S v Mandivenga & 6 Ors (CRB 14 of 2020; CRB 8 of 2020; HMA 34 of 2020) [2020] ZWMSVHC 34 (17 July 2020)

1 HMA 34-20 CRB 8 – 14-20 THE STATE versus ELLIOT MANDIVENGA And HARDLIFE KURIRAI And JONATHAN MUSIIWA And COSMAS NYAMBI And GIVEN TARU And MUNYARADZI LAITON BEN MUSHONI And FARAI MUSIMHI HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO, 10, 11, 13, February, 22, 23 June & 17 July 2020 Criminal Trial Assessors 1. Mr Nish 2. Mr Chikukwa T. Chikwati and B. E. Mathose for the State M. Vengesa for all 7 accused MAWADZE J: All the 7 accused are facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. HMA 34-20 CRB 8 – 14-20 The charge is that on 27 June, 2019 at Pisirai Village, Headman Makonese, Chivi, Masvingo each one of them or more of them caused the death of Wellington Zibako by assaulting him with switches, and a whip all over the body intending to kill him or realising that their conduct may cause death but continued to engage in that conduct despite such risk or possibility. The now deceased was 21 years old and residing in Muzondo Village, Headman Makonese, in Chivi. All the 7 accused reside in Pisirai Village, Headman Makonese in Chivi. At the material time accused 1 Elliot Mandivenga was 52 years old; accused 2 Hardlife Kurira was 27 years old; accused 3 Jonathan Musiiwa was 44 years old; accused 4 Cosmas Nyambi was 24 years old, accused 5 Given Taru was 31 years old, accused 6 Munyaradzi Laiton Ben Mushoni was 55 years old and accused 7 Farai Musimhi was a juvenile aged 17 years. During the trial accused 7 Farai Musimhi’s, mother Sheila Taru was present throughout because he is a juvenile. The agreed facts which emerge from the trial can be summarised as follows; On 26 June, 2019 the now deceased disappeared from his residence and his parents could not locate him for 2 days. His body was only found on 28 June, 2019 in a bush at about 1100 hrs. It them emerged that on 26 June, 2019 the now deceased intruded into accused 6 Munyaradzi Laiton Ben Mashoni’s homestead where he allegedly broke a window pane and stole a solar panel. This homestead has a durawall almost 2 metres high, is gated and the now deceased is said to have intruded into this homestead through an undesignated point. At the material time when the now deceased intruded into accused 6’s Munyaradzi Laiton Ben Mushoni’s homestead only accused 1 Elliot Mandivenga and accused 4 Cosmas Nyambi were at this homestead. It is these two who apprehended the now deceased. Accused 2 Hardlife Kurira and accused 7 Farai Musimhi only rushed to accused 6 Munyaradzi Laiton Ben Mushoni’s homestead after the now deceased had been apprehended and accused 1 Elliot Mandivenga and accused 4 Cosmas Nyambi had shouted that they had apprehended a thief. Accused 3 Jonathan Musiiwa, accused 5 Given Taru and accused 6 Munyaradzi Laiton Ben Mushoni had gone to Chivi growth point using KIA bakkie belonging to and driven by accused 6 Munyaradzi Laiton Ben Mushoni. They arrived soon after the now deceased had been HMA 34-20 CRB 8 – 14-20 apprehended. The now deceased was apprehended at night. Accused 6 Munyaradzi Laiton Ben Mushoni who used to work in South Africa was residing at his homestead with his aged mother. His wife resides in South Africa. The aged grandmother was not present on that day. Accused 6 Munyaradzi Laiton Ben Mushoni employed accused 1 Elliot Mandivenga whom he stayed with as a herd boy. He is related somehow to all other accused persons. Accused 2 Hardlife Kurirai is a son of his cousin, accused 3 Jonathan Musiiwa is his nephew; accused 4 Cosmas Nyambi is his neighbour whom he normally gave piece jobs; accused 5 Given Taru is his nephew and accused 7 Farai Musimhi is his nephew and neighbour. For easy reference I shall refer to accused 1 Elliot Mandivenga just as Elliot; accused 2 Hardlife Kurirai as Hardlife, accused 3 Jonathan Musiiwa as Jonathan, accused 4 Cosmas Nyambi as Cosmas, accused 5 Given Taru as Given, accused 6 Munyaradzi Laiton Ben Mushoni as Mushoni as Mushoni and accused 7 Farai Musimhi as Farai. After the now deceased had been apprehended at accused 6 Mushoni’s homestead all the 7 accused assaulted him at this homestead. What is in issue is how each of the accused assaulted the now deceased at this homestead, that is the manner and extent of the assault. It is common cause that after the assault at accused 6 Mushoni’s homestead the now deceased was ferried in accused 6 Mushoni’s motor vehicle to some point into the bush. The motor vehicle was driven by accused 6 Mushoni who was seated in the cabin with accused 4 Given. The now deceased was in the loading box with accused 2 Hardlife, accused 3 Jonathan and accused 5 Given. It is not in issue that accused 1 Elliot and accused 7 Farai remained at accused 6 Mushoni’s homestead when all other accused left with the now deceased in accused 6 Mushoni’s motor vehicle. It is common cause that that after leaving accused 6 Mushoni’s homestead the now deceased was further assaulted and abandoned in the bush where he died. What is in dispute is who assaulted the now deceased at that stage and the manner of the assault. Lastly all the 7 accused have put into issue the cause of the now deceased’s death. Put differently, they all disputed that the assault they perpetrated on the now deceased has a nexus to his death. HMA 34-20 CRB 8 – 14-20 The state case is that after accused 1 Elliot and accused 4 Cosmas apprehended the now deceased at accused 6 Mushoni’s homestead they tied him on both hands with a rope and assaulted him. The other accused then arrived at the homestead and took turns to assault the now deceased with a whip and open hands indiscriminately at this homestead. Thereafter it is the state case that the now deceased was taken by accused 2 Hardlife, accused 3 Jonathan, accused 4 Cosmas, accused 5 Given and accused 6 Mushoni in accused 6 Mushoni’s motor vehicle to Chibhanguza Village, Headman Makonese, Chivi where the motor vehicle was stopped and the assault of the now deceased continued. The now deceased was then abandoned in the bush where he passed on only for his body to be discovered on 28 July, 2019 at about 1100 hrs. Police investigations led to the arrest of all 7 accused and the recovery of various exhibits including blood stained whips and switches. The state alleges that the now deceased sustained various injuries inclusive of the head injury and fractured neck which were the proximate causes of his death. In order to buttress its case the state called Judith Tavarera, Collen Zibako, Special Constabulary Tobias Taru, Dr Godfrey Zimbwa, D/Cst Wilbert Maruva and D/Sgt Nxumalo Mxolisi as state witnesses. All the 7 accused gave evidence and did not call any defence witnesses. A total of 14 Exhibits were produced by consent. They are as follows; Exhibits 1 to 7 are accused persons ‘confirmed warned and cautioned statements. I shall assess their probative value or relevance in dealing with all 7 accuseds’ evidence. Exhibit 8 a is post mortem report. I shall assess its probative value in dealing with Dr Godfrey Zimbwa’s evidence and the cause of the now deceased’s death. Exhibit 9 is a bunch of switches. We noted that these switches are broken, not very thick and of various sizes. They were recovered at the scene near where deceased’s body was found. It is not in dispute they were used to assault the now deceased. Exhibit 10 is a pair of accused 5 Given’s tackies which he worn on the day in question and were taken by police during investigations as they were blood stained. Exhibit 11 is the now deceased’s bag containing the now deceased’s clothes. It was recovered in the bush near the now deceased’s body. HMA 34-20 CRB 8 – 14-20 Exhibit 12 is sjambok or whip. It was recovered at accused 6 Mushoni’s homestead at accused 6 Mushoni’s instance. It is common cause it was used to assault the now deceased. Exhibit 13 is a long green rope. Again it was recovered at accused 6 Mushoni’s homestead at his instance and it is common cause of was used to tie the now deceased. Exhibit