Witness Paradzai Garikai and Tatenda Garikai v The State

### Preamble
1
HMT 75-20
CON 05/20
CON 04/19
CROSS REF. HMT 42/20
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WITNESS PARADZAI GARIKAI

And

TATENDA GARIKAI

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 28 October 2020

Chamber Application for Condonation for late noting of appeal.

MUZENDA J: On 23 July 2020 these two applications were brought to me for an application for late noting of appeal. I refused both applications on the basis that there were no prospects of success on appeal.

On the 16 October 2020 Messrs Chibaya and Partners wrote a letter addressed to the Deputy Registrar requesting for reasons for my refusal. The records were placed before me in Chambers at 1500 hours on 26 October 2020.

BACKGROUND INFORMATION

On 2 June 2020, the current two applicants were arraigned for murder where the state alleged that on 25 December 2018 and at Constance, Chitungwiza, Nyahukwe Road, Rusape, the accused each or one of them unlawfully caused the death of Carlington Rateiwa by assaulting him with fists and stabbing him with a water glass on the neck, intending to kill him 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 the said Carlington died.

On 12 June 2020 both applicants were convicted of murder with actual intent. Witness Paradzai Garikai in his own admission during proceedings, stabbed the deceased and directly placed himself at the scene of crime. The second applicant Tatenda Garikai was convicted as co-perpetrator and was implicated by both state witness and his accomplices. From the way the offence was committed we convicted both applicants on the doctrine of common purpose and first applicant witness Paradzai Garikai was the principal perpetrator.

In their application, both applicants outlined their intended grounds of appeal as follows:-

Ad Conviction

The court a quo grossly misdirected itself at law by convicting first appellant (first applicant herein) of murder with actual intent notwithstanding that the essential elements of murder with actual intent had not been established by evidence.

The learned Judge erred at law by convicting first appellant of murder with actual intent when the record reflected that first appellant was negligent in his conduct and therefore liable to culpable homicide.

The court a quo grossly misdirected itself in terms of the law when it convicted second appellant (second applicant herein) of murder as a co-perpetrator despite that there was no evidence adduced proving that second appellant participated in the assault of the deceased or associated himself with the attack on the deceased’s person.

The learned Judge further misdirected himself at law by convicting second appellant of murder on the basis of the doctrine of common purpose when the requirements of doctrine of common purpose had not been satisfied.

Both applications were opposed by the state on the basis that there are no prospects of success on appeal.

Having looked cumulatively at evidence led by the state during trial, more specifically the way the first appellant in collusion with his co-convicts, how they blocked the deceased’s motor vehicle, stood in front of the car and attacking deceased on the neck using a broken water glass, our view during trial was that all the elements of murder with actual intent were established by the state. By deliberately delivering the blow on the deceased’s jugular vein the judgment shows why the court rejected negligence. The utterances by the second appellant’s accomplices at the scene, the nonchalant attitude of all the convicted accused after realising that deceased had been fatally injured, in our view shows that the state had established common purpose.

I have attached to this ruling, copy of the judgment to assist the Supreme Court.

It was because of the foregoing that I concluded that there were no prospects of success on appeal.

Chibaya & Partners, Applicants’ legal practitioners

National Prosecuting Authority, Respondent’s legal practitioners