The State vs Tafadzwa Gambiza

### Preamble
1
HCC 13/25
HCCR 1577/24
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THE STATE
Versus
TAFADZWA GAMBIZA

IN THE HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
CHINHOYI, 11, 14 & 20 February 2025

Assessors: 	1. Mr. Mutombwa
                   	2. Mr. Kamanga

Criminal Trial

R. Nikisi, for the State
T. H. Maromo, for the accused

BACHI MZAWAZI J:  The common cause facts resulting in the arraignment of the accused are that, on the 28th of March 2024 on the night of the murder, the accused visited the crime scene, Dandy 59 Mine, Kadoma, where the key State witness and his wife resided. He arrived after the deceased, Calisto Mutami, and his two friends had already arrived at this residence. The owner of the residence, Ntonio Yotamu, knew both the accused and the deceased, as both were artisanal miners at Inezdale Village. Yotamu was the holder of some mining rights, and his mining compound was his home and business residence.

It is not a disputed fact that, after the arrival of the accused, some physical confrontation took place, which resulted in the deceased being struck with the blunt back of an axe on the chest. The impact from the axe led to the breaking of the ribcage and ribs, which in turn caused the fatal injuries.  The deceased died as a result of perforations of both the heart and the lung, as per the autopsy report submitted.

Again, it is not in dispute that, prior to this incident, the accused’s friend, by the name of Khedha, had been severely attacked with a knife on the same night. As can be gathered from both the evidence on record and the defence case, by the time the accused arrived at Yotamu’s compound, he already knew the identity of his friend’s assailants as those of the trio, inclusive of the deceased, whom he found already at Yotamu’s place.

What is in dispute however is who fatally attacked and injured the deceased with the back of the axe? Further, the reason behind the accused’s arrival at Yotamu’s dwellings is in contention. The main issue to be addressed becomes: whether or not the accused person murdered the deceased as alleged; and if he did, whether or not he had the requisite intention to commit murder, or was he negligent?

The accused’s defence is that he was awakened in his home by his friend Kedha’s wife, who informed him of the stab injuries that had been perpetrated by the deceased and his unidentified friends on his friend Kedha. He, in turn, proceeded to Ntonio Yotamu’s place in order to get financial assistance to enable him to take the victim of the stab wounds for medical attention. In his defence outline, he painted a picture of great hostility between himself and Ntonio Yotamu, emanating from some love triangle. He told the court that, because of that, there was bad blood between himself and Yotamu, which led Yotamu to implicate him in this murder. The accused also claimed that both Kedha and himself worked for Yotamu, hence the move to get the much-needed cash from him.

However, the accused failed to rebut Yotamu’s evidence that, at the time of the murder, the accused was not working for him, as he had been weaned and had started his own self-help projects after being introduced to mining. He also did not deny that the only remaining link between them, business-wise, was a shaft he had been given to mine as his own by Yotamu. The accused, in his defence outline and closing submissions, still persisted with his evidence that he was still employed by Yotamu up to the time of the murder. In stark contrast, in his oral evidence in court, he claimed that Yotamu’s mining claims had been closed and Yotamu’s sole means of survival was from selling or distributing illegal drugs and prohibited medicines. In the said defence outline, he had claimed that the three assailants had gone to Yotamu’s house for the purpose of purchasing drugs. In addition, another reason why Yotamu implicated him was because the death of a person on his premises jeopardized his illegal operations.

What fails to add up, and was exposed in cross-examination, is why the accused would refer to Yotamu as his employer when the mining operations had ceased and been overtaken by drug and illegal substance peddling. If, at all, Yotamu’s sole survival was no longer linked to mining, why would the accused go to him to get money based on an employer-employee relationship? These observations weaken the defence case and augment the two State witnesses’ evidence as to the chronology of what transpired on that day. It also dents the accused’s defence that Yotamu’s evidence was malicious because of a once-existent love wrangle and that Yotamu falsely implicated him in order to shield the real culprits on the run. It illustrates that the accused’s defence is not probable. It also dispels the notion that the accused’s purpose for visiting Yotamu’s place was to obtain cash assistance.

Suppose the cash assistance version were to be believed, which we have already rejected, from the evidence, when he embarked on his journey, he already knew that his friend had been badly attacked with a knife. In addition, he was aware of the identity of the attackers as none other than the trio he accosted at Yotamu’s place. It is clear, given the description of the knife wounds on the accused’s friend, that this was a dangerously armed crew. The accused failed to respond, on cross-examination, that upon realizing who they were and the danger they posed, and had already exhibited, why then did he even dare to face them or be in the same proximity with them in Yotamu’s compound unless he was equally armed himself. This, from our analysis of the evidence against the background of the facts, supports the two witnesses’ evidence that the accused came to their house already armed and well equipped to exact revenge on his friend’s assailants.

It is apparent, from the irrefutable evidence placed on record that the three attackers who had allegedly attacked the accused’s friend did so with a knife. Yotamu, in his evidence, which was corroborated by his wife, Charity Chibhamu, stated that they came asking for a torch in order to examine some wounds, in particular a head injury of one of them, who was not the deceased. Both witnesses, who were in the company of minor children, did not see any axe. What this shows is that the axe, the murder weapon, did not emanate from the deceased and his friends. If, at all, they wanted to attack each other after turning against themselves, as alleged by the accused, they would simply and logically have used the same weapon they had used on their alleged first victim. This gives credence to the two witnesses’ story that the accused, whose mission was to avenge his friend, came holding an axe, without wasting time, attacked the deceased, who could not escape in time as his colleagues did.

In addition, it is illogical that the accused would meddle in the affairs of his opponents, playing a Good Samaritan knowing they have just left his friend for dead.

We believe the two State witnesses. They gave evidence separately, but their evidence tallied in almost every material respect. They were not shaken under cross-examination and stuck to their guns that the first to arrive at their house were the deceased and his gang, asking for a torch. The two witnesses, husband and wife, had just arrived at their mine homestead with their three minor children. They had not even settled down when the trio arrived. Their fifteen-year-old teenage girl had started a fire so as to prepare supper, and was preparing it. The wife was ferrying their luggage from outside into the house, while her husband, Yotamu, was entertaining the uninvited guests by giving them the requested torch.

Both witnesses stated that the torch was used to examine wounds. Yotamu said that, from the torch-lit examination, only one of the three, the one with a visible head injury, was examined. Both witnesses described the manner in which the accused approached their homestead, soon after the arrival of the trio, and the words he uttered in connection with the deceased and his link to the stabbings of his friend. The witnesses testified that, when the accused arrived uttering the said words, two of the deceased’s companions rose and managed to flee. It was too late for the deceased, who, in an effort to rise from the log where the trio had been sitting, was then struck on the chest once, and he fell down there and then. He never regained consciousness.

Yotamu attested that, since he had always regarded and treated the accused as a younger brother, he tried to restrain the accused but was overpowered. The accused then advanced once again and struck the unconscious deceased for the second time. There may have been a few minor discrepancies in the two witnesses’ evidence as to where the deceased landed after the first blow, the number of torches present, and where the second blow landed on the deceased. In any event, a reasonable inference drawn from the totality of the evidence is that the head injuries may have been as a result of the deceased’s thunderous fall on the verandah next to the witness’s daughter’s legs. Given the lapse of time since the occurrence of the offence and the date of the trial, and the whole traumatic, tragic event, the slight variations are of no consequence. As already stated, the first two witnesses were unshakable in the witness stand. Yotamu, a grown man, even broke down and cried on the stand, stating that he had never witnessed such a traumatic and horrendous experience of watching a person die in his presence. Though the axe that was produced in court, at the time of its production, had no traces of blood, the accused, when giving evidence in court, did not deny it was his.

In S v Nduna & Anor HB-48-03, it was held that,

“Where a conviction relies on the evidence of a single witness, discrepancies in the witness’s evidence are not necessarily fatal. The discrepancies must be of such magnitude and value that it goes to the root of the matter to such an extent that their presence would no doubt give a different complexion of the matter altogether.”

This court rejects the accused’s defence that he was attacked by the said opponent gang in the process of restraining them when they suddenly turned on each other in his presence. He does not deny the presence of an axe. Coincidentally, he states that the same butt of the axe used to strike the deceased was also used to strike him on the mouth. He claims to have lost seven of his teeth as a result, but surprisingly managed to get back to his injured friend and accompany him to the hospital. One wonders that if he indeed had been attacked by the butt of the axe in almost a similar manner as the deceased save for where the strike was aimed, he would have been knocked unconscious or fatally injured. Not only that, the blow exerted with such force and wrought iron could not simply end with the loss of teeth. The jaw line upper or lower, would have collapsed or fractured. The facial skull would have suffered the same fate. When he appeared in court there was no evidence of any form of scar or deformity that shows that was attacked in such an atrocious manner. Even if it was to believed that he sought home care, then the more visible would the scars have been. In an event, the accused’s defence witness attested that he has lost four teeth not seven. He may have lost some teeth yes but as to when and how, the witness could not specify.

What is even more surprising is that after being attacked as alleged he could walk freely to his house collect his wife and desert the mining area. At the same time go to his injured friend and accompany him to the hospital.  Upon cross-examination in court, he failed to account for why he did not then seek treatment for such grievous injury alongside his friend Khedha. His reply was that he had no money for treatment, but ironically, he had money to go and seek traditional medical assistance from his grandmother in Harare. The accused failed to explain why he did not make a police report of both his injuries and those of his friend, so as to get assistance in securing free medication. Further, it does not make sense that, if he had gone to get money from Yotamu in the first place, where then did he eventually get the necessary cash to take his friend to the hospital after the murderous encounter.  It is perplexing that he suddenly became liquid and could afford bus fare for himself and his family from Kadoma to a Hararian suburb when he had no money to begin with.

On analysis, the actions of the accused are not consistent with those of an innocent man who had been wronged. After the incident, he relocated to Mutorashanga with his family without bidding farewell to his landlord and friends. He never reported or handed himself over to the police, either as a complainant to his own alleged assaults, those on his dear friend, or as a witness to the heinous offence that took place in his presence. He had to be enlisted on the police list of wanted fugitives from justice. He had actually moved on and was a passenger vehicle driver in Mutorashanga when the police net closed in on him.

Even more incomprehensible is the fact that there is no visible scar indicating that the accused received a blow from the butt of an iron axe. If indeed he did, such a kind of blow speaks to a broken jaw or some kind of damage to the frontal facial skull, which can only survive medical expert intervention. While mindful of the fact that the accused has no duty to prove his innocence, we are cognizant of the fact that his story has to be reasonably probable. We, therefore, are not convinced that the accused’s version is believable or probable, but believe it is outright false. See S v Chikanga HH233/2022 and the cases cited therein.

In Rv Difford 137 AD at 370-3 GREENBERG JA highlighted that,

“No onus rests on the accused to convince the court of the truth of any explanation,
the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but it is false. If there is any reasonable possibility of his explanation being true then he is entitled to his acquittal”.

NUGENT J in S v Van der Meyden 1999(2) SA 79 stated that:

“The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable; but none of it may simply be ignored.” [Emphasis added.]”

The State witnesses were credible. They corroborated each other. This is direct eyewitness evidence. The State has, beyond any shadow of a doubt, proved that the accused killed the deceased in the manner alleged. He has no sustainable defence. The cumulative evidence adduced, both direct and indirect, points not only to the guilt of the accused, but also to his intention.

This court in S v Tinashe Mtisi HMT 28/21 summarised that:

“Murder consists of the unlawful and intentional killing of another person. Both the actus and mens rea must be proved beyond reasonable doubt for one to be liable of murder. The state has to prove that the accused had either actual or legal intention when he engaged in the unlawful conduct which is the cause of the consequence that is death of the deceased. Actual intention exists where the perpetrator sets out with an aim or desire to kill and proceed to kill. On the other hand, legal intention exists where the perpetrator commits the actus reas foreseeing that it may cause death of the other but despite the foresight proceeds with his conduct”. See,  S v Mugwanda SC 19/2002.

Negligent killing is ruled out by the evidence. The intention, deduced from the murder weapon (an axe, irrespective of which one in particular), the place where the blow was aimed, the intensity of the force exerted, and the injuries sustained by the deceased, all leads to one conclusion: that this is murder with actual intent.

In S v Kurongera HH 267/17 HUNGWE J commented that:

“Where there is no expression of such intent the law can infer such an intention from the accused’s conduct and circumstances surrounding the commission of the offence and conclude that such an intent existed in accused’s mind.”

S v Wirosi HMT 57/21 is authority that:

“It is now settled law that the aspect of intention can safely be inferred from the nature of the weapon used, the part of the body the fatal wounds were inflicted, the number of blows, intensity and viciousness of the attack.”  See, S v Marata HCC76/24.

Most importantly, the evidence reveals an enraged revenge attack. The accused, a member of one artisanal factional gang, knew the members of the so-called villainous gang and the direction they had taken. When he followed them to their stopover place, which happened to be along the way to the deceased’s home and the Cheharare makeshift business complex, he already had a plan, premeditated and resolved to meet out instant justice to his friend’s attackers. This was, therefore, a pre-planned murderous attack on the deceased, showing the desire to kill.

Disposition

It is our finding that, yes, indeed, it is the accused who killed the deceased in the manner alleged. Both the actus reus and the mens rea have been successfully proved by the State beyond a reasonable doubt. It has been established, through the facts and evidence, that the accused had the actual intention to exact revenge on his targeted adversary, the deceased.

Accordingly, the accused is found guilty of murder with actual intention to kill.

Sentencing Judgment

The accused has been convicted with one of the most serious of all offences, murder with actual intent. It attracts life imprisonment or a long custodial stint. Had it not been that the death penalty was recently abolished in terms of the Death Penalty Abolishment Act (Act No. 24 of 2024) this category of murder would have all things being equal attracted the capital punishment. We will not regurgitate the facts because they are already common cause.

The State has made submissions, as required by the law, that a finding of whether or not aggravatory circumstances exist has to be made by the court before sentencing. Indeed, we agree with the defence that this was a crime of passion but in our view, it is more aggravatory in that the accused did not choose to seek assistance from authorities. He had the opportunity to go and report the assault on his friend to the police. He took the law into his own hands and administered instant jungle justice.

What is more aggravatory is, there was disregard of the minor children who were present at the time of the killings. They will forever be haunted and traumatized just as illustrated by a grown man, their father, Yotamu who cried only by the mere recollection of the events of that night. How about the minor children?  A steel axe was the weapon of choice used with fatal consequences.  It does not really matter whether the blows were many or not but we are aware that, that single blow killed the deceased.

As already noted, crimes of this nature are prevalent in artisanal mining communities. They are not taking heed of all the judgments we are delivering in these courts. They do not even fear to kill, they are not even afraid to shed blood. A message should be sent to the artisanal mining community as well as to the society at large that people should not take the law into their own hands and a deterrent sentence is called for.

The court is of the view that there are aggravatory factors which outweigh the mitigatory factors. What is even worse is that the accused person did not render any assistance to the deceased. He did not report the incident to the police. Further, no funeral assistance was given to the family of the deceased and no reparations were paid. For these reasons the court is swayed to impose a sterner penalty.

The statutory penalty provision allows for 25 years or life if a finding on aggravatory factors has been made. If the death penalty has not been abolished as noted above, it also allows for the beheading of the culprit. In calibrating the sentence, the interests of society, and those of the accused person are to be counterbalanced. This applies also to the victim impact statement, the mitigation, the aggravation as well as the sentencing report. A sentence of 23 years imprisonment, in the circumstances meets the justice of this case. Accused is sentenced to 23 years imprisonment.

National Prosecuting Authority, the State’s Legal Practitioners

Choga & Associates, the accused’s Legal Practitioners