THE State V Kennedy Mutandwa, Blessing Choguya, Brian Murairwa AND Tafadzwa Dhinga

### Preamble
1
HMT 90-20
CRB 19/20
---------


THE STATE

versus

KENNEDY MUTANDWA

and

BLESSING CHOGUYA

and

BRIAN MURAIRWA

and

TAFADZWA DHINGA

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 17, 20 and 27 March 2020, 9 June 2020, 16 and 28 July 2020

8, and 28 September 2020, 15 and 22 October 2020 and 25 November 2020

Criminal Trial

ASSESORS:	1. Mr Chagonda

2. Mr Magorokosho

Mrs J Matsikidze, for the State

Ms P Maganga, for the 1st accused

K. G Muraicho, for the 2nd accused

Mrs M Mandingwa, for the 3rd accused

Ms T P Jaricha, for the 4th accused

MWAYERA J: The 4 accused persons were arraigned before the court on a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In that on 1 July 2018 and at Murambinda Growth Point, Buhera the accused persons all or one or more of them unlawfully caused the death of Rodwell Tendai Mupotsa by assaulting him with unknown objects all over the body intending to kill Rodwell Tendai Mupotsa or realising that there was a real risk or possibility that their conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which Rodwell Tendai Mupotsa died. All the 4 accused pleaded not guilty to the charge.

The brief facts of the state case are that on the night of 29 June 2018 the deceased went out to socialise at Elasto Night Club. He spent a lot of time with the fourth accused a commercial sex worker. The deceased used eco-cash to pay for goods and services. The same mode of eco-cash payment was effected to buy beer on 30 June 2018 at Elasto Night Club which was under the guardship of accused 3 a security guard. In the early hours of 1 July 2018 the deceased left the night club using the backdoor to exit as directed by the third accused. The rest of the accused followed the deceased and pushed, shoved and assaulted him demanding his eco-cash pin till he died. In the process accused 4 took the deceased’s cell phone with an econet line number 0777 604 870. The accused persons then placed the deceased’s dead body under a heavy truck and left the scene. The deceased’s body was discovered at around 0530am and investigations led to the arrest of the accused persons.

The first accused’s defence outline was basically that he did not cause the deceased’s death on the night in question, 30 June 2018 spilling to 1 July early hours. He was in the company of the second accused with whom he was whiling up time drinking beer. He denied having been at the scene of murder and denied being part to the commission of the offence. He actually left Elasto bar at 0100am and proceeded to work at 0600am as he was employed as a conductor.

The second accused also denied being involved in the deceased’s death in any way. He stated that he never had any encounter with the deceased. He only restrained one Blessing Nangatidza and another man from fighting after which he went to the dance floor. At around 0200am on 1 July 2018 he retired to California booking rooms. He was shocked and surprised when the police arrested him in connection with the deceased’s murder.

The third accused in turn denied causing the death of the deceased. He further denied having associated with the perpetrators of the injuries that caused the death of the deceased prior during and after the assault. The third accused denied any involvement in the commission of the offence pointing out that he closed the bar at 0300am and slept in the bar together with Archford Chakaza, Denford Chakaza and Chikono who requested for abode as it  was too late to travel and the 3 were drunk.

The fourth accused denied having caused the death of the deceased. She pointed out that the deceased was her client on 29 June and the whole day on 30 June. She as a commercial sex worker was paid for services rendered and goods by the deceased who used the eco-cash mode of payment. In fact deceased requested her for the phone in order to carry out eco-cash transactions since the deceased said his phone was not working. On 30 June 2018 the deceased who had paid her in full bade her farewell saying he was going to Dorowa. At night around 12 midnight she proceeded to the night club Elasto and was surprised to see the deceased there now in the company of another sex worker. The deceased offered to buy beer for her and again requested for her handset to carry out the eco-cash transactions. After he finished the transactions he returned the handset to the accused. The fourth accused left the night club around 200am being escorted by one Richard a security guard. She retired for the night and was only alerted in the morning by another commercial sex worker one Anna about a man killed whom she later found out was the man who had been her client. She denied having a hand in the murder of the deceased.

The state adduced evidence from 7 witnesses 4 of whom had evidence on common cause aspects formerly admitted by consent in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Precious Diwura a member of the ZRP’s admitted evidence was basically that she in the company of fellow police officers attended the scene where the deceased’s injured body lay. There were head injuries, bruised hands and injured lower part of the body. Further gathered from the witness’s evidence was that the body appeared to have been dragged for a distance by a moving vehicle and there were skid marks about 2 metres from where the body was.

The admitted evidence further related to recovery of a Samsung cellphone which was sold and turned out to be connected to the murder case as the phone originated from the fourth accused. The investigating officer Richard Chomunakira was not available to testify. He was said to have resigned from the police. Despite efforts to locate him, the witness could not be located as he was said to have skipped the border. His unavailability left a lot of gaps in the state case particularly considering the allegation of death having been caused by assault of the deceased by the accused persons and the assertion that the deceased was run over or dragged by a moving vehicle. Further there was no explanation as regards why statements were recorded from other witnesses considering the night club was packed full capacity. Even the truck or vehicle driver was conspicuously absent. Appreciative of the fact that the investigating officer works with a team evidence was adduced from one Shepherded Charumuka. The witness confirmed having been part of the team of attending details. He told the court that at the scene he observed that the deceased had been dragged. He confirmed observing head injured and crushed lower limps. There was blood from the point they suspected dragging by a motor vehicle occurred to the point where the body was under a truck. The witness told the court that it was possible that the deceased was crushed by a car. The witness did not know how the 4 accused were linked to the offence. He gave evidence in a straight forward manner. He impressed the court as an honest witness who outlined his observations without any exaggerations.

The state further adduced oral evidence from Chipo Murove. The witness was on duty at Elasto Night Club as she was waiting to get a client since she operated as a commercial sex worker. She secured a client and they walked away for business. As she was going away she observed the first accused holding the deceased by the collar. At the same time accused 2 was pushing the deceased. She proceeded to her lodgings leaving the two accused who had dragged the deceased to a place where haulage trucks were parked. The following morning she heard that a man had been found dead and when she went out to investigate she observed that it was the same man she had earlier seen having a scuffle with accused 1 and 2 around 0300am. She did not see accused 3 and 4 engage in a brawl with the deceased. Her evidence was straight forward and we found no reason not to believe her testimony.

Pauline Mavezera a commercial sex worker gave evidence to the effect that accused 2 was her former boyfriend. She heard about the death of the deceased on 1 July 2018. She proceeded to the scene and found out that he body had already been removed. She however recovered a grey t-shirt which she identified as belonging to the second accused. She proceeded to confront the second accused about the torn grey t-shirt and the second accused advised her that the t-shirt got torn when he was restraining first accused during the night. The witness observed that the second accused had some lacerations on his neck which he attributed to having been caused by the first accused. She eventually got information from the second accused that the first and second accused had badly beaten the deceased such that he wondered if the man was still alive. The witness told the court that while she was conversing with the second accused the police arrived and she handed over the torn grey t-shirt. The witness gave her evidence well. Even though she was said to have had past affair with accused 2 we did not see any signs of desire to fix accused 2. She was just inquisitive as regards what happened. She did not witness the fracas and did not seek to specify that accused 2 killed the deceased but that accused 1 and 2 beat up the deceased per accused’ s say so. The t-shirt she handed over to police.

Amos Mhandu who was also in Elasto Night Club on the morning in question gave evidence. He confirmed that accused 1, 2 and 3 and the deceased were also at the night club. He observed the deceased buying beer using eco-cash while accused three was standing beside the deceased, following the transactions. After a while accused 3 approached first and second accused who were seating with two ladies of the night. The third accused whispered something to the first accused before returning to the corner where the now deceased was. Shortly afterwards the two ladies of the night left accused 1 and 2 and approached the now deceased. The third accused then took the now deceased and the two ladies out behind the club. Shortly afterwards the third accused returned into the night club whereby he ordered everyone out except for accused 1 and 2. The witness refused to leave. The third accused then took accused 1 and 2 outside using the backdoor and he locked the gate. A while later the witness heard a voice screaming and another voice demanding an eco-cash pin. After some time the third accused entered the night club now with his t-shirt torn in front. He later heard that a man had been found dead at the same place he heard voices from. Upon going out to investigate he found out that the same man who had been taken outside by the third accused was the deceased. The witness impressed the court as an honest witness. He did not actually witness how the deceased met his demise but was firm on how accused 3 caused the deceased to exit with 2 commercial sex workers using the back entrance. He heard screams and it turned out in the same direction was deceased’s body.

At the close of the state case accused 3 and 4 applied for discharge citing lack of evidence to establish a prima facie case. The 2 accused argued that there was no evidence linking them to the commission of the offence warranting their placement on their defence.

Faced with an application for discharge at the close of the state case the court simply has to consider the evidence adduced and   Answer the following question. If the accused chose to remain silent after the close of the state case would a reasonable court acting carefully convict the accused person? If the answer is in the affirmative then the accused ought to be placed on his defence. Where the answer is in the negative accused ought to be acquitted. The criminal justice system does not call upon the accused to prove his innocence. An accused person should not be placed on his defence to try and patch up on otherwise torn state case. In the same vein the accused should not be placed on his defence in a bid to try and have him or her incriminate himself/ herself as a way of bolstering the state case. In respect of accused 3 at the close of the state case evidence from some state witnesses was clear that accused 3 was with accused 1 and 2. Further that accused 3 exited in same direction as the deceased and shortly after screams were heard culminating in a dead body being seen in the same direction. At the close of the state case the state is expected to prove a prima facia case not prove guilty beyond reasonable doubt as is expected at close of all evidence. The state only need show that there is evidence linking the accused to the commission of the offence warranting his placement on his defence. In the present case a prima facie case existed as against the third accused at the close of the state case. The application for discharge of the third accused lacked merit and was accordingly dismissed. As for the fourth accused no state witness gave evidence linking her to the offence. It is actually the fourth accused who disclosed having had the now deceased as her client. She helped him transact on the phone. When her handset was returned to her. No other evidence was adduced of her involvement with the deceased and her co accused in fact there is no evidence that she exited with the first, second and third accused. That she is a commercial sex worker is not evidence establishing links with the deceased’s demise. That she had his phone on its own does not show she attacked him causing death. No prima facie case was established in relation to accused 4. As such we upheld the application for discharge and found the fourth accused not guilty of the murder charge.

Having been placed to their defence accused 1, accused 2 and 3 respectively adopted their defence outlines as evidence in chief. The first accused insisted that he exited the night club while in the company of the second accused. He denied having associated with the rest of his co-accused with a general design to cause the death of the deceased or to assault the deceased so as to induce him in to surrendering his ecocash pin number. The second accused disputed owning the torn t-shirt which was said to have been recovered from the scene by one Pauline Mavezera. He wondered why the witness did not hand the t-shirt over to the police at the scene but took it to the accused’s place. She said she latter handed it over to the police but the t-shirt was not produced before the court. The third accused maintained he did not act with common purpose and in concert with co-accused to assault and kill the deceased as alleged. He maintained that he was at his work place Elisto bar. When it was time to close the bar he directed all patrons to leave and he retired for the night in the bar with 3 patrons who requested to retire there also. The witness was firm that he did not participate in the commission of the offence that he did not act with common purpose or in consent with the co-accused.

From the totality of the evidence it is apparent that the deceased died as a result of multiple injuries occasioned on his body. The Doctor who examined the remains observed multiple friction bruises on the abdomen, chest, back, face and limbs. Further the doctor observed mangled lower limps and hip region and fractured ribs. He concluded cause of death was polytrauma. It is common cause the accused persons and deceased were at Elisto night Club on the night spilling to the morning in question. It is also common cause that the accused were arraigned before the court by the state on the basis that the accused colluded and connived with an intention to rob the deceased and in the process of robbery the deceased was killed. Further not in dispute is the fact that deceased was dragged by a moving vehicle and eventually crushed by a haulage track. The issue that falls for determination in this case is whether or not the accused persons acting with common purpose and consent caused the death of the deceased with actual intent or realisation of the real risk or possibility of death.

The matter hinges on establishment of the essential components or ingredients of the crime of murder and the doctrine of common purpose. We propose to start off with the doctrine of common purpose. Section 196 of the Criminal Law (Codification and Reform) Act is instructive. It is clear that the following requirements have to be met.

That the accused knowingly associated with each other for the furtherance of the crime.

That the accused had knowledge and intention to commit the crime.

That the accused was present with the actual perpetrators during the commission of the offence.

That the accused associated with the conduct of the actual perpetrators.

See S v Benard Makuchere & Another HMA 10/18 and also S v Twoboy Ndlovu and Others HB 208/18 and S v Ncube SC58/14.

In this case there is no evidence that accused 3 associated with accused 1 and 2 with a common goal and design to assault, rob and kill the deceased. There is basically a danger of false incrimination if the court were to proceed on the premise that because they were at the scene they must have committed the crime. The state has to show that the accused were acting with common purpose in order to achieve the unlawful enterprise. In this case the unlawful enterprise being murder.

The murder charge the accused are facing requires proof of existence of both the actus reas and mens rea for the charge to ascribe. See S v Lovemore Kurangana HH 267-17 and S v Mugwanda 2002 (1) ZLR.

It is trite that in criminal cases the state has the onus to prove the guilt of the accused person beyond reasonable doubt. Section 18 (1) Criminal Law (Codification and Reform) Act [Chapter 9:23] is opposite.

It states:

“No person shall be guilty of a crime in terms of this code or any after enactment unless each essential element of the crime is proved beyond reasonable doubt.”

See S v Moyo HB 139/15 in which the court cited with approval S v Makanyanga 1996 (2) ZLR 231, when the court stated as follows:

“A conviction cannot possibly be sustained unless the judicial officer entertains a belief in the truth of the criminal complaint, by the fact that such credence is given to the testimony does not mean that conviction must necessarily ensue. Similarly, the mere failure of the Accused to win the faith of the bench does not disqualify him from an acquittal proof beyond reasonable doubt demands more than that the complainant be believed and the accused disbelieved. It demands that a defence succeeds wherever it appeared reasonably possible that it might be true.” Underlining my emphasis.

See also S v Munyai 1986 (4) SA 712 and S v Mupatsi 2010 (1) ZLR 529.

From the evidence adduced it is not clear how and at what stage the deceased died. From the point he was dragged there was blood and so was blood at the final resting position under the truck. In fact there was no direct evidence placed before the court that when the truck or and vehicle crushed the lower limbs the deceased was already dead. The truck driver or vehicle driver was not called to testify on when he heard the impact or even on condition and position of the deceased before the truck got into contact with him. The deduction or having been crushed by the haulage truck is a reasonable deduction considering that the lower limbs of the deceased were mangled or extensively crushed.

There is however no evidence of the condition and state of the deceased at the time of impact. The investigating officer was not available to clarify on all glaring and open issues relating to the proximate cause of the death of the deceased. That accused one and two had a scuffle with the deceased had been laid bare before the court but no further evidence was shown that they went beyond pushing and shoving and striking with a beer bottle. The injuries occasioned as stated by one Shepard Charumuka of a cut on the forehead were not observed by the doctor who is an expert.

The suggestion that the scuffle culminated in death and the accused placed the body to be crushed is surmising as there is no concrete evidence adduced to support that. The court has been left to speculate. It is possible accused one and two who were actively in association could have occasioned the fatal blow but it is also possible they did not occasion the fatal blow. When there is doubt the standard or pillars of criminal justice demands that the benefit be accorded to the accused. There is simply no enough evidence direct or indirect demonstrating that the accused persons are the proximate cause of the deceased’s death.

In respect of the third accused even the pushing and shoving he was not there as testified by the State witness Chipo Murove. The third accused even after directing deceased and other patrons out went back into the club. There is no evidence that if he had colluded with the first and second accused to rob the deceased he did not positively dissociate from the crime. The witness Mhadu could not give any positive details as regards accused three’s involvement in the murder as the witness remained in doors. As far as the murder charge is concerned the court has been left to speculate on the stage at which deceased passed, who and what caused the injuries to which he succumbed. It is possible he was assaulted severely going by the injuries but the question remains unanswered, by who?

It is also possible he was run over and dragged by the haulage truck but again the question remains, was he crushed by the vehicle when alive or already dead? Cumulatively all these gaps in the State case cannot be patched up by the court to assist the State secure a conviction. The investigating officer, the doctor, the truck driver and other independent patrons considering Elasto Nigh Club was full could have been called to testify. The investigation of a serious murder trial in this case was shoddily done. The investigating officer left a lot of issued unexplored much to the detriment of administration of justice.

The State has not proved beyond reasonable doubt that the accused persons acting with common purpose and in consent unlawfully and intentionally caused the death of the deceased. They are entitled to a verdict of Not Guilty of murder. However accused one and two cannot escape liability of having pushed, shoved and assaulted the deceased as observed by a State witness whose evidence we held as credible. Accused one and two were both observed assaulting the deceased and the second accused did not positively dissociate himself from the assault.

Accordingly accused one and two are found guilty of Assault as defined in s 189 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

SENTENCE

In reaching at an appropriate sentence we have considered all mitigatory factors in your favour. Both accused are first offenders. Accused 2 has dependants. You have both been in custody for 28 months awaiting the finalisation of murder allegations. You must have been traumatised as you awaited the finalisation of this mater.

You however stand convicted of a serious and prevalent offence. Irresponsible conduct after partaking alcohol is not acceptable moreso when offences are committed. As in this case you teamed up for purposes of assaulting the now deceased. The courts frown at use of violence on the person of another. In this case we have not been told if the deceased when you subjected him to assault had wronged you in any manner. You acted in a cruel manner by assaulting the deceased. The circumstances surrounding the commission of this offence calls for a custodial term. We will however suspend a portion for deterrence and also bearing in mind that you have been in custody for slightly over 2 years.

Sentenced as follows:

18 months imprisonment of which 9 months imprisonment is suspended for five years on condition the accused does not within that period commit any offence involving violence on the person of another for which upon conviction he is sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, for the state

Matsika Legal Practitioners, 1st accused’s legal practitioners

Mugadza Chinzamba & Partners, 2nd accused’s legal practitioners

Mhungu & Associates, 3rd accused’s legal practitioners

Mubata Chigadza & Associates, 4th accused’s legal practitioners