S v Tabarinda & Anor (HB 38 of 2017; HC CRB 27 of 2017) [2017] ZWBHC 38 (2 February 2017)

1 HB 38-17 HC (CRB) 27-8-17 XREF MTAPA CR 01-12-16 THE STATE versus GARIKAI ZVAWANDA TABARINDA and ITAI MANYOKA HIGH COURT OF ZIMBABWE MATHONSI J GWERU 31 JANUARY 2017, 1 AND 2 FEBRUARY 2017 Criminal Trial S Pedzisayi for the state R Chidawanyika for the 1st accused J Mahamba for the 2nd accused MATHONSI J: The two deceased persons Nancy Lorraine Sibanda (“Nancy”) who was aged 28 and her cousin sister Cynthia Hlabangana (“Cynthia”) who was aged 24 died a painful and defining death, the victims of an arson committed at their newly rented lodgings at No 343 Fusire Road, Old Ascot Gweru. They succumbed to 60% and 55% mixed level burns of the body respectively after a rejected former boyfriend of Nancy who was smitten by spikes of mortal passion had, during an episode of envy, or jealousy, thrown molotov cocktails of petrol into a room occupied by the two ladies before exiting the scene and proceeding to enjoy a beer with the driver of a hired motor vehicle at the Ascot shops located a short distance away from the scene. At the material time Garikayi Zvawanda Tabarinda (accused 1) the former boyfriend of Nancy was aged 43 while Itai Manyoka, the driver of the hired Honda Fit motor vehicle registration number ADB 2302 dark blue in colour smarting a brown plastic serving as the rear wind screen, was aged 32 years. The two are now jointly charged with two counts of murder in contravention of s47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] it being alleged that on 2 December 2016 at House Number 343 Fusire Road, Old Ascot Gweru, HB 38-17 HC (CRB) 27-8-17 XREF MTAPA CR 01-12-16 the two of them, or one or both of them unlawfully caused the death of Nancy and Cynthia by setting fire in their room using petrol thereby inflicting extensive burns on their bodies intending to kill both of them or realizing that there was a real risk or possibility that their conduct might cause death but continuing to engage in that conduct notwithstanding that risk or possibility. As a result Nancy and Cynthia died on 4 and 6 December 2016 respectively. Although accused 1 pleaded guilty to the charge, a plea of not guilty was entered according to law. Accused 2 pleaded not guilty to the charge. In his defence outline, accused one stated that he started having an affair with Nancy about January 2015 while she was working at an Ecocash Shop. At some stage they commenced living together although they were never married. In 2016 they opened a business together at Ascot Shopping Centre in Gweru but both their romance and business soon ran into turbulent weather, owing to his drinking habits. When drunk he would lose his mental faculties and would become hostile and abusive. Accused one stated that himself and Nancy broke up sometime in October or November 2016. They shared the stock that they had in the shop and commenced to live apart. Later, with the help of one Jabulani Mtetwa, they started trying to patch up their relationship although Nancy had obtained a protection order against him. On 1 December 2016 Nancy had secured new accommodation at number 343 Fusire Road, Old Ascot Gweru and was moving to those lodgings when he decided to give her a hand. Together they moved her property from her previous lodgings commencing at about 2100 hours and finishing at about 2200 hours. During that process a text signal came onto Nancy’s phone and when he forcibly dispossessed her of that phone, he intercepted a love message from Nancy’s lover who was saying he had gone to Harare. A misunderstanding arose between them over that message. As he was expecting to receive money through ecocash on Nancy’s phone he took that phone with him and hired a taxi driven by accused two going into town to cash out the money he had received managing to cash out at the Bowling club. Thereafter himself and accused two proceeded to Zuva Petroleum where he bought 9 litres of fuel. He wanted to give that fuel to the owner of a vehicle he intended to use the following morning going to Gothwick Mine in Silobela. He then paid accused two $6-00 and HB 38-17 HC (CRB) 27-8-17 XREF MTAPA CR 01-12-16 asked to be dropped at his home, except that he did not go to his home but was driven to Nancy’s new lodgings at number 343 Fusire Road Old Ascot, Gweru. He was not dropped there either, but he says when he knocked at Nancy’s room he heard whispers and suspected that she had a boyfriend inside. Accused one stated that he told Nancy that he would throw petrol inside the room. Her response was to challenge him to do so. In a fit of rage he threw the two containers inside the room through a broken window pane and followed that with a match stick before departing. He returned to accused two’s waiting vehicle and asked him to drive to the shops where they bought some beer. After buying beer they went to No 513 Tembo Road, Ascot Gweru where he told his cousin (he was later to metamorphose to be his nephew) that he had committed a serious offence of burning Nancy and her boyfriend inside the house. They returned to the scene of crime where the cousin investigated and discovered that he had infact burnt two women who had been rushed to hospital. They proceeded to Gweru Hospital where, upon being identified by Nancy’s relative he was sprung by accused two in his motor vehicle. Even after what he called a heinous crime that he had just committed and escaping arrest at the hospital, he says he was driven to Mkoba 6 where he continued drinking at Giant’s Nite Club. He only managed to go home at 0500 hours where he was arrested. Accused one stated in his defence outline that he had been so intoxicated and so enraged by his suspicion that Nancy was cheating on him that he failed to appreciate the consequences of his actions. Accused two stated in his defence outline that he had not known accused one until he hired him on the fateful night. Once he had been hired by accused one the fact that the latter was a stranger to him did not stop accused two from taking over the responsibility of hunting for two fuel containers for the stranger the moment they drove into town that night. He stated in his defence outline that when accused one hired him in Ascot, he told him he wanted to be taken to town to buy petrol for use at his mine. Of course this explanation was at variance with accused one’s own explanation firstly that he had to go to town after he had failed to access money from HB 38-17 HC (CRB) 27-8-17 XREF MTAPA CR 01-12-16 ecocash outlets in Ascot which were closed and secondly that once in town and having gotten cash he decided to purchase petrol to fuel a vehicle which was to take him to Gothwick Mine in Silobela the following morning. Accused two stated further that after purchasing the fuel he drove accused one to number 343 Fusire Road, Old Ascot, Gweru where upon arrival accused one disembarked with the petrol. He requested accused two to wait for him before going inside. He returned after 15 minutes and requested him to drive to the nearby shops where they parked. Accused one bought some beers which they shared. It was then that he observed a big fire in the direction where they had come from. He also beheld a fire engine proceeding to the fire. At that stage accused one appeared worried. He suggested to him that house number 343 Fusire Road could have caught fire. Accused one again requested him to drive to a certain house at another part of Ascot called TCs where they picked accused one’s nephew before returning to the scene of crime to find out what had transpired there. Along the way they saw the fire engine leaving the scene and upon arrival it is accused one’s nephew who went in to investigate. When the nephew returned he reported to accused one that the situation was bad as some occupants of the house had been burnt and taken to hospital. On accused one’s instructions he drove to Gweru General Hospital. At the hospital accused one entered the casualty department leaving him in the vehicle only to retu