THE State V Ferdinand Ngwenya, Marsh Zvenyika, Andrew Myambo AND Wellington Tarwireyi

### Preamble
1
HB 86-19
HC (CRB) 39/19
XREF GOKWE CR 58/02/04
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THE STATE

versus

FERDINAND NGWENYA

and

MARSH ZVENYIKA

and

ANDREW MYAMBO

and

WELLINGTON TARWIREYI

HIGH COURT OF ZIMBABWE

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

GWERU CIRCUIT 22 AND 23 MAY 2019

Criminal Trial

S Pedzisayi for the state

T Chivasa for the 1st accused

D Mujaya for the 2nd accused

N Hlabano for the 3rd accused

E Mandipa for the 4th accused

MOYO J:	The four accused persons face a charge of murder, it being alleged that on the 5th day of February 2004, they assaulted deceased Kwamba Vurungi resulting in his death from the injuries sustained from that assault.  The following were tendered and admitted into the court record;

1.	State summary

2.	1st accused’s defence outline

3.	2nd accused’s defence outline

4.	3rd accused’s defence outline

5.	4th accused’s defence outline

6.	1st accused’s confirmed warned and cautioned statement

7.	2nd accused’s confirmed warned and cautioned statement

8.	3rd accused’s confirmed warned and cautioned statement

9.	4th accused’s confirmed warned and cautioned statement

10.	Post mortem report

They were all duly marked.

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

1.	Foreman Nkala

2.	Enock Choga

3.	Vengai Kanengoni

4.	Assistant Inspector Zungunde

5.	Dr I Jekenya

The state led viva voce evidence from two witnesses, namely Morrise Nyathi and Tazvitya Machokoto.

The import of the evidence of these two witnesses was that they had a problem with their car battery.  They enlisted the services of three young men to push their motor vehicle.  One of the young men is called Rodwell Zvenyika and is related to accused 1, 2, and 4.  In the process of being assisted by these young men to push start their motor vehicle, the second state witness Tazvitya Machokoto realized that his money which was being carried by one Vela a motor mechanic in the back pocket of his trousers was then missing.  Machokoto suspected Rodwell Zvenyika and his friends as having stolen the money.  A misunderstanding then ensued and the other two young men who were in the company of Rodwell Zvenyika fled.  Morrise Nyathi the 1st state witness alleges that the second state witness Machokoto then assaulted Rodwell Zvenyika by slapping him.  Machokoto however, denied this and said they just pushed and shoved.

It would appear a visit was then made to the Zvenyika’s homestead home to follow up on the stolen money.  Morrise Nyathi however, denied that he went, and said only Machokoto went.  He said he did not know what Machokoto was going there for but that he assumed he was going about his business of selling goods as he would leave goods for sale at the Zvenyika’s homestead and also go to collect cash.  He then said the accused persons approached them, armed and he fled.  He said that deceased was inside the car when he fled.  He said that he heard the utterances “attack” when he fled and he also said that he was hit with a stone.  He then heard a hitting sound once.  He later got to know that deceased had been assaulted and that he had died.  Tazvitya Machokoto said that when he went to the Zvenyika homestead he had gone about his business of buying and selling and that he had however mentioned it to the father of the accused persons that he believed Rodwell Zvenyika and the other young men had stolen his money while they assisted him to push start his motor vehicle.  He also confirmed the later arrival of accused persons who were armed with knobkerries and that they shouted and “attack” and he also fled but heard three or four hitting sounds as he hid in some gulley nearby.

The defence cases were mainly that, after the alleged theft of the money by Rodwell Zvenyika the second state witness in the company of others came to the Zvenyika homestead in a confrontational manner, and that they in fact tried to attack accused two by surrounding him and that he fled after scaring them with a fish hook that he was carrying.

According to accused one that afternoon he had found one Foreman Nkala threatening his wife accusing her of having hidden Marsh Zvenyika and Rodwell Zvenyika whom he alleged had stolen their money.  He also saw the two witnesses and their colleagues manhandling his father threatening to burn him with petrol.

Accused 3’s evidence is that himself and the other three accused persons went after the two state witness so as to try and resolve the assaults that had been perpetrated by them on the Tarwireyi (accused 1, 2, and 4’s family) family.  Accused 3 carried a stick that he picked from the bush to use as a defence in case of being attacked.

Accused 2’s defence is that they pushed the Machokoto group in order to convene a round to table conference aimed at resolving the dispute that had arisen since all those that were involved were locals.

Accused number 4 states in his defence outline that their aim in pursuing the Machokoto group was to cause their arrest.

What is clear from these facts is that an altercation arose as a result of the lost money that was allegedly stolen by Rodwell Zvenyika and the other two young men from the two state witness and their colleagues.  	Morrise Nyathi admitted that Machokoto clapped Rodwell Zvenyika although Machokoto himself denies this and says they only pushed and shoved.  It is the finding of this court that Morrise Nyathi would not say that Rodwell Zvenyika was clapped by Machokoto when in fact that did not happen.  The version of the state as to what transpired in the Zvenyika homestead after Machokoto got there, is the state witness’s word against the accused person’s word and this court cannot make a finding that the state case carries the day since the accused’s versions on that aspect have not been disproved.  Machokoto himself cannot be trusted as he denied the assault on Rodwell Zvenyika which clearly occurred per Morrise Nyathi’s testimony.

As for the reason why the accused persons later followed the Machokoto group, we can only be told by them.  They say it was to resolve the dispute, and to apprehend them.  This has not been disproved by the state.  As only accused persons can tell us their mission viz a vis the events of that day.

The accused persons were armed with sticks according to their testimony.  One Elliot Ngidhi is the one who was armed with an axe.  When they got to the scene and spoke to Machokoto, him and his colleagues fled.  The deceased then emerged from the car running and heading towards accused 1.  Accused 1 then stuck him once on the head with a stick.  He then fell.  Accused 1 speaking for himself says he got frightened as he saw deceased heading towards him.

These are the material respects of both the state and defence cases.  The difficulty that the state case has is that firstly the versions as given by the accused persons have not been disproved.

While Machokoto and Morrise Nyathi say accused persons were armed with stones and knobkerries, accused persons have denied that and only said they had thick sticks.  This aspect of the defence case has not been shot down by the state for it is the state that has a duty to prove its allegations.  This remains the state witness’s word against the defence witness’s word and where an accused person’s version has not been shown to be improbable, unreasonable or false, the accused person gets the benefit of the doubt.  In giving the accused persons the benefit of the doubt as they are entitled to it, this court makes a finding that they were armed as per their own evidence

Secondly, on the aspect of their mission on the date in question, that they followed the Machokoto group to reason with them and apprehend them, it is only their word that carries the day for the state has not adduced any evidence to the contrary.

That they armed themselves with sticks in order to defend themselves in the event of an attack has not been disproved by the state.  Neither can an inference be drawn that the sole purpose of arming themselves was to attack the Machokoto group because an inference can only be drawn if it is the only reasonable inference that can be drawn.  Where there are other possibilities like in this case that it could be true that they armed themselves for defence in the event of an attack given that it was at night and this was in the village, this court is not allowed to conclude where there are many possibilities that in fact the assertion by the state is the only correct conclusion.  The accused persons also get a benefit of the doubt as to why they armed themselves with sticks on the night in question.  Their explanation cannot be dismissed in the absence of evidence adduced to the contrary.

What then transpired when deceased was struck can only be ascertained from the defence case as the state witness had fled and did not witness the assault.  The defence case is that deceased came out of the car running unexpectedly towards accused 1, who alleges that he then got frightened and struck deceased once on the head with a stick and he fell down.  The other accused persons were surprised by accused 1’s conduct and on questioning him he said it had just happened.

None of the accused persons have been shown to be lying to the court, whether through different versions of the same account or through a bid to protect each other.  The accused persons seem to have told the court the truth for if at all they were liars they could have easily pushed blame to Elliot Ngidhi who is since deceased.  If the accused persons were also bent on lying they could be implicating each other.  In this case accused 1 has taken responsibility for his actions.  It is thus the finding of this court, that an accused’s version is not dismissed merely because he is an accused, neither is the state version accepted merely because it comes from state witnesses. Tazvitya Machokoto showed himself to be unreliable when he denied assaulting Rodwell Zvenyika.  He also failed to explain why he did not tell the police that he heard three hitting sounds and that the accused persons shouted the word “attack”.  He then however confirmed that such information was not in his statement and did not say that he gave the police the information but they did not put it.  In fact answering that question he said the police had not asked for that.  How could the police ask for that as all he was expected to give was the whole account of what transpired resulting in deceased’s death not what the police asked him.  The police certainly could not have asked him if he heard three hitting sounds because they did not know that such occurred in the first place.  It was for him to just tell the police everything that he knew about the case.  Machokoto also seemed bent on telling the court what he heard as rumours rather than what he knew until when he was reminded that he took oath to tell us only what he knew. That he heard three hitting sounds does not destroy the evidence by the four accused persons that deceased was struck once on the head.  Not only was he unreliable but even if he were reliable where his word is against the accused persons word and the accused’s defence has not been disproved then the accused person gets the benefit of the doubt.

The state counsel submitted that the post mortem report shows multiple fractures which are consistent with multiple strikes as alleged by Machokoto.  It is however, the view of this court that the court can only make such conclusion if it is the only reasonable inference that can be drawn in the circumstances.  However, this court holds the view that that only cannot be held to disprove the accused’s version that deceased was struck once on the head for the following reasons:

1)	Firstly it is not a proven medical fact that multiple skull fractures cannot result from a single blow but can only result from many blows.

2)	It is not proven where accused 1’s blow landed.

3)	It is not proven how deceased fell and whether or not he was further injured while falling given the fact that he was found lying facing upwards with injuries that Morrise Nyathi pointed at to be on the crown of the head towards the back of the head.

4)	It is not a proven medical fact that a person’s skull cannot be fractured if they fall onto a sandy area.

5)	It has also not been proven as a matter of fact that deceased’s head landed softly on the ground.

All these factors work against a finding that the multiple fractures on the head could only

have been inflicted by multiple blows.   The state had a duty to prove that assertion but it did not.  It is thus the factual finding of this court that the only known blow that was inflicted on the deceased is as per the defence account.

With reference to the doctrine of common purpose it is this court’s view that the state has failed to adduce evidence that proves the guidelines in section 196 A (2) of the Code in relation to subsection (C).

The state has not shown that the four accused persons engaged in criminal behaviour as a team prior to the conduct that resulted in deceased’s death.  The uncontroverted evidence in the court record is that the accused person set upon a mission to resolve the dispute they had earlier on and to apprehend the Machokotos.  No evidence has been led to show either that they intended revenge or they wanted to go there and fight.  We are stuck with the accused person’s version in this regard for there is no other version.  In relation to 196A (1) (C) that is whether they associated together in conduct preparation to the one resulting in the crime issue arming themselves, they had also given an explanation that has not been disproved.  I have already stated that this court is not allowed to dismiss an accused’s version unless it is shown to be improbable unreasonable, or untrue.  I have also said that this court is not allowed to draw one inference where there are other possibilities.  It is possible that men setting upon a journey at night arm themselves in the event of an attack as they allege.  I do not hold the view that arming yourself in the event of an attack can be held as being preparatory to commit an offence for the intention is not to commit an offence but to defend oneself if the need arises.  I also do not hold the view that chasing after a suspect, or pursuing a person who has wronged you is unlawful conduct as suggested by the state counsel.  A situation comes into mind where a handbag is snatched from a woman in a bus rank, those who shout and chase after the culprit cannot be held to be engaging in unlawful conduct or planning to do so.

Those who run after the culprit and effect a citizen’s arrest, and thereafter had over a suspect to either the village head or the police cannot be held to have engaged in unlawful conduct.

I accordingly do not accept that setting upon a mission to either apprehend or liaise with the Machokoto group was in itself unlawful conduct.

In relation to subsection (a) that all the accused persons were present, I hold the view that the circumstances do not implicate accused 2-4 in view of the fact that accused 1 himself does not say he struck the deceased in furtherance of any mission with his co-accused, but that he got frightened as deceased came out of the car and ran towards him.  When he got frightened and struck deceased, he was not furthering any plan with his co-accused, neither was he expected to act in that manner in furtherance of his co-accused’s interests.  If accused 1 had struck deceased in order to revenge and if the parties had set upon a revenge mission and that had been proven by the state, then they could be liable.

This court accordingly finds that the circumstances given in section 196 A (1) (a-c) have not been satisfied in relation to accused 2 – 4.

Neither are there any other circumstances evident from the facts that would render these three accused persons liable for accused 1’s conduct.  This court has not accepted the concession made by accused 2’s counsel as it is of the view that it was not properly taken.

Accused 2, 3, and 4 are accordingly found not guilty and are acquitted.

We then proceed to establish what accused 1 is guilty of.  Accused 1’s conduct is that he got frightened as deceased emerged from the car running towards him and he thus struck him once on the head with a stick.  We have not been told of the size of the stick.  We are not allowed to guess or conclude that it was a big stick enough to be taken as a lethal weapon.  The evidence is that he struck deceased once on the head with a stick.  Naturally striking a person once on the head with a stick does not entail that death is either certain or that it is real possibility.  A man can survive a single strike on the head with a stick.  I have already stated that the post mortem report does not assist us in concluding that excessive force was used or that deceased was struck many times since deceased fell down after he was struck.  The accused person also gets the benefit of the doubt as to the causal link between his single strike on the head and the multiple fractures on the skull as it cannot be held as a matter of fact that the fractures only resulted from the strike.

It is for these reasons that this court finds that accused 1 neither had actual nor legal intention in this matter.  The only fact that has been proven beyond any reasonable doubt on the facts of this matter is that accused 1 was negligent in the circumstances.  Again, on this respect this court has not accepted the concession made by accused 1’s counsel as it is of the view that it was not properly taken.

It is for that reason that accused 1 will be found guilty of culpable homicide.

Sentence

The accused person is convicted of culpable homicide.  He struck deceased with a stick on the head in circumstances wherein he says he was taken by surprise and thus acted negligently.  He is a first offender.  He is a family man.

A precious life was nonetheless lost through accused’s negligence.  This court does not down play the sanctity of life but it has to look at all the circumstances of a case.  He waited for justice for 15 years through no fault of his own.  If the accused person had been tried and sentenced in 2004, he could have been given an effective sentence between 3-5 years imprisonment. That means by 2009 he could have finished serving it.  It then becomes unfair for him to then face incarceration 10 years later.  This is a weighty mitigating feature for if accused had sought a permanent stay of prosecution in the circumstances he could well have succeeded in that bid.  The accused is accordingly in the circumstances sentenced;

1)	To pay a fine in the sum of $500 RTGS or in default of payment 12 months imprisonment.

2)	In addition, 3 years imprisonment is wholly suspended for 5 years on condition that he is not, within that period convicted of an offence that involves violence, whereupon conviction he shall be sentenced to imprisonment without the option of a fine.

3)	The accused person is given until 24 June 2019 to pay the fine.

National Prosecuting Authority, state’s legal practitioners

Chivasa and Associates, 1st accused’s legal practitioners

Mawadze and Mujaya, 2nd accused’s legal practitioners

Hlabano Law Chambers, 3rd accused’s legal practitioners

Mutatu and Mandipa Legal Practice, 4th accused’s legal practitioners