S v Poterai & Ors (HC CRB 24 of 2016; HC CRB 30 of 2016; HMA 1 of 2017) [2016] ZWMSVHC 34 (1 December 2016)

1 HMA 01/17 HC(CRB) 24 – 30/16 THE STATE versus DAMBUDZO POTERAI and MATHEW POTERAI and JOSEPH DZINGIRAI and THOMAS HARUZIVISHE MAZHAMBE and LLOYD MAROYI and LEVISON NYAMANDE and AMON MASACHA HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO, 15, 16,17,18,21 November, & 1st December, 2016 Assesors Mr S. Mutomba Mr E. Gweru Criminal Trial Mr T. Chikwati, for the state Mr I. Muzenda, for the 1st and 2nd accused Mr L. Muvengeranwa, for the 3rd accused Mr C. Ndlovu, for the 4th accused Mr J. Maweni, for the 5th accused Ms S. Moffat, for the 6th accused Ms S. Sithole, for the 7th accused HMA 01/17 HC(CRB) 24 – 30/16 MAWADZE J: All the 7 accused persons who are males except accused 1 DAMBUDZO POTERAI are charged with murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The charge is that on the 30 January 2012 at Mandishona Village, Headman Gororo, Chivi, Masvingo the accused persons or one or more of them unlawfully assaulted the now deceased GIVEN TOGARA a male adult aged about 25 years several times all over his body with switches, rubber whip, hoe handle and on the head with a stone intending to kill him or realising that their conduct might cause death and continued to engage in that conduct despite the risk or possibility. All the 7 accused at the material time were residing under Headman Gororo, Chivi, Masvingo but in different villages. Accused 1 DAMBUDZO POTERAI (Dambudzo) was 50 years old and is the mother of accused 2 MATHEW POTERAI (Mathew) whom she stayed with in Jere Village, Gororo, Chivi, Masvingo. Accused 3 JOSEPH DZINGIRAI (Joseph) was 65 years old and was residing in Mandishona Village, Gororo, Chivi, Masvingo. Accused 4 THOMAS HARUZIVISHE MAZHAMBE (Mazhambe) who is now 52 years old was residing in Mashenjere Village, Gororo, Chivi, Masvingo. Accused 5 LLOYD MAROYI (Maroyi) then aged 28 years was residing in the same Mandishona Village with accused 3 Joseph. Accused 6 LEVISON NYAMANDE (Levison) then aged 36 years was residing in the same Jere Village with accused 1 Dambudzo and accused 2 Mathew. Accused 7 AMON MASOCHA (Amon) then aged 44 years was residing in the same Jere Village with accused 1 Dambudzo, accused 2 Mathew and accused 6 Levison. The now deceased GIVEN TOGARA was residing in Madenga Village, Headman Gororo, Chivi, Masvingo. The facts giving rise to these rather tragic events are largely common cause. There had been a spate of thefts at accused 1 Dambudzo and accused Mathew’s homestead and this was confirmed by Sgt. Raymond Mafudza the Investigating Officer in this case. On 30 January 2012 in the morning accused 1 Dambudzo who was near her homestead was alerted to the presence of the now deceased at her homestead due to incessant barking of her dogs. Accused 1 Dambudzo suspected that the now deceased was a thief and called out to her husband Taru Poterai, her son accused 2 Mathew and a fellow villager Koke Maruma. The now deceased who apparently was a thief fled into the nearby mountain as he was pursued. The now deceased was however caught in the mountain hiding in a thicket by Koke Maruma who descended with HMA 01/17 HC(CRB) 24 – 30/16 him from the mountain at the same time alerting fellow villagers that he had apprehended the thief. A number of villagers including the 7 accused persons attended to the scene albeit at different stages. The State alleges that accused 2 Mathew and Vengai Gundumuri were the first to arrive at the scene as Koke Maruma and the now deceased had just descended from the mountain. It is at this stage the State alleges that the assault of the now deceased commenced which ultimately led to his demise. The State alleges that accused 2 Mathew was the first to assault the now deceased once in the face with open hands, kicked him several times all over the body and struck him with a switch. It is alleged that accused 4 Mazhambe then arrived holding a whip which he used to assault the now deceased on the buttocks. The State alleges that accused 5 Maroyi used a switch to assault the now deceased on the buttocks. It is alleged accused 3 Joseph then arrived at the scene and assaulted the now deceased on the leg with a hoe handle. Accused 6 Levison then came and used a switch to assault the now deceased all over the body. It is the State case that the now deceased thereafter had his hands tied and force marched towards the homestead of a local neighbourhood watch committee member. Along the way the State alleges the now deceased was ordered to sit down at the kraal of Koke Maruma’s father where the assaults resumed. The State alleges that it is at that stage that accused 1 Dambudzo arrived and hit the now deceased on the head with a hoe handle once causing the hoe handle to break. Accused 1 Dambudzo is then alleged to have picked a stone and hit the now deceased on the head. Accused 7 Amon is alleged to have arrived and also assaulted the now deceased all over the body with a switch. The State alleges at this stage the now deceased was unable to walk and he was put in a wheel barrow enroute to Zunga Business Centre where the Police who had been alerted of the now deceased’s apprehension were waiting for him to be brought. The now deceased was unable to reach Zunga Business Centre as he passed on at Chikoso Village. The cause of death is said to be head injury. The summary of the defence outlines given by the accused persons are as follows: HMA 01/17 HC(CRB) 24 – 30/16 Accused 1 Dambudzo and accused 2 Mathew said they had experienced a spate of offences at their homestead involving unlawful entry and stock theft. Accused 1 Dambudzo confirmed that she is the one who alerted other villagers of presence of the now deceased at her homestead on 30 January 2012 as she was doing laundry at a nearby well and her husband and accused 2 Mathew were weeding in the fields. Accused 1 Dambudzo said the now deceased had stolen a car battery, invertor and radio which he dropped as he fled into the mountain. Accused 1 Dambudzo said she followed after the now deceased with one Vengai Gundumuri and accused 2 and her husband followed using a different route. She confirmed that it is Koke Maruma who apprehended the now deceased and that it is Vengai Gundumuri who called fellow villagers to come and discipline the thief. Accused 1 Dambudzo said at the time she got to the scene she found that the now deceased’s hands and legs were tied and that the deceased was bleeding from the nose. Accused 1 Dambudzo said Koke Marume showed her a knife allegedly recovered from the now deceased. She said Koke Maruma had a machete which he was using to cut switches given to various villagers to assault the now deceased. Accused 1 Dambudzo said at the time she got to the scene the now deceased was visibly weary and struggling to walk as he was being ordered to walk to the police station. Accused 1 Dambudzo said she however thought the now deceased was deliberately faking inability to walk and this prompted her to take a sweeping brush which she used to assault the now deceased twice on the shoulder. She said this is the only assault she perpetrated on the now deceased. Accused 1 Dambudzo denied assaulting the now deceased with a hoe handle or a stone as alleged. In fact she said it is those other people who apprehended the now deceased who injured him. It is accused 1 Dambudzo’s view that she is being falsely implicated or incriminated due to connivance by other people simply because she was the victim of the now deceased’s conduct. In fact, accused 1 Dambudzo said that Vengai Gundumura told her that it is Koke Maruma who had caused the now deceased’s death when he assaulted the now deceased causing him to vomit. In her confirmed warned and cautioned statement “Exhibit 2” accused 1 Dambudzo seemed to give a somewhat different version. In that statement she said she never got to the place where the now deceased was being severely assaulted. She further said when she got to the scene she only assaulted the now decea