THE State V Prosper Bhebhe

### Preamble
1
HB 114 - 25
HCBCR 6275/24
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THE STATE

Versus

PROSPER BHEBHE

HIGH COURT OF ZIMBABWE

MUNGWARI J

GOKWE, 28 JANUARY 2025

Assessors:	Mr Gweme

Dr Kunaka

Criminal Trial

M Musarurwa, for the state

A Chinamatira, for the accused

MUNGWARI J:    In the evening of 14 October 2019, the body of twenty-one-year-old Aleck Mavhiya (hereinafter the deceased) was discovered lying sprawled on the eastern side of Ntsukamini tuck shop Khongwane village in Silobela. It was alleged that he had been attacked by Prosper Bebhe (hereinafter the accused), acting in common purpose with three male accomplices Mtokozisi Nyoni, Mpatisi Nyoni and Shepherd Nyoni (hereinafter Nyoni brothers). All of the accomplices are fugitives from justice. The state alleged that the attack on the deceased was unprovoked. The accused in the company of the Nyoni brothers, struck the deceased with sticks all over the body, stabbed him with a knife on the forehead and thigh and also struck him with an axe on the hip and caused him mortal injuries.

On these allegations the accused was arrested and arraigned before this court to answer to a charge of murder in contravention of section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the CODE). It was alleged that when he attacked the deceased, he intended to kill him or realized that there was a real risk or possibility that his conduct might cause death but continued to engage in that conduct despite the risk or possibility.

The accused denied the charge and stated that the deceased was assaulted by Mtokozisi, Mpatisi and Shepherd Nyoni. He denied having chased, assaulted or having an altercation with the deceased. He also denied participating in the deceased’s killing and stated that, he did not have a motive to kill the deceased. He conceded to having being in possession of an axe that evening but claimed that he had possessed it long after the incident occurred and when he was collecting his tools in preparation for closing his kitchen and tuck-shop. Further, he argued that he used the axe to chop firewood for his kitchen. He rounded up his defence outline by stating that the only plausible reason for the allegations is that the deceased was attacked near his tuck shop and kitchen. He refuted any allegations of association or acting in common purpose with the mentioned perpetrators.

The state opened its case with an application for the formal admission of five witnesses’ testimonies. Later on, in the trial it also applied for the formal admission of an additional witness to make them six in total. The defence consented to this arrangement and the testimonies of Aleck Gara Majoni, Regis Mavhiya, Simon Mwale, Phakamani Sibanda, Doctor Juana Rodriguez Gregori and Ishmael Chinungu were formally admitted, as they appear in the state’s summary of evidence in terms of s314 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPEA). The evidence is summarized as follows:

Aleck Gara Majoni (Aleck)

The witness said he knew both the accused and the deceased as local villagers. On the fateful day at around 7 pm he was at Fidza’s tuckshop when he heard noise coming from the accused’s tuck-shop. He decided to investigate and proceeded in the direction of the noise. He arrived to find the three Nyoni brothers assaulting the deceased. Two of them had sticks in hand while the other had a Colombia knife. They were taking turns to assault the deceased as they demanded that he supplies them with information on the whereabouts of his brother Martin Mavhiya who they accused of assaulting their relative the previous day. He tried to restrain them but instead received threats of assault from the trio. In the end he managed to help the deceased to stand. Soaked in blood the deceased could only stagger as he passed through Barton Mtambo and Mpatisi Nyoni’s tuck shop where he collapsed into a heap and could not get up. Oddly enough so the witness stated, he saw the accused hovering over the deceased while holding an axe. He was about three metres from the deceased who was lying down. Aleck’s evidence was crucial in that he saw the accused holding an axe and standing next to the deceased who was lying down bleeding at the time of the attack on the deceased by the Nyoni brothers.

Regis Mavhiya, the deceased’s younger brother’s evidence was to the effect that on the fateful night he was informed that his brother was being assaulted. He rushed to the scene and found the three Nyoni brothers as well as the accused still at the scene. He enquired on the whereabouts of the deceased from the accused who told him that he had left heading in the eastern direction. He followed the given direction and found the deceased lying dead on the ground and sporting stab wounds on his forehead and thigh.

Simon Mwale, a duly attested police officer attended the scene after he received a report of the deceased’s death. At the scene he observed the body of the deceased some 30 metres away from the tuck shops. He also recovered an axe and some sticks as the weapons used during the commission of the offence. Crucially he observed blood spattered on the walls of the accused’s shop, in front of the tuck shop and behind. From his testimony we deduced that the scene was a blood bath. His evidence is worth mentioning, in that he was clear that the assault on the deceased was committed close to the accused’s tuck shop and other tuckshops as well. From the witnesses’ irrefutable evidence, we are certain that the assault was no ordinary assault but was a vicious one as in the aftermath of the assault there were clear signs of blood spatters on the walls of the accused’s shop. The witness further said that he and another police officer, Phakamani Sibanda attended to the recording of the accused’s warned and cautioned statement in accordance with the law.

The State followed this up by tendering with the consent of the defence, a post-mortem report which was compiled and sworn to by a pathologist, Dr Juana Rodriguez Gregori on 16 October 2019 at United Bulawayo Hospitals as Exhibit 1. The doctor observed the following marks of violence;

“Contusion wound of 2cm length per 1cm width located in left elbow external side face

Incise injury of smooth edges, 9cm length situated in the back face of the left thigh

Excoriation in plate at level of the lumbar left region, left shoulder, front and parietal region.”

An internal examination also revealed a hemorrhagic infiltrate in the front and parietal left region as well as subarachnoid haemorrhage in the right parietal and frontal region with signs of cerebral edema. In the end the doctor concluded that the cause of death was due to Subarachnoid Haemorrhage, brain contusion and head trauma. Exhibit 1 made the deceased’s cause of death uncontentious.

The State also tendered the accused’s confirmed, warned and cautioned statement as Exhibit 2. In it the accused denied the allegations and attributed the death of the deceased to the three Nyoni brothers. In addition, the State also tendered the axe, the alleged weapon used in the perpetration of the offence. It was tendered without contestation. The court observed that it has a homemade handle with a sharp blade. It is ominous looking and lethal at that. With the consent of the defence once again the State also tendered the sticks used to supposedly perpetrate the offence. The court observed that due to effluxion of time the sticks had dried up and withered. We could not conclude much else from the provision of those sticks. The weapons formed Exhibits 3 and 4 respectively.

Thereafter, the state called for the viva voce evidence of Barton Mutembu and Antony Mudukuti (Barton). Barton will be forgiven for the quality of his evidence. He must have been between a rock and a hard place as the accused is his father in-law because he (accused) is closely related to his wife. In addition, he is a fellow tuck-shop owner at the same place where the accused also ran his tuck-shop. On the other hand, he knew the Nyoni brothers as well as the deceased only as locals and nothing more. He told the court that from about 4pm of the fateful day, he was in the company of the deceased playing a game called snooker. At some point he saw the Nyoni brothers arrive at the place where they were. The deceased was now playing with one Daniel while he was sitting and watching. It got darker and he moved away. Sometime later he heard voices calling out to someone to stop. He saw the deceased running away with the Nyoni brothers in hot pursuit. Mtokozisi Nyoni was holding a knife while the other two were wielding sticks. He saw the deceased running towards an alley between his tuck shop and Fidelis Machona’s tuck shop. Due to fear, he scrambled to his feet and ran for safety and into his tuckshop. Breathless, he informed his pregnant wife of the reason for his haste.

Peeping from his tuckshop window which is a distance of about 15 to 18m from the scene, he saw the Nyoni brothers assaulting the deceased. The warring parties had now moved to the front of the accused’s tuck-shop.  Because of the seriousness of the assault he had closed himself inside his house and had to resort to peeping from the window as he felt it was not safe to venture out. With the aid of the illuminating light from the accused’s tuck-shop, he saw the trio viciously assaulting the deceased who was crying out in agony. The deceased was writhing and rolling on the ground as he sought to avoid the blows. One courageous man, Aleck Majoni arrived at the scene and tried to restrain the Nyoni brothers from assaulting the deceased. The men were determined in their attack on the deceased. At some point the deceased with the aid of Aleck managed to get up on his feet. Aleck instructed him to go and sit at Fidelis Machona’s shop (Fide’s shop) while he blocked the brothers from pursuing him. As the deceased staggered and made his way to Fide’s shop he saw the accused remain hovering around and outside his shop, the place where the deceased had been savagely assaulted. According to the witness, the accused was holding his axe near his chest. The witness confirmed that Exhibit 3 is the axe that he saw the accused clutching. The witness also confirmed that Exhibit 4 were the sticks that were used to assault the deceased by the Nyoni brothers. He further said he saw the deceased at Fide’s shop and the accused still standing at his shop, about 20 meters away from where the accused was now with his axe still in hand. When all the hue and cry had died down and after he had ascertained that it was safe for him to come out, the witness said he came out with a torch and used it to illuminate the place. He saw two of the assailants sitting under a shed while Mtokozisi Nyoni the other assailant was casually lounging by the accused’s shop at the verandah. He noticed that Mtokozisi no longer had the Colombia knife in hand. The witness could not confirm whether or not the accused had participated in the assault.

The witness was also clear that he saw the accused from his window at the time when Antony was busy refraining and blocking the trio from assaulting the deceased. He confirmed that it was the same atmosphere that had frightened him and made him run away and lock himself in his tuck shop. Not surprising he failed to explain what the accused could have been doing at the scene with an axe in hand in light of the highly explosive scene that he had earlier on described. The same atmosphere that he had witnessed and had ran away from. He was clear however, that the accused was not refraining anyone but just milling around. As already alluded to, we can take the witness’s narrative with a pinch of salt due to his close relations with the accused. He has every reason to be a little bit economical with the truth. For instance, in the state’s summary of the evidence, he told the police that he saw the accused person with an axe in hand and together with three other accused had chased and pursued the deceased behind the tuck shops and yet in court he chose to minimize the accused’s role and reduce it to just holding an axe albeit in the midst of a highly volatile atmosphere.

What we cannot take away from him, however is the fact that he saw the deceased running towards the alley between his tuck-shop and Fide’s tuck-shop. Additionally he saw the accused standing at the scene with an axe in hand. However, it was not after the assault as the accused wanted the court to believe but in the midst of the assault, when Aleck was busy blocking the assailants who were intent on continuing with the assault on the deceased. The witness did not see him collecting his tools from any place. The picture is fortified by the irrefutable evidence of Aleck Garamajoni who also stated the same. In the absence of a satisfactory response as to why the accused was hovering around with an axe in hand in an extremely charged atmosphere we are left to infer that the accused may have been doing what the witness initially stated in the state’s summary of evidence. That is, that he held an axe as he chased the deceased together with the Nyoni brothers.

Antony Mudukuti the second state witness left us in no doubt as to the accused’s role on the day in question. He said he saw the accused holding an axe standing at a corner close to where the assault was taking place. He then saw him throw stones in the direction of the deceased who was lying on the ground. He even spoke to the accused and asked him why he was doing that. Antony stated that the accused had instructed him to stay out of it and not interfere. At some point the accused had even misrepresented to him that the deceased and Aleck had gone home, after he asked for the deceased’s whereabouts after the assault. The witness was clear that while he did not see the accused strike the deceased with an axe, he had at one time turned his head away from an altercation he was having with one of the Nyoni brothers and had seen him standing next to the deceased, who was rolling and writhing on the ground while bleeding from the assaults. He explained the misrepresentation he had made to the police that he saw the accused strike the deceased with an axe by stating that this information had been provided to him by other on lookers who were not keen to come and testify. He had believed them because when he turned he saw the accused standing next to the deceased with his axe in hand. The witness is not a sophisticated man and would have reasonably believed the testimony of other on lookers. To this extent we found his explanation on the discrepancy of his statement believable.  According to the witness, the accused was the mastermind of the assault and that is why he delighted in seeing the assault on the deceased and did nothing to assist him. Instead, when he enquired from him why he was not assisting, he had told him not to interfere and to keep away from the altercation.  We found his truthfulness refreshing and his explanation of the onlookers’ version reasonable in the circumstances. He could have insisted and clung on to the version he gave to the police but he did not. His evidence together with the irrefutable evidence of Aleck Majoni and that of Barton Mutembu, left us in no doubt that the accused was seen at the crime scene with an axe in hand and had discouraged the witness Antony Mudukuti from interfering or assisting. He had also thrown stones at the deceased and at Antony when he attempted to shield the deceased from further assaults. We have no doubt in finding that through these acts the accused participated in the assault of the deceased.

Our findings are strengthened by the accused’s own testimony. He was desperate to make the court believe that he took the axe only after the deceased aided by Aleck had left his tuck shop. He testified that he only went out of his house after the trio and the deceased had left the scene. He said he saw Antony sitting down when he exited his tuckshop and he had asked him what had happened and that Antony had told him that the Nyoni brothers had assaulted the deceased and even tried to assault him. He said another person who was sitting with Antony had then asked him for a pincher of beer and he asked his child to bring it. Only after this did he go inside and get his axe and proceed to the veranda where he also removed his speaker. He had then gone to his shop and secured these items.

During cross examination, he suddenly made an about turn and admitted to having witnessed the assault but claimed that he only saw one assault. He conceded that even when he witnessed that single episode, he had done nothing to assist the deceased. We did not believe his version because we noticed that the admission came about because he had been put in a corner. Even then he still chose to minimise his role at the scene. Additionally, he confirmed that the axe, exhibit 3, is his. But he then tried to reconstruct his testimony when he was reminded of the three state witnesses’ who said they had seen him near the scene of the assault standing at some place near his shop and also near the deceased’s body holding an axe. He completely tied himself in knots saying it had taken him slightly more than a minute to take his axe from the kitchen and then to the veranda and the shop. We rejected his testimony as palpably false because even the evidence of Simon Mwale a police officer stated that the assault was serious.  It was not just a slap on the wrist such that the accused could purport to have acted in the casual manner that he said he did, that is remove his speaker and axe completely oblivious to all that was going on around him. We equally found it hard to believe that while others were cowering behind curtains and peeping through windows, the accused was so courageous that to him, it was business as usual. If we go by his adjusted narrative it means he was just standing in the middle of an assault staring and doing nothing while, Aleck Majoni and Antony were trying to restrain the Nyoni brothers and protect the deceased from further harm. Yet witnesses saw him hovering at the scene in the midst of the assault brandishing an axe. One witness was clear that the accused threw stones and discouraged him from interfering. His version of the events is unbelievable in the very least.

We have already stated that the accused was not trying to restrain anyone, but that he had told Antony to keep away and discouraged him from assisting the deceased. He even threw stones at the deceased. Additionally, he was holding a weapon -the axe- in his hand. He was seen in three different places at the scene. The first time, he was seen by Antony, standing by the corner of his shop. The second time he was about 20 metres away from the deceased who by then was sitting at Fidza’s shop. The third time, and he was seen standing very close to the deceased. Aleck Gara Majoni saw him standing three metres away from the deceased who was being assaulted. Antony had also turned his back in time to see him moving away from the bleeding deceased.

We take the time to explain all the above to show that the accused was hovering all over and around the scene. He was not stationary. Neither of the witnesses saw him packing his tools in under a minute as he claimed. The three witnesses all saw him all over the scene which others had run away from. He certainly wasn’t assisting. There is only one reasonable inference that can be drawn from his attendance at the scene. It is that he was one of the perpetrators. In reality, it appears the accused was the mastermind of the vicious assault.  He was present at the scene making sure that everything went according to plan. That would explain why he told Antony to keep away and not interfere and why he had even thrown stones at the deceased and Antony when he tried to assist the deceased for how else would he have felt so at ease at a scene where chaos reigned and others were fleeing from? A place where other assailants wielded a Colombian knife; swung sticks and the deceased was being savagely attacked and was wailing in agony.

But in all that no one alleged that they saw the accused directly attacking the deceased person and would that on its own, be enough to exonerate him from the commission of the crime. We think not because his participation in the commission of the murder is in more ways than one.

The law on the liability of co-perpetrators

The law in this jurisdiction is that the common law doctrine of common purpose was subsumed into the CODE under s 196A which deals with the labiality of co-perpetrators in the commission of a crime. The Supreme Court in the case S v Mubaiwa 1992 (2) ZLR at p. 362, outlined the guiding principles on which the doctrine of common purposes was premised in the following way:

Each individual in a common purpose is to be judged on his own state of mind

The actor’s role on which his criminal responsibility for the murder is founded is not necessarily in an act which is causerie linked to the deceased’s death but solely an act by which he associates himself with the common purpose to kill.

In the recent case of S v Madzokere and Others SC 71/21 Makarau Ja, (as she then was) dealt with and defined the doctrine of common purpose as:

“It is a principle that deems the participation of two or more persons in the commission of a crime where the two or more persons associate with a common intent to commit the crime and one of them does commit the crime. It thus provides for co-perpetrators of crime with a common intent. In essence the doctrine provides that if two or more people act together in pursuance of a common intent, every act done by one of them in furtherance of that common intent is deemed at law to be the act of them all.”

As already stated, s196A of the CODE provides for the liability of co-perpetrators in the following terms:

“196 A Liability of co-perpetrators

If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator.

The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they—

were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or

were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or

engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.

A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved.”

In the case of S v Bridget Muzadzi and Others HH 306-23, I also waded into the debate regarding the liability of co-perpetrators and said the following at p13 of the cyclostyled judgment:

“My understanding of the liability of co-perpetrators doctrine is that where it is evoked, the state has the responsibility to show that each of the accused possessed the requisite intention to commit the alleged crime. That onus is discharged by the prosecutor proving that each accused either had the direct intention or had the knowledge that the offence would be committed or realised that there was a real risk or possibility that the crime or another kindred offence would be committed. Once that is established, the actions of the principal perpetrator can be held as the conduct of every co-perpetrator. That rule applies even in instances where none of the perpetrators is identifiable as having played the role of principal perpetrator. It is immaterial whether or not the conduct of each co-perpetrator assisted directly in any way to the commission of the crime by the principal perpetrator. The legislature then proceeded to give guidelines in the form of factors which may assist prosecution in proving that two or more people accused of the same crime acted in common purpose. I paraphrase them to mean that:

where there is evidence that the co-perpetrators were present or were in the immediate vicinity of the crime scene in circumstances where they are directly or indirectly implicated in the commission of the crime or

where the co-perpetrators are linked in association to any conduct in the course of anything which may be deemed as conduct preparatory to any action or omission which results in the crime that they are charged with; or

Where the co-perpetrators participated in any criminal behavior as a collective before the conduct which resulted in the crime for which they are charged”

The above consideration will not only be applicable if and when the co-perpetrator withdrew from or disassociated himself with the criminal enterprise. That withdrawal must fulfil certain specified requirements.

Application of the law to the facts

The language which the legislature employed in s 196A illustrates that there is no requirement for the state to establish the existence of all the three considerations which aid to show the existence of a common purpose at the same time. The proof of one or more of them suffices.

From the evidence available, and as earlier discussed, we concluded that the accused was present at the crime scene. We also concluded that at some point, he must have chased the deceased together with the Nyoni brothers. There is also testimony that the accused threw stones at the deceased. He stoned Antony in an effort to prevent Antony from restraining the Nyoni brothers and assist the deceased from further assault. He uttered words whose effect was to discourage if not threaten Antony from intervening and assisting the deceased. Additionally three witnesses saw him standing close to the deceased with an axe in hand. He hovered around a highly explosive and volatile crime scene. From this our conclusion is that he brought himself within the requirements of s 196A (2)(a) in that he was at the crime scene in circumstances which directly implicated him in the commission of the murder. The factors which we have stated above all point to the unavoidable conclusion that he was part of the group that killed the deceased. His intention to commit the murder is also clear. The brutality and savagery of the assault is not in dispute. If he aided in the assault or prevented the intervention of those who wanted to rescue the deceased, the accused cannot be heard to argue that he did not realize that there was a real risk or possibility that the group’s action could lead to death.  We also did not hear the accused contend that he at any time dissociated himself from the actions of his accomplices.

In the same vein, we find it incredible that the allegations against the accused arose simply because the deceased was attacked near his tuck shop and kitchen. First, from a description of the scene, there were several other tuck-shops close to where the deceased was assaulted. We heard that the deceased ran towards an alley and was assaulted close to Brighton Mtembus’s shop and Fidelis Machona’s shop. Yet Brighton Mtembu and Fidelis Machona were not implicated in the commission of this offence. It was so, because they didn’t participate in the murder.  The accused’s excuse for his being incriminated in the attack is as lame as they come. We are satisfied that he acted together with the Nyoni brothers. As a result, he must have foreseen the real risk or possibility that his actions will result in the deceased death. He clearly had the intention or knowledge or realised the real risk or possibility that the deceased could be murdered. He must have supplied one of the weapons used during the commission of the murder. He was nonetheless reckless as to the consequences of his and his accomplices’ actions. It can safely be argued therefore that besides his presence at the scene, there was also a direct causal link between the deceased death and the accused’s actions.

From the above reasoning, we have no apprehension that prosecution managed to prove beyond reasonable doubt, that the accused committed the murder. Accordingly, the accused is found guilty of murder in contravention of s 47(1) of the CODE as charged.

SENTENCING JUDGMENT

The offender appeared before us charged with the crime of murder as defined in s47(1) of the CODE. He denied any participation in the assault. However, at the end of a contested trial we found that the offender and his accomplices who are on the run assaulted the deceased with different weapons which included an axe, sticks and a knife. We accordingly convicted him of the murder of the deceased.

We hasten to state that the deceased died a painful death at the hands of multiple perpetrators one of whom is the offender. Doctor Juana Rodriguez Gregori the pathologist who examined the deceased’s remains, stated that the cause of death was subarachnoid hemorrhage, brain contusion and head trauma.

From the above circumstances we must determine whether or not the offence was committed in aggravating circumstances. State counsel Mr Musarurwa submitted that the murder was committed in aggravating circumstances mainly because of the use of various weapons which included the lethal axe we described in the main judgment. On one hand, the prosecutor urged the court to impose a sentence of thirty (30) years imprisonment in the circumstances. On the other hand, Mr Chinamatira for the offender, submitted that there is nothing which aggravated the murder as envisaged in s47(2) and (3) of the CODE. He invited the court to find that the murder was not committed in aggravating circumstances and called for a sentence of fifteen years (15) to be imposed on the offender.

Admittedly, none of the factors listed in subsections (2) and (3) of s 47 of the CODE are present in this matter. What counsel however forgot is that those provisions are not the only source of aggravating circumstances when a court is considering the existence or otherwise of aggravating circumstances. Section 47 (5) allows a court to find other aggravating circumstances which are outside of those laid out in Section 47 (2) and (3).

Flowing from s47(5), the law maker extended the list which appears in s 47 (2) and (3) when it indicated in the Criminal Procedure (Sentencing Guidelines), Regulations, 2023 that the use of weapons in the perpetration of a murder aggravates that crime. We do not think it calls for much debate that an axe and sticks were used in the commission of the offence. The evidence of the witnesses and the post-mortem report confirm it. The weapons were not just ordinary weapons but lethal ones. Additionally, the gruesome injuries that the deceased sustained were brought about by the use of those weapons. The injuries speak to the employment of gratuitous violence which on its own is a factor that aggravates the commission of a murder. Further, we equally note that this was a gang murder where a number of people participated in attacking the deceased. It is yet another aggravating factor.

Given the above issues, we do not hesitate to conclude that the murder was committed in aggravating circumstances.

Section 47(4) of the CODE provides that: -

“A person convicted of murder shall be liable—

subject to sections 337 and 338 of the Criminal Procedure and Evidence Act               [Chapter 9:07], to imprisonment for life or imprisonment for any definite period of not less than twenty years, if the crime was committed in aggravating circumstances as provided in subsection (2) or (3); or

in any other case to imprisonment for any definite period.”

What the above means is that once we find that the murder was committed in aggravating circumstances, the offender must face the mandatory sentences as outlined in s47(4). He must be sentenced to either life imprisonment or a determinate term of not less than twenty years imprisonment. That means therefore that the 15 years imprisonment suggested by counsel for the offender is misplaced.

The offender was 43 years old when he committed the offence. He is now 49 years, marking him a mature man. He is also a first offender. We were informed that he is a businessman who runs a kitchen and some tuckshops. We further heard that he is a family man, with attendant family responsibilities as he has seven children. We agree that those factors ought to mitigate any punishment we may impose. We find it equally mitigating that the accused person waited patiently for his trial, which took over six years to commence. His co-accused are all on the run and for this we will give him credit. But that was all that we could find in his favour.

What further generally aggravates the offender’s plight is that he took the life of the deceased and it can never be replaced. He usurped God’s role and violated the deceased’s constitutional right to life. He and the Nyoni brothers attacked and killed the deceased at a shopping Centre. It amounted to a public execution of the deceased. Everyone else ran away in fear whilst the assailants were bent on dismembering the deceased and crushing him to a pulp. So vicious was the assault that witnesses peeped through their windows. The aftermath was akin to a scene out of a horror movie. Signs of violence littered the crime scene. Blood spatters were on the walls of the offender’s own shop. In the end, the deceased sustained contusion wounds, as well as incise injury wounds, excoriation wounds on the left shoulder, as well as substantial hemorrhaging of the brain from which he stood no chance of survival. There can be little doubt that the offender intended to demonstrate to the deceased who the kings were. There was total lack of respect for human life. We also noted during trial, that the offender was not remorseful. While testifying on the witness stand he exhibited a good measure of impunity. We find that also aggravating.

The pitiful victim impact statement that was authored by the deceased’s brother Gracious Mavhiya cannot be ignored. Gracious put us into the picture of the state of the family. He submitted that he was psychologically affected by the death of the deceased. We are not aware if he still feels that way as the statement was authored in the past tense. He says his life changed drastically from the time the deceased passed away and he incurred various types of expenses among which included those tied to the funeral of the deceased. He called for the court to impose a sentence of 50 years imprisonment.

After weighing all the aggravating and mitigating factors we find that there is no justification even with all that we stated, for the court to depart from the mandatory sentence of 20 years. It isn’t a pat on the back for the offender. It is lengthy and given his age, he will come out of prison when he is already in the afternoon of his life.

Accordingly, the offender is sentenced to twenty (20) years imprisonment.

Mungwari J: ……………………………………………………

Chinamatira, Jonasi, Nyambira & Tambanewenyu accused’s legal practitioners

National Prosecuting Authority, State’s legal practitioners