The
two accused were blood brothers. Together with their third brother,
Richard Makuchete [“Richard”],
they were arrested and charged with the murder of their cousin,
Zvinowanda Zvinowanda [“the
deceased”].
Richard
has since been convicted and sentenced under judgment HMA07-16.
The
State explained that there had been a separation of trials because
the two accused herein had been unavailable by the time the case was
ready for trial, and that, in the interests of justice, it had been
decided to have Richard tried on his own.
The
allegations were that on 10 May 2014, in rural Masvingo, under Chief
Chikwanda, and following a beer drink at a certain homestead, the two
accused, and Richard
Makuchete,
or one or other of them, unlawfully caused the death of the deceased
by striking him with knobkerries and a slasher all over the body,
intending to kill him, or, despite realising the real risk or
possibility that their conduct might cause death, nonetheless
continued with it.
Both
accused pleaded not guilty.
The
State called three witnesses, namely, Edward Zvinowanda [“Edward”],
the deceased's younger brother ; Vimbai Sithole [“Vimbai”],
Edward's wife; and Munyori Zvinowanda [“Munyori”],
a cousin to both the Zvinowandas and the Makuchetes. These people;
i.e. the accused; the deceased; Edward, and Munyori, were all closely
related, being first cousins in the sense that their fathers had been
brothers.
The
synopses of the evidence of three further witnesses for the State
were admitted without objection. They were Rashweth Mutaki, the
police investigating officer [“the
IO”];
Last Ziyambi [“Last”],
another police officer, and Doctor T Nyasha [“Dr
Nyasha”],
the medical practitioner who conducted a post mortem examination on
the remains of the deceased and compiled a report.
Edward
Zvinowanda's evidence, in summary, was this.
On
the day in question, he and his brother, the deceased, were drinking
traditional beer at a certain homestead. The two accused and their
brother, Richard
Makuchete,
were also drinking there, but not together with him and the deceased.
At some stage, the first accused, Bernard Makuchete [“Bernard”],
aged 25 years, the oldest of the three brothers [in HMA07-16 it was
incorrectly stated that he was 21 years old and that he was the
youngest], stood up from their drinking place, approached Edward and
provoked a fight. Bernard accused Edward that he had once assaulted
him on some previous occasion. In court, Edward admitted that he had
once fought with Bernard but said that the incident had happened a
very long time ago when they were youngsters and still growing up.
Edward
said Bernard slapped him twice. He retaliated. The two started
fighting. Richard and the second accused herein, Rabson Makuchete
[“Rabson”],
the third brother, joined the fight on Bernard's side. The
deceased, who at 44 years old, was the oldest of the lot, intervened
and quelled the fight. Bernard turned on him. He accused the deceased
of marital infidelity with his wife leading to the collapse of his
first marriage.
The
brawl eventually died but
the accused and Richard continued to shout at Edward and the
deceased. The two of them decided to leave. The time was around 15:00
hours. The accused and Richard followed later. At the deceased's
homestead, the three milled around the edge of the fields shouting.
The deceased invited them inside the homestead in order to discuss
the issue amicably.
The
three brothers refused to enter the deceased's home. They later
left for their own homes. The deceased, Edward, and their wives had
supper together with Munyori
Zvinowanda,
who had called on them. After supper, the deceased and Edward walked
Munyori to his own home. The time was now around 19:00 hours. There
was plenty of moonlight. The three used a footpath that passed
through the accused persons' homestead. On their way back, the
three brothers confronted the deceased and Edward. The three were all
armed with wooden knobkerries. In addition, Richard was armed with a
metal slasher.
With
no prior ado, Richard struck Edward on the top of his head with the
knobkerrie. Edward fell down. Bernard and Rabson joined in and
started beating Edward with knobkerries as he lay on the ground.
Bernard soon turned on the deceased whom he struck with a knobkerrie.
Richard and Rabson both joined the assault on the deceased. Richard
was using a slasher and Rabson a knobkerrie. The three of them
randomly assaulted the deceased with their weapons all over his body.
He had fallen down. He was wailing asking why they were killing him.
The three continued to assault the deceased until he went limp.
Edward said all the while he lay bleeding very close by and that he
could see everything that was taking place. There was a lot of
shouting and lots of noise.
At
some stage Vimbai Sithole and Tecla Matema [“Tecla”],
the deceased's wife, approached the scene. Bernard and Richard
chased them away. Richard came back and ordered Edward to carry the
deceased home. The deceased was lying face down, lifeless. Edward was
himself in no state to lift the deceased on account of the assault on
his own person. He staggered to the deceased's homestead and found
both Tecla and Vimbai waiting. He told them that the deceased had
died. Tecla wailed. Eventually Edward was ferried to hospital where
he was admitted for two days. A report was made to the police. They
came immediately but
all the accused persons had fled; however,
they were all apprehended four days later at the homestead of one of
their uncles, Winston Zvinowanda [“Winston”]
which was in another chiefdom.
Edward
said all the three accused persons were subsequently tried in the
Magistrate's Court for the attempted murder of himself. He said he
gave similar evidence but
he did not know the exact outcome of that case, save to say that
Richard had been sent back to custody and his two brothers released.
The
next State witness was Vimbai
Sithole.
The material portions of her testimony were that she witnessed the
assault on both Edward and the deceased. Together with Tecla
Matema they
had crawled to the edge of the maize field near the accused's
homestead. They had been attracted by the noise of the struggle.
Richard chased them away.
The
next State witness was Munyori
Zvinowanda.
He had been at the beer drink on the day of the fight. He witnessed
the first brawl between Edward and Bernard at the traditional beer
drink earlier in the day. Munyori's evidence on this aspect was
contradictory. According to his evidence-in-chief, it was Bernard who
provoked the brawl. He said Bernard shouted at Edward that he
[Edward] had once beaten him up. Bernard had stood up from the place
where he had been seated and had approached Edward. He slapped Edward
twice. It was then that Edward had retaliated and the two had fought.
The deceased had quelled the fight. However, under cross-examination,
Munyori maintained it was Edward who had provoked the fight; that it
was Edward that had slapped Bernard first; and that Edward had lied
if he told the court that it was Bernard who had hit him first.
Munyori was emphatic that it was Edward's tomfoolery on the day in
question that had ultimately led to the death of the deceased.
Munyori
did not witness the fatal assault on the deceased later on that
night. He confirmed his having had supper at the deceased's
homestead and the deceased and Edward having walked him home. He said
when the three of them had passed through the accused's homesteads
none of them had appeared.
The
gist of Rashweth
Mutaki's
summary of evidence that was admitted without objection was that he
had arrested all the accused persons from their hiding place in a
village under another chief. He had brought them back to the scene of
the crime. None of them had any injuries. After properly warning and
cautioning them he had taken them for indications and had recorded
their statements which they had made freely and voluntarily. They had
admitted that the murder weapons belonged to them.
Last
Ziyambi's
summary largely corroborated that of Rashweth
Mutaki.
He accompanied Rashweth on the arrest mission. He witnessed the
recording of the accused's warned and cautioned statements.
The
last summary was that of Dr Nyasha. From his post-mortem examination
of the body of the deceased, he observed deep cuts on the deceased's
head and forehead. He observed bruises on the chest. From such
observations he concluded that the cause of death had been head
injury.
That
was the State's case.
None
of the murder weapons was produced. Counsel for the State said all
three accused had once been tried in the Regional Magistrate's
Court for attempted murder in respect of the assault on Edward. They
had been the same weapons produced in that trial. Apparently, after
the conclusion of the trial, all those weapons had been destroyed on
the orders of the court.
The
accused's warned and cautioned statements were also not produced.
None of the parties said anything about them.
Both
accused persons gave evidence. It was very similar - almost identical
in some respects. The material aspects of their evidence were these.
They confirmed the brawl at the traditional beer drinking place. They
said Edward had provoked it. Bernard said Edward accused him that he
had once beaten him up sometime in 2004. It was Edward who had struck
Bernard first. Bernard had retaliated. The two had fought. Bernard
had overpowered Edward. The deceased had got up and restrained them.
Edward had produced a knife wanting to stab Bernard but he had been
restrained by other people. The owner of the homestead then asked
that everyone answering to the name Makuchete should leave the place
because they had fought at a traditional beer drink. Edward and the
deceased had been the first to leave. The three brothers had followed
later.
The
accused admitted the fight with knobkerries at the edge of their
homesteads. But their version was at variance with that of the State
witnesses. They maintained that Edward and the deceased had provoked
the fight. Bernard said he had already retired to bed with his wife
when Rabson had come knocking at the door. He was shouting that
Edward and the deceased were fighting Richard at his home. When he
went to find out Edward stabbed him with a knife on the top of his
head. He bled profusely.
Both
accused denied that they had fought with either Edward or the
deceased, let alone joined Richard in assaulting the deceased. They
maintained that only Richard had fought with the deceased. They
maintained that both Edward and the deceased had been armed with
knobkerries which they used to fight Richard.
Bernard
said that after Edward had stabbed him with a knife, he fell down.
Edward left him to join the deceased in fighting Richard. He
[Bernard] woke up and went home. He washed off the blood from his
head. Later, he went to make a report to the village constable, one
Cephas Tebwe [Cephas”],
about Edward having stabbed him with a knife. At that time, he was
not aware of the deceased's death. From Cephas' place Bernard
said he came back home. But a number of people were now gathered.
That is when he learnt that the deceased had died. One of their
cousins, Ishmael Zvinowanda, was threatening revenge. He was shouting
that nobody was going to sleep at that homestead that night. Fearing
for their lives all the three of them had run away and sought refuge
at Winston Zvinowanda's house.
The
accused said they arrived at Winston's place very late in the
night. They informed him of the fracas and sought his mediation and
counsel as the surviving patriarch of the entire extended household.
Winston immediately left for the scene. He did not come back until
about two or three days later when they were arrested by the police.
The
accused said they had once been charged for the attempted murder of
Edward but had both been acquitted.
Rabson
Makuchete called
two witnesses: Cephas
Tebwe and
Winston
Zvinowanda.
Cephas
confirmed that that three brothers had knocked on him late in the
night of the fateful day. They reported that the deceased and Edward
had come to their place and that there had been a fight. They said
that Edward had stabbed Bernard with a knife on the head. Cephas said
he had seen Bernard bleeding. Quizzed on this by the State, Cephas
conceded he had seen no wound on Bernard but merely blood on his
person.
Cephas
also said that he advised the three that he would call on them only
on the following day. He said on the following day he had gone to the
accused persons' residence with the intention of arresting both
Edward and the deceased. However, he aborted the mission when he
learnt that the deceased had died the previous night. He also
observed that the regular police details were already in attendance.
The accused had fled.
Winston's
evidence confirmed that the three accused had indeed taken refuge at
his homestead after the fracas. However, there was a material
discrepancy in the narrative. The accused said when they called at
Winston's house it was them that informed him of what had taken
place. It was only after their report to him that he had left for the
accused persons' homesteads. However, Winston said he never saw
them on the day. He heard of the news of the fracas from his
sister-in-law, Esther, the accused persons' own mother. She had
travelled all the way from her village to inform him of the incident
as the patriarch. Together with Esther, Winston had departed that
very night. He stayed at the accused persons' homesteads throughout
the duration of the mourning period. He said it was about one and
half weeks. It was on the second or third day after the incident that
the accused, Bernard in particular, had contacted him on the mobile
telephone to inform him that they had taken refuge at his homestead.
The accused wanted him to resolve the matter. Winston said he
immediately informed the police about the telephone call. The police
then went and arrested the accused.
That
was the defence case.
In
his closing submissions, counsel for Bernard, the first accused,
seeks an outright acquittal from the charge of murder or any other
offence. He argues that Bernard had not at all been involved in the
assault on the deceased and that none of the State witnesses could be
believed.
Counsel
for Rabson, the second accused, tacitly admits that Rabson was armed
with a knobkerrie; that a knobkerrie could not have inflicted such
fatal injuries; that the State had failed to prove the element of
common purpose; but, nonetheless that Rabson's actions could be
regarded as having been negligent, and that, therefore, Rabson might
be found guilty of culpable homicide in respect of the death of the
deceased.
The
accused persons' version of events was manifestly contrived. It did
not add up. It is unworthy of belief. Each of them was at pains to
downplay their own roles in the whole violent incident. They denied
any assault on either Edward or the deceased. In respect of the
deceased, they alleged it was Richard who single-handedly fought him
with knobkerries and a slasher. Ironically, at his own trial, Richard
distanced himself from any altercation with the deceased. He blamed
it all on Bernard and Rabson - the two herein.
Some
aspects of the accused persons' version of events that we have
rejected include the following:
(i)
That at the beer drink earlier in the day, it was Edward, not
Bernard, who had provoked the fight. Munyori, who seemed more
favourably disposed towards the accused, said, before his
summersault, that it was Bernard who had provoked the fight. To us,
that it was Bernard, and not Edward, who had started the fight, was
more believable. Bernard had a motive. At least he deemed himself to
have an unresolved grudge against Edward, dating back to their
childhood tiffs and brawls. Furthermore, although in his evidence he
claimed to have been unbothered by the issue of the alleged affair
between the deceased and his former wife, whom he called a loose
woman, it seemed the wound had never quite healed and had remained a
festering sore point.
(ii)
It is common cause that the deceased died from the injuries sustained
on the night in question. Richard's role in the brawl is beyond
question. Among other things he has since been convicted. Both
accused confirm he had a slasher and that he used it to assault the
deceased. Both confirm knobkerries had also been used, only that they
said it was Richard and the deceased using them against each other.
But there was no significant challenge to the evidence of Edward and
Vimbai on this point. They were direct eye-witnesses. They remained
firm in their evidence that the two accused persons fully and
actively participated in the assault of the deceased. Furthermore,
there is the admitted evidence of Rashweth. He said the accused had
freely and voluntarily admitted the murder weapons as belonging to
them.
(iii)
That Edward was armed with a knife which he used to stab Bernard with
was manifestly a concoction. It is not believed. If Bernard had been
stabbed and had been injured to the degree imagined, then the wound
would definitely have required proper medical attention. But he
sought none. In contrast, Edward, whom they assaulted and left for
dead, had to be admitted in hospital for two days. The deceased died.
Cephas' evidence takes the accused's case no further. He did not
see any wound on Bernard, only blood. But it was evidently his
victims' blood. Rashweth's summary of evidence said none of them
had any injuries.
(iv)
The accused ran away after the offence. If they had been the victims
of the assault they should have reported to the regular police.
Cephas was just an old man and a villager – albeit, a member of the
village constabulary.
(v)
The accused openly lied that when they sought refuge at Winston's
house they found him there and informed him of the incident. Winston,
their own witness, denied this. He said he heard of the incident for
the first time from Esther and that until they were arrested he had
not seen the accused.
That
Richard might have delivered the fatal blow, as urged upon us by
Rabson's counsel, is completely immaterial given the circumstances
of this case. All three of them had made common purpose with one
another since the fight at the traditional beer drinking place
earlier in the day. To Bernard's fight with Edward, Richard and
Rabson had joined in. They were in one another's company from the
beginning to the end. They were in one another's company when they
called on the deceased's homestead later in the evening. They were
all armed with knobkerries when they assaulted the deceased. Richard
just did have the slasher as an additional weapon. All of them were
armed for the purpose of assaulting Edward and the deceased. The
assault was severe, sustained and brutal. They only abandoned it
after their mission had been accomplished. Only when the deceased had
become motionless did they leave him.
The
doctrine of common purpose says that where two or more people agree
to commit a crime, or actively associate in a joint unlawful
enterprise, each will be responsible for specific criminal conduct
committed by one or other of them which falls within their common
design. Liability arises from their 'common purpose' to commit
the crime: see JONATHAN BURCHELL, Principles
of Criminal Law,
5th
ed….,.
In
murder cases, the act of one in causing the death of the deceased is
imputed, as a matter of law, to the other or others. Prior planning
is not significant. A common purpose needs not be derived from an
antecedent agreement. It can arise on the spur of the moment and can
be inferred from the facts surrounding the active association with
the furtherance of the common design: see S
v Safatsa & Ors
1988
[1] SA 868 [A].
The
requirements for common purpose are:
(i)
Presence
at the scene of the
crime.
(ii)
Knowledge of the criminal act.
(iii)
Intention to make common cause with the actual perpetrator of the
crime.
(iv)
Manifestation of a sharing of a common purpose with the actual
perpetrator of the crime by the performance of some own act of
association with the conduct of the perpetrator.
(v)
Mens
rea,
[either in the form of dolus
directus
or dolus
eventualis]
in respect of the perpetration of the crime.
See
S
v Mgedezi & Ors
1989
[1] SA 687 [A].
In
casu, just about every aspect of the accused persons' conduct on
that night classically fits into all the facets of the doctrine of
common purpose.
The
court is satisfied that the State has proved its case beyond any
reasonable doubt. We find that the accused actually did intend to
kill the deceased. They desired his death. They willed the result
that ensued. Until he stopped moving, the accused continued to pummel
him. Therefore, both accused are hereby found guilty of the murder of
the deceased, Zvinowanda Zvinowanda, with actual intent.
