S v Ncube and 2 Others (14 of 2023) [2023] ZWCHHC 37 (24 May 2023)

1 HCC14/23 CRB 95/22 STATE versus ADMIRE NCUBE AND TAIRUS KAIPENI AND AKIM SIBANDA HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI 24, 25 January, 03, 17 February, 06, 24 March & May 2023 Date of written judgment – 24 May 2023 Assessors 1. Mr Chivanda 2. Mr Manyangadze Criminal Trial T H Maromo, for the State U Saizi, for the 1st Accused. T M Marinda, for 2nd Accused F Mhishi, for 3rd Accused MUZOFA J: [1] According to the State case, on 2 November 2021 at about 2300 hours, the accused persons approached the deceased one Melody Makaramba with fake gold. The deceased was a known gold smelter and gold buyer in this community of Etna 148 Mine, Kadoma. He would religiously attend to any person anytime. Thus, the accused persons could approach him as late as 2300hrs. When the deceased opened the door to attend to them, the accused pretended to give him gold, they immediately attacked the deceased and strangled him with a wire, and hit him with an iron pestle. The 1 st accused stabbed the deceased with an okapi knife on the back of the neck. The deceased collapsed, the accused searched him and took an itel cell phone, a portable gold scale and a brown wallet with the deceased’s particulars and an unknown amount of cash. For their conduct, the accused were arrested and charged with murder in contravention of s47 of the Criminal Law Codification and Reform Act (Chapter 9:23). HCC14/23 CRB 95/22 [2] The accused persons denied the offence. The 1st accused said he was at the scene of the crime but did not participate in the commission of the offence. His defence outline detailing his defence was produced and marked annexure ‘B’. The 2nd and 3rd accused persons denied ever being at the scene of the crime. Their defence outlines were marked annexure ‘C’ and ‘D’ respectively. The State Case [3] To prove its case the State opened its case by producing the following exhibits with the consent of the defence, I. II. III. IV. V. VI. VII. VIII. The post-mortem report marked exhibit 1. Doctor Vayne who examined the deceased concluded that death was due to manual strangulation and blunt force head injury. An application for a search warrant and the search warrant for the 1st accused’s cellphone with the line 0716 043 962 marked exhibit 2 and 3 respectively. A forensic report in respect of a cellphone Huawei K11/21 with cellphone number +263712191205 where 40 instant messages,222 call logs,27 contacts,296 audios,206 images and 134 videos were extracted A metal pestle weighing 6,5 kgs,42 cm in length and 5 cm in diameter marked exhibit 8. An okapi knife 23,5 cm long,2 cm at its widest part with a wooden handle of 2cm with a slightly discoloured blade marked exhibit 9. Two wires, measuring 74cm and 44,5cm respectively marked exhibit 10. A white Huawei phone IMEI number 1867922564 marked exhibit 11. A black Itel cellphone with a grey band, dual sim with Econet and Netone lines was marked exhibit 12. [4] The evidence of 6 witnesses was formally admitted in terms of s314 of the Criminal Procedure and Evidence Act. The summary of the evidence is as follows; I. II. Stanley Mutemererwa-he knew the deceased as a resident of Etina 148 Mine Kadoma. He was in the business of buying and selling gold. He knew the accused as residents of Etina 148 Mine Norman Dhanana – he owned Etina 148 Mine. The deceased was his mine manager who used to buy and smelt gold at the mine. On 3 November 2021 he was advised of the deceased’s death by one of his employees. He went to the scene. He observed the deceased’s neck was tied with a wire and he had a deep cut above his left ear. III. Madabuko Goshokosho-he was a member of the Zimbabwe Republic Police stationed at Criminal Intelligence Unit Kadoma at the time. He did not know the deceased. He attended the scene of the crime. He found the deceased in a pool of blood, his neck tied with a wire and the body had a deep cut above the left ear stretching to the back of the head. He caused the deceased’s body to be ferried to Kadoma General Hospital. Blessing Chiwenga-a police officer who at the time was stationed at Eiffel flats Police Station. She knew the accused persons as gold panners. She attended the scene of crime. The rest of her evidence was similar to Goshokosho’s evidence. Edmore Mudzingwa-a mortuary attendant who received the deceased’s body from Norman Dhanana. He lodged the body in the mortuary at Kadoma General Hospital. IV. V. HCC14/23 CRB 95/22 VI. Doctor Anderson Mutanduri-he examined the deceased’s body and certified him dead. [5] Four witnesses gave oral evidence. Tawana Lego was the first witness. He was a driver at the mine. The deceased was his workmate. The night before the deceased was murdered, he was with the deceased. The deceased gave him a rifle for safe keeping. They parted ways and he went to sleep. He occupied a room adjacent to the deceased’s room, which was used as the smelting room or gold room. Around 2 a.m. he heard some people at the deceased’s door. He did not wake up. He simply sent a message to the deceased advising him of the people. He did this as he assumed that the people had brought gold for smelting since the deceased would attend to a customer even at night. He did not make further follow ups. The following morning, he looked for the deceased and found him dead in the smelting room. Sometime later he witnessed the 3rd accused making indications leading to the recovery of the okapi knife. [6] John Mazhambe was the second witness. His evidence was that he shared a meal with the deceased the night before he was murdered. He did not see who murdered him. He was one of the deceased’s workmates. He was called by the first witness advising him of the deceased’s death. He proceeded to the scene of crime. He did not observe much about the deceased’s injuries. In his words, he was too scared and overwhelmed by the amount of blood in the smelting room. In the course of employment, he had never entered the smelting room, entrance was restricted. [7] Knowledge Madi was the investigating officer. On being allocated the matter to investigate he proceeded to the scene of crime the following day. He described the smelting room. It had gas bottles, a metal bar and a chair hung by the door. He received information from an informant about accused’s cellphone which had certain information relating to the deceased’s death. He arrested the first accused who made statements leading to the arrest of the 2nd and 3rd accused persons. [8] The accused persons made statements and indications which they challenged. They all claimed they were heavily assaulted by the police. Consequent to the challenges by the accused persons a trial within a trial was conducted where the court ruled the statements and indications admissible. The 1st accused’s warned and cautioned statement was produced and marked exhibit 13 and his indications were marked exhibit 14. The 2nd and 3rd accused persons’ warned and cautioned statements as well as the indications were produced and marked exhibits 14, 15, 16 and 17 respectively. The State then closed its case. The Defence Case [9] The first accused adopted his defence outline. In his defence outline he stated that he did not commit the offence but he was at the scene of the crime. He said on the fateful night he accompanied his friend one Regis to deceased’s place to sell some gold. They were four when they went, Regis and his friend, Medius and the accused. When they got to the deceased’s place, he knocked and the deceased opened the door. Thereafter he remained by the door with Medius. Regis and his friend proceeded into the room where the smelting usually took place. HCC14/23 CRB 95/22 [10] The deceased and Regis had an altercation about some alleged fake gold. As they argued, Regis’ friend kicked the deceased who then fell, hitting his head on a mineral grinder. The deceased pulled an okapi knife from his pocket and Regis stepped on the deceased’s hand. The 1st accused grabbed Regis to refrain him, at that time Re