S v Nemaringa & Anor (HMA 3 of 2021; Ref HC 7 of 2016; Ref HC 8 of 2016) [2016] ZWMSVHC 3 (17 October 2016)

1 HMA 03-16 Ref Case No. HC 7 – 8/16 THE STATE versus JEALOUS NEMARINGA and PATRICK MARUFU HIGH COURT OF ZIMBABWE MAFUSIRE J MASVINGO, 3, 12 & 17 October 2016 Criminal trial – application for bail pending continuation and completion of trial Assessors: Messrs Dhauramanzi & Mushuku E. Chavarika, for the State J. G. Mpoperi, for the first accused M. Mureri, for the second accused MAFUSIRE J: This was an application for bail by Accused 2 pending the resumption and completion of trial. Accused 2 was jointly charged with Accused 1 with murder as defined in s 47[1] of the Criminal Law [Codification and Reform] Act, [Cap 9: 23]. The allegations against them were that on 28 September 2015, in rural Bikita, Masvingo, one or other of them unlawfully caused the death of one Farai Manyanga [hereafter referred to as “Deceased”] by hitting him with logs on the head multiple times thereby inflicting a depressed skull fracture and cervical spine subluxation, with the intention of killing him or, despite realising the real risk or possibility that their conduct might cause death, continued with it. The State’s case was that on the day in question, Deceased had been drinking a traditional brew at some homestead in the company of several other villagers. The two accused were not part of that party. But from time to time Accused 1 would come with a 5 litre container to buy beer. The two accused were drinking in the comfort of Accused 1’s homestead, some distance away. Later on at night, Deceased left the beer place for his homestead. He passed through Accused 1’s homestead. The two accused were there. Acting HMA 03-16 Ref Case No. HC 7 – 8/16 in concert they attacked Deceased with logs several times on the head causing him severe injuries. Sometime before that, there had been an altercation between Accused 1 and Deceased. Deceased bled from the attack. He lost consciousness. The two accused carried him from the scene and dumped him in his kitchen hut at his homestead. Deceased was bleeding all the way. He left a trail of blood. He was discovered the following morning. He was lying unconscious in his kitchen hut. Neighbours and relatives were alerted. Deceased was ferried to clinic and later on to hospital. A post mortem examination concluded that the cause of death was head injury and cervical spine subluxation. Spine subluxation was explained to mean a partial dislocation of the bones of the neck which had led to depressed breathing. Both accused pleaded not guilty. In his confirmed warned and cautioned statement Accused 1 admitted striking Deceased on the head with a log during a fight that had ensued between them over an unresolved dispute. In his defence outline he also admitted fighting with Deceased but made no mention of the log. Accused 2, in both his warned and cautioned statement and the defence outline, completely dissociated himself from Deceased’s death. He denied having fought with him or having assisted Accused 2. He stated that it was Accused 1 who had struck Deceased four times with a log on the head as they fought over an unresolved dispute. The State intended to call seven witnesses. The defence accepted the outlines of the evidence of some of them. Over two days the court heard the viva voce evidence of three witnesses. One of them was Simbisai Nemaringa [“Simbisai”]. He was one of the villagers that had been at the beer drink the previous day. He said he had passed through Accused 1’s homestead the following morning as he was going back to the beer place for the dregs. At Accused 1’s homestead he noticed that the sand was sodden with blood and water. The trail started in some shed at the compound and led away from the homestead. He enquired of the blood from Accused 2 who was at the scene at the time. Accused 1 was inside the kitchen. Accused 2 professed ignorance. Accused 1 then came out. He started covering the spoor of blood using his booted feet. Accused 2 advised Accused 1 to use a tree branch instead. In the process several other villagers arrived. First to arrive were two men. One of them was Thulani Bvekwa [“Thulani”] whom the State had lined up as a witness. The other was Lawrence Masuka [“Lawrence”]. HMA 03-16 Ref Case No. HC 7 – 8/16 According to Simbisai, Thulani and Lawrence had trailed the spoor of blood from Deceased’s homestead right up to where everybody else was now gathered at Accused 1’s homestead. Unfortunately for the State, by the time of the trial Thulani was no longer available. He was reported to be in South Africa. The State then intended to switch over to, and rope in Lawrence. He was reported to be still in the country but in some farming area somewhere in Rusape. The matter was stood down to give the police time to trek him down. Eventually the matter was postponed for a week as the police needed more time. When the matter resumed after the week the police had still not located Lawrence. Their leads had drawn a blank. Logically, the State applied for a postponement of the matter sine die as there was no telling how long the police would take to trace Lawrence. The defence had no objection to the postponement. Therefore it was granted. But Counsel for Accused 2 immediately launched an application for bail pending the resumption and continuation of trial. His argument was that at all times after his initial remand, Accused 2 had been on bail. It had been a year exactly. It was only after he had been indicted for trial that his bail had been terminated in terms of s 169 of the Criminal Procedure and Evidence Act, [Cap 9: 07] [hereafter referred to as “the CP & E Act”]. Further submissions on behalf of Accused 2, as I understood them, and in my own words, were that despite his facing a serious charge, and despite the long wait, Accused 2 had religiously complied with his bail conditions and had ultimately attended trial when it had begun. He was still going to go through the trial. He had no intention to abscond. However, given that there was no longer any assurance that the trial would be concluded any time soon owing to the unavailability of a witness, or witnesses, that the State considered important for its case, it was in the interests of justice that he be released on bail so that he should not be severely prejudiced by the delay that inevitably was to ensue. Counsel also argued that the evidence against Accused 2, in relation to the commission of the offence, was weak. Even though he had been present during the incident, he had not made any common cause with Accused 1. He had not been part of the altercation between Accused 1 and Deceased. He had not been part of the unresolved grudge between the two. On the contrary, when they had fought on the night in question, he had tried to restrain them. Unfortunately he had failed. He had shouted for help from the neighbours. He HMA 03-16 Ref Case No. HC 7 – 8/16 had even left the two as they were fighting to go and alert a Bvekwa. However, and unfortunately, the fatal blow had already been delivered. In those circumstances, Counsel’s argument concluded, Accused 2’s prospects for an acquittal were quite bright. As such, there was no inducement for him to abscond. Mr Chavarika, for the State, opposed the application. His argument, again in my own words as I understood it, was that the application had to be considered in the light of the fact that evidence had now been led against the accused persons. The position had altered from the situation that they had been in when bail had initially been granted before trial. Now the accused had had a glimpse of the weight of the evidence against them. That was inducement enough for them to want to abscond. Of the quality of the evidence against Accused 2 in particular, Mr Chavarika conceded that there was no direct eye witness. However, the evidence that had been led, particularly from Simbisai, was so damning as to make Accused 2, at the very least, an accessory after the fact. Among other things, he had participated in, or given gui