S v Muteve (234 of 2022) [2022] ZWHHC 234 (29 March 2022)

1 HH 234-22 CRB 9192/16 THE STATE versus FELIX MUTEVE HIGH COURT OF ZIMBABWE FOROMA J HARARE, 12, 13, 14, 19 February 2019 & 25 & 29 March 2022 Judgement H M Muringani, for the state S Makonyere, for the accused FOROMA J: Accused is called Felix Muteve. He was jointly charged of murder of one Jemias Bangu together with four others it being alleged that on 02 July 2016 at Sam Marange’s car park the accused persons unlawfully and with intent to kill caused the death of Jemias Bangu by assaulting him with blunt objects and an umbrella stick thereby causing injuries from which he died. The five accused each pleaded not guilty to the charge. Second, third, fourth and fifth accused were discharged at the close of the state case and first accused was put on his defence. The evidence against the accused 1 consisted of the following: a) The post mortem report by Dr Gonzales produced by consent as Exhibit 1. b) Evidence of one Peter Taruona as summarized in the state summary which was produced by consent in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The said evidence as admitted was as follows: “he will state that he is a duly attested member of the Zimbabwe Republic Police stationed at Kuwadzana police station. In the company of Constable Makumbe they arrested the accused persons at Whitehouse”. c) oral testimony of one Maxwell Rafemoyo and Simon Chivere the Investigating Officer. Maxwell Rafemoyo gave evidence under oath to the following effect - that he resides at number 419 Kuwadzanan 5. He did not know the deceased during his lifetime. He knows accused 1-3 as he worked with them at a car park. Accused 4 owned one of the car parks where he worked and was a long time neighbour of his. HH 234-22 CRB 9192/16 He only got to know accused 5 at some point they were jointly charged. He testified that towards sunset on 1 July 2016 accused 4 requested him to man his car park as he wanted to go to his other car park at Kuwadzana Extension to which he agreed and remained manning the said car park until 4th accused returned from Kuwadzana Extension. The witness indicated that he was a plumber and used to wash cars and sell firewood at accused 4’s car park. Accused 4 left about 6:00p.m. and returned about 11:00 p.m. and took over the car park from the witness whom he excused and suggested he goes home to sleep. The witness did not go home but instead slept in a bus which he was meant to wash the following morning. Between 1:00 a.m. and 2:00 a.m. he heard someone screaming that they had seen a thief. In response he woke up and went to a fire place at Sam Marange’s car park. On enquiring as to accused 4’s whereabouts he was told accused 4 had gone to the car park where a thief had reportedly been spotted i.e. at Tererai Muteve’s car park. He too went to Tererai Muteve’s car park where he found the now deceased leaning against a pre-cast wall. He observed that the now deceased was drunk. The witness enquired as to who the person leaning against the wall was and 2nd accused reported that it was the thief they had found in the car park and that the alleged thief had attempted to flee and they had apprehended him. The witness asked the alleged thief who he was and he replied that his name was Jemias Bangu and the witness ordered the alleged thief to sit down which he did. As the witness was trying to verify the alleged thief’s identity, accused 1 assaulted the alleged thief with a switch which the witness described as an 80cm long by 5cm diameter guava tree switch. The witness described the assault as “struck the alleged thief on the side of the head” and he tried to retrain him. The witness asked why accused 1 was assaulting the now deceased and 1st accused replied that he was a thief. As the witness was perusing the identity document produced by the now deceased accused 1 struck the deceased again on the temple and the deceased started bleeding which was an indication that the assault had caused an injury to the now deceased’s head. It was also the witness’ evidence that on delivering the second blow to the now deceased accused 1 was then restrained by accused 2 and 3. The deceased protested at the assault by asking the 1st accused whom he addressed by name to stop assaulting him as he was not a thief. It was only then that it occurred to the witness that the now deceased actually knew accused 1 by name. Accused 1 however insisted that the now deceased was a thief. When the witness established that in all probability the now deceased had strayed after missing his cardinals due to HH 234-22 CRB 9192/16 drunkenness he got him to stand up and tried to show him the way. As the witness was showing the alleged thief his direction to his residence, accused 1 objected to deceased being allowed to go away. Some exchange took place between the witness and accused 1 over whether the alleged thief was a thief with the witness pointing out that the man may have genuinely lost his way as he was drunk. After some heated argument the 1st accused insisted that the witness should not interfere as he was not on duty and should leave those on duty to handle the matter. The witness then decided to withdraw from the matter and left the now deceased in the custody of first accused and second and third accused and he proceeded to fourth accused’s car park where he found fourth accused and fifth accused by fire. While by the fire the witness established from accused 4 and 5 that they did not believe the alleged thief was a real thief. While by fourth accused’s car park at the fire place the witness noticed first accused arrive with second and third accused and the alleged thief (the now deceased) and first accused insisted that the now deceased was a real thief. It was eventually agreed that the deceased would be detained overnight and be taken to the police at day break. The witness urged those who had brought deceased to the fire place that if they would not release the deceased to go they should desist from assaulting him further. The witness claims that he washed the deceased’s face before he left to sleep and noticed that the now deceased had sustained an injury to the skin on his temple. The witness then left the now deceased by the fire at the 4th accused’s car park and went to the bus where he slept. The witness also testified that all this took place around 3.00 am. Before day break accused 2 approached him twice in the bus. Initially he informed him that the boys were still assaulting the now deceased and the witness suggested that he stops them. The witness however indicated that he could not come to help as accused 1 had warned him against interference as he was off duty. Before the second accused returned to him in the bus that morning the witness heard someone shouting (Uyo! Uyo!) (there he is, there he is) suggesting someone was escaping. Before long the second accused approached the witness again at the bus where the witness was sleeping and reported that the now deceased tried to escape but he was apprehended and some of the people at the fire were contemplating cutting his legs and hands and believed that deceased may have already had one of his legs broken. Accused 2 did not indicate by name who was involved in assaulting the now deceased. Not long after second accused had left the bus the witness woke up to fill his tank with some water for washing the vehicles. Before he went to fetch water he went to the HH 234-22 CRB 9192/16 fireplace where he found accused 1-4 but did not see accused 5. He observed that the now deceased had been badly assaulted. He then suggested that they take their victim to the police and while at the fire place one Manjoro took an umbrella stick and assaulted the deceased with it despite the fact that the deceased was bleeding. While still by the fire the witness observed two men passing by on their way to Tererai Muteve’s car park who on hearing that the deceased was a thief one of them took a switch and delivered about