He targeted his long-term assailant and tyrant, as alluded to above, and chased him in the company of accused 5.
In as much as, this accused person later tried to distance and extricate some of the other accused persons when they were cross examining him, the harm had already been done. He stuck to his defence outline and stood by it. It is evident that accused 1’s evidence places all the accused persons at the scene of the crime. It supports all the relevant facts from the State witnesses’ evidence. He also confirmed that the deceased’s gang only had three people as opposed to those brought by accused 5 and 7. Though he had initially included accused 6 he then did not state much to substantiate the initial inclusion.
Accused 1’s evidence is further enhanced by that of accused 7. Interestingly, accused 7’s defence, tallies in most respects with that of accused 1, thereby augmenting that of the State witness. He confirmed the phone call made by accused 2 to accused 4. In turn, accused 4 then requested him to accompany him to Tollrose Mine to apprehend Tongai Sibanda, Tinashe Ncube and the deceased. He repeated that the trio belonged to a notorious gang with the habit of assaulting and robbing people of their gold ore in the area. He admitted that they all left in the company of accused 5 who provided transport fully acquainted with the mission and game plan. He said that their initial intention was to apprehend the trio and hand them over to the police.
What does not add up is that the accused persons had a car. If they wanted police involvement, they could simply have gone to fetch them and seek the assistance of the law enforcement agents well equipped and capable of handling unruly elements of society. Further, if their chorused evidence that it is the deceased’s group that was armed with dangerous weapon is to be believed then the question that arises is how then did they intend to apprehend them without ensuring that they were equally armed and outnumbering them? Common sense and logic coupled with the reasonable inference that can be drawn from the evidence of the witness and that of accused 1 and 7 is they took it upon themselves to put a stop to the menacing nuisance once and for all. Hence, their tracking and hunt of them at their favorite drinking space.
Accused 7 does not deny responding to the urgent summons to accompany accused 4 and others to confront the deceased’s team. He stated that they used accused 5’s vehicle which they left parked at accused 2’ place whilst they hunted down the notorious gang at their known drinking joints. On their way back from their failed search, the 7th accused person and his colleagues found the trio pelting stones at them in the company of others. Both in his defence outline and in court, accused 7 admitted fist fighting and overpowering the deceased in particular, whom he claims had charged at him with an axe. He initially stated that the deceased attacked him with an axe upon alighting from the vehicle. He then changed under cross examination to say that he had been encircled and had to fight when he was already on accused 2’s yard. This accused person’s evidence buttresses the fact that the fight did take place in the proximity of accused 2’s house but not at the house. He departed from his story that accused had attacked him with an axe. He tried to absolve accused 5 by stating that he only dropped them and left, yet in his defence outline he had mentioned that they left accused 5’s car parked at accused two’s house when they went in search of the witness and his friends.
The evidence of accused 2, 3, 4 and 5 was tailored to exculpate themselves from the scene and commission of the offence as a result it was imbued with a lot of inconsistencies. They were careful enough not to implicate one another but the evidence of accused 1 and 7 had already implicated them. He denied being present during the time the deceased was assaulted to death and during the whole violent clash episode. He admitted to being in the company of accused 1 for the better part of that day but states that they parted ways and he went home.
Accused 2, also acknowledged that that he had Tongai’s flash and on the tragic day Tongai had peacefully demanded the same from him and they parted ways without any incident.
He also testified to the second incident over braai meat and that Tongai’s group only consisted of three people as stated by the State witness. After that accused 2 professed ignorance of everything else.
Notably, he gave conflicting versions as to where he was during the scuffle that led to the deceased’s death. Firstly, he said he parted ways with 1st accused early during the day and when the violence commenced, he had taken his family to his mother in law’s house where he spent the night until the following morning. On one hand, he said his wife phoned him when Tongai’s group was breaking his door. Which made him to bravely weather the missiles and rescue his family, without anyone noticing which was unscathed despite the destruction of the door. At some stage he said under cross examination, that he was waiting for the police at Tollrose Mine after his wife had called informing him of the violence at his homestead. He later changed to say that he was waiting for the arrival of accused 4 and his group not the police. What boggles the mind is that, had the deceased’s colleagues been violent and rowdy as described and throwing stones at accused 2’s house inhabited by his wife and child why were they not wounded? How would accused 2 enter and leave unnoticed? The reasonable inference that can be drawn is accused 2’s house was not the actual place of the offence but next to it if at all his version of retrieving his family is to be believed. It is evident that accused 2 was not truthful in most areas of his defence. He was at the center of the dispute involving the flash disk. He did not challenge his co-accused’s evidence that he made the calls to accused 4 and all his other involvement.
Accused 3, first stated that, he was at home sleeping with his wife when he heard the commotion at his neighbor, the accused 2’s house and he went to ascertain the safety of his neighbor. He later changed and stated that he was at work and returned the next day after midnight after the incident had already taken place. He then learnt that the deceased his relative had been seriously injured.
Accused 4 said that he was only carrying out his extended duty to ensure peace and order within the precincts of the mining premises and compound. He said his mission was only to apprehend the notorious gang and hand them to the police. He denied participating in the offence. He does not deny sourcing for transport and gathering the ideal people to address the problem that was at hand. However, both accused 3 and 4 failed to challenge and discredit accused 1 and 7’s evidence which they did not destroy under cross examination. Their versions become false and improbable.
Accused 5’s effort to hide behind the defence of an innocent hired driver did not pay dividends in the face of the evidence that has been led so far. Not even a single one of his co-accused mentioned that the vehicle he was driving had been hired in their evidence in chief or defence. He also omitted to specify the hiring fee in his defence outline only to introduce the same much later in the midst of trial. His car, contrary to his assertions was left parked at accused 2’s homestead. All the occupants of that car went hunting for their rival gang. The court does not believe his version that the car was simply parked miles away. Nor that he simply dropped accused 4 and 7 and made an about turn under such volatile circumstances. Accused 1 and 7’s evidence paints him as an active participant in the whole fracas who even chased Tongai. Given the reputation ascribed to Tongai, he would not have yielded to a chase from his usual punch bag, accused 1 if he was alone. The fact that he took to his heels running for dear life buttresses accused 1’s version that accused 5 also chased Tongai. The presence of other persons including accused 5 gave accused the courage he lacked over the years to fight back.
Accused number six was mentioned by both the witness and the 1st accused. He has a familiar limb known to most of the inhabitants in the periphery of Tollrose Mine. The witness recanted his involvement. The first accused also retracted his presence and participation in the commission of the offence. We agree with the State that there is no direct or indirect evidence that remains linking him to the offence.
Our factual findings from the common cause facts are that the deceased died a violent and brutal death. He was assaulted by a group of people with lethal weapons. The autopsy report listed more than 15 areas of his torso which were extensively wounded. The vessels in both his wrists and legs were broken. The cause of death was multiple assault wounds all over the body. The accused persons from the evidence on record congregated as a group and resolved to punish the deceased’s group known for their notoriety and criminal behavior. They gathered after being summoned by accused 2 who had witnessed accused 3 bleeding. Accused 7 and 4 took the lead as they had experience as security officers on the mine. They did not call the police. They did not take the renegade to the police. Instead, they had a physical confrontation with the deceased. Their team leader admitted to exchanging blows with the deceased and overpowering him. The deceased was found dead at the end of the brawl.
We are convinced that the all the accused persons with the exception of accused 6, acting in common purpose were present during the attack on the deceased, with the intention to punish the trio thereby committing the crime as alleged. The assault itself which resulted in the death of the deceased was unlawful as the accused made a law unto themselves and usurped the powers of the police.
On application of the law to the facts, the accused persons actions fall squarely within the provisions of s196A of the Criminal law Code as amplified in the case In Tungamirai Madzokere and Others v The State SC 71/21. The State through the evidence on record has managed to prove the provisions of s196A (2) that the accused gang of six congregated in association with each other together had the requisite mens rea to commit the crime. They all 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. They were associated together in a conduct that is preparatory to the conduct which resulted in the crime for which they are charged. That is when accused 1,2 and 3 called and met accused 4, 5 and 7 and planned to trek the deceased and his team. Resultantly, the act of assaulting the deceased’s gang in itself was an engagement in criminal behaviour as a team or group prior to the attack on the deceased which resulted in the crime for which they are charged.
The State has discharged its onus by proving the essential elements of the offence at hand as paraphrased in case of n the case of Dube v The State SC 83/22, as follows;
“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.” See, s18 of the Criminal Law Code. Chudu v The State HB-214-17; S v Makanyanga 1996 (2) ZLR 231 and R v Difford 1937 AD 370.
Intention to commit a crime can be deduced from the direct evidence tendered or inferred from the proved facts. Hence, the manner of the commission the offence, that how it was executed, the weapon used, the part of the human torso targeted and the number of blows are all detectors of intention as alluded to in the case of In the case of The State v Wirosi [57/ 2021] ZWMHTC, and S v Mema HB 143/13 where 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.’
The defence team were up and in arms with the identification evidence from the State’s witness saying it is unreliable given the volatility of the situation and the enveloping darkness on the day. It is important to note that, the law governing identification evidence has been well traversed. Given the fallibility of human nature this category of evidence is normally treaded with caution. See, S v Nkomo & Anor 1989(3) ZLR 117(S). S v Denhere & Ors GS235-80, R v Chitate 1966RLR 251 (A)1966(2) SA(RA)
In S v Mthetwa 1972 (3) SA 766 (AD) at 768 A-C, it was remarked that:
‘Because of the fallibility of human observation, evidence of identification is approached by the courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested….”.
The issue of identification has also been exhaustively dealt with in the following Supreme Court decisions: Mutters & Anor v State S-166-89; Makoni & Ors v The State S-67-89; Nkomo & Anor v The State 1989 (3) ZLR 117 (S) and Madziwa v The State S-191-90.
As already explored, Tongai ‘s identification though it was dark and he could not see all the faces at once cannot be faulted. His evidence of the presence of torch light was supported by evidence from an independent source. Further, because of the existence of his long-term relations with all the accused persons and as described herein, he could not have mistaken their voices which were loud and audible. In any event accused 1 and 7’s evidence buttressed his testimony on this aspect. A familiar voice is distinguishable from that of people who meet for the first time when there will be no basis for comparison. We associate ourselves with the observations made by Bere J, as he then was, in the case of S v Kamabarami & Anor, HH273 / 2014, in respect to identification evidence and its inherent dangers and the safe nets that need to be employed.
Further, an attack was made by the defence on the implicating evidence of accused 1 and 7 upon which the State case is mainly anchored, but corroborated by witnesses as already canvassed. In general, accomplice evidence is treated with caution for reasons that the accomplice may underplay his role and exaggerate that of his co –accused in order to save his own skin. See, S v Lawrence & Anor 1989 (1) ZLR 29 (S) and S v Nyathi & Ors S-52-95.
Implicating evidence given by one accused against the other in all extra curiae statements is ordinarily excluded. This applies to evidence from one accomplice incriminating a co-accused in warned and cautioned statements. This rule of admissibility of evidence applies even to confirmed warned and cautioned statements given under the police environment. The rationale being, these statements may not be subject to authentication by cross examination. See, S v Mubayiwa 1980 ZLR 477 at 481 A. The same does not obtain, however, in statements made in court or for the purpose of a court hearing. These are subjected to interrogation and cross examination in court to test their veracity.
In Samba v the State –S- 22/90 it was observed that,
“Where two or more people are jointly charged, with an offence and each gives evidence blaming the other of the camps the evidence of each is admissible against the other, but the court must approach the evidence with care since there is a risk, that either or both may be seeking to himself by telling lies.”
On page 299 of the Magistrate’s Hand book by Prof G, Feltoe 1984 edition it is highlighted that,
“In terms of s259 of the Criminal Procedure and evidence Act [Chapter 9:07], the statement of the accused in reply to police questions is only evidence against the maker and not against any other person. This is because there is no opportunity for cross examination of the person who made the statement at the time the statement is made. But if the maker goes into the witness box and repeats on oath what he or she made in the statement, he or she renders himself/herself liable to cross examination by an accused who is jointly charged with him and thus such evidence on oath is admissible against the co-accused.”
It is our considered view, that the accused persons’ defence in the form of the defence outline submitted and authenticated in court on oath qualifies to be admissible evidence. This is the document that bears the accused’s own side of the story. It gives the accused the chance to exonerate himself and place the court in the picture of what transpired in connection with the offence. It is subject to and open to challenge in cross examination by the co-accused persons. It is rejectable as well as redeemable. Once the accused person adopts and abides by it with no additions and subtractions it becomes solid evidence on record. So that evidence is admissible evidence against the other co- accused if they fail to extensively attack it.
In casu, the evidence of accused 1 and 7, in such form, was not effectively challenged or attacked by the other co-accused so implicated them. It is accepted evidence. More so when, the evidence corroborates each other and supports that of the witness in material respects. Further even after the self -contradictions in both the 1st accused’s evidence under cross –examination as weighed against that in his defence out line, he still opted to make that evidence as the truth under oath. The same applied to the 7th of accused. When Mr Sibesha for the State asked them that, whether or not in the face of their in- court statements departing from some aspects of their defence outline they still want such evidence to be accepted as evidence. They both under oath asked the court to rely in their adopted defence outlines.
Disposition
We are satisfied that the State has proved beyond reasonable doubt through both direct and indirect evidence that the accused persons’ combined actions resulted in the death of the deceased. The court is mindful that though there is evidence that places all of the six at the scene and at the time of the commission of the offence there was no direct evidence pin pointing the degree and role of participation of the other five except accused seven. Their degree of involvement has been inferred from the proven and common cause facts. Their intention has been adduced from the doctrine of common purpose. See, Muyanga v the State HH 79/13, S v Masawi & Anor 1966 (2) ZLR 472(S) at p 525 F-G. In the case of S v Mtetwa 2014 (2) ZLR 533 (H) it was stated that even in the most straight forward of cases, a court must ultimately draw inferences. As aforesaid, a reasonable inference has been drawn that they acted in common purpose to group and accost the deceased’s gang and are linked to all the assaults that took place thereafter including that on the deceased.
Having noted that, we are not satisfied that the accused persons had actual intention to kill the deceased. The evidence on record does not reflect premeditated murder. They fall in the category of persons who whist pursuing another objective foresaw the death of their victim as a substantially certain result of that activity and proceeded regardless as highlighted in the case of S v Mugwanda SC 19/2002.
Accordingly,
Accused number 6 is found not guilty and acquitted.
Accused 1, 2, 3, 4, 5, and 7 are found guilty of murder with constructive intent.
Sentencing Judgment
The facts are by and large common cause. A finding has already been made that the six accused persons associated for the common purpose of confronting the deceased’s gang in order to exact some form of discipline. They then used excessive force which ended up with fatal consequences and loss of life. What can be depicted is that, this was sort of a gang war which came to a head on the day the deceased was killed. They have been convicted of murder with legal intent.
In mitigation, the accused persons are all first offenders with very young families. They were meaningfully engaged, some with Tollrose Mine and some as artisanal miners. Members of their immediate and extended families looked up to them as bread winners. They are fairly young adults with ages ranging from 30 to 43 years. The majority are in their early to mid-thirties. They are related and a whole clan and generation faces some prison time in punishment of the heinous crime they committed. They have also waited for 4 years from 2020 to 2024 for trial. They did not abscond and turned up to face the consequences of their actions.
In aggravation however, the manner in which the accused persons attacked and killed the deceased is rampant within the artisanal miners’ communities. There is disregard of the sanctity of life in particular and law in general. Gangs and gang warfare are the order of the day, terrorizing other residents of those communities who live in constant fear.
All the accused persons refused to acknowledge their wrong, that through their concerted actions precious irreplaceable life was lost. They were persistently unrepentant throughout the trial from their demeanor and word. As a result, they were stubborn enough not to assist with the deceased’s funeral expenses or in the payment of traditional reparations.
What is more aggravatory is that a group of people continuously assaulted a man who they had already subdued and was down. They had an option to take him to the police which they did not exercise. They did not restrain one another. Not even a single one of them dissociated himself from the brutal assaults.
To make matters worse, though they have no duty to reveal any information against their will, they shielded each other and the degree of participation of the other. Nonetheless the aggravatory factors are outweighed by the mitigatory one.
The court could not help but notice during the sentence enquiry session, that six young wives and children will pay the price of offences they did not commit. Another seven families have been subjected to the broken home syndrome. There is an automatic disintegration of these families. Worse still the rest of the accused persons are blood brothers and cousins. A whole generation will inevitably languish in prison. The sins of the fathers are visited to innocent young children and wives. It is very unfortunate.
Notwithstanding that, society and the due administration of justice dictates that criminals or those who violate the law must pay. No one should take the law into their hands. Animalistic behavior and tendencies of physical confrontation must be discouraged. A custodial penalty will deliver the right message home. Deterrence should be the overriding factor in situations such as these.
However, courts are enjoined to temper justice with mercy. See S v Shariwa HB 27/2003 and S v Chitungo HH12/2022. Each case must be considered on its own individual circumstances. What is distinguishable in this case warranting a departure from the presumptive sentence of 20 years where there are aggravatory factors, and 15 years and below where there are none is that, as compared to offences committed during robberies, and artisanal gang wars over gold proceeds or ore is that this offence was committed as a disciplinary measure. No knives or machetes synonymous with artisanal fights were used. It can also not be ignored that the attack was between relatives and motivated deep instilled sense of revenge of the assaults that had been perpetrated by the deceased’s gang on the accused persons’ relation. This was in a way a form of provocation.
Having weighed all the factors, the mitigation in a way dilutes and outweigh the aggravatory factor justifying lenient penalties. Each accused is sentenced according to the magnitude of the role they played. The case of Pistorius v S ZASCA47/2014 is judicial precedent of persuasive authority. See, S v Luke Mungoza HMT1/18.
Resultantly, it is ordered that:
Accused 1 is sentenced to 6 years imprisonment
Accused 2 is sentenced to 5 years imprisonment
Accused 3 is sentenced to 5 years imprisonment
Accused 4 is sentenced to 5 years imprisonment
Accused 5 is sentenced to 5 years imprisonment
Accused 7 is sentenced to 8 years imprisonment
The National Prosecuting Authority, State Legal Representatives.
D. R Chirairo Legal Practitioners, Accused 1’s Legal Practitioners.
Zimudzi & Associates, Accused 2’s Legal Practitioners.
Chikwangwani Tapi Attorneys, Accused 3’s Legal Practitioners.
Lawman Law Chambers, Accused 4’s Legal Practitioners.
Samundombe & Partners, Accused 5’s Legal Practitioners.
Mangwiro Law Chambers, Accused 6’s Legal Practitioners.
Saizi Law Chambers, Accused 7’s Legal Practitioners.