S v Shamba and Another (396 of 2023) [2023] ZWHHC 266 (29 June 2023)

1 HH 396-23 CRB 26/22 THE STATE versus TAFADZWA SHAMBA and TAPIWA MAKORE HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE, 3 & 13 October 2022 and 29 June 2023 Assessors: Mr Chakuvinga Mrs Chitsiga Criminal Trial A Masamha, with D H Chesa, for the State M T Mavhaire, for accused 1 M E Midzi, for accused 2 MUTEVEDZI J: When the registrar of the High Court advised the parties to this case that the court’s judgment which had been reserved at the conclusion of the trial would be handed down on 29 June 2023, the Zimbabwe Broadcasting Corporation (ZBC) and the Zimbabwe Newspapers (1980) Limited Television, which are some of the media houses which indicated that they had been following and reporting on the proceedings in this case right from their commencement, petitioned the court seeking permission to conduct live broadcasts of the conclusion of the trial. In their view, the trial was of public interest. They said it had attracted and held the attention of the entire nation. In the case of Nelson Chamisa v Emmerson Dambudzo Mnangagwa and 24 Others CCZ 21/19, the Constitutional Court quoted with approval the dictum in the case of South African Broadcasting Corporation Limited v Thatcher and Others, [2005] 4 All SA 353 (C) at para [63], in which that court related to a statement by Lord Falconer of Throroton, the Lord Chancellor of England and Wales’s foreword to the United Kingdom Consultation Paper 28/04, which became the basis of the “Broadcasting Courts Seminar” held in the United Kingdom in 2005, where he said: HH 396-23 CRB 26/22 “The justice system exists to do justice. If it does not do justice in public it risks slipping into unacceptable behaviour, and losing public confidence. With a few exceptions, our courts are open to the public, but very few people who are not involved in cases ever go near a court. Most people’s knowledge and perception of what goes on in court comes from court reporting and from fictionalised accounts of trials. The medium which gives most access to most people, television, is not allowed in our courts.” Writing for the full bench of the Constitutional Court, in Chamisa v Mnangagwa (supra), MALABA CJ reviewed various authorities across many jurisdictions and arrived at the conclusion that it is progressive to open court proceedings to the full glare of the public. He held that a court could permit or refuse the live broadcast of its proceedings because all the superior courts of Zimbabwe have inherent power to protect and regulate their own processes. He however emphasised that the overriding principle in whether or not to allow the live broadcasting of court proceedings is the consideration of the interests of justice. As such to allow or disallow live broadcasts from the courtroom is the discretion of the court guided by the interests of justice concept but subject to the limitations imposed by the call for every case to depend on its own facts and circumstances. The case before us is indeed extra ordinary. The gruesome manner in which the deceased was killed required this court to make its judgment open to all Zimbabwean citizens, to enable the public to appreciate first-hand the court’s reasons for the verdict it would return. As judges we owe to the public, from whom we derive our judicial authority, a duty to give reasoned decisions and to ensure that the public has access to such judgments. In addition, the decision to permit live coverage of the trial would promote full, fair and accurate reporting of these proceedings. It was on basis that we concluded that it was in the interests of justice to allow the mentioned institutions to broadcast live, the handing down of this judgment. We now turn to the court’s decision in this case. In George Orwell’s 1945 novel The Animal Farm, when negotiations between the head pig and the farmer became ugly, the other creatures were said to have looked from pig to man and from man to pig but already, it was impossible for them to distinguish between person and beast. That episode in the novel, brings to the fore the question of how much of the animal is in human beings or conversely how much of human beings is in animals. Humanity, with its capacity for abstraction is considered clearly distinct from animals which have no ability to rationalise their feelings or control their instincts, appetites and passions. This murder, an unconscionable act of mortal violence unfortunately rubbishes that perception. From whichever side one views it, the inescapable conclusion is that there is no HH 396-23 CRB 26/22 sharp human-animal divide. It is further proof that the boundary between what is animal and what is human even in these modern times, is very blurred. The deceased Tapiwa Makore (Junior), so-called by virtue of being accused 1’s namesake was a seven year old boy. He went missing in the afternoon of 17 September 2020. His parents and other villagers in Makore village in Murewa mounted a search from the time it was noticed that the boy was missing. Their efforts were in vain. As will be illustrated later, his body or what remained of it, with the head, both hands and both legs having been cleanly severed from it was discovered the next morning at one of the villagers’ premises being dragged by dogs. It left little doubt if any that the boy had been killed for ritual purposes. Several pieces of his missing limbs were later separately discovered at various locations including in a disused village pit latrine. A series of events unfolded which led to the arrest of Tafadzwa Shamba (accused 1) and Tapiwa Makore (accused 2). Two other accused persons who were discharged at the close of the prosecution’s case after the state withdrew charges against them were also arrested. They were charged with the murder of the deceased boy. The allegations were that on 17 September 2020 at Makore Village in Murewa, each or both of the accused persons unlawfully and with intent to kill caused the deceased’s death by intoxicating him with alcohol before chopping off his head from the neck and severing his lower and upper limbs with an unknown object. The deceased died from the injuries. The state further alleged that the accused killed the deceased for ritual purposes because they wanted to use his body parts as a charm to enhance their business. In pursuit of their objective accused 1 and 2 lured the deceased from his mother’s garden to accused 2’s homestead. They locked him up in one of the rooms. Accused 1 proceeded to collect from accused 2 who had bought it at Katsande homestead, five litres of an illicit home brew commonly called skokiana. He mixed the brew with sugar to make it palatable for the boy. He gave him the concoction to drink. The boy became inebriated. Around midnight the two accused took the child to the foot of a nearby mountain. Accused 1 carried the boy on his back. Once there they laid him on some mats. Accused 1 sat abreast the boy and callously cut off his head whilst accused 2 was holding the legs. Like butchers on a slaughtered beast, they set to remove both the boy’s hands and legs from the body. They packed the body parts into black plastic bags. On their way back, they dumped the deceased’s torso at a place near a village graveyard. When they got to accused 2’s homestead, they kept the parts in plastic buckets. The villagers mounted a search for the missing boy that evening. Needless to say, he was not found. The next morning the missing boy’s torso was recovered from Summer Murwira’s HH 396-23 CRB 26/22 homestead being dragged by dogs. A report was subsequently made to the police. Other parts from the boy’s body were later discovered. The police arrested accused 1 after they stumbled upon his blood stained clothes. Accused 1 then implicated accused 2 leading to his arrest. The police took the recovered body parts for a deoxyribonucleic acid (DNA) examination. From a layman’s point of view, DNA refers to molecular structures which connect hereditary characteristics of living organis