THE State V Maxwell Sveto AND Edward Kapindu

### Preamble
1
HB 59-19
HC (CRB) 1/19
XREF HC TONGOGARA CR 11/01/18
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THE STATE

versus

MAXWELL SVETO

and

EDWARD KAPINDU

HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Mr W T Matemba and Mrs L Sithole

GWERU CIRCUIT 4 AND 5 FEBRUARY 2019

Criminal Trial

M Ndlovu for the state

A Chinamatira for the 1st accused

Ms G T Nyabawa for the 2nd accused

MABHIKWA J:	The two accused persons are facing a charge of murder in terms of section 47 (1) of the Criminal Code.  It was alleged that on 31 December 2017 at Chikato Business Centre in Shurugwi, the two accused persons together with others who are still at large, caused the death of Amos Washington Mawere by striking him with an iron bar, stones and machete on the head and right eye intending to kill him or realizing the real risk or possibility that their conduct may cause death but nonetheless continued to engage in that conduct despite the risk or possibility.

The state outline, marked Exhibit 1 will not be repeated in toto in this judgment.  Surfices to say that on 31 December 2017, the deceased was allegedly drinking beer with other patrons at Tagwirei Bottle Store.  The accused persons suddenly appeared chasing one Tariro Mapopota.  They were armed with an assortment of weapons.  Acting in common purpose, they randomly attacked patrons including the deceased who suffered deep cuts on the forehead and back head.  He died as a result of those injuries.

The accused denied the murder charge.  The 1st accused’s defence outline marked Exhibit 2 was simply to the effect that he never assaulted the deceased in any way on the day in question.  He had an altercation with Tariro Mapopota who had hit him with an open hand on the face.   In retaliation, he hit Tariro on the face with small size stone, and went on to chase him away from the bottle store.  He states that he had nothing to do with the deceased’s death and believes that he was only arrested because he happened to quarrel with Tariro at the alleged place and on the same date.  He denies having acted in common purpose with anyone and causing the death of the deceased.

The 2nd accused’s defence outline (marked Exhibit 3 is to the effect that he denies acting in common purpose with anyone and causing the deceased’s death.  He states that on the day in issue, he was going about his business at the said business centre but was at Ziyambi shop directly opposite Tagwirei bottle store where the deceased was fatally struck.  He observed 1st accused arguing with Tariro Mapopota, whereafter they pushed and shoved each other before 1st accused struck Tariro with a machete.  1st accused was with his brother Clever who also struck Tariro with an iron bar.

The state also produced in terms of section 314 of the Criminal Procedure and Evidence Act, the post mortem report number 16-15-18 by Dr Sanganai Pesanani who observed that the deceased had multiple wounds, particularly on the head and face area as marks of violence.  He concluded that the cause of death was

1.	Subarnoid Haemorrhage

2.	Blunt force trauma head

3.	Assault.

The state further produced the confirmed warned and cautioned statements of the two accused persons.  Also produced in terms of section 314 of the Criminal procedure and Evidence Act were the evidence of Clive Ducha, Elisha Simba Dhova, David Shumba, Obey Kuramwa, Believe Zireva and Sehliselo Khumalo.

Tawanda Mugova was the first witness.  He is the proprietor of Tagwirei bottle store where the deceased was seated when he was attacked.

Nothing much turns on this witness’s evidence other than that he was seated together with his patrons at the bottle store at about 2000 hours on 31 December 2017.

He said that suddenly there was a vicious attack from a gang of people who suddenly appeared running from a passage way that is between two shops, one of them being his bottle store.  He stated that the attack was so vicious and swift that he did not even identify any of the attackers.  He however saw the attackers chasing after Tariro Mapopota who was running towards a bushy area.  When he rushed to his vehicle to switch on the vehicle and use its lights to see who these people were, they had disappeared.

This witness’s evidence was important only on a few aspects.  Firstly he confirmed that though he did not identify them, the attackers were carrying an assortment of weapons.

Secondly he confirmed that as they emerged from the passageway, the attackers appeared to have well planned their attack which was targeted at certain individuals.

Thirdly, he confirmed that this was the one and only attack wherein the deceased, who had been sitting behind him just before the attack, was killed.  Soon after the attack, he noticed deceased lying lifeless.

The second state witness was Tariro Mapopota.  He told the court that he was seated on the veranda of Tagwirei bottle store when he saw five people arrive in a huff and armed.  These are Clever Sveto, the 1st and 2nd accused, Julius Zendera and Peter Tachiona.  Instantly, he was under attack.  Clever attacked him with an iron bar on the head and 1st accused struck him across face with a machete.  Under such heavy attack and with little or no time to react, he ran for dear life towards a bushy area.  He was attacked again in the shoulder area and the forehead.  Having run about 100 metres, they abandoned him and disappeared into the darkness.

On arrival home he was ferried to Shurugwi Hospital and thereafter he was transferred to Gweru General Hospital where he remained admitted for five (5) days.

This witness corroborated the first witness on the way the attack started.  Both explained how the attackers suddenly appeared from a passageway.  They corroborate each other on the swiftness and viciousness of the attack.  They corroborated each other on the reason why they did not see much of the attack and in particular, the attack on the deceased.  They were themselves under attack and instinctively concerned with saving their own skins.  They could not have had the luxury of watching the attack unfold.  Whilst the first witness did not even identify the attackers, the second witness noticed at least that the attackers were led by Clever Sveto followed by the 1st accused.

Both witnesses corroborate each other well on the fact that prior to the sudden and swift attack the deceased was seated just a few metres away at the same bottle store.  They were literally at the same place.  First witness said the deceased was just behind him.  The second witness explained that the deceased was in fact his nephew.  Prior to the attack, he had been seated just about 3 metres away from him.

The two witnesses were clear that this was the one and only attack which left the deceased without his life.  On this point, they were corroborated by both accused who also admitted that there was no other attack.  It must be noted though that in his evidence, the 1st accused described the incident as an altercation between him and the second witness wherein he claims that the second witness spanked him.  He retaliated by striking him with a stone and then chased after him as he (second witness) ran away.  The 2nd accused on the other hand, testified that he observed, as recorded in his confirmed warned and cautioned statement accused 1 striking Tariro (second witness) with a machete whilst his brother Clever Sveto also attacked the same Tariro with an iron bar.  The only similarity therefore is that the two accused persons narrow the incident to an attack on Tariro Mapopota only. However, in his testimony in court, the 2nd accused amplified his evidence on this aspect as will be shown later in this judgment.

Both witnesses, particularly first witness (Tawanda Mugova) and to some extent corroborated by accused 2, were clear that the incident appeared to be a well-planned attack targeting certain individuals.  When asked by the court if he knew the motive of the attack, accused 2 explained that he learnt before his arrest that locals were talking about it that two rival groups were carrying over a fight that had taken place a week earlier on Christmas day.  The one group comprised mostly the Sveto brothers Clever, Maxwell (accused 1), Felix and Lovemore.  The other group comprised of the relatives Amos Washington Mawere (deceased), Tariro Mapopota (2nd witness) and Clive Mudutshwa (who was seated with deceased at the time of the attack) plus Elisha dhova and Tawanda Mugova (first witness).  From that evidence therefore, it is not surprising that of those that were identified during the attack, the Sveto brothers were leading the attack whilst the deceased Mawere and his uncle Tariro were victims.

With their evidence, also as corroborated by the accused persons as shown above, the court found the two state witnesses credible and reliable.  They were honest and careful enough not to falsely incriminate the accused or unduly exaggerate the roles they played.  The first witness for example was frank enough to the court that in that quick attack, he could not identify any particular person amongst the attackers as he himself was also scaring for cover.  The second witness frankly repeated several times especially in cross examination that he did not see how exactly his nephew was attacked and by who as he himself was also under attack and busy wading off blows before he took to his heels.  He was also frank enough to say that although he saw the five (5) men arriving he did not seen what the other three (3) Julius Zendera, Peter Tachiona and accused 2 were holding or what they did after their arrival.

The court has no doubt that the two state witnesses were telling the truth of what that happened that “Halloween” like evening.

At the close of the state case the two counsel for the accused persons made applications for the discharge of the accused persons in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].  The application was opposed by the state.  This court will not waste further time by repeating the reasons given in its ruling in dismissing the applications.  Surfices to re-iterate that the applications had no merit.

The 1st accused testified in his own case.  He re-iterated his defence outline.  He claimed in his evidence that on the fateful evening, he indeed got to Tagwirei bottle store in the company of the persons named by the second state witness.  He however states that for 30 minutes after his arrival he was chatting with a friend at the steps area of the bottle store before he accidentally spilt Tariro Mapopota’s beer.  He claims that Tariro then assaulted him with an open hand.  He picked up a stone and struck Tariro who ran away and he (accused) chased after him.

This version by the accused is unlikely to be true.  In fact the evidence from the second sate witness is that the attackers, who included accused 1 came running from elsewhere, attacked swiftly and disappeared.  There was no suggestion, even from the accused himself during cross examination of the state witness, that the 1st accused had in fact been part of the patrons at Tagwirei bottle store for 30 minutes preceding the attack which according to him was a minor fight between him and Tariro only. We dismissed this as patently false.  Apart from its contradiction with the state witnesses version, the court dismissed it for two other reasons.

Firstly it has already been shown in evidence and accepted that there was only one attack that left the deceased dead.  Accused one’s small fight leaves no one dead and he then feigns complete ignorance of an attack or circumstances of the deceased’s death.  Yet in his confirmed warned and cautioned statement, he gave facts that were unlikely to have come from a policeman who in any case was not at the scene of the murder and had no reason to cook up those facts.  In the statement, he admits committing the murder of Washington Mawere.  He goes on to state he and others were in possession of weapons.  He adds that he was in possession of stones, Peter Tachiona a machete, Julius Zendera a wire whip and accused two (Edward Kapindu) was in possession of stones.  He finally says that Clever Sveto was in possession of an iron bar which he used to assault the deceased (underling is mine)

As already stated above this statement by the accused was confirmed by a magistrate sitting at Shurugwi magistrate’s court in terms of section 113 of the Criminal Procedure and Evidence Act [Chapter 9:07].  It was further accepted by this court in terms of section 26 (2) of the same Act.  He cannot pool wool over this court by his feeble attempt to distance himself from that statement here in court.

Secondly, the 2nd accused’s confirmed warned and cautioned statement, which he maintained here in court clearly states that accused two observed accused 1 striking Tariro Mapopota with a machete (not a small stone) and his brother Clever Sveto also striking the same Tariro with an iron bar.  The statement by accused two corresponds with the evidence of Tariro in that respect.

Accused 2 also cleared what initially appeared to be a nonsensical attack with no motive.  He clarified, as shown in his evidence in court and in his statement that there were two rival gangs.  The Sveto gang appeared to have sat down and planned to attack the other group taking them by surprise as they drank beer at Tagwirei bottle store, perhaps moreso since Tawanda Mugova the proprietor of that bottle store, is fingered as being part of the rival group.

The court therefore finds that the murder, considering its execution, the weapons used and the body parts targeted, was planned with an intention to kill.	It is the court’s finding that accused one was part of that planning and common purpose.  His counsel must of course be commended by the court that though belatedly he ultimately conceded that his case was untenable particularly in the face of the confirmed statement and overwhelming evidence.

As regards the 2nd accused, he remained unshaken in his defence overally.  He stuck to both his defence outline and confirmed statement.  He was mentioned by accused 1 in his confirmed warned and cautioned statement.  But in terms of section 259 of the Code, he cannot be convicted on the confessions of another let alone where that confession is recanted in court.  The confession, though confirmed by a magistrate in terms of section 113 of the Criminal Procedure and evidence Act, the provisions of section 256 (2) will not operate against him in those circumstances.

Apart from that, in terms of section 196 of the Criminal Codification and Reform Act [Chapter 9:07] that deals with co-perpetrators in a common purpose type of case, the state has first to place the accused sufficiently close to the offence other than his mere presence in the vicinity.

The state also commendably conceded that its case is weak against the 2nd accused.  Having been put on his defence, the 2nd accused struck the court as generally truthful.

In the circumstances and from the forgoing, the court finds as follows:

1.	Accused 1 is found guilty of murder with actual intent.

2.	Accused 2 is found not guilty and acquitted.

Sentence

The court has always emphasised the sanctity of life.  Needless loss of life will not be tolerated whatsoever.  What makes this murder even worse is the fact that this was a vicious gang attack and clearly planned and executed at night.  It was perpetrated on unsuspecting patrons minding their own beer business at a Business Centre.  The attack, in the manner it was carried out, could easily have claimed more than one life such as that of the second witness.  These courts for time immemorial have always passed harsh sentences in cases involving gang attacks.

The courts cannot sit back and allow a situation wherein people organize themselves into gangs, move around carrying machetes and iron bars in public and boast about their ability to use them ruthlessly on any one at anytime.  Some of them have even become famous for their ruthlessness and have names like “Mashurugwi”, “AmaNkayi”, “AmaFilabusi” and so on.  They literally behave like they are in the jungle.  Those who behave like wild animals cannot and should not expect the courts to treat them like humans.

The accused’s counsel has submitted that in this case, he has nothing meaningfully good or mitigatory that can be said in favour of the accused.  Indeed even as shown in the reasons for judgment, the case was a bad one and there was no excuse for such conduct.

Gangsterism is an old and barbaric way of thinking that cannot be tolerated in modern society.  What simply remains in accused’s favour is that he is a first offender with a very young family especially the two minor children aged 3 and 7 respectively.  Though he was not formerly employed, it has been submitted that he was doing his best to support that family on subsistence farming.

In a case committed in aggravating circumstances, the court may impose the death penalty.  It still however, has the discretion not to impose it.  Still, its hands are tied as it cannot impose a sentence of less than 20 years imprisonment.  We are convinced that the accused is not the kind of person with that inherent weakness necessitating permanent removal from society, though he may have to self-introspect for a considerable period away from it.

In the circumstances, the accused is sentenced to 35 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Mavhiringidze and Mashanyarare, 1st accused’s legal practitioners

G T Nyabawa, 2nd accused’s legal practitioners