Judgment record
State v Prince Dylan Matore and Michael Simbeye
HH 62-18HH 62-182018
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STATE
versus
PRINCE DYLAN MATORE
and
MICHAEL SIMBEYE
HIGH COURT OF ZIMBABWE
MUSAKWA J
HARARE, 6, 8, 13 & 16 February, 2, 12 & 14 March 2012, 27 October 2014, 31 March & 31
October 2016 & 19 January 2018
ASSESSORS: 1. Mr Chidyausiku
2. Mr Gonzo
Criminal Trial
(C. Manhiri), S.W. Munyoro, for the state
E. Duri, for the first accused
(S. Machiridza), (P. Chikangaise) V. Nyamukapa, for the second accused
MUSAKWA J: The accused persons are charged with murder to which they pleaded not
guilty. The matter has dragged for an inordinately long time.
The facts of the matter are that on 12 th July 2005 the deceased Wenceslans Mazvimavi
arrived at the gate to his residence at 125 Goromonzi. It was around 2000 hours. He was driving
a Nissan Hard Body vehicle with registration number 811-066 S. After he alighted from the
vehicle in order to open the gate he was attacked by three people. In the process he was
dispossessed of the vehicle. Soon thereafter deceased collapsed after attempting to follow the
vehicle when it was being driven away. He sustained an injury at the back below the left
shoulder. Upon being referred to Avenues Clinic he was pronounced dead after a short while.
The accused persons were arrested whilst in possession of the stolen vehicle on 15 th July 2005 at
Kandeya Business Centre, Mount Darwin.
The first accused’s defence outline states that on the day of the alleged offence he was at
home in Zengeza 1. A brother of the second accused, Charles Simbeye visited him in the
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company of Washington Kembo who had a problem with his leg. Charles Simbeye asked the
first accused if he knew of a traditional healer whom they could consult. The first accused
advised them to consult his mother in-law who resided in Rushinga.
On 14th July 2005 Charles Simbeye visited the first accused in the company of Prince
Kembo who is a brother to Washington Kembo. They were driving a Nissan Hard Body with
registration number 811-066 S.
On the following day Washington Kembo, Charles Simbeye and Prince Kembo visited
the first accused using the same vehicle and a minibus that was being driven by Prince Kembo.
All four of them proceeded to Mbare where Charles Simbeye went to a flat and came back with
the second accused. It was the second accused who was to accompany them to Rushinga.
The two accused persons and Washington Kembo then drove to Rushinga via Shamva. In
Mount Darwin they joined a fuel queue at Kandeya Business Centre. Later a Support Unit
vehicle came with Police Officers who ordered them to lie down. They were accused of
committing robberies in Shamva. They were assaulted. Upon being taken to Mount Darwin
Police Station they were further assaulted.
The assaults persisted on the following day. They were then transferred to Goromonzi
where they were again subjected to further assaults. The same ill-treatment happened when they
were taken to Marondera.
On the other hand the second accused’s defence outline is to the effect that he together
with the first accused and the now deceased Washington Kembo planned to steal a vehicle
which they would use to provide transport services to rural farmers. Thus they identified a
vehicle that was used by the deceased. They then waited for the deceased to return home.
As they waited for the deceased, the latter arrived and opened the gate. That is when the
second accused went inside the vehicle and drove it away. He denied any physical confrontation
with the deceased. His colleagues pulled away the deceased in order to prevent him from getting
to the vehicle. He was not armed as his task was to drive the vehicle.
The state opened its case by producing affidavits by Doctors Maenzanise, Maunganidze
and Masokovere by consent.
In his affidavit Doctor Maenzanise states that on 12 th July 2005 he was at home when he
received a call from deceased’s wife. He proceeded to Ruwa Family Clinic where he waited in
the car park. Deceased was brought in a vehicle. He was lying unconscious on the back seat. He
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noted that there was no pulse and no breathing. His shirt was blood stained. There was a stab
wound at the back below the left shoulder and it had stopped bleeding. He dressed the wound
and referred deceased to Avenues Clinic.
Doctor Masokovere a government pathologist conducted the autopsy on the deceased’s
remains on 13th July 2005. He noted that the deceased had a stab wound on the left middle of the
scapular which was 3cm in length and ‘L’ shaped. The wound was 3cm from the spinal cord.
The top of the right foot had a 2cm cut. There was a cut between the third and fourth left
posterior ribs. There was also a cut in the middle lobe of the left lung as well as a cut in the
superior lobe. There was approximately three litres of blood in the left chest cavity. He
concluded that the cause of death was hypovolemic shock and lung injury arising from stabbing.
Ernest Mazvimavi a young brother of the deceased was the first state witness. He told the
court that at the time of the incident he resided with the deceased and his family. He used to see
the second accused at Goromonzi Rural District Bar when he accompanied the deceased. On the
morning of the fateful day the deceased had taken the witness to school in the morning. He was
then doing Form 4 at Chinyika School.
Around 8 p.m. on that day he heard the sound of a vehicle approaching. He went towards
the gate as he used to open it for the deceased. Before he rounded the corner as he made his way
from the gazebo he heard a muffled cry.
As he arrived at the gate he saw deceased being manhandled by three people. The vehicle
was facing the gate. The second accused then got into the vehicle and drove it into some object
as he tried to maneuver it. Then one of the three persons ran and got into the vehicle as the third
one remained where the deceased was.
The witness and deceased tried to follow the vehicle. In the process deceased fell down
and the witness took him to a nearby guava tree. The third assailant who had remained behind
then passed them walking very fast.
The witness rushed home from where he returned with the deceased’s wife using another
vehicle. A neighbor, Lloyd Moyo took over driving from the deceased’s wife. The deceased was
placed in the back seat and they went to Gormonzi Police Station. They did not take long at
Goromonzi Police Station from where they proceeded to Ruwa where the deceased was attended
to by Doctor Maenzanise. Thereafter they proceeded to Avenues Clinic where the deceased was
soon pronounced dead.
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After the deceased’s burial he was invited to Goromonzi Police Station where he saw the
motor vehicle that had been recovered. The motor vehicle had damages. He could not recall
which part had been damaged. He could also not recall its registration number. He was present
when accused persons made indications at the scene of crime.
The court noted that this was a bitter witness. He stated on his own that given the chance
he would avenge the deceased’s death. He admitted that on the day the accused persons made
indications he wanted to assault them. Police had to restrain him. His bitterness is
understandable. After all, on the fateful day deceased’s last words were to the effect that the
witness had let him down.
Despite the apparent bitterness his evidence was straightforward notwithstanding his
failure to recall such mundane details like the registration number of the vehicle. He did not seek
to exaggerate. If he was really out to fix accused persons he could have claimed to have
identified all three assailants at the scene of crime. He seemed not to have noted what was being
indicated by the accused persons on account of the emotions that were running high. He did not
even attempt to claim that he saw the deceased being stabbed by any of the accused persons.
Lloyd Moyo, a neighbor of the deceased testified in connection with the assistance he
rendered from the time he responded to the distress call. His evidence corroborated that of Ernest
Mazvimavi. The only difference between their testimonies was that according to Lloyd Moyo the
purpose of going to Goromonzi Police Station was to report the incident. On the other hand,
Ernest Mazvimavi stated that they had gone to seek Police assistance which was not
forthcoming.
The next witness to testify was Assistant Inspector Ncube of Support Unit. He stated that
on 15 July 2005 they were on duty at Border Gezi Youth Training Centre in Mount Darwin when
they received a report in respect of the accused persons.
Having been given the description of a Nissan Hard Body with registration number
811-066 S they proceeded to Kandeya Business Centre which was a short distance away. They
saw the vehicle in a fuel queue. They swiftly approached it and ordered the occupants to
disembark and to lie down on their bellies with hands on their heads. He had noted that of the
three occupants one was in the front seat whilst two were at the back. They appeared to have
been drinking as there were two empty beer cans on the ground. The occupants of the vehicle
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were the two accused and one Washington Kembo. There were twenty six rounds of ammunition
in the vehicle.
As the accused persons lay on the ground a mob converged on the scene. Some members
of the public commenced to assault one of the suspects and Police Officers managed to quell the
lynching. They subsequently handed over the suspects and the exhibits to Mount Darwin Police.
This witness gave his evidence in a forthright manner. His recollection of events given
the time lapse was good. He did not take note of every minute detail of operation and this
appears to accord with the exigencies of the situation they found themselves in.
The next witness to testify for the state was Detective Sergeant Kusema. At the material
time he was based at Marondera Police Station and attached to Criminal Investigations
Department.
He became aware of the case a day after its occurrence. He was not part of the team that
went to collect suspects from Mount Darwin. However, he was part of the team that went for
indications at Goromonzi. His role was to take photographs. As always happens in respect of
indications he could not distinguish between what was pointed out and what the accused said in
pointing out. It is trite that what a suspect says in pointing out must always be proved by the
prosecution to have been said freely and voluntarily.
The witness produced photographs that he took of the two accused when they made
indications. It was also noted that the photographs had accompanying explanations from the
accused persons regarding what was being pointed out. The court had to direct the prosecutor to
delete part of the narration as it was clearly inadmissible as against the accused persons.
The photographs in question depict accused persons making indications against the
background of features the witness explained as being found in the vicinity of the place where
the deceased resided. Some of the remarkable features were a dump site, a house that was under
construction as well as a white single cab vehicle with a canopy. Its registration number is 811-
066 S. It must noted that these are mute indications as the state did not seek to lead evidence on
the statements accompanying them. Suffice to also note that both accused persons were in
handcuffs and were barefooted.
The last witness to testify for the state was Fungai Kagunguwe who used to be a member
of Criminal Investigations Department at Marondera.
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He was part of a team of detectives that went to collect the accused persons and the motor
vehicle and ammunition from Mount Darwin on 16 July 2005. He went in the company of
detective assistant inspectors Chaparira and Ndebele. On the way back he rode with the accused
persons at the back of deceased’s vehicle. None of the suspects complained of any pain or injury.
The motor vehicle was subsequently identified by Ernest Mazvimavi. Ernest Mazvimavi also
confirmed to them that the ammunition belonged to the deceased. He denied that the accused
persons ever mentioned the name Charles Simbeye during the course of their investigations. He
also witnessed accused persons making indications in Goromonzi. The indications were made
separately. The places that were pointed out were deceased’s residence, a building that was
undergoing construction, a dirt road and a bushy area.
The first accused person testified in his defence. He maintained that he was not present
when the deceased was attacked. He claimed to have been in Chitungwiza where he sold fuel. He
claimed to have been in the company of Farai and Lameck Madziro. In the evening of the day of
the incident he claimed to have been at home with his wife.
As for the trip to Mount Darwin, the first accused stated that the second accused’s elder
brother, Charles Simbeye came driving the motor vehicle they were eventually found in
possession of. Together they went to Mbare where they met one Washington Kembo.
Washington Kembo is a brother-in-law of the second accused. The second accused also emerged.
Charles Simbeye indicated that he could no longer travel to Mount Darwin but the second
accused was now going to drive them. Apparently Wasington Kembo had a problem leg. The
first accused’s mother-in-law was a traditional healer and Wasington Kembo was going to
consult her.
The first accused confirmed their arrest at Kandeya Business Centre. He also chronicled
the ill-treatment and assault they were subjected to by Police Officers.
It emerged during the cross-examination of the first accused that he once worked as a
Prison Officer. However, at the time of this offence he had left the job. He claimed that he got to
know that the vehicle was stolen a day after his arrest. He further stated that the second accused
only confessed to theft of the motor vehicle when they were in Marondera. He also claimed that
the second accused and his brother used to steal motor vehicles. As to why the second accused
implicated him, he stated that the second accused wants to protect his brother. The second
accused’s brother was said to have been facing a slew of other allegations. He insisted that
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Charles Simbeye was involved and despite Police Officers being informed they remained
indifferent.
At the commencement of his evidence in-chief the second accused indicated that he was
admitting to the charge. Upon clarification from defence counsel he stated that he was not
involved in the killing of the deceased.
The second accused stated that he was approached by the first accused who had been
referred to him by his sister, one Stella. In the course of discussing the prevailing economic
hardships the first accused suggested that they should procure a motor vehicle for income
generation.
When they went to the local shops they met the second accused’s brother in-law,
Washington Kembo. They discussed a plot to steal a motor vehicle. As it turned out there was a
parked Nissan Hard Body close by. The first accused suggested that they should steal a similar
motor vehicle. Washington Kembo indicated that he knew the owner of the Nissan Hard Body
and that they could way-lay him at the gate to his house. It also turned out that the second
accused knew the deceased’s young brother, having attended the same school.
According to the second accused the plan was that if the owner of the targeted motor
vehicle resisted they would use stones. He denied that they were armed with any weapons. They
took positions outside the gate, with the second accused on one side. When the deceased arrived,
he disembarked in order to open the gate. The second accused ran behind the motor vehicle and
got inside. He engaged reverse and ran into a ditch. He struggled to get out and drove and
stopped after about 50 metres. He opened the door and called out to the others who told him to
proceed. As he drove off someone banged on the motor vehicle signaling him to stop. It turned
out to be the first accused.
Thus the second accused denied having a confrontation with the deceased. He did not
know about the deceased’s death until Police informed them the day after their arrest. He further
stated that when the first accused got inside the motor vehicle he explained that he had
dispossessed the deceased of a bunch of keys to which was attached a knife. In the process of
dispossessing the deceased, the latter had been ‘scratched’ on the shoulder.
Post the robbery, it was the second accused’s testimony that they decided to drive far.
Hence the journey to Mount Darwin. It had been mooted that they offer transport to cotton
farmers in Muzarabani.
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In quite a number of respects the second accused was very candid in some of the
developments. For example, he explained what led to their arrest at Kandeya. In Shamva they
had robbed the owners of an ox drawn cart. This is the incident that led to their arrest. He also
denied that they were assaulted save for Washington Kembo. He explained that Washington was
assaulted by members of the public because he had attempted to flee.
The second accused also told the court that upon being questioned he admitted that they
had stolen the motor vehicle. In the process he implicated the first accused and Washington
Kembo. He disputed the first accused’s claim that he has a brother called Charles Simbeye. He
denied that his brother was involved in the robbery. He gave the names of his brothers as Justice,
Marley, Simon, Kelvin and Stanley.
The second accused also told the court the assaults he received at the hands of police
officers had nothing to do with the present case. The Police Officers who assaulted him were
from Vehicle Theft Squad.
In further contradicting the first accused, he told the court that he had never seen the first
accused with a wife. Whilst in custody the first accused wrote a statement in which he sought to
implicate the non-existent Charles Simbeye. The first accused sought to influence him to adopt
that version.
At the close of the State case Mr Duri sought the discharge of the first accused,
contending that no prima facie case had been established against him. I dismissed the application
and indicated that full reasons will be provided in the main judgment. In the first place, the
evidence that was placed before the court was such that a court acting carefully might convict the
first accused. The first accused’s association with a motor vehicle that had been stolen in the
course of a fatal robbery needed an explanation. Secondly, the first accused had subsequently
pointed out certain features at the scene of crime. If he was not involved in the robbery, how did
he happen to make the indications? These were the two factors that the court considered in
dismissing the first accused’s application for discharge at the end of the State case.
It took so long for respective counsels to file their closing submissions. State counsel
only filed his submissions on 1 September 2017. At some stage a phone call had to be made to
the Deputy Prosecutor General to prevail upon Mr Munyoro to attend to the outstanding issues.
Granted that Mr Munyoro is not the original prosecutor, he had had ample time to familiarize
himself with the facts of the matter. As at the time of handing down judgment the defence
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counsels had not filed their closing submissions and such conduct is deplorable. Mr Duri brought
to the court’s attention that he filed his submissions on 20 October 2017. He availed a copy
stamped by the Registrar but curiously his submissions never found their way into the record. He
nonetheless gets the benefit of the doubt in that regard.
Analysis Of The Evidence
The second accused placed himself at the scene of crime. The only issue in as far as his
liability is concerned is whether there was common purpose with the first accused and the
outstanding suspect to kill the deceased. I will revert to some aspects of his testimony later.
Ernest Mazvimavi testified that he saw three people manhandling the deceased. He was
candid enough to admit that he did not see the actual stabbing of the deceased. He only saw the
deceased subsequently collapsing after the assailants had gone.
Even though Ernest Mazvimavi did not identify the first accused, we will accept the
second accused’s testimony that he was present. Evidence of the second accused is admissible
against the first accused. The second accused did not waver on his insistence that the first
accused was present. In the first place, it was the second accused’s testimony that they plotted
the robbery together. It would not be coincidence that Ernest Mazvimavi also observed three
people although he only identified the second accused. It is also no coincidence that the accused
persons were arrested whilst in possession of the stolen motor vehicle three days after the
robbery.
The first accused’s explanation for the trip to Mount Darwin is again at cross purposes
with that given by the second accused. The first accused’s explanation for the trip is that they
wanted Washington Kembo to consult his mother-in-law who is a traditional healer. If they were
truly going to Mount Darwin for that purpose was there need to divert to Shamva where the
robbery of the cart crew took place? One would have expected the accused persons to head
straight to Mount Darwin. I am aware that ultimately Shamva links with Mount Darwin, but the
explanation given by the second accused appears more convincing. I do not see why the second
accused was willing to incriminate himself unless there is some truth to it. If the second accused
had simply sought to incriminate the first accused whilst completely exonerating himself there
would have been cause to be more cautious.
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Although the first accused claimed the defence of alibi, this is rebutted by the testimony
of the second accused. Again, there is corroboration of the second accused’s testimony from the
fact that Ernest Mazvimavi saw three people struggling with the deceased. Even though the first
accused claimed to have been with his wife, it was again the second accused’s testimony that he
was not married. The matter was postponed several times to enable the first accused to secure the
person he claimed to be his wife. The best the court heard was that she was in Botswana. No
convincing explanation was advanced as to why that witness could not travel to Zimbabwe. As
for other witnesses the first accused intended to call, it turned out that they are deceased. These
are Farai and Lameck Madziro, whom the first accused claimed were in his company on the day
of commission of the offence. It turned out from cross-examination of the first accused by
counsel for the second accused that Farai Madziro died in 2008 whilst serving a prison term at
Chikurubi Prison.
The matter stands to be decided on the basis of the law that was applicable prior to the
promulgation of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In this respect
reference is made to s 284 of the Code. The present matter was committed prior to the enactment
of the Act.
State counsel cited the case of S v Mgedezi and Others 1989 (1) SA 687 which is
authority on common purpose. The case is one of the authorities cited in S v Mubaiwa 1992 (2)
ZLR 362 (S) in which McNALLY JA had this to say about common purpose at 370-
“The landmark decisions on common purpose in Southern Africa start with S v Safatsa 1988 (1)
SA 868 (A), yet neither that case nor any but one of the many that have since followed it were
cited either in this court or in the trial court. I refer in particular to S v Mgedezi & Ors 1989 (1)
SA 687 (A); S v Motaung & Ors 1990 (4) SA 485 (A); and S v Khumalo & Ors 1991 (4) SA 310
(A).
These cases make it clear that:
1.Each individual in a common purpose case is to be judged on his own mens rea;
2. The actus reus of the accused, on which his criminal responsibility for the murder is
founded, consists, not necessarily in an act which is causally linked with the death of the
deceased, but solely in an act by which he associates himself with the common purpose to kill.”
See also S v Chauke and Others 2000 (2) ZLR 494 (SC). In that case the appellant and
others resolved to escape from custody. In the process they disarmed prison officers. In the
ensuing shootout one of the escapees shot and killed a Prison Officer. The appellants were
charged with and found guilty of murder. Having been sentenced to death they took their appeal
to the Supreme Court. In dismissing the appeal against conviction it was noted that none of the
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appellants dissociated themselves from the moment that the first prison officer was disarmed.
This entailed that that they were prepared to shoot their way out of prison. It did not matter
which of the appellants fired the fatal shot. Thus the killing of the deceased fell within the
common design of the appellants.
Coming to the present matter we know from the second accused’s admission that they
intended to commit robbery as opposed to mere theft. Robbery is theft accompanied with the use
or threats of force. According to the second accused, they resolved that in the event that the
deceased resisted they would use stones. On this aspect, the second accused could not have been
telling the truth. The robbery took place at night. There is no evidence that the accused armed
themselves with stones for the eventuality of overcoming resistance by the deceased. They could
not possibly hope to scour for stones at the scene in the event that the deceased resisted because
there would not be time for that. As can be noted, the moment the deceased arrived at the gate
his young brother responded although this coincided with the attack on the deceased.
I have already detailed the wounds that were inflicted on the deceased. Such injuries
could not have emanated from mere scratching in the course of wresting a bunch of keys to
which was attached a knife from the deceased, as the second accused claimed he was made to
believe by the first accused.
The murder weapon was never recovered. It is immaterial that it has not been established
as to who between the two accused persons fatally stabbed the deceased. The two of them
together with another planned to rob the deceased. This entailed the use of violence to overcome
resistance. They must have foreseen the possibility of the deceased being injured in the process
but were reckless as to the consequences. There was no dissociation and even after the attack on
the deceased the accused persons continued to associate together and were thus arrested whilst in
possession of the stolen motor vehicle.
Accordingly, both accused are found guilty of murder with constructive intent.
National Prosecuting Authority, legal practitioners for the state
V. S. Nyangulu & Associates, first accused’s legal practitioners
Kashiri & Partners, second accused’s legal practitioners