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

1 HH 308-23 CRB 60/22 THE STATE versus KENNEDY CHIPANGURA and GIVEMORE MUNYARADZI JONGA HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 8 – 10 May 2023 Assessors: Mr Gweme Dr Mushonga Criminal Trial T M Havazvidi, for the State T K Takaendesa, for the defence MUREMBA J: The accused persons pleaded not guilty to the charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code). It is alleged that on 16 January 2022 at 1030 hours, the two accused persons in the company of one Mbonisi Moyo who was issued with a warrant of arrest and is at large, severely assaulted the deceased, Blessing Kandido at MC Building at the corner of Chinhoyi Street and Speke Avenue in Harare. They assaulted him with booted feet and clenched fists all over his body. After the deceased had been assaulted, he proceeded to make a report of assault at Harare Central Police Station. On 24 January 2023 the deceased’s condition deteriorated and he was taken to Parirenyatwa hospital where he succumbed to injuries sustained during the assault on the same date at around 2000hours. HH 308-23 CRB 60/22 In denying the charge, the accused persons said in their defence outline that they never assaulted the deceased. They said what happened is that their colleague Mbonisi Moyo left his bag with the deceased. When he returned in their company to collect the bag, the deceased failed to produce it. Mbonisi Moyo then assaulted the deceased. The accused persons said that they then restrained Mbonisi Moyo from further assaulting the deceased as the deceased had given an undertaking that he would look for the bag. The accused persons said that they were surprised after 10 days when they were told that the young man who had been assaulted by Mbonisi Moyo had passed away. In proving its case the State started by producing the post mortem report. It states the cause of death as global subdural hematoma and severe head trauma. Another significant condition that was observed was pulmonary edema. The post mortem report was produced by consent which means that the accused persons do not dispute the cause of death. The State then led evidence from Loveness Machekera. The gist of her evidence was that she works as a vendor near the place where the deceased was working. She would also see the accused persons coming to the premises where the deceased was working. There was a restaurant at these premises. Loveness Machekera said that on 16 January 2022 in the morning between 10 and 11am she was at her vending place when she heard some noise. When she went to investigate, she saw 3 people who included the two accused persons assaulting the deceased in the alley. She stood at the gate which was about 3-4m away from the scene of the assault. It was her evidence that she saw all the 3 people assaulting the deceased. None of them was trying to restrain the other(s). The deceased was lying on the ground as the accused persons and their colleague were taking turns to kick him with booted feet all over his body and head. As they were kicking him, he was rolling on the ground like a football. She said that the assault was vicious and she was afraid to get closer. The accused persons were very angry. She observed the assault for about 15 minutes and could not stand it any longer. Initially the deceased was crying, but he ended up being quiet as they continued to assault him. Loveness Machekera said that she did not witness how the assault stopped or ended as she had returned to her vending site. However, she saw the deceased after the assault on the same day as he was now leaving for the police station to make a report. She spoke to him and asked him why he was assaulted. He said that it was about the bag without elaborating. She noticed that he was swollen on the right side of HH 308-23 CRB 60/22 his forehead. He was also bleeding from the mouth and the nose. She said that she then saw the deceased on the next day. After that, she never saw him again. She only learnt of his death on 25 January 2022. The second witness to testify was Togara Mandimandi. He said that he was a security guard at the same premises the deceased was working. The deceased used to be a caretaker and was now a porter for vendors. This witness also said that he was attracted to the scene of the assault by the noise that he heard. When he went to investigate, he found the deceased being assaulted by 3 men who included the 2 accused persons. Just like the first witness, Togara Mandimandi denied seeing the two accused persons restraining their colleague from assaulting the deceased. He was adamant that he saw the three men assaulting the deceased by kicking him with booted feet on the head. He said the person who had tried to restrain them was a certain soldier who was in the company of one Beans who was also witnessing the assault. This soldier was almost assaulted as well. So, he stopped trying to restrain. Just like Loveness Machekera, Togara Mandimandi also observed that the deceased’s forehead was swollen on the right side. He was also bleeding from the nose and the mouth. The deceased explained to him that he had been assaulted because of the bag. The deceased did not explain further about the issue. This witness said that the assault was vicious and he observed it for almost an hour. The accused persons stopped the assault on their own as they promised to return for the deceased. The witness said that he had observed the assault at a distance of about 21 metres. He said that he was standing by the gate. He said that the deceased was assaulted as he was in a sitting position. Each time he tried to stand up, he would be pushed down by being kicked by his assailants. Loveness Machekera and Togara Mandimandi corroborated each other in all material respects. They both saw the two accused persons involved in assaulting the deceased. None of them saw the two accused persons restraining their colleague Mbonisi Moyo. They also saw the trio assaulting the deceased by kicking him with booted feet on the head. They both observed the same injuries on the deceased. The deceased was swollen on the right side of the forehead and he was bleeding from the nose and from the mouth. The third witness to testify was Blessing Mubairakuenda. His evidence was to the effect that the deceased was his friend. They had become friends because they were operating from the same premises. The deceased was a caretaker whilst the witness was self-employed as a vendor. HH 308-23 CRB 60/22 The witness knew the accused persons because they used to come to eat food at the restaurant which is at the premises where he was operating from. On 24 December 2021, the two accused persons came in the company of a third man and left their satchel. It looked like they forgot that satchel. The third man came back for the satchel on the next day. However, the deceased who had taken it to his home told him that the satchel had gone missing. The man was not amused by this. He held the deceased and assaulted him once. He then left promising to come back in the company of his colleagues. He then came back with the two accused persons on another day. The witness could not clearly recall the date when the three came. He however said that the three came drunk and they were each holding a quart of castle beer, drinking the beer. They asked the deceased about the satchel. The deceased said that it had been stolen. The first accused was the first to assault the deceased with an open hand on the face. The second accused then hit the deceased who was now in a kneeling position with his knee on the face. Thereafter, the three took turns to assault the deceased as they kicked him with booted feet. The witness recalled that accused one was wearing a pair of boots which was tan in colour. He could not recall what the other two were wearing in their feet. The witness said that the accused persons and the third man assaulted the deceased viciously for ab