S v Ruzive & Ors (HC CRB 46 of 2015) [2015] ZWBHC 215 (6 October 2015)

1 HB 215/15 HC (CRB) 46 – 49/15 THE STATE Versus 1. EVIDENCE RUZIVE 2. ADVENTURE RUZIVE 3. HABSON CHAMATUNGWA 4. SURPRISE MASHAVIRA IN THE HIGH COURT OF ZIMBABWE TAKUVA J with Assessors Mr W. T. Matemba & Mrs C. J. Baye GWERU 6 OCTOBER 2015 Criminal Trial T. Mupariwa for the state M. Mapfumo for 1st accused E. Mandipa for 2nd accused H. Ndlovu for 3rd accused T. Zishiri for 4th accused TAKUVA J: The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi in the Midlands Province, the accused persons or one or more of them unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility. All accused persons pleaded not guilty to the charge. The state outline was produced as exhibit 1. In it the state alleged that on the 24th May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between accused 1 and the deceased over allegations that the latter had earlier on stolen the former’s cell phone. The deceased struck accused 1 with an iron bar on the neck prompting accused 2, 3 and 4 to join in the fight on accused 1’s side. The three used fire brands to strike deceased on the neck and face. HB 215/15 HC (CRB) 46 – 49/15 Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. Deceased’s remains were ferried to United Bulawayo Hospitals for a post mortem examination. Accused 1’s defence outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences. He admitted stabbing the deceased twice on the chest in self defence. In paragraph 6 of his defence outline he stated that after stabbing deceased twice as indicated above, he “left the scene whilst accused 4 was assaulting the deceased with logs”. In paragraph 5 of the defence outline, he said deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands”. He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself. Exhibit 3 was accused 2’s defence outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of deceased on the day in question. According to him when he got to the scene, he found accused 1 and deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene. As he picked a bucket to fetch water he was apprehended by Simba who tied him together with 3rd accused with shoe laces. Finally he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty. Exhibit 4 was accused 3’s defence outline wherein he denied the state’s allegations. In paragraph 8 of this outline, he stated that whilst he was at a point where sadza was being sold, he HB 215/15 HC (CRB) 46 – 49/15 “realised that a fight had broken up (sic) between accused 1 and the deceased. He then went to the scene where he noticed that accused 2 arrived running inquiring what was happening. He heard accused 2 warning accused 1 against using a knife in the fight. In paragraph 11 he said he believed deceased died as a result of stab wounds inflicted on his person by the 1st accused. Further, he said deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased. He also prayed for his acquittal on the murder charge. Exhibit 5 was the 4th accused’s defence outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between accused 1 and the deceased culminating in deceased striking accused 1 with a “crow bar and he fell down. In paragraph 6 of this outline he stated that he “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire”. In paragraph 7 he said “he witnessed accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and accused 2 and 3 were apprehended at the scene. He denied ever causing deceased’s death. Exhibit 6 was accused 1’s confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that deceased had stolen. The material parts read as follows: “At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea ….” Exhibit 7 was accused 2’s confirmed warned and cautioned statement. In that statement accused 2 stated that when he got to the scene, he saw accused 1 grabbing deceased by the jacket HB 215/15 HC (CRB) 46 – 49/15 while holding an okapi knife. He asked accused 1 why they were fighting and he said deceased had struck him with an iron bar. He then warned accused 1 against using a knife but accused 1 ignored him. In an instant accused 1 then stabbed deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased. Exhibit 8 was accused 3’s confirmed warned and cautioned statement. He said he saw deceased strike accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw accused 4 strike deceased twice on the back of his head and on the neck using a log. He heard accused 2 warning accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene. Exhibit 9 was accused 4’s confirmed warned and cautioned statement wherein he stated that accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit deceased several times with a fire brand. Accused 1 then stood up and stabbed deceased once on his back. Exhibit 10 was a post mortem report number 414-413-2013. The pathologist observed the following marks of violence; 1. Stab wound right chest (1cm) located 7cm from the right nipple, 7cm from midline, 7cm from clavicle. 2. Stab woun