S v Makuchete & Ors (HMA 7 of 2021; REF HC CRB 120 of 2016; REF HC CRB 18 of 2016) [2016] ZWMSVHC 7 (23 November 2016)

1 HMA 07-16 Ref Case No HC/CRB/18 – 20/16 THE STATE versus BERNARD MAKUCHETE and RICHARD MAKUCHETE and RABSON MAKUCHETE HIGH COURT OF ZIMBABWE MAFUSIRE J MASVINGO, 26 & 27 October 2016; 7 & 23 November 2016 Criminal trial Assessors: Messrs Mushuku & Dhauramnzi Mr T. Chikwati, for the State Mr T. Gondo, for the second accused MAFUSIRE J: Accused 2, Richard Makuchete [“the accused], aged 25 years at the time, was one of three brothers arrested for the murder of their cousin, Zvinowanda Zvinowanda [“Deceased”]. The murder happened in rural Masvingo under Chief Chikwanda. By the time of trial only the accused was available. The allegations were that on 10 May 2014, following a beer drink, the accused and his two brothers, or one or other of them, unlawfully caused the death of Deceased by striking him with knobkerries and a slasher all over the body, intending to kill him or, despite realising the real risk or possibility that their conduct might cause death, continued with it. The accused pleaded not guilty. The State called six witnesses. Four gave viva voce evidence. The other two, who included the doctor who conducted the post mortem examination on Deceased, had their evidence admitted by consent. The first and, obviously, the star witness for the State was Edward Zvinowanda [“Edward”]. He was Deceased’s brother. On the day in question he and Deceased were drinking traditional beer at a certain homestead. The accused and his two brothers were also HMA 07-16 Ref Case No HC/CRB/18 – 20/16 drinking there, but not together with Edward and Deceased. At some stage, Bernard Makuchete [“Bernard”], aged 21 years, the youngest of the three brothers, stood up from their drinking place, approached Edward and Deceased and provoked a fight. He accused Edward of having assaulted him previously. In court Edward said that that incident had happened way back in 1989 when both he and Bernard were still youngsters. We note in passing that from 1989 to 2014 it was twenty-five years. So, if Bernard was twenty-one years old at the time of the offence, then in 1989 he had not yet been born. However, Edward was not categorical that the incident had happened in 1989. It was purely an estimate that he gave when pressed by Counsel. Back to the fight. Bernard slapped Edward twice. The two started fighting. The accused and the third brother, Rabson Makuchete [“Rabson”], aged 23, joined on Bernard’s side. Deceased, who at 44 years old was the oldest of the lot, intervened and quelled the fight. Bernard turned on him. He accused Deceased of having destroyed his first marriage by snatching his first wife. He also accused Deceased as the author of the continuous misfortunes in his life. In court it transpired from the testimonies of Edward, Deceased’s wife, Tecla Matema [“Tecla”], and even the accused himself, that the incident relating to Deceased allegedly having had an affair with Bernard’s wife had been almost a decade old. Edward said it was 2007. Again we note that then Bernard would have been only about fourteen years old. But again Edward was just estimating. The brawl eventually died. But the accused and his brothers continued to scold Edward and Deceased. The accused in particular, said omniously that it was not the end of the matter. Edward and Deceased decided to leave. The time was around 15:00 hours. The accused and his brothers followed them. At Deceased’s homestead the three milled around the edge of the fields shouting. Deceased invited them inside the house. He wanted them to discuss and resolve the issue amicably, seeing that they were all members of the same family. These two sets of brothers were first cousins. Their respective fathers had themselves been brothers. The three accused persons refused to enter Deceased’s house. Later on they left for their own homes. Deceased, Edward and their wives had supper together with another cousin, Munyori Zvinowanda [“Munyori”], who had called on them. Munyori was the other State witness whose evidence was admitted by consent. After supper Deceased and Edward walked Munyori to his own home. The time was now around 19:00 hours. There was plenty of moonlight. The three used a footpath that passed through the accused’s homestead. On their way back, the accused and his brothers confronted HMA 07-16 Ref Case No HC/CRB/18 – 20/16 Deceased and Edward. The three were all armed with wooden knobkerries. Each of those knobkerries comprised a 10 to 12 cm long head and a shaft about 90 cm to a metre long. In addition, the accused was armed with a metre long metal slasher with a rubberised handle. The slasher was angled at the tip. With no prior ado the accused struck Edward on the top of his head with the knobkerrie with so much force that it immediately snapped. The accused turned to the slasher. He struck Edward between the eyes. Edward fell down. The accused turned to Deceased, He struck him twice with the slasher. His two brothers joined in. Together they randomly struck Deceased with their knobkerries and the slasher all over the body. Deceased fell down. They continued to assault him until he went limp. They had been at him for about 10 minutes. Meanwhile, Edward lay bleeding some six to eight metres away. But he said he could observe everything. Tecla and Vimbai Sithole, Edward’s wife [“Vimbai”], had crawled out of their hiding place in the maize field and had silently encroached closer to the scene. Bernard noticed them. He chased after them but failed to catch up with them. He came back and ordered Edward to carry Deceased home. Deceased was lying face down, lifeless. Edward was himself in no state to lift Deceased on account of the assault on his own person. He staggered to Deceased’s homestead and found both Tecla and Vimbai waiting. Upon telling them that Deceased had died, Tecla started wailing. The noise attracted other villagers. They congregated at Deceased’s homestead. Eventually Edward was ferried to hospital where he was admitted for two days. A report was made to the police. They came immediately. But all the accused persons had fled. However, they were all apprehended four days later at their uncle’s homestead in another chiefdom. Edward said all the three accused persons were subsequently tried in the magistrate’s court for the attempted murder of himself. He said he gave similar evidence. But he did not know the exact outcome of that case, save to say that the accused was sent back to custody and his two brothers released. The next State witness was Tecla. The material portions of her testimony were that she witnessed the assault of both Edward and Deceased from start to finish. Together with Vimbai they had crawled to the edge of the maize field near the accused’s homestead. They had been attracted by the noise of the struggle. Amid a mixture of thuds, shouts and swears the accused’s voice was the sharpest and most dominant. The accused was making constant reference to the Deceased having taken Bernard’s first wife. He was saying Deceased was going to pay for it that day. HMA 07-16 Ref Case No HC/CRB/18 – 20/16 Tecla said when she married Deceased, the issue of his having taken Bernard’s first wife had been talk of the village. She had no first-hand knowledge of it. She had heard that the wife in question had been questioned about it by a village court but that she had completely denied any affair with Deceased. Tecla’s testimony corroborated that of Edward virtually in all material respects. She stressed that at no stage did Deceased try to retaliate or defend himself, a detail that Edward had also mentioned. From their evidence, it seems when the first blow caught him, Deceased’s one hand was still inside his trousers’ pocket. He must have died like that because when the body was examined the following morning, the hand was still inside the pocket. The only slight difference between Edward’s testimony and that of Tecla was on who, of the three accused persons after they were done assaulting Deceased, had chas