CRB 6,8,9,& 10/21
HIGH COURT OF ZIMBABWE
MASVINGO, 15th, 22nd March, 17th, 20th May and 4th June, 2021
- Mr Mutomba
- Mrs Chademana
B.E. Mathose, for the applicant
J. Chipangura, for accused 1
K. Chuma for the 2nd accused
K. Mabvuure for the 3rd accused
C. Ndlovu for the 4th accused
MAWADZE J: There were a lot of twists and turns in this matter.
Initially there were 8 suspects arrested in the matter. However when the trial commenced the other 3 suspects could not be located hence the trial was only in respect of 5 accused persons.
At the commencement of the trial the State applied for a separation of trial of one Malvin Kabenge from the other 4 accused persons. Mr Mbwachena who represented Malvin Kabenge and Mr Mathose for the State had found each other and agreed that a charge of contravening section 49 of the Criminal Law (Codification and Reform) Act, [Cap 9:23] be preferred against Malvin Kabenge who admitted to that charge of culpable homicide. As a result a separation of trial was granted. Malvin Kabenge was duly convicted on the basis of a statement of agreed facts on a charge of culpable homicide on 15 March 2021. He was sentenced to 4 years imprisonment of which 1 ½ years imprisonment was suspended for 5 years on the usual conditions of good behaviour.
The contested trial proceeded now in respect of the 4 accused persons. At the close of the prosecution case on 20 May, 2021 accused 2 to 4 were discharged after their counsel successfully made an application in terms of s 198(3) of the Criminal Procedure and Evidence Act [Cap 9:07].
We gave the reasons for the discharge of accused 2 to 4 at the close of the prosecution case ex tempore.
The trial therefore continued only in respect of accused 1 Tapiwa Kuipa. This judgment therefore is only in respect of accused 1 Tapiwa Kuipa (hereinafter the accused).
The charge preferred against the accused person is one of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act, [Cap 9:23].
The charge is that on 6 September, 2019 at Mutsure Village, Headman Gororo, Chief Shindi in Chivi all the accused persons or one of them caused the death of Ngonidzashe Tizirai by assaulting him with fists, booted feet and switches all over the body.
The facts giving rise to this charge are as follows;
The now deceased, a male adult was a resident of Tokwane Resettlement, Ngundu in Chivi. The accused is a serving member of the Zimbabwe Prisons and Correctional Services based at Chivi satellite prison and a local villager in Gororo, Chief Shindi in Chivi.
On 6 September, 2019 at around midnight the now deceased intruded into Edwin Mikia’s house in Mutsure Village, Headman Gororo, Chief Shindi in Chivi. The now deceased’s intention was to steal and he apparently stole some items. However the now deceased ran out of luck as he was caught red handed inside the house and Edwin Mikia called for help from fellow villagers. The now deceased tried to flee but was apprehended by villagers who proceeded to assault him with booted feet, fists and switches all over the body. The now deceased was taken to Dare Primary School were the assault continued.
It is alleged that the accused was one of the villagers who fatally assaulted the now deceased, whose lifeless body was left at the gate of Dare Primary School.
The accused’s basic defence is that while he witnessed the assault of the now deceased he himself did not take part in that assault. As per his defence outline Annexure B1 the accused attributed the assault to a mob of villagers. The accused said he was the only voice of reason who tried to restrain the fellow villagers to no avail when he arrived at the scene. The accused said he even sought help from the Headmaster of Dare School after the mob took the now deceased to the school but the assault continued. After realising the futility of his intervention the accused said he proceeded to ZRP Ngundu to make a report after administering first aid to the now deceased. Upon his return with the police he said they found the now deceased already dead. The accused thus denies assaulting the now deceased or acting in common purpose with any of the assailants.
This is the evidence the accused maintained throughout the trial. In fact the accused said he is now being falsely incriminated because he is the one who caused the arrest of the assailants and reported the matter to the police. The accused said as he is not from the same village with the assailants, these assailants connived and conspired to falsely incriminate him.
In support of this case the State led evidence from Rachel Matirangana a wife to the already convicted Malvin Kabenge, Getrude Jestina Ndlela then a student teacher at Dare Primary School and Sgt. Tasangana Dabaa the Investigating Officer. The evidence of Dr Zimbwa was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Cap 9:07].
The accused gave evidence and did not call any witnesses.
The only exhibits produced by consent are Exhibit 1 the post mortem report, Exhibit 2(a) being pieces of broken switches recovered at the scene of the assault (8 pieces) and Exhibit 2(b) an affidavit relevant to the description of these 8 switches.
The belated attempt by Mr Chipangura in his written closing submissions that the deceased’s identity is in issue in our view should not detain us and does not deserve meaningful comment. This is surprising because the identity of the now deceased was never in contestation throughout the trial. It is surprising that the accused would even try to make it an issue at the eleventh hour moreso without any reasonable basis. We therefore dismiss it.
The cause of the now deceased’s death as per Exhibit 1 is not in issue. The now deceased died as a result of injuries inflicted upon him during the assault.
Dr Zimbwa who examined the now deceased’s remains observed the following;
“1. multiple facial and neck bruises.
2. scalp haematomas and lacerations
3. distended abdomen
4. multiple limb and truck bruises
5. neck is loose and hyper mobile”
The cause of death is stated as;
“1. Head injury
2. Neck fracture”
The only narrow issue is whether the accused was one of the assailants who participated in the fatal assault of the now deceased.
In resolving this issue we shall deal with the evidence of the three State witnesses;
- Sgt Tasagana Dabaa (Sgt Dabaa)
Sgt Dabaa is the investigating officer and is not very useful in resolving this issue as he is not an eye witness to the assault.
The only critical aspect of his evidence relates to the investigations he carried out. He confirmed that it is the accused who came at ZRP Ngundu to report that the now deceased had been seriously injured due to an assault by a mob of villages after committing theft. The accused gave him the impression that the now deceased was alive. He proceeded to the scene after sunrise with the accused and found that the now deceased had died. He noted injuries all over deceased’s body consistent with the assault. The now deceased was bleeding from the nose and mouth.
Sgt Dabaa said the accused admitted assaulting the now deceased together with other villagers whom the accused specifically identified. We found his evidence unconvincing when he said each of the arrested accused identified the switches each accused had used. This is contrary to paragraph 6 of his self-recorded statement in which he said Exhibit 2(a) the 8 switches were indicated to him by Edwin Mekia and that Malvin Kabenge is the one who admitted plucking the switches.
The eye witnesses to the assault are Rachel Matirangana and Getrude Jestina Ndlela.
- Rachel Matirangana (Rachel)
Rachel the wife of the already convicted Malvin Kabenge is well known to the accused as a neighbour.
Her evidence is that on the night in question she followed her husband to Edwin Mikia’s residence where a thief, the now deceased had been apprehended. Upon her arrival she found the now deceased being interrogated by her husband, Edwin Mikia, Clever Zvenyika and Jimson Makudo. She said all these 4 started to assault the now deceased with booted feet, fists and switches.
Rachel said the accused then arrived in the company of Bright Bumudza and that the accused was carrying a bag. She said the accused then put his bag down, knelt near the now deceased and started to assault him with fists and booted feet. Thereafter all men present except Bright Bumudza joined in the assault taking turns using switches. The deceased was pleading for mercy and she noted that he was bleeding from the nose and mouth with hands tied at the back.
According to Rachel her husband, Edwin Mikia, Clever Zvenyika, Jimson Makudo and the accused assaulted the now deceased for 20 – 30 minutes after which she left.
- Getrude Jestina Ndlela (Getrude)
Getrude the student teacher Dare School only went to where the deceased was when the now deceased had been brought by villagers at Dare Primary School. She went there with a fellow teacher Tranos Chapanda around 0100 hrs.
Her testimony is that she found the now deceased lying on his back with his hands tied on the back with a jacket. The accused was one of the villagers present.
Getrude said the accused and Malvin Kabenge proceeded to assault the now deceased indiscriminately all over the body using switches. Her fellow teacher one Tranos Chapanda just asked the now deceased to confirm the alleged theft. The Headmaster and his deputy also arrived as accused and Malvin Kabenge took turns to assault the now deceased. Getrude said the assault by the accused was so severe such that she could not bear to watch as blows were delivered and would look away. She said accused was implored to take the now deceased to the police and he promised to do so ordering the now deceased to get up. The assault by the accused continued as the now deceased was being force marched. At that point she and fellow teachers returned to their houses.
Getrude said it was only after sunrise that she later learnt of the now deceased’s death and upon arrival at where his body was she realised that the now deceased’s hands were now tied in front. The now deceased no longer had a shirt. She observed whip lashes and haematoma on his ribs. The now deceased was bleeding from the nose and mouth. No one was present at the scene. The police later attended the scene with the accused.
The evidence of Rachel and Getrude was not meaningfully challenged by the accused. They each observed the assault of the now deceased at different intervals. On both occasions the accused was present and took part in the assault of the now deceased. There is no basis to allege that they both colluded to falsely incriminate the accused. They were not implicated by the accused in the assault of the now deceased. To that extent therefore they have no motive to falsely incriminate the accused. Rachel’s husband is already convicted hence she has nothing to gain by falsely incriminating the accused. Getrude a student teacher at Dare School had no discernible motive to lie against the accused.
We find Rachel and Getrude to be credible witnesses and we have no cause not to accept their evidence.
The accused’s evidence cannot possibly be true. He abandoned his trip to his workplace and was present throughout the assault of the now deceased. The fact that he later went to make a report to police (without making full disclosure) is neither here nor there.
It is our finding that the accused indeed assaulted the now deceased from the time he arrived at the scene and until the time he left the now deceased. The assault was severe, indiscriminate and prolonged. It resulted in the fatal injuries.
The only benefit we can accord the accused is that he could not have formulated the intention to kill the now deceased. He simply got overly excited and joined fellow villagers in taking the law into his own hands believing they were disciplining a thief. The accused was negligent in the manner he assaulted the now deceased and simply abandoned him at night severely injured.
Accordingly, we find the accused not guilty of murder but guilty of the permissible verdict of culpable homicide.
- Accused 2 to 4 – discharged at the close of prosecution case
- Accused 1 – guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Cap 9:23] :- culpable homicide.
The process of sentencing entails striking a delicate balance between mitigating and aggravating factors. It is an exercise of discretion which cannot be reached with mathematical precision.
The offence of culpable homicide arising from violent conduct is inherently a serious offence. The reason for this is quite obvious. Life is sacrosanct and human blood is precious even if it is lost due to negligent violent conduct.
It is the duty of the courts to discourage the law of the jungle where mob justice is viewed as a correct way to punish wrongdoers. We are a civilized society and thieves should be brought to account for their wrong doing through the proper due process. To act otherwise results in anarchy.
The accused is a prison officer who fully understands and appreciates the law. There was no need for him to be overly excited and take the law into his own hands. The accused even abandoned his journey to his work place and instead spent the night savagely assaulting the now deceased. Worse still the accused was in uniform and acted like a rogue prison officer instead of being the voice of reason.
The assault perpetrated on the now deceased shows high degree of negligence. It was severe, indiscriminate and prolonged by a gang of people. The now deceased painfully lost his life the very might of the brutal assault. The post mortem shows that his neck was in fact fractured. The accused’s moral blameworthiness is indeed quite high.
In mitigation it should be noted that the accused is 40 years old first offender. He has served the Prison and Correctional Services faithfully for 13 years. It is painful that he now finds himself a prisoner in the very prison where he discharged his official duties. Besides the attendant stigma the accused has indeed disgraced himself unnecessarily.
Incarnation has its own adverse effects. The accused’s wife and 4 minor children will also be adversely affected as he was the sole bread winner. As was said by accused’s counsel the accused has not only lost his job, his only source of livelihood, but may also lose his pension benefits. Further the accused’s life was in limbo since 2019 as he awaited the outcome of this case although he was still at work. The uncertainty of his future should have traumatized him.
This court has already passed sentence in respect of the accused’s accomplice. Generally, the principle of uniformity of sentence should apply unless if there is just cause to treat co-accused differently.
While the accused’s co-accused pleaded guilty to the charge the accused chose to go through protracted trial. However the accused cannot be punished for his right to plead not guilty to the charge. The accused went to the police to report this matter and caused the arrest of his accomplices. His co- accused decided to go home. However the accused’s conduct was like closing the stable when the horse has already bolted. Further the accused is not an ordinary unsophisticated villager. He decided to be wise after the event. Thus on a balance we are inclined to treat the accused in the same manner with his convicted accomplice.
In the result the accused is sentenced as follows:-
"4 years imprisonment of which 1½ years imprisonment is suspended for 5 years on condition the accused does not commit within the period any offence involving the use of violence upon the person of another and or negligently causing the death of another through violent conduct for which the accused is sentenced to a term of imprisonment without the option of a file.
Effective sentence is 2½ years imprisonment"
National Prosecuting Authority, counsel for the State
Mutendi, Mudisi & Shumba, pro deo counsel for the accused