THE State V Stephen Banga

### Preamble
1
HB 83-19
HC (CRB) 46/19
XREF SHURUGWI CR 16/09/18
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THE STATE

versus

STEPHEN BANGA

HIGH COURT OF ZIMBABWE

MOYO J with Assessors Ms C. J Baye and Mr A. B Mpofu

GWERU CIRCUIT 20 AND 21 MAY 2019

M Ndlovu for the state

J Mahamba for the accused

MOYO J:	The accused person faces a charge of murder.

It being alleged that on or about the 4th of September 2018 and at or near Impaluli 22 Mine, Hidden Treasure, in Shurugwi, the accused person unlawfully caused the death of Takunda Moyo.

This is a matter wherein factual issues were resolved as the case unfolded and it is thus a very simple and straightforward case factually.  The following were tendered into the court record;

1)	State summary,

2)	Defence outline

3)	Accused’s confirmed warned and cautioned statement

4)	post mortem report

5)	The two spears that were allegedly used in the commission of the offence.  They were all duly marked.

The state case is that the accused person, together with his accomplices who are still at large, visited Impaluli mine on the date in question.  They found the deceased and his workmates.  Accused and his accomplices wanted to rob the deceased and his workmates of the gold ore.  They attacked the deceased who was seemingly in charge   of the mining operation they attacked him with spears, logs and although if they never used knives on the deceased they also wielded knives referred to as Colombia knives which one witness is an Okapi type of knife although it differed from an okapi knife. They indiscriminately attacked the deceased as a group.  After brutally assaulting the deceased by mainly stabbing him with spears on the thighs they then force marched deceased’s co-workers, who where then forced to carry the gold ore to a motor vehicle that the accused and his colleagues were using.

Those were the material respects of the state case.  Two witnesses gave viva voce evidence for the state, these were Alphonce Mandaba and Patrick Imbayago.

The evidence of the following witnesses was admitted into the court record as it appears in the state summary.

1.	Chiratidzo Chigove

2.	Pascal Mutsvangetsvange

3.	Clement Kahombe

4.	Taurai Mtodi

5.	PiasNdoro

6.	Munyaradzi Mukunga

7.	Sehliselo Khumalo

9.	Doctor Roberto Lara Diaz

The accused person gave evidence for the defence case, his version was similar to that of the state case on some of the occurrences of the day, except that he tried to give an account that exhibited a misunderstanding between him and the deceased when deceased had initially agreed that he and his colleagues could mine at the shaft that deceased and others were working on but then later charged his mind.  Like all concocted stories, his version fell apart as it could not be kept together by the sequence of events.  He said they went to the mine, with a prior arrangement with deceased to mine there.  They talked to deceased, deceased agreed, he then sent his colleagues to go and get tools for mining, his colleagues instead brought assault weapons (spears and knives).  This does not add up.  Why would his colleagues, when deceased had agreed that they mine, go and bring assault weapons when all they wanted to do was to mine and deceased had agreed?  The only reasonable conclusion is that accused and his accomplices already went to the mine armed with assault weapons, because they were on a robbery mission as alleged by the state.

The accused person also acted like he did not understand why his colleagues brought spears and not mining tools, but he failed to explain why he was the first to stab deceased with a spear as this is common cause.  The court also observed that the state case that gold ore was subsequently taken is the correct version, for accused’s mission could only have been to rob the mine of gold ore in the circumstances.

In fact the defence was also problematic because the accused had three different versions before the court. The version in his confirmed warned and cautioned statement does not tell us that he in fact stabbed the deceased with a spear and that he was the first one to stab the deceased. The version in his defence outline that deceased refused them permission to mine hence the dispute differs from the version in court where he then says deceased first agreed, then refused creating the dispute.  The conclusion of this court is that accused is just lying, the version of the state thus carries the day.  The only reasonable conclusion to draw from the facts therefore is that accused, acting in association with his friends went to Impaluli mine, attacked deceased in a brutal and indiscriminate manner, in order to steal the gold ore by force.

As for the common purpose doctrine the court does not have any issues to resolve therefrom for the following reason for the attack on the deceased.

If the conclusion is that accused and his colleagues set upon a mission to attack and rob the deceased of gold ore, then accused was part of the planning and execution of the criminal conduct.  He participated in the assault of the deceased, to accomplish their mission and he further participated in the looting of the gold ore in that he was part of the transaction of ordering the witnesses to carry the loot to the car.  The accused did act in common purpose with his colleagues.

We therefore proceed to establish what accused is guilty of.

Accused and his colleagues indiscriminately assaulted the deceased stabbed him with spears and beat him, with logs.  The deceased died immediately from the injuries sustained.  The post mortem lists 8 injuries.  The deceased was thus struck multiple times as the post mortem report shows.  He died of:

Acute anemia

External haemorrhage

Multiple wounds

Whilst the blows were concentrated on the lower part of the body, the accused person, must have foreseen death as a real possibility in that if you assault a man with a spear numerous times wherever the blows land, multiple wounds and an indiscriminate, brutal attack can result in the death of a person as a real possibility.

It is for these reasons that the accused person is found guilty of murder with constructive intent.

Sentence

The accused person is convicted of murder.  He teamed up with his colleagues, indiscriminately assaulted deceased with spears and logs in a bid to rob deceased and his colleagues of their gold ore.  The accused person is a first offender, 29 years old, he is a family man.  He however, committed an abominable act of killing a man in order to commit a robbery.  The offence was committed to further selfish ends and for greed.  It is high time these courts show likeminded people that life is certainly more valuable than gold.  Artisanal miners are becoming a threat to the peace in society.  Many a time, fellow miners are butchered to death with machetes just because of people like accused who do not want to earn their living but want to butcher others to death in order to enrich themselves with gold derived from the sweat of others.  These courts have a duty to send a loud and clear message that such conduct is frowned upon by the law.

The accused person committed a murder in aggravating circumstances, which is worsened by the fact that he was driven by greed.  The only fact that removes capital punishment as a sentence to consider in these circumstances is that the accused is convicted of murder with constructive intent as opposed to actual intent.  It is for this reason that the court will consider instead, a lengthy custodial sentence.

The accused person is accordingly sentenced to 30 years imprisonment.

National Prosecuting Authority, the state’s legal practitioners

Mahamba and Partners, accused’s legal practitioners