S v Ngwerume and Another (265 of 2024) [2024] ZWHHC 265 (12 June 2024)

1 HH 265-24 CR 1591/24 THE STATE versus TINASHE NGWERUME And OBVIOUS JEMITALA HIGH COURT OF ZIMBABWE MUREMBA J HARARE 27- 31 May & 12 June 2024 Criminal trial Assessors: Mr Mhandu Mr Chakuvinga Mrs K Chigwedere, for the State T Deme, for the 1st accused Mrs C Dube, for the 2nd accused MUREMBA J: The accused persons who are juveniles aged 16 years and 17 years respectively pleaded not guilty to the charge of murder as defined in s 47(1) of the Criminal Law Codification and Reform (Act) [Chapter 9:23] (the Criminal Law Code). The two accused persons who are cousins in that their mothers are blood sisters tendered pleas of guilty to the lesser charge of culpable homicide. The State’s allegations On the evening of April 6, 2023, at around 2100 hours and at Nduna tuckshop within the SAS mine compound in Lowdale, Mazowe, the two accused persons were engaged in a card game when the second accused was addressed by the name “Goredema.” Edward Karinda, who was present, inquired about the number of names the second accused had, leading to a heated verbal exchange. The conflict escalated, drawing in the first accused and Edward Karinda’s friend, Takunda Beketi. The situation intensified when the now deceased, who had been observing the events, taunted the accused persons, resulting in a physical confrontation. The deceased slapped the second accused, prompting both accused to retaliate HH 265-24 CR 1591/24 with concealed weapons. In a violent turn, the first accused stabbed the deceased in the chest, while the second inflicted a wound on his back. The accused persons then departed, leaving the deceased to collapse. Bystanders quickly came to his aid, transporting him to his home. His father, Nyikadzino Maruza, took immediate action, rushing him to Christon Bank Clinic. There, medical personnel, including a nurse and the sister in charge, assessed his condition and referred him to Parirenyatwa Hospital for advanced care. Despite these efforts, upon arrival at the hospital, a doctor pronounced the deceased dead. In their defence outlines the two accused persons did not dispute that they stabbed the deceased resulting in his death. Their pleas to culpable homicide are based on the grounds of youthfulness and provocation in terms of s 239 of the Criminal Law Code. The accused persons stated in their defence outlines that their lack of maturity and lack of education contributed to their spontaneous and impulsive behaviour at the time they stabbed the deceased. They stated that the deceased provoked them by mocking them when he questioned their manhood in a public place. To rub insult to injury the deceased went on to slap them. In the heat of the moment and without premeditation, the two accused persons reacted by stabbing the deceased, albeit with excess force in that they stabbed the deceased with sharp objects that were within their reach. The accused persons stated that they did not have the intention to commit the crime of murder. The evidence of the State With the consent of the second accused, the State produced the second accused’s confirmed warned and cautioned statement which was marked as exhibit no.2. In that statement the second accused admitted that he stabbed the deceased twice, once in the chest and once in the back using an iron rod which he picked from the ground. The second accused said that he was acting in self-defence as the deceased had just started to assault him without any provocation. The first accused joined in the fight in order to assist him. The State led evidence from five witnesses who were at the scene, namely Edward Karinda, Takunda Beketi, Nathan Mumba, Dennis Madima and Lawrence Mwale. It also led evidence from Costa Maonya who is a police officer and from Doctor Solomon Muzenda who examined the remains of the deceased and compiled the post mortem report. Edward Karinda, an 18-year-old resident of Lowdale Farm Compound in Mazowe, recounted the events of the distressing evening at Nduna tuckshop. He and Takunda Beketi were awaiting Nathan Mumba. They intended to go to church. It was Easter. An altercation broke out with the two accused persons when someone referred to the second accused as HH 265-24 CR 1591/24 Goredema. The dispute began when Edward questioned the second accused about his multiple names, having known him only as Jemitala. This query was met with hostility, leading to a physical confrontation where Edward struck the second accused on the shoulder, as he emphasized that he was older than the second accused. The situation escalated when the first accused and Takunda Beketi started exchanging words and pushing each other. The first accused then uttered some threatening words to the effect that he would swallow Edward and Takunda. The words were implying a deadly intent. The accused persons left the tuckshop for a brief period of about ten minutes. When they returned, they came and stood near Edward and Takunda Beketi. The first accused person challenged them saying that they should go ahead and make fools of them as they were doing before. Takunda then pushed them in defiance. Edward intervened, suggesting they leave, which Takunda heeded and left. Edward said as he prepared to depart, he overheard the deceased challenging the accused’s bravado, to which the second accused threatened physical assault. The deceased had asked the accused persons why they were considering themselves bulls when they had failed to stand up to Takunda Beketi. Although Edward said that he was too distant to capture the entire exchange, he witnessed the deceased striking the second accused on the face, provoking a violent response. The second accused slapped back forcefully, and a scuffle ensued between them. Edward Karinda observed the first accused push the deceased against a bamboo fence amidst the scuffle between the second accused and the deceased. In the dimly lit area, Edward saw the first accused draw a weapon from his pocket. However, he could not quite see what weapon it was. He just saw that it was a shiny weapon. He observed that the accused persons who were positioned on either side of the deceased, were making stabbing motions. This silent struggle lasted approximately two minutes before the accused persons left the scene, and the deceased staggered backward, collapsing onto a bench. Bystanders went to attend to him. Edward noted the deceased was bleeding from his back, a wound inflicted under his raised hooded jacket, seemingly from a single stab. He was uncertain when the stabbing occurred but he had witnessed both accused persons making stabbing motions, the first accused in front and the second accused behind the deceased. Edward further observed that the deceased’s jacket bore a small, punctured tear near the heart. Edward said that after the incident, the deceased was carried home by Lawrence Mwale and Breeze, a short distance from the tuckshop. Edward believed the deceased had not provoked the accused but was HH 265-24 CR 1591/24 merely mocking them for fearing Takunda. He was unaware of any iron bar being used, affirming the stabbing took place in darkness. During cross-examination, Edward Karinda clarified that he was unaware of any conflict involving a girl named Sabina who worked at Nduna’s tuckshop, nor of any relationship between her and the first accused. When questioned about the term “Mabhuru,” he explained it referred to individuals who are bullies or murderers. Additionally, the defence counsel for the second accused inquired about Edward’s distance from the bamboo fence during the incident. Edward estimated it to be about 7 meters, stating that while he could discern hand movements, he could not definitively identify who delivered the fatal stab to the deceased. Dennis Madima, a 24-year-old resident of SAS Mine in Mazowe, provided testimony regarding the events of April 6, 2023 as well. He has known the accused persons for two years and said that their residences are in proximity. On the evening in question