S v Sipanda & Anor (CRB 6 of 2019; HMT 15 of 2020) [2020] ZWMTHC 15 (31 January 2020)

1 HMT 15-20 CRB 06/20 STATE versus REMIGIOUS VITALIS CHIBANDA SIPANDA and TAPIWA ZVOMUNO HIGH COURT OF ZIMBABWE MUZENDA J MUTARE, 28, 29 and 31 January 2020 Criminal Trial ASSESORS: 1. Mr Raja 2. Mr Magorokosho Mrs J Matsikidze, for the State P Nyakureba, for the First Accused C Ndlovu, for the Second Accused MUZENDA J: The two accused are charged with Murder as defined in s 47 (1) (a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] where it is alleged by the State that on 4 November 2018 and at Magamba Turn-off, Rusape, the two accused in the company of one Lucky, who is still at large, all and each or one or the other of them, unlawfully caused the death of Emmanuel Ngwarati by assaulting him with booted feet and fists and stabbing him with a knife all over the body intending to kill Emmanuel Ngwarati or realising that there was a real risk or possibility that their conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries which the said Emmanuel Ngwarati died. Both accused pleaded not guilty to the charge. RIMIGIOUS VITALIS CHIBANDA SIPANDA: ACCUSED ONE’S DEFENCE OUTLINE Accused 1 stated that on 4 November 2018, he was at home in Overspill Epworth in Harare. He does not know the other accused person(s). He never participated in the commission of the crime. He was arrested because he was the last person to communicate with the deceased on the morning of 4 November 2018 through his mobile phone. He will further state that the deceased called him on 4 November 2018 only enquiring about his money and drugs. The deceased wanted to know when the accused person was coming to Rusape. Accused 1 was HMT 15-20 CRB 06/20 arrested on 23 November 2018 at Overspill, Epworth, Harare at a bar where he had gone to see his girlfriend. He prayed for an acquittal. TAPIWA ZVOMUNO: ACCUSED TWO’S DEFENCE OUTLINE Accused 2 denies causing the death of the deceased as alleged. On the fateful day he received a call from his acquaintance Lucky inviting him to travel from Harare to Rusape so that they could indulge. When he arrived in Rusape he met up with Lucky who was drinking alcohol and already in the company of the deceased and one Remmy. To the second accused the three appeared before him to be mutual friends. All four of them were partaking alcohol in a Night Club. At some time accused 2 overhead an argument between deceased and Lucky centred on some gold parcel that had allegedly been left at Nyazura Township by the deceased. As the night progressed Lucky suggested to the deceased that they should all proceed to Nyazura to retrieve the gold parcel from deceased’s girlfriend’s place, where it had allegedly been left. The deceased agreed to the proposal on condition that his car was fuelled. Accused 2 loaned Lucky $20-00 to procure fuel and the money was given to the deceased to buy fuel which he did. The four of them got into the car with deceased driving and Lucky seated in the front passenger seat. Along the way the argument between Lucky and deceased intensified and the deceased stopped the car on the side of the road. He switched off the engine and lights and got out of the car. The deceased relieved himself by the side of the car. Lucky also got out of the car, deceased hinted that he was no longer taking them to Nyazura to pick up the gold parcel. Lucky was incensed and a fist fight erupted between the two. The deceased brought out a knife from the pocket of his trousers and threatened to stab Lucky. At that moment accused 2 and Remmy got out of the vehicle and restrained the two. Remmy held Lucky and the accused held the deceased’s hand which was holding the knife. Lucky got free from Remmy’s grip and charged at the deceased. Lucky forcibly took or snatched the knife from the deceased. During the melee, accused 2 was stabbed on his hand and began to bleed. He released the deceased and went to stand by the car. Lucky and the deceased continued their altercation and he observed Lucky stabbing deceased several times on the thigh. The second accused screamed at Lucky to refrain from the aggression as the deceased was apparently hurt and was bleeding. Lucky was not deterred and he continued to attack the deceased. Remmy was also calling out to Lucky to stop the violence. Eventually Lucky stopped and the deceased was crying out that he had been hurt badly. HMT 15-20 CRB 06/20 Lucky was belligerent indicating that he wanted his gold. Deceased indicated that he was not going to release the gold and that he was better off dead. The deceased twice crawled into the road so that he could be run over by passing vehicles. On both instances the deceased was pulled away from the pending danger by Remmy. Deceased shouted that he was going to commit suicide that night. Lucky suggested that deceased be restrained so that he could not harm himself. Lucky and Remmy tied up the deceased on his legs and arms. They ferried him a few metres away from the road and placed him there. Accused 2 pleaded with Lucky not to leave the deceased at that spot but Lucky would not hear any of it. Lucky ordered the accused and Remmy into the car and he drove back to Rusape. On the way back to Rusape the second accused pleaded with Lucky to be dropped off at the bus terminus to catch up a lift to Harare, Lucky obliged and he was dropped off. Before Lucky and Remmy drove away Lucky disclosed that he had taken deceased’s phone and that he was going to use same to recover the costs of the fuel that had been put in deceased’s car. Accused 2 got a lift that took him to Harare. The following day he was called by Lucky who suggested that they should meet in town. He obliged and upon arrival he found Lucky waiting for him. Lucky produced a white Samsung phone and indicated that he was looking for a buyer to sell the cell phone to so that he would raise bus fare to his residence in Epworth. The second accused contacted Ernest Mhishi who came and purchased the phone for $10-00. Lucky took all the money and parted way. That was the last time accused 2 saw Lucky. A few days later he was arrested and he told the police the full story but they would not accept it. Accused 2 was psychologically and physically abused by the police during investigations to the extent that they forced him to sign a false Warned and Cautioned Statement. Even during the confirmation proceedings the police officers maintained vigil and a menacing presence. Accused 2 urged the court to appreciate that he never attacked the deceased, he was actually injured or stabbed when he intervened to stop the fight between deceased and Lucky, he did not participate in tying up the deceased he protested to Lucky that what he was doing was wrong. When deceased was tied up and taken away from the road he was much alive but had been injured. Accused 2 prayed for his acquittal. BACKGROUND The State summary produced by the State briefly state that the two accused and one Lucky all resided in Epworth, Harare and the deceased lived in Rusape where he operated an unregistered taxi. On 3 November 2018, the deceased left his home to visit his rural home but HMT 15-20 CRB 06/20 returned the same day. On the same day, the accused persons and their accomplice left Epworth, Harare by bus destined for Rusape. In Rusape they went to Cheers Bar and drank beer. After some time the two walked to the Harare-Mutare road while their accomplice remained at the bar for a taxi. In no time the accomplice met the deceased who then called accused 1 to find their exact location. When the said Lucky and the deceased arrived where the two accomplice were, the three immediately attacked the deceased with clenched fists, booted fit and a knife all over his body. They immobilised him before taking his cell phone and wallet which were in his trousers pocket. They tied his hands and feet and blindfolded him before putting him on the car which one of them drove. They drove along in his vehicle and upon r