S v Gonga and 3 Others (60 of 2024) [2024] ZWCHHC 60 (24 June 2024)

1 HCC 60/24 REF: HCCR 440/24 THE STATE Versus LAST GONGA And ADMIRE GONGA And NELAON GONGA And OSCAR PFUPAJENA HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 30 MAY – 24 JUNE 2024 Assessors: 1. Mr. Mutombwa 2. Dr. Mashavave Criminal Trial G. T. Dhamusi, for the State D. Chikwangwani and M. James, for the 4 accused BACHI MZAWAZI J: The four accused persons are brothers. The first three are from the same biological parents, whilst their father and that of the fourth are brothers. The three fraternal brothers stay in the same household, under one roof but different rooms. Accused four resides a small distance away at his own homestead. This criminal offence took place at the three accused persons‟ home and compound. The common cause and undisputed facts are that, on the 6th of September, 2022 at Gonga homestead, Gazmark, Farm Kadoma, the four accused persons individually, and in concert assaulted the deceased, Mark Taonameso to death. They bombarded the deceased with an avalanche of stone and brick missiles capped with sjambok assaults all over his body. The deceased died on the spot. The autopsy report confirmed the cause of death as due to assaults resulting in extensive brain and head injuries. Severe and multiple wounds were also depicted on the head, face, left rib, legs and at both his back and front torso. HCC 60/24 REF: HCCR 440/24 It is not in dispute that, it is the conduct of all the four accused persons that caused the death of the deceased. The actus reus is present. What needs to be established and proved by the State through evidence is the mens rea. Is there dolus directus, dolus eventualis, culpa or lack of it.? In other words, did the accused persons intend to cause the death of the deceased, were negligent or they have a defence that completely absolve them from any culpability? Apparently, there is no independent eye witness to the events of this tragic day. The State case is born largely from the accused persons‟ version of what transpired on the day. The State led evidence from four witnesses, all members of the police force. The first witness, from the police support unit, is a very close relative of the accused persons and stays a few kilometres from their house. It was evident from the onset that his evidence was tailored in favour of exonerating the accused persons. As such, his evidence was mainly relevant in that, he was said to be the first to arrive at the scene of the offence after being summoned by two of the accused persons. He found the deceased already dead. To this extent he was found credible. He mentioned receiving a machete from accused two who was holding it as soon as he emerged onto the scene. This was not said in his evidence-in-chief, but after a leading question was asked, in that regard by Mr Chikwangwani, defence counsel for the accused. He stated that he handed over the machete to the investigating officer, which was rebutted. The second State witness‟s evidence was corroborative of the first‟s in that the accused did kill the deceased in the manner alleged on suspected intention to steal their donkeys. This was the investigating officer. He too in his evidence in chief did not state that he saw any machete or torch. Again, the defence counsel pushed him to the wall, to solicit an admission that there was a machete. The witness unconvincingly, admitted being shown by accused one, some home- made knife which looked like some machete of some sort, but did not conclude it to be such. However, he confirmed not collecting or booking any machete as an exhibit in the police exhibit log book. Though the investigating officer did a pathetic investigative role in this case, his evidence was credible. He fell short of an astute police officer by failing to have the warned and cautioned statements, as well as, the indications and sketch plan confirmed by the Magistrate. He did not make further follow-ups to ensure the confirmation of the documents was done, after his first failed attempt to do so due to his late arrival at court. HCC 60/24 REF: HCCR 440/24 As a result, the said two important pieces of evidence did not make part of the evidence produced in court by the State. The State proposed to rest its case after this second witness. The court was of the view that the admitted evidence of the other two police officers in the company of the investigating officer, would assist in the clarification of the machete issue, the presence of any other witnesses, amongst other, hazy aspects of the State case. It proceeded in terms of s232 of the Criminal Procedure and Evidence Act, Chapter 9:07 and recalled the other two police officers. The State though dominus litus, for one reason or another failed to conduct a trial within a trial, even at that stage, though it sought reliance on the sketch plan and the indications. It was prudent that it could have taken this route. The third State witness, attested that he never saw a machete nor a torch at the scene of the crime, in the car or at the police station. This witness was consistent and credible. He was present when the accused persons were interviewed and made indications. It was his testimony that there was never any mention of a defence of any form but an attack on a suspected donkey thief. He was steadfast under cross examination. He did not shake or falter. The last State witness‟s evidence had no probative value as he was restricted to crowd managing, ironically, oblivious of the surrounding happenings. That being the case, it is the accused persons‟ defence that they acted in defence of the individual, self, each other and their property, therefore they are entitled to an acquittal. In a rehearsed unison, they all said the deceased was armed with a machete which he intended to use on them but never did. Further, that he was also equipped with a torch and would pick bricks whilst holding the said two items and throw randomly at the four of them. Their evidence had in common the fact that the donkeys were near a scotch cart near their crumbled kitchen which separated the two standing structures in their compound. They all confirmed that the deceased was attacked at the spot where the donkeys were harnessed to the scotch cart from the onset up to the time of his death. They all admit that they catapulted the bricks and stones from four different angles aiming at one target, the deceased. It was their unified version that accused two then took a sjambok from the scotch cart and assaulted the deceased whilst he was already down. They all say the reason of further inflicting more injury to a man who was already down and wounded, was to extract information about his colleague‟s whereabouts, as they suspected his co-thieves may be hidden nearby. This is bizarre, as any would be accomplice would have either joined in HCC 60/24 REF: HCCR 440/24 defence or fled the scene. They all affirmed that no response came from the deceased apart from a complaint that his head was very painful. Noticeably, there were a lot of discrepancies in the four accused persons‟ evidence which also contrasted, that, of the State witnesses. To begin with, the State summary, which is made up mainly from the accused‟s rendition of events, the donkeys where in a pen some distance away from the homestead. This was not supported by the accused persons‟ testimony in court. They all said there was no pen but a crumbled kitchen in the vicinity of the yard. The donkeys were in the same yard sanguaged by and in the proximity of the only two dwelling buildings on this compound. Sequentially, the first accused said that the presence of the deceased was heralded by the barking of dogs which awakened him alone prompting him to go outside. When he was outside, he saw the deceased already harnessing the donkeys. The deceased saw him and he, the first accused threw the first brick. He later went in to inform the second accused and together they planned to approach the deceased from different angles, one from the b