S v Katsande and Another (121 of 2024) [2024] ZWHHC 121 (22 March 2024)

1 HH 121-24 CRB 88/23 THE STATE versus FARAI KATSANDE and OWEN KATSANDE HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE, 22 March 2024 Assessors: Mr Kunaka Mr Jemwa Criminal Trial M Furidze, for the State S Muyemeki, for the 1st accused D Zondesa, for the 2nd accused MUTEVEDZI J: The two accused in this case Farai Katsande and Owen Katsande are brothers. They lost some property at their residence and allegedly went on a rampage assaulting people they suspected of having stolen it. When they thought they were sure it was their nephew Robert Nyatsine (the deceased) who had deprived them of their valuables, they cornered him, severely assaulted him and inflicted mortal injuries which took his life. Formally the charge against them was that in contravention of s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), the accused persons each or both of them, with intent to kill or realising that there was a real risk or possibility that their conduct could lead to death but persisting with that conduct despite the realisation of the risk or possibility assaulted Robert Nyatsine with electrical cables and wires all over his body. They inflicted injuries from which Robert Nyatsine died. If it is accurate, the summary of allegations by the prosecution is the definition of one taking the law into one’s hands. The State alleged that on 27 October 2018, the accused persons, together with William Chiturumani and Rudo Chavaruka kidanppeed Christopher Mlauzi and Ali Yosini after accusing them having stolen their musical instruments called a subwoofer and a speaker. They kept the two incommunicado for hours on end and only released them on 28 October after they realised that their victims knew nothing about the HH 121-24 CRB 88/23 theft. Undeterred, on 31 October 2018, the two accused persons then apprehended the deceased on the same allegations of having stolen their musical instruments. They took him to their house. There the deceased was subjected to the same fate as Christopher and Ali. He was assaulted with electrical cables and wires. He was badly injured and when reason dawned on them the second accused went to file a police report. When police attended the scene, they discovered that the deceased was lifeless. A post mortem was conducted on the remains of the deceased on 7 November 2018. The pathologist’s findings were that death had occurred as a result of head contusion, left parietal, subarachnoid haemorrhage (which means the deceased was bleeding in the space which surrounds the brain) and multiple injuries. Both accused tendered pleas of not guilty. Farai Katsande (the first accused) alleged that the deceased was their nephew. On the day in question around midnight, the deceased came to their residence. He was slightly swollen and bruised. His explanation for the injuries was that he had fought with some people at Chikwana Shops. He wanted a place to sleep. The first accused said they offered him one of the bedrooms which were not in use at their house. The first accused said the following morning he woke up early to attend to his wares at Zengeza 2 Flea Market. He did not bother to check on the condition of the deceased. He was surprised to return later to find police officers at their residence. Owen Katsande (the second accused) equally denied the allegations. His story was similar to that of the first accused except that he was specific in terms of the time that the deceased approached their house seeking a place to sleep. He said it was around 0400 hours. The deceased confessed to him that he had he had been beaten by a mob at Chikwanha shops after a misunderstanding over one of the patrons’ phone. The next morning, he said he woke up around 0630 hours to tend to his business of the day. He checked on the deceased. He observed the deceased had difficulties in breathing and clearly required medical attention. The first accused then left some money for the second accused to take the deceased to St Mary’s clinic. Before he could take the deceased to hospital, the second accused said he went to the police to get authorisation for that because clinics refuse to attend to people who may have been injured through assaults or in the commission of crimes without police clearance. At the police, the second accused said he got the necessary documentation and was accompanied back to his residence by two police officers. On arrival, they found the deceased lying on the veranda of the house. One of the police details examined the deceased and noted that he had died. The second accused said he then travelled to a place called Bora to inform their relatives. He was only arrested over a year later accused of the murder of the deceased. HH 121-24 CRB 88/23 The State Case The prosecutor commenced her case by applying to produce the post mortem report compiled by Doctor Yeghlin Iglesias. His conclusions after the examination were as already stated. Thereafter she led oral evidence from various witnesses. We summarise the relevant aspects of the witnesses’ evidence below. Ali Yosini He is a twenty-nine-year-old barber, who was unfamiliar with both accused before his ordeal at their hands. He said on 27 October 2018, the night he was kidnapped, the second accused came to his room and knocked on the door.  He was in the company of three other people who were not charged with this murder. One of those people was clad in army uniform. The witness said they group advised him that they wanted to take him to the police for questioning. He agreed but told them that he wanted to first inform his parents. He knocked on his mother’s door and accordingly advised her. He was surprised along the way when his kidnappers’ story changed. The surprises were not over because on arrival at the accused persons’ house, he was advised that they also had his friend in their custody. He was accused of stealing their speakers. He said he told them he knew nothing about what they were saying. He flatly denied having stolen their speakers. They immediately began assaulting him. They assaulted him the whole night demanding their speakers. During the assaults, one of them reasoned that the door had not been broken when the items were stolen which meant that the person who had stolen the instruments had gained entry using keys and then put them back where they stayed. It was then that the deceased’s name was mentioned and it was alleged the witness and his friend had teamed up with Robert to steal the gadgets. The beating only stopped the next day. The witness said accused one did not assault him but he was present all the time. His main assailants were accused two and the other three people whose names he does not know. His friend, Christopher Mlaudzi was also severely assaulted. The witness said he was injured and taken to hospital. He denied knowing Robert Nyatsine with whom they alleged he had connived to steal. During the assaults, the witness said they cried for help until the accused persons’ neighbours got worried and started peeping over to see what was taking place. It was only then that they were released. Their assailants used electric cables, car jumpers and broom sticks to beat them. When they released them the accused were muttering that it was Robert who had stolen their speakers. They were sure that with the thorough assaults meted on both him and his friend, they would have divulged where the speakers were if they knew anything about them.  Ali said he got home and went straight HH 121-24 CRB 88/23 into his bedroom. He had been so severely assaulted that although the accused’s place is only thirty minutes’ walk away from his it had taken him and his friend very long to get home. At times they couldn’t walk and had to crawl. The following morning his mother came to his bedroom. He explained to her what had happened. She took him to hospital where they asked for a police report. They later went and lodged a formal police report. The accused later came to the