S v Mathe (HB 26 of 2017; HC CRB 90 of 2014; XREF GOKWE CR 163 of 2008) [2017] ZWBHC 26 (25 January 2017)

1 HB 26-17 HC (CRB) 90-14 XREF GOKWE CR 163-06-08 THE STATE versus DOUBT MATHE HIGH COURT OF ZIMBABWE MATHONSI J GWERU 24 AND 25 JANUARY 2017 Criminal Trial T Mupariwa for the state A Chihiya for the accused MATHONSI J: The deceased was employed as a security guard by Grafax Cotton Company, a Gokwe North cotton buying entity operating at Mutengate buying point, charged with the responsibility of guarding premises housing employees of the company and its property. At the young age of 24 he must have died a lonely and painful death at the hands of a gang of robbers that attacked him as he stood sentinel over his employer’s property on the night of 14 June 2008. Using a hoe handle the gang bludgeoned him directing the blows to the head and rendering him unconscious. He later died of severe brain haemorrhage and skull fracture due to the assault. The state alleges that the accused who was then aged 21 years and residing at Zunguziva village under Chief Chireya in Gokwe North was one of the gang of three robbers who attacked and killed the deceased. He is charged with murder in contravention of s47 (1) of the Penal Code [Chapter 9:23]. The state case is that the accused teamed up with two accomplices one of whom is at large and the other is deceased. They confronted the deceased at his guarding post. They attacked him with a hoe handle several times of the head inflicting injuries from which he later died. After rendering the deceased unconscious they proceeded to the house where Winnie Sigwala, a cotton buyer, was sleeping. HB 26-17 HC (CRB) 90-14 XREF GOKWE CR 163-06-08 They forced their way in before threatening to kill her like they had done to the deceased while demanding money. When they were directed to the kitchen they broke the kitchen unit door with a metal bar and took Z$50 billion. They also took two solar inverters and a generator which they stuffed into a bag belonging to Sigwala before making good their escape. The accused was arrested later that day with one of his accomplices by a track team of villagers that had been constituted for that purpose. The stolen property was all recovered at the scene of their arrest. The accused has pleaded not guilty to the charge and stated in his defence outline that he was in fact a victim of circumstances as he happened to be at the wrong place and very wrong time resulting in his arrest for something he knew nothing about. He states that at the time that the deceased was attacked he was about 120 km away from the scene of crime at Chitekete Area under Chief Chireya in Gokwe North. What led to him being caught in cross fire is that his mother sent him to buy peanuts which were in abundance in Chief Sayi’s area in Gokwe South. Boarding a lorry in the early hours of 15 June 2008 in pursuit of the much needed peanuts he arrived in Chief Sayi area at around 1100 hours. At Gokwe Centre he enquired from an unknown woman as to where he could buy peanuts. The woman gave her advice to go around the nearby village looking for them. It was while he was conversing with two men on the outskirts of the village asking after the peanuts that the track team caught up with them. They were assaulted and asked about the stolen property resulting in one of the two men, Attend Tanyanyiwa leading them to a place where the stolen property was recovered. One of the two men escaped but Tanyanyiwa later died as a result of the assault. The accused maintains that he knows nothing about the offence. Indeed he was once charged with robbery in connection with the same matter but was acquitted by the Regional Court in Gokwe. The state produced the post mortem report compiled by Dr I Jekenya of Mpilo Hospital in Bulawayo who conducted the examination of the deceased’s body. The doctor observed a swollen left side of the head, multiple fragmented fractures of the left temporal and parietal bones around the left ear. He also observed massive left parietal and temporal brain HB 26-17 HC (CRB) 90-14 XREF GOKWE CR 163-06-08 haemorrhages. He noted that severe forces were used to inflict those injuries before concluding that the cause of death was: “(a) (b) (c) severe brain haemorrhage skull fractures assault.” The state also produced the weapon allegedly used to assault the deceased, a vicious hoe handle robust enough to weigh 0,750 kg with a length of 83cm. Its handle has a circumference of 12cm while its head 19cm. In addition three witnesses testified on behalf of the state. It was the evidence of Winnie Sigwala that she has been employed by Grafax Cotton company as a cotton buyer at Mutengate buying point for 15 years. On the night of 14 June 2008 herself and other employees of that company who included the deceased and one Tonisi Sachingoma had earlier on whiled up time at the house where they resided located at the buying point after a day’s work before retiring to bed later that night. They left the deceased outside standing guard over the house and cotton bales. She had with her three small children one of whom was a breastfeeding baby. She was awakened by the shouts of a voice which sounded familiar although in the heat of the moment she could not figure out whose voice it was. The person who was shouting had already broken into the house and found his way in. It turned out that two men had already entered the house, one was standing by her bedroom while the other was in the dining room. They shouted that they were robbers who had already killed the guard outside, they wanted money which they would collect from her. After getting the money they would kill her too the way they had killed her colleague outside the house. Trembling she says she carried her baby and led the robbers to the kitchen unit where the money was kept. They broke it down and beheld $50 billion in Zimbabwean currency which they took. They also took two inverters which were there before demanding a bag in which to put their loot. She pointed to the baby bag which had baby clothes which they emptied before stuffing the money in it. Sigwala testified that the place was illuminated by a paraffin lamp which was almost dying. One of the robbers snatched that lamp from the bed room and carried it to the kitchen. When they were looting he put it on the floor. It was then that she observed that one of the HB 26-17 HC (CRB) 90-14 XREF GOKWE CR 163-06-08 robbers who had been shouting the most and later turned out to be Attend Tanyanyiwa, a well known local person who was known to be in prison for the murder of his own child, had been putting on white trainers. His companion, who later turned out to be the accused person herein, was putting on blue push ons. That observation proved useful later upon the arrest of the accused and Attend Tanyanyiwa because when they were brought back to the scene she was able to identify them by the feet apparel they had on. After they had looted the robbers shouted that she should also be killed. One of them ordered her to put the child down as he feigned three blows with a knife but she clutched onto the child. This must have discouraged the attacker who eventually ordered her to lie on the floor facing down. She complied and the robbers left the house. Later after the robbers had left they investigated the issue and found the deceased badly injured and lying by the cotton bales. The hoe handle had been thrown away somewhere at the verandah. They also realized that the generator which had been outside the house was stolen as well. Together with the other employees they reported the matter to the village head and later to the police. Meanwhile using a torch they had observed footprints next to where the deceased was lying, by then he had not died but his head had been battered. It was swollen together with the face. They spotted three different sets of footprints which were visible even by the windows of the house. As the area is of sandy soils the footprints were distinct even as they left the scene. Accordingly they were able to use big d