THE State V Tapiwa Vhutani

### Preamble
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HH 819-18
CRB 27/18
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THE STATE

versus

TAPIWA VHUTANI

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 16 March 2018

Criminal Trial

B. Murevanhema, for the State

C. Damiso, for the respondent

FOROMA J: The accused has been arraigned on a charge of the crime of conspiracy to commit murder as defined in section 188 (1) as read with Section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that on the 30th day of May 2017 and at Dirozvi Meeting Place Lodges Chivhu the accused person unlawfully and intentionally entered into an agreement with Obert Juru for the killing of Makanaka Vhutani intending by the agreement to bring about the commission of murder or realising that there was a real risk or possibility that the agreement may bring about the commission of murder.

Accused in the alternative was charged with contravening section 3 (1) (b) (ii) of the Trafficking in Persons Act [Chapter 9:25] it being alleged that during the period ranging from 27 March 2017 to 30 May 2017 and in Chivhu and Hwedza the accused unlawfully and knowingly attempted assisted abetted procured incited solicited connived or conspired with others for the crime of trafficking.

Accused pleaded not guilty to both the main and alternative count raising an exception to the alternative count which exception the court dismissed before proceeding with the trial.

The State led evidence from Obert Juru Jealous Kohe Brica Muyengwa and Dennis Tigere. Rodwell Nyamadzawo who had been lined up to give evidence as a state witness was eventually not called as his testimony was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. His evidence as admitted was that he is a duly attested member of the Zimbabwe Republic Police stationed at Chivhu Criminal Investigations Department. He would state that upon receiving the information he delegated Detective Sgt Koke to carry out investigations in the matter. On the 30th May 2017 he applied for a trap certificate which was authorised and that he is the one who used the trap certificate in arresting the accused person.

Briefly Obert Juru testified that he is a male adult residing at 1502 Northood Chivhu. He received text messages on his mobile phone from the accused although accused did not identify himself. Initially he did not respond to accused who did not identify himself but persisted with his enquiry that he was looking for a person who wanted to buy a child for ritual purposes. When he realised that accused was persistent he decided to inform the police who decided that the accused be trapped. Preparatory to trapping accused Obert Juru pretended that he had identified someone who was interested to buy a child. However accused would have to come to Chivhu to meet and discuss with the potential child buyer. According to Obert Juru applicant promised him that if the deal succeeded he would pay him a share of the proceeds. Accused promised Obert Juru that he would come to Chivhu on the 29th May 2017 to meet the would be purchaser of his daughter. In the interim police arranged that one of them would act as the buyer to be. On the 30th May 2017 accused arrived in Chivhu and arranged to meet Obert Juru at D1 Rozvi Meeting Place. At Di Rozvi accused met with Obert Juru who was in the company of two police details namely Jealous Koke and Dennis Tigere disguised as the would be buyers of accused’s daughter. Dennis Tigere introduced himself as the intending buyer and that J Koke was his friend. When they asked as to where the child was the accused indicated the child was at Sadza Growth Point in Hwedza. The police details requested Obert Juru to advance some money for accused’s busfare to Hwedza to pick up the child and Obert Juru obliged.

Obert Juru identified the print out of short message services (sms) sent to him by the accused which the State produced as exh 1. Accused did not dispute having sent the said sms messages.

Most of Obert Mujuru’s evidence was not disputed. What was important from the defence perspective was that the issue of the death to of accused’s child did not arise in Obert Juru’s discussions with the accused.

Jealous Koke was the next witness. He was the Investigating Officer and was present with Detective Dennis Tigere at the first meeting with accused at Di Rozvi meeting place. He testified that when O Juru indicated that accused had arrived in Chivhu on the 29th May 2017 he and detective Dennis Tigere went in O Juru’s vehicle to meet accused. He testified that when they met accused D Tigere introduced himself as the intending buyer and that he was in the business of acquiring human body parts for people who needed them for ritual purposes in South Africa and inquired as to how much he needed for his child and if he was prepared to sell his child for this purpose. The accused responded saying that all he needed was the money. He was not interested in what would happen to the child. He indicated that accused initially stipulated  20 000.00 for his child but they negotiated him down to 12 000.00. After settling the purchase price for the child accused indicated that he needed to go and collect the child from the rural area at Hwedza and as an assurance that he would return he left his I.D and an enlarged photograph of himself undertaking to get back the following day on the 30th May 2017.

Before being stood down the state produced the following exhibits through Koke – Trap Certificate Authority as exh 2. Twenty five x 2 dollar bond notes making a total of $50.00 and copied on 9 sheets as exh 3 and marked 10 000 containing $50.00 in bond notes and 3 packs of paper produced and marked exh 4. The witness also produced as exh 5 the accused’s warned and cautioned statement confirmed by a magistrate at Chivhu.

Jealous Koke testified that they did not record the discussions with accused as they did not have the recording equipment. It is significant that during cross examination Jealous Koke admitted that accused did not say or mention that he wanted his child killed. He also admitted that the issue of body parts was not raised by accused but by Detective Dennis Tigere. His understanding of kuromba was that it involved the shedding of blood or killing another.

The State also called Detective Dennis Tigere who corroborated Detective Sergeant Koke on the discussions of the 29th May 2017 at Di Rozvi with accused Detective D Tigere further testified that he told the accused that he wanted the child to be killed for ritual purposes in order to enhance the performance of his business. He further testified that he remarked to the accused that the child was such a beautiful child and he asked accused whether he really wanted to get this child killed for ritual purposes to which accused responded saying he was not interested in what would happen to the child as what he wanted was the money as the mine he wanted to buy would be of greater benefit to him than the child.

He also testified that he told the accused that he intended to take the child to South Africa and it was necessary to bring the child alive to make easy passage across the border. He also testified that initially accused suggested that they drive to Hwedza to pick up the child but eventually agreed that he would go by public transport that day and was sure to be back the following day on the 30th May 2017. Before the accused left for Hwedza to collect the child Detective D Tigere negotiated the price of the child from 20 000.00 down to 12 000.00.

On the 30th May 2017 accused phoned him from Harare and asked for $3.00 as his busfare was running short. He sent him the $3.00 by ecocash.

When accused arrived with the child he called Detective Tigere who suggested they meet at the same place they had met the previous day i.e at Di Rozvi which they duly did. Accused found the detectives already at Di Rozvi. He then got into the detectives vehicle where he and his daughter sat at the back seat and Dennis Tigere and Koke sat in front with Tigere in the driver’s seat.

While in the car the accused told them (detectives) that this was the child. Tigere asked her her name and she told him she was called Makanaka. After the pleasantries Detective Tigere told accused that they had only managed to get 10 000.00 only as he handed him exh 4 (envelope which was sealed and marked 10 000 outside). Accused received the exh 4 which he placed in between his legs. In order to while up time so that the details who were going to arrest accused would close in Detective D Tigere asked accused if he was comfortable counting the money there and as it happened he indicated that he did not feel comfortable to count the money at that place and proposed that he count the money at Mvuma. While at it the detectives arrived opened the vehicle from both rear doors, produced their identities and asked accused what they were doing. Accused caught unaware blurted that he had asked for a lift to go to Mvuma and the detectives all showed him their identity documents and told him he was under arrest for selling his child.

The last state witness not in the order they were called was Erica Muyengwa who was accused’s aunt. Accused was her husband’s brother’s son and father of the child Makanaka Vhutani. She testified that on the 30th May 2017 accused came to Plot 3 Yuli farm where she and Alice Zimuto resided with the child Makanaka and asked to take the child Makanaka. According to her accused had not been seen there in the last six years and he had not contributed anything towards the upkeep of the child Makanaka Vhutani in the last 6 years. When accused asked to take the child Alice Zimuto (accused’s paternal grandmother) did not object. Accused’s excuse for wanting to take away the child Makanaka was that he wanted to take the child to Kadoma where he was working so that she could live with his maternal grandparents as this is where he grew up. However according to the witness accused told his grandmother that he would be responsible for looking after the child.

Accused pleaded not guilty to both the main and alternative charges and gave evidence under oath in his defence. His evidence was to the effect that he picked up the idea of selling his child when he was talking to some friends of his who had been to S. Africa. He claimed that one day he heard on television that there were people who wanted to buy children and he thought he could sell his child Makanaka as he was concerned about her welfare since he was not able to look after her from his income as a herd boy. His initial enquiries were made to Obert Juru from whom he enquired as to whether he knew anyone who could give him concoctions which could make him rich. This is confirmed in exh 1.

It was only on the 22nd April 2017 that accused enquired on whether any one might be interested in purchasing his 8 year old daughter.

The closest accused went to making an inquiry on business or wealth enhancing concoctions and selling of his daughter was on the 29th April 2017. On that day he inquired on both. Most of his evidence was consistent with that led by the state save that he denied that he was aware his daughter would be killed by the buyer. He testified that he wanted to sell his daughter as he did not like her to continue suffering. He considered that the condition of his daughter was deplorable and wanted to rescue her from the said conditions.

Accused wanted to acquire wealth enhancing concoctions to enable him to look after his child failing that he could sell his child to get money to buy a mine in Kadoma. He was so desperate according to one of his SMS he could part with his daughter for 6 000.

It is common cause that accused lied to his grandmother in order to get her to agree to release the child. He did not disclose his real plans to sell the child. He did not even tell his child the truth that he wanted to sell her. Rather he told her that she was going to stay with one Uncle Rogers. Accused admitted that when he arrived at Di Rozvi at Chivhu on the 30th May 2017 he told Detective D Tigere that he had brought the child and he was given the envelope exh 4 which he was told contained 10 000.00 as the part of the price for the child. He did not count the money as he did not feel secure at the place where they were parked. He had proposed counting the money at Mvuma police.

The court does not accept that accused wanted to count money at ZRP Mvuma for security reasons as he had no intention of disclosing the transaction (sale of his daughter) to the police. His reaction to being caught red handed betrays a person caught napping.

The court has to determine whether the state has proved its case in the light of the evidence summarised above.

The state allegations in relation to the main count are that accused conspired with Obert Juru to commit murder of Makanaka for ritual purposes. Evidence which is common cause is that at no stage did O Juru genuinely connive with accused in his plan to sell his child. If anything O. Juru only played the role of an informer.

He reported to CID the intentions of the accused to sell his daughter for ritual purposes. As a result the police decided to trap the accused which they did successfully thus they rescued poor and innocent Makanaka.

Can it be said that accused conspired with Detective D Tigere. The court accepts Detective Tigere played the role of a police trap by pretending that he was interested to buy accused’s child. He obviously had no criminal intent required in the crime of a conspiracy to murder. There was no agreement to kill the child. I accordingly find accused not guilty of conspiracy to commit murder.

As regards the alternative count it is common cause that

Accused consistently harboured the intention to sell his daughter.

His motive was to get money to purchase a mine at Kadoma.

He knew that human beings are not commodities of commercial trade.

He travelled to Hwedza and lied to his grandmother in order for her to agree to him to take away the child.

He wanted a person from South Africa to buy the child.

He agreed to sell the child to Detective D Tigere who had made it clear that he intended to take the child to South Africa.

Accused sought to minimise his criminal conduct by suggesting that he wanted to sell the child in order to remove her from an environment of suffering. The court does not accept the false parental concern that accused put forward as the motive for selling Makanaka. He had not been to see her in the last six 6 years neither was he providing for the child’s upkeep. His attitude to the child was despicable. His primary motive in selling the child was not humanitarian as he  was largely motivated by the desire to get money to buy a mine at Kadoma. His attitude is typified by his determination to get money at any cost which is implicit in his use of the word Kunyudza in exh 1.

He gave his child to Detective Tigere in return for the 10 000.00. In the circumstances the court finds the accused guilty of the alternative count.

Sentence

Accused has been convicted of contravening section 3 (1) (b) (ii) of the Trafficking in Persons Act [Chapter 9:25]. The penalty provision of the Act namely section 3 (2) (a) provides as follows – any person who commits the crime of trafficking in persons (a) in a case described in (ii) subsection (1) (b) that is committed in any of the aggravating circumstances described in sub-section (3) shall be liable to imprisonment for life or any definite period of imprisonment of not less than ten years or (b) in a case described in (ii) sub-section (1) (b) that is not committed in any of the aggravating circumstances described in sub-section 3 or if committed in such circumstances where special circumstances in terms of sub-section 5 are found to apply; shall be liable to a fine not exceeding level fourteen or imprisonment not exceeding ten years or both such fine and such imprisonment.

When accused’s counsel was invited to address the court on any special circumstances considered to apply counsel opted to lead evidence on oath from the convicted person where she canvassed the following (i) that applicant is 27 years old and has been incarcerated since 30th May 2017 while awaiting trial making a total of about 9 months of pre-trial incarceration.

ii) the case has attracted adverse publicity to such an extent that none of his own relatives are willing to allow him near their minor children.

iii) he feels such remorse he would like to take an opportunity to apologise to Makanaka’s mother and her parents for the dastardly act he committed.

(iv) the convicted person has been haunted by the crime ever since he had been asserted and feels great remorse.

(v) he attended school up to form (iii)

(vi) he has a recently born child about 4 months.

In aggravation the state submitted that the offender is a parent of the victim who is his child. The defence argued that hardship coupled with the stigma in casu should be considered as a special circumstances. It is trite that special circumstances are those mitigating factors peculiar to the commission of the offence and not peculiar to the accused.

Defence counsel cited the case of S v Siziba 1990 (2) ZLR 87 for the authority that extra ordinary hardships can qualify as special circumstances. The pre-trial incarceration constitutes a psychological beating which justifies a finding that special circumstance exist. Infact the offence was committed in circumstances of aggravation as pointed out by the state counsel. I consider it also as aggravating and unconscionable greed that the convicted person decided to sell his child whom he had not been maintaining in order to raise money to buy a mine in Kadoma and yet he was already employed. He lied to Makanaka’s paternal grandmother who was looking after Makanaka in order to get his grandmother to release Makanaka. The convicted person is an extremely dangerous person and a great risk to minor children. If he can be so greedy as to dispose of his own child he cannot be trusted near other people’s children. Makanaka is an extremely fortunate child and she has Mr Obert Juru to thank for timeously bringing her father’s machinations to the attention of the police which resulted in his arrest on being trapped successfully before any further harm had befallen her. The convicted person so ferociously moved by the evil desire to get money at any cost became blind to what could happen to his own daughter. This court as upper guardian of all minor children would be failing in its duty to protect the minor children from predators such as the convicted person if he were to be saved an effective prison term

The Act under which the convicted person has been charged expressly prohibits in section 3 (b) the suspension of any sentence imposed in terms of subsection (2) (a) as the effect of such suspension is that the convicted person might serve less than ten years imprisonment.

The convicted person is sentenced to 20 years imprisonment with labour of which 5 years is suspended for a period of 5 years on condition he is not convicted within that period of an offence involving trafficking in persons for which he is sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, state’s legal practitioners

The Chambers, accused’s legal practitioners