MATHONSI J: The three accused persons are charged with
murder, the allegations being that on 19 August 2011 at Britwell North Mine in
Siganda, they wrongfully, unlawfully and intentionally killed Christopher Mudenda
(the deceased).
The
Accused 1 and 2 pleaded not guilty to murder but offered a limited plea of
guilty to culpable homicide while Accused 3 pleaded not guilty and did not
offer a limited plea like his co-accused.
The
allegations are that Accused 3, who owns the mine in question, was missing his
gold ore and set about making inquiries as to who had stolen it. He enlisted the assistance of Accused 1 and
2, both employees of his who were security guards at the mine, and state
witnesses 2, Simiso Nxumalo, who was employed as the mine foreman, to track
down the suspects. They suspected that
the deceased was involved in the theft.
It
is alleged that they drove to the deceased's homestead and apprehended
him. On the way back to the mine, they
tied the deceased's hands with shoe laces and brought him to the mine where he
was made to lie down and the accused persons assaulted him using switches. At some stage the deceased broke loose and
fled into the bush but the Accused 3 instructed Accused 1 and 2 to give chase
and apprehend him.
It
is further alleged that when Accused 1 and 2 caught up with the deceased, they
further assaulted him until he fainted.
They could not bring him back to the mine camp for that reason. The accused persons took the deceased to Sikhuni
Clinic where he pronounced dead on arrival.
In
his defence outline Accused 1 stated that himself, Accused 2 and 3 collected
the deceased and took him to the mine intending to interrogate him about the
theft which had occurred at the mine.
Accused 2 tied his hands with shoe laces and the accused persons
assaulted him on the buttocks and back with switches. The assault did not take long and the force
applied was minimal.
He
stated further that when they stopped the assault, the deceased managed to break
free and fled but they gave chase. When
they caught up with him they tripped him to the ground. The deceased lost consciousness and was
pronounced dead on arrival at Sikhuni Clinic.
Accused
2 stated in his defence outline that he and his co-accused sought after the
deceased intending to investigate a case of theft of gold ore. He stated that after arresting the deceased
they took him to the mine where they assaulted him on the back and buttocks
with sticks using moderate force. The
assault was deliberately directed at the back and buttocks in order to inflict
minimal pain and not to kill the deceased.
He
admitted that he conducted himself “recklessly” by assaulting the
deceased without regard to the possibility of serious injury a rising from his
actions.
Accused
3 submitted a lengthy defence outline.
The import of it is that he was informed by his foreman, Simiso Nxumalo,
that some gold ore had been stolen from the mine. In the company of his co-accused and Nxumalo
they proceeded to question the deceased who admitted having stolen the gold ore
and they drove back to the mine.
Accused
3 stated that on the way back, one of his co-accused who were seated with the
deceased, tied him with a shoe lace unknown to him and without his
instructions. He claimed that they were
using a van with himself and Nxumalo seated in the cabin while Accused 1, 2 and
the deceased sat at the back in the load box.
On
arrival at the mine, he left them by the vehicle as he proceeded to interrogate
Abednego Moyo and to drink water. When
he returned to the vehicle, he found Accused 1 and 2 assaulting the deceased
with switches as he lay on the ground.
He did not condone the assault and ordered the two to stop it and asked
the deceased to get up.
The
deceased offered him a goat as compensation for his gold ore which he could not
accept. He then decided to take the
deceased to the police at Siganda but as he turned his back to get into the car
the deceased took to his heels with Accused 1 and 2 in hot pursuit. He denied ever instructing Accused 1 and 2 to
chase or assault the deceased but stated that he was the voice of reason
stopping the assault.
Accused
1 later came running to report that the deceased had fainted and wanted water
to resuscitate him. Upon arrival at the
scene he found the deceased lying down unconscious. Accused 3 denied ever assaulting the
deceased.
The
state led evidence from two witnesses namely Abednego Moyo and Simiso Nxumalo.
It
was the evidence of Abednego Moyo that he was employed by the Accused 3 at his
mine as a gold digger and had been so employed for three months when the
incident occurred. For that reason he
did not know most employees at the mine and had never seen accused 1 and 2
until 19 august 2010.
On
that date he was at work and was preparing food at the mine camp when at about
1100 hours Accused 3 arrived in the company of Accused 1 and 2, Simiso Nxumalo
and the deceased. They were travelling
in Accused 3's motor vehicle which was a black saloon in the mould of a Toyota
corolla.
After
alighting from the vehicle they came to where he was by the fire and questioned
him about the missing gold ore. The
witness says he told Accused 3 that the gold ore had been taken by the deceased
and some other workmates. Whereupon the
Accused 3 turned to the deceased inquiring why he had taken the ore. He ordered Accused 1 and 2 to fetch switches
and beat up the deceased which they did.
According
to the witness, the deceased was made to lie on the ground and as Accused 1 and
2 assaulted him the Accused 3, who had been standing by the side of the
witness, also approached and kicked the deceased once on the rib. Accused 1 and 2 beat up the deceased for a
period of about 10 minutes.
Accused
3 then ordered Accused 1 and 2 to stop the assault and he asked the deceased
how he was going to compensate him for his gold ore. When the deceased offered a goat the Accused
3 retorted that the deceased was mad because the goat was only worth US$20-00
when his stolen gold was about 50g.
The
switches which Accused 1 and 2 had used to assault the deceased had broken
during the first assault. The Accused 3
then ordered them to fetch fresh switches and beat up the deceased for the last
time before they could take him to the police
The
witness stated that when the deceased was being assaulted he had his hands tied
to the front with a shoe lace and was made to lie on the ground facing
down. As Accused 1 and 2 started to beat
him the second time, the shoe lace had became loose, which enabled the deceased
to stand up and flee into the bush. When
the deceased had run a distance of about 20m, the Accused 3 instructed Accused
1 and 2 to chase after him and apprehend him and they complied.
After
a while they heard the deceased screaming from the direction he had fled. Later Accused 3 and Simiso Nxumalo followed
them to investigate what had transpired.
After a while, Accused 1 came with a 2 litre container asking for water
and this was after Accused 3 and Simiso Nxumalo had already followed into the
bush.
Sometime
later Accused 3 also returned to the mine camp driving his vehicle and he was
also given some water in a 5 litre container and he went away. When Accused 1 returned again for more water,
he told this witness and others that the deceased was being pretentious and
that they should have assaulted him with a pick handle instead of switches.
The
witness and other workers later followed the accused persons into the bush only
to find that the deceased was already dead.
They assisted the accused persons to carry him into the vehicle before
he was driven away in the direction of Sikhuni Clinic.
The
witness stated that the switches used to assault the deceased were of medium
size and not the type that could kill a person but just enough to discipline
him. Even as the fled the scene, he did
not have any visible injuries.
This
witness gave his evidence very well, his demeanor was perfect, he was confident
and his testimony was very clear. His
delivery also had an air of dignity and he was not shaken at all under cross
examination. He did not attempt to
exaggerate anything as shown by his readiness to concede that the switches used
to assault the deceased were not the type that could have killed him and that
the Accused 3 only kicked the deceased once.
We
readily accept his evidence.
Simiso Nxumalo, was the mine foreman
employed by the Accused 3. This witness
was present when the deceased was abducted at his homestead, tied with a shoe
lace and taken to the mine where he was assaulted. He was therefore warned as a suspect witness
according to law.
His evidence is substantially
similar to and corroborative to that of the first witness. He confirmed that when they went to collect
the deceased they were using a saloon family vehicle of the make of a Nissan
sunny and certainly not a van.
Simiso confirmed that either Accused
1 or 2 tied the deceased with a shoe lace as they sat with him in the back seat
of the vehicle while himself and Accused 3, who was driving were sitting in
front.
He confirmed that when they got to
the mine, the deceased was ordered to lie down and Accused 3 instructed that he
be thrashed with switches by Accused 1 and 2 which they did. As he moved away to light a cigarette the
deceased cried out to him as he was 9 paces away asking him to come to his
rescue. This prompted him to plead with the assailants to stop the assault
which they did.
This witness confirmed that Accused
3 present at the scene of the assault and that when the first assault stopped
Accused 3 demanded compensation from the deceased. When he was offered a goat Accused 3 was not
impressed and ordered the Accused 1 and 2 to fetch more switches and assault
him more. When they were assaulting him
the second time, the deceased escaped.
The witness said about 3 minutes had elapsed after the deceased started
running when Accused 3 ordered Accused 1 and 2 to give chase, apprehend him so
that they could take him to the police station.
He said the scream made by the
deceased from the bush was heard after about 20 to 25 minutes after he had run
away. When they followed into the bush
they found that the deceased had died.
This witness prevaricated has to
what report they had given at the clinic and at the police station on how the
deceased had died saying that at that stage the police had not asked a lot of
questions.
This witness could have easily been
an accomplice and charged with the accused persons given his active
participation in the events which unfolded on the day in question. There are therefore, inherent dangers of relying
on is testimony which must therefore be approached with caution. We are mindful of the fact that he may have
wished to falsely implicate others in order to shield himself away from
prosecution.
Having warned ourselves of such
dangers we are satisfied that such dangers have been eliminated especially
considering that most of his testimony has been corroborated by not only the
first witness but also, to a large extent, by the accused persons themselves.
All these factors, taken together
with the fact that his demeanor was very good and that his testimony was clear
and convincing, make us accept his evidence.
His prevarication about the report made to the police, may have been
influenced by the fact that he was also involved in making the report and was
reluctant to reveal the true nature of the report. However it does not take away the reliability
of his evidence on what transpired before that.
The accused persons also gave
evidence. While admitting that he
assaulted the deceased, the Accused 1 tried very hard to down play the seriousness
of the assault. He was also at pains to
exonerate the Accused 3 and tried to give an impression that himself and
Accused 2 took it upon themselves to fetch switches, order the deceased to lie
down and assault him without the authority of the Accused 3 even as Accused 3
was 9 paces away from the place of the assault.
He said he struck the deceased 7 times as he lay on the ground.
Accused 1 also testified that they
had chased after the deceased as he fled on their own without any instructions
from the Accused 3. This sharply
contradicted what Accused 2 and 3 themselves said as these two readily accepted
that Accused 3 gave the instruction for the deceased to pursued.
Accused 1 tried to give an
impression that the motor vehicle that they used on the day in question was a
van presumably because Accused 3 had stated so in his defence outline. This was proved to be false.
Accused 1 told the court that when
he caught up with the deceased, he tripped him to the ground and he fell on a
rocky area and hurt himself which caused him to scream. He denied that the deceased was assaulted at
that place. It was his evidence that the
deceased was still able to talk at that point and that he requested some water
to drink prompting them to fetch gallons and gallons of water from the mine
camp.
Accused 2 stated that when they got
to the mine, the Accused 3 had left them and gone to interview Abednego Moyo a
distance away and he only returned to where they were and found that they had
assaulted the deceased. He agreed that
the deceased had co-operated with them when he was handcuffed and when he was
ordered to lie down, but stated that they assaulted him because he was being
aggressive. They wanted to discipline
him. He struck the deceased 10 times
with a switch. Accused 2 confirmed that
they only chased after the deceased after Accused 3 had instructed them to do
so.
Accused 3 stated that he was angry
after learning that his gold ore had been stolen. He first tried to look for a particular
neighbourhood watch committee member to assist him apprehend the culprits. He could not find that member but could not
seek assistance from any other neighbourhood watch committee member because he
knew that the rest were elderly people who hated him. He then decided to use his own security
guards in the form of Accused 1 and 2 whom he wanted to act as his body guards
to protect him as he went about investigating the theft.
Accused 3 stated that his intention
was to apprehend the culprits and then surrender them to the police. His reason for not making a report to the
police and letting them do that task, was because he did not have enough fuel.
When the deceased had been
apprehended, he had taken him to his mine because he had implicated Abednego
Moyo. He wanted to confront Abednego
Moyo and then take the two of them to the police. According to him, when the deceased was
assaulted he was not present after he had left to interview Abednego Moyo and
to drink water. He denied ever kicking
the deceased. He also denied ever giving
instructions that the deceased be assaulted although he seems to corroborate
all the state witnesses except for the instruction to assault.
Accused 3 presented himself as the
saviour of the deceased who came to the rescue of the deceased as his security
guards were baying for his blood. He
confirmed that it is him who instructed Accused 1 and 2 to pursue the deceased
as he fled into the bush. He says when
he heard the scream he assumed Accused 1 and 2 were assaulting the deceased
again and this prompted him to instruct Simiso Nxumalo to follow them as he
feared that they would end up killing the deceased.
Unfortunately, when Simiso Nxumalo
intervened it was already too late because the deceased had been fatally
assaulted.
All the accused persons were not
credible witnesses. Accused 1 was under
the spell of Accused 3 who is his brother and lifelong benefactor. He says he is the person he looks up to for
help each time he has a problem. This
explains why he was hell-bent to take the flake for everything arising from the
demise of the deceased while shielding away Accused 3.
Accused 2 also tried hard to
exculpate Accused 3 and not himself. He
claimed that they assaulted the deceased, in the presence of their boss, of
their own volition. We find this
extremely unlikely. The manner in which
they stood akimbo as the deceased fled without doing anything, until Accused 3
bellowed the instruction that they give chase, exposes Accused 1 and 2 as
Accused 3's foot soldiers who acted only on the instructions of the Accused 3.
We therefore find as proved that-
(1) the
three accused persons acted in concert when they went to apprehend the deceased
at his homestead and caused him to sit in between Accused 1 and 2 in the
vehicle.
(2) they
acted in concert when they tied his hands with a shoe lace accusing him of
having stolen Accused 3's gold ore.
(3) Accused
3 was a very bitter and angry man, as he had lost a considerable amount of
money.
(4) they
acted together in causing the deceased to lie on his tummy on the ground and
assaulted him.
(5) they
were acting together when they chased the deceased into the bush to apprehend
him.
The deceased died as a result if
injuries sustained as a result of the assault perpetrated on him by the Accused
1 and 2 during the time that he was in the custody of the three accused
persons.
Accused 3 presented a defence that
he dissociated himself through out from the conduct of the Accused 1 and
2. The state witnesses we have already
believed stated that not only did Accused 3 give orders for the deceased to be
assaulted, he also kicked the deceased once.
In addition to that, we draw
attention to the provisions of s196 of the Criminal Law Code [Chapter 9:23]
which provides:
“(1) Subject
to this section where-
(a) 2
or more persons knowingly associate with each other with the intention that
each or any of them
shall commit or be prepared to commit any crime; and
(b) any one of the persons
referred to in paragraph (a) (“ the actual perpetrator”) commits the crime; and
(c) anyone of the persons
referred to in paragraph (a) other than the actual perpetrator (“the
co-perpetrator”) is present with the actual perpetrator during the commission
of the crime;
The
conduct of the actual perpetrator shall be deemed also to be the conduct of
every co-perpetrator, whether or not the conduct of the co-perpetrator
contributed directly in any way to the commission of the crime by the actual
perpetrator.
(2) If
the state has established that 2 or more persons
(a) were
associated together in any conduct that is preparatory to the conduct
which result in the
crime for which they are charged; or
(b) engaged in any criminal
behaviour as a team or group prior to the conduct which resulted in the crime
for which they are charged;
and
that they were present at or in the immediate vicinity of the scene of the
crime in circumstances which implicate them directly or indirectly in the
commission of that crime, then it shall be presumed, unless the contrary is
shown, that-
(c) they
knowingly associated with each other for a criminal purpose;”
Looking at this provision, Accused 3
cannot escape liability for the conduct of Accused 1 and 2 which is imputed
upon him as well.
The final issue to be determined is
whether the state has proved a case of murder.
The evidence led on behalf of the state is to the effect that the
accused persons thrashed the deceased using switches which could not be
expected to cause his death. The witnesses
said they wanted to force the deceased to confess and when he confessed they
wanted him to offer more than the goat that he offered. Eventually they would take him to the police.
We do not have any reliable evidence
of what transpired in the bush when Accused 1 and 2 caught up with the
deceased. There exists a lingering doubt
as to whether they assaulted him using different weapons from the switches that
had been used earlier or that he sustained fatal injuries due to the fall. That doubt must certainly benefit the Accused
persons.
The doctor who conducted the post
mortem report observed the following marks of violence;
“(a)
Multiple bruises with whip lashes all over the body especially the back
(b) Blood
from the tongue, mouth and nose.”
He concluded that the cause of death
was multiple injuries and multiple assaults.
In our view there is no evidence
upon which we can safely convict the accused persons of murder with
constructive intent.
What we have is a case of accidental
or negligent killing as shown by the manner in which the accused persons
desperately tried to revive the deceased.
In the result, all accused persons
are found not guilty and acquitted of murder.
They are all found guilty of culpable homicide.
Reasons for sentence
In considering sentence we have
taken into account all that has been said in mitigation. All accused persons are first offenders.
All of them are youthful
persons. Accused 1 is only 20 years old,
Accused 2 22 and Accused 3 27 years old.
Although young Accused 3 has done
very well for himself and the surrounding community as he employs about a 100
people.
This offence will therefore disturb
this project. Accused 3 has two wives
and 2 young children.
We consider that compensation has
been paid to the family of the deceased in the form of US$10 000-00 and a beast
in order to appease the family.
The deceased was certainly not a
saint. He had stolen gold ore and was
unable to fully compensate for it.
Accused 3 has suffered double loss.
We are mindful of the fact that not
only have you lost your gold ore you have also compensated the family large
sums of money which we cannot ignore.
This was an accidental killing as
opposed to a deliberate one. You tried
to render first aid to no avail and co-operated with the law enforcement
agents. You have spent sometime in
custody, about 8 months while awaiting trial.
Against that should be considered
that a precious life was unnecessarily lost under circumstances which could
have been avoided.
You took the law into your own hands
and decided to engage in vigilante justice which should be suppressed at all
costs. This country should pride itself
for the respect of the rule of law. We
cannot allow gangs of people to patrol villages want only apprehending people
and meting out their own form of justice.
That is dangerous and unacceptable.
There is therefore a need to remind
communities that human life must be respected and that law enforcement agents
must be summoned whenever there is a problem, instead of resorting to kangaroo
courts at the mines.
Sentence
7
years imprisonment of which 3 years imprisonment is suspended for 5 years on
condition that you do not during that period commit an offence of which
violence is an element and for which you are sentenced to a term of
imprisonment without the option of a fine.
Effective: 4 years imprisonment.
Criminal Division, Attorney General's office, the
state's legal practitioners
Job Sibanda and Associates, 1st accused's
legal practitioners
Shenje and company, 2nd accused's legal
practitioners
SKM Sibanda and partners, 3rd
accused's legal practitioners
