S v Muzadzi and 3 Others (306 of 2023) [2023] ZWHHC 217 (8 May 2023)

1 HH 306/23 CRB 86/22 THE STATE versus BRIDGET MUZADZI and GREYSTONE RUFARO CHIHORO and EDWIN RUSIKE and RITA KAMERA HIGH COURT OF ZIMBABWE MUNGWARI J HARARE, 7 November 2022, 28 April & 8 May 2023 Criminal Trial Assessors: Mr Kunaka Mr Mutombwa P Gumbo, for the State Mr P Muzvuzvu, for the 1st and 2nd accused Mr D Mudadirwa, for the 3rd and 4th accused MUNGWARI J: This homicide was a result of the accused and other villagers’ belief in extra judicial punishment or retribution on the victim whom they suspected of wrongdoing. The four accused appeared before us on a charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] (The Code). They are accused of having lynched the deceased to death on 11 April 2020 at Nechiva Village, of Chief Seke. The prosecutor alleges that they unlawfully and with intent to kill, or realizing that there was a real risk or possibility that their conduct may cause death, engaged and persisted in that conduct, and caused the death of Aleck Kaitano (the deceased) by beating him with switches all over his body and striking him with a machete below the knees causing mortal injuries.             The facts giving rise to this charge are as follows: The deceased, an adult man was a resident of Masona village, in Chief Seke. The accused reside in Nechiva village. The villages are both under Chief Seke although there is some distance between them. Bridget Muzadzi (first accused) and Greystone Rufaro Chihoro HH 306/23 CRB 86/22 (second accused) are mother and son respectively. They reside at the same homestead. Edwin Rusike (third accused) and Rita Kamera (fourth accused) are first and second accused’s co- villagers. On 11 April 2020 at around 1900 hours the deceased arrived at his home from a beer drink.  He inexplicably turned violent and started destroying household property. Consumed by that demon of destruction, belligerent and combative, the deceased left his homestead for Nechiva village. Save for a scanty pair of white shorts, he was otherwise naked. When he stormed Nechiva village, the villagers were naturally alarmed and suspicious of his intentions. About thirty villagers including the accused persons subsequently gathered and surrounded him. They accused him of being a thief and assaulted him. All the accused were part of the mob. They used switches to assault the deceased all over the body.  He was also struck with a machete below the knees.  He sustained multiple cuts and other injuries all over his body.  A Good Samaritan Robert Maibeki who observed the assaults phoned the deceased’s wife to alert her of what was going on. He also informed her that the deceased’s condition was bad and appeared to be deteriorating by the minute. In response and possibly driven by love for her husband, the deceased’s wife sought the assistance of her relatives who included her brother Fanuel Kasukuwere and their neighbours. They rushed to the scene. On arrival they found the deceased in a critical condition and subsequently ferried him to hospital. Unfortunately, the assaults were fatal because the deceased was pronounced dead upon arrival at the hospital.  A post-mortem was conducted and the cause of death was recorded as severe brain oedema and head trauma. All the accused pleaded not guilty to the charge.  In their defence outlines, the first and second accused stated that the deceased died from an assault by a mob. The first accused also informed the court that she is a married woman and her husband, the father of second accused was present at the material time. Because of this, so she said, it was not conceivable that her husband would have stood aside and allowed both her and second accused to assault the deceased in any manner. The two of them admitted having witnessed the assault but denied taking part in it. They argued that they were just being made sacrificial lambs for the wrongs of the mob that killed the deceased. The third and fourth accused, also denied being part of the mob which assaulted the deceased. Their account of the incident was that they arrived at the scene after the deceased had already been assaulted. They were not in possession of any switches. In their view, the persons who had apprehended the deceased must have been the ones who had assaulted him. HH 306/23 CRB 86/22 STATE CASE The State opened its case by seeking the formal admission of the evidence of two police officers, John Mavingire and Bothwell Mutingwende, in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] (The CP&E Act). The defence consented to the application largely because the two’s evidence did not in any way further the state case. Besides both confirming that they conducted the investigations after receiving the report of the murder something which had already been made common cause there was nothing of value to be derived from their evidence. The State followed this up by tendering with the consent of the defence the post- mortem report, exhibit 1. The cause of death was equally not in issue. The deceased died as a result of injuries inflicted upon him during the assault. Dr Martinez a forensic pathologist who examined the deceased’s remains at Harare Central Hospital on 20 April 2020 observed the following surface wounds and injuries: 1. Plague abrasion in left frontal region 2. Plague abrasion in left temporal region 3. Multiple abrasion in upper third of the thorax 4. Plague abrasion in right lataral of the thorax 5. Multiple plague abrasion in both upper limbs 6. Plague abrasion in anterior face of left leg In the final analysis he stated the cause of death as: a. Severe brain oedema and b. Head Trauma ORAL EVIDENCE The State led viva voce evidence from seven witnesses namely Alwina Kasukuwere, the deceased’s widow, Fanuel Kasukuwere brother to the deceased’s wife, Fungai Mapuranga, Jeffrey Sanganah, Robert Maibeki, Marshal Chikwanha and Kuda Gift Nechiva. The accused on the other hand were the sole witnesses for their defences. 1. Alwina Kasukuwere (Alwina) As already stated, Alwina is the deceased’s widow. Her evidence was not very useful in resolving this issue because she was not an eye witness to the assault. The only critical aspect of her evidence was explaining to the court what occurred before the deceased left his homestead. It was that, the deceased was in a drunken state. He HH 306/23 CRB 86/22 was also very belligerent and combative. She however resisted the urge to fight with the deceased as he wantonly destroyed their household property. She had to hurriedly leave the house to seek help from her brother. He later left the homestead in a huff. Later, she received a call from someone who advised her to come and rescue her husband from the scene where he had been badly assaulted and injured. She went there and found the deceased in a bad state. The deceased only managed to inform her that he had been injured by a light skinned woman before he died. The veracity of that evidence is questionable. It is difficult to classify it. In one breadth, it could easily be hearsay yet in another it could be taken as a dying declaration. The witness however said she did not know any of the villagers in Nechiva village let alone a light skinned woman. She said the relevance of the deceased’s utterances were lost to her and as result served no discernible purpose. We were of the view that the issues in this case could be resolved by other evidence without resort to the deceased’s utterances on his death bed and the controversy which is evoked by the concept of dying declarations in our law today. See the case of S v Wellington Gurumombe HH 405/22 where MUTEVEDZI J held that the applicability of dying declarations is intrinsically tied to English law and that the developments which occurred in England over the years has seriously distorted the applicability of the concept in Zimbabwean law. 2. Fanuel Kasukuwere (Fanuel) Fanuel is a brother of Alwina. Like her before