S v Maunde and Another (852 of 2022) [2022] ZWHHC 852 (23 November 2022)

1 HH 852-22 CRB 25/22 THE STATE versus JACOB MAUNDE and LEORNARD JAMBWA HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE, 9, 10, 11 May & 23 November 2022 ASSESSORS: Mr Chimonyo Mr Gweme Criminal Trial T Mukuze, for the State C Damiso, for accused 1 M Moyo, for accused 2 MUTEVEDZI J: The two accused persons were initially jointly charged with two others. They all faced the crime of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (The Criminal law Code). Just before the court could pass judgment accused 2 defaulted. The prosecutor applied for a warrant of arrest to be issued against him which the court did. The State further applied for a separation of trials to enable the court to pass judgment in relation to accused 1. The application was granted. The verdict at the end of the judgment therefore relates to accused1 only. On the allegations the State alleged that one or both of them unlawfully assaulted Clever Muuduri all over his body with fists, booted feet and an iron bar, realising that there was a real risk or possibility that their conduct may cause death but persisted with that conduct despite the real risk or possibility. The deceased succumbed to the injuries he sustained from the assault. Their two colleagues were acquitted at the close of the prosecution case. HH 852-22 CRB 25/22 Both of the accused pleaded not guilty to that charge. Accused 1’s defence outline was that there was a history of strife and sour relations between him on one hand and the deceased and his father on the other. He said on the fateful day, he was drinking a locally brewed illicit drink commonly called chikokiana at the home of Yeukai Chigomero. He was in the company of accused 2 and Spencer Dube who was accused 3 in this case before his acquittal. At the beer drink, a scuffle brewed between deceased’s father Nhamo Muuduri and accused 2. The fight only ended after the intervention of other imbibers. The deceased and his father left the beer drink and proceeded to their homestead. During the fight the deceased had struck accused 1 with a knobkerrie. A while after the deceased and his father had left, accused 1 and 2 also left headed to their respective homesteads. Their route home took them past Nhamo Muuduri and the deceased’s homestead. As they passed that homestead, the deceased and his father suddenly emerged, one brandishing an axe and the other a knife. They chased after the accused persons. They were aggressive and menacing. The accused feared for their lives. Because of that fear, accused 1 says he outran his colleague accused 2. After some distance, he realised that his friend could be in danger. He turned back to check on him. He then found that a fight between his friend on one hand and the deceased and his father on the other was ongoing at the homestead of Spencer Dube who was accused 3. Accused 2 was being severely assaulted. The assailants had managed to tie a rope around his neck and were chocking him. Accused 1 says he then had no choice but to attempt to rescue his friend. He kicked the deceased in the chest. The deceased fought back by attempting to strike accused 1 with an axe. Before the axe hit him, accused 1 said he struck the deceased with an iron bar on the head which he had picked from the ground at the ‘battle field’. He said he had no intention to kill the deceased. When he struck him, he was only defending himself. He genuinely thinks that if he had not taken that action it was him who could have died that day. Accused 2 said he only knew the deceased as a member of the community he lived in. There was nothing else between them. He also denied attacking the deceased or causing his death. Instead, he alleged that the deceased and his father were the assailants who actually wanted to kill him. He stated that he was rescued by accused 1 from being killed by the deceased. He was also rescued by Spencer Dube and Adrien Kugara from the attacks by deceased’s father. Whatever he did, he was acting in self-defence. The State’s case HH 852-22 CRB 25/22 The state opened its case with an application to tender the post-mortem report compiled by the pathologist who examined the remains of the deceased to ascertain the cause of death. It was uncontentious. We duly admitted it. The prosecutor also applied to produce the accused persons’ confirmed warned and cautioned statements. There were no objections by the defence and the statements were accordingly admitted into evidence. There is nothing spectacular about the statements. They are a replica of both accused persons’ defence outlines. Additionally the state sought to produce the certificate of weight of the weapon that was used to strike the deceased. Again there were no protestations by the accused. Oral testimonies were called from witnesses as shown below. Their evidence is paraphrased. 1. Nhamo Muuduri (Nhamo) Nhamo was father to the deceased. His evidence from the time he picked a fight with accused 2 when they were drinking chikokiana until he left for his homestead falls squarely into the defence outlines of accused persons. It begins to take material differences from the time the accused passed through his homestead enroute to their respective homes. He said when they were passing through, they threatened the deceased by telling him that they would haunt him until he walked in the air. Nhamo said then, he was in his maize field. They exchanged insulting words with the deceased. The accused continued walking towards Spencer Dube’s homestead. The deceased who apparently did not take the insults lying down followed the accused. Nhamo said he called after him to restrain him but the deceased did not take heed. He pursued the accused. Accused 1 and 2 were both running away with the deceased chasing them. The witness said it was then that he decided to follow them. The chase led both the hunter and the hunted to Spencer Dube’s homestead. There the deceased and accused 2 got into a fight. It was at that stage that Spencer Dube arrived. He noticed Nhamo attempting to restrain the two fighters. Spencer proceeded into one of the houses where he pulled out an iron bar. He walked to where Nhamo was trying to separate the fighters. He dropped the bar. Adrian Kugara, who was accused 4 before his acquittal struck Nhamo with a brick. In the meantime, Spencer was also hitting the witness with a machete and at the same time holding him by his dreadlocked hair. Accused 1 picked up the iron bar which had been dropped on the ground. He hit the deceased with it. Nhamo added that he could not move closer because he was unable to walk after being assaulted by accused 3. The deceased fell down. The accused threw bricks at him and mocked Nhamo that he was now on his own because his defender was stricken. The witness said the deceased was struck with the iron bar three times. His uncle and wife later arrived and together they ferried the deceased to hospital where he was pronounced dead on arrival. A HH 852-22 CRB 25/22 report was then made to the police. Whilst denying that there was bad blood between him and the accused persons, he confirmed that one of the accused persons was in love with his minor daughter and he had reported them both to the police and to the village head. He denied that the accused had either been provoked or were defending themselves. He was extensively cross examined. 2. Andrew Sonto He corroborated the skirmishes between accused 2 and Nhamo at the beer drink. His evidence also supported the accused’s defence outlines. He was together with the accused as they went home using the route that passed through Nhamo’s homestead. When they got there Nhamo and the deceased chased accused 1 and 2. The two ran away because they feared that the deceased and his father had weapons. The witness said Spencer, Adrian and he followed from behind as the deceased and his father chased the accused. Nhamo was holding a weapon commonly referred to as an okapi knife. Spence