S v Saungweme (635 of 2023) [2023] ZWHHC 492 (29 November 2023)

1 HH 635-23 CRB 9/22 THE STATE versus JEREMIAH SAUNGWEME HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE, 29 November 2023 Assessors: Mrs Chitsiga Mr Chimonyo Criminal Trial A Chogumaira, for the state P Chikangaise, for the accused MUTEVEDZI J: Jeremiah Saungweme (the accused) was a security officer with a private security company called VS Security. He together with others was deployed to guard Shamva Gold Mine against the somewhat incessant invasions of its gold fields by illegal artisanal miners colloquially called amakorokoza. In his zeal to discharge his duties, he is alleged to have shot and killed one of the illegal miners called Willard Silas (the deceased). The formal allegations are that on 15 May 2020 at Shamva Mine Lease 32 the accused unlawfully and with intent to kill or realizing that there was a risk or possibility that his conduct may cause death continued to engage in that conduct despite the risk or possibility shot the deceased on the back of the head with a Taurus revolver. The deceased sustained mortal injuries. His death was instant. The background to the charge as alleged by prosecution is that on 15 May 2020 the accused was on duty at Shamva Gold Mine. He received intelligence that there were illegal gold miners who had pitched camp at Shamva Mine Lease 32. He was duty bound to act. He enlisted the assistance of Elvis Ngoma (Elvis), Collias Zhau (Collias) and Trust Tsabasvi (Trust) and proceeded to the site. The accused was armed with a Taurus revolver. Collias and Trust carried 303 rifles. About two hundred meters from the panning site the security officers split into two groups. The accused and Elvis went northwards whilst Trust and Collias proceeded southwards. When the accused and his colleague got closer to the panning HH 635-23 CRB 9/22 site the accused fired a shot into the air. The gunshot startled the panners who ran in all directions. The accused and Elvis did not relent. They gave chase whilst still firing shots into the air. About sixty meters into the chase, the accused is alleged to have shot the deceased on the occiput. The accused tendered a plea of not guilty. In the outline of his defence, he said on the fateful day he was on duty at Shamva Gold Mine (the mine). He was advised by Elvis of the presence of illegal gold panners who had invaded Lease 32, a site owned by the mine. He summonsed Trust and Collias both security guards who were apparently under his command to accompany him to the site. He was armed with a revolver which had four rounds in the chamber. He also had a pair of handcuffs. Trust and Collias were armed with 303 rifles. Elvis led them to the place where the panners had been seen but a short distance before arriving at the site they deemed it strategic to split into two groups in order to flank the illegal panners. The accused went with Elvis whilst Trust partnered with Collias. The accused further said just before they ambushed the panners they observed and estimated that there were about sixty of them. They appeared armed to the teeth as some carried machetes whilst others had an assortment of dangerous weapons. Once they saw the guards the illegal gold miners charged towards the accused and Elvis. They were chanting war cries and threatening the two with their weapons. The accused said he then fired a warning shot into the air but the panners were not deterred. They continued charging towards the accused clearly determined to kill him and his colleague. He said he had no option but to fire three more shots into the air. At that point, the panners scattered in different directions. The accused claimed that in all the melee he heard six gunshots from different directions as the panners ran away. He said he only heard about the death of the deceased when he and the others returned to their control station. He prayed for his acquittal. State Case The State opened its case by applying, with the consent of the defence, to produce the post mortem report by doctor Mayedo detailing the cause of the deceased’s death. The pathologist found that death was due to brain injury, global subdural hematoma and severe head trauma due to bullet injury. He further observed a bullet entrance hole on the right area of the nape and an exit hole on the right temple on the frontal region of the occiput. The state also tendered a forensic ballistic report in relation to the gun which the accused allegedly used. It was a contentious issue. The accused queried why it was the only gun which had HH 635-23 CRB 9/22 been examined yet more than one gun was fired on the fateful afternoon. The Taurus revolver which the accused was carrying on the doomed mission was also tendered as an exhibit. As will be shown later the accused’s protestations that the other guns should have been the subject of inquiry appeared to have no basis because indeed those guns were investigated. They were however quickly discounted as being potential murder weapons in this case. Evidence of Collias Zhau He is accused’s workmate and were both employed by VS Security. On the day in question around 1300 hours he was called by the accused to go for reaction, a term that literally meant responding to a security breach. The accused directed him to get a firearm from an amoury of sorts and to check how many rounds the firearm had. The witness said he did. The gun had one round. Upon advising the accused, he directed him to get two more rounds. The accused further advised that they would meet up with Elvis. The witness indicated that Elvis was a security detail at the mine but was not employed by their security company. They were joined by Trust. As was also narrated by the accused Elvis led them to the site where the panners were. They later split into two groups just like detailed by the accused in his defence outline. He went with Trust and accused with Elvis. In the direction they went one of the panners noticed them. He ran to inform his colleagues of their presence. They stayed put where they were but whilst they waited they heard gunshots. That alerted them that the accused and Elvis must have reached the point where the panners were. He said he knew that it was the accused who had fired the shot because ordinarily gold panners don’t carry firearms. At that signal they also started running towards the site where the panners concentrated. He observed most of the illegal miners fleeing into the bush. When they got to the pits, the witness said he fired a shot into the air. He proceeded for about six to twelve meters and fired three times into the air. He then ran out of rounds. The panners went further into the bush. He followed Trust whom he advised that he had ran out of rounds. Trust lend him one round. They took the direction which led to a place called Magobo but before going far the accused called and advised them to return. Elvis also called and directed them to cross the river from where they were and head to the pits. They did. The accused directed them that at the pits they had to check if the illegal panners had left any weapons and to ascertain if any of them were still hiding nearby. When they inspected the place, they recovered only dishes used for panning. They later returned to their base. On arrival, the security officer asked them to detail what had transpired. The accused narrated how the mission had gone on the team’s HH 635-23 CRB 9/22 behalf. It was then that the security officer advised them that someone had been shot dead during their raid on the illegal miners. He ordered them to go to their barracks. Under cross examination it came to light that when the police initially investigated the matter, the witness was also once arrested but was released. He conceded that he could not have been aware of what had taken place when they split from accused and Elvis. What he was sure of was that it was the accused who had fired the gunshot which he had heard from the direction that he and Elvis had taken. He had personally fired three shots