We derive our guidance mainly from the evidence of the State witnesses, in particular Gordon Mwando, who, in our view, gave a fairly elaborate and revealing testimony of what happened on the day in question.

2. Michael Peter Hitschmann's Viva Voce Evidence

It is needless to say that the State case hinged on Michael Peter Hitschmann's evidence. According to the summary of the State case he was supposed to be the State's star witness. He was supposed to be the only State witness with direct evidence implicating the accused. He was expected to implicate the accused in his capacity as an accomplice witness. This witness was expected to tell the court how he connived with the accused to depose the lawful Government of Zimbabwe through force and violence.

Upon being served with a subpoena to give evidence as a State witness in these proceedings, he responded by delivering to the Attorney General an affidavit in November 2009. In that affidavit he absolves the accused of any wrongdoing or complicity in the commission of the main charges, or any related offences. In paragraph 12 he had this to say -

“Consequently therefore, and as far as the police are fully aware, there is no relevant testimony I can give in respect of the charges now being brought against Mr. Leslie Roy Bennett who was not involved in my firearms business, or in any dealing I had with firearms. In any event, I do not believe that I have been validly subpoenaed, and, unless advised to the contrary, I do not intend to appear in court on 9 November 2009.”

4. Michael Peter Hitschmann's Laptop Computer

It is common cause that during the course of investigations the police, backed up by other State security agents, recovered, among other things, a laptop computer belonging to Michael Peter Hitschmann.

It is the State case that the police, with the aid of one Precious Nyasha Matare, a typist in the Ministry of State for National Security in the President's Office downloaded e-mails from the laptop implicating the accused. Michael Peter Hitschmann admitted, in open court, that the laptop belonged to him but disputed the authenticity of the emails. Likewise, the defence challenged the authenticity of the emails saying that they were fraudulently manufactured by State agents in a bid to falsely implicate the accused. That being the case, the State bore the onus of establishing the authenticity of the e-mails. To that end, it called Precious Nyasha Matare the typist who downloaded the emails and Perekayi Denshard Mutsetse, in his capacity as an expert witness, as its main witnesses on this vital issue. His status, experience, academic and professional qualifications were, however hotly contested by the defence.

Ms. Matare's evidence was to the effect that on 6 March 2006 she was summoned to Senior Assistant Commisioner Muderedzwa's office at Murahwa Building. When she turned up at the office she was asked to assist with printing documents from a laptop because those present had failed to print the required documents from the machine. She said that Michael Peter Hitschmann helped her by pointing out information she was required to print. She then printed the emails that had been pointed out by Michael Peter Hitschmann. She recognized and identified the e-mails before the court as the ones she had printed out by their email addresses. All that she did was to print as she had found the laptop already open and connected to the internet.

Ms.Matare appears to be mistaken that she printed the emails on the 6^th of March 2006. No printing took place on that date because the laptop was only recovered on the 9^th of March 2006.

The defence disputed that Michael Peter Hitschmann helped her by pointing out the emails she printed from the laptop. Although she is now adamant that she did; she did not say so in her written statement to the police. Michael Peter Hitschmann denied that he helped her at all.

Tawanda Wairosi is the State's key witness.

He is the only eye witness to Ronald's murder. He travelled with the accused and deceased from their village in Chivakanenyama to the scene of the deceased's murder. He told the court of how their father, the accused, took them from their grandmother on the pretext that he wanted to obtain birth certificates for them. He told the court that from Karoi they boarded a motor vehicle in which was the driver and two other men. They travelled for a long distance. The motor vehicle stopped at a bushy area. He initially said his father, and the other men, left him by the motor vehicle, when they took the deceased to the bush where his father crushed Ronald's head with a stone. He, however, said he was close to them. He later firmed his evidence on the version that, he, the accused, and the deceased, walked into the bush where the accused crushed the deceased's head with a stone. When he saw the deceased being struck with a stone he ran away into the bush. He later met Munyaradzi Kondo in the bush. Munyaradzi Kondo took him to his house where he fed him and accommodated him. The next day, Munyaradzi Kondo took him to Karoi police station. He eventually met the accused, his father, at the police station. His father, thereafter, took him back to his grandmother in Chivakanenyama Village. He did not report to his grandmother that his father had murdered Ronald. He was later called by the police whom he says he told what he told this court.

Towards the end of his examination-in-chief, he said the motor vehicle travelled for a long time and that is when he was left by the motor vehicle. He thus told a single story up to the time they got to the vicinity of the scene of murder.

From there on his story seemed to have developed into two versions.

The first was that he was left by the motor vehicle when the deceased was walked into the bush by his father and his accomplices. The second was that he, his father, and the deceased walked into the bushy area where his father crushed the deceased's head. An examination of his evidence reveals that he was emphatic about walking into the bush with his father and the deceased.

These versions emerged when the prosecutor had the following exchange with Tawanda Wairosi:

Q. Where were you when your father attacked your brother?

A. They left me by the motor vehicle, and I, then ran away.

Q. How far did your father take your brother from the motor vehicle?

A. I was close to them.

The impression created is that he remained by the motor vehicle but the deceased was killed near the motor vehicle, as he remained close to them, and saw his father attacking the deceased. A later exchange with the prosecutor reveals that Tawanda Wairosi did not remain by the motor vehicle but walked on foot into the bushy area.

Q. When you went to the bushy area where were you seated in the motor vehicle?

A. We walked on foot when we went to the bushy area.

Q. Said were in the motor vehicle with your father and other people?

A. That's correct but after traveling for a long distance we got off the motor vehicle and travelled on foot.

Q. What about the motor vehicle?

A. My grandmother had said we would board a bus but we did not.

Q. When you got off the motor vehicle did it wait for you or it left?

A. Had been promised to board a bus but boarded a motor vehicle. It travelled for a long time. That is when I was left by the motor vehicle.

The impression that Tawanda Wairosi remained by the motor vehicle was therefore created by his two statements about, “their leaving him by the motor vehicle”, and his later saying, “that is when I was left by the motor vehicle.” His later statement emerged from his apparent confusion about how his grandmother had said they were to travel and their subsequent travelling by a private motor vehicle. The confusion is apparent and is consistent with his age. His evidence should, at the end of the day, be considered in light of the corroborative evidence from Munyaradzi Kondo, where the deceased's body was found, the presence of a stone near the deceased's body and the accused's admission that they travelled in such a motor vehicle, and the deceased was killed during that journey.

Tawanda Wairosi persisted with these versions under cross-examination as demonstrated by the following exchanges between him and defence counsel:

Q. Told court that after travelling for a long distance you were told to disembark?

A. Correct.

Q. Who ordered you to disembark?

A. I do not know the person.

Q. Who was ordered to disembark?

A. We only disembarked when we had reached the bushy area?

Q. Who we?

A. The three of us.

Q. It was only you and your father who disembarked?

A. My brother also disembarked.

Q. Recall what you told the police?

A. That's what I told them.

Q. According to the police you and your father disembarked and another man remained holding your brother?

A. That is not correct.  In fact, when we were going home they instructed me to say my brother had been killed by some strange men.

Q. Told the court that you were left at the motor vehicle is that correct?

A. When I saw my brother was being killed I ran away.

Q. Was he killed in the car at the car or in the bush?

A. In the bush.

Q. Apart from you who else was present when your brother was killed?

A. I do not know the other people who were present.

Q. During the killing of your brother were other people present?

A. No.

Q. Did you see your father striking your brother?

A. Yes.

Q. How far were you from them?

A. Very close to them.

Tawanda Wairosi therefore admitted that he was told to disembark from the motor vehicle but, insisted that he walked into the bush with the deceased and his father. The admission that he was ordered to disembark from the motor vehicle supports the accused's claim that at some point in the journey Tawanda Wairosi was ordered to disembark from the motor vehicle. If this is considered in the context of his having been left by the motor vehicle it has the effect of placing Tawanda Wairosi away from the scene of murder which Detective Sgt Nhari i said was 800m from the road. The majority of the court, however, believes he obviously made a mistake or was misunderstood when he said he was left by the motor vehicle. That statement is, in fact, ambiguous as it can mean the motor vehicle left him or that he was left positioned near the motor vehicle. When the court sought to clarify this issue Tawanda Wairosi said the motor vehicle had left when the deceased was struck with a stone and he ran away.

After re-examination by the prosecutor, the court sought clarification from Tawanda Wairosi and had the following exchange with him:

Q. Do you go to school?

A. No I have not started going to school.

Q. When did you start staying at the Children's Home?

A. Some time back.

Q. Before or after your brother was killed?

A. After his death.

Q. What happened when the motor vehicle stopped?

A. We alighted, my father took us to a bushy area, that's when he killed my brother.

Q. Where was the motor vehicle you had alighted from?

A. It had parked by the side of the road when we walked into the bushy area.

Q. Where was it when you ran away?

A. It was no longer present.

Q. How many were you in the bush?

A. Three of us, myself, my father and my brother.

The evidence led on behalf of the State, from Samuel Shoniwa, a 15 year old nephew of the couple, who witnessed the events, is to the effect that the deceased was a very abusive husband who regularly battered the accused each time he got money to buy alcohol and got drunk. The witness stated that invariably when the deceased got home drunk he would pick a quarrel with the accused and then severely assault her. It is only when he had no money that he would not assault the accused.

Sikhumbuzo Mpala testified that he too was known to all the accused persons and that the deceased was his nephew. The witness' first contact with the accused persons was on the day of the murder at around 5pm, through Fanuel Notsa Dube (Accused 2), with whom he exchanged greetings at his homestead. The witness testified that after exchanging greetings with the accused the accused enquired the whereabouts of Phathisani Dube, Thembani Tshuma and the deceased whom the accused said were wanted at the shops by his co-accused persons. It was the witness' testimony that after their whereabouts had been sought by Accused 2 the three, viz Thembani Tshuma, Phathisani Dube and the deceased appeared at the witness' homestead and this coincided with Accused 2's second visit to the homestead. The witness then gave a graphic account of what happened and it is necessary to re-state his evidence-in-chief as captured in the record of proceedings. The witness said;

“Before Phathisani, Thembani and the deceased entered the gate, Fanuel Notsa (Accused 2) arrived from the shops riding his bicycle and said; “we are calling you and you are being silly”. I went out of the gate and I stood with them, I said to Accused 2; “Fanuel, earlier on you spoke to them there and now you are coming to make noise at the homestead. Fanuel then answered and said; “Do not talk because you will also die”. Fanuel then turned to Fanuel Mpala (the deceased and said “You are going to die today.”

As I was watching Accused 2 talking to the deceased I turned my back and saw all the boys (sic) Phathisani, Thembani and the deceased had entered the homestead. I stood with Fanuel Notsa. I did not say anything as I was facing the direction of the store where the accused had come from. I saw someone tall wearing a long jacket coming from the direction of the stores. I retreated backwards and stood at the gate of the homestead. I saw people coming behind this person with a long jacket. This person, who was wearing the long jacket, is Adolf Ndebele who was in front of these people. I spoke to Adolf and said “Adolf, you have brought people from the stores, what are you looking for? He replied and said, “Keep quiet, you will see what is going to happen.”

After he said that I stood by the gate with my arms stretched out (at 180⁰ angle – as indicated by witness) all the four accused and Adolf entered the yard. Thembani was seated by the fire. Fanuel Mpala (the deceased) was seated by the side of my bedroom hut door. Phathisani was seated behind Thembani by the fireplace. Quiet (Accused 3) entered the homestead running carrying a knobkerrie. He was approaching Thembani. Thembani ran away. Quiet pursued him. He wanted to strike him below the back of the head. Thembani jumped over the fence of the homestead. Quiet did not jump the fence. He turned and came back. As he was coming back he met up with Fanuel Mpala (the deceased) who attempted to run away but was struck at the back of the head with a knobkerrie and he fell down. Fanuel Mpala got up. When he was on his feet, Fanuel Notsa Dube (Accused 2) arrived. He pulled out a knife and he stabbed him on the side of the neck. Conrade (Accused 1), who was carrying an axe, joined in the assault and struck the deceased on the right side of the shoulder close to the neck. They were holding him and as they were holding him like that Mpilo Ncube (Accused 4), who was holding a bottle of coca cola, struck him with the bottle on the central part of the head and the bottle got broken…,. The deceased fell down. Adolf, who was holding a bottle of Chatteau, pulled out a knife from his right hand side (trousers pocket) and stabbed the deceased on the upper part of the back. The deceased was now in a lying position. God did not let him die there. He rose from there and walked for about 8 metres (as indicated by the witness) and he fell down. All the five took turns to assault the deceased. As he was walking to where he finally fell, the 5 were following him. When he finally fell, Quiet (Accused 3) hit him again with the head of a knobkerrie and the knobkerrie broke and Quiet remained holding the end of that knobkerrie. He struck him on the back of the head. They all ran away out of the homestead…,. Quiet and Notsa took one of the bicycles and cycled to their area, Maninji area. I felt hurt. I was pained. I then screamed. God answered my prayers because as they were fleeing, my nephew approached because he had heard the screams…,.”

That was the graphic account as given to the court by Sikhumbuzo Mpala who appeared to have been at a vantage position in witnessing what transpired on the fateful day.

The four legal practitioners for the four accused persons took turns to cross-examine the witness and cracks were noted in his testimony particularly when it came to reconciling his testimony in court and his affidavit statement which was recorded by the Investigation Officer on 6 June 2004 (about 4 days after the alleged assault).

It is true that the cross-examination, including the clarification sought by the court, clearly exposed the discrepancies in his testimony. The record of proceedings will bear testimony to this.

There was no unanimity as to what time the assault took place as the recorded statement of the witness gave the time as “at about 21:00 hours” whilst the witness himself gave the time as around 20:00 hours. Other witnesses gave the time of the assault as around 19:00 hours.

Our assessment of this witness' testimony is that the witness clearly had difficulties in reconciling the numerous discrepancies between his recorded statement and his evidence in chief here in court. We also accept that the witness' testimony may have been compounded by his fairly low level of sophistication as he projected himself to us a simple village man who only went as far as Grade 7. The numerous questions put to him easily confused him….,.

Faced with the evidence of Sikhumbuzo Mpala, and the attendant challenges with it, the court had to try and look beyond it for possible corroboration. This was particularly so given the strenuous denials of participation by all the accused persons in the assault of the deceased person. It should be noted that all the accused persons gave diametrically opposed versions of what transpired on the evening of the tragic assault. It was therefore imperative that the court looked beyond the competing versions to try and get some corroboration of some sought given the undoubted discredit to which the witness' evidence had been subjected to in cross-examination.

The question as to when exactly the assault took place assumed centre stage in these proceedings because the court had to be satisfied that Sikhumbuzo Mpala actually saw what he claimed to have seen on the evening in question - particularly the assault itself.

The witness maintained, under cross-examination, that when the assault took place it was not very dark, and he could see what was happening. In this regard the following questions and answers were recorded in the record of proceedings.

“Q - To the best of my knowledge, in June it is winter and it gets dark much earlier than 7:00 pm.

A - No, it was not dark there was still light.

Q - I further put it to you that it was dark and you could not see a lot of what was happening.

A - It was not very dark. I could see what was happening.”

Kuno Ngwenya, one of the key State witnesses for the State estimated the time of the assault of the deceased to have been around 7pm and said “there was still light as it was just after sun set.” To clarify this aspect of visibility, the State counsel re-examined Sikhumbuzo Mpala and the following exchanges took place;

“Q - Did any of you have a watch?

A - No.

Q - All this thing about 5pm and 9 o'clock is guess work?

A - Yes it is guess work. When the sun is about to set it is around 5pm and when I say nine it is because it was getting dark.”

The witness' estimation of time and visibility got corroboration from a very unlikely source, viz, Accused 2. In his evidence, Accused 2 told the court that in his own estimation the whole fracas took place around 20:00 hours but one could see clearly a distance between 15–20 metres.

In our view, Martha Teketeke was an eye witness to the assault of the now deceased by the accused persons although she did not witness how the assault started. She has no motive to lie against the accused persons and no such motive was suggested to her.

The accused pleaded not guilty to a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]; it being alleged in the indictment that on 25 July 2014, at Farm 75, Musimbo, Chief Mapungwana, Chipinge, he unlawfully and with intent to kill, assaulted Elcina Makuyana with a stick several times all over the body thereby causing injuries from which the said Elcina Makuyana died.

The State alleged that the assault on the deceased led to injuries from which she died.

In order to prove its case against the accused, the State relied on the evidence of two witnesses who heard an altercation between the accused and the deceased; two police witnesses to whom the accused made certain statements and indications and a medical post mortem report by a doctor.

It is clear that there was no eye witness to the alleged assault on the deceased. The case against the accused was therefore wholly circumstantial evidence.

In his defence, the accused claims that he had not assaulted the deceased as alleged or at all. He however admitted that he had an on-going civil matter which, at the time, was pending at Chief Mapungwana's Court. That case involved accusations of dabbling in witchcraft against the deceased by the accused. The accused claimed that the deceased had caused illness in him by means of witchcraft. The Chief's Court was seized with that matter. He had hoped that the matter will be resolved at the Chief's Court when he received news of the death of the deceased. He denied any involvement in the assault although he had gathered that there were allegations of assault on the deceased.

The evidence led in court established the following facts:

The accused is the owner of Farm 75 Musimbo. The deceased lived on this farm. She was a distant relative of the accused's father. She lived alone. The accused fell ill, and, as a result of his own inquiries, he held the belief that the deceased had caused him to be ill by means of witchcraft. He reported his finding to Chief Mapungwana who summoned the deceased for a hearing. Both the accused and the deceased had attended at the Chief's Court and the matter was not concluded. It is not clear what the terms of adjournment of the matter before the Chief were. What is clear, however, is that the parties were to attend at this court pending the resolution of the matter.

By 25 July 2014 the matter had not been resolved. On that day, James Mhlanga (“James”) had heard the accused and the deceased exchange harsh words over the witchcraft matter. It was an altercation over allegations of witchcraft. According to James, the accused shouted that he did not want to keep witches at his farm. The accused threatened to assault the deceased. The deceased challenged the accused to prove that she was a witch. This altercation lasted about an hour, in James's estimation. He put the time as being between 18:00hours and 19:00 hours. He heard the accused's voice recede in the distance after 19:00 hours indicating that the accused was leaving the deceased's homestead. He did not visit the deceased's residence until after the news of her death reached him.

Another witness, Thomas Maphosa (“Thomas”), had last seen the deceased, his sister, the previous day, prior to 25 July 2014. She was going home after work. On 25 July 2014, as he arrived at Farm 27 Musimbo from a funeral, he overheard the accused's voice recede indicating that he was leaving the deceased's residence. He did not hear what the accused was saying but from the tone of the voices he concluded that there had been an altercation between the two. It had not been a cordial exchange. He knew of the court case between the two which was pending in the Chief's Court.

On 30 July 2014, Dr Makumbe, a medical doctor who examined the remains of the deceased, made the following observations;

“Deceased was assaulted all over the body with stick or log. Died on the spot. External examination indicated multiple bruises on the face, toes, buttocks and thighs. Excessive neck hypermobility in region C2. No other broken bone. Interior examination was not done.”

Dr Makumbe concluded that the cause of death was “cardio-respiratory arrest secondary to C-spine injury.”

Other evidence relied upon by the State include the accused's confirmed warned and cautioned statement; indications made by the accused to the police details during investigations, which were reduced to a sketch plan; a certificate of weight of a stick which the accused gave to the police indicating to the police that it was the stick with which he had assault the deceased; as well as the photographs of the deceased's remains.

The police witnesses involved in the matter, Assistant Inspector Muchanya and Cst Mhuru gave evidence regarding how they gathered evidence in this matter.

Their evidence was that when they arrested the accused he was properly warned and cautioned and advised of his legal rights. He briefly was silent but then indicated that he was not involved in the death of the deceased. However, upon getting to the police station, he had then admitted that he assaulted the deceased over witchcraft. He went on to give a statement to that effect. That statement was subsequently confirmed by the magistrate in terms of section 113 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The accused explained that the statement he gave was freely and voluntarily made. He had given the statement in order to avoid further ill-treatment by the police. He claimed that they had placed him in handcuffs and leg irons before hanging him, headlong, between two tables in such a manner he was suspended on an iron bar.

I find that his claim of torture not to have been substantially proved as to require this court to inquire into the voluntariness of the giving of the statement. I come to this conclusion on the basis that had he been subjected to such ill-treatment; this would have featured quite prominently in his Defence Outline.

What was quite apparent, however, was that the confirmation proceedings were irregularly conducted in that the magistrate allowed the investigating officer to sit in the proceedings.

As such, the proceedings were a nullity and must be ruled to have been such a nullity. The deceased, in my view, discharged the onus on him to show that those proceedings were irregularly conducted. S v Nkomo 1989 (3) ZLR 117 (SC); S v Ndebele 1983 (2) ZLR 216 (SC).

However, that is not the end of the matter.

The warned and cautioned remained admitted by the accused. It was a detailed one; it touched on matters which only the accused could have known about. It deals with matters of details which are confirmed by the witnesses. The accused does not claim that the police forced him to write or say what is contained in the statement. He maintains he composed it himself - but is all lies.

Whether an admitted extra curial statement given by the accused is false is matter of fact. Whether it was given freely and voluntarily is a question of law.

As I have already stated, the accused gave his statement freely and voluntarily. He was not induced to do so by any threats of harm on his person; nor were other undue influences brought to bear upon him to give that statement; S v Slatter and Others 1984 (3) SA 798 (ZS).

He had proceeded to make indications freely. The indications he made to the police confirm what the State witnesses observed in respect of where the deceased's body was and generally how the scene of the crime looked like soon after the event.

The accused's statement is also corroborated by medical evidence which show that the deceased was heavily assaulted resulting in severe injuries all over the body.

In any event, there is sufficient circumstantial evidence which points to the accused, and the accused alone, as the perpetrator of the crime.

The dangers inherent in relying on circumstantial evidence were highlighted by KORSAH JA in S v Maranga 1991 (1) ZLR 244 (SC) where…, he states:

“Before I answer this question, I wish to draw attention to the dangers inherent in drawing conclusions from circumstantial evidence. LORD NORMAND observed, in Teper v R [1952] AC 480 at 489, that:

'Circumstantial evidence may sometimes be conclusive, but, it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast doubt on another.

Joseph commanded the steward of his house 'put my cup, the silver cup, in the sack's mouth of the youngest' and when the cup was found there Benjamin's brethren too hastily assumed that he must have stolen it.

It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.'”

See also S v Chaluwa 1985 (2) ZLR 121 (SC).

Two witnesses independently confirm the following facts:-

1. The accused was heard quarreling with the deceased on the evening of 25 July 2014.

2. In the quarrel, the accused threatened to assault the deceased.

3. The exchange between him and the deceased indicates that the accused had the motive to commit the crime.

4. The accused was the only person who harboured a grudge against the deceased over witchcraft allegations and had a matter pending before the Chief's court on the subject.

There is no basis, in my view, for the court to reject the evidence of these two critical witnesses. That evidence, on its own, does not implicate the accused. It merely provides the motive for the crime.

The indications, to my mind, demonstrate the accused's involvement in the assault of the deceased. He had the motive to do so. The evidence shows that the accused had attended court where the deceased was expected to pitch up, but, on no less than three occasions, she had not done so. This must have angered the accused. He was bitter that the person he held responsible for the illness was not attending the Chief's Court. He had reason to confront her. That confrontation occurred on 25 July 2014. James Mhlanga and Thomas Maphosa confirmed this.

Although they do not state that the altercation degenerated into an assault, the accused confirmed, to the police, that he had assaulted the deceased on that day. Whether he assaulted her between 6pm and 7pm, as the evidence suggests, or later, is best known by him. The fact remains that the deceased was discovered dead two days later.

Who could have killed the deceased?

All the evidence points to the accused.

He is found guilty of section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. 

The State led evidence from Duke Khumalo who witnessed the killing of the deceased.

To start with, Rudo Hove has not been shown anywhere in the court record to be an interested witness in this matter. We take her to be an independent witness as save for being a tenant she has not been shown to have related with these people in any other way so as to make her an interested party in the matter.

Whilst Reveal Sibanda is a brother to the deceased and could have reason to lie to suit his side of the coin, he was never shown to be such during cross-examination.

In fact, his evidence…, was corroborated by the police officer and the Neighbourhood Watch member who this court views as independent witnesses.

It is quite clear that the court a quo itself was not impressed by the evidence of the key witnesses in this case, viz, the deceased's wife…,. She was the only witness who was expected to give direct and credible evidence, but, as the court a quo noted, that evidence had its own shortcomings.

The 3^rd of August 2014 started as a normal day for the 77-year old Johnson Siphoko Moyo (now deceased). In the early hours of this Sunday morning the late Johnson Siphoko Moyo assigned his son (the accused) to dip his cattle as he wanted to leave them at Tshawulwa Grazing Farm on his way to Bulawayo. After dipping the cattle, the accused returned home and penned the cattle. Andrics Moyo (accused's 3 year old son), who was playing outside the yard, followed the accused who was heading towards the cattle pens.

At around 0900 hours on the same day, the deceased left his homestead on his way to Bulawayo. He unpenned the cattle intending to leave them at the grazing area some distance from his homestead in the Nyabane area of Plumtree.

This was the last time the deceased was to be seen alive. He went missing.

His remains were recovered from a well on 17^th January 2016. The deceased was positively identified through his national identity card, drivers' licence, and the clothes he was last seen wearing.

Investigations carried out by the police led to the arrest of the accused.

The accused, who was aged 26 years at the time of the disappearance of the deceased, denies the allegation of murder being levelled against him.

The accused is the deceased's son. At the relevant time, he resided at his father's homestead at Malisikwana Village, Nyabane Area, Plumtree with his father. The accused's defence is a complete denial of the allegations.

The State tendered into the record of proceedings an outline of the State case (exhibit 1). The Defence Outline was tendered as exhibit 2. The accused's confirmed warned and cautioned statement was admitted into evidence as exhibit 3. The affidavit of Constable Edson Chikunguru, who was on duty at United Bulawayo Hospitals and who identified the remains of the deceased, was marked exhibit 4. The post mortem report number 78/77/2016, prepared by Dr Sanganayi Pesanai was filed as exhibit 5. The report indicates that the cause of death was:

(a) Severe head injuries.

(b) Multiple skull fractures.

(c) Assault.

The State Case

Andrics Moyo

The State opened its case by leading evidence from Andrics Moyo. He is a minor child aged five (5) years. He gave his testimony via video link at the Victim Friendly Court.

The accused is his father. The deceased was his grandfather. At the material time, he resided with his parents at the deceased's homestead. This witness gave an eye-witness account of the events that led to the death of the deceased. He confirmed that his grandfather passed away. He testified that the deceased was murdered by the accused. He narrated that the accused struck the deceased with an axe on the back of his neck and all over the body.

The witness indicated that when the deceased was axed by the accused one Japhet and his son were also present. The witness further testified that Japhet and his son were merely present when the crime was being committed and looking on. The witness stated that after the deceased had been axed his body was placed in a wheelbarrow by the accused. The body was then hidden in a cave. The witness stated that he observed that the wheelbarrow had blood. The accused washed away the blood after placing the body in the cave. The witness observed that the cave had been covered with stones.

The accused's defence counsel had very few questions for this witness.

Andrics Moyo was quizzed as to why he had not told anyone about what he had witnessed. The witness' response was that he had informed the police what he had witnessed. The witness pointed out that the police subsequently recovered the remains of the deceased from a well.

It is my view that the evidence of the minor child was given in a clear, detailed manner. The young witness gave a graphic and precise account regarding the commission of the gruesome murder. He was not contradicted in any manner under cross-examination. I find no reason to suggest that the evidence of the minor child was tainted by malice. The evidence was given with such clarity that the events of the fateful day seem to have remained attached in the mind of the youthful witness. I am satisfied that the evidence of the youthful witness was credible in all material respects.

Priscilla Moyo

The State called as its second witness, Priscilla Moyo. She resides at Siphoko Johnson Moyo's homestead, Nyabane Area, Plumtree. She knows the accused person as her maternal uncle and the deceased as her grandfather. She testified that on the 3^rd of August 2014, around 1000 hours, the deceased left his homestead wearing a khakhi trousers, a blue worksuit jacket, brown “farmer” shoes and was carrying a black bag. The deceased was headed for Bulawayo where he intended to consult prophets and faith healers regarding his missing cattle. The witness testified that the deceased intended to unpen his cattle and drive them to a farm for grazing before embarking on his trip to Bulawayo.

This was the last time the witness saw the deceased alive.

The witness indicated that before this day the relations between the accused and the deceased had soured over the deceased's missing cattle. The deceased fingered the accused and one Japhet in the loss of his cattle. The witness indicated that a missing person's report was made when it became apparent that the deceased had not arrived at Bulawayo. The remains of the deceased were discovered in January 2016. The witness assisted in the identification of the body of the deceased.

Under cross-examination, this witness maintained that relations between the deceased and the accused had deteriorated as the deceased was convinced that the accused was responsible for his missing cattle. The witness informed the court that the deceased had indicated that if he were to die, he would have been killed by the accused and his (deceased's) wife.

The evidence of this witness was not controverted under cross-examination. She gave a concise account of what she knew. She did not exaggerate her testimony. Her version is credible and the court has no hesitation in accepting her testimony as a true reflection of what happened.

Thambo Ncube

The third witness for the State was Thambo Ncube. He resides at Malisakwana Village, Nyabane Area, Plumtree. He knew the deceased during his lifetime as a close friend and neighbour. He knew the accused as the deceased's son.

The witness illuminated the proceedings by his candid testimony and somewhat ambient character. He testified that during the first week of August 2014, around 0900 hours, he visited the deceased at his homestead. The deceased revealed to him that he had missed four beasts at the grazing lands and that he suspected that his son and one Japhet were responsible for the disappearance of his cattle. The deceased ominously told the witness that should he be found dead, the accused and his wife, Mamina Moyo, would be responsible. The witness further indicated that after the disappearance of the deceased he had to engage senior police officers at Plumtree but investigations yielded no clues regarding the whereabouts of the deceased. The witness indicated that sometime in January 2016 he was informed that the remains of the deceased had been discovered in a well at Tshankwa Farm.

The evidence of this witness remained largely unchallenged under cross-examination.

The witness corroborated the assertion by Priscilla Moyo that prior to the disappearance of the deceased the relationship between the deceased and the accused had been strained over the missing cattle.

The testimony of this witness was clear and credible. It is an accurate reflection of what the witness knew in connection with the case. There was no exaggeration on his part. He had no motivation to lie or mislead the court….,.

Defence Case

The accused elected to testify under oath.

He is now 28 years old. He was 26 years old at the relevant time. The accused denied that he murdered his father. He gave a lengthy account of his movements on the day his father disappeared. He professed ignorance regarding the allegation that he had murdered his father. He mentioned names of various people he came into contact with on the day in question. He did not however call any single witness to confirm his movements. He failed to proffer any reason why his son, Andrics Moyo, would lie against him. When pressed to explain why the minor child would falsely implicate him, the accused ventured to suggest that the child might have been influenced by one Ntombizodwa Ngwenya.

The accused surmised that the minor child may have heard rumours circulating in the village that he had killed his father.

The accused's suggestion was not only far-fetched but without foundation.

As correctly noted by counsel for the State;

(i) The accused did not raise this issue with the police when the warned and cautioned statement was recorded.

(ii) Secondly, the accused did not raise the issue in his Defence Outline.

(iii) Thirdly, the accused did not raise the issue in his evidence in chief; neither was the issue raised under cross-examination.

The inescapable conclusion is that the assertion by the accused that Andrics Moyo may have been influenced by villagers to create the damaging allegations against him are an after-thought.

The nature of the detailed evidence provided by the minor child is in logical sequence. There is sufficient corroboration to the minor child's testimony. Priscilla Moyo spoke of a bad relationship between the deceased and the accused prior to his mysterious disappearance. Kenneth Maphosa was hunting with his dog when he passed close to a small mountain when he noticed a human body lying helplessly on the ground facing sideways and covered with tree branches. This incident was witnessed around 3^rd August to 31 August 2014. Kenneth Maphosa had been dissuaded from reporting the matter to the police by his grandmother. Kenneth Maphosa was told by the grandmother that he would get into trouble with the police if he reported the matter. After the discovery of the remains of the deceased Kenneth Maphosa made indications to the police and gave a statement outlining what he had witnessed on 3 August 2014.

Analysis of the evidence

The State relied, to a large extent, on the eyewitness account of Andrics Moyo. That evidence is credible and consistent. The court has been urged to treat the evidence of Andrics Moyo with caution. It is been contended by counsel for the accused that the minor child never narrated his story to any of the State witnesses for a period of 2 years. Further, it was argued that evidence of minors should be treated with caution as witnesses of this age are suggestible and can fantasize events. In support of her argument, counsel for the defence relied on the case of S v Sibanda 1994 (1) ZLR 394….,.

For the State to secure a conviction in this case, the court must be satisfied that the case against the accused has been proved beyond reasonable doubt.

It is my view that the evidence adduced by the State was not challenged nor controverted in any material respect. The evidence of Andrics Moyo is consistent with the results of the post mortem report. It is critical to note that the pathologist, Dr Sanganayi Pesanai, made the following observations on the remains of the deceased:

(a) Lineal skull fracture from the right parietal to the left parietal bone.

(b) Lineal fracture frontal bone.

(c) Fractured and missing right frontal bone including the orbit.

(d) Fractured right parietal bone missing piece.

(e) Fractured right temporal bone missing part.

On other remarks the pathologist noted -

(f) Fractured right anterior fossae bones.

(g) Fractured right medial fossae bones.

The nature of the injuries, as reflected in the post-mortem report, are consistent with the observations made by the minor child who witnessed the accused axing the deceased behind the neck, on the head, and all over the body. It is inconceivable that given the age of the minor child he would have fabricated his evidence to such a degree that results of the post mortem would, in all material respects, fit into the puzzle of how the deceased met his death.

The question of suggestibility does not, in this event, arise at all. The evidence of the minor child was not fanciful. The court notes that the minor child gave evidence in a relaxed and purely innocent manner. His version of events is accepted by this court. No reasonable or logical explanation has been placed before this court to indicate that the child was motivated to lie against his father.

Analysis of the law

In the case of S v Sibanda 1994 (1) ZLR 394, referred to by defence counsel, the court laid down certain guidelines regarding the approach in dealing with evidence led from minors. The court, in that matter, stated (per head-note) as follows:

“In our law, unlike English law, corroboration is not required. In our law, the approach is that it is advisable to require corroboration of children because their youth indicates immaturity which may cause them to give ill-conceived or misleading evidence. Because our courts are not obliged to require corroboration, the courts must be cognizant of potential objection to the evidence of children which may or may not be valid according to the facts and circumstances of each case.”

In the case of S v Ncube 2014 (2) ZLR 297 (H), this court had occasion to deal with the approach in dealing with evidence given by minor children in sexual cases. This court concluded that:

“While the evidence of the child witness must be approached with caution, such caution must be creative or proactive caution where a judicial officer uses knowledge of psychology or other relevant disciplines in order to maximize the value of such testimony. Psychological research has established that young children do not fantasize about being raped and other unusual horrific occurrences, but their fantasies and play are characterised by their ordinary daily experiences. It is highly unlikely for very young complainants to make serious allegations without any basis at all…,.”

In the case of Thomas Madeyi v The State HH34-13, the court cited with approval the Indian case of Uttah Pradesh v Krishna Master & Ors AIR 2010 SC 3071 where the Indian Supreme Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. See also S v Machowe SC14-99 and S v Madzombe 1999 (2) ZLR 214 (H).

In the instant case, the child gave his testimony in a clear and logical sequence. There is no reason to suggest that his evidence is a result of fantasy or that he was influenced to implicate an innocent man. The demeanor of the youthful witness was that of an innocent child simply reciting and narrating what he had observed. The events were so clear in the mind of the child that he gave graphic details of the events.

It is safe to rely on the evidence of the minor child.

There is sufficient corroboration in the accounts of Priscilla Moyo, Kenneth Maphosa and Thambo Ncube.

The established facts are that the accused sought to kill his father. He had the motive, the means and the opportunity to commit the heinous crime. He planned on how he would dispose of the body of the deceased. He managed to conceal the body. Only after a period of 2 years was the body of the deceased recovered from a well. The minor child, Andrics Moyo, placed the accused at the scene of the crime. The defence did not controvert the version placed on record by the minor child.

We are satisfied that the State proved its case beyond a reasonable doubt. The accused intended to kill the deceased. He achieved his purpose. The accused is accordingly found guilty of murder with actual intent.

The key witness in this matter is the now deceased's wife and the accused's mother, Maruda Chisahwira.

Both Trymore Speni and Privilege Zhou are eyewitnesses to how the now deceased was fatally injured.

Piniel Manzonza is a critical witness who saw how the accused stabbed the now deceased. In fact, he explained the accused's conduct - especially why the accused resorted to stabbing the deceased….,.

Gloria Mugweni's (Gloria) testimony is material on how the accused stabbed the now deceased as she witnessed the assault inside the bedroom.

The next State witness was Vimbai Sithole. The material portions of her testimony were that she witnessed the assault on both Edward Zvinowanda and the deceased….,.

The first, and, obviously, the star witness for the State was Edward Zvinowanda [“Edward”]….,.

The next State witness was Tecla Matema. The material portions of her testimony were that she witnessed the assault of both Edward Zvinowanda and the deceased from start to finish.

Cleopas Chikwira, a neutral bystander who observed the skirmish from a distance of about 58 meteres, gave a vivid graphic account of how the deceased was attacked and mortally injured….,.

Joshua Daka, an off duty police officer who was standing at a nearby butchery, also gave an eyewitness account of the skirmishes. His version of the commotion more or less dovetails with that of Cleopas Chikwira…,.

Constable Daka was standing at Chirandu Butchery while Cleopas Chikwira was standing at Munyarari Bar where the commotion started. He conceded that Cleopas was closer to the scene and had better vision of the events than him. That being the case, the court is inclined to lean more in favour of Cleopas' evidence than that of Constable Daka....,.

The situation on the ground was, however, volatile, fluid and dangerous such that the witnesses could not be expected to have followed the skirmishes with the same accuracy and attention to detail as if they were watching a film on television. They could all be telling the truth but may have missed a detail or two observed by the other….,.

It therefore does not follow that whenever there are inconsistencies, the evidence proffered is tainted and unreliable. Each case must be treated according to its own exigencies. The same applies to all the other witnesses. Minor differences on detail should not be allowed to distract the court from the bigger picture established by facts beyond question.

The remarks of BERE J, in the case of Moyo v Nkomo & Another HB38-11, are apposite. In that case, the learned judge had occasion to remark as follows:

“Witnesses who testify on anything are not expected to recount events as if they were recording machines. People will observe or hear certain things but put emphasis on different aspects of what they hear and see. There is absolutely no way witnesses can hear and then repeat the same thing in similar fashion. What is required is to try and see if there is a common denomination/common thread running in the witnesses' evidence.”

The accused is facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The charge is that on 25 October 2016 in Chali Village, Headman Gezani, Chief Sengwe, Chiredzi, Masvingo the accused struck the now deceased, Lawrence Mutileni, twice on the head with an axe handle causing his death….,.

On 25 October 2016, the now deceased proceeded to the accused's homestead where he found the accused and his wife present. The purpose of the visit was to deal with the issue of the alleged infidelity between the now deceased and the accused's wife, one Mavis Maringa. During the ensuing altercation the accused is said to have taken an axe or hoe handle. The accused is said to have first struck the now deceased with the hoe handle on the head causing him to fall down and delivered a second blow as the now deceased was lying down. It is the State case that the accused picked a stone to further attack the now deceased but was restrained by his wife, Mavis Maringa….,.

Our view is that although no eyewitness testified on how the now deceased was fatally injured the accused himself concedes that he struck the now deceased on the head with the hoe handle….,.

We wish to comment, briefly, on the accused's unwillingness to allow his wife to testify as a Sate witness.

Further, the accused did not even call his wife as a defence witness. Both counsel placed reliance on section 247(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

I understand counsel's interpretation to be a wife or husband can only testify against her spouse in a murder case with the consent of the accused spouse.

This is a matter which may require further argument and research but my immediate view is that this provision does not at all bar a spouse from testifying against the other even in a murder case even without the consent of the other spouse. I believe what it means is that a spouse in such a scenario should be properly warned by the court and would not be obliged to answer certain questions which are directly material to the marital relationship.

As I said, this is food for another day.

Having resolved the cause of the now deceased's death our next task is to resolve how the now deceased sustained this fatal injury. Put differently, which version is true, the one given by the accused or the other alleged by the State.

To resolve this, we turn to the evidence of the witnesses who were present at the scene and juxtapose their testimony with that of the accused.

In our assessment, Dr Chaibva is the most critical witness in this matter.

Kudakwashe Musvamhuri and Kizito Mutongoza were the key State witnesses.

The fact of the matter is that both Accused 1, Wiklove Vurayai, and Accused 2, Munyaradzi Vurayai, assaulted both the first deceased, Saul Kani, and the second deceased, Pauro Stanlsus Masimura, in the clear manner explained by the eye witnesses.

The critical evidence in this case is that of Matambudziko Maluleke (Maluleke) and Newyear Unganai (Unganai) who allege were eye witnesses to the now deceased's assault.

The accused was charged with murder in that on the 8^th day of September 2016, at Umsweswe Bottle Store, Pingo in Kadoma, he unlawfully and with intent to kill caused the death of Linda Runyararo Mushangi by stabbing her on the stomach with a knife causing injuries from which she died.

The summary of the State's case was that on the day in question, the accused, Arnold Jeri, who had been drinking beer at Umsweswe Bottle Store when the deceased, Linda Mushangi, visited her friend, Tatenda Gwata, had tried to endear himself to the deceased but had been spurned. This had apparently irked the accused who had slapped the deceased on the face with an open hand and had intensified his assaults with booted feet. The deceased had picked up an empty beer bottle and had hit him with it.

Attempts had been made to stop the accused from assaulting the deceased. She had used this window of opportunity to run away from the accused by seeking refuge from some patrons. The accused had followed her with a knife and had tried to stab her from both left and right sides before he succeeded in stabbing her in the stomach from the left. She had screamed and had run out of the room and had collapsed at the foot of the veranda. The accused was said to have run way from the scene. He had eventually surrendered himself at ZRP Nyamapanda on 14 November 2016.

The accused's defence was that the deceased had shouted at him using obscene language and that she had caught him unaware and struck him twice with a beer bottle on the head. He had used his knife in self-defence as he wanted to disarm the deceased whom he said was holding a broken beer bottle. It was during this time that he had accidentally stabbed the deceased's stomach.

Admitted in evidence as exhibit 1 was the post-mortem report done by Dr Gonzalez, a duly attested medical practitioner and forensic pathologist. His report concluded that the deceased died as a result of hypovolemic shock, abdominal aortic artery damage, and the stab wound.

Admitted as exhibit no. 2 was the accused's confirmed warned and cautioned statement which captured his stated defence.

Also admitted as exhibit 3 was the sketch plan drawn by the Investigating officer, Sergeant Blessing Tsuro.

Exhibit 4 was a photograph of the deceased after the stabbing. It showed her lying down with her intestines clearly protruding from her stomach as a result of the stab wound.

The statements which were admitted as evidence in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] were those of Doctor Gonzalez basically summarizing the post mortem report and that of Gift Chari, an attested member of the ZRP, who had visited the scene on the fateful day.

The gist of his evidence was that at around 20:30 on that day he had received a murder report. He had teamed up with Kadoma CID, Canine and District Reaction group and had gone to the scene. Upon arrival, he had found the deceased on the ground in front of the bottle store. The area had been well lit and he had observed the stab wound and the protruding intestines. The following day, on 9 September, the body had been ferried to the general mortuary.

It was therefore not in dispute that the accused had stabbed the deceased in the stomach.

The main issue for resolution were the circumstances surrounding the stabbing; in other words, the reasons for the misunderstanding.

The State relied on the oral evidence of Tatenda Gwata, the bar lady, who was present on that day as well as the accused's friend, Kabanga Muyambo, also known as Denny, who had also been present. Oral evidence was also led from the Investigating Officer, Blessing Tsuro.

The State's evidence

Tatenda Gwata: She worked as bar lady for the owner who had several bars and bottle stores. The deceased was her friend who would come to the bar to assist her with relief duties and preparing food. She knew her as a relative of one of the women who also worked at the bar. She also knew the accused as a patron at the bar. He was called Pipiro by his friends. She had been working at that particular bar for a week as the owner had several bars.

Her collection of the events of that day was that Kabanga Muyambo had been the first to arrive at the bar and she had sold him beer. The accused had then arrived later. The deceased had arrived between 16:30 and 17:00 hours. They had discussed what they would eat and had decided on buying plain sadza to consume with milk. It was when the deceased was coming from buying the sadza that the accused had thrown an empty bottle of water at her and the deceased had protested and indicated that she did not like that behaviour. The accused had not responded, but, when they started eating he had returned again and wanted to know why he had been excluded from joining them in their meal. He had not been answered.

It was at around 20:00 hours that the accused had again approached the deceased saying she should come to him as he had summoned her on several occasions. The deceased had responded that she had already told him that she was not interested in his advances. She had asked the deceased if she had any relationship with the accused to which she had said no. The accused had, at that point, slapped the deceased on the face and had kicked her resulting in her hitting the refrigerator. He had also gotten hold of the deceased and had head butted her several times. At that point this witness had screamed and had thrown a bottle top at Kabanga Muyambo, the accused's friend, who had been asleep. So vicious was the attack against the deceased that she had had to close her eyes and hold her face in her hands as she let out that the accused would injure the deceased from the way he was head-butting her. It was also at this point in the assault that the deceased had taken an empty beer bottle and had hit the accused with it.

Kabanga Muyambo had woken up and had tried to pull the accused away but he had been beaten and pushed against some empty crates stacked against the wall. The accused had pushed Kabanga Muyambo outside the bottle store and had himself come back to continue his pursuit of the deceased who had now taken refuge behind one of the three patrons who were in the bar. He had continued his assault even as one of the men stood between the accused and the deceased as a human shield.

It was also her evidence that two of the men had managed to subdue the accused and had taken him out of the bar but he had come right back in. It was when he returned again that he had drawn a knife from his satchel which he had been carrying on his back. He had, once again, gone to the deceased who was behind a patron and had tried to stab her several times until he had been successful in doing so on the left side. The deceased had screamed that she was dying and had run outside at that point before collapsing to the ground.

The accused had put back the knife in his satchel and had walked out of the bar.

Whilst at the height of the assault on the deceased, she had hidden behind a door; she had, nonetheless, been able to continue observing from a vantage point provided by wide gap between the hinges.

The police had been called and had attended the scene. She had only left the following morning when her statement and photographs from the scene had been taken.

Asked to comment on the accused's sobriety at the time of the assault she stated, in her examination in chief, that on that day she herself had not observed him drinking but had noticed that he was carrying a bottle of water which looked like it had water inside although she did not verify its actual contents. She however did not think he was drunk.

As to whether the deceased had provoked the accused in any manner she had not heard anything and certainly at no time had she heard the deceased hurl any insults at the accused.

In cross examination, she confirmed when asked that she had heard that the deceased was a sex worker but that she had not seen her solicit at the bar in question.

Counsel for the accused had also put it to her that she herself was a sex worker like her friend before the court objected to this line of questioning of the witness's moral turpitude as irrelevant to the case at hand.

She conceded that hitting someone with a bottle was dangerous.

She was asked why the other three men who were drinking in the bar had not intervened at the time of the slap on the basis that if she had done nothing to the accused they would not have left him to assault the deceased. She did not know their reasons for not intervening then.

She had also stood steadfast that the deceased was no longer armed with a bottle and was merely hiding behind the man in question for protection when she was stabbed by the accused.

As regards the accused's sobriety, it was put at her that the bottle of water that the accused was carrying may in fact have contained alcohol and that she could therefore not dispute that he was drunk.

From her evidence, therefore, what we deduced materially were the following crucial points:

(a) It was the accused who had assaulted the deceased first and had engaged in a vicious assault including pushing and head-butting the deceased.

(b) It was during this assault by the accused on the deceased that the latter had retaliated by hitting him with a bottle.

(c) Efforts had been made to restrain the accused from further assaulting the deceased before the fatal stab.

(d) At the time of the stabbing, the deceased had been standing behind a patron who had stood as a buffer between the accused and the deceased.

Kabanga Muyambo: His evidence was that he had arrived at the bar at 11am in the morning whilst the deceased had arrived at around 15:00 hours. He said he had bought the accused three opaque beers and that when the accused had finished these he had consumed a drink called double punch mixed with water. He himself had fallen asleep at around 18:00 hours whilst the accused whilst still drinking his double punch.

However, he had still been awake when the deceased and Tatenda Gwata, the first witness, had eaten their meal. He had observed the accused talking to the deceased but said he had not heard what the conversation had been about but the tone had been cordial. He said he had been awoken suddenly by glass shards falling on him when a bottle hit the accused. He had seen the accused head butting the deceased and had grabbed the accused who shook himself free and jumped over the counter and continued beating the deceased. He had followed him and dragged him from there and the accused had started beating him until he fell against some crates alongside the wall. He said he had managed to pull the accused outside but the latter had rushed back in again.

This corroborated Tatenda Gwata's evidence that there had been efforts to restrain the accused from assaulting the deceased save to say that she had said it was the accused who managed to push this witness outside whilst the witness said it was him who pushed the accused outside. This was not material since no two persons experiencing the same event have identical experiences particularly because they cannot be precisely at the same place at precisely the same time; BARRY R. MORRISON and WARREN COMEAU, Judging Credibility of Witnesses 25 Advoc. Q. 411 2001-2002…,.

The crucial point on which there was consensus was the clear effort to restrain the accused.